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Devil under the Mask of an Innocent YouthControversy over the Juvenile Prosecution Act
Kim Kyu-eun  |  kyueunkim@yonsei.ac.kr
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승인 2017.10.16  11:18:16
트위터 페이스북 구글 카카오스토리

   
   
 
KOREA IS sizzling in anger as it witnesses a merciless murder by a teenager that occurred back in March. In Incheon, Kim, a 17-year-old high school dropout murdered an 8-year-old girl, chopped up her body, and placed the remains in two trash bags. She then put them inside a water tank, located on the rooftop of her apartment. She also disposed some in a shopping bag and handed it to her 18-year-old friend, Park, who is now convicted of planned murder and disposal of the body. During the final trial on August 29, the prosecutor demanded 20 years in prison for the 17-year-old girl and life in prison for the 18-year-old. The final verdict of the first trial comes out on September 22.
Not only the horrifying murder itself but also the controversy over the trial process drew attention of the Korean society, touching upon various aspects of Korea’s legal system—in particular, the law applied to the prosecution of minors. Many Koreans are enraged by the fact that the defendant, a 17-year-old girl, cannot receive the punishment she deserves because she is protected by the Juvenile Act (JA), or *so-nyun-bup*. Is it really fair to lessen the punishment for someone who committed an inhumane crime, just because she is not of age yet? Or, is there an unresolvable flaw residing in our current prosecution system?

 

The murderer may not receive her well-deserved punishment
People have criticized that the Korean legal system is too lenient on criminals. After the final trial, netizens commented that “the Juvenile Act must be repealed,” “Korea is too sympathetic towards criminals; Kim, the 17-year-old murderer, will only be in her 30s when she comes out,” and “Kim must be sentenced life in prison like her accomplice.” Some people express concerns that the final verdict may lessen the sentences demanded by the prosecutors.
Nonetheless, there is a possibility that the judges will lower the years, as convicts are trying to argue that they are not responsible for their actions. In fact, Kim has tried to claim that she has schizophrenia and Asperger disorder, which caused her to commit the unpremeditated murder. However, the National Center for Mental Health concluded that there is low possibility that she has the former, while there is a certain possibility that she has the latter. According to an article in *Kyunghyang*, during the trial, Professor Kim Tae-kyung (Professor, Dept. of Psychology, Woosuk University) contested that she most likely does not have either, while she may be a psychopath with no ability to sympathize and prone to act impulsively.
Although prosecutors have demanded the heaviest sentence possible according to the law, the public is not satisfied. Especially, people are enraged at the fact that the murderer received 20 years, while her accomplice was demanded to receive life in prison. On *Dong-A Ilbo*’s online news article about people’s rage and shock at the trial, a commentator stated, “I can’t believe killing a little girl costs only 20 years.” Another said, “The final verdict may reduce the years. She will be only 36 after 20 years anyways.”

 

Is justice in Korea truly “cotton-bat”?
Is the Korean justice court truly forgiving towards violent criminals? According to Korea’s criminal law, those who are guilty of murder should receive five or more years, life in prison, or death sentence. In case of murdering a minor under age 13, the murderer should receive either life in prison or death sentence. So far, it does not seem like Korea’s criminal law is too bad at all.
However, the Incheon case differs from other well-known murder cases as the murders are underage. Kim is only 17, which means that she is trialed under the JA. The act intends to protect minors under 19 from receiving severe punishment in order to give them a second chance to be reincorporated to the society. According to this law, which states that convicts younger than 18 cannot be sentenced life in prison or death sentence, Kim cannot be sentenced more than 20 years in prison. In other words, she will be only 36 when she comes out of the prison.
Many people have questioned whether the murderer actually deserves to be protected. What if she is incapable of rehabilitation and incorporation to the society? Moreover, is 20 years enough retribution to what she has done, considering the gravity of the action and its impact on our society? In *Lee Kyu-Yeon’s Spotlight* by JTBC, the program’s producer mentions that probably it is time that we reevaluate the JA. He wonders if the law simply functions as a leeway for teenage criminals to avoid their deserved punishments.
In the past, there have been incidents in which teenage criminals could get away from the proper punishment under the protection of the act. In 2004, a group of high school students gang-raped two middle school girls for 10 months in Miryang, Gyeongsang Province. Out of 44 suspects, 10 were indicted and 4 were sent to the youth detention center, and 16 were under probation for varied period of time. The rest were released for other reasons. None of the assailants received punishment that would be left on their records.
The Miryang incident is a prime example of “cotton-made bat” punishment, a Korean expression used to describe overly lenient penalties. Considering the gravity of the case, few people agree that the assailants received reasonable punishment. While the rape victims seriously suffered to the point that one dropped out of school, the convicts returned to their normal lives only after couple years. This incident inspired several Korean dramas and films including *Signal* and *Han-gong-ju*, igniting heated debates on Korea’s juvenile prosecution system.
The Miryang case is similar to the Incheon case in that the convicts have not reached the legal adulthood. Nevertheless, the gravity of both cases is way too serious to simply consider them as a result of immature recklessness or a common mistake by a rash teenager.
Hence, there is a movement asking for amendment of the existing law. In July, *Gukje News* reported that Congressman Pyo Chang-won proposed an amendment of the JA for juvenile criminals who committed major crimes. According to the proposal, they should not be subjected to the JA and be trialed in adult court. “The current JA undermines the purpose of the special criminal laws, which intends to increase punishment for those who committed violent crimes,” said Congressman Pyo during the interview with *Gukje News*. “We also need to consider that many juvenile criminals who served short period in jail tend to execute second offence.” Thus, he claimed that the JA must be amended in order to ensure public justice and console families and friends of the victims.

 

How would United States justice court sentence this crime?
It is widely discussed that the Korean prosecution system should sentence more years to their defendants, as the U.S. court does. In fact, U.S. justice courts have sentenced years much longer than human life expectancy as symbolic gestures, in order to demonstrate the seriousness of the offense. For instance, Jeffrey Dahmer, a serial killer of 17 people and cannibal, was sentenced 957 years. Also, Shalom Weiss received 845 years in prison for fraud and money-laundering in 2000.
Although U.S. justice does not have a separate juvenile law, it recognizes “duress, intoxication, age and insanity” as excuses that could prove that the defendants were not responsible for their actions. In this sense, US judicial system does not stray too much from the logic applied to Korean justice.
The U.S. judicial system specifies homicide within statutory law, or written law. According to Jeanne Lee (Instructor, UIC), the Incheon case is either first or second degree murder. Homicide Law states that first degree murder refers to homicide committed with malice, premeditation, and deliberation. If the dropout planned and killed the 8-year-old girl with intention to kill, under no influence or emotional distress, the case would be classified as first degree murder. If the murder was done without planning or intention, it would be considered second degree murder. As the Kakao Talk messages exchanged between the two teenagers show, the murder had been planned in advance. Nonetheless, the convicted minor argues that she was mentally ill and was ordered by her girlfriend.
Therefore, the U.S. court would have convicted them for first degree murder or second degree, in which case they should receive 20 years in former category and life in prison or death sentence in the latter.
However, Professor Lee also commented that “age can be a factor in shortening the sentence under the defense or excuse.” According to U.S. Department of Justice Office of Juvenile Justice and Delinquency Prevention, 42 states define defendants until age 17 as subjects to juvenile court. The specific guidelines applied to the court system differ from state to state. Depending on the circumstances including age, offense, and prior records, the underage criminal may be trialed in adult court.
“In the United States, only rarely does a juvenile defendant under 18 wind up in adult court,” said Professor Lee. “However, there is a movement towards moving the trial to adult court if the crime was deprave and its maturity commensurate with adult punishment.” She gave Sarah Johnson’s case as an example.
Johnson, 16 years old at the time, shot her parents when they did not allow her to spend a night with her boyfriend. She lied that someone had intruded her house and killed her parents, but it was soon discovered that she was the murderer. According to *The New York Times*, her case was transferred to adult court. She was sentenced to life in prison.
“In California, juveniles between ages 14 and 17 charged with violent crimes can be tried and sentenced as adults,” said Professor Lee. She also mentioned that 14 states in America have no age limit that prevents children from being tried as adults. In such circumstances, the teenage murderer would have been prosecuted in the adult court.

 

Comparing judicial system of the United States and Korea
Nonetheless, there is skepticism for such harsh treatment of juvenile criminals. In her article in *American Bar Association*, Nicole Scialaba claims that being too tough on juveniles actually hinders their rehabilitation. “Juveniles need resources to equip them to succeed when they are released from juvenile facilities, rather than face the devastating effects of being housed in adult prison systems,” says Scialaba, “Juveniles should be treated as juveniles in the court justice system, with a focus on rehabilitating rather than simply punishing.”
In fact, it seems like judicial branches of the U.S. and Korea have dissimilar views on the role of prison. In his article in *The Guardian*, Owen Bowcott explains that “American judges, traditionally tougher than their UK benchmates, view loss of liberty as a punitive measure rather than an opportunity for rehabilitation.” However, he also mentions some criticisms; prosecutors may abuse such punitive measures “to scare defendants into pleading guilty.”
On the other hand, the JA in Korea specifies its purpose as following: “The purpose of this Act is to sound fostering of juveniles by carrying out necessary measures, such as protective dispositions, etc. for the environmental adjustment and character correction of juveniles demonstrating anti-social behavior, and by providing special measures regarding criminal dispositions.” Thus, the Korean judicial branch seems to focus more on the rehabilitative function, rather than the retributive.

 

Should we amend the Juvenile Act?
When we talk about amending the Juvenile Act, we are not just talking about the ruthless murderers from Incheon case. We are also talking about high schoolers who have made mistakes, those who can be fostered back into the society. Therefore, it is crucial for us to weigh out every single pros and cons of such change. And if we decide to make some changes, we need to figure out how to make fair decisions for individual cases. In this context, “fair” refers to not only sentencing adequate punishment for the criminal but also finding the most effective way to rehabilitate the juvenile.
Former Deputy Chief Prosecutor Kim Tae-young (Lawyer, Law Firm Gangnam) expressed concern on the increasing demand for lowering age limit of JA, or even for abolishing the act. “If we shape our legal system based on exceptional cases, is it really fair for average criminals?” questioned Kim. “We may overlook some juveniles who can be rehabilitated.” In other words, adult punishments may be too harsh for the juveniles who can be reincorporated to the society.
Moreover, it is more important to establish an educational system for juvenile criminals, so that they can learn how to function as a healthy member of the society. Kim emphasized that minors are still immature and may lack the ability to distinguish wrongdoings. As they have access to social network services and internet, they are exposed to various materials related to crime and violence. Hence, the current juvenile detention system should improve the internal system to educate such juvenile criminals, instead of removing them from the legal protection.
It is crucial to maintain the rehabilitative role of the punitive system. During an interview with *YTN*, Lee Soo-jung (Professor, Dept. of Psychology, Kyunggi University) commented that changing the JA system may hinder such aspect. “It’s more helpful to educate the juvenile criminals so that they can get a job when they come out of the detention center,” said Lee, “I don’t think lowering the age limit or severely punishing every juvenile will contribute to a healthy society.” In other words, the society needs to maintain a punitive structure that educates and restores lost youth back into the community.
“Also, we cannot neglect the fact that the society and the murderers’ families share some responsibility,” said the former prosecutor. “We need to think about why that person has committed such monstrous crime in the first place. What shaped that person to become like that?” In fact, the 17-year-old had dropped out of high school, while the other culprit had already graduated from high school and was preparing for next year’s college entrance exam. As such, these minors were situated outside of the system. With no support system established for those dropouts, we may witness more cases like Incheon.
Moreover, the public should not simply conclude that Korean judicial system is flawed based on what they see on TV. Although the media serves as a powerful tool to tell a story, it does not present the whole story. “Not everything from the court is revealed to public for various reasons, including privacy, security issues, etc,” said Kim. “Nonetheless, in court, the judge takes account of every single evidence and circumstances from both perspectives. That’s why sometimes the result of the trial doesn’t satisfy the public, who only knows part of the whole.”
The former prosecutor further discussed the role of the judicial system. According to him, justice requires the judge to stand neutral and listen to both sides. If judges are swayed by the public opinion and sentence based on such public sentiment, then we won’t have a truly “fair” system. This is why we must ensure independence for the judicial system. Judgment should be made apart from the external influence, including the public. “Some judges don’t read newspapers or access internet during the trial period because they are afraid that they will be influenced by the public opinion,” said Kim. “In most cases, it’s advisable that the public respects the court’s decision, because the final verdict reflects every piece of evidences and circumstances that were given during the trial.”

 

How can we achieve better justice?
Despite the growing support for the abolition of the Juvenile Act, we may need to step back and contemplate on the matter. As much as it is hard to generalize that every juvenile criminals are vile and monstrous, it is also difficult to say that no minors should ever receive adult punishment. Therefore, we must work towards establishing a judicial system that allows appropriate punishment for individual cases.
While protecting youths, we should also leave room for exceptions. Some juvenile crimes have gotten out of control, such as the recent case in Busan. In September, a gang of middle school girls severely beat up another girl, using bricks, soju bottle, and metal pipes. One of the girls took picture of the bloodied victim kneeling on the floor, and sent it to her friend. The screenshot of the conversation became viral on the internet, causing nation-wide rage. Perhaps, such brutal crimes must be trialed in adult court, rather than giving the culprits the undeserved protection.
Charles D. Stimson (Senior legal fellow, Heritage Foundation) discusses this issue in his column in *The New York Times*. According to him, it is important to allow transfer from juvenile court to adult court for some violent crimes, especially murder. “Take that option away, or unduly restrict the punishments available, and it won’t be possible to provide individualized justice in every case,” says Stimson. “Adult punishments should be available for juvenile criminals, if (as today) sparingly applied.”
As the debate on JA intensifies, this is the time to seriously talk about how we can establish fair justice. While balancing between retributive and rehabilitative aspects of justice, we must find a way to give the criminals the punishments that they deserve. There should be no “cotton-made bat” punishment for anyone who has committed an atrocious crime.

 

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