Youth Justice and Penality in Comparative Context

Barry Goldson, Chris Cunneen, Sophie Russell, David Brown, Eileen Baldry, Melanie Schwartz, Damon Briggs

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9780815374459
• eBook ISBN: 9781351242110
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

This book represents the first major analysis of Anglo-Australian youth justice and penality to be published and it makes significant theoretical and empirical contributions to the wider field of comparative criminology. By exploring trends in law, policy and practice over a forty-year period, the book critically surveys the 'moving images' of youth justice regimes and penal cultures, the principal drivers of reform, the core outcomes of such processes and the overall implications for theory building. It addresses a wide range of questions including:

• How has the temporal and spatial patterning of youth justice and penality evolved since the early 1980s to the present time?
• What impacts have legislative and policy reforms imposed upon processes of criminalisation, sentencing practices and the use of penal detention for children and young people?
• How do we comprehend both the diverse ways in which public representations of 'young offenders' are shaped, structured and disseminated and the varied, conflicting and contradictory effects of such representations?
• To what extent do international human rights standards influence law, policy and practice in the realms of youth justice and penality?
• To what extent are youth justice systems implicated in the production and reproduction of social injustices?
• How, and to what degree, are youth justice systems and penal cultures internationalised, nationalised, regionalised or localised?

The book is essential reading for researchers, students and tutors in criminology, criminal justice, law, social policy, sociology and youth studies.

1

The conceptual and empirical co-ordinates of comparative youth justice and penality

Introduction

The extended and diversifying reach of modern criminal justice systems and, in particular, patterns of prison expansionism have comprised defining features of many western nation-states since the 1980s, not least so, in Australia and in England and Wales. Yet research into this phenomenon has, until relatively recently, privileged adults over children and young people.¹ We set out in this book to examine critically criminal justice and penality with specific regard to the punishment of children and young people, and to consider how penal cultures have changed, and are changing, with respect to them. The term ‘penality’ is taken to refer to the whole system of punishment, ranging from its philosophies, laws and methods, to its material effects and the wider social, cultural and political environments in which it is located. Analytically, we have engaged with the concept of penality to locate its constituent phenomena in their contemporary contexts; to encompass the broad complex of contemporary theories, laws, policies and practices that, taken together, frame youth justice, alongside the wider system of meanings, beliefs, ideas and symbols through which people understand and make sense of it. We seek to explore the specificities of penal cultures as they apply to children and young people in conflict with the law and, in particular, we aim to analyse both continuities and changes in the evolution and development of key legal, political, policy and social dimensions of youth justice and penality, from the early 1980s to the present.

Inter- and intra-jurisdictional convergence and divergence

We initially imagined the comparative foundations of this book as a means of making sense of (what appeared to be) some strangely anomalous aspects of youth justice and penality. At the time when we first conceptualised the project (late 2010), youth penal detention rates in Australia were relatively stable (Australian Institute of Health and Welfare (AIHW) 2011a: 120) and, over the longer term, the rates of juvenile detention were lower in 2010 than they had been in 1981 when national data was first available (Richards and Lyneham 2009). This pattern of stability, if not decline, stood in stark contrast to the temporal patterning of adult imprisonment in Australia, where rates had been growing dramatically and consistently over several decades (Cunneen et al. 2013). Moreover, the child and youth imprisonment trends in Australia were strikingly different to what was occurring over broadly the same period in England and Wales, where penal custody for children and young people was being used more frequently than in most other industrialised democratic countries in the world (Youth Justice Board 2004). Indeed, the number of child prisoners in England and Wales had more than doubled between 1993 and 2008, and the jurisdiction was being described as ‘one of the most punitive youth justice sites in the western world’ (Goldson 2010: 170). Given a common legal heritage, coupled with a range of contemporary youth justice policy transfers between Australia and England and Wales, we might, on the face of it, have expected patterns of youth penality in the respective jurisdictions to converge and to follow broadly similar trajectories. Instead, what we observed were conspicuous differences and divergences that could be seen across the penal continua; from initial criminalisation through to penal confinement.

Our initial reading of the situation in Australia during this period, therefore, was that – despite the uneven application of diversionary processes (between States and Territories (see Chapters 2 and 7) and especially between Aboriginal and Torres Strait Islander and non-Indigenous children (see Chapter 5)) – the principles of juvenile diversion were holding firm; child and youth imprisonment had declined steadily over the 1980s and 1990s and, during the first decade of the 21st century, only relatively modest increases were apparent. Conversely, our reading of circumstances in England and Wales during the corresponding period was that – despite essentially stable patterns of recorded youth crime – the front-end of the system was witness to ‘multiplying and increasingly interventionist powers and processes’ that gave rise to substantial net-widening, whilst the back-end of the same system evidenced ‘significant growth and diversification of intensive forms of surveillance and custodial responses’ that inevitably produced considerable penal expansion (Goldson and Muncie 2006a: 98).

The situation took a curious turn in the years that followed, however. Between May 2009 and May 2019, for example, the child and youth prison population in England and Wales dropped dramatically from 3,006 to 830 (HM Prison and Probation Service 2019). In contrast, over the 4-year period 2009–2013, the youth prison population in Australia remained relatively stable (AIHW 2013) and despite signs of some modest fluctuation, there has been no consistent trend of either penal contraction or penal expansion over the most recent longer term (AIHW 2013, 2014, 2015a, 2016, 2017a, 2018a, 2019). The overall effect of these comparative trends and the intrinsic anomalies within and between Australia and England and Wales, therefore, added new levels of complexity to the comparative project. It also reconfirmed the dynamic, diverse and differentiated nature of juvenile justice², and its fluid and contested forms (Goldson and Muncie 2006a). More fundamentally, it reinforced the criminological insight that there is only a limited relationship between the prevalence and nature of crime and the type and intensity of punishment, thereby underlining the value of a comparative approach to understanding the myriad drivers, parameters and possibilities of youth justice and penality.

From the outset we aimed to compare, selectively, four Australian states – New South Wales (NSW), Victoria (VIC), Western Australia (WA) and Queensland (QLD) – with England and Wales (E&W). The four Australian states were selected on the basis that NSW locks up more children and young people than the other states and has the largest youth justice sector; Western Australia has the highest rate of Aboriginal and Torres Strait Islander child and young prisoners; Victoria has the lowest rate of child and youth penal detention among the larger jurisdictions and Queensland is a ‘middle range’ jurisdiction. These are also the four most populous states in Australia, accounting for more than 85 per cent of the nation’s population. England and Wales was selected from the three United Kingdom (UK) jurisdictions (England and Wales, Northern Ireland and Scotland), because it is the largest by some considerable distance.³

Disproportionate penality and the injustices of youth ‘justice’

Despite some apparent divergence signalled by differing trajectories of youth justice and penality in our comparative sites, there are also some obvious points of convergence. Youth justice intervention and youth penality is applied unevenly and disproportionately, and injustices prevail and persist. Indeed, certain identifiable demographic and population groups have been, and remain, particularly negatively affected by youth justice intervention and youth penality in Australia, England and Wales and elsewhere, including Aboriginal and Torres Strait Islander and black and minority ethnic children and young people; girls and young women; children and young people known to social welfare and child protection agencies; children and young people with mental health disorders⁴ and/or cognitive/neuro-disabilities⁵ and children and young people living at the acute ends of social and economic adversity and exclusion.

Aboriginal and Torres Strait Islander and black and minority ethnic children and young people

In Australia, Aboriginal and Torres Strait Islander children and young people consistently and persistently find themselves at greater risk of penal detention than non-Indigenous youth. In 2015–2016, for example, 59 per cent of the total number of children incarcerated in Australia were Aboriginal and Torres Strait Islander young people (AIHW 2017b), despite comprising only about 5 per cent of the nation’s child/youth population (AIHW 2019: v). In fact, Aboriginal and Torres Strait Islander children and young people are 23 times more likely to be in detention than their non-Indigenous counterparts (AIHW 2019: 9) and if account is taken of the total population of children and young people under some form of youth justice supervision (community or custodial) ‘the level of Indigenous over-representation (as measured by the rate ratio) rose over the 5 years from 2012–13 to 2016–17’ (AIHW 2018c: v). Although it is vitally important to acknowledge the different historical conditions and colonial contexts that distinguish the experiences of Aboriginal and Torres Strait Islander children and young people in Australia and black children and young people in England and Wales, notable similarities also prevail in terms of the ‘racialisation’ of ‘justice’ (see Chapter 5). In this sense – and although there are some noteworthy differences in degree – the broader patterns of Aboriginal and Torres Strait Islander over-representation that are found in Australia are mirrored in England and Wales where black children and young people are seven times more likely than their white counterparts to be stopped and searched by the police, three-and-a-half times more likely to be arrested and five times more likely to be in prison (Jones and Singer 2008; May et al. 2010; Webster 2015; Webster 2019).

Girls and young women

There are also similarities in the significant increase in the rate of girls’ and young women’s detention in Australia and, even more strikingly, in England and Wales (especially in the closing decade of the 20th century and the opening decade of the 21st century).⁶ Between 2004 and 2008, for example, the rate of detention of girls and young women in Australia rose by 60 per cent (Richards and Lyneham 2009: 14). In the state of NSW alone, the average daily number of girls and young women in penal detention increased by 82 per cent between 2004 and 2005 and 2008 and 2009 (Noetics 2010: 166). Similarly, in England and Wales, albeit over a longer period of time, there was a 365 per cent increase in the numbers of girls and young women sentenced to custodial orders between 1993 and 2002, a period during which the corresponding increase for boys and young men was 68 per cent (Gelsthorpe and Sharpe 2006: 57).

Children and young people known to social welfare and child protection agencies

There is also a significant body of research from Australia and England and Wales showing that children who have been neglected and/or abused and who have contact with social welfare and child protection agencies are more likely than others to come into contact with youth justice systems (Khan and Wilson 2010; Blades et al. 2011; HM Inspector of Prisons 2011; Laming 2016; AIHW 2016a and 2016b; Fitzpatrick and Williams 2017; McFarlane 2017; Colvin et al. 2018; Gerard et al. 2019).

Australian data reveals that children subject to Care and Protection Orders are 20 times more likely than other young people to also be under juvenile/youth justice supervision (AIHW 2016b). The same study found that 41 per cent of children and young people in penal detention were also involved in the child protection system in the same year (AIHW 2016b). Young people with experiences of child protection and out-of-home-care (OOHC)⁷ placements are also more likely than others to come into contact with the youth justice system at a younger age. Twenty-one per cent of children who first became the subjects of youth justice supervision aged 10–13 years were also the subjects of child protection notifications. The corresponding proportion of children of the same age who were subjects of youth justice supervision but not subjects of child protection notifications stood at 6 per cent (AIHW 2012a: vii). Moreover, three in five (60 per cent) of children aged 10 years at their first youth justice supervision were subjects of child protection notifications (AIHW 2016b: vi). The compound effect of the child protection and youth justice relation further disadvantages Aboriginal and Torres Strait Islander children and young people who are more likely than their non-Indigenous counterparts to be engaged with social welfare agencies from a younger age; with median ages of 7 and 8 years, respectively (AIHW 2016a: 16). Aboriginal and Torres Strait Islander children and young people are twice as likely as their non-Indigenous counterparts to be placed in OOHC before the age of 16 years (Haysom et al. 2014: 1009), and Aboriginal and Torres Strait Islander boys and young men are the most likely group to be both in OOHC and under youth justice supervision (AIHW 2016b: 10).

In 2002, the UK government’s Social Exclusion Unit reported that 27 per cent of the adult prison population had been received into care as a child (Social Exclusion Unit 2002) and, more than a decade later, HM Inspectorate of Prisons (2016a) found that almost 40 per cent of children and young people detained in the juvenile/youth secure estate⁸ had been in care, and approximately 70 per cent were known to child care and social work services (Jacobson et al. 2010). Similarly, Redmond (2015) found that 37 per cent of children and young people incarcerated in Young Offender Institutions (YOIs) were ‘looked after’ and 52 per cent of children detained in privately managed Secure Training Centres (STCs) were currently, or had previously been, ‘looked after’. More recently, the Laming Review found that although only 1 per cent of all children and young people in England, and 2 per cent in Wales, are received into care, approximately half of children and young people held in penal custody have experienced the child care system (Laming 2016: 2).

The over-representation of children and young people known to social welfare and child protection agencies within youth justice systems looks set to continue, if not worsen. The number of children – especially Aboriginal and Torres Strait Islander young people – entering OOHC in Australia has increased substantially in recent years (Dudgeon et al. 2014a; AIHW 2015b, 2016a). Similar patterns are also visible in respect of ‘looked after children’ in England and Wales (Department for Education 2016; National Statistics 2016), where the Howard League for Penal Reform (2016a) has reported that the number of children and young people entering the care system has reached its highest point in 30 years and the Children’s Commissioner (2019a: 1) has revealed that ‘the number of teenagers aged 13 or over growing up in care rose by 21% between 2012/13 and 2017/18’.

Children and young people with mental health disorders and/or cognitive/neuro-disabilities

In Australia and in England and Wales, research indicates a high prevalence of mental health disorders and/or cognitive/neuro-disabilities amongst children and young people engaged in youth justice systems (Baldry et al. 2018). The NSW Young People in Custody Health Survey (YPiCHS), for example, has revealed that 83 per cent of children and young people surveyed had symptoms consistent with psychological disorder and 63 per cent had two or more psychological disorders (Justice Health and Forensic Mental Health Network (JH&FMHN) and Juvenile Justice NSW 2017). Similarly, 23 per cent of children and young people detained in the juvenile/youth secure estate in England and Wales were classed as having a mental illness and 47 per cent reported being referred to a mental health service (Gyateng 2013). Studies have also found that 17 per cent of children and young people in penal custody in Australia and 23 per cent in England and Wales have intellectual functioning in the low range (IQ<70) indicating intellectual impairment, and 38.5 per cent in Australia and 36 per cent in England and Wales fall into the borderline range of intellectual functioning (IQ 70–79) (Harrington and Bailey 2005; Kenny and Nelson 2008; Haysom et al. 2014; JH&FMHN and Juvenile Justice NSW 2017). Research from both Australia and England and Wales has further revealed that many children and young people in contact with yo...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of figures
• Glossary of terms
• About the authors
• Acknowledgements
• 1 The conceptual and empirical co-ordinates of comparative youth justice and penality
• 2 Recent histories and contemporary trends in comparative youth justice and penality
• 3 Populist discourses and public representations of ‘young offenders’
• 4 Enduring violations: Youth justice, penality and human rights
• 5 The racialisation of youth justice and penality
• 6 The disabling effects of youth justice and penality
• 7 Re-thinking comparative youth justice and penality: From global/supranational trends to sub-national/ local practices
• 8 Conclusions, reflections and prospects
• Bibliography
• Index