The Moral Foundations of the Youth Justice System

Understanding the principles of the youth justice system

Raymond Arthur

• Publisher: Routledge
• Year: 2016
• Topic: Law
• eBook ISBN:
  9781317670261
• Subtopic: Developmental Psychology
• Index: Law

When is it fair to hold young people criminally responsible? If young people lack the capacity to make a meaningful choice and to control their impulses, should they be held criminally culpable for their behaviour? In what ways is the immaturity of young offenders relevant to their blameworthiness? Should youth offending behaviour be proscribed by criminal law? These are just some of the questions asked in this thoughtful and provocative book.

In The Moral Foundations of the Youth Justice System, Raymond Arthur explores international and historical evidence on how societies regulate criminal behaviour by young people, and undertakes a careful examination of the developmental capacities and processes that are relevant to young people's criminal choices. He argues that the youth justice response needs to be reconceptualised in a context where one of the central objectives of institutions regulating children and young people's behaviour is to support the interests and welfare of those children.

This timely book advocates a revolutionary transformation of the structure and process of contemporary youth justice law: a synthesised and integrated approach that is clearly distinct from that used for dealing with adults. This book is a key resource for students, academics and practitioners across fields including criminal law, youth justice, probation and social work.

1

Introduction

This book will consider the question of when is it fair to hold young people criminally responsible and to subject young people to the rigours of the criminal youth justice system. The book will examine whether young people should be treated as responsible moral and legal agents, and it will argue that the current English youth justice system has developed in a way that runs the risk of children and young people being prosecuted for crimes they are too immature to fully understand.

The law, as a system of rules that guides and governs human interaction, is premised on the view that humans can understand and follow rules. The law’s concept of a person is a practical, reasoning, rule-following being who understands the difference between right and wrong. Therefore, when a criminal court convicts the defendant of an offence, it is because he is responsible for his conduct. Effective criminal law requires that citizens understand that certain conduct is prohibited, and that they understand the nature of their conduct and the consequences for doing what the law prohibits (Morse, 1997). Thus, criminal liability ‘should be imposed only on persons who are sufficiently aware of what they are doing, and of the consequences it may have, that they can fairly be said to have chosen the behaviour and its consequences’ (Ashworth, 2003: 158). Hart (1968) similarly emphasises the principle that punishment should be restricted to those who have voluntarily broken the law and stresses that criminal liability is founded upon ‘… the simple idea that unless a man has the capacity and a fair opportunity or chance to adjust his behaviour to the law its penalties ought not to be applied to him’. There is thus an expectation that for an individual to be convicted of a crime, he or she must be a moral agent, as conviction represents a moral criticism (Arenella, 1992; Kadish, 1987; Strawson, 1974). Judgements about whether particular conduct is blameworthy must operate within the framework of substantive moral values.

Adults are presumed to be mature and to have developed their decision-making capacities, and thus, they are held accountable for their behaviour. Under the normal rules of criminal law, an adult’s transgression is deemed less blameworthy than typical offenders if their decision-making capacities are impaired, for example, by mental illness, which is attributable to a condition falling within the M’Nagthen rules (Simester et al., 2010: 796). Currently, in England and Wales the defence of infancy excuses all children below ten years of age from criminal liability, as such children are considered morally irresponsible and lacking blameworthiness. The current law thus assumes all children are sufficiently mature at ten years of age to accept criminal responsibility for their behaviour. Although children between ten and eighteen years may understand the difference between right and wrong from a young age, they do not yet possess the emotional maturity to control their impulsivity and appreciate the consequences of their actions. Children and young people are less mature than adults in terms of the judgement factors of responsibility, perspective and sensation-seeking, and thus experience difficulties in weighing and comparing consequences when making decisions and contemplating the meaning of long-range consequences that will be realised five to ten years in the future (Modecki, 2008; Woolard, 2002). These cognitive difficulties also have implications for young peoples’ ability to be competent defendants in adversarial atmospheres (Woolard, 2002).

Legal theorists have not systematically applied themselves to questions such as these: If young people lack the capacity to make a meaningful choice and to control their impulses, should they be held criminally culpable for their behaviour? In what ways is the immaturity of young offenders relevant to their blameworthiness? Should youth offending behaviour be proscribed by criminal law? This book seeks to address these questions by exploring international and historical evidence on how societies regulate criminal behaviour by young people and undertaking a careful examination of the developmental capacities and processes that are relevant to young people’s criminal choices. The book will examine the following questions:

• Why do we attribute criminal responsibility to children and young people?
• What is the function of the criminal law/criminal justice system and how does it apply to young people?
• Are young people fully responsible moral and legal agents?
• In what way is immaturity relevant to blameworthiness?

I will critically analyse the implications of these questions for policy-making in England and Wales and conclude by proposing changes to the present law.

Young children are certainly moral objects, in that the stance we take towards them is moral; hence, they do need an exemption from liability (Horder, 1996). Their culpability depends crucially on their powers of moral reasoning and judgement, and of self-control. How far are young people capable of grasping the wrongfulness of their conduct in question, and of controlling their own conduct in the light of their moral understanding (Zimring, 2000)? In England and Wales, children and young people defined in law as criminally responsible have historically, and presently, been addressed by the criminal justice system and the criminal law in ways which are largely similar to how adults are treated. Yet the expansion of the concept of childhood in our culture, such that the child has been defined as a person under eighteen years of age in the Children Act 1989 and the United Nations Convention on the Rights of the Child, and the extension of young people’s transition to adulthood, requires fundamental changes in the way the criminal law addresses young people. A more synthesised and integrated approach is needed to the way in which those under 18 are dealt with by the police, the courts and the youth justice system – an approach which is clearly distinct from that for dealing with adults. My argument throughout this book is that the youth justice response needs to be reconceptualised in a context where one of the central objectives of institutions regulating children and young people’s behaviour is to support the interests and welfare of those children, unlike traditional criminal law, which focusses upon providing redress, and retribution, against harm to others via punishment. Braithwaite and Pettit (1990: 45) talk of the need to posit a ‘satiable’ goal for criminal law, which motivates ‘respect for uncontroversial limits’ on the law’s powers, and does ‘not make voracious demands’ that threaten those limits. Zimring (1998: 479) suggests that the law should make substantial efforts to punish youth violence without eliminating an offender’s chances to grow into adulthood in near-normal circumstances. If institutions addressing children and young people had a different conception of the implication of responsibility for children from the implications of responsibility for adults, and they were oriented towards the welfare of all children, including victims and offenders, these objectives could be realised and could encourage changes in the cultural perceptions of young people who break the law.

This book aims to provide a systematic analysis of how we think about young people who offend and the criminal laws used to respond to them. To answer this question, we need a positive account of the aims and functions of the youth justice system. Chapters 2 and 3 will explore the historical evidence on how societies regulate criminal behaviour by young people to reveal how lawmakers have moved closer towards a regime of imposing full criminal responsibility on young people. These chapters will employ perspectives from contemporary social and political theory to analyse changing rationales for responding to youth offending. Chapter 2 will examine the invention of childhood, how concepts of youth, childhood and adolescence have been developed, and how they connect to concepts of crime and delinquency. Childhood has not always been a time in the life cycle to which much importance has been attached. Philippe Aries initiated the debate with his famous statement that ‘in medieval society the idea of childhood did not exist’ (Aries, 1962). Not long after ‘a tardy weaning (… at about the age of seven)’, he says, the child entered the adult world. In the sixteenth century, he continues, adults were beginning to see children as a ‘source of amusement and relaxation’, but not until the seventeenth century did the difference between the two ages begin to be appreciated. By the mid-eighteenth century, a modern concept had emerged with the child occupying a central place in the family. Much of the evidence for this thesis was derived from the visual arts, literary texts and manuals, styles of dress and the use of the names of dead children for later births in the same family. In Victorian times, the criminal justice system was very severe and the legal system did not differentiate on the basis of age. However, during the nineteenth century, special emphasis was placed upon separating adult and young offenders in order to avoid the moral contamination of the younger offenders. Gradually this led to the establishment of separate, highly controlled custodial institutions, and eventually separate specialised courts, in which young offenders could be reformed and reclaimed. Chapter 2 will provide the foundations for understanding why separate systems of justice were established for young people in the nineteenth century and remain today in the twenty-first century.

Chapter 3 will examine the policies that make up the complex modern youth justice system, and trace the historical development of the legal response to youth crime to reveal how lawmakers have moved from a desire to protect young people from the deprivation and abuse suffered in the adult criminal justice system and to steer them to productive and crime-free lives towards a regime of full criminal responsibility. Chapter 3 will also examine the conflict between welfarism, punitiveness, legalism and localism, and consider the complexities, contradictions and controversies inherent within these conflicts. Chapter 3 will identify how this conflict influenced the development of the youth justice system throughout the twentieth century and up until the present. Chapter 3 will consider the extent to which the current youth justice system recognises the vulnerability of young people. Chapter 3 will conclude that the contemporary youth justice system in England and Wales uses an adult template to measure young people’s citizenship and ignores young people’s particular vulnerabilities. The current approach to young people in trouble is artificial and lacks realism, and effectively holds that children in trouble are undeserving of the privileges, protections and entitlements of childhood.

Chapter 4 will build on this critique by demonstrating that the contemporary youth justice system in England and Wales is failing to fulfil its obligations under international law to establish a system of youth justice which protects the rights of all children, promotes their development, ensures their best interests are a primary concern at all times and that the child’s views are taken into account in all decision-making affecting them, and guarantees children’s reintegration into society. Instead, in England and Wales, the youth justice system tends to focus primarily on retaliatory responses to youth crime. Young offenders have been conceptualised as violent predators warranting retribution, rather than as wayward children in need of guidance. Chapter 4 will examine the international laws which the UK has ratified and consider how these laws influence the way in which young people who offend are treated within the English youth justice system. These international laws establish a framework of principles and minimum standards for legislation, policy and practise concerning young people. Chapter 4 will also examine the extent to which the UK is complying with its international law obligations. This chapter will also compare and contrast the English youth justice system with those of various European countries. Attempts to compare systems of youth justice are fraught with difficulties because the classification and recording of crime differs, and different countries have developed different judicial systems for defining and dealing with young offenders. Also, it is always important not to mistake governmental rhetoric for what actually happens on the ground. However, even a cursory look at some of the least incontrovertible data gives evidence to those trying to promote child protection and welfare in the English youth justice system. England and Wales have one of the lowest ages of criminal responsibility in the EU, which range from ten in England and Wales; to fifteen in Denmark, Finland and Sweden; and eighteen in Belgium and Luxembourg. The most recent comparative data from the Council of Europe show that England has one of the highest percentages of its prison population under twenty-one years of age. Although many European countries added punitive elements to their legislation in the 1990s, none have added such a dramatically punitive regime as in England and Wales. England’s closest neighbours have taken steps to increase their ages of criminal responsibility. In Scotland, the age of criminal responsibility remains at eight years of age, but the age at which children can be prosecuted in adult criminal courts has been raised to twelve (section 52, Criminal Justice and Licensing (Scotland) Act 2010). This change brings Scottish law into line with jurisdictions across Europe and will mean that children between the ages of eight and twelve years will instead be held to account for any offending behaviour through Children’s Hearings. In Guernsey, the Children Law 2008, effective since January 2010, significantly reformed arrangements for dealing with children in conflict with the law. The age of criminal responsibility has been raised to twelve years and the criminal court has been largely replaced by the Child Youth and Community Tribunal (CYCT), closely modelled on the Scottish Children’s Hearing system. In the Republic of Ireland, the Children Act 2001 raised the age of criminal responsibility in Ireland from seven to twelve years (section 52). This change means that children up to the age of twelve cannot be charged with a criminal offence. Chapter 4 will consider whether English and Welsh children are so much more wayward and insubordinate than Scottish, Irish and European children that their offending behaviour deserves a particularly tough punitive response.

Chapter 5 examines the dimensions of adolescent development that are important to youthful criminal involvement and that distinguish adolescent choices from those of their adult counterparts. Chapter 5 will provide a careful examination of the developmental capacities and processes that are relevant to adolescent criminal choices – namely scientific, neurological, psychological and sociological evidence that indicates that teens are less competent decision makers than adults because typical features of adolescent psychosocial development contribute to immature judgement. Children and young people are still developing in terms of cognitive capacity and emotional maturity, and are often much more impulsive than adults. Young people’s cognitive capacities for reasoning and understanding are less developed than adults. This contributes to the tendency to make choices that are harmful to themselves and others. Additionally, the way in which psychosocial factors influence decision-making and the kinds of choices adolescents make depend, in part, on the social and family context in which young people find themselves. Much of youth offending behaviour represents a breakdown by the family, schools and child to teach and learn, respectively, the proper conformity to lawful social order. Many young people who end up in custody have a history of professionals failing to listen, assessments not being followed by action and nobody taking responsibility. Children involved in crime, particularly persistently, have often had difficult, deprived backgrounds and serious, multiple problems in terms of their school achievement, psychological health and family life. Chapter 5 will conclude that these developmental differences render children and young people less responsible than adults, and that these children are the most seriously in need of adult help and guidance and the least ready to assume the responsibilities associated with autonomous individuality. These children are the most disadvantaged, have the poorest educational experiences, and are more likely to suffer from poor health, including mental health and substance misuse. This conclusion raises questions regarding the underlying justification for the youth court.

Chapter 6 will examine the impact of criminalising and punishing young people. England and Wales lock up more young people than any other country in Western Europe; these young people are incarcerated in overcrowded conditions with little scope for rehabilitation and education. Large numbers of these young people sentenced to custody do not pose a serious risk to the community; and because their incarceration leads to broken links with family, friends, education, work and leisure, they may become a significantly greater danger upon their release (Goldson and Peters, 2000). When a young person is in custody, that person is making no reparation to the victim or society. Child imprisonment makes little, if any, positive effect in preventing offending, and associated patterns of reconviction with regard to children, following release from all forms of custodial institution, are exceptionally high (Goldson, 2005: 82). Hagell and Hazel (2001) also noted, with concern, that child imprisonment compounds the likelihood of reconviction, and that this has been a recurrent and enduring historical theme of youth imprisonment. Chapter 6 will conclude that, in England and Wales, we punish too many young people, too harshly and destructively. Chapter 6 will also examine research into what is known about publ...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements
• 1 Introduction
• 2 The origins of childhood and the youth justice system
• 3 New Labour, new youth justice, new century
• 4 The impact of international law
• 5 Young people who offend
• 6 Impact of criminalisation
• 7 Young people, the youth court and the right to a fair trial
• 8 The youth justice system and theories of punishment
• 9 Conclusions
• Index