Youth Justice: Past, Present and Future
| Author | Dr Stephen Case, Sean Creaney, Jo Deakin, Professor Kevin Haines |
Introduction
Youth justice is a messy, complex and contested area (Smith, 2007) that has seen dramatic changes in its nature and implementation over recent decades. Developments in youth justice policy and practice during this period have been characterised by a hotchpotch of punitive and welfarist interventions rooted in a range of confused philosophies, ideologies and approaches. Moreover, in contemporary youth justice systems (notably, but not limited to, the system in England and Wales), there is a lack of focus on the voice and views of children in shaping assessment, planning, intervention, supervision and review processes. Rather than privileging children's insights - in an engaging and participatory way - it appears that the Youth Justice System (YJS) and its processes often marginalize their voices through unequal power relations: what children who offend say is often not accorded sufficient recognition. Children and their supervising Youth Offending Team (YOT) workers are finding that being involved in the YJS is a disempowering and disengaging experience (Haines and Case, 2015; Case and Haines, 2015). Against this backdrop recent academic and practice literature has called for a move towards an alternative philosophy incorporating a range of more positive, rights-based, children first approaches (Haines & Case, 2015; Goldson & Muncie, 2015; National Association for Youth Justice, 2015; Robinson, 2014; Smith, 2014a, 2014b).
We will outline a number of contemporary tensions and conflicts in relation to youth justice law, policy and practice: the highly political context of youth justice, the criminalising risk, prevention and early intervention agendas and the unique and specialised nature of youth justice services. We go on to outline and explore a specific focus for future developments and 'creative possibilities', the Children First, Offenders Second (CFOS) model of positive youth justice, which incorporates a range of more positive, rights-based approaches and emphasises diversion, positive promotion and children's participation and engagement in youth justice practices and services.
The volatile political context of youth justice
The history of youth justice is one of 'conflict, contradictions, ambiguity and compromise… act[ing] on an amalgam of rationales' (Muncie & Hughes, 2002:1). It has been an area steeped in public and political controversy, generating intense media interest. Swinging between the 'caring ethos of social services and the neo-liberalistic ethos of responsibility and punishment' (Muncie & Hughes, 2002:1), youth justice policy is often largely dependent on political imperatives with regard to which approach is favoured resulting, largely, in policies shaped by the political rhetoric of punitiveness (Downes & Morgan, 2012).
Nonetheless, the welfare perspective has been present, in the eyes of the law at least, since the 1930s. More specifically, section 44 of the Children and Young Persons Act 1933 states that: 'every court in dealing with a child or young person who is brought before it either as an offender or otherwise shall have regard to the welfare of the child or young person'. Throughout the 1960s and into the 1970s welfarism was widely evident in youth justice policy and practice responses (see Blagg & Smith, 1989). The Children and Young Persons Act (1969) placed the welfare of the child as paramount as it sought to deal with youth crime through civil mechanisms under the supervision of social workers, as opposed to via the labelling processes of criminal justice. Such responses were criticised by those on the right of the political spectrum who argued that the system was being 'too soft'. Conversely, throughout the 1970s, children were often exposed to excessive 'welfare' treatments based on perceived need. In much contemporary practice children were 'doubly punished' in that they were sentenced for their poor circumstances alongside the criminal act, which inevitably led to a disproportionate sentence (Morris, et al. 1980). There were also critics amongst the academic community who described such 'wide-ranging' approaches as unfair and discriminatory that often led to unintended consequences or in other words 'more harm than good' (Thorpe, at al., 1980). Indeed, it was felt that welfarism enabled legal safeguards to be abandoned and due process to be violated by 'leaving children to the discretionary, permissive powers of professionals while subjecting them to indeterminate measures without recourse to review or accountability' (Scraton & Haydon, 2002:311).
A resulting pendulum swing away from 'welfare' and towards justice-based notions of 'just desserts' and 'anti-welfarism' became manifest in the 1990s. During this time there was an already worried public as the media reported heavily on car crime ('joy riders') and those seemingly offending with impunity ('bail bandits'). Here political parties were engaged in somewhat of an 'arms race' regarding who could be the more 'tough'. The Conservatives responded fiercely by introducing 'tough legislation' namely the Criminal Justice Act 1993 and the Public Order Act 1994 (Rogowski, 2013). Similarly a re-branded 'New' Labour Government responded by setting out its 'no more excuses' agenda in the late 1990s, which heralded a 'new youth justice' (Goldson, 2000) of punitiveness, criminalisation, responsibilisation and interventionism with a focus on the offence and the offender (as opposed to the whole child).
Criminalising children through risk-focused prevention and early intervention
In 1997, the Labour administration swept to power and in so doing moved away from longstanding debates between welfare and justice and towards risk-led managerialism as the driver of 'crime prevention' (Case & Haines, 2009). New Labour introduced criminalising modes of (risk) assessment and preventative and early intervention, each informed by the Risk Factor Prevention Paradigm and its central tenet that crime could be 'nipped in the bud' (Home Office, 1997) by the early and robust identification and targeting of 'risk factors' in childhood (Case & Haines, 2009). Further measures of surveillance and control were pursued in order to 'curb' involvement in criminal activity and anti-social behaviour at the 'earliest opportunity' (Kemshall, 2008). Here, what were promoted as value-free, scientifically objective, actuarial measurements of risk were promoted and premised on the idea that predicting future offending is commonsensical and unproblematic; overlooking the common sense view that the behaviour of children is generally unpredictable (Case & Haines, 2009; Creaney, 2013; O'Mahony, 2009). To complement this approach, the principles of so-called 'effective' practice (namely risk classification, criminogenic need, responsivity, community base, treatment modality and programme integrity) and offence and offender focused 'what works' interventions have been prioritised as the tools to prevent and reduce offending. Such mechanised, numbers-heavy, pseudo-scientific 'evidence' has offered the Governments a form of certainty and tidiness to the unpredictable reality of 'youth offending' and a touchstone against which to manage and prescribe practice. However, it would be naïve to assume that this narrow and restricted form of evidence can be absolute: in a modernist sense the search for a definitive universal truth or one size fits all 'holy grail' of...
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