Young Offenders and Open Custody

Tove Pettersson

• Publisher: Routledge
• Year: 2017
• Print ISBN:
  9781138120921
• eBook ISBN:
  9781317310051
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Young offenders given custodial sentences in youth institutions constitute an important group in the context of crime prevention research, given that offenders within this group are at high risk of reoffending or continuing with a criminal career into adulthood. This book explores the significance of custodial openness for children and youths and how this environment affects future desistance from crime.

In Young Offenders and Open Custody Tove Pettersson provides powerful support for the view that the experience of more open custodial forms during the youth custody sentence is of significance both for providing incarcerated youths with a more humane environment and for the likelihood of a positive outcome following their release. Building upon detailed interviews with convicted youths and staff at the special approved homes in Sweden, this book offers unique insights into the effect of punishment on young offenders and their understanding of social control.

Drawing upon quantitative and qualitative data, this book examines levels of reoffending over time among youths sentenced to custody, and considers the impact of open sentences. This book will be useful reading for students and researchers engaged in youth and juvenile justice, juvenile delinquency, and sentencing and punishment.

1 Introduction

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;

(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

(UN Convention on the Rights of the Child, Article 37)

The commission of very serious offences by children gives rise to a crime policy dilemma. On the one hand, the justice systems of many countries require such serious offences to be sanctioned by means of imprisonment or some other form of custodial sentence. On the other hand, there are powerful reasons, and a strong desire, to avoid subjecting children to imprisonment and other forms of incarceration. Imprisonment produces a large number of negative consequences and the effects of incarceration are particularly problematic for children. Through the adoption of the United Nations Convention on the Rights of the Child we have accepted a responsibility to protect and promote the rights of children in various ways.¹ This includes a requirement that children should only be subject to incarceration as a last resort. Children are nonetheless sentenced to prison and other forms of incarceration throughout the world. This also raises a large number of questions of relevance to crime policy, some of which are addressed in this book. The book focuses on children who have committed very serious offences, often in the form of serious violent crime, and who have been given custodial sentences as a result. The book examines how incarcerated children and youths experience this situation, how the damaging effects of incarceration might be reduced through efforts to introduce higher levels of custodial openness in various forms, and the significance of custodial openness for the everyday institutional lives of incarcerated young people and for their subsequent re-offending. The book also examines how these children think about their lives subsequent to release, and about their opportunities for living what they themselves view as a better life in the future.

Youth Justice in Sweden, an overview

The way children and youths who commit offences are dealt with varies between different countries (Hazel 2008). Sweden follows what has been labelled the welfare model both in its response to young offenders (Hazel 2008), and in its justice system more generally (Cavadino and Dignan 2006), and there is substantial consensus with regard to avoiding the use of imprisonment for youths (Nordlöf 2005, Proposition 1997/98: 96). When criminal justice sanctions are required, these are as far as possible implemented outside the framework of the prison and probation system (Nordlöf 2005). In Sweden, the age of criminal responsibility is 15, which is relatively high viewed in an international perspective (Hazel 2008). The fact that someone has not reached the age of criminal responsibility does not mean that nothing happens if the individual commits an offence however, but rather that society’s response to the offences is implemented within the framework of the social services legislation (Holmberg 2013). For persons aged between 15 and 17, there are special restrictions with regard to the imposition of criminal justice sanctions (such as the use of shorter custodial sentences), which is also the case, although to a more limited extent, for offenders up to the age of 20 (Nordlöf 2005, Holmberg 2013). There are also a number of sanctions whose use is restricted to young offenders: youth care, youth service and youth custody. While there is a deeply rooted tradition in Sweden that children who commit offences should primarily be dealt with within the framework of the social services, a number of reforms have been implemented since the late 1990s with the objective of increasing the prominence of the just deserts principle in relation to young offenders (Holmberg 2013, Tärnfalk 2007, Hazel 2008). These developments reflect a more general trend in the field of Swedish crime policy (Tham 2001, von Hofer and Tham 2013, Cavadino and Dignan 2006), which has also been witnessed in other countries such as the UK and the USA (Garland 2001). In spite of these changes, the various sanctions imposed on young people are still often implemented within a social services framework (Tärnfalk 2007), and Sarnecki and Estrada (2006) have argued that the Swedish response to young offenders has retained its humanitarian focus over recent years, despite a shift towards more punitive attitudes in society at large.

The youth custody sanction² was introduced in Sweden in 1999 with the objective of reducing the use of imprisonment for persons below the age of 18. The government bill (1997/1998: 96) outlining the legislation presents a number of reasons for the introduction of the new sanction. One important argument was the goal of meeting the requirements of the Convention on the Rights of the Child, which states that there must be an alternative to imprisonment for individuals under the age of 18, that prison sentences should only be used as a last resort, and that children subjected to custodial sentences should not be incarcerated together with adults. The bill also states that imprisonment increases the risk that youths will perceive the sanction as confirming a view of themselves as criminals and that prison sentences are associated with special risks for young people. The bill notes further that it is not reasonable to punish young people as severely as adults. At the same time, it also argues that there is a need for a sanction for young offenders who commit very serious offences that “to a reasonable extent provides a deterrent to crime, clearly marks fundamental boundaries and furthermore meets society’s requirements for fairness in the field of sanctioning practice” (p. 153). The restrictive use of custodial sanctions was to continue, which meant that the conditions required for a youth custody sentence were to be the same as they had been for imprisonment. This meant that there must be no possibility of imposing an alternative sanction and that there must be exceptional cause for the imposition of youth custody. While the length of the youth custody sentence was to be specified in proportion to the penal value of the offence, the bill emphasises that the youth’s care needs should be ascribed major importance in relation to the implementation of the sanction (p. 96). Thus while the sentence length was not to be dependent on the youth’s care needs, the contents of the period of youth custody were, which is in line with the traditional Swedish focus on social services care provision in society’s response to young offenders.

The state-administered special approved homes were deemed the most appropriate institutions for the implementation of youth custody sentences, and since 1999 youths sentenced to youth custody have served their sentences in one of these institutions. The mission of the special approved homes was, and continues to be, that of assuming responsibility for and providing care to youths, who are (compulsorily) placed in them by the social services as a result of serious offending, substance abuse or other socially destructive behaviour. While these institutions are for the most part secure, the implementation of criminal justice sanctions is thus new to them, and the extension of their mission in this way means that they have had to adapt their work to meet requirements that differ somewhat from those placed on them within the framework of their work for the social services.

The quantitative part of the study on which this book is based includes the youths sentenced to youth custody between 1999, when the sanction was introduced, and 2006. The qualitative aspects of the research are based on interviews conducted with staff working at special approved homes and with youths sentenced to youth custody who were serving their sentences in these institutions. The responsibilities specified in Section 2 of the Youth Custody Act³ are of particular relevance to this research:

The implementation of youth custody sentences is to be formulated so as to promote the convicted individual’s adjustment to society and to counteract the harmful consequences of incarceration.

Opportunities to spend time outside the institution and placements in open, as against secure, units may constitute measures of this kind, which can both promote the youth’s adjustment to society and reduce the harmful consequences of incarceration.

The introduction of youth custody has largely produced the desired effect in the sense that youths aged 15–17 who commit serious offences are very rarely sentenced to a prison term. Only a very small number of youths in this age-group are still sentenced to prison each year. Figure 1.1 describes the number of youths sentenced to youth custody, prison, probation in combination with imprisonment or forensic psychiatric care for the period since the mid-1990s. At the same time, previous research shows that the introduction of youth custody has led to an increase in the length of the custodial sentences served by this group of young people (Sarnecki and Estrada 2006, Kühlhorn 2002, Pettersson 2010a, 2010b). In practice, the increased sentence length means an even longer period spent incarcerated by comparison with the time when youths in this age-group were sent to prison, since prison inmates are released on parole once they have served two-thirds of their sentences, which is not the case for youth custody sentences. When this is also taken into account, the length of custodial sentences has more or less doubled (Pettersson 2010a, 2010b).

Research has also shown that the introduction of youth custody resulted in a net-widening effect, with youths who committed offences that would not previously have resulted in a prison term now being sentenced to youth custody (Granath 2007, Pettersson 2010b). Figure 1.2 shows further that the proportion of incarcerated youths aged 15–17 (a group which since 1999 has primarily been comprised of individuals sentenced to youth custody) has increased substantially since the introduction of youth custody in relation to both the number of youths in this age-group in the population as a whole and the number of 15–17-year-olds convicted of offences. The 5–6 years following the introduction of the youth custody sanction saw these proportions increase to significantly higher levels, after which these levels started to decline.

Thus the effect of the new legislation has been that youths are no longer sentenced to prison, but that the number of youths sentenced to incarceration has increased, and the time they spend incarcerated has also increased. As can be seen from Figure 1.1, however, the number of individuals sentenced to youth custody has declined substantially over recent years, and Figure 1.2 shows that this decline can also be seen in relation to both the number of 15–17-year-olds in the population and the total number of youths convicted of offences. It is possible that part of this decline may be due to a reversal of the above described net-widening effect, as the courts have come to realise that youth custody sentences were in part being imposed for offences for which the sanction was not intended.⁴ The decline in the number of youths sentenced to incarceration is not limited to Sweden, however (Bateman 2012, Jacobson et al. 2010). Nor is the decline in custodial sentences limited to youths. The number of individuals sentenced to imprisonment has also declined in Sweden. Statistics from the Swedish Prison and Probation Service⁵ show a decline in prison numbers for the majority of years between 2004 (5,722 prison inmates on October 1st) and 2014 (4,319 prison inmates on October 1st). Von Hofer and Tham (2013) have shown that this decline is also found when the number of individuals sentenced to prison is viewed in relation to the size of the Swedish population.⁶

Figure 1.1 Numbers of youths aged 15–17 sentenced to incarceration by the Swedish criminal justice system 1995–2014.

Figure 1.2 Incarceration in the population aged 15–17 (per mille), youths convicted of offences in the population aged 15–17 (per cent), and proportion of convicted 15–17-year-olds sentenced to incarceration (per cent). Sweden 1995–2014.

Given the findings of previous research, which have shown incarceration to produce criminogenic effects (Cullen et al. 2011, Durlauf and Nagin 2011, Bales and Piquero 2012, Nagin et al. 2009, Nieuwbeerta et al. 2009, Gendreau et al. 2000, Andersen 2015, Andersen and Andersen 2012) an increase in the number and length of custodial sentences is unfortunate to say the least, and the issue of strategies to reduce the negative effects of incarceration is an important one.⁷ Research on the institutional treatment of young people with antisocial behaviour problems show that one important factor for achieving positive treatment results is that this treatment is conducted in forms that are as open as possible, given existing conditions (Andreassen 2003). A previous follow-up study of individuals sentenced to youth custod...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of figures
• List of tables
• Acknowledgements
• 1 Introduction
• 2 Total institutions, discipline and power
• 3 Studying open custody, re-offending and institutional everyday life: a methodological synthesis
• 4 Youth and staff narratives about youth custody sentences
• 5 Youth and staff narratives about the time subsequent to youth custody
• 6 Re-offending and custodial openness
• 7 The significance of custodial openness: empirical and theoretical insights
• Index