1. family and parenting
2. children

How To Turn A Child Offender Into An
Adult Criminal – In 10 Easy Steps
Children and the Law International Conference
7 September 2009
Prato, Tuscany
Italy
Judge Andrew Becroft
Principal Youth Court Judge for New
Zealand
Contents
Introduction
1
Leave families alone to sort themselves out: “Ignore risk and erode resiliency”. .............6
2
Make the age of criminal responsibility as young as possible and get children into Court
as soon as possible. ...................................................................................................................10
3
“Criminalise” welfare issues ....................................................................................................13
4
Treat all young offenders as if they were the same ..............................................................15
5
Always arrest the child/young person if they offend, especially the first time no matter
what the circumstances. Be firm and disrespectful, and always bring them to Court. ...18
6
Sideline the child offender in the justice response. Ensure the child is marginalised,
does not participate, and prevent any contact between the offender and the victim. ....22
7
Always enter a conviction on the child/young person’s record. And make no allowance
for youth at sentencing: ‘adult time for adult crime’............................................................25
8
Convicted young people need a short sharp shock; in praise of corrective training, boot
camps, and scared straight programmes................................................................................27
9
Segregate young offenders from their families, communities and victims. Wherever
possible, aggregate them together in treatment facilities and in prison. ...........................31
10
If all else fails, use ‘what works’ for child offenders, but deliver it badly .........................33
Conclusion
2
Introduction
Theme
The theme of this paper is probably similar to many others about youth justice, except that it
is approached from a perspective that is deliberately contrary to all but the most committed
devil’s advocate. No reasonable person would ever suggest that the goal of a youth justice
system is to promote criminality as a career choice for young people. However, blatantly
inverting 30 years of accumulated youth justice wisdom provokes useful discussion. It is also
hoped that this deliberately polemical approach will help us identify what is essential about
any youth justice system and focus our attention on the principles that are most important
when addressing youth offending.
Thus, the title of this paper attempts to turn on its head the conventional approach to
identifying and discussing important areas of policy, process and practice in relation to
young offenders. The ‘ten steps’ are by no means exhaustive. No issue is explored in depth.
What is significant from the perspective of any children’s or youth court, is that all these
issues are important. These challenges demand considerable energy and commitment from
the wider community if we are to prevent young people from graduating to tertiary level
universities of crime. Many youth justice systems around the world are under threat in an
increasingly punitive age. Hopefully this paper will help highlight how easy it would be to
relinquish the leading role that most youth justice systems play within their wider national
justice contexts.
This paper constitutes a challenge to those working in criminal justice to focus on how best
to stop young offenders becoming adult offenders. Regrettably, there is little research or
statistical evidence available world wide (as with so much about youth justice) showing what
proportion of adult offenders were first dealt with in youth justice systems. Nor do we easily
know, at least in New Zealand, how many young offenders dealt with in the youth court
consistently re-offend as adults. Even without this information, we know that part of the
solution to reducing crime and imprisonment overall, (and managing the vulnerabilities of
children - the theme of this conference) must involve reducing the flow of young offenders
into the adult courts. Effective youth courts and youth justice systems will be important
factors, indirectly at least, in reducing adult crime and imprisonment rates.
This paper focuses on appropriate responses to young offenders and how to stop them reoffending. It tackles, only briefly in the first section, the much wider issue of how to stop
children and young people offending in the first place. That much larger discussion,
involving important matters of socio-economic policy and issues of comprehensive early
intervention etc, is outside the scope of the paper.
Terminology
To avoid confusion about terminology, where possible, we refer to ‘children’ and ‘young
people’ collectively as ‘children’ throughout this paper.
New Zealand legislation uses separate terms (children = 0 – 13; young person = 14 - 16). We
in New Zealand speak of two types of young offenders:
3
1
2
“Child offenders” (10 -13 year olds) who are dealt with, if necessary in the Family
Court on the presumed basis that their offending arises from care and protection
issues; and
“Youth offenders” (14 -16 year olds) who are dealt with in the Youth Court (which,
like the Family Court, is a division of the District Court) which primarily follows a
justice model.
However, this terminology is not consistent with the international nomenclature. So, this
paper will generally use the terms ‘child offender’ and ‘child’ as referring to those under the
age 18, except where there is a necessary distinction that needs to be made between under 14
years, and over 14 years in the New Zealand context.
The terms ‘youth justice’ and ‘youth justice system’ are used to refer to structures and
processes dealing with children and young people under 18 years.
Assumptions
To keep faith with the spirit of this paper, we should observe that the first step in turning
child offenders into adult offenders would be to have no youth justice system at all.
Therefore, this paper’s first recommendation would be for a justice system without any
separate principles or structures for dealing with young offenders at all. This ‘one size fits all’
approach would be guaranteed to allow all but the most freakishly motivated and resourced
young offenders a passport to the world of adult offending. However, as this paper is
determined to discuss best practice in child/youth justice, it is necessary for us to assume the
existence of a child/youth justice system, in order to critique it.
There is ample evidence supporting the need for separate systems of child/youth justice: the
science of young peoples’ brains shows that full decision making maturity is not reached
until the mid 20s; studies into the offending patterns of young people have produced
theories of offending trajectories that offer some hope that social influences could be used
to lessen the risk of reoffending amongst some young people (Livingston et al 2008); 193
nations have ratified the United Nations Convention on the Rights of The Child
(UNCROC) which promotes the idea of special protection for children in trouble with the
law.
To our way of thinking, a fully developed youth justice system assumes the following
indispensable components:
•
separate legislation
•
specialist courts and judges and purpose built courtrooms
•
specialist childrens’ practitioners (police, health workers, psychiatrists, psychologists,
lawyers, and youth workers).
All this is assumed in this paper.
Designing a youth justice system from the ground up would then necessarily include
consideration of the following principles:
•
establishing an age of criminal liability
•
non-criminalisation of welfare issues
4
•
•
•
•
•
•
•
effective diversion of non-serious offenders
dealing with children in ways that promotes their participation in the process
encouraging accountability and restoration
addressing the individual needs and deeds of child offenders
promoting community involvement and decision making
collaboration between agencies, and
retaining children within the youth justice system as long as possible.
Of course, the starting point for a principled approach to the development of a youth justice
system should always be UNCROC, which is ratified by all but two member states1, and the
‘soft law’ that exists parallel to UNCROC2. This paper is not an attempt to, restate or
reformulate the principles in these international instruments. Rather, 20 years since their
adoption, it is the attempt of one practitioner , through the cultural lens of that practitioner,
to highlight ten principles which seem to be, at this point, of critical importance.
All these and other issues are addressed in the “ten principles” that follow.
5
1 Leave families alone to sort themselves out: “Ignore risk
and erode resiliency”.
Since we know that parents and parenting contribute significantly as a risk
factor (or a filter for other risk factors) for adolescent anti-social behaviour, it
makes sense for the state and other agencies to let at-risk families get on
with fostering those risks without intervention.
This must be particularly true for transient teenage solo mothers from poor
communities, with multiple partners, especially those who have not been
lucky enough to inherit pro-social attitudes towards employment, education,
drug and alcohol use, domestic violence, or coping with the general stresses
of parenting.
If it is determined that intervention programmes with at-risk families are
warranted, it makes sense to shackle them with poor resources, poor
supervision, irrelevant or unachievable goals, and untrained or misguided
staff. This will make things worse for those families trusting enough to agree
to participate. At the very least it will leave them with an abiding sense that
social service agencies don’t care, don’t understand, and have only
succeeded in stigmatising them further.
For young people themselves, the dangers represented by the presence of
social or personal risk factors in their own lives are likely to be lessened by
intervening in that society or young person’s life. Therefore, if the goal is to
turn young people into adult criminals, we should ignore these risk factors
and do nothing. There is, of course, no guarantee that not intervening will be
enough to ensure future offending, but it provides a very effective platform for
adverse life outcomes.
Antisocial young people are not islands in time, or in space. They all grew up parented or
cared for by specific people in particular ways, and in communities where some attitudes
were promoted, and others discouraged. As Farrington (2003, p7) straightforwardly notes,
“antisocial parents tend to have antisocial children”.
The subject of early intervention to prevent children from becoming antisocial is a
discussion that should more properly enjoy its own forum. This paper will not explore the
topic in any detail, yet it should also not be left out of any discussion on the elements of
child/youth and crime.
The influence of families cannot be ignored. As well as the risk posed by having antisocial or
criminal parents, family interaction factors have also been linked to a child’s later antisocial
behaviour (Farrington 2003, p9). These include: inconsistent, harsh or abusive parenting,
6
cold or rejecting parental attitude, poor parental supervision or monitoring, low parental
involvement, separation/divorce and parental conflict. Socio-economic factors that manifest
in families can also predict later behavioural problems. These include: low family income,
large family size, poor housing, a teenage mother, dependence on welfare benefits, and
unemployed parents (Farrington 2003, p10).
The search for solutions to the part that families play in producing antisocial children has
lead to the development and evaluation of a number of methods for helping vulnerable
families. Farrington mentions that Olds et al (1986) had success with a home visiting
programme for pregnant and new mothers in New York State. The Family Help Trust in
Christchurch, New Zealand has demonstrated remarkable reductions in family violence, drug
use and offending as a result of their specialised home visitation services programme
targeting the hundred most at risk babies in a city of 350,0003. Farrington also mentions
with approval Patterson’s behavioural parent management training (1982), which was shown
to reduce child stealing and antisocial behaviour.
Utting (2003) surveys a number of therapies (parent training therapy, functional family
therapy, multisystemic therapy) and interventions which target risk factors associated with
families. Utting concludes that there is a persuasive case for regarding the parent-child
relationship as the mediator between a range of risk factors and children’s social behaviour.
However, he also points out that socially disadvantaged, isolated and vulnerable parents are
not likely to engage with programmes that stigmatise them or don’t seek to develop their
existing strengths. And parent education won’t work if underlying stress factors are not also
addressed. In a final comment that could act as a note of warning to New Zealand, Utting
highlights a gap in services in Britain (existing in 2003) related to parenting programmes
specifically designed for parents with adolescents, and more particularly for parents of young
offenders. This gap is pertinent in Britain due to the provision in the Crime and Disorder
Act 1998 for parents of young offenders to be required to attend counselling or guidance
sessions. New Zealand is currently debating the introduction of legislation which would
enact a similar provision.
Apart from the practical difficulties of intervening early and delivering programmes to socalled ‘at-risk’ families, there are ethical questions that need answers. These include whether
to target individuals or communities, what measures should authorities use to make
predictions about risk, how accurate do those measures need to be, should interventions be
targeted at all children within a certain risk profile, is it ever acceptable to step into a child’s
life without knowing whether or not they will ever come to the attention of the criminal
court (the dangers of false positives).
Possible answers to these questions will not be offered in this paper, but we believe the
questions are worthy of inclusion in a forum such as this which seeks to positively inform
the debate about children and the law.
In New Zealand, much of the analysis and theorising about the causes of child offending
and antisocial behaviour in the years since the implementation of the world leading Children,
Young Persons, and Their Families Act 1989 has focussed on identifying and categorising
so-called ‘risk factors’ and ‘protective factors’ in the lives of children. These factors will be
discussed in more detail later. The reason we use the concept of ‘risk’ is that none of these
7
factors, on their own, or even considered together, can be said to actually cause child
offending. Research suggests these factors are associated with child offending, and that the
larger the group of risk factors present in any particular child, the greater the risk of that
person being involved in antisocial behaviour. Similarly, the more protective factors evident
in a child’s life, the greater the resilience to risk and the smaller the chance of adverse life
outcomes.
The usefulness of correctly identifying risk and protective factors should emerge when
authorities and communities try to intervene in the social fabric, as well as in the lives of
children and their families, in order to reduce the amount of child crime. A variety of
studies (McLaren 2000, pp20-36) have come up with lists of risk and protective factors, and
a variety of ranking systems to try to explain which factors might be more or less important,
and how these factors may change in importance over time, or at different stages in a child’s
life.
It is certainly true that not all non-enrolled, truanting, gang-prospected, drug addicted,
behaviour-disordered, mentally ill, young men from dysfunctional, disadvantaged, and
violent families are, or are destined to be, in trouble with the Police or the Courts – but most
serious child offenders come from this background. And, unfortunately, research shows that
the chances of a criminal career beyond the teenage years is enhanced if a child experiences a
collection of these risk factors. On a positive note, the presence of protective factors can, as
their label suggests, diminish the effects of the risks mentioned above.
New Zealand researcher Kaye McLaren (McLaren 2000) is reassuring. She says, with the
exception of gender, most of the risk factors can be changed by intervention, and that
interventions exist which can reliably moderate the most serious of these risk factors. One
way to approach this issue is to reverse the oft heard admonishment “hey judge, it’s ok,
don’t sweat the small stuff”. Deciding to actually ‘sweat the small stuff’ is about intervening
to target the effects of these risk factors. It does not necessarily mean instituting a zero
tolerance approach to minor rule-breaking behaviour. However, it is very important that
young people know there are consequences for criminal behaviour that are firm, prompt,
and escalating if offending continues. As respected former New Zealand Chief Social
Worker Mike Doolan advised in 2001 (Doolan, p4) when talking about the best approach
toward so-called adolescent only offenders:
… the management of this group is low key and measured and does not involve responses that may confirm
the young person in an adult offending career. The regime should be focussed on shutting down the offending
cycle at the earliest possible time, but should also include increasing personal cost for increased offending.
Neither does it necessarily mean labelling every unruly teenager as a criminal, and treating
them like an adult when it comes to sentencing. Sweating the “small stuff” is more about
reducing the negative effects of the risk factors and enhancing the positive effects of the
protective factors. A 17 year old who ends up sentenced to imprisonment in an adult court
is, without doubt, facing an altogether different and more serious kind of ‘stuff’, for which
interventions may struggle to prove as effective than if they had been targeted at risk factors
earlier in his life.
8
The dangers of ignorance of, and inattention to, risk factors is disturbingly illustrated in the
high profile New Zealand case of Bailey Junior Kurariki. He was aged 12 at the time of the
offence and is the youngest person in the country’s history to be convicted of manslaughter.
He and his associates were charged and convicted in connection with the death of pizza
delivery worker Michael Choy in South Auckland in September 2001.
The Ministry of Justice undertook a review of the dealings over time between the convicted
offenders and the Police, Department of Child Youth and Family (CYF), and health and
education services to consider what improvements could be made in services available to
those young people and their families4.
The Ministry’s review produced “3 key lessons”:
•
The underlying causes of Kurariki’s behaviour were never addressed, and following a
decision to keep him in the family home, a lack of support for Kurariki’s mother
meant that she was not equipped to manage him.
Underlying causes of offending can be better targeted by training frontline staff and
police in the use of risk assessment tools and processes. These tools are developed by
medical professionals and researchers and can be ordered by a family group
conference (FGC) or a CYF youth justice social worker. Education and heath
assessment tools are also used to help get a comprehensive understanding of all
relevant influences on a young person’s offending.
•
Kurariki had been excluded from formal education because schools could not cope
with his behaviour. The review concluded that the burden of dealing with Kurariki was
too much to place on the shoulders of the schools alone, and, that greater assistance
should have been available from other social service agencies. The review pointed out
that CYF fund a number of community based social service agencies which should be
used by schools to help manage young people with difficult behaviours. To facilitate
this, the review recommended that directories of community agencies should be
compiled at a local or national level and distributed to schools by CYF or Youth
Offending Teams (YOTs).
•
Poor communication between Police and CYF in Kurariki’s case meant that full
advantage was not taken of the provisions of the Children, Young Persons and Their
Families Act 1989 in relation to the holding of a family group conference.
9
2 Make the age of criminal responsibility as young as possible
and get children into Court as soon as possible.
Child offenders need to face the reality of their criminal futures and learn to
deal with, and be sorted out by ‘the system’ at an early age.
We know that adults with long and serious criminal careers are most likely to
have started out as delinquent children. Why not let the adult courts deal with
them sooner rather than later? Adult offending deserves adult responses.
Offending by children can be most effectively stopped in its tracks by bringing
it to Court at a very early age, for instance 7 to 10 years old. After all,
involvement in the adult criminal justice system is a relatively effective tool for
manufacturing adult offenders. Recidivism rates as high as 60% are regularly
achieved.
The doctrine of doli incapax states that a child (variously defined) is incapable of knowing
that their actions are morally wrong (as opposed to just naughty) and should be protected
from the full weight of the criminal law. This is a doctrine that is supported by the principle
that a child’s welfare is the prime consideration when dealing with their offending. The age
at which the doctrine of doli incapax ceases to apply differs between countries, and can be
dismantled gradually depending on the seriousness of the offence.
Doli incapax applies to children under 14 appearing in the New Zealand Family Court5, and
to children aged 10 – 13 charged with murder or manslaughter6. It operates by providing that
children shall not be charged with an offence or be declared in need of care and protection
unless they know that their actions were either wrong or contrary to law. This suggests that
protection from the doctrine is presumed to exist unless it can be rebutted by evidence of
the child’s moral or legal knowledge.
However, instances of this protection being argued in New Zealand courts are rare. There is
a real danger that, contrary to the doctrine, child offenders are, in fact, presumed to know
that their actions are either wrong or unlawful, with the burden of proving otherwise falling
on the child. Unfortunately, this seems to have become the reality in New Zealand.
New Zealand authorities have the power to bring any young person aged 14 years and over
to court, as well as any child aged 10 to 13 years who is suspected of committing murder or
manslaughter. Currently in New Zealand, legislation is proposed which will lower the age of
criminal responsibility for more types and patterns of offending (Children, Young Persons
and Their Families (Youth Court Jurisdiction and Orders) Amendment Bill 2009). This
appears contrary to the spirit of UNCROC, and research which shows that children who are
dealt with at the lowest possible level in the criminal justice system, and receive less severe
outcomes, are less likely to reoffend7.
10
Despite the United Nation’s ‘Beijing Rules’ advocating an individualised approach to
assessing a child’s appropriate age of criminal responsibility8, legislatures still persist in
setting specific age limits for whole populations. These arbitrary age limits take no account
of a child’s individual levels of responsibility, impulsivity, decision making, understanding of
consequences, and capacity for rehabilitation9. It is probably beyond the competence of
police, social workers, or courts to assess these characteristics for every child that offends,
although this would make for a system of accountability and restoration (community, family
and individual) specifically tailored to that child. Therefore legislatures must draw some lines
in the sand, which are presumably based on a trade-off between community values and
empirical research into physical, emotional and psychological development.
UNCROC encourages states to make the first line in the sand a minimum age of criminal
responsibility, below which, children are presumed to have no capacity to infringe the penal
law (Art 40.3(a)). In New Zealand, this is also the age below which welfare agencies can only
assume control over a child based on their offending, if they prove that the child knew that
his actions were wrong, or contrary to law. If such capacity is proved, the offending is dealt
with in the welfare realm of (what is termed in New Zealand as ‘care and protection’). The
welfare paradigm assumes that a child’s ability to resist the negative influences of the causes
of their offending is beyond their control. Welfare solutions to child offending (as opposed
to punitive solutions) mainly address these causes rather than forcing the child to accept
responsibility for their offending, and arguably do not satisfy the community’s need for
accountability.
The United Nations Committee on the Rights of the Child has criticised states that set their
minimum age of criminal responsibility at any age less than 1210. New Zealand’s is currently
10, but for practical purposes it is 14, because only children who are charged with murder or
manslaughter can be brought into the criminal system between the ages of 10 and 13. For all
other offences, the age of criminal responsibility is 14. For murder and manslaughter, doli
incapax becomes a rebuttable presumption, whereby the prosecution must prove that the
child knew that what they were doing was morally wrong or contrary to law (s22 Crimes Act
1961).
Setting the minimum age of criminal responsibility too low risks the demonisation of
children and overly tough law and order responses, such as those which occurred following
the killing of 2 year old James Bulger by 10 year olds Jon Venables and Robert Thompson in
Merseyside in 1993 (Muncie 2009). John Muncie condemns the British press and politicians
for contributing to the climate of adult fear and moral panic that followed in the wake of the
Bulger killing, as well as the response of the British judiciary, who ended up sending the two
young defendants to prison for 10 years, in a way that was punitive, harsh and unforgiving
(Franklin and Petley 1996 in Muncie 2009, p8).
The current New Zealand proposal to lower the age of criminal responsibility for more 12
and 13 year olds (those charged with serious offences, as opposed to just murder and
manslaughter) prompted the New Zealand Youth Court Judges to comment that this
proposal may contravene the philosophy that has made New Zealand a world leader in it’s
treatment of young offenders. We said “that simply holding such child offenders to account
and using a punitive/rehabilitative paradigm within the Youth Court is unlikely to produce
enduring change”11. Fortunately, the New Zealand government has not gone so far as its
11
British counterpart in its Crime and Disorder Act 1998, which abolished the doctrine of doli
incapax altogether for all 10 – 13 year olds.
Of course, simply conforming to the UNCROC standard for an acceptable minimum age of
criminal responsibility does not abrogate the need for intelligent and effective methods of
dealing with children aged under 14 who offend. The Youth Court in New Zealand observes
that12:
“offending by 10-13 year olds (child offending) has been dealt with on the basis that the offending is primarily
a result of inadequate parental/familial care and protection of the child. The starting point has been that
children who offend do so, in the first instance, because of serious inadequacies in their upbringing. While at
that age there is certainly an element of deliberate and personal choice involved, the philosophy of the current
Act is that unless there are significant interventions into the child’s family system then there will be little chance
of turning a child away from crime”
At the other end of the window of adolescent criminal responsibility is the question of what
age should a young person assume the responsibilities of an adult, and cease to enjoy the
protections of the youth justice system. The UN Committee on the Rights of the Child has
criticised New Zealand for not including 17 year olds within the ambit of the Children,
Young Persons and Their Families Act 1989. Article 1 of UNCROC includes 17 year olds as
‘children’ and many other jurisdictions include 17 year olds within the scope of their youth
justice law.
From the scientific point of view, the development of the teenage brain should also play a
significant role in informing youth justice policy. Researchers such as Elizabeth Scott and
Laurence Steinberg (Scott 2008) argue that the development of adolescents is relevant to
their involvement in crime. Scott explains that adolescents have psychological tendencies
that predispose them to exhibit poor judgement, make bad decisions, be more influenced by
their peers, have little regard for long term consequences, be more impulsive and have more
mood swings then adults. Also, these emotional and psychological tendencies have biological
underpinnings. Teen brains, especially the pre-frontal cortex, are still developing in young
people up to the age of 25. Ishikawa and Raine (Ishikawa 2003) go so far as to suggest that
teenagers whose brain development is impaired by health or psychosocial factors may be
more disposed to antisocial behaviour during their teenage years, and be more likely to
continue offending as adults. These authors also recognise that, on the other hand, positive
psychosocial factors may work as protective influences on maturing frontal lobes. Either
way, teen brains are vulnerable, and we believe it is advisable to offer 17 year olds the
hopeful benefits of a specialist youth justice response to their offending.
12
3 “Criminalise” welfare issues
It does not matter what lies behind child offending, and it is not relevant if
inadequate parental and family care and protection issues are the root cause.
The starting point is that a child has offended, and has then created a victim.
There must be criminal accountability for law breaking, and consequential
punishment.
In any case, how are the real causes of child offending ever known? It is too
easy to blame welfare issues, and they are too easily attributed as causative.
There are many young people with welfare issues who never offend because
they know they would be breaking the law. Young offenders with welfare
issues have a tough but clear choice between criminal behaviour and staying
out of trouble. If they decide on the criminal route, they can expect to see
clear differences between the state’s treatment of their care and protection
issues, and how the courts deal with their criminal behaviour.
Any legal architect faced with designing a youth justice system needs to ask him/herself the
following two fundamental questions:
1. When and on what basis, should offences committed by children be seen primarily as a
result of care and protection failures (requiring resolution in the Family/Welfare or Care
Courts)? Put another way, when and on what basis should offences be dealt with as
intentional breaches of the criminal law by autonomous, responsible individuals requiring
resolution in the criminal courts? This raises the issue of how care and protection issues are
to be identified and importantly, how it is to be concluded that those issues have been
causative of offending. It also raises the profound risk of criminalising what is essentially a
welfare issue. More importantly still, it bears on the issue of the age of criminal liability
because the younger an offender with care and protection issues is, the more they are seen as
a product of their family and not fully culpable.
2. At the stage when the law does require that child offenders are dealt with in the criminal
Court, to what extent should any underlying care and protection issues that may have
contributed to their offending, be addressed in the criminal Court rather than the Care or
Family/Welfare Courts? Addressing such issues in the Criminal Courts, especially to the
extent necessary to fully resolve them, runs the risk of ‘welfarising’ and prolonging the
justice response, and compromising a key justice principle of proportionality of response, as
well as parity between offenders of like crimes.
As Hill Lockyer and Stone (2007, p294) elegantly conclude “There is no neat shift from child
protection to child prosecution. The need for the former is not cancelled or negated by the
occasion of the latter.”
13
Despite this, we believe it is a worthwhile enterprise for a youth justice system to attempt to
draw a line in the sand at a particular age level, and deem all offending below that level to be
primarily welfare driven, demanding a ‘care and protection’ response, while all offending
above that level should elicit an initial response in terms of accountability. The accountability
response however, must be tempered by mechanisms that allow the child’s welfare needs to
also be addressed. Of course, this line in the sand must be neither too low (which risks
criminalisation of welfare issues) or too high (which risks ‘welfarising’ criminal issues). To
echo Hill, Lockyer and Stone (2007, p300), the task is a balancing act, involving the
maintenance of “a complex set of principles as well as an array of empirical evidence about
the origin of childhood problems, the effectiveness of different kinds of intervention and the
importance of inter-agency collaboration”.
We regard this topic as the most fundamental, challenging, and problematic issue facing any
youth justice system.
In New Zealand, the Children, Young Persons and Their Families Act 1989 attempts to
make legislative sense out of the delicate co-existence of the two major conceptions of
dealing with young people who offend – welfare and justice. I know of no-one involved in
youth justice in my country that would accept that it is totally successful. On the 20th
anniversary of this legislation it is easy to say that we now know how the drafters could have
done slightly better, but hindsight of that sort is, unfortunately, rose tinted. To be fair, the
drafters recognised that many of the principles of youth justice and child welfare spring from
a shared conception of human rights, and in many cases it is sufficient to simply mark the
difference in regimes with an age limit, and move on. In reality however, and reality is where
any notion of practical success must sit, the difference between a child’s welfare need, and
their criminogenic need cannot be thought of as the moment when the clock ticks over and
they turn 10, or even 14.
In effect, the law in New Zealand deems all criminal offending that happens before the age
of 14 (except murder and manslaughter, where the doctrine of doli incapax struggles against
its statutory identity as a rebuttable presumption) to be primarily a welfare issue. It seems to
be an artificial measure of culpability, and many would argue that that particular age limit is
too high.
Accepting that legislators must send clear signals to communities about when people can
expect to be considered capable of accepting more responsibility for their offending, it then
falls to agencies such as police, welfare and courts to deal with the nuances of individual
cases in an intelligent and humane way. To its credit, the New Zealand legislation provides
many of the tools to respond to those nuances positively and quickly.
New Zealand, no less than other Western regimes, has been subject to the political and
philosophical tug of war between the interests of welfare on one hand, and justice on the
other. In the past, a single-minded focus on either one has led to negative consequences, but
it is our view that a purely justice based approach will never be adequate. Muncie (2009 301)
highlights the re-emergence of welfare arguments in the UK in the 1990s, and it is certainly
our view that, if welfare responses were wholeheartedly implemented, there would be much
less need for more retributive responses.
14
This is not to relegate the need for criminal courts to address childrens’ criminal behaviour
by attempting to make them accountable for offending for which they were thoroughly
culpable.
4 Treat all young offenders as if they were the same
We know that there are two main types of young offenders – a large group
that start and end their offending in their teens (‘desisters’), and a much
smaller group that start earlier and persist into adulthood (‘persisters’).
These two groups normally demand different treatment, but the number of
young people graduating to a life of crime could be greatly increased if we
treat the desisters as persisters, and aggregate them together in community
programmes, counselling sessions and detention facilities.
Young people who get in trouble with the law come in all shapes and sizes. A justice and
rehabilitation system that is serious about reducing rates of reoffending must address its
responses to young people based on their relevant differences. As White & Wyn (2008,
p156) state:
The crux of the developmental approach to understanding juvenile behaviour is that crime is a consequence of
cumulative risks and combinations of factors, and that these vary over the life course (see Developmental
Crime Prevention Consortium 1999). The analysis of multiple causal factors, combined with an
acknowledgement of the need for multiple forms of service delivery, is also important with regard to the profile
of young offenders: complexity of explanation and complexity of response mirror the complexity of offending
itself.
Understanding the different types of youth offenders
Research shows us that around one-quarter of all young men will commit at least one
offence. Of that number 80% will commit only one or two offences. The remaining 20%
are responsible for 80% of New Zealand’s youth offending. This pattern is as evident
internationally as it is in New Zealand. It means that there is a small group (5%) of young
males who are committing most offences. These are the young people who require the bulk
of our attention.
Why is it that some young people commit no offences, while others commit one or two, or
have extensive criminal careers? The answer is found in an analysis of the extensive research
on the risk factors and protective factors for offending – that is, the environmental, social or
biological factors that make a person more or less likely to commit offences.
Extensive data on risk and protective factors come from longitudinal studies, of which there
are currently two in New Zealand. The Dunedin Longitudinal Study is a long-running
research study of the lives of 1037 people born in Dunedin in 1972 and 1973. Study
members have been assessed at regular intervals through their lives. This study has
produced a large amount of information about the risk and protective factors for offending.
15
Similarly the Christchurch Health and Development study is following 1265 people born in
the Christchurch area in the mid-1970s. These studies have revealed that youth offending
tends to follow one of two types of developmental pathway.
The life-course persistent offender
The first pathway is known as the life-course persistent offender. These individuals exhibit
severe behaviour problems from a very early age, sometimes as young as two years old.
Their lives have been marked by multiple adverse influences including family dysfunction.
As children they may have exhibited subtle cognitive deficiencies, difficult temperament or
hyperactivity. When compounded by adverse environmental factors such as inadequate
parenting, exposure to violence or other trauma, disrupted family bonds or poverty, their
brain developmental processes responsible for social behaviour have been adversely
impacted13.
Life-course persistent offenders are sometimes described as having “conduct disorder”.
They may be aggressive, oppositional and violent. They often lack feelings of guilt, remorse,
or victim empathy, and tend to be ego-centric seekers of immediate gratification, who do not
think about consequences. If left untreated, these behaviours escalate over the whole life
span. It is apparent from the experience of the Youth Court, that 82% of this group of lifecourse-persistent offenders are male, at least 50% are Maori, up to 80% are not engaged with
school, and up to 75-80% have drug or alcohol problems. Psychological and psychiatric
issues are also common.
‘Persisters’ tend to come from multi-problem backgrounds, and are characterised by major
personal, social and family disorder (Doolan 2001, p4). They are the most likely of all
offenders to keep offending into adulthood. These young people are usually seekers of
immediate gratification and give no thought to the consequences of their actions.
Effective interventions with this group must tackle multiple identified risk factors. Risk
factors in order of the highest to lowest priority for persisters are (McLaren 2000, p36):
•
Having few social ties (being low in popularity, and engaging in few social activities);
•
Mixing with antisocial peers;
•
Having family problems, particularly poor parental monitoring of children and
negative parent-child relationships;
•
Experiencing barriers to treatment, whether low motivation to change, or practical
problems such as difficulty in attending appointments due to lack of transport and
work hours;
•
Showing poor self-management, including impulsive behaviour, poor thinking skills,
poor social/interpersonal skills;
•
Showing aggressiveness (both verbal and physical, against people and objects) and
anger;
•
Performing and attending poorly at school, lacking positive involvement in and
positive feelings about school;
•
Lacking vocational skills and a job (for older offenders);
•
Demonstrating antisocial attitudes that are supportive of crime, theft, drug taking,
violence, truancy and unemployment;
16
•
•
•
Abusing drugs and alcohol;
Living in a neighbourhood that is poor, disorganised, with high rates of crime and
violence, in overcrowded and/or frequently changing living conditions;
Lacking cultural pride and positive cultural identity.
Given these factors, it is unsurprising that Mike Doolan advised in 2001 (Doolan 2001, p4)
that a “much more sophisticated policy and practice response is required” for dealing with
early onset offenders.
The adolescent onset offender
The second pathway is known as the adolescent onset offender. This is a much larger group
– up to 80% of all youth offenders. The lives of this group of offenders are not markedly
disordered, and they don’t tend to exhibit disproportionate anti-social behaviour during
childhood. During puberty however, behavioural issues begin to develop. The causes of
their offending are due to social processes such as attachment to anti-social peers,
inadequate parenting, or exposure to cannabis, rather than neuro-developmental processes.
This group is much larger in number, and unlike their life-course persistent peers, they
generally experience the normal range of emotions, including remorse and willingness to put
things right.
The impact of indigeneity on Mäori/non-Mäori in New Zealand
Mäori youth have a different experience of, and are more likely to come into contact with
the youth justice system that non-Mäori (Maxwell et al 2004b Chapter 6). Reasons for this
are complex and beyond the scope of this paper. Maxwell et al report that socio-economic
factors alone do not explain these differences. While Mäori youth may come to the attention
of the police more often, the nature of their offences are less serious than their non-Mäori
peers. Maxwell et al support previous research that suggests that this is because the public
and the police are more vigilant toward Mäori youth. Maxwell et al also report that more
Mäori youth tend to be dealt with in Court, and therefore the severity of sentences received
is greater, regardless of the nature of their offending.
Maxwell et al counsel police to be careful when dealing with reports of offending by Mäori
youth; not to react based on the ethnicity of the young person. They also remind youth
justice co-ordinators to be alive to the often subtle differences in cultural practice between
Mäori, when it comes to practices in family group conferences.
The influenceof gender: girls/boys
McLaren (2004, p32) says the limited research into the differences between boys and girls
who offend, strongly suggests that girls are put at risk of offending by some very different
factors. The most important of these as targets for intervention are: the existence of child
abuse inside the family, and preventing young girls from running away from home.
As well as the different offender profiles mentioned above, there are specific pathological
differences that should inform the responses of police, courts and treatment agencies. These
include tailored responses to offenders who are, amongst other things, conduct disordered,
mentally ill or sexual offenders.
17
Despite recent work to further nuance the understanding of offending trajectories14, Muncie
(2009) cautions against using officially sanctioned statistics (as opposed to self-reported
findings) to make correlations between individualised ‘risks’ and the so-called ‘causes’ of
youth offending. He warns that quantitative data applies generalised probabilities to
individuals, which has the result of creating many false positives. Individuals are in danger of
being wrongly labelled, and subjected to misguided and unwanted interventions.
5 Always arrest the child if they offend, especially the first
time no matter what the circumstances. Be firm and
disrespectful, and always bring them to Court.
Bringing the child to Court has at least four consequences that have the
potential to shape a child’s view of themselves as someone who is an
offender, and with luck, to confirm them in a life of adult crime:
•
•
•
•
They become vulnerable to peer contagion by other child offenders.
They begin to become ‘inoculated’ to the criminal justice system.
They begin to live up to the label of ‘offender’, and behave in a way that
is suggested by the label.
They may see each court appearance as a badge of honour, and strive
to enhance their reputation in this regard.
These consequences should obviously be promoted, particularly with the
police, who are tasked with exercising crucial discretions about the processing
of child offenders.
Children also need to know that the criminal justice system is a place they can
rely on to make them feel ‘at home’, and provide them with opportunities to
develop a career path that is bewilderingly both endorsed and condemned by
the system set up to manage it.
Police are at the front line of our system’s dealings with young people. They
have some fundamental and powerful discretions, the exercise of which is
thought to have a major influence on the future experiences of young people
who come into contact with the machinery of law enforcement.
An aggressive and dismissive attitude when dealing with young people, unfair
practices when processing, and a willingness to take more, rather than less
serious policing responses whenever possible, are actions that will help
encourage young people to return to the justice system as adult offenders.
18
Police arrest and charging practices lie at the procedural core of any youth justice system.
The exercise of these twin discretions are the significant gatekeepers and determinants of
entry into the youth justice process. Self evidently, they can be practices for good or ill. Bad
practice will provide every opportunity for repeat contact with the system.
Arrest
While it is usually asserted that arrest of children should be restricted, specific research into
the effect on young people of the way they are ‘processed’ by the justice system is scant
(McLaren 2000, p38). McLaren mentions one study that reviewed the literature on the
effectiveness of police responses to adult offending (Sherman et al 1998), but points out that
only some of the suggestions might be relevant to young people. She does assert that
“arresting some juveniles for minor offences reliably doesn’t work” (McLaren 2000, p42).
She says that examination of the studies reviewed by Sherman shows that most found that
arresting juveniles resulted in increased offending.
McLaren points to an emotional sensitivity in high-risk young offenders. She cites the 1998
Sherman study which notes that the manner in which police behave can have a powerful
influence on a young person and their community. McLaren says that the risk of offending
can be increased if police behave less respectfully, and with worse manners towards young
people. She says both Sherman studies suggest that “cautioning young offenders in a fair and
respectful fashion, rather than arresting them, will have a greater impact than other
approaches”.
Reflecting the importance of only arresting a young person when necessary in New Zealand,
s 214 of the Children, Young Persons and Their Families Act 1989 restricts circumstances in
which a young person can be arrested by the Police without warrant.
Diversion
A first principle in the youth justice parts of the New Zealand Children, Young Persons and
Their Families Act 1989 states that15:
…unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or
young person if there is an alternative means of dealing with the matter:
This principle recognises that simply the fact of contact with the formal criminal justice
system can be detrimental in itself, irrespective of the substantive response provided.
Although the shock of a formal process at an early age might be expected to deter a child
from re-offending, research shows that, all too often it can have the opposite effect. Contact
with the formal juvenile justice system has been shown to have a reasonable likelihood of
increasing the level of criminal activity in early adulthood (Bernberg 2003, Item 3). Such
negative effects on children are more likely for those who come from impoverished
backgrounds or those who are black (Bernberg 2003, n56). This throws doubt on the
suggestion that formal prosecution is the effective way to hold children accountable for their
crimes.
Also, the United Nations Convention on the Rights of the Child Article 40.3(b) states that
whenever appropriate and desirable, alternatives to judicial proceedings should be found,
though not at the expense of the child’s human rights and appropriate legal safeguards. This
19
principle shelters children from formal criminal justice processes in recognition of their
immaturity and the likelihood that rehabilitative approaches will be particularly effective for
those of tender years.
Perhaps because children have opportunities to mix with other young offenders and become
au fait with Court procedures, it can become very difficult to remove them from the formal
criminal justice system. Further, as most offenders are ‘desisters’ (as previously described),
they are low risk and there is no need for a court-based intervention - intervention (often
firm and decisive) is necessary but it can take place very effectively in the community.
However, as the decision on whether to grant a particular child access to the alternative
procedures is discretionary, there is a danger that these procedures are not always applied
fairly. Equally, there is a concern (usually unfounded) that diversionary procedures allow
children to avoid the consequences of their actions. It is necessary to find alternatives that
are applied consistently throughout the country and that, nevertheless, hold the child to
properly account for their wrongdoing.
The Children, Young Persons and Their Families Act 1989 pays particular attention to the
role of police, which includes a considerable discretion as to charging. As with arrest rates,
there are significant (worryingly significant), differences in police charging rates across the
twelve police districts. Figures range from 877 per 10,000 population (Auckland) through to
2097 per 10,000 population (Southern region)16. Further research is required to fully
understand the significance of these discrepancies. That said, in general, the commitment by
the New Zealand Police, and Police Youth Aid17 in particular, has been one of the great
successes of the New Zealand youth justice system. The contribution of Police Youth Aid
constables in this respect, undervalued and underecognised though it has been, is nothing
short of outstanding.
Below is a graphic representation of the dramatic reduction in the use of the Youth Court
for young offenders since the introduction of the Children, Young Persons and Their
Families Act in 1989. The period between 1989 and 1991 clearly depicts an almost overnight
revolution in police practice and diversion.
20
Rate per 10,000 population of 14 to 16 year-olds, of cases appearing in the
Youth Court 1980-200618.
900
800
Rate per 10,000 young people
700
600
500
400
300
200
100
0
1980
1985
1990
1995
2000
2005
Year
This is not to say that resort to the Youth Court is not important. But it is a last resort, or to
be reserved for serious offending or offenders. Section 208(a) of the Children, Young
Persons and Their Families Act 1989 provides the statutory mandate for that approach. A
community0based approached seem to work best, if at all possible.
Data produced by Maxwell et al (2004) led them to conclude that dealing with matters of
child offending at the lowest level possible reduced the likelihood that children would be
convicted as adults, or have poorer life outcomes. Dealing at the lowest level meant:
convening a family group conference rather than laying a charge in the Youth Court; asking
a young person to stick to the terms of a family group conference plan that were less
restrictive; and handing out lower rather than higher Youth Court sentences. Maxwell et al
criticised approaches to minor offending which saw young people sent to family group
conferences when police diversion could have been sufficient, or young people being
charged in the Youth Court when a family group conference would have been just as
effective.
Bernberg, Gunnar & Krohn (2003) conclude that contact with the formal juvenile justice
system has been shown to have a reasonable likelihood of increasing the level of criminal
activity in early childhood.
21
6 Sideline the child offender in the justice response. Ensure
the child is marginalised and does not participate. Prevent
any contact between the offender and the victim.
It is safe to conclude that a child justice process that denies the child or their
family the chance to feel part of the process, that isolates the child as an
offender, that ferments feelings of anger, resentment, hopelessness and
apathy, and which fails to address the cause of offending is a process that
could make an important contribution to turning a child into an adult offender.
Making sure that neither the victim nor the offender have any part in the
process, or, if they do, it only happens in the controlled formal environment
that a courtroom can provide, also helps to ensure this outcome.
In New Zealand, the cornerstone of the process, which is reserved for those more serious
offenders charged in Court, or who the Police have not arrested but nevertheless still wish to
charge is the family group conference (FGC).
Three key elements of the FGC process as described by McElrea (1994) are:
•
The partial transfer of power from the State (principally the Courts’ power) to the
community;
•
The family group conference as a mechanism for producing a negotiated, community
response;
•
The involvement of victims as key participants, making possible a healing process for
both offender and victim.
Is the New Zealand system restorative?
In practice, the New Zealand system encapsulates restorative justice ideologies, by including
the victim in the decision-making process and encouraging the mediation of concerns
between the victim, the offender and their families to achieve reconciliation, restitution and
rehabilitation. The New Zealand system, especially the family group conference, has been
practised as a restorative justice system, though this was not necessary to conform to the
provisions of the Act. Restorative justice is nowhere mentioned in the Act, yet a restorative
justice approach is entirely consistent with its objects and principles. In fact, “restorative
justice” thinking and practice had barely begun at the time the Children, Young Persons and
Their Families Act 1989 was being discussed. Thus, the system follows restorative justice
techniques although the black letter law did not explicitly envisage this outcome.
Is the New Zealand system a Maori-based system?
A groundbreaking element of the New Zealand youth justice system is its partial
amalgamation of traditional Mäori and European approaches to criminal justice in the form
of the family group conference. In Mäori custom and law, tikanga o ngä hara (or the law of
wrongdoing) is based on notions of collective rather than individual responsibility.
22
Understanding why an individual has offended and addressing the causes collectively is seen
as a benefit to society as a whole.
Although many of the processes of Mäori law no longer exist, the whanau (or family)
meeting is still used by extended families in some areas to resolve disputes. It was this model
that was seen as a prototype for a new method of resolving disputes within families in a way
that was culturally appropriate for Mäori and also an empowering process for all New
Zealand families. The adoption of this model accords with a shift in modern Western legal
systems towards alternative methods of dispute resolution, such as mediation. Two specific
factors promote participation by the young Mäori offender in the family group conference
process:
•
•
the inclusion of whanau19, hapu20 and iwi21 in repairing the harm; and
the opportunity to have the conference in chosen familiar surroundings, including on
marae.
However, it is important to recognise that the family group conference is not (as is
sometimes unrealistically touted) the wholesale adoption of an indigenous method of
dispute-resolution and a rejection of the Western legal system. It is rather a modern
mechanism of justice that is culturally appropriate, and certainly is a product of the
dissatisfaction by Mäori with the previous paternalistic system. It contains some elements of
the traditional Mäori system of whanau decision-making, but also elements that are foreign
to it (such as the presence of representatives of the State). It also modifies elements of the
traditional system, such as the roles played by the family and victims. This is an important
feature of the system because Mäori children and young people comprise around half of all
youth apprehended by Police, having a youth justice family group conference or being
prosecuted in Court.
Family Group Conferences
The family group conference process recognises that young people may be immature,
vulnerable and still very much part of and influenced by their families. When well prepared,
conducted and followed up, the family group conference has been a profoundly powerful
response to youth crime. It is demanding for the young offender; it facilitates, and indeed
necessitates the active involvement of his/her immediate and wider family, and it can prove
deeply satisfying for victims – all in ways that have surpassed the more traditional adversarial
approach to dealing with offending. And it is worth noting that family group conferences are
able to recommend stern responses to serious young offenders, including, where
accountability demands it, sentences of imprisonment (Becroft 2006, p3).
Maxwell et al’s 2004 study of young offenders who had participated in family group
conferences provides some useful insights. The authors confirm that a constructive family
group conference can make an important contribution to preventing further offending
despite negative background factors and irrespective of the nature of the offending. They
identify particular aspects of the family group conference that make reoffending less likely:
good preparation; the young person should feel supported, understand what is happening,
participate in the conference, and not feel stigmatised or excluded. A conference that
generates in the young offender feelings of remorse, of being able to repair harm and of
23
being forgiven, and which encourages the young offender to form the intention not to
reoffend, is likely to reduce the chances of their further offending.
The Maxwell et al 2004 study also reported that most of the family group conference
participants interviewed had gone on to experience a negative life event or risk factor post
their involvement with the youth justice system. Nearly half of those surveyed appeared
before the courts in the first year after they turned 17, and that, after three years, this figure
had risen to 69% (Maxwell 2004, p15). This may appear to be a negative finding.
However, it should be remembered that the family group conference process is legislatively
reserved for the most serious child offenders – the 20% who come to Court or who the
Police wish to bring to Court. Also, compared to overseas jurisdictions, it outshines even the
best-resourced programmes available in the most liberal of American states (Becroft 2006,
p9).
In 2006 (Becroft 2006) we highlighted a number of areas of family group conference practice
which, if ignored, would also help lessen the potential for more young people to avoid
offending in the future. These areas included:
•
more emphasis on information about rehabilitation and reintegration and
identification of ‘criminogenic needs’ before the family group conference as a tool for
a better family group conference plan
•
better access to important information from professionals
•
wider, formalised, community input
•
no more ‘subject to finance’ family group conference plans
•
improved formalised training for family group conference co-ordinators
•
better monitoring and implementation of plans by parties to the plan, and not the
Court
24
7 Always enter a conviction on the child’s record. And make
no allowance for youth at sentencing: ‘adult time for adult
crime’.
A conviction can be seen as an important, if necessarily tough addition to the
toolkit for a young offender who might be grappling with the construction of a
useable identity for themselves within society. As Whyte and Wyn (2008,
p191) remind us, “It is almost impossible to understand the decisions made by
young people and the actions they take without understanding how they see
themselves in the world”, and “Social identity is… very much influenced by
how the state intervenes in the lives of young people.”
Handing a young person a criminal conviction irrespective of their response,
sends a message to that person that they must decide early whether they
want to be inside or outside the tent of civil society. The universality of
convictions for all child offenders will send a vital deterrent message.
White and Wyn (2008) argue that a young person’s status in society “will be determined by
the nature of their contact with law enforcement officers and the juvenile court system”.
This is in the context that most young people break the law or do antisocial things at some
point in their teenage years, and then ‘grow out’ of these tendencies by their mid twenties.
The argument is that it does not only matter ‘what’ the young person has done that
contributes to their label as a ‘criminal’, but also how the system has treated them,
irrespective of their offences. One effect of labelling a young person as ‘criminal’ can be seen
when criminalisation is viewed as a risk factor for further offending.
White and Wyn (2008, p158) refer to Harding and Maller (1997) to support the contention
that the sooner a young person is criminalised, the higher the risk of them reoffending.
McLaren (2000, p20) says the age at first offence, number of prior offences, total time in
custody, and age and gender are “very good predictors of who will offend again”. McLaren
labels all these factors as ‘tombstone’ or ‘static’. That is, they are fixed and cannot be
changed by interventions. On the other hand, with the exception of age and gender, the
others could be grouped under the idea of criminalisation, and re-targeted as part of society’s
response to youth offending.
Muncie (2004, p29) recounts how the New Labour government in Britain announced their
intention to introduce a new tough sentence to deal with children aged 12 – 14 yearswho
could be identified as “seriously persistent juvenile offenders”. Researchers identified
hundreds of children with multiple arrests but were unable to organise them into discrete
groups that made sense, or come up with a definition for ‘persistence’ that was not arbitrary.
This suggests that there is a disconnection between the number of times a young person has
been labelled a criminal by the justice system, and any attempt to fit that person into any set
of standard criteria that would see them as part of a criminal subset of the population. The
25
government in Britain went ahead despite their experts’ opinion that defining persistent
young offenders as those with multiple convictions was problematic.
Maxwell and Liu (2007) conclude that restorative practices have the power to shift values
away denunciation, blame, punishment, exile, exclusion and shaming towards remorse,
apology, healing, repair, forgiveness, and reintegration. It is entirely fair to describe this shift
as a retreat from criminalisation. This is a retreat that seems sensible given the blunt nature
of the term and the nuanced nature of the problem.
Criminalisation is a shaky rock on which to base a youth justice strategy because it appears to
have very little to do with the complex issues faced by individual children. Labelling children
as criminals when their behaviour does not justify such labelling, or premature labelling,
given their potential to still develop as functioning adults, can do more harm than good.
Importantly however, not labelling with a conviction, and not criminalising, does not equate
with not dealing properly and effectively with children who come before the courts.
In fact, not entering a ‘conviction’ in the case of minor to moderately serious offending,
where there has been a satisfactory response to a family group conference plan, may play a
significant part in a young offender’s ultimate rehabilitation. A Youth Court order, appearing
on a person’s criminal record for the rest of his/her life, can be a significant impediment to
future progress, employment prospects and overseas travel. Where there have been
comprehensive interventions and successful responses by a young offender in New Zealand,
the power in s 282 of the Children, Young Persons and Their Families Act 1989 for a Youth
Court to absolutely discharge a young offender - as if the charge had never been laid - is a
very powerful tool, and an incentive for a young person to actively co-operate in the youth
justice rehabilitative process.
The New Zealand Children, Young Persons, and Their Families Act 1989 enshrines
principles and practices about the relationship between state authorities and young people
that marks out that relationship as special, one that is based on the particular needs,
characteristics, and vulnerabilities of young people.
Section 4(f) of the Children, Young Persons and Their Families Act 1989 addresses the
object of the legislation (“to promote the well-being of children, young persons, and their
families and family groups”) by placing the accountability and fostering the acceptance of
responsibility by child offenders for their offending on the same footing as the
acknowledgement of their needs, and the provision of opportunities for them to “develop in
responsible, beneficial, and socially acceptable ways”.
Section 208 goes further with respect to principles of youth justice promoted by the
legislation. It says that a young person’s age is a mitigating factor in determining whether or
not to impose sanctions for offending, and in determining the nature of such sanctions. It
goes on to prescribe that sanctions should promote the development of the young person
within their family, and take “the least restrictive form that is appropriate in the
circumstances”.
Despite these provisions, the New Zealand criminal justice system already differentiates
between young offenders on the basis of the seriousness of their offending. The Youth
26
Court may decline jurisdiction outright for very serious, ‘jury trial only’ charges. Even if
jurisdiction is offered and accepted by a young person, the Youth Court still has the power
to convict a young person and then transfer them to the District Court for sentencing for
those jury trial only cases, or other cases where the seriousness of the offending is such that
even the toughest Youth Court order would be inadequate. Similarly, charges of murder and
manslaughter are always tried in higher courts. The principle of adult time for adult crime, at
least in principle, is still thoroughly alive.
To modify the stringencies of the application of tariff cases in higher courts (such as R v
Taueki [2005] NZLR 372 and R v Mako (2000) CRNZ 272 (CA)) to children/young people,
s9(2) of the New Zealand Sentencing Act 2002 lists age as a mitigating factor. Even in appeal
cases where higher courts have rejected the idea that so-called ‘youth justice principles’
should dominate sentencing of young offenders in adult Courts, those Courts have also
come to the conclusion that the application of age as a mitigating factor in the Sentencing
Act has much the same effect as if youth justice principles were otherwise applied.
As part of this discussion it is important to note the relatively recent research, emerging
particularly from the United States of America, establishes that the teenage brain undergoes
a long period of development during adolescence and through to early adulthood (Scott
2008, p44). It seems that full decision making maturity is not reached until the late teenage
years or early twenties. In one sense then teenagers are not simply junior adults, but are
almost a different development animal!
In Roper v Simmons22 the United States Supreme Court recognised that punishing young
people as adults through the death penalty was unconstitutional on a number of grounds
including the fact that young people are immature, are particularly susceptible to negative
influences and their character is not as well formed as that of an adult. The Court considered
that, from a moral standpoint, it would be misguided to equate the failings of a minor with
those of an adult, for a greater possibility exists that a minor’s character deficiencies will be
reformed23.
8 Convicted young people need a short sharp shock; in praise
of corrective training, boot camps, and scared straight
programmes.
When looking for promising ways to turn young offenders into adult criminals,
research into the effectiveness and economy of boot camps has shown that
they are, unfortunately, no better than other overly zealous punitive regimes,
but may, nevertheless, increase reoffending.
However, we should not forget the other positive attributes of the boot camp
approach. Simon (in Muncie, Hughes, Mclaughlin 2002) argues that boot
camps (at least in the United States) provide politicians, commentators, the
27
public and the media with a chance to indulge in a kind of feel-good ‘wilful
nostalgia’. Simon quotes the State of Louisiana, which describes its boot
camp as “promoting a positive image of corrections, and, in general, to
enhance public relations”. Simon points out that boot camps, precisely
because of their focus on shocks that are short in duration, set inmates up to
fail as soon as they are released back into the violent communities from which
they came.
Indeed, Simon argues (in Muncie, Hughes, Mclaughlin 2002, p355) that the
very nature of some young people’s tough communities is unlikely to result in
those young people being intimidated by the hardness of a stay in a boot
camp. According to Simon, visions of boot camp life involving military-style
drills and punishments “are a completely ideological quality more likely to
excite its middle class television audience”. “Rapid and total transformation
was the key cultural theme that Hollywood linked to the boot camp. The
hoodlum or hayseed is transformed into a worthy vessel of American
manhood in a period of some weeks.”
Thus, boot camps are not only good for growing adult offenders, they also
make us feel much better about the process.
Combined global youth justice wisdom is now at the point where we can agree that there are
indeed interventions that can be applied to the lives of child offenders which will reduce the
likelihood of them reoffending (McLaren 2000, p53). McLaren refers to research by
Redondo et al (1997) which showed that taking part in any rehabilitative programme was
better than not taking part in any, and that the younger the offender, the better the chances
of success.
McLaren (2000, p53) cites Lawrence Sherman’s research into what kinds of programmes are
the most effective. She reports that strategies that worked reliably included:
•
maintenance of good discipline and standards of performance at school
•
behaviour contracts, and behaviour modification methods drug rehabilitation in prison
•
programmes that are structured and focussed.
McLaren (2000, p64) also addresses multi-systemic family therapy, which has come to be
seen as a ‘gold standard’ in treatment programmes worldwide in the last few years.
Other researchers have since focussed on the three principles of risk, need, and responsivity
proposed by Canadian, Donald Andrews. Issues associated with these principles will be
canvassed under point 10 following.
After much seemingly contradictory research into whether residential or non residential
settings are best for turning young people away from offending, it appears that it is not so
important to ask ‘where’ a programme is delivered, as it is to ask ‘what sort’ of programme is
delivered there. McLaren (2000, p60) summarises research into what works in residential
settings, and concludes that the following are important:
28
•
•
•
•
•
•
•
•
staff attitudes and modelling
the longer the programme runs - the better it is
that programmes actually deliver what they intend to deliver
highly trained staff
a positive peer culture that encourages young people to remind each other of the rules
and promote pro-social attitudes
cognitive behaviour therapy, with rewards for good performance
establishing a segregated alternative community
the provision of proper and intensive post-residential supervision and re-integrative
services.
McLaren (2000, p61) reports that Germany manages to turn whole prisons into therapeutic
communities. These prisons offer a “fairly relaxed regime” including: no uniforms, visitors in
cells, not much censoring of mail and phone calls, and small communal living units.
On the other hand, when it comes to asking ‘what doesn’t work’, conclusions from the
research are clear. Punishment alone is not enough – deterrent sentencing does not live up
to its name (Muncie 2004, 289). Shocking young offenders into changing their attitudes and
behaviours by exposing them to already hardened adult criminals, and giving them the
opportunity to spend nights in jail also has a poor track record. Boot camps are the best of
these punitive style programmes, but only in that they prove similarly effective as simple
probation (McKenzie 1990, 1991 in McLaren 2000, p79). McLean and Grace have
concluded that boot camps, shock incarceration and electronic monitoring are less likely to
be effective.
An oft-promoted residential alternative for young people is the so-called ‘wilderness
challenge’ style of boot camp. These programmes can involve intense periods of highly
physical activity in remote settings with mountain guides as instructors. While most research
takes a dim view of wilderness challenge programmes, McLaren cautions us to look at such
activities as possibly just one element of a more comprehensive approach, or as an incentive
for young people to take part in other, less-attractive programme components (McLaren
2000, p81). Positive aspects of wilderness challenge programmes include the development of
valuable relationships with staff and mentors that should continue beyond the particular
programme, and the chance to experience a pro-social activity that may eventually develop
into a hobby, or even a career.
In Britain detention centres for young offenders were established in the 1940s. The regime
in these centres was “explicitly punitive” (Muncie 2004, p286), yet, by the 1970s, they were
criticised for being too soft, and toughened regimes were instituted in select centres. Despite
research that showed that these ‘short, sharp, shock’ programmes had, at best, no effect on
re-offending, the toughened regimes were later extended to all detention centres. Two
military style ‘boot camps’ were also introduced in Britain in the 1990s. One has since shut
down due to its excessive cost.
New Zealand had it’s own short, sharp shock sentence. Corrective training was a three
month custodial sentence for young offenders instituted in 1981, for young offenders aged
29
16-19 years old. It was a style of “boot camp” involving tough military style discipline and
physical activities. Research throughout the western world demonstrates overwhelming
evidence that boot camps simply do not work, at least in the sense of reducing reoffending.24 A New Zealand Department of Justice study in 1983 found that 71% of
correctional trainees were reconvicted within a single year of release.25 An analysis of
Ministry of Justice data of all people convicted in 1988, found correctional trainees had a
reconviction rate of 92% - the highest of any sentence.26 The ineffectiveness of this
sentence resulted in a reduction in its use and its eventual abolition in June 2002. The fall off
in use of corrective training initially saw an increase in the use of prison sentences from
1997, but the decline in custodial sentences for young offenders continued.
Since 2001, rates of imprisonment of young people in New Zealand have remained fairly
stable at around 50 per year. This contrasts with the position in the United Kingdom where
there has been a sharp increase in the number of young people imprisoned. On 31 January
2003 there were 2890 young people under 18 years old in prison in England and Wales –
more than twice as many as 10 years before this date.27 Is there a lesson here for the adult
court?
Custodial Sentences for Youth Court Cases, 1987–2006 28
350
300
250
200
Number of cases where young offender sentenced to corrective
training or imprisonment (excludes non-imprisonable traffic
offences)
Corrective training
Other imprisonment
Total
150
100
50
19
87
19
88
19
89
19
90
19
91
19
92
19
93
19
94
19
95
19
96
19
97
19
98
19
99
20
00
20
01
20
02
20
03
20
04
20
05
20
06
0
30
9 Segregate young offenders from their families, communities
and victims. Wherever possible, aggregate them together in
treatment facilities and in prison.
The historical development of the British system of borstals provides an object
lesson about how to create a young career offender.
After a ‘shaky start’ in the early 1900s, when sentences of borstal ‘training’
could last as long as three years, and which achieved reconviction rates as
low as 27 to 35 per cent (Muncie 2004, p283), the law governing borstals was
changed in 1961 to make it easier to transfer young people into the
mainstream prison system. This move undermined the training role of
borstals, and their overall regimes became more punitive.
Because borstals were originally set up to cater for less serious offenders, the
increased toughness of the regimes had the effect of exposing younger and
less difficult young people to a life in which “the possibility of being
permanently institutionalised [was] forever present.” (Muncie 2004, p283).
Reconviction rates increased to 70 per cent, and Muncie categorises the now
renamed ‘youth custody centres’ as “mirror images of adult prisons for the
young.”
One response to serious youth behaviour issues is to segregate young people from their
families, schools, communities and non-at-risk youths, and aggregate them in groups with
young people who exhibit similar behaviours. These groups may include group counselling
sessions, alternative education programmes, drug and alcohol programmes, residential
programmes, imprisonment, boot camps, ‘scared straight’ programmes to name a few. In the
past, agencies have been tempted to segregate and then aggregate young offenders because
“[s]uch practices make meeting the needs of deviant youth more financially and logistically
feasible and serve the potential function of protecting non-delinquent youth from harm or
negative influence” (Dodge 2006, p4). Emerging research is showing the opposite; that
segregation and aggregation may serve to spread deviant behaviour.
‘Deviant peer contagion’ refers to “inadvertent negative effects associated with intervention
programmes that aggregate peers in the delivery of a therapeutic protocol, educational
service, or community programme” (Dodge 2006, p14).
The evidence for this phenomenon has been extensively reviewed and compiled in a recent
volume from the United States (Dodge 2006). The contagious effect of placing at-risk youths
together has been labelled deviant peer contagion. The basic thesis is that the placement of a
high-risk young person in group settings with deviant peers has the potential to worsen his
or her problems. Deviant behaviour is concentrated in groups such as gangs where deviant
behaviour is committed. Apart from deviant peer contagion in naturally occurring groups,
31
the recent hypothesis is that this phenomenon occurs in groups designed to treat or reduce
the behaviour. This is called the iotrogenic effect.
Although research directly examining peer influence in justice programme settings is rare,
concern that grouping anti-social youth would result in negative social influence is not new.
In 2002, a commission of scholars was formed in the United States to study the problem of
peer contagion. The following is a summary of the commission’s findings:
Deviant peer contagion happens in naturally occurring peer interaction and is strongest
(Dodge 2006, p367):
•
during early adolescence
•
for youth who have not yet committed themselves to a deviant life
•
for youth who are exposed to other youth slightly more deviant than themselves
•
for youth who interact in unstructured, unsupervised settings
•
for behaviours normally acquired through social process.
The traditional justification for the segregation and aggregation model is the protection of
society, cost savings and optimal treatment for deviant youth (Dodge 2006, p368). The
researchers argue that society’s protection is ‘short-lived’, as these youth soon return to
society. The costs savings also may amount to a false economy as deviant youth who are not
successfully socialised away from a criminal life may cost society more than US$2 million
each (Dodge 2006, p368). The third argument, that aggregation is an optimal treatment
model is not supported by empirical analyses.
There is sometimes an assumption that the power of deviant peer influences could be
harnessed to effect positive change for vulnerable youth. However, Dodge, Lansford, and
Dishion conclude that it is clear from the research that some group-administered
interventions, including ‘scared straight’ programmes have adverse effects on their recipients,
although it is not always clear what aspect of the intervention is responsible for the adverse
effects. However, on the basis of compelling studies involving random assignment, longterm follow up, Dodge, Lansford and Dishion conclude that “under some circumstances the
aggregation of deviant peers subverts the intended benefits of interventions and leads to less
positive, sometimes even negative, outcomes for participating youth” (Dodge 2006, p369).
Placement with deviant peers can also further erode treatment effects. The above authors
referred to deviancy training, which involves reinforcement of deviant behaviour among
peers. This can include laughter, imitation and modelling.
On the positive side, Osgood and Briddell (Dodge 2006, p141) point to studies of multisystemic and multi-dimensional programmes that are non-residential (individualised, not
group) and concentrate on developing connections between young offenders and key adults
in their family and community. The authors quote a study that showed reductions in official
and self-reported delinquency were partly due to the fact that the opportunities for negative
peer influence were reduced (Osgood and Briddell in Dodge 2006, p153). The particular
‘multi-dimensional treatment foster care’ programme in question also succeeded in
improving youth-adult relationships, increasing discipline, and enhancing supervision.
32
In the justice context Dodge, Lansford and Dishion recommend alternatives to incarceration
and deviant group placement. Promising, cost-effective alternatives are Functional Family
Therapy (FFT) and multi-systemic therapy (MST) and Multidimensional Treatment Foster
Care Evaluation.
In summary, this recent research provides valuable insight for the future management of atrisk youth. If it is accepted that the contagious effects of placing young offenders together in
group programmes will tend to cancel out any positive influences of that programme, it can
be argued that better results will be obtained by providing programmes in community
settings, rather than institutions.
It should be made clear that it is not suggested there is no place for prison. Prison will be
necessary for community safety and protection. It is the ultimate sanction and needs to be
available for the most serious offenders. However, while effective for community protection,
prison is generally ineffective for young people’s needs and should always be a last resort and
subject to real restrictions. Further, young people should be contained in dedicated youth
justice residences that provide meaningful activities and programmes to assist them in
dealing with their issues. Generally, youth detention centres are thought preferable to adult
prisons, as a specialist response. Even then, grouping together and effectively warehousing
impulsive and violent young men who are drug dependent and conduct disordered can be
counter productive and enduring rehabilitation is an extraordinarily challenging task.
10 If all else fails, use ‘what works’ for child offenders, but
deliver it badly.
What seems clear is that there is a fine line between ‘what works’, and ‘what
should work, but doesn’t’.
Government agencies, policy analysts, and service providers can all play a
large part in turning a young offender into an adult criminal by ensuring that
even the most highly recommended programme is set up or implemented in a
way that guarantees its eventual failure.
What Andrews (2006) makes clear is that modern principles of rehabilitation
and reintegration can, contrary to their purpose, be platforms for young
offenders to jump into adult prisons with the addition of very little effort on the
part of those responsible for implementing them.
Kaye Mclaren begins her 2000 survey of ‘what works’ by pointing out that it is not the ‘what’
that is important when reviewing successful programmes and interventions for young
offenders, but rather the “shared characteristics of successful approaches” (McLaren 2000,
p53). Programmes that work also need to be done well in order to work best.
33
McLaren surveys many recent studies and concludes that the following are common factors
for successful interventions (McLaren 2000, p57):
•
Having a multi-faceted approach, targeting a number of needs or skill deficits
•
The use of cognitive behavioural techniques that actively teach new skills and attitudes
•
Targeting the causes of offending
•
Teaching life skills to higher risk young people.
In 2000 McLaren quoted Canadian criminologist Don Andrews’ opinion that functional
family therapy, and multi-systemic therapy are the two most promising approaches for young
offenders. Multi-systemic therapy identifies the causes of offending then works across the
young person’s different social systems: family, school, peer group, and neighbourhood to
treat them.
Andrews (2006) advocates strongly for not only doing ‘what works’, but making sure that
what works is done well. The risk-need-responsivity approach (RNR) has three principles:
treat moderate and higher risk cases, target criminogenic needs, and use powerful cognitive
social learning influence strategies. To make this approach as effective as it can be, Andrews
advises service providers to:
•
use the best and most up to date risk/need assessment tools, and provide
differentiated services to young people who have different risks and needs,
•
never let low risk young people come into contact with those with higher risks,
because “the waiting rooms of community correctional agencies and group counselling
sessions are criminal gathering places”,
•
reserve intensive services for moderate and higher risk young people,
•
don’t exclude hard cases just because they require more effort, or tend to self-select
themselves out of particular programmes
•
not target inappropriate needs,
•
don’t see all cognitive behavioural programmes as appropriate.
•
understand that structured social learning and cognitive-behavioural strategies of
influence in the context of high quality interpersonal relationships are best,
•
select, train, and clinically supervise staff according to the skills and competencies
demanded by ‘RNR’,
•
see clinical supervision as a commitment to on-going high level modelling and
reinforcement of relationship and structuring skills,
•
put in place quality assurance practices at the programme and agency level, and
•
Implement ‘RNR’ programmes slowly and carefully, and involve competent
researchers in programme design, delivery, review, and process and outcome
evaluations.
Above all, Andrews counsels programme providers to be realistic and positive when
implementing RNR principles. He says “policy and management must demonstrate hope
and provide direction, and avoid modelling despair and disrespect for RNR adherence.”
Andrews cites studies on both sides of the Atlantic of well-researched family and multisystemic therapy programmes as well as cognitive skills programmes that found that some
34
so-called ‘blueprint’ programmes actually increased re-offending rates precisely because they
failed to follow the key operating principles in what were otherwise successful programmes.
Conclusion
The tenor of this paper may be somewhat tongue-in-cheek, but the fact remains that every
week, Juvenile Courts deal with children who are, all too easily, ‘passing through’ on their
way to appointments with adult courts and adult consequences. This small but significant
procession can only be avoided by applying a series of principled, multi-systemic effective
interventions. These interventions have been developed through decades of research, grass
roots practice, and learning lessons the hard way.
More than anything else, the thrust of this paper is to challenge all involved in child and
youth justice with the following key message. Starting with the application of the principles
of the United Nations Convention on the Rights of The Child (1989) and the well accepted
international ‘soft law’29, let all who are involved in child and youth justice systems, in
whatever roles, hold fast, in this increasingly punitive era, to a principled approach to dealing
with our children and young people who break the law.
35
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Endnotes
The only member states which have not ratified UNCROC are the United States and Somalia.
That ‘soft law’ is non-binding on member states, and consists of The United Nations Standard Minimum
Rules for the Administration of Juvenile Justice 1985 (the Beijing Rules), the United Nations Standard
Minimum Rules for Non-custodial measures 1990 (the Tokyo Rules) and United Nations Guidelines for the
Prevention of Juvenile Delinquency 1990 (The Riyadh Guidelines).
3 www.familyhelptrust.org.nz/downloads/Monitoring-Vulnerable-Families.pdf.
4 Ministry of Justice Youth Justice and Social Sector Delivery to the Children and Young People Convicted in Relation to the
Death of Michael Choy, www.justice.govt.nz/pubs/reports/2003/choy-report/index.html.
5 New Zealand Children, Young Persons And Their Families Act 1989, s198(1)(a).
6 New Zealand Crimes Act 1961 s22(1).
7 Maxwell et al, Achieving Effective Outcomes in Youth Justice / An Overview of Findings, New Zealand Ministry of
Social Development 2004 25.
8 The Beijing Rules, GA res 40/33, annex 40 UN GAOR Supp (No 53) at 207 UN Doc A/40/53 (1985).
9 Monaghan, Hibbert & Moore, Children in Trouble: Time for a Change (Barnados, Essex, United Kingdom, 2003).
10 JUSTICE 1996, Children and Homicide – Appropriate procedures for juveniles in murder and manslaughter cases, London
quoted in G Urbas, The Age of Criminal Responsibility, Trends and Issues in Crime and Criminal Justice, No. 181,
Australian Institute of Criminology, November 2000, 2.
11 New Zealand Youth Court Judges, Submission to the New Zealand Parliament Select Committee considering the
Children, Young Persons and Their Families (Jurisdiction and Orders ) Bill 2009.
12 Ibid.
13 Terrie Moffitt, Life-Course-Persistent versus Adolescence-Limited Antisocial Behaviour, in Developmental
Psychopathology (2nd Ed) Vol 3 Ed Ciccetti & Cohen, Chapter 15, p571.
14 Michael Livingstone, Anna Stewart, Troy Allard and James Ogilvie, Understanding Juvenile Offending Trajectories,
in The Australian and New Zealand Journal of Criminology, Vol 41, No 3 2008, pp345-363.
15 Section 208(a) Children, Young Persons and Their Families Act 1989. This is one of eight specific youth
justice principles in the legislation.
16 Jin Chong, Youth Justice Statistics in New Zealand: 1992-2006, Ministry of Justice, first published in August 2007.
1
2
37
17 Police Youth Aid are a specially trained group of frontline officers, who deal with most apprehensions of
children and young people, as well as advising other police on proper methods and best practice when dealing
with child and youth offenders.
18 Table produced in G Maxwell, Achieving Effective Outcomes in Youth Justice: Implications of New Research for
Principles, Policy and Practice, paper presented at AIC Conference, Sydney December 2003 8. Source: New
Zealand Ministry of Justice.
19 Immediate family members.
20 Extended family group.
21 Wider tribal group.
22 Donald P Roper, Superintendent Potosi Correctional Center, Petitioner v Christopher Simmons (1 March 2005) 543 US
(unreported).
23 R Paton, Summary of Roper v Simmons available in Court In The Act March 2005,
www2.justice.govt.nz/youth/home.asp.
24 Lipsey, MC and Cullen, FT The Effectiveness of Correctional Rehabilitation. A Review of Systematic Reviews Annual
Review of Law and Social Sciences
http://www.ministerievanjustitie.nl/images/Review%20correctional%20rehabilitation%20
Lipsey%20Cullen%202007_tcm34-85922.pdf
25 Walker, W and Brown, R Corrective Training – An Evaluation (1983) published by Department of Justice – Out
of print, but see abstract at http://www.ncjrs.gov/App/Publications/abstract.aspx?ID=03615.
26 Briefing Note on Corrective Training to the Minister of Corrections dated 21 May 1997, page 2
27 Monaghan, G; Hibbert, P; Moore, S; Children in Trouble: Time for change, n7, 33, as quoted in Judge AJ Becroft
Time to teach an old dog new tricks? What the adult Courts can learn about sentencing and imprisonment from the Youth Court
(2006) A speech to the Prison Fellowship National Conference (May 2006), page 5
28 See Becroft 2007, p50.
29 The Beijing Rules 1985, The Riyadh Guidelines 1990, and The Tokyo Rules 1990.
38