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The Honolulu Advertiser
Posted on: Wednesday, May 2, 2001

Island Voices
When is a juvenile criminal an adult?

This is the fourth in a series of articles from Hawai'i's Judiciary marking Law Week in Hawai'i.

By Eric G. Romanchak
Family Court judge

The Hawai'i news media provided extensive coverage of the October 1996 tragic event involving off-duty Honolulu police officer Arthur Miller, who fell to his death from a freeway overpass after an altercation with 17-year-old Gabriel Kealoha.

This case, because it was highly publicized and included extended coverage of all phases of the juvenile court proceedings, highlighted for the public, perhaps more than any other recently reported proceeding within the juvenile justice system, how the law treats minors differently from adults.

The coverage brought to light (under the then-existing laws of Hawai'i's juvenile justice system) those differences, in that a minor is charged with a law violation rather than a crime, is adjudicated in a closed proceeding rather than tried as a defendant in a criminal trial open to the public and, if found to be a law violator, receives a disposition rather than a criminal conviction and sentence.

These differences, however, have not always been part of American law.

The modern juvenile justice system was founded on idealistic premises that juvenile offenders should be kept separate from adults in institutional settings, that children are different from adults and thus more amenable to treatment and rehabilitation, and that youth should be dealt with through individualized justice targeted at their particularized needs rather than by a sanction system driven solely by the seriousness of the offenses that brought them into the system.

Starting with the passage of the 1899 Illinois Juvenile Court Act and ending with a series of U.S. Supreme Court decisions, all 50 states and the District of Columbia now adjudicate juveniles in separate juvenile courts. Furthermore, all youth charged with law violations are afforded the same procedural rights as adults, the one exception being that juveniles are not constitutionally entitled to a jury trial unless specifically authorized by state law.

However, today many court observers would argue that public support of a separate justice system for children has been waning as a result of juveniles becoming increasingly responsible for major and violent crimes.

As Edward Hume, an investigative reporter and award-winning journalist, writes after publishing "No Matter How Loud I Shout: A Year in the Life of Juvenile Court," " ... many jurisdictions appear to be shifting more resources into monitoring and incarcerating the most serious juvenile offenders for longer periods of time, leaving fewer resources to deal with minor, younger offenders — those youths most amenable to rehabilitation, and the ones juvenile courts were originally designed to help. Instead, these kids on the cusp are largely ignored — until they commit more serious offenses. Only then, when they are hardened offenders unlikely to reform, do we throw money at them — too late for them, too late for their crime victims."

His observations continue with " ... this self-defeating trend is now being carried to its logical extreme — the wholesale dismantling of major portions of the juvenile court system, as state after state has passed laws allowing many juveniles to be tried and sentenced as adults.

"Championed as reform, this practice is actually a throwback to the 19th century, when a criminal was a criminal, no matter his or her age."

Is this country coming full circle to where juvenile justice was in the 1800s? Probably not. It is interesting to note, however, that in 1980, every state kept its youth criminals in juvenile court, but 15 years later only Hawai'i still tried all children under 16 as juveniles. This, of course, is no longer the case in Hawai'i.

Coincidentally, while Hawai'i's Family Court was dealing with the Kealoha case, the state Legislature in 1997 passed measures viewed as favoring the protection of the community over privacy or rehabilitative protection afforded to juvenile law violators.

As the Legislature stated in Act 317, "While continuing to support the rehabilitative approach to juvenile justice, the Legislature also recognizes that public safety and waning public confidence in the juvenile justice system necessitate the development of a legislative policy which balances these concerns with the principles of protection and rehabilitation. Therefore, the purpose of this act is to eliminate the confidentiality of certain records and proceedings of juvenile law violators adjudicated for serious, repeat or violent offenses in order to maintain public safety, to restore public confidence in the juvenile justice system, and to send a message to certain juvenile law violators that their actions will be taken seriously."

Mindful of those concerns, Act 317 now allows certain records and court proceedings of juveniles adjudicated for serious crimes to be open to the public.

Act 318 lowered the age from 16 to 14 for juveniles accused of committing certain serious criminal offenses. In such cases, the Family Court may waive jurisdiction and transfer the case to the Circuit Court for criminal proceedings where the juvenile is tried as an adult.

In reaching its decision, the Legislature emphasized the "grossly inadequate" prison terms for juveniles who have committed serious crimes and felt it was time to make "responsibility, deterrence, accountability and appropriate punishment basic components of Hawai'i's juvenile justice system."

While the Legislature and Family Court will continue their attempts to balance the principles of protection and rehabilitation, "the best interests of children" remains as the paramount principle guiding their deliberations.

As reflected by the outcome of the Kealoha case, Hawai'i's Family Court exercised its discretion as given to it by law by not waiving its jurisdiction, then adjudicated him as a law violator and entered a disposition of a commitment to the Hawai'i Youth Correctional Facility until age 19, all in an effort to maintain that delicate balance between protection and rehabilitation.