In the Legal Aid office of the Youth Court of South Australia, where I was first employed as a duty solicitor, is a back room occupied floor to ceiling with children’s files.
At first glance, it appears there are duplicates: manila folders are labelled with the same names. But closer inspection shows the date and charges are changing, multiplying, as the children age towards 18.
This is a library documenting how the revolving door of juvenile justice turns, year after year. Official statistics confirm this: nearly half of all juveniles appearing before a Children’s Court will have been convicted previously, and one third will be reconvicted before the age of 18.
Is it possible that the criminal justice system is exacerbating juvenile delinquency, by reinforcing a criminal identity on children?
Empirical studies show that court processing increases the likelihood of reoffending for youth.
In 2010 a large-scale review collated the evidence from 29 controlled experiments where juveniles charged with a criminal offence had been randomly assigned to formal court proceedings or “alternative” diversions away from the criminal justice system.
These diversions include the mechanisms employed in Australian jurisdictions: police cautioning, family group conferences, alternative justice courts like the Koori Courts, or other therapeutic interventions. The results consistently showed that formal court proceedings increased delinquency in terms of prevalence, incidence and severity.
Is it possible that the criminal justice system is exacerbating juvenile delinquency, by reinforcing a criminal identity on children?
In the 1960s and ‘70s, “labelling theory” sought to provide answers to this revolving door phenomena: children who were formally charged and brought before the court were said to be more likely to self-identify, and be identified by others, as “delinquent”.
Not only do police and the courts label the child as a criminal, so too do their family, friends and community. Whereas police may have previously turned a blind eye, the youth now receives an increased level of scrutiny and greater likelihood of arrest. Other predicted effects are marginalisation, educational losses and exposure to more deviant peers and criminal subcultures.
While labelling theories of recidivism have been superseded by new empirical research and theories about the psychological, environmental and situational causes of crime, the notion that stigma accompanies court appearance remains an important rationale behind Australia’s approach to dealing with young offenders.
Australian young offender laws reflect an understanding that children should be dealt with differently to adults, that diversion is preferable to formal proceedings, and that detention should only be used as a last resort.
It is well established and recognised by psychologists and criminologists that the way in which the courts deal with young offenders can be critical to that child’s prospects of rehabilitation.
For example, defiance theory postulates that harsh or procedurally unfair treatment by a sentencing authority causes a defiant reaction in the individuals it aims to treat.
On the other hand, large-scale reviews of intervention programs show that interventions that can strike early, are intensive, and combine both social support in the home environment and cognitive behavioural treatments, can be greatly successful in combating antisocial and criminal behaviour in youth.
The Australian situation
In carrying out research on Australian Children’s Court practitioners, I found that the top three aims for Courts in dealing with youth are individual deterrence, rehabilitation and accountability.
Avoiding penalties that are likely to stigmatise or harm the youth’s prospects of rehabilitation is paramount.
For example, the question of whether to record a conviction on the criminal record of a youth is critical to lasting effects of stigmatisation. Criminal convictions can greatly prejudice a person’s (regardless of age) eligibility for employment, overseas travel, and subsequent treatment by police.
State governments are prone to “crack down” on a perceived problem of youth crime, despite statistics showing youth crime rates generally decreasing across Australia.
Other handicaps of criminal convictions include the inability to secure specific trade licences (motor dealer, customs agent, electrical contractor or builder), and adverse effects on the eligibility to be appointed to statutory bodies, government employment, a jury or election to legislature.
A conviction can also be used against them in future criminal and family law proceedings, or even insurance applications.
Some economists have postulated that prospects of employment are limited to “spot market jobs” following criminal conviction, and that conviction reduces the prospect of jobs in stable, long-term employment. For this reason, expungement of “youthful offending” records for young offenders exist in all Australian jurisdictions, and usually takes place after two or three years.
However, state governments are prone to “crack down” on a perceived problem of youth crime, despite statistics showing youth crime rates generally decreasing across Australia. So-called “tough-on-crime” approaches like naming and shaming have worrying consequences for stigmatising young offenders.
For example, in 1997 the Australian Law Reform Commission report Seen and Heard, criticised the Northern Territory Parliament’s proposal that children performing community work orders wear an identifiable uniforms as “entirely inappropriate” on the basis that it risked making children vulnerable to retribution, and hardening criminal behaviour.
Naming and shaming children arose as a policy consideration in New South Wales in 2008, but was rejected on the basis that such stigma potentially leads to increased recidivism and “strengthening a juvenile’s bonds with criminal subcultures.”
More recently, a raft of juvenile justice reforms introduced since 2012 by Attorney-General Bleijie in Queensland have taken aim at naming and shaming juvenile offenders who offend a second time, allowing their criminal records to be used in future adult proceedings, withdrawing funding to family conference diversions, and introducing boot-camps for youth offenders.
Legal scholars have criticised these reforms as “unravelling 150 years of careful development” in children’s criminal procedure. Criminological research shows no crime reduction effect for any of these introduced amendments to identify, shame, punish and stigmatise, which in many cases have a demonstrated criminogenic effect.
This is not to say that labelling an offender is inevitably detrimental: in fact, Australian criminologist John Braithwaite has stated that labelling an offender can be beneficial where it is done in a respectful and “re-integrative” manner, rather than through condemnation.
In Australia, this method has instrumentally shaped the way restorative justice conferencing is conducted. Studies carried out on restorative conferences build around “re-integrative shaming” in Canberra showed positive results for victims and offenders, with substantial cost-benefits for dealing with violent crimes and offenders with long criminal histories.
Where to from here?
Studies that have followed children from the age of eight to adulthood and middle age show that the vast majority of young people who have ever committed a crime go undetected, and have no formal contact with the system.
Of those detected, up to 85.5 per cent of youths involved in a criminal offence are diverted prior to court processing. So while the revolving door kids constitute only a small percentage of the overall youth population, their impact is far-reaching.
However, the same studies also found that recidivist youth commit the majority of crimes for their age group, and offend earlier and longer (into adulthood) than other offenders.
It is therefore crucial for the future welfare of the community and these children that the criminal justice system operate to provide the best chance at rehabilitation, and avoid making a criminogenic impact on their identities.
Having worked with young offenders as their legal representative and witnessed the revolving door first-hand, I sought answers through study and research at the Institute of Criminology at the University of Cambridge in the United Kingdom.
It will come as no surprise to practitioners working in this field that the answers to addressing the revolving door of juvenile recidivism are complex, and will require multidisciplinary interventions and approaches. The beacon of light is that good quality criminological research and theory are growing, and there are established studies on which interventions are more or less effective in addressing juvenile recidivism.
What is also clear from the research is that criminal courts can indeed have a tremendous impact on a youth’s identity and potential for early intervention. This is why it is so important that initiatives to deal with crime in juvenile justice are driven by the best in theory and empirical research, and not by moral panic.
If more attention (funding, interest and education) can be directed towards effective intervention for youth, we might finally be able to start cleaning up that back room.
