Rehabilitative Promise: Why Norway Uses Restorative Justice in Juvenile Law

By Emily Bauer

I.               Introduction

Although most countries recognize juvenile offenders should be treated differently under criminal law, Norway and the United States take two distinctive approaches in sentencing juveniles: the restorative justice approach and the “tough on crime” approach.[1] The difference  between the two systems can largely be attributed to the influence of the Convention on the Rights of the Child on Norway’s system.[2] The Convention on the Rights of the Child, which promotes a child-friendly system that emphasizes rehabilitative promise in juvenile offenders,[3] has been adopted by Norway and 195 other countries.[4]  The United States is one of only two countries in the world that has not adopted this Convention.[5]  Therefore, it is no surprise that the United States takes a more punitive approach to juvenile justice.[6]  As a result of the United States’ punitive approach, some children, even those capable of rehabilitation, will remain in prison for the duration of their lifetime.[7] By replacing its punitive system with a restorative system consistent with the Convention on the Rights of the Child, the United States can give juvenile offenders a second chance.

II.             Background

Before comparing the rehabilitative Norway system and the punitive United States system, it is important to outline who is considered a “juvenile” in the criminal justice system.[8]  The definition of a juvenile turns on the age of the offender.[9]  All individuals under the age of 18 at the time of the alleged offense are to be treated under the rules of juvenile justice.[10] Although that definition seems simple, the difficulty arises in determining the minimum age a child can be deemed criminally responsible.[11]  If the offending child meets the requisite minimum age, the child is presumed to have the capacity to infringe on penal law.[12]  In contrast, a child who commits a crime, but falls below the minimum age of criminal responsibility, cannot be formally charged and held responsible in a legal proceeding.[13]  Although the minimum age of criminal responsibility is critical to the juvenile justice system, there is no consensus as to the precise age at which one would incur criminal responsibility.[14]

III.           The Convention on the Rights of the Child

The Convention on the Rights of the Child attempts to create consistency in juvenile justice by requiring member states to establish “a minimum age below which children shall be presumed not to have the capacity to infringe on the penal law” and by providing further guidance about what that age should be.[15] The Committee explained that the minimum age “shall not be fixed at too low of an age level, bearing in mind the factors of emotional, mental and intellectual maturity.”[16] The Committee considers a minimum age of criminal responsibility below 12 years old “internationally unacceptable” based upon human development and maturity levels.[17] Therefore, according to the Convention, juvenile offenders fall between 12 and 17 years of age.[18]

In addition to providing an age range for the juvenile justice system, the Convention on the Rights of the Child also provides guidance as to how juveniles are to be treated.[19] Unlike adult criminal proceedings, the primary consideration in a juvenile proceeding is the “best interest[] of the child.”[20] Accordingly, the Convention provides that “rehabilitation should be more important than retribution or deterrence.”[21] Article 40 requires member states to consider a variety dispositions, such as supervision, counseling, probation, foster care, education, and other alternatives to institutional care to “ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the [offense].”[22] Therefore, according to the Convention, the “detention of a child should only be imposed as a matter of last resort.”[23] Moreover, according to Article 37, juveniles are to be immune from capital punishment and life sentences without the possibility of parole.[24]

IV.           United States v. Norway

The “tough on crime” approach utilized by the United States is largely inconsistent with the Convention on the Rights of the Child.[25] For example, despite recent Supreme Court rulings limiting who can be sentenced to life in prison, the United States remains the only country in the world that still sentences children to life imprisonment.[26] While the Convention views detention of a child for any amount of time “a last resort,”[27] the United States has children who will never see the outside of a jail cell.[28]

Instead of a “tough on crime” approach to juvenile justice, Norway utilizes a restorative justice system that is consistent with the Convention on the Rights of the Child.[29]  The country “aims to repair the harm caused by the crime rather than punish [the juvenile].”[30] Accordingly, unlike the United States, Norway does not impose life sentences.[31] In fact, Norway rarely sentences juveniles to any prison time at all; only “juveniles of last resort” can be imprisoned.[32] “Juveniles of last resort” are those who have serious behavioral problems, are repeat offenders, and commit serious crimes.[33] Even if a child is deemed a “juvenile of last resort,[34]” he or she can only be imprisoned up to 4 weeks, with the possibility of renewal up to 12 months.[35] This is vastly different than the United States, where some juveniles will spend their whole life in prison.[36]

In addition to the rehabilitative nature of Norway’s juvenile system, Norway also has a relatively high minimum age of criminal responsibility.[37] Although the Convention allows a lower minimum age of criminal responsibility, Norway chose to implement a minimum age of criminal responsibility of 15 years old.[38] This means that fewer children fall within the purview of Norway’s juvenile justice system and ensures that the offender can appreciate the criminality of his or her actions.[39]

Unlike Norway, 33 states within the United States do not have a minimum age of criminal responsibility, theoretically allowing a child of any age to be subject to criminal penalties.[40] Of the states that do outline minimum ages, North Carolina has the lowest at 7 years and Wisconsin has the highest at 10 years.[41] Accordingly, every state falls out of the required range of the Convention (12-17 years).[42] The problem with falling outside of the range is that children may be too young to appreciate the wrongfulness of their actions and may be severely punished anyways.[43]

V.             Conclusion

The United States’ punitive approach and undefined minimum age of criminal responsibility puts juveniles behind bars without the opportunity to rehabilitate. The United States must recognize the rehabilitative promise in juveniles and become the 197th country to adopt the Convention on the Rights of the Child. By replacing its punitive system with a restorative system consistent with the Convention, the United States can give juvenile offenders a second chance.

[1] Brandon Johns, Juvenile Justice: The American Justice System v. Other Countries (Sept. 10, 2018), https://medium.com/@bjohns81/juvenile-justice-the-american-justice-system-vs-other-countries-3dc6860c77ad.

[2] Milena Sterio, The Rights of Juvenile Suspects Under International Law, Rights! Blog (Apr. 18, 2016), https://rightsblog.net/2016/04/18/the-rights-of-juvenile-suspects-under-international-law/.

[3] Id.

[4] G.A. Res. 44/25 (Nov. 20, 1990), https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-11&chapter=4&lang=en.

[5] Chesa Boudin, Children of Incarcerated Parents: The Child’s Constitutional Right to the Family Relationship, 101 J. Crim. L. & Criminology 77, 83 (2013).  

[6] Johns, supra note 1.

[7] Id.

[8] Sterio, supra note 2.

[9] Fact Sheet on Juvenile Justice, https://www.un.org/esa/socdev/unyin/documents/wyr11/FactSheetonYouthandJuvenileJustice.pdf (last visited Jan. 13, 2019).

[10] Convention on the Rights of the Child, Committee on the Rights of the Child, CRC/C/GC/10 (Apr. 25, 2007), https://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf.

[11] See generally id.

[12] Id. ¶ 31.

[13] Id. ¶ 32.

[14] Id.

[15] Id.

[16] G.A. Res. 40/33, ¶ 4.1 (Nov. 29, 1985), http://www.un.org/documents/ga/res/40/a40r033.htm.

[17] Convention on the Rights of the Child, supra note 10.

[18] Id.

[19] Sterio, supra note 2.

[20] Id.  

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Johns, supra note 1.

[26] Id.; see also Malcolm Jenkins, America is the only country in the world still sentencing our kids to die in prison, Think (Dec. 5, 2017), https://www.nbcnews.com/think/opinion/america-only-country-world-still-sentencing-our-kids-die-prison-ncna826471.

[27] Sterio, supra note 2.

[28] Id.

[29] Johns, supra note 1.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] This is rare; in the entire country of Norway, only 8 juveniles are currently imprisoned and all will likely be released upon rehabilitation. Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Minimum Ages of Criminal Responsibility in the Americas, CRIN (2019), https://www.crin.org/en/home/ages/Americas.

[41] Id.

[42] Convention on the Rights of the Child, supra note 10.

[43] Id.