Deterring Children From Crime Through Sentencing: Can It Be Justified?
| Published date | 01 August 2023 |
| DOI | http://doi.org/10.1177/14732254221104896 |
| Author | Thomas Crofts,Enys Delmage,Laura Janes |
| Date | 01 August 2023 |
| Subject Matter | Original Articles |
https://doi.org/10.1177/14732254221104896
Youth Justice
2023, Vol. 23(2) 182 –200
© The Author(s) 2022
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DOI: 10.1177/14732254221104896
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Deterring Children From
Crime Through Sentencing:
Can It Be Justified?
Thomas Crofts , Enys Delmage
and Laura Janes
Abstract
Children receive sentences underpinned by deterrence theory in many jurisdictions, as demonstrated by
recent cases in Australia and England and Wales. This article explores whether deterrent sentencing is
justified from a legal, criminological and neuroscientific perspective. Analysis of international instruments
suggests that deterrent sentencing conflicts with children’s rights, particularly the obligation to factor in the
child’s age and best interests. There is scant criminological evidence that deterrent sentencing works for
children. The principles that underpin deterrent sentencing are at odds with the way children make decisions
according to recent neuroscientific evidence. Principles of deterrence should not apply when sentencing
children.
Keywords
children, children’s rights, criminology, deterrence, sentencing, youth justice
Introduction
Deterrence is a well-established principle in sentencing. It can be described as being gen-
eral or specific. With the former, the deterrent effect is aimed at people other than the
individual who has offended, with the aim of preventing others from offending by virtue
of the threat of punishment. With the latter, the deterrent effect is aimed at the individual
who has offended, in order to deter that person from further offending by virtue of the
experience of punishment (Chalfin and McCrary, 2017). This article considers how the
issue of deterrence is dealt with when sentencing children in Australia and England and
Wales. It begins with a review of case law and legislation to determine the extent to which
deterrent sentences can be applied to children. It then examines whether deterrence can be
justified from a legal, criminological and neuroscientific perspective. To do this the article
explores how compatible deterrence is with developing children’s rights standards,
Corresponding author:
Laura Janes, London South Bank University, 103 Borough Road, London SE1 0AA, UK.
Email: info@laurakjanes.co.uk
1104896YJJ0010.1177/14732254221104896Youth JusticeCrofts et al.
research-article2022
Original Article
Crofts et al. 183
particularly the obligation to treat children in conflict with the law in a way that takes
account of their age, their right to reintegration into the community and their best inter-
ests. It then assesses research on the effectiveness of deterrence and recent neuroscientific
evidence in relation to childhood development and the impact that this can have on the
effectiveness of deterrence.
Judicial Consideration of Deterrent Sentencing for Children
In Roper v Simmons (2005), a case which heralded the end of the death penalty for chil-
dren in the United States of America, the court found that: ‘[l]ack of maturity and an
underdeveloped sense of responsibility are found in youth more often than in adults and
are more understandable among the young. These qualities often result in impetuous and
ill-considered actions and decisions’ (Roper v Simmons, 2005). The Supreme Court went
on to state that ‘the absence of evidence of deterrent effect is of special concern because
the same characteristics that render juveniles less culpable than adults suggest as well that
juveniles will be less susceptible to deterrence’ (Roper v Simmons, 2005).
This case from the United States Supreme Court has been acknowledged and relied on
across many jurisdictions in judgements dealing with how the law should treat children’s
behaviour. However, as the following analysis of recent cases in Australia and England
and Wales illustrates, there has not been a consistent approach in relation to the issue of
whether or not the principle of deterrence should apply to children.
Throughout Australia different approaches are taken regarding whether deterrence is
thought to be an appropriate factor in sentencing a child. In Victoria, the Sentencing
Advisory Council (SAC, 2012: 60–61) (references omitted), has noted that:
. . . the assumption that child offenders make a rational choice to engage in a particular course
of conduct does not sit well with the philosophy underlying the operation of the Children’s
Court. Nor does it sit well with the research on adolescent brain development . . . The
establishment of a different sentencing regime for children is based on the premise that children
may not yet have the capacity for rational decision-making. Children are assumed to ‘lack the
degree of insight, judgement and self-control that is possessed’ by adult [rational] persons and
may often act impulsively on the ‘pur of the moment’ without weighing up the consequences of
their actions. The imposition of general deterrence as a sentencing principle is even more
problematic when one considers the large number of child offenders who suffer from mental
illness, cognitive impairment or substance abuse issues.
In accordance with this statement, general deterrence is not regarded to be a relevant
principle when sentencing a child in a Children’s Court in Victoria and South Australia. In
Victoria, the Children, Youth and Families Act (2005) (Vic), section 362 expressly states
the matters that are to be taken into account in determining the sentence for a young person
appearing before a Children’s Court. In CNK v The Queen (2011) the Victorian Court of
Appeal confirmed that the deliberate choice of language used in section 362, which includes
reference to specific deterrence, is ‘a “clear indication of legislative intention” to exclude
general deterrence’ (CNK v The Queen, 2011: [10]). It was found that general deterrence
is ‘unconnected with the particular offender’ and, as a sentencing consideration, is ‘entirely
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