“But to punish and not to restore, that is the greatest of all offences.”††

INTRODUCTION

We have a problem in the United States: the juvenile incarceration rate is the highest among . . . developed nations.1 Since the 1990s, the juvenile justice system in America, from a global context, has followed a more punitive trajectory in dealing with young offenders, in comparison to international trends.2 Indeed, internationally, countries are seeking to incorporate the United Nations Convention on the Rights of the Child (CRC), which “requires states to use alternatives to incarceration whenever possible . . . [and] prioritizes rehabilitation over retribution.”3 Currently, the United States has not ratified the CRC.4

In the United States, one “of the primary criticisms of juvenile incarceration . . . [is] its inability to effectively address recidivism.” 5 The national recidivism rate in the United States has at times exceeded 50%.6 By contrast, there is evidence that “restorative justice [programs] tend to decrease” recidivism levels.7 Restorative justice is a “model[] of conflict resolution” that treats crime as an opportunity and “emphasizes healing rather than punishment.”8

While restorative justice may be effective, this Article asserts that the answer to America’s incarceration problem is not replacing the current system with one based on restorative justice, but rather incorporating restorative justice principles into our system. After all, punishment is not bad in and of itself. Indeed, punishing criminals “treats [them] as . . . dignified human being[s] by responding to [their] conduct in a way that respects [their] choice to engage in wrongful behavior.” 9 Punishment in the form of retribution is “intended to vindicate the value of the victim denied by the wrongdoer’s action.” 10 However, the success of restorative justice at preventing future crimes and its satisfaction rates, both of which will be discussed in this Article, cannot simply be ignored. Restorative justice involves both the offender and the victim and searches for solutions for reconciliation,11 which can be very beneficial for our system. In short, the point of this Article is that a proper approach to juvenile detention involves both punishment and restoration.

This Article is divided into four parts. Part I will explain both the theories of retributive justice and restorative justice, so that the reader will understand the underlying rationales of both. Part II briefly discusses the development of the juvenile justice system in the United States and the current status of juvenile law therein. Part III will look at how restorative justice has developed in Germany, and Part IV will evaluate how principles of restorative justice from Germany could potentially be incorporated into United States law to supplement punishment.

I. THEORIES OF RETRIBUTION AND RESTORATIVE JUSTICE

In order to lay a foundation for the rest of this Article, it is important to first discuss what is meant by the theories of retributivism and restorative justice.

A. Retributivism

The criminal theory of retribution generally focuses on “revenge for the past violation of a law.”12 Typically, it is concerned with punishing a past offense rather than deterring a future one.13 The retribution sought in a criminal case may be viewed as “social condemnation” of a criminal’s act and an affirmation of appropriate social norms. 14 The position of retributivism is that “punishment is necessary,” as society must mete out some kind of “retribution against [lawbreakers].” 15 Punishment, rather than being valuable as a deterrent, is valuable in and of itself, as the person who has “committed a crime . . . simply deserve[s] to be punished,” and there is no further justification needed.16

This theory has been around for quite some time. From ancient times until the middle ages, numerous “criminal justice systems were . . . [built around a] concept of retribut[ion].”17 It can also be found in both “biblical and Talmudic forms of justice.” 18

Those who argue in favor of this theory have said that punishment is not a means of “promoting another [g]ood,” but rather is “to be pronounced over . . . criminals proportionate to their [deeds].” 19 Furthermore, it has been argued that crimes must “be negated in order to re-establish equivalence” within a society, and that can only be done through punishment.20

† Carter Budwell graduated cum laude from Regent University School of Law in 2016. While at Regent, he worked as a Managing Editor with this Journal, and as a Graduate Assistant for the Center for Global Justice, Human Rights, and the Rule of Law. He also interned for the National Legal Foundation and the United States District Court for the Eastern District of Virginia. A native of Colorado, Carter worked for Youth With A Mission Strategic Frontiers for three years before attending law school. During this time he worked with missionaries in Central Asia, the Caribbean, Africa, and Europe. He is currently practicing law in Norfolk, Virginia.
†† ALAN PATON, TOO LATE THE PHALAROPE 264 (1953).
1 Sandra Newcombe, The DOJ Comes to Town: An Argument for Legislative Reform When the Juvenile Court Fails to Protect Due- Process Rights, 44 U. M EM . L. R EV . 921, 925–26 (2014). I acknowledge that not all juveniles who go through the American system are incarcerated. The principles discussed in this Article should therefore be applied to those who are.
2 Beth Caldwell, Globalization and Juvenile Life Sentences: Creating Meaningful Opportunities for Release for Juvenile Offenders, 2014 J. INST. JUST. & INT’L STUD. 1, 2.
3 Id. at 1–2.
4 Id. at 1.
5 Judy C. Tsui, Breaking Free of the Prison Paradigm: Integrating Restorative Justice Techniques into Chicago’s Juvenile Justice System, 104 J. CRIM. L. & CRIMINOLOGY 635, 641 (2014).
6 Connie de la Vega & Michelle Leighton, Sentencing Our Children to Die in Prison: Global Law and Practice, 42 U. S.F. L. REV . 983, 1022 (2008). See generally MATTHEW R. DUROSE ET AL ., U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS (2014), https://www.bjs.gov/content/pub/pdf/rprts05p0510.pdf (conducting a study from 2005 to 2010 which found high rates of recidivism for offenders).
7 Tsui, supra note 5, at 641.
8 Paul Clark, Restorative Justice and ADR: Opportunities and Challenges, 44 ADVOCATE , Nov. 2001, at 13, 13.
9 David A. Starkweather, The Retributive Theory of Just Deserts” and Victim Participation in Plea Bargaining, 67 IND. L.J. 853, 855 (1992).
10 Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. REV . 1659, 1686 (1992).
11 See Mary Ellen Reimund, Mediation in Criminal Justice: A Restorative Approach, 46 ADVOCATE , May 2003, at 22, 22 (discussing how reconciliation can be achieved from various means such as restitution and mediation).
12 Maria Foscarinis, Toward a Constitutional Definition of Punishment, 80 COLUM. L. REV. 1667, 1679 (1980).
13 Id.
14 Id. at 1681.
15 Matthew Haist, Deterrence in a Sea of “Just Deserts”: Are Utilitarian Goals Achievable in a World of “Limiting Retributivism”?, 99 J. CRIM. L. & CRIMINOLOGY 789, 793 (2009).
16 Id. at 793–94.
17 Id. at 795.
18 Id.
19 Id.
20 Id.

INTRODUCTION

In 1993, Proposta de Emenda à Constituição (Proposal of Constitutional Amendment) 171 (PEC 171) was proposed in an effort to combat what was seen as a rise in violent crime committed by Brazilian youth.1 If ratified in its original form, PEC 171 would reduce the age of criminal responsibility in Brazil from eighteen to sixteen years old. 2 While the Amendment did not gain traction when first introduced, 3 recent highly publicized juvenile crimes brought it to the forefront of Brazilian legislation in 2015. 4 The Amendment has since garnered a considerable amount of congressional support despite being fiercely condemned by the Brazilian president.5

The Brazilian government continues to debate the advisability of adopting the Amendment. 6 Pending a formal ratification or rejection of PEC 171, this Note addresses the potential implications of adopting such legislation. Specifically, the similarity of the proposed Amendment to the current statutory guidelines permitting the transfer of juveniles to adult court in Virginia, allows for the application of a comparative criminal justice analysis.7

This Note contends that, based on decades of research citing the negative impact of juvenile transfer in Virginia, 8 Brazil should reject PEC 171 and instead strengthen its existing system of juvenile justice. Part I provides an overview of the social and legal context of juvenile justice in both Brazil and the United States. Part II addresses juvenile transfer in Virginia and its attendant consequences. Part III argues for the use of a comparative justice framework when examining the impact of transfer laws in Brazil. Finally, Part IV analyzes the potential consequences of reducing the age of criminal responsibility in Brazil and provides germane policy suggestions. Based on evidence from decades of research on the impact of transfer in Virginia, this Note concludes that the ratification of PEC 171 in Brazil will result in far-reaching, and likely unanticipated, negative consequences for both the Brazilian population at large and the Brazilian youth subjected to adult prosecution.

I. BACKGROUND

A. Constitution of Brazil

Largely due to the evolving nature of the Brazilian government, as well as several coups which resulted in brief periods of authoritarian leadership, Brazil operates under its seventh Constitution. 9 The Constitution is “federative” in that it grants “greater legislative (and unifying) authority to the central government with state legislation following national direction.” 10 The Brazilian Constitution is “the supreme law of the land . . . [and] binds all public actors, all state departments and all powers.” 11 As contrasted with the United States Constitution, the Brazilian Constitution is expansive and enumerates a wide array of social and political rights, including the rights of children.12

Though only in force since 1988, Brazil’s current Constitution already includes ninety–five amendments.13 The amendment process in Brazil first requires a proposal by either “the President; at least one third of the members of the house of representatives; at least one third of the members of the Senate; or a petition of more than half of the Brazilian states [sic] legislature.” 14 Following the proposal, “a two-fold reading in both houses as well as the approval of at least three-fifths of both houses” is required.15

† J.D. 2017, Regent University School of Law; M.A. 2011, Old Dominion University. Special thanks to Professor Lynne Marie Kohm for her guidance, advice, and calming presence.
1 Sam Aman, Selective Adulthood: Brazil Moves to Lower Age of Criminal Responsibility, COUNCIL ON H EMISPHERIC AFF. (May 29, 2015), http://www.coha.org/selective-adulthood-brazil-moves-to-lower-age-of-criminalresponsibility/. The original proposal by Congressman Domingos also suggests that modern juveniles are more mentally developed than the youth of previous decades and are therefore capable of understanding the consequences of their actions. Id.; see also Ministério Público, PEC 171/1993, http://www.mprs.mp.br/infancia/legislacao/id2658.htm (translation on file with J. Global Just. & Pub. Pol’y) (last visited Mar. 6, 2017).
2 Aman, supra note 1.
3 Id. It has been noted that PEC 171 likely did not “pass the necessary congressional hurdles” when first introduced because the political composition of congress at the time was less conservative. Id.
4 Id. For instance, in 2014 fourteen-year-old Yorrally Dias Ferreira was murdered by her ex-boyfriend two days before he turned eighteen. This case made headlines due to the gruesome nature of the crime; “Ferreira’s killer filmed her bleeding body and spread the footage on the Internet, shocking the country and igniting social media networks.” Id.
5 Id.; see also Associated Press, Brazil’s Congress Reduces Age of Criminal Responsibility to 16, GUARDIAN (July 2, 2015), http://www.theguardian.com/world/2015/jul/02/brazil-age-of-criminal-responsibility-16 [hereinafter Brazil’s Congress Reduces Age of Criminal Responsibility to 16].
6 See Aman, supra 1; see also Brazil’s Congress Reduces Age of Criminal Responsibility to 16, supra note 5.
7 See discussion infra Part III.
8 See discussion infra Part II.
9 Jesse Burgess, Comment, Let them Eat Cake: Constitutional Rights to Food, 18 WILLAMETTE J. INT’L L. & DISPUTE RES. 256, 268 (2010); see also Brazil – Legal History, FOREIGN LAW GUIDE [hereinafter Legal History], http://0-referenceworks.brillonline.com.library.regent.edu/entries/foreign-law-guide/brazil-legal-history-COM_037301 (last updated Oct. 19, 2015).
10 Legal History, supra note 9.
11 Nick Oberheiden, Law of Brazil, OBERHEIDEN L. GROUP,
http://www.lawofbrazil.com/ (last visited Dec. 30, 2015).
12 See generally CONSTITUIÇÃO FEDERAL [C.F.] [CONSTITUTION], translated in Brazil’s Constitution of 1988 with Amendments through 2014, CONSTITUTE (Keith S. Rosenn, trans.), https://www.constituteproject.org/constitution/Brazil_2014.pdf (last visited Mar. 6, 2017) [hereinafter Brazil’s Constitution of 1988].
13 See Emendas Constitucionais [Constitutional Amendments], P RESIDÊCIA DA REPÚBLICA , http://www.planalto.gov.br/ccivil_03/Constituicao/Emendas/Emc/quadro_emc.htm (last visited Mar. 6, 2017).
14 Oberheiden, supra note 11.
15 Id.