Juvenile Delinquency and Methods to Improve Protective Detention

Posted on    by Minji Ban

Abstract

The Juvenile Act, legislated in 1958, is a special act on criminal affairs for those aged under 19. According to the Juvenile Act, those aged under 18 are not sentenced to death or life imprisonment; they only receive relatively intermediate punishment. Because juvenile delinquents are easily tempted to commit crimes but at the same time are also easily corrected, the purpose of the Juvenile Act is to rehabilitate these juvenile delinquents and provide an opportunity to repent. However, focusing only on the individuals can make legislators overlook the social and structural problems inflicted by the environment the juveniles are placed in. Hence, there is a need to examine other methods implemented in various countries. Although it is true that many improvements have been made to Juvenile Reformatory and the dispositions, there still is a need to diversify the programs for juvenile delinquents in the institution. For resocialization, the young adolescents not only need education and vocational training but also social and emotional support which can only be provided through sustainable community and society.

 

I. Introduction

Since the implementation of National Petition on August 19th, 2017, juvenile crime and its punishment has become one of the most debated and controversial topics. Over the past 3 years, petitions for enacting harsher punishment on juvenile delinquents were annually placed in the top ten number of consents.[１] The first petition—answered officially by the Blue House after having more than 200,000 consents was a demand for the abolishment of the Juvenile Act that allows juveniles to be tried as protection cases. The Juvenile Act, legislated in 1958, is a special act on criminal affairs for those aged under 19. According to the Juvenile Act, those aged under 18 are not sentenced to death or life imprisonment; they only receive relatively intermediate punishment. Indeed, there must be a different degree of punishment according to one’s immaturity and possibility to reform. However, the Juvenile Act is regarded by the public as an unacceptable law that provides an easy way out for those young offenders.

Nationwide attention towards the Juvenile Act arises whenever violent crimes are committed by teenagers against their peers. In most cases, people are horrified at the brutality of the felonywhich often involves heavy physical injury, violent sexual assault, and special violence committed through the threat of collective force or by carrying dangerous weapons. In cases of extreme violence, juveniles are punished by the criminal law. However, those 10 years of age or more but under 14 years of age (‘Law-intruding Juveniles’) are only tried as protection cases by the Juvenile Department. In recent years, there have been cases in which young offenders commit crime knowing that they will not be punished or will be punished lightly due to the Juvenile Act. In other words, they are aware of this law and misusing it to avoid criminal punishments. As a result, hundreds of national petitions demand the abolishment or revision of such law.

However, in general, juvenile delinquents, unlike their adult counterpart who commit similar crimes, are easily tempted to commit crimes but at the same time are also easily corrected. For such reason, the purpose of the Juvenile Act is to rehabilitate these juvenile delinquents and provide an opportunity to repent. As a result, most juvenile cases are tried as the protection cases. Moreover, changes such as abolishing the Juvenile Act, allowing death penalty or life imprisonment, or revising the age of which minors are treated as ‘Law-intruding Juveniles’ cannot be the fundamental solution to curb the problems of young offenders. For any type of crime, focusing only on the retribution of the criminals can make legislators overlook the social and structural problems inflicted by the environment the juveniles are placed in.[２]

 

II. Korea’s Juvenile Act and Punishments on Young Offenders

  1. Definition of ‘Juvenile’ in the Juvenile Act and the Process

According to the Juvenile Act Article 4.1, juveniles—”who are ten years of age or more but under 14 years of age, who have committed acts in violation of Acts and subordinate statutes relating to criminal punishment,” and at the same time “who are ten years of age or more, who have inclinations to cause uneasy feeling for people around them by roaming in groups, or stay away from home without any justifiable reason, or those who have inclinations to drink alcohol, raise a disturbance or be exposed to harmful environment influences”—are tried as protection cases by the Juvenile Department. In these cases, the chief of a police station transfers them directly to Juvenile Department or any guardian, head of a school, social welfare organization; then, probation office notifies the Juvenile Department(Juvenile Act Article 4.2 and Article 4.3).

For those who are under 19 and are 14 years of age or more, “the public prosecutor who has investigated the case transfers the case to the competent Juvenile Department” if there is a cause for protective detention; and when it is “necessary to impose a criminal disposition, … Juvenile Department may, by means of a ruling, transfer the case to a public prosecutor”( Juvenile Act Article 49).

Over the last 5 years (2016-2020), the number of cases that the prosecutor transferred to the Juvenile Department has increased gradually: each year having the ration of 29%, 30%, 31%, 32%, 35%.[３] The numbers show that the means to restrict juveniles have now shifted to transferring the juvenile cases to Juvenile Department, rather than suspending punishment of restricting physical freedom or imposing a fine based on the Criminal Act. It can also be interpreted as part of a reflective measure. As the Juvenile Act was amended in 2007, the age limitation which was ‘aged under 20’ at the time, was revised to current ‘aged under 19’, resulting in increase of criminal punishment to those ‘aged under 20’ who could’ve been transferred to juvenile cases before the amendment.[４]

 

  1. How the Young Offenders are Punished

The Article 32 regulates the protective detention for the juvenile. As a result of a trial, the judge can “make disposition falling under any of the following subparagraphs” when it is deemed necessary:

  1. To consign a juvenile concerned of the care and custody of his/her guardian or any person who can provide protection for the juvenile in substitution for the guardian;
  2. To issue an order to attend a lecture;
  3. To issue a community service order;
  4. To place a juvenile concerned under the short-term probation of a probation officer;
  5. To place a juvenile concerned under the long-term probation of a probation officer;
  6. To entrust a juvenile concerned for the care and custody to a child welfare institution under the Child Welfare Act or other juvenile protection institution;
  7. To entrust a juvenile concerned to a hospital, a sanatorium or a juvenile medical care and protection institution under the Act on the Treatment of Protected Juveniles, Etc.;
  8. To transfer a juvenile to the Juvenile Reformatory within one month;
  9. To transfer a juvenile to the Juvenile Reformatory for a short-term; and
  10. To transfer a juvenile to the Juvenile Reformatory for a long-term.

(1) Problems regarding disposition under paragraph (1) 1, 6

The disposition under paragraph (1) 1 is returning the juvenile to the guardian who had no ability to correct the youth. Because the juvenile is situated in the same environment, his or her resocialization is hard to expect. In addition, the disposition under paragraph (1) 6 is an intermediate stage between returning the youth to the guardian and sending them to Juvenile Reformatory. It is problematic in that child welfare institutions are not correction facilities solely designated for the juvenile delinquents. Rather than resocializing the juvenile delinquents, sharing the institution can negatively influence the other occupants, which is contradictory to its initial purpose.[５]

(2) Problems regarding disposition under paragraph (1) 8, 9, 10

The disposition under paragraph (1) 8, 9, 10 is transferring the juvenile to a Juvenile Reformatory. Compared to the other dispositions, incarceration of young offenders is similar to punishments regulated by the Criminal Act in that they both restrict physical freedom. However, it is often indicated as ineffective and the cause of recidivism since adolescents learn the tactics of committing crime from other offenders which is often the case in adult criminals.

 

III. Alternatives or Methods for Improving the Criminal Disposition

Recidivism among young offenders calls for the need to exercise more effective punishment of juveniles. Even more so, increasing number of people believe that the disposition is no more an effective measure to correct these juvenile delinquents. Hence, there is a need to examine other methods implemented in various countries.

In order to deal with juveniles who committed serious crimes, USA have authorized facilities such as: “Youth Service Bureaus, special school programs, boys clubs and YMCAs, mental health agencies, drug programs and detox centers, church youth programs, drug programs and detox centers, church youth programs, crisis center, drop-in centers or shelter for youth, child welfare and protection services, Guardian ad litem programs.”[６]

As an effort to prevent increasing juvenile crime, Office of Juvenile Justice and Delinquency Prevention has been developing comprehensive strategy framework since 1993. The framework aims to prevent and control crime according to its ‘crime development level,’ by scoring and evaluating the level of protection and risk exposure. Development stages range from prevention phase, pre-crime phase and follow up. For example, when a young offender has committed a crime but did not show any serious violence, they are to participate in “leisure activity map, cognitive behavior treatment, conflict solving education, personal relationship enhancement, drug treatment, drug related training, parent training, student court, recovery jurisdiction, and network building.” As an effort to maintain sustainable and effective program, Office of Juvenile Justice and Delinquency Prevention designed the program to be closely intertwined with the local community—therefore systematically coordinating community centers and neighboring juvenile crime prevention service centers to cooperate with one another.[７]

In Japan, there is an alternative system that replaces incarceration of young offenders. Although it is similar to a child welfare institution, the facility is unique in that it is run by a married couple. In the facility, 13 to 25 juveniles are placed, and are allowed to attend schools or go to work. Instead of professional behavioral correction, the juveniles are placed in a homelike environment where they can naturally acquire appropriate manners through interaction with family and friends.[８]

Although it is true that many improvements have been made to Juvenile Reformatory and the dispositions, there still is a need to diversify the programs for juvenile delinquents in the institution. Many programs focus on education and vocational training. Yet, programs that allow these juveniles to cultivate positive habit and spirit are also necessary. Eventually, such programs will prevent juveniles from committing crime when they are exposed to the same environment that caused them to break law in the first place.

 

IV. Conclusion

The Juvenile Act has come a long way since its legislation in 1958. It is agreeable that the cruelty of the crimes committed by juvenile delinquents seems to escalate day by day. However, in order to rehabilitate them, the environment that these juveniles are exposed to should not be overlooked. Current Juvenile Act is problematic in that protective detention is not an efficient method to prevent recidivism. For resocialization, the young adolescents not only need education and vocational training but also social and emotional support which can only be provided through sustainable community and society. Thus, legislators should always be aware of this insight when it comes to Juvenile Act and its punishment.

 

 

Works Cited

Choi, Taesik. “Searching for Realistic, Effective Methods to Improve Disposition for Juveniles.” Journal of Welfare for the Correction Vol.- No. 3., (2006): 185-200.

Office of the President, STATISTICS OF NATIONAL PETITION OVER THE PAST 3 YEARS (2020), Statistics for Number of Consents, https://www1.president.go.kr/dn/5f3c613c4bfbe (last visited Jul. 24, 2020).

Park, Chankeol. “Problem in the criminal disposition against the juvenile criminal and the method for improvement.” Korean Journal of Comparative Criminal Law Vol. 20 No. 3., (2018): 221-246.

Park, Jong-Ryeol, Noe, Sang-Ouk. “Research on international examples on prevention of juvenile delinquency.” Journal of The Korea Society of Computer and Information Vol. 25 No. 8., (2020): 151-157.

Statistics KOREA Government Official Work Conference, STATISTICS OF JUVENILES TRIED FOR CRIMINAL ACTIVITY(2021), Statistics for juvenile criminals, https://www.index.go.kr/potal/main/EachDtlPageDetail.do?idx_cd=1750 (last visited Jul. 24, 2020).

 

[１] See, e.g., Office of the President, STATISTICS OF NATIONAL PETITION OVER THE PAST 3 YEARS (2020), Statistics for Number of Consents, https://www1.president.go.kr/dn/5f3c613c4bfbe (last visited Jul. 24, 2020).

[２] See, e.g., Park, Chankeol. “Problem in the criminal disposition against the juvenile criminal and the method for improvement.” Korean Journal of Comparative Criminal Law Vol. 20 No. 3., (2018): 221-246.

[３] See, e.g., Statistics KOREA Government Official Work Conference, STATISTICS OF JUVENILES TRIED FOR CRIMINAL ACTIVITY(2021), Statistics for juvenile criminals, https://www.index.go.kr/potal/main/EachDtlPageDetail.do?idx_cd=1750 (last visited Jul. 24, 2020).

[４] Ibid. at 226.

[５] See, e.g., Choi, Taesik. “Searching for Realistic, Effective Methods to Improve Disposition for Juveniles.” Journal of Welfare for the Correction Vol.- No. 3., (2006): 185-200.

[６] Park, Jong-Ryeol, Noe, Sang-Ouk. “Research on international examples on prevention of juvenile delinquency.” Journal of The Korea Society of Computer and Information Vol. 25 No. 8., (2020): 151-157.

[７] See, e.g., Ibid. at 153.

[８] See, e.g., Choi, Taesik. “Searching for Realistic, Effective Methods to Improve Disposition for Juveniles.” Journal of Welfare for the Correction Vol.- No. 3., (2006): 185-200.

 

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Posted in Autumn 2021.