Considerations on the Judgement of Criminal Court No. 1 of Vitoria-Gasteiz on the Iruña-Veleia Case

In the past two decades, nearly every state has expanded its authority and simplified its procedures to transfer adolescent offenders from juvenile to criminal (adult) courts. As a result, the use of jurisdictional transfer has grown steadily. These developments reflect popular and political concerns that punishment in juvenile courts is too lenient for serious crimes committed by adolescents. Yet there is mixed evidence that expanded transfer authority has produced more certain or severe punishments for adolescents prosecuted in criminal courts. Some empirical studies show that adolescents transferred to criminal court are more likely to be convicted, sentenced to prison, and serve longer sentences, compared to similar cases that remain in the juvenile court. Other studies show that transferred cases receive similar sentences or receive less severe punishments. In this article, we report the results of a natural experiment comparing detention, disposition and custodial sentence lengths for matched groups of adolescents charged with serious felony offenses in juvenile or criminal courts. We report that adolescents prosecuted as adults are at a greater risk of detention and incarceration, and if incarcerated, sentenced to longer sentences than adolescents in juvenile courts. Yet the disparity between outcomes in juvenile and criminal courts is not as large as the rhetoric surrounding this issue would lead one to believe. The resilience of common law doctrine of diminished culpability of adolescents is evident in the limited effects of expanded jurisdictional transfer activity on sentencing and punishment of adolescents in criminal court. We discuss the jurisprudential and social policy implications of denying adolescents the latitude of a traditionally more rehabilitative and lenient juvenile court.

Three decades of legislative activism have resulted in a broad expansion of states' authority to transfer adolescent offenders from juvenile to criminal (adult) courts. At the same time that legislatures have broadened the range of statutes and lowered the age thresholds for eligibility for transfer, states also have reallocated discretion away from judges and instituted simplified procedures that permit prosecutors to elect whether adolescents are prosecuted and sentenced in juvenile or criminal court. These developments reflect popular and political concerns that relatively lenient or attenuated punishment in juvenile court violates proportionality principles for serious crimes committed by adolescents, and is ineffective at deterring or controlling future crimes. This legislative activism has reshaped the boundaries of the juvenile court, and animated calls for its elimination. Yet these developments have taken place in a near vacuum of empirical analysis of the efficacy of these measures to increase punishment or reduce crime. Jurisprudential analyses of the fit between the traditional doctrines of immaturity and reduced culpability of juveniles also has lagged far behind the pace of legislative change. The redrawing of the boundaries of the juvenile court also has not reflected new knowledge on adolescent development, the legal socialization of adolescents, and their responsiveness to criminal sanctions. The new boundaries of the juvenile court also threaten to reify and intensify social and racial dimensions of criminal punishment. To address these questions, we conducted a natural experiment to assess whether prosecuting and sentencing adolescent felony offenders in the criminal court leads to harsher punishment, and whether that harsher punishment translates into improved public safety. We show that serious adolescent offenders prosecuted in the criminal court are likely to be rearrested more quickly and more often for violent, property and weapons offenses, and they are more often and more quickly returned to incarceration. Adolescents prosecuted and punished in the juvenile court are more likely to be rearrested for drug offenses. These results suggest that law and policy facilitating wholesale waiver or categorical exclusion of certain groups of adolescents based solely on offense and age, are ineffective at both specific deterrence of serious crime, despite political rhetoric insisting the opposite. Such laws may increase the risk of serious crimes by adolescents and young adults, by heavily mortgaging their possibilities to deflect their criminal behavioral trajectory and enter a path of prosocial human development. Returning to a discretionary, judge-centered transfer policy, rather than wholesale waiver or surgical exclusion of entire categories of adolescent offenders, would limit the number of youth subjected to criminal court prosecution and harsh punishment conditions in adult corrections. A policy of discretionary transfer of only the most serious offenders, whose eligibility for transfer would be transparently assessed with full access to evidence and expertise, would ensure proportional punishment for the few adolescents whose severe crimes demand greater punishment than is available in the juvenile court, and whose punishment as juveniles might corrode the legitimacy of the juvenile court.

Determinations of competency in adult criminal court have an extensive history, both procedurally and conceptually. Unlike criminal court, however, juvenile courts were designed for rehabilitation, rather than punishment, and, historically, the issue of competency was not often raised. Recently, however, as stakes for youth in juvenile court have begun to parallel those of defendants in criminal court, youths' competence has become an important issue. The purpose of this study was to investigate whether defendants' age and maturity affect judges' ratings of juveniles' adjudicative competence in juvenile and criminal court. Three hundred forty two criminal and juvenile court judges reviewed one forensic psychological report about a hypothetical defendant; only the age (12-17) and maturity level (less mature; more mature) of the defendant variedacross reports. The judges then rated the juvenile's adjudicative competence in both juvenile and criminal court, provided ratings of the individual competence components, rated their confidence in their decision, and rated the importance of various characteristics of the juvenile to their decisions. Judges also provided demographic information. Results revealed a main effect for age, with older juveniles generally deemed more competent, and a main effect for maturity, with more mature juveniles generally deemed more competent. There was no interaction between age and maturity. Results suggest that age and maturity play major roles in judicial determinations of juvenile competency.

Performance indicators are usually employed to measure the efficiency of business processes. In past decades, their use has steadily expanded into an array of different businesses, including the judicial sector. Many courts have adopted indicators measuring their average case resolution, and used this as general benchmarks for performance. This has recently expanded into the area of international (criminal) courts, too. The present contribution analyses the performance indicator exercise at the International Criminal Court compared to alternative approaches taken by international(ised) criminal tribunals to date. It will assess what results performance indicators can deliver for international courts and to what benefit. Particular attention will be paid to the question whether the use of performance indicators can contribute to increasing an institution’s legitimacy through enhanced transparency and accountability. At the same time, performance indicators are a means of budgetary control. Potential tension between these factors will also be explored.

Violence, Criminalization & Punitive Excess

In criminal cases involving minority defendants, some minority legal scholars argue that despite the overwhelming evidence of guilt, racial minority jurors should possess the moral obligation to acquit ‘'guilty'’ defendants as a protest against racial discrimination in the criminal justice and court systems. While the rate of racial acquittals is on the rise in criminal courts in large metropolitan jurisdictions, the present analysis shows that in the O.J Simpson trial involving a number of racial and ethnic minorities, minority jurors are more likely to adhere to the strict application of criminal legal standards —presumed innocence, burden of proof, and reasonable doubt — in their deliberative process. Our empirical analysis reveals that while the presence of biases in law enforcement raised the ‘'reasonable doubt'’ and ‘'proof beyond a reasonable doubt'’ standards among white jurors, none of the three legal standards had statistically significant relations with their determination of the trial outcome. For racial minorities, however, all three legal concepts and racial biases in the criminal justice system show statistically significant impacts on their determination of the Simpson verdict. While there is the greater scrutiny of both presumed innocence and reasonable doubt among racial minority jurors, the concept of the government's burden of proof negatively affected minorities’ views in the Simpson acquittal. This suggests that the government's superior positions and prosecutorial resources may be too much to overcome in order to win an acquittal. Thus the burden of proof standard may measure racial minorities’ sense of powerlessness in obtaining a fair trial and securing an acquittal. Similarly our findings show that racial minorities who believe there are racial biases and prejudices held and used by law enforcement authorities also feel that O.J. Simpson would be adjudicated guilty of murder, suggesting that the government which relies on evidence collected by discriminatory law enforcement agencies might still be too powerful to enable Simpson to win an acquittal verdict. While advocates for racially based jury nullification reinforce the image of lawlessness of minority jurors in America's criminal courts, the present analysis show that, at least in a highly publicized criminal trial involving a prominent minority defendant, minority jurors show the opposite, suggesting that racial minority jurors are indeed law abiding participants in the administration of justice.

I want to make three points in connection with David's lecture, looking at his subject from my own perspective, i.e., that of a judge in an international criminal tribunal. First, I want to consider the specific function of international criminal courts and tribunals as finders. Secondly, I will examine how international criminal courts fit into David's theoretical picture of top-down versus bottom-up judicial bodies. Thirdly, I wish to convey some of my concerns arising from the multiplication of proceedings (criminal and civil) arising from the same facts before different international courts and tribunals. International Criminal Courts as Truth Finders A new feature of the international legal order in the past few decades has undoubtedly been the reemergence of international criminal courts, with the ad hoc criminal tribunals of the United Nations (the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)), the regional mixed international tribunals (Sierra Leone, Cambodia, East Timor), and the permanent International Criminal Court (ICC). The driving impulses behind the creation of these institutions may, as David mentioned in his lecture, differ from those behind the classical international courts and tribunals. One of the functions of international criminal law courts is that of providing a historical account and achieving reconciliation of post-conflict societies that have gone through a painful episode of mass atrocities. This is something which they share with another newcomer in the international legal order, and reconciliation commissions (TRCs), which in part originate from the same generating impulses. The latter may even be complementary to international criminal adjudication, as Tom suggested in his Holocaust memorial lecture, wondering whether the post-World War II criminal proceedings in Nuremberg should not have been complemented by a commission that could have examined the greater patterns of the historical behind the holocaust. (1) According to some, international criminal courts have, as far as finding process is concerned, little to add to the truth as it is revealed by journalists or historians, who base themselves on largely the same sources. I beg to disagree with that view. The finding process before criminal courts is of a different qualitative nature, because it is obtained through the specific rules of evidence that apply in criminal proceedings, above all the presumption of innocence and the prosecutorial burden of proof. What has been established by a criminal court following a correct procedure can therefore be said to be more credible in terms of its truthfulness than the produced by journalism or history writing. For example, for those who would wish to deny the Srebrenica massacre, it may have been easier to do so when only journalistic and historical accounts of the 1995 event were available than it is today after the judgments of the ICTY in which two panels of judges (first the Trial Chamber and thereafter the Appeals Chamber) found the facts to be established. This function of finding, and the contribution to history writing that results from this, may be one of the core missions for international criminal courts. In post conflict societies, different versions of the traumatic events often compete with each other. (2) It is extremely difficult for national courts in a post conflict society to make an unbiased assessment of these different versions, especially shortly after the events. This assessment is, however, a crucial factor in the process of transition. Without it, post conflict societies will have little more than annals of these traumatic events, produced by journalists and historians. (3) Through the process of judicial fact finding, international criminal courts help to sort out competing accounts of traumatic events in a conflict situation and to determine the account that will count as the official history that society. …

This study examined the relationship of age and gender with risk of arrest among adolescents and young adults who were intensive adolescent users of public mental health services. Data were obtained from the Massachusetts Department of Mental Health (DMH) and juvenile and criminal courts. Participants were youths receiving DMH adolescent case management services sometime in 1994-1996 who were born between 1976 and 1979 (781 males and 738 females). They were cross-matched to document arrests between age seven and 25. The study examined age at first arrest, age-specific risk, and the relationship between arrest history and arrest risk by gender and age. Most males (69%) and almost half the females (46%) were arrested by age 25. First arrest was most common before age 18. As in the general population, males' arrest patterns were more concerning than those of females, although patterns were of concern in both groups. Most female arrestees had multiple arrests, many as adults. No gender differences were observed for several factors, including risk of first arrest over age 18. Risk was far greater for those arrested in the previous year than for those never arrested. Findings justify concerns of public mental health systems regarding justice system involvement of adolescent clients. Risk of first arrest was significant from early adolescence through age 24, indicating a need for arrest prevention into young adulthood. The heightened arrest risk at all ages among those who were recently arrested demarcates a population in need of immediate intervention.

In this article, the author investigated the legality and legitimacy of the African Criminal Court. Despite the immunity provision criticized by the international community, its legality is consistent with international law, while it cannot be argued that the African Criminal Court is an African "panacea" for combating impunity for serious international crimes. The initial support of the International Criminal Court by the African Union and its member States in the process of creation turned into strained relations after the indictment of the International Criminal Courts mainly against high-ranking African government officials. Contrary to many critics, the Malaba Protocol on the Establishment of the African Criminal Court satisfied the requirements of both legality and legitimacy as an international criminal court. Consequently, since the African Criminal Court and the International Criminal Court have joint jurisdiction over the most serious crimes of international concern, the harmonization of the African Criminal Court and the International Criminal Court on the basis of complementarity and cooperation will lead to the formation of a tandem to combat impunity for the most serious crimes affecting the international community. The article analyzes that, despite the tense relations, the coordinated work of the African Union and the International Criminal Court is necessary in the fight against impunity for the most serious crimes of international concern. The author comes to the conclusion that the African Criminal Court is not an African alternative, but an addition to the International Criminal Court.

1. The idea of family jurisdiction is not new, yet it continues to raise animated discussion and controversy. Family courts which exist in many countries have miscellaneous and frequently rather narrow competence. Elsewhere, experiments have been made with family courts for many years now, consisting in taking observations of the works of a few family courts, the traditional orgnization of jurisdiction maintained in the entire country. The family jurisdiction, enforced in Poland on January 1st, 1978, was introduced in the entire territory, the competence of family courts outlined most broadly: all cases directly connected with family relations (affiliation of a child, alimony, nullification and dissolution of a marriage, adoption, limitation, suspension and deprivation of parental authority, institution of legal protection, etc.), cases connected with penal acts committed by juveniles, cases of compulsory treatment of alcoholics in closed hospitals, and offences against family, guardianship, and the youth, fell under competence of family courts. Family courts which are departments of district courts, have assembled nearly half of the cases coming in a district court. At the same time, cases have been divided between the judges basing on the territorial principle: every judge hears all kinds of cases coming in from the territory he has been assigned. This way, all cases essentially connected with the functioning of a given family were always to be judged by the same judge. The broad competence of a family judge and the fact that he heard all cases concerning the members of a given family was to create conditions in which all problems appearing within that family would be treated on a broad basis in every case, to ensure that each particular pronouncement concerning that family be compact and complementary, to guarantee the correctness of decisions owing to the knowledge of the whole of conflicts which occur in that family, and to make preventive activities broader and deeper. The creation of family courts caused the liquidation of juvenile courts, all their cases having passed to the family courts, as well as the transference of a considerable part of cases heard before by civil courts and a small number of cases from criminal courts. Such a far-reaching reform of organization of common jurisdiction has justified the study of the effects of introduction of family courts, the more so as juvenile courts played an important part in the system of preventive measures against delinquency and other forms of social maladjustment. Therefore, it was the aim of the study to find out if family courts realize their function in practice, and what are the factors that determine difficulties or irregularities in case the courts fail totally or partially to fulfill their object. The study embraced various sources of information about the functioning of family courts, i.e., first of all, statistical data on the jurisdiction in cases which now come within the scope of family courts from two periods: before and after they had been transferred to the family courts (years 1976-1977 and 1978-1981). Another extremely important source of information about the functioning of family courts was the analysis of cases of particular kind judged by juvenile, civil, and criminal couits, and then by family courts. Among the cases which provided a particularly great amount of information as to the way in which family courts fulfilled the goal they were planned to fulfill, were divorce suits, limitation of parental authority, penal acts of juveniles, and criminal cases of offences against family, guardianship, and the youth. Such cases require well-prepared materials before they are examined, comprehensive study of particular legal problems from the point of view of the interest of the family, first of all children that are brought up in it, and finally (apart from divorce suits) active execution of the sentence, as the method of execution determines the results of the entire preceding activity of the court. A detailed study was made of a standard sample of cases now investigated by 8 family courts - small, medium, and large, each of the 4 family courts created on January 1st, 1978, matched with one of the 4 family courts which had been functioning before that day as experimental courts. In this way comparison could have been made between the functioning of new family courts and those which had been working for some years to find out if the lenght of the period of work of the family court contributed to eliminating of various mistakes and dificiencies resulting from lack of experience during the first years of work of the family court. The standard of work of the "new" family courts emerging from the analysis of cases was also compared with that of juvenile courts, civil courts, and criminal courts which had been departments of the same district courts, by way of analysis of the same kind of cases judged before the reform of jurisdiction. This comparison was to provide information about changes which took place in preliminary proceedings, setencing, and execution of sentences, after family courts had taken over the cases which had been investigated before by other departments of district courts. Another source of information was the examination on the spot of the conditions of work of the 8 family courts the files of which had been analysed, including their staff, the system of social probation officers, the number of different duties imposed, and the power to execute decicions. Finally, the opinion on family courts was asked of family judges themselves, of professional probation officers of these courts, and of solicitors, whose experience in appearing before different courts in cases of the same kind seemed particularly valuable. A questionnaire examination also included the family judges who had judged in juvenile, civil, and criminal courts before the jurisdiction reform, so as to define their attitudes and opinions as regards various problems of family life. The aim of the questionnaire was to find out any differences between the attitudes of former juvenile court judges in comparison with other judges working subsequently in family courts. 2. The analysis of statistical data concerning the 6-year period (including 4 years after family jurisdiction had been introduced) did not reveal any symptomatic difference which could be related to the creation of family courts. As regards divorce suits, for instance, neither the percentage of cases discontinued due to the reconciliation of the parties increased, not that of dismissed cases; in cases concerning parental authority, the structure of decisions did not change; in cases of penal acts committed by juveniles but a small increase of less radical sentences was noticed; finally, as regards cases of offences against family, guardianship, and the youth, the only change was a slight reduction of the number of sentences to the penalty of deprivation of liberty without conditional suspension of execution in favour of limitation of parental authority. The results obtained through a detailed analysis of court files of cases formerly heard by juvenile, civil, and criminal courts were much the same as regards the contents of issued decisions. Nevertheless, in some spheres of activity of family courts some favourable changes occurred; unfortunately they were accompanied by a considerable regress in other spheres. In particular, family courts investigated the situation of children of divorcing parents more precisely than the civil courts, but on the other hand they neglected material problems, less frequently adjudging alimony amounting to a sum higher than demanded, less frequently deciding ex officio as to the means of using a common appartment by the divorced parties and adjudging eviction from the appartment of the party who particularly grossly disturbed the family peace. In all cases where the court's decision should be properly executed by the family court machine, a considerable deterioration of the way of execution took place. This resulted both from the lack of adequate interest in this problem on the part of family judges who were engaged mostly in jurisdiction, and from remissness of professional probation officers who were also burdened with many other tasks and whose work was supervised by family judges but in a minimal degree. In spite of their contact with many kinds of cases, family judges showed little interest in prevention. It was interesting to find out that also the former juvenile judges who had been accustomed to give a lot of attention to various preventive activities, now did not differ by any means in this respect from the former civil and criminal judges. Also the functioning of the "old" family courts was by no means superior to that of the "new” ones, and it was even inferior in some spheres - therefore, the standard of work of the courts was determined by other factors and not by the lack of experience. The analysis of decisions from the point of view of complexity of their approach to the whole of the problems existing within a given family gave no evidence as to any differences between decisions in the same kinds of cases issued by family courts on the one hand, and juvenile, civil, and criminal courts on the other. Also the anticipation that decisions of family courts would be more compact and complementary to each other if several different cases of members of the same family would be heard by the same court, came true but to a minimal extent. Firstly, the percentage of families towards which at least 2 decisions had been issued by a family court during its period of existence was considerably low, amounting to 25 per cent of families ever included in any legal proceedings. Even in the case of those family courts which had been functioning for 7 years, the percentage in question was not high, amounting to 32 per cent. Secondly, in spite of the principle of territorial division of cases among the judges, only in half of cases, all suits concerning a given family were heard by the same judge. Thirdly, due to the nature of a considerable number of cases, the material gathered for them during the proceedings was of no importance as regards the way of examination and the essence of decision issued in the next case (this concerns first of all suits for alimony). Eventually, only in every seventh case both the same judge had heard the former case as well as the present one, and in the former case material had been gathered which was valuable for the better knowledge of the family and the more relevant judgement. It should also be mentioned that in the case of many of the decisions, there was considerable probability that the verdict sentences would have been similar, had they been adjudged by another judge of the same court, or of civil or criminal court. Therefore, it was impossible to ascertain that the creation of family courts had considerably contributed to a greater complexity, compactness, and complementariness of judgements. The opinions on the functioning of family courts gathered from judges, probation officers, and solicitors have confirmed a number of remarks made during the analysis of court files and the direct examination of the conditions of work of the selected family courts. In spite of the fact that the very idea of creating family courts has been estimated favourably by the majority of the examined persons (62 per cent), a considerable part of them pointed to the following defects: too wide range of tasks of family courts, the resulting overwork which hindered adequate preventive activities, the domination of jurisdiction as compared with other tasks of the family court. One third of the respondents could not see any advantage in the creation of family courts. Half of them was of opinion that the introduction of family courts failed to increase the protection of children and the youth against demoralization (this was most frequently the opinion of the family judges themselves). The second questionnaire, concerning opinions and attitudes of family judges, revealed the statements of the former juvenile judges concerning family and its problems to be more complete and definite as compared with statements of the former civil and criminal judges, and to take into consideration more frequently the psychological, pedagogical, social in its broadest sense, and even medical, aspects of these problems. One should, however, bear in mind that, as revealed by the analysis of files, no evidence was found of better work of the former juvenile judges as compared with other family judges. In the final part of the present article an attempt was made to draw conclusions from the results of the study. Having discussed different possible variants of changing the competence of family courts, a definite model of a family court was suggested, characterized by a different internal structure, narrowed competence and a better defined position in the system of prevention of social maladjustment of children and the youth.

[The following article opens up an important question: Should juvenile murderers be subject to the jurisdiction of the Criminal Courts? There is one school of thought that would give exclusive jurisdiction over all juvenile offenders, including juvenile murderers to the Juvenile Courts. Another group would have a concurrent jurisdiction to the extent that the Juvenile Court would have absolute discretion in either, retaining a juvenile offender for a hearing before it, or transfer the case to the Criminal Court for trial. If a juvenile is sixteen years of age and has been a repeater and violated his probation several times the Juvenile Court might deem it expedient to have such a juvenile tried for his latest violation in a Criminal Court. A third view, illustrated by Illinois, gives the State's Attorney authority to elect whether to try a juvenile offender in either the Criminal Court or the Juvenile Court. The latter is called the Family Court in Cook County, Illinois, since 1949. In that state some juvenile murderers have been tried in the Juvenile Court (Family Court) while others have been tried in the Criminal Court. Though the trial is in the Juvenile Court the juvenile offender can demand a jury trial composed of a six-member jury. In some cases a juvenile is found not guilty in the Criminal Court and then tried in Juvenile Court, found guilty and incarcerated. The Illinois court has jurisdiction to try adults contributing to the delinquency of a juvenile and also the juvenile offender-a rather significant development. The Illinois Court has jurisdiction to try adults contributing to the years of age are considered juveniles. Juveniles from the age of ten years are likewise recognized as being within the Criminal Code and thus criminally liable for its violation.-John W. Curran, Ed.] Although children's courts had been established in Australia in the early nineties it was not until 1899, when the State of Illinois enacted enabling legislation, that such courts were incorporated into American jurisprudence. Prior to the establishment of such courts, it had been the practice in this country to hale juvenile lawbreakers before the criminal courts and to brand them with the stigma of a criminal charge. Those

After prefatory terminological and conceptual clarifications, the chapter examines the basis for, and the international legal significance of, the formal juridical distinction between international and municipal (or ‘national’ or ‘domestic’) criminal courts, as well as the differences among international criminal courts when it comes to the legal underpinnings of their establishment and empowerment. It highlights how, for the purposes of international law, relatively little turns on the technical distinction between an international and a municipal criminal court and how of far greater international legal significance are the differing legal bases on which international criminal courts can be established and empowered. The chapter also suggests that what is more important in practical terms than the distinction between an international and a municipal criminal court are the differences as to jurisdiction ratione materiae, applicable law, rules of procedure and evidence, composition of the bench and its method of appointment, and so on, among international criminal courts and municipal criminal courts respectively.

A constitutionally guaranteed right to a vigorous defense is supposedly the sine qua non of America’s adversarial system of criminal adjudication. The Constitution confers a panoply of constitutional rights upon criminal defendants; those rights are supposed to guarantee a fair, rigorous determination of individual guilt. Constitutional rights, however, do not provide an accurate descriptive account of criminal defense in the United States. America’s crowded criminal courts afford little opportunity for the kind of elaborate trial practice that constitutional law and popular culture celebrate. The attorneys who navigate America’s criminal courts, of whom public defenders are an important example, are forced to triage in response to massive caseloads and chronic underfunding. The Constitution guarantees a panoply of impressive trial rights. Among the most salient of those rights are the requirement that the State demonstrate guilt beyond a reasonable doubt in a speedy and public trial. The Constitution also requires that criminal defendants receive effective assistance of counsel in preparing a defense, have an opportunity to confront witnesses against them, and not be forced to testify against themselves. These rights are supposed to make it burdensome to obtain convictions, ensure their accuracy, and protect accused persons’ dignity throughout the criminal process. The gap separating this adversarial ideal from the sociological reality of American criminal justice is vast. The elaborate constitutional rights that ostensibly make it onerous to convict defendants rarely do the work that they are supposed to. This is because defendants routinely waive their rights and consent to negotiated resolution of their cases. Defendants do this in response to incentives created by judges, prosecutors, and defense attorneys to expediently resolve the cases that crowd criminal court dockets. Among the rights most powerfully impacted by these incentives is the constitutional right to counsel. The Sixth Amendment guarantees a free attorney to any poor criminal defendant facing imprisonment. Most criminal defendants are poor, which means that appointed counsel typically perform the defense function in American criminal courts. Creating a public defender agency is one way for jurisdictions to satisfy their obligations under the Sixth Amendment. Chronic underfunding along with other impediments impose significant limitations upon public defenders (and other indigent defenders). Contrary to romantic notions of the defense role, public defenders tend to resolve far fewer cases by trial than through negotiated settlement. This reflects the chronic underfunding of indigent defense along with the powerful incentives for criminal court actors to resolve cases collaboratively and expediently. Public defenders’ repeat-player status in criminal courts sometimes means that their relationships with other courtroom personnel are stronger than they are with clients. These structural features of the criminal court environment shape both the quality of the individual representation that public defenders provide and the quality of their occupational lives. Most discourse about public defenders tends to focus on their role as individual advocates. There is, however, growing awareness and interest in public defender offices’ institutional capacities to advance clients’ collective interests through litigation, policy, and public awareness.

Therapeutic jurisprudence is an interdisciplinary perspective that can provide a grounding for the new judicial movement. Generally, therapeutic jurisprudence asks which legal arrangements specifically work and why. Therapeutic jurisprudence began in the area of mental health law, criticizing various aspects of mental health law that seemed, curiously, to produce antitherapeutic consequences for the people that the law was designed to help.Despite its origins in the field of mental health law, therapeutic jurisprudence (TJ) soon found easy application to other areas of law, such as criminal law, juvenile law, family law, personal injury law and has now emerged as a therapeutic approach to the law generally. So, we can say that (TJ) is the study of the role of law as a healing agent, and its offers fresh insights into the role of law in society and those who practice it.From the definition given above, we can say that (TJ) focuses on the traditionally unappreciated area of law’s considerable impact on the emotional life and physiological well-being of those affected by it. As a law is a social force that can produce therapeutic and anti therapeutic results because it consists of legal rules, legal procedures, and the roles and behaviors of legal actors, like lawyers and judges, (TJ) proposes that we use the tool of the behavioral sciences to study the therapeutic and antitherapeutic impact of the law and how to improve the therapeutic functioning of the law without violating other important values, such as due process concerns. In fact, there is a considerable body of empirical evidence indicating that people tend to over-estimate the degree of personal control that others have over their behavior and tend to underestimate the importance of situational influences; “a phenomenon referred to in the behavioral science literature as the “fundamental attribution error.””Thus, (TJ) can be regarded as a theoretical foundation for problem-solving courts, especially criminal courts, juvenile, drug-treatment, teen and youth courts…etc. As an approach, as it has much to offer judges concerning how they treat the people before them, and provides insights with respect to how the courts might be structured so as to maximize their therapeutic potential. The people appearing in problem-solving courts particularly in criminal and family courts are there because they have problems that they have not recognized or had the ability to deal with effectively. They may have alcoholism, or other substance-abuse problems and they may contribute to repetitive criminality, domestic violence, or child abuse and neglect. They may be repetitive perpetrators of domestic violence or child abuse as a result of cognitive distortions concerning their relationships with their spouses or children or because they lack the social skills to manage their anger or resolve problems other than through violence. In that respect, it is should be noted that “Winick” has also used the therapeutic value of choice idea in articles arguing for reform of the criminal justice system, especially in the connection with procedures for evaluating and adjudicating competency to stand trial within that system. This approach then, seeks to transform the judiciary, to create new judicial structures and also to focus the work and behavior of the individual judge, so as to treat and prevent serious problems. As these problems are views from a public health-type perspective, the importance of using therapeutic jurisprudence (TJ) principles to help people solve problems that otherwise would likely produce repeated court involvement is recognized.Accordingly, In this research paper, I expound in detail the Criminal Attempted Offences in Egyptian Criminal Law as it represents one of the most common examples of crimes in Egyptian Penal Law, hoping at the end of the research to apply the general legal principles of therapeutic jurisprudence (TJ) to the accused who has been convicted of committing this kind of crime not only with respect to punish the offender and impose criminal sanctions on him or her, irrespective to the sort of penalty from the legal perspective, but also focusing on rehabilitation, reform and retribution of the offender from moral and treatment perspectives. Early writers and philosophers advocated that the study of crime should emphasize individual, scientific treatment of the criminal, not the post conviction punishment. Therefore, adherents believed that the punishment should fit the criminal, not the crime. (The Positive School of Criminology, Cesare Lombroso, Leader of this School and the Father of Modern Criminology).

This article describes interaction in a criminal (adult) court in which adolescents are punished. As a result of the particular set of courtroom dynamics and the youthfulness of the defendants in this court, two potentially conflicting ideas about punishment are expressed concurrently: (1) proportionality, and (2) reduced culpability among youth. I demonstrate how judges talk to adolescent defendants during sentencing in ways that simultaneously communicate the defendants’ criminal responsibility and their youthfulness. In doing so, judges admonish the adolescents. The delivery of this admonishment is a ceremonial event that bears some similarities to the degradation rituals described by Harold Garfinkel, and also to the reintegration ceremonies described by John Braithwaite. Yet the admonishment varies from both of these events in that it is a more practical adaptation to the particular constraints of punishing adolescents in a criminal court. Thus I illustrate how judges strategically use admonishing discourse to solve intractable problems that arise from the circumstances of this court.