Are Youth Offenders Getting the “Worst of Both Worlds”? the Legitimate Construction of Youth Justice By the Superior Court of Justice

Authors from different countries have argued that youth offenders are being treated with the lack of procedural protection that has historically guided youth justice, while simultaneously being punished in a harsher fashion, as is the tendency in adult justice. This situation has been described as the “worst of both worlds”. This paper investigates how the Brazilian Superior Court of Justice (SCJ) ruled in 53 landmark youth justice cases. In these cases, the court dealt with the possibility of expanding or restricting incarceration and other forms of penal control and procedural protection. Unlike other studies on judicial behavior, this paper addresses both practices and discourse. It employs Bourdieu’s sociology to frame judicial decisions as acts of state, which carry the monopoly of physical and symbolic violence. This construction emphasizes the role of the state in communicating the legitimate response to certain situations and the ways to address these situations linguistically. In order to account for the court’s decision making-pattern, qualitative comparative analysis is employed. The SCJ institutes two youth justice models. In serious cases, it expands penal control and the use of incarceration, while restricting procedural protection. In non-serious cases, it behaves contrariwise. Thus, the court promotes a differentiation of two types of youths: the ones who deserve to be treated liked adults and the ones who should be protected from state intervention. Both models rely on rehabilitation discourses, though the punitive goal is mentioned almost exclusively in serious cases. Other justifications are common to both models. The court promotes a juxtaposition of different ideal types of justice: it is legitimate both to apply adult criminal law and to reject it, to focus on cases’ seriousness and on offenders’ characteristics, to protect offenders and society. This combination of discourses, usually seen as contradictory, expands the possibilities of penal intervention.