The Curious Case of Benjamin Button V Juvenile Justice

“It is imperative that all uprising be guided by an urge for justice, not a craving for revenge.” ― Abhijit Naskar, No Foreigner Only Family

On August 18th, 2020, a 10-year-old boy tragically succumbed to injuries suffered on June 14th, 2020 when he was reportedly struck in his head with a piece of wood by playmates. The boy’s mother said four children, ranging in ages 7 to 11, were responsible for inflicting the injuries. This tragedy outraged many Barbadians and led to the creation of an online petition by a Barbadian social activist. The petition called for, inter alia, the laws of Barbados to be amended to charge children as adults when they commit heinous crimes. Sadly, this petition was supported by over 26,000 persons. Regardless of whether the mass support was merely an emotional response to a tragic event, the request is one that must be resisted fervently.

You may know the movie, The Curious Case of Benjamin Button, about a man, who springs into being as an elderly man in a New Orleans nursing home and ages in reverse. This is the only case I would ever advocate for what looks and talks like a child in many respects to be legally charged as an adult. While Mr Button may have looked like a child, he was, in fact, a ‘grown’ man. However, Benjamin Button’s disease only exists in the movie, and those tiny, sometimes not so tiny, humans, are, in fact, still children and must be treated and more importantly protected as such.

This article will not traverse the psychological and sociological planes, though there may be much support there. Rather, it will focus on the rule and role of law in supporting why children should not be charged as adults.

“…men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law;”

You may remember this quote from the preambles of both the Barbados and Trinidad constitutions. The rule of law is defined as one of the fundamental principles of a democratic society (Klass v. Germany, 8 September 1978, § 55). Inherent in the rule of law is the concept of fairness. Charging children as adults is essentially saying they need to have the same responsibilities as adults. However, the law also strips them of rights that true adults have, like the right to vote, own property, consent to medical treatment, sue or be sued, or enter certain types of contracts. How can a group be mercilessly persecuted by a system they are powerless to change? We must not allow ourselves to be degraded to our oppressive past where laws worked to keep certain people in submission. We have long since evolved from such arbitrary law. Thus, at the very least, amending laws to allow for children to be tried as adults requires mass legislative changes that additionally confer many rights not currently possessed by that most vulnerable group under our care.

At its most basic function, a primary role of law is the maintenance of order in society. Besides reaping vengeance on small children not yet developed enough to bear the full weight of responsibility adults must carry, charging children as adults, apart from the almost irreparable harm they may suffer throughout the course of their life for actions taken during their formative years, potentially places a proverbial knife to the throat of society. Overseas, researchers have found that juveniles housed in adult facilities are 5 times more likely to be sexually assaulted than youth held in juvenile detention centres and twice as likely to be beaten by staff than youth held in juvenile detention centres.¹ Additionally, juveniles who witness violence, which is more likely in adult facilities, during incarceration, are less likely to be deterred from future crime.² Juveniles charged as adults were more likely to re-offend and to re-offend sooner than matched samples of juveniles who weren’t charged as adults.³ For example, juveniles tried and convicted as adults were found to be 32% more likely to commit another crime in the future than juveniles tried and adjudicated for similar crimes in the juvenile justice system.⁴

The statistics speak for themselves. But in case you may be monolingual, this all translates to higher crime rates and more disorder and violence in our society. To be clear, I do not for one second, condone the alleged actions of those children, nor do I believe that such actions deserve a slap on the wrist. Rather, I believe that even in cases such as this, they should be dealt with as what they are, children, with rehabilitation and education at the forefront of the legal response. Children are the future of our society and the statistics show that charging them as adults is akin to tossing them out of society. They say it takes a village to raise a child and if we, as the ones charged with guiding and teaching them, disregard them when they make mistakes and venture to errant paths of evil and danger before we allow them a chance to learn from their mistakes and grow, then what future are we creating for humanity? Quite frankly, one I do not wish to be a part of.

— Javed E. Daniel (LL.B) (LEC)

Notes

Footnotes

1. Fagan, J., Frost, M., & Vivona, T. S. (1989). “Youth in prisons and training schools: Perceptions and consequences of the treatment-custody dichotomy”. Juvenile and Family Court Journal. 40: 1–14. doi:10.1111/j.1755-6988.1989.tb00634.x ↩

2. Redding, R. E., & Fuller, E. J. (2004). “What do juvenile offenders know about being tried as adults? Implications for deterrence”. Juvenile and Family Court Journal. 55 (3): 35–44. doi:10.1111/j.1755-6988.2004.tb00167.x ↩

3. Fagan, J. (1996). “The comparative advantage of juvenile vs. criminal court sanctions on recidivism among adolescent felony offenders”. Law & Policy. 18 (1–2): 77–114. doi:10.1111/j.1467-9930.1996.tb00165.x ↩

4. Lanza-Kaduce, et al. “Juvenile Transfer to Criminal Court Study: Final Report.” Florida Department of Juvenile Justice Prison Policy Initiative, 8 January 2002. ↩