MUMBAI: In the US, a minor arrested in a rape and murder case would have been tried in a regular criminal court and got sentenced to life in prison if convicted. Till about six months ago such a person would not even have been entitled to parole in over 20 states and be imprisoned till death. Many states provided for mandatory life sentence without possibility of parole even for juvenile offenders. Last June, the US Supreme Court set aside these laws as unconstitutional by a slim 5-4 majority.
The majority decision, written by Justice Elena Kagan, said that the policy violates the Eighth Amendment, which bans cruel and unusual punishment. The ruling relied on earlier case laws to hold that children under 18 lack the maturity to make sound decisions, and that mandatory sentencing leaves no room for discretion and towards a chance to reform. The SC held, "Imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children."
The US SC had earlier in 2005 in another precedent setting judgment in Roper Versus Simmons eliminated the juvenile death penalty which was being awarded for the last three decades. Five years later in 2010, in Graham Versus Florida state, the SC ruled that in non-homicidal crimes, life sentence without parole was unconstitutional. That decision affected over a 100 prisoners convicted of committing, before they turned 18, crimes like rape, armed robbery and kidnapping. In its latest decision on juvenile offenders, the US SC went a step further and insisted that judges and juries must even in killings by minors, "consider the characteristics of a defendant and the details of his offense before sentencing." The characteristics would include his life circumstances, violence in his life among other parameters. Parole is early conditional realease of a convict under supervision.
The cases before the court concerned two men who were involved in killings when they were 14 in 1999 when they tried to rob an Arkansas video store. Kuntrell Jackson then 14 was with two older youth when the three attempted the robbery but things went wrong and one of the older youths shot and killed a store clerk.
The US with around 25 of its States is one of the few countries that allows juveniles to be prosecuted as adults and sentenced to life without parole. There are more than 2,500 people currently in jail nationwide who fall under this category; and 79 of them were sentenced when they were 14 or younger. In September 2011, a report by the US Justice Department stated that a majority of the 50 states offered discretionary judicial waiver to transfer juvenile cases to adult criminal courts and 15 states had mandatory waiver for certain serious crimes. In the 1980s and 1990s, legislatures in nearly every state expanded transfer laws that allowed or required the prosecution of juveniles in adult criminal courts.
US is now studying the effects of such transfers on the crime statistics, but Mumbai advocate Swapnil Kothari, "Following the US example Indian legislature cannot afford to catnap even for a minute and amend the law to treat not only juvenile offenders as adults in some cases under the Indian Penal Code, but also, to treat the rapes of minors and small infants as rarest of rare." Juveniles' crimes are termed 'delinquencies' even if the offence in as serious as murder in criminal justice jurisdictions globally and every in North Americas and Europe have established special youth courts to deal with such under-age offenders for petty crimes to serious felonies. Although the Juvenile laws are made to ensure that youth in conflict with law are reformed as they are still young and amenable to correction, in US, states like Missisippi has laws that send a young offender to 30 years' in prison for sexual felonies for the first offence and to 40 years for the second. A felony is a serious crime and includes burglary, kidnapping, or murder.
In England, however, along with 'youth courts' the law allows juveniles to be tried along with adult co-defendents or by them selves in a regular criminal court and attract sentences that can extend over 14 years too or be of an "indeterminate nature''.
The law in England looks at a "vicious will'' to hold him accountable for a crime.
In England, the famous Blackstone's Commentaries on the Laws of England, drew the line between "infant" and "adult" at the point where one could understood one's actions way back in 1760. But UK which now has the minimum age for criminal responsibility at 10 and is facing a debate, is justifying it as an age where children understand between right and wrong. In France, the special youth courts handle trials of juvenile offenders even for serious crimes like rape and killings and have set up enclosed educational centres for remand under judicial supervision.
Asserted Kothari, "In line with India's ancestral English laws, the Juvenile Justice Act, 2000 and the Indian Penal Code, 1860 with its concomitant procedural acts should be revamped to ensure speedy justice. The Delhi gang-rape case must be treated as rarest of rare, to ensure that the five accused are sent to the gallows with the sixth juvenile who must meet his maximum three years with severity
