Youth Justice: Theory & Practice

Jane Pickford, Jane Pickford

• Publisher: Routledge-Cavendish
• Year: 2012
• ISBN:
  9781135343361
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This innovative text examines contemporary issues in youth justice in the light of the sweeping reforms introduced by the Crime and Disorder Act 1998 and the Youth Justice and Criminal Evidence Bill 1999.

It brings together current debates in both the practice and theory of youth justice intervention and, in the light of the governments inter-agency approach to the problem of youth criminality, provides an inter-disciplinary examination of these discussions. Including contributions from both academics, magistrates and social work practitioners, it is a useful text for students of criminology, law and social work, as well as a valuable resource for youth justice practitioners.

CHAPTER 1

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VISUALISING THE JUSTICE OF THE YOUTH JUSTICE SYSTEM: PERSPECTIVES AT THE CENTURY'S END

Dr Wayne Morrison

Crime and intolerance occur when citizenship is thwarted; their causes lie in injustice, yet their effect is, inevitably, further injustice and violation of citizenship. The solution is to be found not in the resurrection of past stabilities, based on a nostalgia and a world that will never return, but on a new citizenship, a reflexive modernity which will tackle the problems of justice and community, of reward and individualism, which dwell at the heart of liberal democracy.¹

It is not unique to state that we require a reflexive grasp of penal and social practices. But Jock Young's recent work, The Exclusive Society, is distinguished by the intensity with which such a plea focuses on the difficulty of grasping the nature of justice in our contemporary world. We inhabit a globalised social order in which the hopes and assumptions that have underpinned social activism for the last 200 years – the period many scholars have come to call modernity – lie open to deconstructive analysis and sceptical doubting. Each image of social advancement and economic prosperity – and there are many in the ‘advanced Western world’ – can be contrasted with images of social despotism and despair. The losers in the ‘justice’ of world capitalism are not merely those whose political élites do not play the game according to the correct market rules (of leading disciplined selves operating with rational calculation). We need only turn to the tragedies of the Balkans, Rwanda or Sierra Leone for confirmation of this. If the US is taken as the exemplar of the ‘free’ world, then it appears that the price of liberty is increasingly a new gulag of imprisonment, with penality the most obvious (although prison is rendered professionally discreet) example of the social divisions of late modernity.

Attempting a reflexive grasp on the practices of ‘justice’ is problematic. We need to locate our perspectives, but there are many possible stories to tell and many sites to describe. Our topic is the youth justice system, an interrelation of various people, discourses, institutions, contexts and outcomes: what is its ‘justice’? Deciding on this justice is a decision regarding the acceptability of the balance and nature of those interrelations. How is the question of justice decided, and what kind of decision making process is it? In The Politics, Aristotle argued that agreeing upon a ‘rule of justice’ was fundamental for a polity to live in a harmonious whole, but it was also the most difficult decision making process to set up. To act justly is to treat different people equally, according to settled criteria of judgment. But the criterion of equality, the measure of justice, was an essentially political judgment and, in politics, everyone starts from the position of relating to others from ‘oneself’. In judging ‘others’, one has already, implicitly, judged oneself, and Aristotle warns that the majority of people are bad judges of themselves. Yet, if one cannot obtain objectivity from oneself, how is common agreement, arising from intersubjectivity, possible? One needs to create an ‘objectivity’ of judgment – a mechanism of seeing. Therefore, ascertaining justice always requires a prior agreement upon some science of recognising, some epistemology, and agreeing upon justice is only possible within the settled canons of that ‘way of seeing things’.

Thus, while the search for justice is a product of human desire (why bother if we do not want justice or do not want to act justly?), it requires (social) knowledge. Yet, we are doomed never to have total knowledge. Only the gods could possess such a thing. Justice is always a human creation – a social relation. Administering justice reflects the (im)possibility of a true knowledge of humankind, situations and things. Deciding justly is dependent upon the techniques of telling the truth, but the issue of telling the truth may be historically contingent – a factor dependent upon processes of inclusivity and exclusivity, and of decisions over relevance and rhetoric.

In other words, deciding whether the system is just is always a process undertaken in changing circumstances of time and space, time and space understood both through ‘personal experience’ and the mediation of discourses. A reflexive concern with justice requires us to ask three things: (a) what characteristics of time and space are we concerned with?; (b) what are the characteristics of relevant discourses?; and (c) who are the personnel involved? However, such an exercise in typologising is immediately compromised, for identifying who, what and where changes in time. Moreover, the processes of discursive argumentation are neither so successful nor so finite that they reduce competing perspectives to a nullity. Instead, a perspective appeals to an audience, links with sets of assumptions and already implicit judgments lodged in common dispositions and concepts, in the common sense of different groupings. Who are the people concerned with youth justice? We have three main sets: (a) the personnel who staff the system; (b) the audiences, that is, the public, academic commentators and public officials; and (c) the targets, that is, the selves of the youth who are the grist of the system.

Who are these targets: the selves of the youth? We know these selves through personal experience, the discourses of journalistic endeavour and scholarly reflection. The literature of youth justice requires a prior literature of delinquency, and this literature must achieve a resonance with its audiences. Thus, the literature of delinquency is replete with anecdotes and case studies (for example, Aichhorn 1925; Burt 1925; Goddard 1927; Bowlby 1946; and Belson 1975), with attempts to identify typical adolescents (for example, Griffin 1985) and to locate the subject's self, in relation to wider social structures and flows (for example, Hall's 1905 work was entitled Adolescence, Its Psychology and Its Relations to Physiology, Anthropology, Sociology, Sex, Crime, Religion and Education). The production of this literature occurs in specific social and cultural settings. The American ‘sub-cultural’ studies (for example, Cloward and Ohlin 1961; Cohen 1955) give a different picture from the British (for example, Davis's 1990 work was aptly entitled Youth and the Condition of Britain). The kinds of selves illuminated by modernist social science range from the idea of a self-interested individual – whose behaviour is to be shaped into conduct suitable for civil society, whose passions are to be guided to protect society from the destructive effects of anarchic behaviour (the Hobbesian tradition) – to the benign sheet, the potentially virtuous self who needs to be both protected from the impositions of a corrupt social order and subjected to processes which lift, elevate, perfect, purify and realise an implicitly social humanity (the Rousseauian tradition). Classic scholars on delinquency (for example, Hirschi, who formulated his ‘control’ theory in 1969) draw upon both traditions, implying that it was society's duty to get the twin strategies of socialisation and control right, or else the unsociable sociability of the human condition would become rampant.

For their part, ‘most people involved with the “youth justice system” like to feel that they are doing something worthwhile’ and want to feel that they are acting justly. However, this basic desire does not lead to agreement regarding what exactly worthwhile activity is. Indeed, one of the major institutional faultlines that runs through ‘youth justice’, and this seems to hold across the Western world, is between those who see it as an arena of activity that should be imbued with the caring and welfare ethos of the social services, and those who see the legalistic ethos of individualism, rights, responsibilities and punishment as more appropriate. But few of those who belong to the legalistic camp believe that pain ought to be imposed on children and young people for pain's sake. Instead, such pain is ‘punishment’ and is sanctioned because ‘justice’ requires it.

This distinction between welfare and punishment is the most common orientating dichotomy running throughout literature on youth justice. Two dominating modes of objectivity are contrasted, but accepting this as the crucial operating distinction in youth justice is an oversimplification. Moreover, the traditional dichotomy reflects a misplaced confidence in the discourses produced by those operating in the arena to adequately describe what is really going on. The discourses of welfare and legalism/punishment might offer the participants comforting sets of glasses to orientate themselves and create a confidence in their acting justly, but we may well need to step back somewhat and adopt more external views. Whether, however, such external views can be reduced to certain master views which easily locate the social role of youth justice is another matter. Where does one begin?

THE DEPENDANT NATURE OF THE YOUTH JUSTICE SYSTEM

The first point is that even to talk of a ‘youth justice system’ is to give an idea of self-containment and closure which is misleading. It would be more correct to call it an institutional sub-system of the overall social system.

The second point is that the juvenile/youth justice system is the product of modernity. The term ‘modernity’ does not simply denote the ‘modern’ or ‘contemporary Western societies’, but reflects the idea that there are features to ‘modern’ social life that are essentially unique and radically different from the ways in which human life had previously existed. ‘Modernity’ designates both cultural features – in that it witnesses a vigorous war waged by philosophy and sociology against tradition – and socially constructive features. Specifically, modernity denotes the creation of societies which understand themselves to be artefacts, products of humankind's social and cultural energies, and not of any ‘natural law’ or ‘God's design’. In modernity, criminal justice systems replace, in significant aspects at least, the network of social control in which traditional values are inscribed, and we come to trust and accept modern systems to the extent that they achieve their ‘rationally defined’ purpose(s) to act justly. The justice of such systems is a question of the development of rational discourse(s) which structure our perceptions of role and performance. These discourses enable us to agree, for example, that the practice of the juvenile/youth justice system is such that the offender/child/delinquent is being fairly treated according to the relevant criteria of judgment. Conversely, other discourses tend to upset or critically undermine such acceptances. What have been the dominant discourses, or as some call it, the master-narratives, of juvenile/youth justice?

THE MASTER-NARRATIVES OF JUVENILE/YOUTH JUSTICE

First, what is the raw material to be understood? At the beginning of the 19th century, children and young persons received no special treatment by the penal authorities.² Indeed, as Ariès (1962) has suggested, childhood and adolescence were not recognised as specific stages of individual development requiring specialised and intensive surveillance or intervention. During the course of the century, various attempts were made to create a separate system and various specific juvenile ‘schools’ or reformatories were set up.³ Around the turn of the 20th century, special ‘informal’ courts, enjoying wide discretion (either juvenile courts or child welfare boards), were constituted and widespread agreement was reached that special provisions ought to be enacted for young people in trouble with the law. This criminal jurisdiction became complemented by a civil jurisdiction system under which children in ‘moral danger’, or latterly ‘in need of care and protection‘, were taken into care or sent to special schools. The ‘system’ expanded but, in time, was criticised for unreasonably incarcerating thousands of young people, either in the guise of protecting them and acting in their best interests, or responding to offences committed by juveniles in a way that was far harsher than an adult would receive. Arguments were either raised for ‘children's rights’ or for the need to ‘divert’ young people from the system.

The system has always been a site of social rituals, tensions, conflicting perspectives, various interacting bodies and competing goals which amalgamate the claims of diverse sets of interest groups and discursive practices. The practices have varied over locality and changed over time. On the one hand, some have been, and are, legal practices which are usually a formalised, specialised activity and are the object of manuals and legal codes. On the other hand, others have been made up of the activities of social science professionals and volunteer participants, of decision making processes laden with operational discretion, common sense opinions and the opinions of those with supposedly specific expertise.

To reiterate, the usual way to depict these tensions and competing interests has been to demarcate the competing ideologies of ‘legalism/justice/punishment’ and ‘welfare’. To act justly under the welfare orientation demands that we diagnose the underlying problems of the young person, and either treat those problems in some therapeutic fashion, by removing the person from his or her harmful environment, or provide intensive supervision. Legalistic justice represents the traditional demand for appropriate punishment when an offence has been committed, but also requires procedural fairness and the protection of the innocent against unfair decisions. These two orientations have never been freestanding, but are deeply embedded in the grand narrative of modernity's progressive overcoming of the past and its creation of just societies.

THE NARRATIVES OF SOCIAL PROGRESS

The battles between proponents of welfare and legalism have largely been understood within a dominant narrative organised around the motif of social progress. Thus, the development of a juvenile justice system is portrayed as part of the process whereby the child was recognised as a separate personality, needing to be saved from the harshness of the adult system; increasing attention was also paid to preventing children from becoming criminals. Until recently, this dominant narrative gave a formal history of the development of justice systems in modernity in terms of the progressive march of humanitarian impulses, rationalisation and the victory of ‘scientific knowledge’ over superstition, tradition and ignorance.⁴ The meta-narrative of social progress held central roles for commitment to knowledge, the idea of the progressive advancement of knowledge and the expectation of a future which would be better than the past.⁵ It depicted juvenile justice, largely, as originating with a critique of the (philosophically) universal claims of liberal criminal justice, a critique which had the practical outcome of differentiating juveniles from adults in the name of humane treatment and social justice. To a large extent, this history of juvenile justice parallels the distinction in many criminological works between the approaches of classical (neo-legal) and positivist (social scientific) criminology, holding that positivism had its greatest success in the creation and legitimation of a separate system for juveniles. These two approaches contain separate sets of assumptions on human nature, offending and policy recommendations on responses to juvenile deviancy and offending. Adults ‘ought’ to be treated as legal subjects, but, as the child did not possess sufficient rationality and autonomy to fit the idea of the modern legal subject, to treat him or her as if what he or she did was clearly socially unjust. In some versions, it was not that punishment was ruled completely inappropriate, it was rather that pu...