“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

Until the U.S. Supreme Court’s 2005 decision in Roper v. Simmons, it was still lawful to sentence a juvenile defendant to death in twenty American states.2 In holding that the juvenile death penalty violates the Eighth Amendment, the Court questioned whether the main justifications that support the use of the death penalty in cases involving adult offenders, namely deterrence and retribution, can be achieved through the execution of juvenile offenders.3 Specifically, Justice Kennedy argued that the case for achieving the goal of retribution was weakened by the fact that their moral culpability was “diminished, to a substantial degree, by reason of youth and immaturity.” 4 With respect to the potential deterrent effect of the death penalty, the majority questioned whether juveniles would be “susceptible to deterrence” given juveniles’ diminished culpability and ability to think through the consequences of their actions.5

Despite the “progress” represented by the Roper decision, the United States continues to punish juvenile offenders more harshly than the rest of the world.6 Following the Supreme Court’s decisions in Graham v. Florida and Miller v. Alabama, a number of states have abolished the sentence of life without parole for juvenile offenders. 7 Still the United States remains an outlier.

Although American courts impose juvenile sentences up to and including life imprisonment, according to research conducted by David A. Shapiro, at least forty countries around the world limit the maximum sentence imposed on juvenile offenders to ten years.8 At the far end, twelve countries have a maximum juvenile sentence of twenty-years imprisonment.9

To explain the harsh treatment of juvenile offenders in the United States, scholars have typically identified a number of factors including: public support for punishment, cultural attitudes towards punishment, and rates of violent crime. Specifically, beginning in the 1990s, politicians substantially stiffened penal sanctions in juvenile cases riding a renewed wave of interest in the philosophy of individual responsibility and accountability. These changes paralleled a nearly 80% increase in violent crime related arrests of juveniles 17-years-old or younger that occurred between 1985 and 1995.10 Consistent with this shift in sentencing philosophy, between 1992 and 1997, forty-seven states changed their sanctioning policies by expanding the sentencing options available to judges, increasing the severity of juvenile sanctions, and creating procedures to permit prosecutors to transfer juveniles to adult court.11 Due to these changing political winds, juvenile incarceration rates rose dramatically during that same time period 12 and more juveniles were tried and sentenced as adults.13 According to Jeffrey Butts’ 1997 study, public fear of juvenile crime and distrust in juvenile justice led to a 71 percent increase between in youths waived into adult court between 1985 and 1994.14

The most noticeable effect of that waiver is that, in many states, juvenile offenders may receive life without parole sentences.15 Although the Supreme Court’s decisions in Graham v. Florida16 and Miller v. Alabama17 led some states to eliminate that harsh sentencing option altogether,18 juvenile offenders in Delaware, Iowa, Louisiana, Michigan, Nebraska and Washington may still receive a sentence of life without parole as a possible sentence for certain offenses.19

† Professor of Law, Indiana University Robert H. McKinney School of Law. Professor Boyne holds a B.A. cum laude, Cornell University; M.B.A. University of Minnesota; J.D. University of Southern California Gould School of Law; L.L.M. Justus-Liebig Universität, and a Ph.D. University of Wisconsin-Madison. Parts of this article previously appeared in Chapter Eight of SHAWN M ARIE BOYNE , THE GERMAN PROSECUTION SERVICE : GUARDIANS OF THE LAW ? (Springer-Verlag Berlin Heidelberg, 2014). Republished with permission.
1 Josine Junger-Tas, Trends in International Juvenile Justice: What Conclusions Can be Drawn?, in INTERNATIONAL HANDBOOK OF JUVENILE JUSTICE 505, 505 (J. Junger-Tas & S.H. Decker eds., 2006).
2 543 U.S. 551, 564 (2005) (noting that at the time of the decisions 30 states prohibited the use of the juvenile death penalty).
3 Id. at 570–71.
4 Id. at 571.
5 Id. at 571–72.
6 See Barry Krisberg, Rediscovering the Juvenile Justice Ideal in the United States, in COMPARATIVE Y OUTH J USTICE 6 (John Muncie & Barry Goldson eds., 2006).
7 Cara H. Drinan, Juvenile Justice in America: We Can Do Better, HUFFINGTON POST (June 13, 2015), http://www.huffingtonpost.com/cara-h-drinan/juvenile-justice-in-ameri_b_7054254.html (stating that Delaware, Hawaii, Massachusetts, Texas, West Virginia and Wyoming have abolished the practice of juvenile life without parole, while other states have precluded the sentence for certain categories of juveniles).
8 David A. Shapiro, What’s Beneath the Graham Cracker?: The Potential Impact of Comparative Law on the Future of Juvenile Justice Reform After Graham v. Florida, 24 PACE INT’L L. REV . 119, 139–40, 156 (2012).
9 Id. at 140.
10 Arrests for Violent Crimes by Age, 1970–2003, U.S. Dep’t of Justice (2004), https://www.bjs.gov/index.cfm?ty=pbdetail&iid=2028 (issuing FBI Uniform Crime Reports).
11 See e.g., Junger-Tas, supra note 1, at 511; P ANEL ON J UVENILE CRIME: PREVENTION, TREATMENT, AND CONTROL, JUVENILE CRIME, JUVENILE JUSTICE 5 (Joan McCord et al. eds., 2001).
12 Malcolm W. Klein, Thoughts on Juvenile Justice Systems and Research, 9 EUR. J. CRIM. POL’Y & RES. 273, 275 (2001).
13 Office of Juvenile Justice and Delinquency Prevention, Young Offenders: What Happens and What Should Happen, NATIONAL INSTITUTE OF JUSTICE 2 (2014), https://www.ncjrs.gov/pdffiles1/nij/242653.pdf.
14 JEFFREY BUTTS, OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, DELINQUENCY CASES WAIVED T O CRIMINAL COURT, 1985–1994 (1997); see also Shelly S. Schaefer & Christopher Uggen, Blended Sentencing Laws and the Punitive Turn in Juvenile Justice, 41 L AW & S OC . INQUIRY 435, 436 (2016).
15 Juvenile Justice: Rethinking Punitive Approaches to Addressing Juvenile Crimes, DEVELOPMENTS (UNIV . P ITT. OFF. DEV .), Jan. 2009, 6, 7, http://www.ocd.pitt.edu/Files/PDF/dev2009-01.pdf. In some states, waivers are no longer required for juveniles who commit certain types of offenses or have reached a certain age. Prosecutors may file these cases directly into adult criminal courts. See Patrick Griffin et al., Trying Juveniles as Adults: An Analysis of State Transfer Laws and Reporting, OFF. JUV. & DELINQ. PREVENTION, Sept. 2011, 1, 9–10, https://www.ncjrs.gov/pdffiles1/ojjdp/232434.pdf.
16 560 U.S. 48, 82 (2010) (holding that it is unconstitutional to sentence someone to life in prison without the possibility of parole for a non-homicide crime committed under the age of 18).
17 565 S. Ct. 2455, 2468–69 (2012) (holding that judges must consider a number of factors before sentencing a juvenile to life without parole including the defendant’s immaturity; family and home environment; family and peer pressures; an “inability to deal with police officers or prosecutors” or their own attorney; and “the possibility of rehabilitation”).
18 See Sarah Alice Brown, Trends in Juvenile Justice: State Legislation 2011-2015, NAT’L CONF. OF ST. LEGISLATURES 3 (2015), http://www.ncsl.org/documents/cj/Juvenile_Justice_Trends_1.pdf (noting those states include: California, Hawaii, Massachusetts, Nevada, Texas, Utah, Vermont, West Virginia and Wyoming).
19 Id.

ABSTRACT

Germany maintains strict compulsory education laws that prevent families from educating their children at home. Germany strictly enforces these laws, with little regard to the families’ incentives to remove their children from the public schools. For example, these laws contain no exemption for families interested in homeschooling for religious purposes. The absence of such an exemption seems to contradict the internationally recognized right to religious freedom, a right concretely granted through three international treaties that Germany has both signed and ratified.

Several decisions by the European Court of Human Rights (ECHR)  give little to no credence to religious freedom within a homeschooling rights context. These decisions reflect a government’s preference to restrict homeschooling, justified primarily by a need to “stamp out parallel societies.”

This Note suggests that Germany’s compulsory education laws, which originate from Adolf Hitler’s Third Reich, are overly broad, brutally enforced, and they restrict a family’s ability to practice their religion through homeschooling. The Note proposes an alternative framework that the ECHR could employ to evaluate the both the legitimacy of such laws and the petitions by homeschooling families. This framework allows for courts to account for both a potentially reasonable law and weigh it against the religious interests of a family. Incorporating an approach will promote consistency, reliability, and objective analysis by a reviewing court, and will ultimately ensure an appropriate balance between religious liberty and state interests in ensuring an educated body of citizens.

INTRODUCTION

On August 29, 2013, the German Wunderlich family experienced a jolting break from their traditional morning routine.¹ At 8:00 a.m. that Thursday morning, a swarm of twenty state officials broke down the Wunderlich’s house door with a battering ram and took into custody all four of their children, each under the age of fifteen.² A police officer shoved Dirk Wunderlich’s, the father, into a chair, and refused to allow him to make an initial phone call.³ The officer physically restrained Mr. Wunderlich because the judicial order authorizing the removal of the children also permitted the army of state officials to use force.⁴ The German government separated this family and imposed criminal charges on the parents for homeschooling, an act in violation of Germany’s strict compulsory education laws.⁵

As more families around the globe become dissatisfied with their government-run school systems, the Wunderlich story is not uncommon.⁶ In 2006, five German families sought to remove their children from school temporarily because of certain required sex education classes that conflicted with their religious worldviews.⁷ The European Court of Human Rights (ECHR) denied their petition.⁸ That same year, the Konrad family petitioned before the ECHR requesting that the state exempt them from their region’s compulsory education statute so that they could educate their children in conformity with their religious and moral beliefs.⁹ The ECHR denied their petition.¹⁰ In 2013, the Romeike family sought legal shelter in the United States in fear that the German government would separate them for trying to homeschool, even when homeschooling for religious purposes.¹¹ Germany denied their request for an exemption and the Sixth Circuit denied their claim for asylum.¹²

This Note proposes that the German laws at issue in the aforementioned cases conflict with the internationally recognized right to religious freedom. This freedom encompasses parents’ rights to homeschool their children. This Note explores the issue of religious freedom and its extension to the right to homeschool in six main parts. In Part I, it begins by exploring the general concept of religious freedom and its significance to society. Part II examines both the nature of international religious freedom and its relation to Germany’s compulsory educational legal system. Part III accounts for a domestic perspective in Romeike v. Holder, noting language in the American system that supplements this threat to religious freedom. Part IV discusses homeschooling: what it is, why it is done, and why its nature comports with international religious freedom. Part V explains two ECHR cases involving both homeschooling and religious freedom. Part VI argues that the ECHR used a faulty approach in analyzing those cases, and presents the correct alternative analysis.

I. RELIGIOUS FREEDOM: ITS NATURE AND SIGNIFICANCE TO CIVIL SOCIETY

Certain activities exist strictly in a religious context: prayer, church attendance, tithing, giving to the poor, and the taking of communion—to name a few within the Christian faith.¹³ Because a Christian’s relationship with God is the driving force behind these activities, to restrict the performance of these activities is to infringe on one’s freedom of religion.¹⁴

The freedom of religion is the liberty to act in accordance with one’s religious convictions and thus with the choices they make as a result of those convictions.¹⁵ One may externally discern these convictions by focusing on the religious texts, longstanding traditions, or rules imposed by a legitimate institution or its representative.¹⁶ When a person acts because of his religious beliefs, the state has very little leeway in restricting the activity.¹⁷

Because one of the cores of civil society is freedom, and religious  liberty is an important manifestation of freedom, restricting the activity presents a detriment to society.¹⁸ Civil society is important because of the “social capital” it creates through the proliferation of certain virtues among its members: commitment, responsibility, and trust.¹⁹ Each of these ideals enables citizens to contribute to the “common good of society.”²⁰ The state furthers the ability of citizens to pursue these values by not interfering with their practices.²¹ In other words, by restraining itself in its regulatory power to a certain extent, it may permit citizens to contribute to the common good.

This describes the nature of civil society and freedom in general. What does religion, and therefore religious freedom, specifically offer to encourage individuals to contribute to society’s common good?Speaking primarily of monotheistic religions, people are convinced that behaving in a responsible and dedicated way reflects a mindset where their Creator primarily holds them accountable.²² This accountability contains a “commitment to build the common good, through personal responsibility and a relation of trust with other persons [that] is generated by recognition of the truth that has been given by God to human beings.”²³

While homeschooling is not only practiced by Christians, this Note focuses on the Christian faith due to its wide prevalence within the homeschooling communities.²⁴ Christianity is a unique monotheistic religion because it is one of the few that focuses on a loving relationship between a single all-powerful deity and humans as the deity’s creation.²⁵ This definition is important because relationships contain an element of choice, an element also inherent within the concept of liberty.²⁶ According to Christianity, a legitimate religious experience—the relationship with God—thrives only within a domain of freedom.²⁷ As one scholar explains,

This explanation of the Christian faith and its relationship to a Christian’s interaction with the state becomes important in the discussion of the general choice to homeschool since, as the following sections point out, religious fundamentalists dominate that particular community.

1 Verboten Values: Home Schooling in Germany and the Future of Freedom, THE FEDERALIST (Sept. 18, 2013) http://thefederalist.com/2013/09/18/verboten-values-2/.
2 Id.
3 Billy Hallowell, ‘Brutal and Vicious’: Armed German Police Storm Homeschooling Family’s House and Forcibly Seize Children, Report Claims, THE BLAZE (Aug. 30, 2013, 3:25 PM), http://www.theblaze.com/stories/2013/08/30/brutal-and-vicious-armed-german-policestorm-homeschooling-familys-house-and-forcibly-seize-children-report-claims/.
4 Id.
5 See Wunderlichs Regain Freedom to Leave But Vow to Stay and Fight, HOME SCH. LEGAL DEF. ASS’N, http://www.hslda.org/hs/international/Germany/201408280.asp (last visited Aug. 28, 2014).
6 For example, families in China have recently expressed serious dissatisfaction with their government-run public school systems. China maintains strict compulsory education laws, but thousands of families seek to homeschool due to rampant bullying, teacher-student abuse, and ineffective academic preparation. See, e.g., Lilian Lin, Homeschooling Becomes More Popular in China, WALL STREET JOURNAL (Aug. 27, 2013), http://blogs.wsj.com/chinarealtime/2013/08/27/homeschooling-becomes-more-popular -inchina/?mod=e2tw; Karen Lee, Legal Loophole Opens Up Chance for Homeschooling, S. CHINA MORNING POST (Jan. 7, 2014), http://www.scmp.com/news/hong-kong/article/1399191/legalloophole-opens-chance-homeschooling.
7 Dojan v. Germany, 2011-V Eur. Ct. H.R. 511, 514–16.
8 See id.
9 See Konrad v. Germany, 2007 Eur. Ct. H.R. 435, 437–38 (2006).
10 Id. at 444.
11 Romeike v. Holder, 718 F.3d 528, 530 (6th Cir. 2013).
12 Id.
13 These activities are not performed by a Christian by “obligation,” per se, but because of their direct connection to the Christian faith, which involves the development of a relationship with Jesus Christ. See Silvio Ferrari, Religion and the Development of Civil Society, 4 INT’L J. RELIGIOUS FREEDOM 29, 31–32 (2011) (noting the unique “communitarian dimension” of Christianity as a religion, a dimension enveloping both the human and his deity). See generally Romans 12:12; Hebrews 10:24–25; Malachi 3:8–10; Proverbs 22:9; Luke 22:17–20 (New International).
14 See Ferrari, supra note 13, at 32–33.
15 Michael J. Perry, Freedom of Conscience as Religious and Moral Freedom, 29 J. L. & RELIGION 124, 128 (2014).
16 Determining what constitutes religion can be a tricky feat. One scholar suggests three categories of “religion” that may help to determine whether the religious practice is legitimate for the purposes of the ideology in question: religion as belief, religion as identity, and religion as a way of life. For the purposes of this Note, a parent’s choice to homeschool their children likely falls within the third category: religion as a way of life. T. Jeremy Gunn, The Complexity of Religion and the Definition of “Religion” in International Law, 16 HARV. HUM. RTS. J. 189, 200–205 (2003) (“In this facet, religion is associated with actions, rituals, customs, and traditions that may distinguish the believer from adherents of other religions. For example, religion as a way of life may motivate people to live in monasteries or religious communities, or to observe many rituals, including praying five times a day, eschewing the eating of pork, or circumcising males.”).
17 See, e.g., American Convention on Human Rights, art. 12, Nov. 22, 1969, 1144 U.N.T.S. 143 (providing that the “[f]reedom to manifest one’s religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others.”).
18 See Ferrari, supra note 13, at 29, 32–33.
19 Id. at 30 (citing ROBERT D. PUTNAM ET AL., MAKING DEMOCRACY WORK: CIVIC TRADITIONS IN MODERN ITALY 88–89 (1994)).
20 Id.
21 See id. at 30–31.
22 See id. at 31.
23 Id.
24 Robert Kunzman, Homeschooling and Religious Fundamentalism, 3 INT’L ELECTRONIC J. ELEMENTARY EDUC. 17, 19–20 (2010).
25 In his text comparing the various worldviews that influence how we view ourselves, others, and reality, James Sire explains the uniqueness of Christian theism regarding the longing for a relationship with a higher power. See JAMES W. SIRE, THE UNIVERSE NEXT DOOR 28, 32–34 (5th ed. 2009) (“How does God fulfill our ultimate longing? He does so in many ways: by being the perfect fit for our very nature, by satisfying our longing for interpersonal relationship . . . by being in his infinite love the cause of our hope for salvation.”).
26 See Ferrari, supra note 13, at 32 (noting that the communitarian dimension of Christianity “is based on a personal assent that questions the responsibility of each individual. In other words, persons are not born Christian but become Christian, and they become so not because they are members of a community, a people or a family, but because of a personal choice.”).
27 Id.
28 Id.

† B.A. 2012, Howard Payne University; J.D. 2016, Emory University School of Law.