Young offenders and state intervention: Issues of control and support for parents and young people
| Author | Terry Carney |
| Published date | 01 March 1989 |
| Date | 01 March 1989 |
| DOI | http://doi.org/10.1177/000486588902200102 |
| Subject Matter | Original Articles |
22 (1989) 22 ANZJ Crim
YOUNG OFFENDERS AND STATE INTERVENTION:
ISSUES
OF
CONTROL AND SUPPORT
FOR
PARENTS
AND YOUNG
PEOPLE
Terry Carney"
Introduction
Strategies for responding to young offenders remain in flux. Society's inherent faith
in and optimism about its young, in whose hands the future lies, sustains a
willingness to innovate when designing programmes for young people. Juvenile
justice is frequently at the forefront of change in criminal justice. Yet there are also
countervailing pressures. The young are convenient scapegoats for societal unease
about perceived (or real) reductions in levels of individual safety or the integrity of
personal property and livingspace. Policy is also cloudedby inevitable,
but
at times
poorly resolved, tensions between a welfare and a justice approach; by
discrepancies between intended goals and actual outcomes (especially in areas such
as diversion); and finally, by lack of clarity in the balance of responsibility for
intervention which is to be borne respectively by the young person, their family and
close community, and agencies of the state.
These are not easy questions. They touch on the underlying or contextual values
which inform the system.
Values and Principles
There
are several ways of specifying a value base to guide the juvenile justice
system. One approach is to model the combinations (or patterns) of components
which might comprise the system, to identify ideal types. Most recently Freiberg
Fox and Hogan (1988) applied such an analysis to juvenile sentencing. They located
the Australian States and Territories on a spectrum, the bookends for which are the
"welfare" and the "justice" models. Between these extremes the intermediate
positions are held by what were termed the "substantive justice", "procedural
justice" and "partial justice" models (with the former closest to the welfare position
and the latter closest to the justice model) (id: 60).
Justice
Precepts
So far as the juvenile justice system itself is concerned, Freiberg et al see the
elements of the full justice model as entailing that:
. . . (t)here should be a clear demarcation[between] welfare and criminalcases with the twobeing dealt
with in separate tribunals if possible. The focus in the criminal jurisdiction is on the offence not the
offender, rehabilitation being a subsidiary goal
....
Uniformity of punishment betweenoffenders based
on their culpability and the gravityof theiroffence ispreferred to individualised and therefore disparate
treatment. Sentences should be determinate, specific and proportionate to the offence
...
the model
stresses the openness and accountability of the wholesystem. . . . This requires open courts and a system
of due process
....
The justice it offers
...
is past oriented, proportional, consistent, visible, certain,
equal treatment under well defined legalrules. (id: 58)
*LLB (Hons), Dip Crim (Melb), Ph D (Monash); Acting Professor of Law, Monash University,
Victoria; formerly Chair of the Victorian Child Welfare Practice and Legislation Review.
YOUNG OFFENDERS &STATE INTERVENTION 23
Its closest neighbour, the "partial justice model", retains full due process
protections, but tempers the substantive content of the law by including a heavy
discount for the mitigating effect of youth. This is the model which they believe best
characterised the recent reform package adopted in NewSouth Wales (and prior to
that the Northern Territory). It is also the template for the Victorian Review and
the Children and Young Persons Bill 1988 which is largely based on that Report
(Equity and Social Justice, 1984).
This, then, is the "justice" strand of a possible constellation of values.
Equity Precepts
Another approach is to think in terms of the rights (or responsibilities) of young
people, their families of origin, and state agencies. A rights analysis is much more
apposite to a consideration of child welfare (protection) issues. But it is the coinage
in which some of the public debate on young offenders is conducted. And it may
also hold some limited utility in its own right. Rights, though, are inherently rather
diffuse, and are prone to fall victim to overstatement. Thus Bennett, commenting
on the 1986 Draft Convention on the Rights of the Child, warned against the
'''policy-isation' of childrens rights" consequent on allowing legislative drafters to
"denominate ideals, aspirations and social policy as 'rights'" (Bennett, 1987: 36).
Even so it is helpful to recognise Eekelaar's conceptualisation, which distinguishes
the three types of rights which form a subset of the wider category. These comprise
what he terms "basic interests", "developmental rights" and "choice rights" (id:
170).
Writing about the second of these three, or what he terms "developmental
rights", Eekelaar tentatively suggests that they embrace the proposition that
all children have an equal opportunity to maximize the resources available to them during their
childhood (including their own inherent abilities) so as to minimizethe degree to which they enter adult
life affected by avoidable prejudices incurred during childhood. (ibid)
There are three elements to this. First, the social commitment to, and optimism
concerning, the potential of the young. Secondly, a concern to minimise the legacy
of harm, stunted potential or stigma carried forward by a young person on reaching
adulthood. And, thirdly, it encapsulates a view about the responsibilities owed by
the state to actively promote the interests of the young. For this is a social right of
citizenship about which Eekelaar speaks; it is a species of T H Marshall's rights of
citizenship, which were advanced as the definitive essence of the relationship
between the contemporary state and the citizens whose interests the state represents
(Marshall, 1973: 67-127). Rights which elsewhere have been described as the
"equality principle" (Dingwall and Eekelaar, 1984: 106); or which are embodied in
notions of social justice and equity.
Equity, then, is the second of the possible foundation values. But these two are
arguably insufficient on their own.
Towards a Synthesis: Equity and Social Justice for Children Families and
Communities?
The Report, on which the pending legislative reforms in Victoria are grounded,
took a wider view of the value base (Equity and Social Justice, 1984: 10-13). The
Report enunciated seven basic principles. The starting point was a commitment to
greater equality in the distribution of opportunities and resources. Structural issues
such as poverty, unemployment, inequalities of access to education and skills, and
social alienation, it was said, cannot be ignored as factors which contribute to levels
of juvenile crime. The causal associations are weak and are fraught with
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