The Problems With Youth Detention System In Delivering Justice To Juveniles Committing Crimes
The criminal justice system (CJS) is a medium through which society at large is protected from undesirable behaviour that may put the community at risk, hence it undeniably forms the foundation of any civilisation. In Australia, a large percentage of crimes are committed by young people, however, this group also has the highest propensity for rehabilitation (Australian Institute of Criminology (AIC), 2011) and a greater ability to abide by laws as their lives progress. Due to this, criminal law must be proactive when dealing with vulnerable groups such as the youth, as they are highly susceptible to criminal dogma, and approach them with the aim of reducing recidivism through rehabilitation and deterrence. Holistically, the CJS offers greater protection for young offenders, yet the lack of consistency and over-representation of Indigenous youths in detention demonstrates their rights and freedoms are especially skewed. Despite claims of incarceration to be used only as a ‘last resort’ for young offenders, it is clear that this is not the case, evidenced by the juvenile detention centers in the Northern Territory (NT). Such systems have shown fundamental flaws that disproportionately affect Indigenous youth, stemming from both the faulty in the concept of incarceration itself and specific conditions within youth detention centres in Australia. In order to address these damages, the CJS requires a greater focus on creating a less punitive and more welfare, rehabilitative based system.
The sentencing process has the responsibility of delivering justice to individuals who have defied the lawful expectations of society, and hence is paramount to any legal system. Whilst incapacitation is a key purpose of punishment, the incarceration of young offenders has been widely criticised for being ineffective towards rehabilitating them, in addition to being criminogenic due to the stigmatisation it creates and its impact on mental health. This is evidenced in the detention rate for Indigenous juveniles at 397 per 100 000, which is 28 times higher than the rate for non-Indigenous juveniles. If juvenile detention is not effectively tackled with early intervention and rehabilitative measures, the cycle of re-offending spills over into adult offending, represented by the strong link between the disproportionate rates of juvenile detention and of adult imprisonment.
The Royal Commission’s Report on the Protection and Detention of Children in the NT states that ‘youth detention system will leave young people more damaged then when they entered’, as facilities were revealed to be unfit for accommodating the youth and excessively ‘harsh’ in nature. The report highlighted the mistreatment of inmates by staff, raising concerns around ‘unlawful and inappropriate’ standards of conduct. It addressed hygiene issues and deteriorating infrastructure, emphasising the lack of privacy, ventilation and natural light within detention facilities. Even more harmful was the use of forceful corrective measures such as physical restraints and extended solitary confinement. Hence, such poor conditions, inadequate staff training, and lack of rehabilitative programs led to a state of restlessness and non-compliance. Evidently, NT’s juvenile system had fallen too far into a retributive approach, which became damaging, traumatic, and ineffectual to the rehabilitation of its young offenders.
When considering their psychological immaturity of juvenile offenders, incarceration should only be considered as a last resort. Indigenous youth are vulnerable members of society, as they bear a greater disadvantage than non-Indigenous youth due to displacement within society as a result of policies that have been implemented by the Government. Because of this, they require remedial approaches to their criminogenic behaviour. Yet, youth detention centres often isolate offenders from their community – significantly impairing their psychosocial development and increasing their risk of mental illness. This, in addition to exposure to often more experienced offenders, creates an environment that can foster a lifetime of criminal behaviour and recidivism (Anthony, 2016). Further, stigmatisation of juvenile offenders promotes social profiling, where those labelled deviants will be more likely to increase their bad behaviour. The overrepresentation of Aboriginal offenders in prisons remains a prevalent issue that reveals a lack of effective prevention and reintegration methods to reduce the cyclic nature of committing crime, making it “a justice target to look into the high levels of Indigenous people in prison” according to UN rapporteur Tauli-Corpuz. Thus, if early intervention does not occur, this may drive Indigenous youth into a cycle of re-offending which will see them face tougher punishments in the future.
To improve the treatment of Indigenous youth, it is pivotal to understood that young offenders have much more complex needs than adults. Psychosocial issues and substance abuse are much more damaging to young offenders than to their adult counterparts, so extensive therapeutic programs are necessary to mitigate these. Aboriginal children in particular have higher rates of mental illness, foetal alcohol syndrome, sexually transmitted infections, which are often neglected by the prison system (White and Gooda 2017). Also, young people are considered legal minors so the state has a duty of care over them and is responsible for providing schooling opportunities and supervision. These are costly to maintain and require more training and human resources, and thus prisons who are not willing to provide these services contribute to the trauma and neglect of youth detainees. However, juveniles often ‘grow out’ of crime and adopt law-abiding lifestyles so rehabilitation methods can encourage desistance from crime more effectively than for adults.
To combat the ever-evolving complexities of balancing the rights for offenders, the criminal justice system aims to promote rehabilitation and reduce crime through the implementation of diversionary and reinvestment justice programs. Forms of restorative justice include Circle sentencing and Youth Justice Conferences (YJCs). These forms of restorative justice also act as diversionary programs which divert the juvenile offender away from the traditional criminal justice pathway and attempt to provide an alternate resolution process and/or pathway for rehabilitation. The Koori court system has proven effective in reducing the number of indigenous juvenile re-offenders, with reforms of including the direct involvement of Aboriginal elders in the process of sentencing, however, YJCs have questionable degrees of success in reducing rates of recidivism in young offenders.
The Koori court system also known as “circle-sentencing for juveniles” is a form of restorative justice that, at present, operates only in Victoria and the ACT. Created under the Magistrates Court Act 1989 (ACT), the Koori courts are based on traditional forms of dispute resolution designed to achieve increased community involvement in the sentencing process of Indigenous youth offenders who are identified as particularly ‘vulnerable persons’ due to social, economic and cultural disadvantage. The article ‘NSW’s First Koori Youth Court to Target Indigenous Imprisonment Rates in Western Sydney Trial’ reveals that there is an over-representation of Aboriginal people in the correctional system where the Indigenous youth represent 60% of inmate in the state’s juvenile centres and are 26 times more likely to be in detention. To address this issue, the Koori courts effectively aims to reduce the number of indigenous youth being sentenced to imprisonment through the direct involvement of Aboriginal elders in the process of sentencing to establish a stronger support network around the offender to make the sentencing process more meaningful. The NSW Youth Koori - First 12 Month in Review Report (2015) reveals that out of the 49 young offender participants, a significant achievement of 24 young people had not reoffended for over 6 months where, one young person with a history of 42 breaches of bail in the 6 months before entering, had only 4 breaches after. The above indicates the overall success of the program in reducing recidivism rates through its approach based on principles of therapeutic justice that is focused on considering the circumstances of each indigenous youth.
YJCs as a method of sentencing is effective since it provides a level of retribution and rehabilitation. Legislated under the Young Offenders Act 1997 (NSW), YJCs attempt to divert young offenders away from the court system through a means of forum sentencing, where a sentence is established in an informal setting involving the offender, victim, specially trained magistrates and key members of the community. Guilt in this instance is already determined, and a sentence is collaboratively decided on which prioritizes the rehabilitation of the offender, thereby upholding the concept of restorative justice whilst somewhat satisfying the concept of retributive justice. However, its inability to reduce rates of recidivism therefore limits such effectiveness. BOSCAR director Don Weatherburn stated the shortcomings of YJCs in the media article ‘Children reoffend as system goes soft’, citing ‘Youth Justice Conferencing doesn’t work to reduce reoffending’ after labelling it the ‘centrepiece of the state government’s response to juvenile crime’. The Australian Institute of Criminology’s April 2014 report ‘Restorative justice in the Australian Criminal Justice system’ confirmed this, finding no significant difference between the reoffending rates of young offender’s subject to the Children’s Court versus those subject to YJCs. Furthermore, with a 6% increase in the national imprisonment rate in 2014-15 as reported by the Australian Bureau of Statistics (ABS) in Prisoners in Australia, it can be shown that through YJCs, sentencing and punishment are mixed in their effectiveness, failing to satisfy all elements of the law both appropriately and simultaneously.
Further, NSW government’s initiative of encouraging a community-based approach, using ‘Just Reinvest’ to provide support mechanisms that shifts resources out of the prison system, has worked to reduce the risk of offending through social crime prevention strategies within disadvantaged communities. The trial of reinvestment justice in Bourke since 2013 has indicated that the approach has been an effective restorative response through educatory programs such as Maranguka that have increased resource efficiency and has ‘the potential to address the underlying causes of crime’. However, the government's responses to changing views through the instigation of forum sentencing, providing a discussion between the offender and victim, has been proven to be ineffective in reducing recidivism (Bureau of Crime Statistics and Research, 2009). In addition, the lack of accessibility is evidenced by the abolishment of the Youth Drug and Alcohol Court in 2012 that was effective in ‘transforming the lives of some of the state's most troubled youth and their families’ (SMH, 2012). Therefore, forthcoming endeavours to address the concerns of an increasing recidivism rate must be concentrated on the implementation of effective rehabilitation programs such as reinvestment justice.
Despite these mechanisms aiming to divert young offenders, there is no correlation between conference and court participants in the proportion re-offending as emphasised by long-term data, SMH stating, ‘54 per cent of 4938 juveniles will be reconvicted within 10 years and, on average, four times in that period’. Furthermore, the effectiveness of alternative sentencing options is questioned by UNSW Professor of Criminology, Eileen Baldry, where ‘any intervention would be undermined if a child is pushed towards the criminal justice system too early’. Recommendations and review from the Law Society's Juvenile Justice Committee regarding the Young Offenders Act 1997 (NSW) argue that reducing reoffending should not be an objective, but this clearly a contradiction as reoffending will cause young people to enter the legal system. Therefore, mechanisms to divert young offenders from the criminal legal system must meet society’s needs to make a difference in reducing detention rates in order for youth to receive justice.
In conclusion, the youth detention system must maintain a rehabilitative approach and a welfare structure in order to achieve justice for young offenders. As seen in the case of Indigenous youth in the NT, systems that largely focus on retributive and punitive measures are damaging to youths. Special consideration needs to be taken for young people who experience greater disadvantage such as the Indigenous youth, where early intervention and diversionary program are pivotal for reducing rates of over-representation and achieving social justice.
