Friday, September 14, 2012
Understanding the Concepts of Terms and Representations
In UK Contract Law essays, it is important to distinguish between terms, representations and mere sales puff.
Before the parties enter into a binding contract the parties negotiate to each other. In this scenario, one or both parties make promises and statements. Some of the statements will be expressly agreed upon and made part of the contract while there are some statements which will not be expressly agreed upon.
For example, X makes the decision to sell his old car at £9000 to Y. Before Y agreed to buy the car, Y asked X about the mileage, the year X bought the car, and the condition of the car. X said that he bought the car in the year 2003 and that it has run for 8, 000 miles and that it does not have scratches or dents. X also said that the car still feels like brand new even if X has been using it for years. Not every statement made before the sale was made can be considered as a term of the contract. Some will only be considered as Representations while some are mere sales puff.
From the point of view of the law on contracts, not all of these statements will form part of the contract.
In this case, the term of the contract is that X shall deliver to Y his old car. Y will pay £900 in exchange for the car.
Whether or not the statement about the year it was bought, the mileage, and the scratches on the car, is a contractual term is a matter which is not clear. There is no supporting evidence that Y bought the car because he wanted to buy a 2003 model car, which has run for no more than 8,000 miles. There is no supporting evidence as well that Y would not have bought the car if he knew that it did have scratches or dents.
Why is it important to Distinguish?
The courts will not treat every statement as a term. Distinction should be made between terms and representation. Terms are part of the contract while representations are not. Representations are merely statement of fact and opinion which are not part of the contract.
The distinction whether a statement is a term or a representation becomes important in case the statement is found to be untrue. If it is a term of the contract and there is a breach then the injured party will have a remedy for the breach of contract such as damages. On the other hand, if it is not a term then the injured party will not have a remedy for the breach of contract except when fraud or negligence is established.
If the misstatement is not a Term of the Contract and the person who misrepresented acted wholly innocently the injured party will only be entitled to Rescission but the court may order damages instead (Ramage, 2004).
Guidelines in Determining whether a Statement is a Term or a Representation
1. Strength of the Statement. Whether the courts will consider a statement as a term of the contract it is necessary to determine the strength of the statement. In the case of Ecay v. Godfrey (1947), the seller said that the boat subject of sale is in sound condition. However, he suggested to the buyer to have the boat surveyed before buying it. The advice to have the boat surveyed was considered as evidence that the seller did not intend the statement to be a part of the contract.
In the case of Schawel v. Reade (1913), the buyer wanted to inspect the horse if it was fit for stud purposes before agreeing to buy it. The seller told the prospective buyer that "You need not look for anything: the horse is perfectly sound. If there was anything the matter with the horse, I would tell you." Because of the statement of the seller, the buyer was induced to buy the horse who later found that the horse was not fit for stud purposes. The House of Lords said that the statement was a term of the contract.
2. The Importance to the Representee. If the person to whom the statement has been made has expressed that he considered the statement to be very important to him then the statement is a contractual term.
In the case of Bannerman v. White (1861), 10 CB NS 844, a buyer of hops has indicated to the farmer that he wanted to sell the hops to the brewers of beer in Burton and that he would not buy hops that have been treated with sulphur. Before the sale was made, the local farmer had assured the buyer that the hops being sold had not been treated with sulphur. On the contrary, out of the 300 acres of hops being sold 5 acres were treated with sulphur. The court said that the statement was a term which is part of the contract.
3. Relative Degree of Knowledge. If one of the parties to a contract has special knowledge or expertise than the other party about the subject matter of the contract then his statements are more likely to be considered as a contractual term. On the other hand, statements made by a party who has lesser knowledge than the other party are more likely to be considered as mere representations.
In the case of Oscar Chess Ltd v. Williams (1957) 1 WLR 370, the defendant who was a private motorist trade in his car to a car dealer for £290. The defendant represented to the car dealer that the car was a 1948 model based on the entry on the registration book that he saw when he bought the car. It was found that the car was a 1939 model which only cost £175. When the car dealer discovered that the car was in fact a 1939 model, he sued the defendant for breach of contract. It was held that the defendant was not liable for breach of contract because his statement was a mere representation not a Term. Compared to the buyer who was engaged in car dealership, the defendant had little knowledge about cars.
In the case of Dick Bentley Productions Ltd v. Harold Smith Motors Ltd (1965) 1 WLF 623, the buyer asked the defendant who was a car dealer that he was interested in buying a "well vetted second-hand British car, the history of which was known. The defendant presented to the buyer a car which he said had a mileage of 20,000 miles. When the car broke down it was found that the car’s actual mileage was 100,000 miles. It was held that the car dealer’s statement was a term making him liable for breach of contract.
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Wednesday, September 21, 2011
The American with Disabilities Act was signed into law in May 1990. It sought to guarantee equal opportunity for people with disabilities in public accommodations, commercial facilities, employment, transportation, state and local government services and telecommunications. It also sought to prohibit private employers from discriminating against qualified individuals with disabilities in applications for jobs. Employers cannot likewise use as basis a person’s disabilities in making decisions such as firing, compensation, promotion, job training and other privileges of employment.
The ADA defines a person with disability as a person who has a physical or mental impairment that substantially limits his major activities or has a record of impairment or is regarded as having impairment.
The situation of applicant C in Company X falls is similar to the case of Jose Zamora who was denied employment by Wal-Mart. Jose Zamora is a wheelchair bound paraplegic who applied for a job with Wal-Mart for six (6) times between 1991 and 1993. The store manager, however, informed Jose Zamora every time he applied for work that there was no job openings in any of Wal-Mart’s stores. Based on the findings of the Equal Employment Opportunity Commission (EEOC), the reality was that there was that there was 133 job openings at the time of Jose Zamora’s applications. He was qualified for 83 of these job openings. For this reason, the federal jury required Wal-Mart to pay Jose Zamora with US$ 3.6 million.
I agree with this decision. The American with Disabilities Act prohibits an employer from discriminating against persons with disabilities. They are prohibited from firing them or from refusing to hire them on account of their disabilities, especially when their disabilities have not relation to the nature of the job being performed. Thus, an offer cannot ask whether an applicant for a job can perform certain functions when these functions are not related to the nature of the job being performed. In this case, while Jose Zamora, or in your situation applicant C may have difficult in walking around the company premises, the same should not be a hindrance since there are other functions which do not require employees to go around the company premises.
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Because of the protection given by the American with Disabilities Act, business organizations have started to train their recruitment officers on the proper manner of handling job interviews. According to Richard Stein (1993), “Clearly, the ADA legislation imposes an affirmative obligation upon employers to assist a disabled job applicant in achieving an employment opportunity. The breadth and expense of the obligation to provide a ‘reasonable accommodation’ must be carefully reviewed by employer.” To ensure compliance with this law, employers must act only questions which are relevant to the job and must refrain from asking questions such as whether a person has disabilities or impairment. At present, business organizations have also adapted a more accommodating recruitment procedure, and the entire job application, interview and hiring are now protected against violations of the ADA.
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There was a time when older workers were placed at a disadvantage as they were discriminated by their potential employers on account of their age. The Age Discrimination and Employment Act was eventually passed to protect the rights of older workers against discrimination Passed in 1968, the ADEA seeks to “promote employment of older persons based on their ability rather than age, to prohibit arbitrary age discrimination in employment, to help employers and workers find ways of meeting problems arising from the image of age on employment” (David Neumark, 1997).
Under the ADEA, discrimination against a person because of his or her age with respect to any term, condition, or privilege of employment which includes hiring, firing, promotion, layoff, compensation, benefits, job assignments and training is unlawful. This law also includes protection of employees who shall oppose employment practices that discriminate based on age or who shall file an age discrimination charge or who shall participate in any investigation, proceeding or litigation under the ADEA.
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Based on the situation in this case, the following can be inferred: 1) employee B who received an ‘above average’ rating was denied promotion on account of age; and 2) his co-worker was given a promotion despite his rating which is “adequate” because the management considered age as a basis for promotion. This falls squarely on the prohibitions of the ADEA.
The case of Smith v. City of Jackson, Mississippi, 125 S.Ct. 1536 stresses the importance of compliance with the ADEA. In this case, the city, in an attempt to bring the salaries of their younger police officers up to the regional average, adopted a policy that would give proportionately higher raises to officers having less than five years experience. Their intention is that they want the salaries of younger police officers to be competitive with the regional average. The older police officers however complained with the court. According to the older police officers, this policy discriminated against them since they are virtually disqualified from the salary increases in view of the fact that majority of them have been in the service for at least five (5) years. Consequently, they will receive lesser wages compared to the younger police officers who have served only for less than five (5) years. Though the pay raise discrepancy is based on the yeas of experience, common sense however dictates that older officers will be prejudiced by the simple fact that they are the ones who are more likely to have served for at least five years. The Supreme Court also made a ruling in this case that it is not necessary to violate the ADEA that there is intent to discriminate against the older workers. In this case, the city did not have an intention of discriminating against the older police officers. It was however clear that by implementing the policy the older police officers were subjected to discrimination. Thus, the Supreme Court said that the plaintiff may file a claim based on age discrimination simply by negative impact on their part even when there is no direct evidence of discriminatory intent.
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The Family and Medical Leave Act (FMLA) is a law that took effect on 1993. It protects the right of eligible employees to be entitled to leave when necessary to take care of a newly born child; when necessary to take care of a son or daughter placed with the employee for adoption or foster care; or when necessary to take care of a spouse, son, daughter, or parent who is suffering from a serious health condition; or when necessary to receive treatment for a serious medical condition that prevents the employee from performing his job.
Pursuant to the FMLA, an employee who takes his leave is protected from being terminated, demoted or punished for his leave provided that the requirements of the law is complied by the employee concerned. It shall be unlawful under the FMLA for an employer to deny an entitled employee an FMLA leave or to discriminate against or discharge an employee for exercising his rights under the FMLA.
In the same situation below, the manager is right in denying the request to be paid for the 11 weeks of withheld salary. The following can be concluded based on the situation: 1) the employer is covered employer for having more than fifty (50) employees; 2) the employee is likewise a covered employee since he has worked for more than twelve months with the company and has applied for leave to care for his spouse. The FMLA, however, only protects the right of the employees to be able to return to work after the leave. It does not require employers to pay the employee while they are on leave, unless the employee has extra leave credits which he can use with pay from the company.
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The actual case of Hanger v. Lake County highlights the importance of complying with the FMLA leave. In this case, Susan Hanger was connected with the Lake County Board of Commissioners as head of the human resources and safety department. She took a FMLA leave in May 1999 to give birth. Meanwhile, her employer temporarily hired Pamela Parkinson to replace Hanger. Subsequently, the commissioners became impressed with the performance of Parkinson that they decided to place her in charge of the human resources department. Upon her return to work, Hanger continued to receive the same pay and benefits even though another person was already performing her job. She eventually resigned in August 1999. She was reinstated afterwards but resigned again and moved out of the country. In August of 2001, more than two years after her first resignation she filed a suit for violation of FMLA.
It is apparent in this case that the employer virtually terminated the employee who was on leave under the FMLA. While the employer is allowed to hire temporary employees to perform the functions of the employee who is on leave, the same lasts only until the return of the employee who is on leave. Thus, the Court of Appeals ruled in this case that the employer of Hanger violated the provisions of the FMLA when they virtually demoted her upon her return. The law protects the right of the employees to take their leave when necessary to care for a newly born child. Such was the situation in the case of Susan Hanger who needed to take care of her child. Thus the employer violated the FMLA when then replaced Susan Hanger despite the fact that she has returned to work upon the end of her leave.
However, the Court of Appeals also declared that the protection given under the FMLA is subject to certain limitations. One of which is that the rights under the FMLA must be exercised with the time limit.
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It is estimated that more than 30 million youths will never come into contract with juvenile justice system in the United States. (Laura Nissen1) They are lucky because they will never be labeled as juvenile delinquents. Yet, more than a million youth below the age of 18 will come into contact with the juvenile justice system. (Laura Nissen 1) These are the ones who will be labeled as juvenile delinquents. They will be placed inside institutions for rehabilitation.
The youth today is facing much more difficult challenges and obstacles to their lives. The world that they know now is very much different from that of their parents and their ancestors. They are now more exposed to family problems, vices, antisocial behaviors and criminal acts. Children are much more vulnerable to peer pressures and influences. Statistics shows that “between 1979 and 1989 our youth population declined by 11% and the high school age population declined by 2.8 million.” (George Hart 1995). This is followed by a steady increase in the number of youths placed in confinements. Research shows that “our confined juvenile populations rose steadily and expenditures for juvenile correctional facilities grew from $1.3 billion to more than $2.8 billion dollars.” (George Hart 1995) The present trend of jurisdictional transfers of juvenile delinquents from juvenile courts to adult courts is making the problem of juvenile delinquency a lot worse. It must be stressed that when juveniles are placed under the jurisdiction of adult courts they can be confined in prisons together with adults.
The reality is that we live in a world where the minors are capable of committing a crime as heinous that which an adult offender can commit. The state therefore as the “parens patriae” or the parent or the guardian of its people is responsible for the welfare of its people, especially the minors. It has the duty to pass laws designed to protect and care for the minors within its jurisdiction. The objective is to prevent these minors from further committing delinquent acts, to rehabilitate them and to restore them to mainstream society. It must continue to develop policies and programs to address the needs of the youth and protect them from the risks that they are exposed to. It is because of this reason that the juvenile justice system was created.
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Several studies have been made so that the root cause of juvenile delinquency may be addressed. It is worth noting that majority of the cases of juvenile delinquents have problems with school. They are either not studying or they have dropped out of school. Thus, it was suggested that juvenile delinquency has direct relationship with a child’s problems at school. Perhaps, juvenile delinquency is a direct result of a child’s learning disabilities.
According to studies, children with disabilities represent 26% up to 73% of juvenile delinquents. (Katherine A. Larson 358) Accordingly, three theories have been suggested to explain the possible correlation between learning disability and juvenile delinquency. The first is the School Failure Hypothesis. Essentially, this hypothesis states that a child who suffers from learning disability is more likely to fail in school. The failure in school has a negative impact on a child’s self image. To explain further, it is possible that children who suffer from learning disabilities are labeled by their teachers and peers in school as different. Being labeled as different in schools negatively affects a child’s perception of himself which may cause him to alienate himself from his peers and his teachers. Being labeled as different may also cause the child to reject his peers and his teachers and even the institution that they belong which is the school. As these children rebels from social institutions, they are more likely to find acceptance from gangs and engage in delinquent activities. Negative self-image further affects a child’s self image leading to dropping out of school which further leads to delinquency.
Research affirms that children with learning disabilities have significantly higher rates of dropout from schools than children who do not have learning disabilities. (Katherine A. Larson 358). Research also affirms that there is a strong link between difficulty in school and juvenile delinquency (Katherine A. Larson 358). Some research, however states that appropriate intervention at school may decrease the chances of juvenile delinquency of individuals with learning disability.
Another theory which attempts to explain the relationship between learning disability and juvenile delinquency is the Susceptibility Theory. The Susceptibility Theory explains that certain types of personality characteristics result in increased susceptibility to delinquent activity or in the probability of being adjudicated as delinquent. Under this theory, it is not school failure that is the cause of delinquent behavior but rather the personality traits of a child with learning disabilities that makes him susceptible of delinquent behavior. For instance, children with learning disabilities also lack impulse control, unable to anticipate the consequences of their actions and have poor social perceptions. (Shelly Wilson Hook citing Waldie & Spreen 1993) These personality traits make them unable to recognize or interpret people leading to their delinquent behavior.
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The criminal justice system is an arm of the government that ensures that offenders who have committed crime are arrested and brought to justice. Under the criminal justice system, the police officers arrest the offender and temporarily place him behind bars. The prosecutors file a case against him so that he may be punished to the full extent of the law. At the other side of the spectrum are the criminal offenders. Though they may have committed a crime there are still entitled to present any kind of defense available so that their guilt may be established. Since they deal with the state all offenders are granted constitutional rights at the time of the arrest so that they may be able to properly defend themselves against the immense and broad power of the state.
Under this process, adults and offenders have similar constitutional rights at the time of the arrest. This is in view of the landmark decision in the case of In re Gault where the Supreme Court declared that the application of constitutional rights is not limited to adult offenders (Susan Mezey, 1996, p.2). Police officers need to obtain an arrest warrant. An arrest warrant may be dispensed with only when the offender is arrested at the time when he has just committed, is in the process of committing or is running away from the scene of the crime. At the time of the arrest, offenders may be handcuffed, photographed and fingerprinted. The police officer needs to recite to him his Miranda rights. The offender has to be informed that he has the right to be silent and that anything he says can be said against him in court. The offender needs to be informed that he has the right to an attorney and that if he cannot afford an attorney he will be provided a public attorney by the state. The reason for the Miranda warning is that regardless of age an offender has the right to be informed of the reason why he is being arrested.
The essential difference is that if the crime is a misdemeanor the police officer may arrest the minor even on the basis of a reasonable cause (“Juvenile Law”, p.1). The situation is different in the case of an adult where the police officer needs probable cause before he can take him into custody. This is in view of the constitutional protection granted under the right against unreasonable searches and seizures.
A juvenile offender who is arrested for a crime is given the opportunity to make two completed phone calls to his parent or any guardian and to his attorney. This is a juvenile right. The reason for the phone call is to afford the juvenile an opportunity to seek advice or assistance from any person who has responsibility over him. It must be stressed that minors are presumed to be incapable of making important decisions for themselves. As such, they need the guidance and advice of their parents or guardians. In addition, the police officers are also procedurally required to notify the minor’s parents or guardians of the arrest. If the minor refuses to call his parents or guardian out of fear it is the police officer’s responsibility to notify the minor’s parents or guardian.
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From the moment of the arrest, the police officer needs to make a choice whether he will detain the minor or release him from his custody. If the police officer decides to detain the minor the police officer is required to place the minor in a separate holding facility. The minor may not be placed in the same holding facility as the adults. If the police officer decides to release the minor from his custody then the police officer may simply issue a warning to him. If the police officer decides to take the minor before a Probation Officer he must do so within 24 hours from the time of his arrest (“What is Juvenile Arrest”, p.1). The Probation Officer will be responsible to make the decision whether he will release the minor, order informal counseling, informal probation or order a petition to be filed against him. The reason why the minor needs to be presented before a probation officer as soon as possible is for another individual to determine whether there is a legitimate and valid reason for his arrest and to release him if there is no reason for him to be detained.
It is also essential for the police officer to explain to the juvenile his rights in a language that is intelligible to him. Thus, it is insufficient that the police officer recites to him his right. During the trial the juvenile may question his arrest on the ground that the reason for his right was not explained to him in a language that is intelligible to him.
The additional protection given to the minors is pursuant to the social justice principle. It is due primarily to the fact that the juvenile offender’s age makes him incapable of protecting and defending himself against the police officers. It must be stressed that if the adults are powerless against the mighty police officers who deal with hardened criminals as part of their job then the minors are all the more powerless against them. Their young age and immaturity also makes them more susceptible to abuse at the hands of police officers. Since they do not know the law and their rights the police officers may take advantage of them. Moreover, while it is also the policy in the adult criminal justice system to rehabilitate and reform criminal offenders, minors are given special treatment in accordance with the duty of the state as the parens patriae of the people.
However, there are social reform movements that argue against the expansion of government protection afforded to minors. They believe that it would be more in keeping with the purpose behind the creation of the juvenile justice system for the juvenile justice system to be given more autonomy.
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The US Juvenile Justice System
Prior to the creation of the juvenile courts, minors aged seven (7) and above who were found to have committed misdemeanor were imprisoned together with the adults. Whatever law is imposed for the punishment of adult offenders was applied to minors. Minors were treated as harshly as adult offenders. In fact, in 1648, there was a law in Massachusetts which imposed death penalty for any child over 16 who shall commit the offense of cursing their natural father or mother.
However, later studies and research showed that the incarceration of juvenile offenders together with adult offenders does more harm than good not just to the juvenile offenders but to the society as well. This happened during the early years of the 19th Century where political and social reformers successfully pushed for reforms and instituted several changes in the society such as right of suffrage among women, protection of children against labor, and the institution of eight-hour work day. With the help of social and political reformers, several changes were introduced in the criminal justice system and reformers started to rehabilitate rather than punish minors. Society began to have a paradigm shift insofar as their treatment of juvenile delinquents is concerned. Thus, the Juvenile Justice System was created to reform US policies regarding juvenile offenders. Thus, the New York Society for the Reformation of Juvenile Delinquents led the opening of the House of Refuge which was the country’s first reformatory.
The First Juvenile Court
In 1899, the first juvenile court was established by Jane Adams in Chicago, Illinois. Its establishment was an affirmation of the fundamental principle that children are developmentally different from adults (Shay Bilchik, 1999, p.1). Minors are also considered to be more amenable to treatment and rehabilitation (Shay Bilchik, 1999, p.1). Considering these fundamental behavioral differences between an adult and a minor, placing juvenile offenders in the same confinements and treating them in the same manner as adults shall not be good for their rehabilitation and transformation. Thus, the juvenile justice system was created to utilize personal, individualized and treatment-focused approach as a long term solution to the problem of juvenile offenders (Patricia Allard and Malcolm Young, 2002, p.4).
Barriers to the Effective Implementation of Juvenile Justice System
Research shows, however, that there are certain barriers to making the juvenile justice system an effective tool for rehabilitation and treatment. One of the reasons are the incidences of judges who abuse their discretion in incarcerating children for petty offenses without requiring the same standards of proof which the adult defendants are entitled. Consider the case of In Re Gault where the United States Supreme Court reversed the lower court ruling of conviction of a minor who allegedly made an obscene telephone call. The Supreme Court ruled that minors who are charged with offenses in juvenile court were also entitled to basic due process: notice of the charge, a right to counsel, and elements of the right to trial including confronting witnesses as opposed to trial by hearsay (In Re Gault).
In addition, denial of due process against juvenile offenders is a common occurrence. In a 1993 survey conducted by the American Bar Association Juvenile Justice Center, they found that there are frequent incidents of questionable "waiver" of counsel; crushingly high defender caseloads; missed opportunities to interview, investigate and intervene when services might have helped a child (Patricia Allard and Malcolm Young, 2002, p4)
The lack of funding and adequate number of personnel add burden to the effective implementation of the principle and policy behind the juvenile justice system. These are serious obstacles that affect the efficiency of the programs for rehabilitation and treatment of juvenile offenders.
In addition, the main principles behind the juvenile justice system are being questioned. The opponents of the juvenile justice system argue that they are not effective in controlling crime. This is manifested by the fact that research has shown that murder by juveniles remained at a relatively constant level for the decade before 1985, but it underwent a large and disturbing annual increase. In view of the failure of the juvenile justice system to control criminal behavior among juveniles, there are proposals coming from other sectors of the society to shift the legislative policy from rehabilitation of juvenile offender to punishment.
Facing a dilemma - should the state concentrate its efforts on preventing crime or should it focus on rehabilitating offenders - the state has to choose between two options: Should the state use its resources to build more juvenile penitentiaries and incarcerate youthful offenders every time they violate the law as a means of punishment or should the state use its fund to help in parenting, recreational and mentoring programs that are geared towards the rehabilitation of the youth that are geared towards the rehabilitation of the youth.
Case of In re Gault, 387 US 1 (1967)
One of the main issues surrounding the juvenile justice system is that it is gradually integrating itself with the criminal justice system for the adults. In principle, the juvenile justice system is supposed to be procedurally different from the criminal justice system for adults. The intention was that the juvenile justice system was supposed to be akin to a civil proceeding as distinguished from criminal trials. Since it is a civil proceeding the juvenile offenders were not afforded due process rights, a right which is guaranteed and protected for adults facing criminal trials. Juvenile offenders were also not entitled to the right to trial by jury and the freedom against self-incrimination.
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In view, however, of the decision in the case of In Re Gault substantial change in the procedural principle in the juvenile justice system took effect. In the 1967 case of Gerald Francis Gault, he was placed in detention after he made an obscene call to a neighbor while under probation. The Supreme Court made a ruling that minors could not be incarcerated for committing petty offenses without requiring the same standards of proof which the defendants are entitled. Thus, the Supreme Court declared that juvenile offenders are likewise entitled to due process of law and directed the juvenile courts to grant the juvenile offenders the following rights: a) the right to receive notice of charges; b) the right to obtain legal counsel; c) the right to confrontation and cross-examination; d) the privilege against self-incrimination; e) the right to receive a transcript of the proceedings, and f) the right to appellate review. In this case however, Justice Potter Steward wrote his dissenting opinion against the imposition of formal trials in juvenile courts. He expressed concern that the juvenile court proceeding is being converted into an adult criminal court. He emphasized that the purpose of juvenile justice system is to rehabilitate not to punish these youthful offenders thus the grant of the said rights does not serve the purpose and intent of the juvenile justice system.
Juvenile Transfer to Adult Courts
In addition to the decision in the case of In Re Gault, several legislative measures have been passed which required the transfer of jurisdiction of juveniles to adult courts. The most serious repercussions of these laws are that slowly the society is trying to once again make the juvenile offenders under the jurisdiction of the criminal justice system. It is as if the courts and the legislators are trying to slowly trying to reduce the powers of juvenile courts so that the juvenile offender and the adult offenders will once again be governed by the same principles. These laws are a) prosecutorial discretion; b) statutory exclusion; c) lowered age limits; d) “once an adult always an adult” policy; e) judicial waiver.
Prosecutorial discretion is otherwise known as the direct file transfer since the prosecutors are given the complete authority to determine whether to file a case against a juvenile offender in juvenile courts or directly in criminal courts. One of the criteria used in filing cases in criminal courts is the gravity of the crime. This means that for a crime of murder committed by a minor it is possible that a prosecutor may choose to file a case in criminal courts. Another measure used to transfer jurisdiction is statutory exclusion. Some states automatically grant jurisdiction to criminal courts on offenses committed by juvenile offenders depending on either the age or the nature of the offense charged. In some states, the age limits are lowered so that regardless of the nature of the crime committed, the offender is tried as an adult. Thus, the adult courts are automatically granted the authority to hear cases involving juvenile offenders if they have reached a certain age limit. Thee are some states which adopt the “once an adult, always an adult” policy which treats a juvenile offender who has previously prosecuted as an adult in criminal courts as an adult for all subsequent cases. In judicial waiver, the state or the prosecution files a motion before the juvenile court to transfer jurisdiction from juvenile courts to criminal court. It is the judge who determines whether the transfer should be effected based on the judge’s sole discretion, or because certain well-defined criteria has been met or upon a probable cause determination for an offense for which the state has deemed that the waiver is appropriate.
There are many apprehensions about the increasing number of juvenile offenders being prosecuted as an adult in criminal courts and being placed in the same confinement as adults Among the arguments raised are that it fails to address the special needs of the minors who at that tender age needs the protection and help of the society. Also, it argued that transferring jurisdiction to criminal courts does not equip the minors of any learning necessary to reenter the communities. Another argument is that the transfer fails to take into account the notion that violence is a learned behavior. It must be stressed that most of the time these juvenile offenders were also victims of abuse or neglect.
The creation of the juvenile justice system in the 19th Century was a significant move towards social reform. The reformers in the past have learned from the mistakes of the law makers and the judges before them. It was indeed a sound judgment to create a separate court for juvenile offenders. Yet, several centuries after the juvenile justice system was created it would seem that the courts and legislators are once again committing the mistake of the people before the 19th Century. The laws providing for juvenile transfers to adult courts and the decision of the Supreme Court in In re Gault attest that society no longer believes in juvenile courts and would rather let adult courts handle juvenile offenders. I disagree with this. Juvenile offenders should be governed by a different justice system. The criminal courts already have their hands full in handling adult offenders. If jurisdiction over the juvenile offenders will be transferred to them a significant burden will be imposed upon criminal courts. Under criminal courts, the principle behind the creation of juvenile justice system will be put to waste.
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