Does the “last chance” sentence work? Ten years of failures and successes under a juvenile intermediate sanction in Canada
| Author | Denis Lafortune,Isabelle F.-Dufour,Marie-Pierre Villeneuve |
| DOI | 10.1177/1462474517724142 |
| Published date | 01 December 2018 |
| Date | 01 December 2018 |
| Subject Matter | Articles |
Article
Punishment & Society
2018, Vol. 20(5) 539–561
! The Author(s) 2017
Does the ‘‘last chance’’
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sentence work? Ten
DOI: 10.1177/1462474517724142
journals.sagepub.com/home/pun
years of failures and
successes under a
juvenile intermediate
sanction in Canada
Isabelle F.-Dufour
De´partement des fondements et pratiques en e´ducation, Universite´ Laval, Canada
Marie-Pierre Villeneuve
School of Social Work, Universite´ Laval, Canada
Denis Lafortune
School of Criminology, Universite´ de Montre´al, Canada
Abstract
Deferred custody and supervision order, an intermediate sanction which came into
effect in 2003, had never been the subject of a scientific study. In the absence of
research data, judges would give the sentence without knowing the outcome. To fill
this gap, this study presents the failure rates (technical violations, revocations and new-
crime violations) and success rates of all young Quebecers who completed a deferred
custody and supervision order between 1 June 2003 and 31 May 2012. As with studies
that examined similar sentences elsewhere in the world, success rates are relatively low.
Suggestions are made to limit failures associated with this type of juvenile intermediate
sanctions.
Keywords
intermediate sanctions, new-crime violations, revocation, technical violations, Young
offenders, Youth Criminal Justice Act
Corresponding author:
Isabelle F.-Dufour, Universite Laval, 2320 des Bibliothe`ques, Pavillon des sciences de l’e´ducation, #746,
Quebec, QC G1V 0A6, Canada.
Email: isabelle.f-dufour@fse.ulaval.ca
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Punishment & Society 20(5)
Introduction
Over the last thirty years, juvenile justice systems have been considerably trans-
formed in Europe and North America (Junger-Tas, 2008). For those with an
‘‘Anglo-Saxon orientation’’ (e.g. Canada, United States of America, United
Kingdom), the last decades gave rise to systems ‘‘with growing emphasis on pun-
ishment and a secondary role for rehabilitation’’ (Junger-Tas, 2008: 511). Those
systems rely more extensively on alternative sanctions in response to juvenile delin-
quency (Junger-Tas, 2008). Problems of language and labeling have made it diffi-
cult for researchers (and the public) to clearly define what is an alternative
(intermediate sanction) because ‘‘they have often been described with reference
to what they are not, rather than what they are: common examples are
‘non-custodial sanctions’ or ‘alternatives to prison’’’ (Robinson, 2016: 102). They
could also be described as filling ‘‘the near vacuum of purposive and enforced
punishments between imprisonment used excessively and probation used even
more excessively’’ (Morris and Tonry, 1990: 3). What they have in common is
they keep the offender in the community, they impose a series of conditions that
restrict the offender’s liberty and they are enforced through varying degrees of
supervision. Since alternative sanctions differ considerably from one country to
another, they remain difficult to grasp. Furthermore, they attract so little attention
from scientists that they are ‘‘in the shadows and out of the spotlight of punishment
and society scholarship in the last 20 years’’ (Robinson, 2016: 102). One might
suggest that this situation is caused by compelling data showing that the majority
of intermediate sanctions ‘‘does not work’’ (Latessa et al., 2014: 85), but is this the
case for all of them? And if so, is it not worth explaining why they do not work?
Those are the background questions that led to this study. Before proceeding to the
analysis of the ‘‘last chance’’ sentence we must better situate this intermediate
sanction within the Canadian juvenile justice system.
The Canadian Youth Criminal Justice Act (YCJA) and
the deferred custody and supervision order (DCSO)
Canada is a federation made up of three territories and 10 provinces, with a popu-
lation of approximately 35.1 million people, of which 10% are adolescents (Allen
and Superle, 2016). Canadian criminal laws are adopted by the federal Parliament
and each province and territory is responsible for enforcing them. Criminal respon-
sibility is set at 12 years old, but juvenile delinquents (up to 18 years old) are treated
separately from adult offenders under the YCJA, which came into effect in 2003.
Under the previous act, the Canadian youth crime rate had declined steadily after it
plateaued in the late 1990s (Dauverne, 2013). Nonetheless, Canadian juvenile delin-
quents had the highest incarceration rate in Western countries (Her Majesty the
Queen In Right of Canada, 2013), they received harsher sentences than would
adults who committed similar offences (Roberts, 2003) and incarcerations were
mostly for short periods of time and for minor offences (Doob and Sprott, 2005).
F.-Dufour et al.
541
It thus became imperative to find alternative solutions to sanction youth delin-
quency, hence the implementation of the YCJA.
This new act emphasizes the principles of accountability and proportionality in
sentencing, ‘‘with rehabilitation subject to’’ proportionality considerations (Bala
and Roberts, 2008: 51). According to Article 39 of the YCJA, custodial sentences
can only be imposed if:
(a) the youth has committed a violent offence; (b) has not complied with previous non-
custodial sentences; (c) has committed an indictable offence for which an adult is liable
to a prison sentence of more than two years; or (d) it is an exceptional case where the
youth has committed an indictable offence, where the aggravating circumstances sur-
rounding the perpetration of it are such that the imposition of a sentence not involving
custody would violate the principles and objectives of the YCJA.
In summary, the courts can only order incarceration when the youth has com-
mitted a serious offence or has breached the conditions of two previous commu-
nity-based sentences (Sprott, 2012).1
While significantly reducing the possibility of resorting to the incarceration of
adolescents, the YCJA also provides an alternative sanction, the DCSO, which is
more restrictive than probation. DCSO can be used when all required conditions
for incarceration are not met. According to Article 42 (5) of the YCJA, the court
can only order that sentence if: (a) the youth has been convicted of an offence other
than a serious violent offence; and (b) the order respects the prioritary principle of
rehabilitation and it is proportionate to the offence committed. That sentence is
often imposed to a youth who would have normally been incarcerated, but made
significant progress towards his rehabilitation between the time of the arrest and
sentencing. The court grants him a ‘‘last chance’’ (Carrington et al., 2011: 307).
A DCSO has a maximum duration of six months and includes conditions to which
the youth must comply. If he fails to do so he could be remanded into custody.
Certain conditions are mandatory and automatically included in the order such
as: (1) keeping the peace and being of good behavior;2 (2) being under the supervi-
sion of the person appointed by the youth court; or (3) not owning or possessing
firearms. The court may also include optional conditions in order to promote the
social reintegration of the youth. Thus, it may require that the youth: (1) makes
reasonable efforts to obtain and maintain employment; (2) continues his studies or
other training programs deemed appropriate; (3) ‘‘compl[ies] with any other condi-
tions set out in the order that the court considers appropriate, including conditions
for securing the young person’s good conduct and for preventing the young person
from repeating the offence or committing other offences’’ (art. 105 (3)).
When this study began, there were no data on the number and the nature of the
conditions included in DCSO, but in principle ‘‘none of the imposed conditions are
designed to be punitive, but are chosen with the purpose of social reinsertion of the
youth’’ (Carrington et al., 2011: 317). Considering, however, that punitive condi-
tions were quickly added to the equivalent conditional sentences in the adult system
542
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(F.-Dufour et al., 2009) and that some conditions have the sole objective to ‘‘teach
a lesson’’ to young offenders (Sprott, 2012: 326), this study aims to assess whether
those ‘‘punitive practices’’ are being used with youth under DCSO and to assess the
effectiveness of this more intensive form of community supervision in terms of new-
crime violations (NCV). NCV has limitations in the assessment of sentences for
youth (Richards, 2011), but has the advantage of being systematically recorded in
the criminal records of the vast majority of Western countries, facilitating com-
parisons. However, the lack of data on NCV among youths under a DCSO in
Canada is surprising (Carrington et al., 2011). For the legal authorities, this infor-
mation is of great importance, because judges find themselves in a situation where
‘‘to some extent, they sentence in the dark, not knowing the possible consequences
of the imposition of those sentences’’ (Carrington et al., 2011: 321).
Existing literature on youth intermediate sanctions
Available data on the implementation of the YCJA shows a 60% decrease in the
youth incarceration rate since 2003 (Juristat, 2015). Yet, there is only a small pro-
portion of youth who ‘‘avoided’’ incarceration by getting a DCSO, since partial
available statistics (Carrington et al., 2011) report 3000 to 5000 cases per year in
Canada (Brennan, 2012).
In Quebec, youth represent about 8% of the...
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