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Should the Youth Justice System be based on Values of Punishment, Welfare or Both?
The main aim of the Youth Justice System, with regards to the sentencing of young offenders, has always been a highly debated topic within our late modern society. There are a number of things that can influence the construction of youth justice policy and practise by changing public opinion; various significant events, such as the murders of James Bulger and Stephen Lawrence in 1993, the Edlington torture and attempted murder, and the political atmosphere at the time can determine the main priorities of the Youth Justice System. However it is not only public opinion and political discourse that establish the priorities of the Youth Justice System, for example; the use of official statistics and reports, on the performance of current methods to achieve justice, also play a vital role. I will attempt to determine whether the Youth Justice System should adopt the notions of; punishment, welfare, or both as their main priorities for young offenders in England and Wales.
The concepts of risk and the adoption of risk based strategies, that ‘lie at the heart of youth justice policy and practise’, rely heavily on; an understanding of ‘class’, as well as a ‘desperate array of welfare, discipline, actuarial and punitive rationalities and technologies’ (O’Malley. 2004, cited in, Gray, P. 2009: 454). It is therefore apparent that ‘the strategic composition of the youth justice system is not fixed, but remains a fluid and unfinished project... which is rife with contradictions and opportunities for resistance and alternative visions’ (Gray, P. 2009: 454).
Before making any comparison between their benefits and drawbacks, we must understand what the most basic principles of punishment and welfare entail. Firstly, punishment, in the sense of its imposition for a criminal offence, must consist of a number of very specific elements, a few of these elements are; the ‘infliction of an evil or unpleasantness from an official authority, this ‘unpleasantness’ must be inflicted with legitimate intent and must not be a product of consequence.’ (Hudson. 2003 and Zedner. 2004, cited in, Newburn. 2007: 516). Therefore we must now consider whether the infliction of pain and unpleasantness upon the offender can bring peace and justice to the individual or state, and what implications the punishment may have on the lives of both the offender and the victim. Zedner (2004), cited in, Newburn (2007: 517) believed that, ‘we punish to; discourage future offending, to make amends for harms caused by the offence, to protect the public from further harm, to reinforce social bonds and values and to simply punish because the offenders deserve to be punished.’
In 1989, the Children Act (Schedule 2, Section 7 (b)) made it the agenda of all Local Authorities to ‘engage children in their areas to divert any pressures and influences that may lead them to offend’ (Audit Commission. 1998: 76), this then enforced a consciousness of welfare and support for all young people deemed to be at risk. However, the concept of ‘welfare’ within the criminal and youth justice systems in England and Wales is not singular, as it can denote very different things to different people. However, an approach taken by the youth justice system that could be labelled ‘welfare driven’ is the use of Restorative Justice and Educational programs. Clarke (1995: 104) suggested that ‘large scale reductions of crime and youth criminality can be achieved by tackling the disposition to offend at its roots with the reform and implementation of welfare and educational programs for young people’. As with all suggestions for the betterment of youth justice policy, this approach came with a leading criticism; that the use of welfare and educational programs to tackle youth offending ‘are not seen as desirable to the public as they demand resources and participation time that society is often not willing to give’ (Clarke, R. V. 1995: 104). Fortunately, the time and resources required to perform welfare based actions, especially within the community, have been found within the voluntary sector. For example, the 2011 Coalition government in the UK have therefore put great emphasis on “giving real power over local decisions to a wider pool of active citizens” (Communities and Local Governments. 2008: 1).
It has been found that the many different areas of work that youth justice practitioners must attend to at any one time can often create feelings of ‘separation from the offender, which in turn reduces the effectiveness of the youth justice systems response to the welfare and educational needs of the young person’ (Audit Commission. 1996: 27). Therefore, the use of volunteers and the involvement of the community in the application of welfare based justice could be seen as essential, as they will then be able to focus their attention on the young person to a certain degree more than professional youth justice practitioners.
History has shown us that in England and Wales, the youth justice system has adopted ‘highly punitive methods of control and punishment upon young people’ that paid little or no attention to their welfare or rehabilitation. This can be seen by the use of the ‘Borstal’, a form of youth offender institution (YOI) that paid little or no attention to the young person’s welfare, which in turn ‘led to an increase in youth offending in the 1980’s’. Similarly, ‘Between 1992 and 1998 the number of young people in secure estates rose from 5,500 to 8,400’ (Tayler, 1979, cited in, Muncie, J. 2004: 283), the catalyst for this increase in youth offending may be seen to have occurred between 1992 and 1993, where there were three significant events that may have potentially shaped the future of the youth justice system in England and Wales. These three events were; Tony Blair’s radical new stance to be ‘Tough on Crime, and Tough on the Causes of Crime’; The brutal murder of James Bulger; and the famous ‘Prison Works’ speech given by former Home Secretary Michael Howard.
In 1992, Tony Blair returned from America after meeting with former United States President Bill Clinton, to discuss America’s revolutionary ‘zero tolerance’ attitude towards crime. Blair returned to England with a new slogan that immediately won him public favour with regards to his political position on crime, this slogan was; to be “Tough on crime and Tough on the Causes of Crime” (BBC. 1993: np). The public were soon to be in full support of Tony Blair’s new catch phrase, when in 1993, the murder of two year old James Bulger, by two ten year old boys; Robert Thompson and Jon Venables, gave Blair the opportunity to demonstrate his new proposal to be ‘tough on crime’.
The Bulger murder produced a multitude of deep seated emotions within society including; anger, fear, trepidation, vengeance and retribution, the public thereafter called for harsh punitive action to be taken against the young boys. McNutt (2010: np) illustrated a number of choice phrases used by the media, public and government, to describe the youth of England and Wales at the time of the James Bulger murder; ‘Nasty little juveniles, Hooligans, Freaks, Bastards, Worthless and Evil’. The public in England and Wales had clearly demonstrated their anger and need for retributive justice when the Home Secretary at the time, ‘Michael Howard, received a petition from James Bulger’s parents bearing the names of 278,300 people, demanding that the two young killers should never be released from prison’ (The Telegraph. 2010: np). With the support of this petition and excessive media and governmental attention on the case; Jon Venables and Robert Thompson both received eight year sentences in 1993, which by 1994 were increased by the home secretary, Michael Howard, to fifteen years.
Michael Howard consequently gave his famous ‘Prison Works’ speech in 1993, in which he demonstrated his faith in the prison system in dealing with offenders in England and Wales. According to Easton and Piper (2008: 12), ‘this was a very costly notion to implement with regards to the amount of censure and punishment that the state could afford to incorporate into its penal policy.’ However, regardless of Howard’s position as Home Secretary and his popular stance on penal policy; in ‘1999 the European Commission on Human Rights had deemed that Jon Venables and Robert Thompson did not receive a fair trial, and that Michael Howard had in fact acted illegally in increasing their sentences to fifteen years each. In October 2000 the original sentence given to the boys of eight years was reinstated and they were released at the age of eighteen.’ (The Telegraph. 2010: np).
The 1990’s may be considered to be an extremely erratic and confusing time for the youth justice system as the political atmosphere regarding youth criminality and deviancy changed so dramatically between different political parties. All of whom expressed at least a fraction of interest in the use of semi-welfare approaches to address the causes of youth criminality, but all have stressed the importance of punishment as a key ingredient to youth justice policy and practise. According to the Audit Commission (2004: 90), punishment was used as a ‘threat’ to young people at risk of offending. Therefore, with the apparent aggressiveness of the youth justice system, it is unsurprising that such heavy reliance on the use of punishment attracted a large amount of negative attention and criticism.
This is not to say that the use of punishment is newly criticised; Jeremy Bentham (2011: np), believed that all punishment is in itself ‘mischievous and evil’, and ‘under the principle of utility; if punishment must be used, then it must be used to exclude another greater evil.’ Bentham goes on to describe how punishment should not be used if it would be; ‘unprofitable, too expensive or needless.’ He puts great emphasis on how punishment can produce ‘mischief that is greater than what it could have prevented’ and where mischief would ‘naturally cease without the use of any intervention or punishment.’ Similarly, and more recently; the ‘retributive focus of the traditional youth justice system and its concern with ‘just deserts’ are highly debated and questioned’, and the use of retribution is seen to be ‘ineffective, undesirable and counterproductive in meeting the needs of all those involved in the crime’ (McCold, 1996, cited in, Haines, K., O’Mahony, D. 2006: 110).
The two ends of youth justice policy and practise; punishment with retribution and welfare with support, sit extremely far apart from one another in their moralities, values, costs, benefits, drawbacks and effectiveness in reducing youth offending. With such clear differences come clear practises and methods that adopt either punitive or welfare driven approaches. Using the concept of restorative justice as a representation of welfare and retribution as a representation of punishment, we can get an idea of how the two theories differ from one another, and of how for nearly every position that each hold, the other has relatively opposite views. For example, according to Muncie (2009: 328), a retributive approach to justice sees ‘crime as law violation and an act against the state’, whereas restorative justice considers crime as a ‘harm done to individuals and communities’; Retribution relies on the ‘establishment of guilt or innocence’, compared to Restorative justice that ‘focuses on problem solving’; Most crucially, Retributive justice involves the ‘exclusion’ of the offender, with extremely harmful and exacerbating consequences, whereas Restorative methods involve the re-integration of the offender back into the community. There are a many methods and approaches that adopt both concepts, however two examples that can represent each of the values individually could be; the Prison and Incarceration (punishment), and the Referral Order (welfare).
Michal Howards ‘Prison Works’ speech in 1993 included the notion that ‘ the prison is the only means to effectively keep offenders separated from society and to ensure that they cause no further harm’ (Katz, L., Nicholls, M. 2004: np). This would most certainly be extremely difficult to disprove, and the notion of incapacitation to cause no further harm to society is an extremely tempting offer from those who are pro-incapacitation. However, without resorting to the first ‘quick fix’ method that comes our way, we must consider whether the incapacitation of young offenders in secure estates exacerbates their offending behaviour. There is a large amount of evidence indicates that this is the case; Pitts (2005), cited in, Green (2010: 10) neatly sums up the states failures to handle youth offending as; ‘if the public knew that the secure estate absorbs around 80 per cent of the Youth Justice Boards resources and there after produces reconviction rates in excess of 80 per cent’, they would almost certainly have little or no further faith in the punitive measures taken by the state.
A similar misconception held by the public that can have a huge influence on the use of the secure estate for young offenders; is that of the offender themselves. Hough and Roberts (2005) conducted a study into the public’s sentencing preferences for young offenders in England and Wales. They found that ‘the public’s knowledge of alternative sanctions is poor and as shown in their research, they tend to favour punitive measures and imprisonment. However, this is until they are given detailed information on the offender and their circumstances’ which are usually quite startling (Hough, M., Roberts, J. 2005: 222).
A welfare based approach to youth justice can be adequately represented by the use of the Referral Order, which is used as a primary sentence for young offenders from the ages of 10-17 by magistrates in England and Wales. The referral order includes the use of a ‘Youth Offender Panel’, which consists of; two trained volunteers, a panel adviser who usually works for the Youth Offending Service, the offender and a supporter (parent or otherwise), and the victim with their supporter(s). This panel then works with the offender and the victim to arrange a number of conditions and agreements that ‘create a contract’ with the offender. ‘The main aim of this contract is to repair the harms caused by the offence itself and thereafter address the causes of the offending behaviour’ (Youth Justice Board. no date: np).
Not only, does the referral order bring back the application of justice to those individuals whom it really concerns; as Christie (1977), cited in, Muncie (2009) argued that ‘conflicts (now classified as crimes) have been stolen from offenders and victims by the apparatus of criminal justice.’ It successfully uses a large range of punishments, activities and programs that the offender must engage in; failure to do so would result in their ‘referral back to court within 6 months’ (Great Britain. 1999: S8 (2 a-i)). The referral order achieves the required ‘evil or unpleasantness’ for it to meet the ‘punishment criteria’ mentioned before, it also generates significant ‘victim satisfaction and trust in the processes of the youth justice system, re-integrates the offender back into society, and annuls the harms caused to the community’ (Walgrave, L. 2004: 556).
To conclude, the youth justice system has adopted both concepts of welfare, punishment and even both combined. However throughout every stance that the youth justice system and the government have taken, there has always been; ‘comment, criticism, contradiction, controversy and unfortunate ironies’ (Muncie, J. 2009: 387). The punitive aspect of achieving justice may never be fully abolished in England and Wales, as we live in an extremely hostile and retributive country, this mainly refers to our reliance on the prison systems as the dominant and primary form of punishment for most young offenders. However, with the implementation of The Big Society by the 2011 Coalition government, and the increased emphasis given to the notion of restorative justice within local communities; there is hope for the concept of welfare, and in particular; restorative justice, to take a leading role within the youth justice system in England and Wales.
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