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Legalism versus Welfarism in Israel's Juvenile Justice System*

Published online by Cambridge University Press:  12 February 2016

Leslie Sebba
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Extract

In its landmark decision In re Gault (1967), the Supreme Court of the United States held that a minor brought before the juvenile court was in principle entitled to the guarantees of due process available to adult defendants in criminal trials. That momentous decision sparked off a debate which has continued ever since in academic and policy-making circles, both on the national and international levels. In essence, the controversy relates to the question of the nature of social control measures to be adopted by the legal system to deal with errant juveniles. Should these be essentially criminal and punitive in character, or are they better considered as welfare proceedings, the essential purpose of which is to determine the appropriate treatment? Thus, the legal, or punitive, model of juvenile justice may be juxtaposed to the welfare or treatment (or even “therapeutic”) model.

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Israel Law Review , Volume 16 , Issue 4 , October 1981 , pp. 461 - 498
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1981

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Footnotes

** Senior Lecturer, Institute of Criminology, Faculty of Law, The Hebrew University of Jerusalem.
*

Developed from a paper presented at the International Symposium on “Sociological Perspectives on Delinquency Prevention” (Wuppertal, 1981).

References

1 387 US 1, 18 L. Ed. 2d 527 (1967).

2 In particular, the court specified that a juvenile defendant had the right to prior notification of the charges against him, the right to counsel, the right of silence and the right to cross-examine witnesses. In a later case, In re Winship, 397 US 358, 25 L. Ed. 2d 368 (1970), it was held that the burden of proof in juvenile cases was similar to that for adult defendants. It has however, been recognized that a juvenile trial may differ from an adult trial in some respects. In particular, the right to a jury trial is not guaranteed in these cases (McKeiver v. Pennsylvania, 403 US 528, 29 L. Ed. 2d 647 (1971).

3 Cf. also the interesting analysis of Faust, F.L. and Brantingham, P.J., (eds.), Juvenile Justice Philosophy (West Publishing Co., St. Paul, Minn. 1974)Google Scholar, who compare the “socialization” model and the “constitutional” model.

4 Kittrie, N.N., The Right to be Different (Johns Hopkins U.P., Baltimore, 1971)Google Scholar; Fox, S.J., “Juvenile Justice Reform: An Historical Perspective” (1970) 22 Stan. L. R. 1187–1239.CrossRefGoogle Scholar

5 Platt, A., The Child Savers (U. of Chicago P., Chicago, 1969)Google Scholar; Schlossman, S.L., Love and the American Delinquent (U. of Chicago P., Chicago, 1977).Google Scholar

6 Mukherjee, S. & Christy, L. (eds.), Juvenile Justice: An International Survey (UNSDRI, Rome, 1976)Google Scholar; Stewart, V.L. (ed.), The Changing Faces of Justice (New York U. P., New York, 1978).Google Scholar

7 See e.g., Morris, A., Juvenile Justice? (Heinemann, London, 1978)Google Scholar; Parsloe, P., Juvenile Justice in Britain and the United States (Routledge & Kegan Paul, London, 1978).Google Scholar

8 Dahl, T. S., “The Scandinavian System of Juvenile Justice: A Comparative Approach”, in Rosenheim, M., (ed.), Pursuing Justice for the Child (U. of Chicago P., Chicago, 1976).Google Scholar

9 See Morris, op. cit., supra n. 7 at 144.

10 See Young Persons in Conflict with the Law (Solicitor General's Committee, Ottawa, 1975); also Child Welfare: Children in Trouble, Discussion Paper No. 9 (Australian Law Reform Commission, Sydney, 1979).

11 See e.g. U.A.—A.B.A., Juvenile Justice Standards Project: Standards Relating to Abuse and Neglect (Ballinger, Cambridge, Mass., 1977)Google Scholar and I.J.A.—A.B.A., Juvenile Justice Standards Project: Standards Relating to Non-Criminal Misbehaviour (Ballinger, Cambridge, Mass., 1977).Google Scholar See also National Advisory Committee on Criminal Justice Standards and Goals, Juvenile Justice and Delinquency Prevention (U.S. Dept. of Justice, Washington, 1976)Google Scholar and National Advisory Committee for Juvenile Justice and Delinquency Prevention, Standards for the Administration of Juvenile Justice (U.S. Dept. of Justice, Washington, 1980).Google Scholar

12 Von Hirsch, A., Doing Justice (Hill & Wrang, New York, 1976)Google Scholar; Wolfgang, M.E. “Current Trends in Penal Philosophy” (1979) 14 Is. L. R. 43–59.Google Scholar

13 See below, sec. E.

14 With one notable exception: a law passed in 1955 provides that a child under 14 years old involved in a sex offence, whether as a perpetrator, victim or witness, shall not be interrogated by the police, but by a specially appointed “Youth Interrogator”. Further, the child may not give evidence in court unless the Youth Interrogator takes the view that no harm will thereby be inflicted on the child. Harnon, E., Laws of Evidence (Academic Press, Jerusalem, 1970), vol. 1, p. 76 Google Scholar notes the interest in this law in the American legal literature.

15 Some welfare services are, however, provided on a municipal level: see below, text by n. 109.

16 See Goldstein, S., The Rights of the Child in Israel (Jerusalem, 1981).Google Scholar

17 There is some doubt as to how far juvenile delinquency has in fact increased. What is relevant here, however, is the perceived delinquency problem.

18 See the Youth (Trial, Punishment and Modes of Treatment) Law, 1971 (25 L.S.I. 128).

19 Many of these have been connected with the difficulties in implementing the 1971 Law; see below.

20 See the Penal Law (Amendment No. 3), 1978. The decision in principle to raise the maximum age of the juvenile court's jurisdiction (for boys) was incorporated in the 1971 legislation—although implemented later (See below).

21 See the Youth (Trial, Punishment and Modes of Treatment) (Amendment No. 2) Bill, 1979).

22 In particular: The Prime Minister's Committee on Disadvantaged Children and Youth (known as the “Katz Committee”) which reported in 1971; the Committee for the Investigation of the Subject of Crime (the “Shimron Committee”), which published its report in 1978, and the recent joint parliamentary committee comprising representatives of the Education and Culture Committee and the Labour and Social Welfare Committee of the Knesset (the “Namir Committee”), which submitted its report in 1981.

23 See e.g. Geis, G., Not the Law's Business (National Institute of Mental Health, Rockville, Md., 1972).Google Scholar

24 We are concerned here essentially with the normative expansion of societal control. Recently, there has been much discussion of “net-widening”, which, too, refers to the expansion of control but by means of the exercise of administrative or quasi-judicial discretion, within the framework of existing laws; see below, sec. E.

25 See e.g., Juvenile Justice and Delinquency Prevention, op. cit., supra n. 11 at 295 and Standards Relating to Abuse and Neglect, op. cit., supra n. 11 at 20. Moreover, a vigorous policy has been followed by the American Federal government to discourage the use of correctional facilities for such offenders ( Helium, F., “Juvenile Justice: The Second Revolution” (1979) 25 Crime and Delinquency 299–317).CrossRefGoogle Scholar

26 President's Commission on J-aw Enforcement and the Administration of Justice, Task Force Report: Juvenile Delinquency (Washington, D.C., 1967) 26.Google Scholar

27 Standards Relating to Non-Criminal Misbehaviour, op. cit., supra a. 11 at 2.

28 Standards Relating to Abuse and Neglect, op. cit., supra n. 11 at 1–7.

29 But see below, as to the juvenile court's civil jurisdiction.

30 Sec. 3 of the Law (14 L.S.I. 44) provides that the court may act if satisfied that a minor is “in need of protection”. This requirement is fulfilled (sec. 2) if:

“1. there is no person responsible for him; or

2. the person responsible for him is not capable of taking care of him or supervising him or neglects such care or supervision; or

3. he has done an act which is a criminal offence and has not been brought to trial; or

4. he has been found vagrant or begging or hawking in contravention of the Youth Labour Law, 5713–1953; or

5. he is exposed to any bad influence or lives in a place regularly used for illicit purposes; or

6. his physical or psychological well-being is impaired or likely to become impaired from any other cause.”

31 The statistics for the exercise of these powers by the courts (numbers of cases entered in the year in question) are as follows: 1958 — 49 cases, 1965 — 141 cases, 1972 — 223 cases, 1979 — 371 cases. (The figures are taken from the Judicial Statistics pertaining to the years in question.) This increase must be seen against the background of a juvenile population increasing in size. (Moreover, preliminary figures for 1980 show a decline to 304.) Further, these proceedings are dependent upon the availability of welfare workers appointed under the law, and the accessibility of juvenile courts. Developments in these two areas may also explain part of the increase in cases. Thus, the figures do not necessarily reflect a deliberate policy of “expansionism”. However, it should be observed that a high proportion of cases decided by the court result in institutional commitment, presumably because welfare officers only resort to the court in the most serious cases ( Sharon, E., “The Youth Law in the Juvenile Court Structure” in The Juvenile Court in Modern Society (Ministry of Justice, Jerusalem, 1966) 58).Google Scholar

32 Cohen, S., “The Punitive City: Notes on the Dispersal of Social Control” (1979) 3 Contemporary Crisis 339–363 CrossRefGoogle Scholar; Scull, A., Deinstitutionalization and the Rights of the Deviant, Paper presented at the International Symposium on “Sociological Perspectives on Delinquency Prevention” (Wuppertal, 1981).Google Scholar And cf. sec. 26(6) of the Youth Law of 1971 which empowers the court to “issue any other direction as to the behaviour of the minor if in the opinion of the court such is necessary for his treatment”; and see also the proposal to authorize the court, while proceedings are still “pending, to make orders regarding the conduct of the minor.” (See sec. 2(2) of the Youth (Trial, Punishment and Modes of Treatment) (Amendment No. 2) Bill, 1979.)

33 Klein, M. W., Teilmann, K. S., Styles, J. A., Lincoln, S. P. & Labin-Rosensweig, S., “The Explosion in Police Diversion Programs: Evaluating the Structural Dimensions of a Field”, in Klein, M. W. (ed.), The Juvenile Justice System (Sage, Beverly Hills, 1976) 112 Google Scholar; also Cohen, ibid., and Scull, ibid.

34 This resulted in the introduction of the suspended sentence in 1954, and of community service in 1979. The search for alternatives to imprisonment is the main function of an advisory committee to the Ministries of Justice and Interior and Police presided over by Justice Haim Cohn.

35 It is true that there has been on occasion a problem of shortage of space in the closed institutions, and the current proposal for “flexibility” regarding the use of imprisonment for juveniles ( Sebba, L., “The Youth (Trial, Punishment and Modes of Treatment) (Amendment No. 2) Bill, 1979” (1981) II Mishpatim 322 Google Scholar) must be seen against this background; but this has been perceived rather as a “pragmatic” problem rather than a policy issue. At the other end of the spectrum, there is some interest in the diversion of juvenile offenders from the formal judicial process. But discussion here has related rather to the character of the intervention agency rather than the intensity of the intervention, and thus can be subsumed under the next topic. As noted, however, “interaction effects” are possible in this respect.

36 Thus the number of juvenile offenders institutionalized, whether in punitive or welfare institutions, does not seem to have been unduly high. The percentage of delinquency cases in which juveniles were committed to welfare institutions varied between 4.2% and 7.6% in the years 1968–1975 ( Reifen, D., The Juvenile and the Court (Hakibbutz HaMeuchad, Tel Aviv, 1978)Google Scholar and was 5.3% in 1978. (Minors Dealt with by the Youth Probation Service 1978 (Ministry of Labour and Welfare, Jerusalem, 1980) 30 — after deducting cases closed and acquittals.) The number of prison sentences imposed in 1978, the first year in which the juvenile court had jurisdiction over minors aged sixteen and seventeen (see infra n. 45), was 172 — 3.6% of the court's dispositions. (As to institutional commitment in civil cases, see supra n. 31.)

37 Restrictions applied to boys aged 16–17 in respect of pre-trial detention and the infliction of certain penalties (such as the death penalty); see Sec. 7 of the Juvenile Offenders Ordinance, 1937.

38 Cf. the American statutes with similar provisions which were declared unconstitutional (see Standards Relating to Non-Criminal Misbehaviour, op. cit., supra n. 11 at 13).

39 While most of the treatment provisions laid down in sec. 18 of the Ordinance did not apply to these “female juvenile adults”, they could be sent to a reformatory or put on probation: Reifen, D., “Some Aspects Relating to Young Offenders in Israel” in Drapkin, I. (ed.), Studies in Criminology, Scripta Hierosolymitana, Vol. XVI, (Magnes Press, Jerusalem, 1969) 249.Google Scholar

40 Sec. 16(2) of the Ordinance.

41 This provision was to be implemented by stages: see below.

42 Yitzhaki originally proposed 14 as the minimum age. The parliamentary committee to which the Bill was referred following its First Reading reduced this to 12. However, at the plenary session on the Second Reading Yitzhaki proposed to compromise at 13 (the age of manhood under Jewish law), and this proposal was adopted: see Divrei HaKnesset, Vol. 83 (1978), pp. 3285–7.

43 Israeli criminal procedure in general follows English common law traditions, being adversary and accusatory in character. Legalism is, however, less entrenched than under the U.S. system, since the defendants' rights are protected by statute rather than by constitution. Further, in the sentencing area, the courts, which are endowed with wide discretionary powers, tend to adopt a partially welfarist orientation, at least in certain cases.

44 Anderson, R., Representation in the Juvenile Court (Routledge & Kegan Paul, London, 1978)Google Scholar; Field, B. C., “Juvenile Court Legislative Reform and the Serious Young Offender: Dismantling the ‘Rehabilitative Ideal’” (1981) 65 Minn. L.R. 167–242 Google Scholar; and see Rubin, H.T., “Retain the Juvenile Court?” (1979) 25 Crime and Delinquency 281.CrossRefGoogle Scholar

45 By a series of executive orders. The law applied as from the 1st of October 1975 to 16 year old boys suspected of offences punishable by less than 10 years imprisonment, except that commitment to juvenile welfare institutions was not available. From the 1st of April 1976, such institutions were made available to this age group. As from the 1st of April 1977 the law was applied in toto to all juveniles under 18.

46 Even today a minor who has been jointly charged with an adult may be tried in an adult court (sec. 4(b) of the Youth (Trial, Punishment and Modes of Treatment) Law, 1971). In this case, however, the court will have the powers of a juvenile court, except that proceedings will not normally be in camera. More over, it should be observed that there is no “waiver” procedure under Israeli law which permits the transfer of juvenile defendants to adult courts, even where the offence is serious and the offender mature. (See on this point infra a. 94).

47 See sec. 2 of the Youth Law of 1971, under which the President of the Supreme Court, with the consent of the Minister of Justice, assigns District Court and Magistrates' Court Judges to act as Juvenile Court Judges.

48 However, in making appointments as juvenile magistrates (who are generally engaged almost exclusively in this capacity), account is taken of experience in youth welfare.

49 See sec. 3(b) of the Law and the executive orders issued by virtue of this section.

50 Twenty-four hours for a minor aged over 14, and twelve hours if under 14, as compared with forty-eight hours for adult suspects: sec. 10 of the Youth Law of 1971. These periods may be extended only in special circumstances.

51 Sec. 13 of the Youth Law of 1971. The Law as enacted specified that on implementation of the section all juvenile detainees would be held in separate institutions; but this provision was subsequently modified owing to the inability of the authorities to provide the necessary plant.

52 Sec. 10(3) of the Youth Law of 1971.

53 Secs. 12 and 22 of the Youth Law of 1971. These provsions will be discussed further below.

54 Sec. 18(a) of the Youth Law of 1971.

55 Cf. sec. 13 of the Criminal Procedure Law, 1965 (19 L.S.I. 158).

56 Sec. 18(c).

57 See Reifen, op. cit. supra n. 36 at 203.

58 Here, however, the welfarism/legalism dichotomy is not clear-cut; for while in volvement of the parents would seem to be consistent with a welfare orientation, in the absence of defence counsel the parent is (at least theoretically) in a position to protect the minor's rights at the court hearing.

59 Sec. 20.

60 Sec. 21 of the Youth Law of 1971.

61 Sec. 22.

62 Sec. 24.

63 No such provision is available in respect of adults. Thus while it could be argued that it is intended for cases in which the offence is of insignificant seriousness, the approach invoked being the legalistic one, it seems rather directed at the prevention of stigma with regard to juveniles—and thus essentially pertains to the welfare philosophy.

64 See now sec. 13 of the Criminal Record and Rehabilitation Law, 1981, which imposes restrictions on the disclosure of treatment orders which are not applicable to convictions.

65 The death penalty still prevails in Israel (at least on paper) for certain special offences such as treason in wartime and genocide, and for a number of offences under the Emergency Regulations.

66 A minor under 14, however, cannot be sentenced to imprisonment. Prisoners under 21 are held in the Tel Mond Youth prison. Youths under 18, being minors, have to be kept separate from the older youths.

67 Where the defendant has been convicted, the court may make an institution order for a period no longer than the maximum period of imprisonment provided for the offence committed. This limitation does not apply, however, where the minor is committed to an institution for “treatment”!

68 Early release is determined by an administrative board, presided over by a judge. AH minors in institutions may be released after one year, or even earlier if there are “special reasons” (secs. 35 and 36 of the Youth Law of 1971).

69 See secs. 31(b) and 33 of the Youth Law of 1971 and the Youth (Trial, Punishment and Modes of Treatment) (Submission of Petitions) Rules, 1975.

70 I.e., a juvenile cannot be effectively punished for a failure to heed the after-care officer, if he completed his term in the institution prior to release. The proposed amendment to the Law (supra n. 21) provides that in such a case he could be brought back before the court for the imposition of a sanction.

71 Roesch, R., “Does Adult Diversion Work? The Failure of Research in Criminal Justice” (1978) 24 Crime and Delinquency 72–80.CrossRefGoogle Scholar See also the argument mentioned in section B above, that diversion programmes result in “net-widening”.

72 Hovav, M., “Police Treatment of Juvenile Delinquents”, in I., Drapkin (ed.), The Prevention of Crime and the Treatment of Offenders in Israel (Jerusalem, 1965) 186.Google Scholar

73 See Minors Dealt 1978 (1980) op. cit., supra n. 36.

74 The figures on which the statistics are based relate essentially neither to “persons” nor to “offences”, but to “case outcomes”. (See Minors Dealt 1978, op. cit., supra n. 36, section B). This measure is of course somewhat imprecise when relating to decisions at the police stage.

75 However, this more radical non-interventionist decision is reached without reference to professional welfare personnel; for since no file is officially opened, the case is not referred to the probation service.

76 See Namir Committee, Juvenile Delinquency—Ways of Dealing and Rehabilitation (Jerusalem, 1981) 2.Google Scholar

77 There are no detailed statutory provisions governing this institution, but it may be said to have received implicit recognition or at least legitimization by virtue of provisions incorporated in two separate laws. First, the Criminal Procedure Law, 1965, provides that the police may cease the investigation of a case, and that the police or district attorney may close a file, not only on the grounds of insufficient evidence, but also for “want of public interest”. It seems clear that if the view it taken that the probability of recidivism by the minor under investigation in a particular case will be increased as the result of pursuing the prosecution, the “public interest” may require its closure, in particular if the offence is not a serious one. Secondly, the Youth (Trial, Punishment and Modes of Treatment) Law, 1971, provides that on every occasion in which the police initiate an investigation, they are obliged to inform a probation officer. While this provision is ostensibly intended to meet the need for a possible emergency welfare intervention, another purpose seems to be to enable the probation service to investigate the case and make recommendations where appropriate as to closure of the file—thereby continuing a practice which was already prevalent when the law was passed.

78 See also n. 75. Cf. Schur, E., Radical Non-Intervention (Prentice-Hall, Englewood Cliffs, N.J., 1973).Google Scholar

79 Sec. 2 of the Law; see supra n. 30. Cf. also the Standards proposed by the Standards Relating to Abuse and Neglect, op. cit., supra n. 11 at 62, which specify as a criterion for court intervention in neglect cases that “a child is committing delinquent acts as a result of parental encouragement, guidance or approval”.

80 The question arises whether an act “is a criminal offence” if the perpetrator cannot be criminally responsible under the law. As to the scope of the problem of “offenders” under the age of responsibility (prior to the change in the law), see Amir, M. and Max, D., Child Delinquency: Delinquent Behaviour of Children Below the Age of Criminal Responsibility (Szold Institute, Jerusalem, 1968).Google Scholar

81 This approach would place wide discretion in the hands of the police and welfare authorities as to which proceeding to invoke in any particular case. Moreover, it could be argued that the treatment powers provided for under the court's delinquency jurisdiction (the Youth Law of 1971) were intended to cover precisely such cases.

82 Under the Youth (Care and Supervision) Law, 1960, court proceedings are not essential, but are only initiated if the welfare officer and the minor's family are not in agreement as to the appropriate treatment, or if the minor does not comply with the treatment agreed upon.

83 It may be questioned whether the legal effect of this addition is to extend the court's powers or rather to delimit them by derogating from the generality of the directions.

84 Prior to its amendment this subsection (3(4)) empowered the court to commit the minor “to the custody of a welfare authority”.

85 However, commitment of the minor to homes for delinquents may have an informal stigmatizing effect. See also below, sec. E (6).

86 The Shimron Committee proposed that the legislature reconsider the application of the juvenile court law to youths in; this age group ( Shimron, E., Report of the Committee for the Investigation of the Subject of Crime (Jerusalem, 1978) 21).Google Scholar

87 Cf. supra n. 50.

88 The Namir Committee, op. cit., supra n. 76 at 3 also noted certain manifestations of aggravation in juvenile delinquency and recommended that “offenders aged 13–16 be treated separately from offenders aged 16–18”.

89 Youth (Trial, Punishment and Modes of Treatment) (Amendment No. 2) Bill, 1979.

90 Note may also be taken of sec. 13(2) of the Criminal Record and Rehabilitation Law, 1981, which restricts access to records in respect of misdemeanours committed by juveniles aged 14–16. (Juveniles under 14 are covered by a wider restriction specified in sec. 13(1)).

91 Cf. above, see. B.

92 Cf. Packer, H., The Limits of the Criminal Sanction (Stan. U.P., Stanford, 1968).Google Scholar

93 The differentiation in respect of this age group regarding criminal records (see n. 90) falls short of equating them with adults in all respects (see e.g., sec. 14).

94 Another possibility would be to adopt a system of “concurrent jurisdiction” similar to that prevailing in many United States jurisdictions (cf. supra n. 46). Thus the Juvenile Justice Standards Project, in advocating the possibility of “waiver” precisely for the 16–17 year old age group, commented: “As age eighteen approaches, credible argument can be made that the juvenile court's always in adequate resources should not be devoted to those youthful wrongdoers whose offenses are so serious or who appear to be so incorrigible as to be unworthy of or beyond help.” However, such a solution opens the door to serious problems of arbitrariness in the implementation of the proposed criteria ( U.A.—A.B.A., Juvenile Justice Standards Project: Standards Relating to Transfer Between Courts (Ballinger, Cambridge, Mass., 1977) 3.Google Scholar

95 Cf. text at supra n. 59.

96 Cf. supra n. 32.

97 See Sebba, op. cit. supra n. 35.

98 Apart from the present writer's criticisms, some strident objections to particular provisions were heard during the Knesset debates on the First Reading of the Bill. Indeed, the first time it was put to the vote, the Bill was defeated, and it passed its first reading only at the second attempt.

99 A Knesset member has even proposed to introduce a Bill which would restore the age of criminal responsibility to 9 for offences of this nature. Some experts, however, have doubted how far such an increase in violence has in fact taken place.

100 A public investigation by the so-called “Serota Committee” recently revealed that the police on many occasions use violent methods in the course of interrogation, sometimes in cases involving minors.

101 Although the “no charge” procedure is designed to avoid this.

102 Ministry of Education, Director-General's Circular (Jerusalem, 1981) para. 185.Google Scholar

103 The original proposal referred to educationalists, the intention being the school where the minor was studying. It was thought, however, that minors who had left school would not then benefit from this preferential treatment: thus, the option of treatment by probation officers (“or other appropriate treatment authority”) was added.

104 It may be surmised that the police may be particularly offended by the new scheme, since they pride themselves (despite the findings mentioned in n. 100) on their welfare orientation towards juveniles. According to the former head of the Juvenile Branch at Police Headquarters: “For police officers in the Juvenile Branch, the prevention of delinquency and the prevention of stigma and the staining of youth are incomparably more important than the additional detection of offences”. Gal, S., “Police Policy on Questions Relating to the Treatment of Juvenile Delinquents” (1978) 1 Police and Society 30.Google Scholar It may be recalled in this connection that most recommendations on the part of the probation service to close the file are accepted by the police.

105 Cf. below, see. F.

106 Thus there were now three routes for reaching these institutions (see fig. 1) — as punishment for offenders, treatment for offenders or treatment for the needy.

107 while some of the issues discussed here are latent rather than outwardly expressed, there is no doubt that the issue of the minimum age of criminal responsibility is an outspokenly and often bitterly argued controversy. This may derive partly from the sensitivity of the issues, but it may have stemmed in part from the nature of the legislative process in this case. A government Bill tends to reflect a consensus at least among certain bodies consulted. In the present case, the proposal emerged as a private member's bill, without such prior preparation.

108 Here, too, a compromise may emerge: prior to the “Yitzhaki Amendment” the age of twelve was frequently advocated as the optimal minimum age of criminal responsibility.

109 The Namir Committee, op. cit. supra n. 76 stated that appropriate welfare services had not been prepared for the implementation of the new provisions, but did not specify which services were bieng referred to.

110 Hassin, Y., “Raising the Age of Criminal Responsibility in Israel” (1981) 16 Is.L.R. 225–249.Google Scholar

111 See supra n. 82. Moreover, it seems that many cases filed with the court are “settled” without the need for a hearing: Reifen, op. cit. supra n. 36 at 250.

112 In 1977, the last year before the raising of the age of criminal responsibility, 76.9% of cases involving juveniles aged 9–12 were closed by the police: See Minors Dealt 1977, op. cit., supra n. 36 at 19.

113 Landever, A., “The Rights of Children in America—The Different Perceptions” (1979) 5 Poly L. R. 18–28.Google Scholar

114 Hassin argued that reporting patterns were not affected by the change in the law, since a survey of teachers showed a general lack, of awareness of the change in the law. Yet this seems to be inconsistent with the controversy which it aroused and the resultant publicity.

115 Blumstein, A., Cohen, J. & Nagin, D., (eds.), Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates (National Academy of Sciences, Washington, D.C., 1978).Google Scholar

116 Meier, R.F., & Johnson, W.T., “Deterrence in Social Control: The Legal and Extra-legal Production of Conformity” (1977) 42 American Sociological R. 292–304.CrossRefGoogle Scholar

117 Toby, J., “Deterrence Without Punishment”, in Bishop, N., (ed.), General Deterrence, (National Swedish Council for Crime Prevention, Stockholm, 1975)Google Scholar.

118 McClintock, F. H., Some Aspects of Discretion in Criminal Justice Processes: Expansionism, Minimalism and the Muddling of Models in Practice and Theory. Paper presented at the International Symposium on “Sociological Perspectives on Delinquency Prevention” (Wuppertal, 1981).Google Scholar

119 One difficulty here is in defining the “net”. Presumably children who are dealt with more severely in the schools or in the home on account of their delinquent tendencies should not be considered as falling within the net, since they are still being dealt with by the same agencies with which they were previously in contact.

120 See Paternoster, R., Waldo, G. P., Chiricos, T. G., & Anderson, L. S., “The Stigma of Diversion: Labeling in the Juvenile Justice System”, in Brantingham, P. L. and Blomberg, T. G., (eds.), Courts and Diversion (Sage Publication, Beverly Hills, 1979) 127–142 Google Scholar, who found no consistent significant difference between adjudicated and “diverted” juveniles. The authors suggest, however, that the negative results may have been attributable to the purely negative aspects of the diversion programme to which the study related, under which most of the juveniles were subjected to no intervention following release.

121 Morris, A. & Giller, H., “The Juvenile Court — The Client's Perspective” (1977) Criminal L.R. 198–205 Google Scholar and Anderson, op. cit., supra n. 44.

122 The Criminal Record and Rehabilitation Law, 1981.

123 See: “Proposed General Part of the Penal Law and Explanatory Notes” (1980) 10 Mishpatim 5, 25.

124 Lickona, T., “Critical Issues in the Study of Moral Development and Behaviour”, in Lickona, T., (ed.), Moral Development and Behaviour (Holt, Rinehart & Winston, N.Y., 1976) 224.Google Scholar

125 ibid., at 228.

126 Kugelmass, S., Breznitz, S. & Breznitz, T., “The Development of Intentionality in Moral Judgment: Suggestions and Initial Test”, in Eifermann, R., (ed.), Studies in Psychology, Scripta Hierosolymitana, Vol. XIV (Magnes Press, Jerusalem, 1965) 96.Google Scholar

127 See, e.g., Williams, M., Vaughn, R. & Sabia, A., “Moral Judgment Philosophies in Three Offender Categories” (1976) 14 Criminology 283–286.CrossRefGoogle Scholar

128 Standards Relating to Abuse and Neglect, op. cit., supra n. 11.

129 See also n. 43.

130 Thus while the Namir Committee raised doubts about the success of the “Yitzhaki Amendment”, these were based on the inadequacy of the welfare services to deal with the statutory change; and while suggesting that the legal situation be reconsidered after a year, the committee also entertained the possibility of a merger (in effect a re-merger) of the Youth (Care and Supervision) Law, 1960, and the Youth (Trial, Punishment and Modes of Treatment) Law, 1971. This suggests an undifferentiated attitude to delinquents on the one hand and children in need of protection on the other, reflecting the epitome of welfarism. As to the possible explanations for the persistence of the welfarist ideology, see preceding note.

131 Junger-Tas, J., Some Consequences of Changes in the Processing of Juveniles through the Child Protection System in the Netherlands. Paper presented at the International Symposium on “Sociological Perspectives on Delinquency Prevention” (Wuppertal, 1981)Google Scholar; Klein, M. W., Prevention Implications of New Juvenile Justice Legislation in the United States, Paper presented at the International Symposium on “Sociological Perspectives on Delinquency Prevention” (Wuppertal, 1981).Google Scholar

132 M. W. Klein, ibid.