the criminology and criminal justice network
Chapter Three – We Have Been “Tough on Youth Crime and Tough on the Causes of Youth Criminality”, Perhaps it is Now Time for a “Fresh Start”.
3.1 – The Use of Restorative Justice Within the Youth Justice System and the Emphasis Put Upon Alternative Sanctions for Young Offenders. Is This the Beginning of Our ‘Fresh Start’?
The criminal justice system in England and Wales is rife with competing views, contradictions and regrettable irony, especially with regards to youth justice. Over the past three decades, our society has become increasingly ‘punitive, fearful, hostile and exclusionary’, this is largely down to the fact that ‘youth cultures no longer form as distinct ethnic groups , and the boundary between the deviant and ‘normal’ are now blurred in late modernity’ (Young, J. 1999: 15). This in turn means that virtually all young people and especially young offenders are seen as; ‘alien, a threat to the norms of society, people who do not belong in society and those who need to be physically detained and kept secure from causing further harm; whether the incarceration be within their own ghettos that are increasingly feared by society, or failing that, the prison’ (Johnstone, G. 2002: 10). The public and state are constantly establishing means to protect, divert, dilute and reduce crime and criminality and we are constantly inventing further ways of protecting ourselves from crime by using, alarms, CCTV (Closed Circuit Television) and other security hardware. ‘There are numerous examples of how society has become increasingly security aware and fearful of crime and criminality, however, this apparent enlightenment has far from appeased the public’s fear, it has in-fact arguably helped to create such public angst, thereby generating greater demand for punitive action towards offenders’ (McCold. 1996: 85-86; Bauman. 2000: 37, cited in, Johnstone, G. 2002: 10).
As well as being preventative, we have seen a number of governments take relatively contradictory stances with regards to the sentencing of young offenders, stances that adopt theories of welfare, then of retribution, and now, arguably, a mix of both; all of them aiming to reduce criminality while also serving ‘just deserts’. As Hewlett (1993: 2) observed; there is an ‘anti-child spirit’ loose within the consciousness of society, creating an extremely fearful and highly punitive society, who are driven and obsessed by the concept of risk.
It is clear that the ‘risk’ agenda is an important aspect of the youth justice system, as well as the adult justice system and social services (Youth Justice Board. 2011: np), as it aids us in understanding various aspects of youth criminality and what can influence criminal activity in the individual young person. However, the adoption of risk as a vital element within the youth justice system can bring ‘a desperate array of welfare, disciplinary, actuarial and punitive rationalities and technologies’ (O’Malley. 2004, cited in, Gray, P. 2009: 454). “This suggests that the strategic composition of international youth justice is not fixed but remains an unfinished project... which is rife with contractions, opportunities for resistance and alternative visions” (Gray, P. 2009: 454). Competing visions and opinions on the functions of the youth justice system are often welcome to improve policy and practise, however, a key question is whether the youth justice system should be based on welfare, punishment, or perhaps both? Currently, ‘through great emphasis being put upon restorative approaches such as the referral order and the emergence of the ‘Big Society’, it can be said that youth justice is in the midst of a radical shift from being traditionally punitive and exclusionary to becoming inclusionary and restorative’ (Muncie, J. 2006: 779).
The concept of Restorative Justice is not a contemporary phenomenon in England and Wales, Braithwaite (2002: 3) found that ‘Restorative Justice is deeply rooted in human thought and firmly grounded in traditional forms of justice that date back to ancient Arabic, Greek and Roman civilisations, all of whom use Restorative Justice even in the most serious of circumstances, for example; homicide.’ Unfortunately ‘some believe that Restorative Justice cannot be applied to serious crime due to its alternative nature and its lack of traditional punitive qualities’ (Walgrave, L. 2004: 544). Unlike in New Zealand, Restorative Justice remains largely on the margins of the criminal and youth justice systems, however it does have great potential and may soon play a vital role in the justice systems. This is supported by Walgrave (2004: 543) as ‘evidence from research points towards favourable reconviction rates and further positive outcomes’.
The concept of Restorative Justice involves a multitude of positive aspects that are often misunderstood, as many believe that restoration simply implies materially making amends for the damage caused by crime. However there are many other areas of the victims and communities lives that can be affected through the notion of restorative justice. It focuses on “restoring responsibility to offenders for their offending” and “restoring belief in the criminal justice processes that the victim and offender are involved in” (Hughes, G., McLaughlin, E., Muncie, J. 2002: 243). It also has an impact on the victim of the offence as they can; ‘participate directly or indirectly, they can speak to the offender about the effects that the offence has had on them, their families and friends and most importantly, the victim and the offender can gain a greater understanding of the offence and of one another.’ “Thus ‘restoration’ is not simply about reparation, but about seeking to restore the victim’s security, safety, self-respect, dignity and, most importantly, sense of control” (Hughes, G., McLaughin, E., Muncie J. 2002: 243).
The Conservative government in England and Wales, under Margret Thatcher and John Major between 1980 and 1990, supported the concepts of retribution and deterrence, when it came to dealing with young offenders. Their view was, to ‘catch more of them’ by introducing various net widening pieces of legislation that tended to draw younger and less serious offenders into the justice system, and to ‘send out a clear message that if they break the law, they will be caught and punished’ (Burke, R.H. 2008: 77). Similarly, in the 1970s, Clarke (1975), cited in, Hughes, McLaughlin and Muncie (2002: 123), stated that there were ‘three core ideologies of control for the working classes that he called the three Rs; Repression, Rehabilitation and Rescue’. Now however, we have a coalition government that is ‘putting justice back into the hands of the people and local communities’ by reforming the current top down approaches to achieving justice by “giving real power over local decisions to a wider pool of active citizens” (Communities and Local Governments. 2008: 1). Our current government would therefore have their own ‘three Rs’, however they would most certainly not include the notion of repression, instead, they would put great emphasis on ‘Restoration’.
Putting the powers of achieving justice into the hands of the community and local authorities, through the concepts of community treatments and restorative justice, can bring with it many difficulties, for example; “its name seems to imply a benign approach to the problem of delinquency that avoids the punitive aspects of institutionalisation” (Lundman, R.J. 1984: 176). The remnants of a harsh and punitive decade do still linger within society and therefore, many believe that community treatment is a ‘soft option’ for young people who break the law, regardless of the offences severity. However, as it has been examined that harsh and punitive measures applied to young people often exacerbates the situation and does not serve any productive purpose, other than to physically separate the offender from society. Lundman (1984: 176) gives three reasons why community treatment is not a soft option; firstly, ‘some offenders see their community sentences as something of a lark. However, strict rules and harsh sanctions are always in place to ensure their commitment to the programmes and in controlling their behaviour’. Secondly; ‘community sanctions use a punitive response and operating philosophy to dampen resistance to its methods’. This philosophy does not amount to that of the use of prison and similar methods of punishment; they only indicate that the sanctions are tough enough for the offender to find the experience unpleasant. Lastly, ‘social work words do, unfortunately, have their limits, and when these limits are met, further law enforcement actions are the only other alternative to take and they are only used as a last resort’.
For example, when an offender ‘fails to comply with the terms of their community sentence, they are swiftly taken back to a magistrates court for re-sentencing’ (Audit Commission. 1998: 176). This is not to say that the young person is shown no compassion or empathy, as their circumstances may be affecting their ability to meet the terms of their sentences. These circumstances are therefore examined by the Youth Offending Team and others involved, to decide whether the offender’s non-compliance was intentional. Under section 127 of the Magistrates Courts Act 1980; these examinations into the circumstances of the young offender ‘must be presented in a magistrate’s court within 6 months for further consideration’ (Youth Justice Board. No Date: np). Therefore it can be said that community treatment is not a soft option, however, it is a means to give the young offenders a second chance to right their wrongs and to become valued members of society before they are delivered to the full justice system. An example of community treatment, that offers young people a chance to right their wrongs before they are met with the full punitive force of the criminal justice system, is the use of the Referral Order in England and Wales.
The Referral Order is a means, ‘for young offenders who plead guilty to an offence for the first time in a magistrate’s court, to prevent the young person from reoffending and provide a restorative justice approach within a community context’ (Ministry of Justice. 2009: 7). The Referral Order is an effective way of giving communities and victims a pivotal role in the justice system. According to Nicholl (2001: 7), cited in, Wright (2002: 131) ‘a restorative understanding of justice makes it clear that the victim, offender and the community all have a vital part to play in achieving justice.’ The inclusion of the community and the victim can have a huge impact on the consequences of this form of offender treatment as it enables the youth justice system to ‘focus on needs, obligations and the notion of understanding personal responsibility, compared to the criminal justice process that focuses on blame and guilt.’ The principles that underpin the restorative justice methods used within the referral order can be seen as ‘extensions of the republican theory of criminal justice, as it restores the personal dimensions of both the victim and offender by using; retribution, compensation and reparation in recognition of the harm done’ (White and Haines, 1996: 172 – 190, cited in, Wright, 2002: 131 – 132).
The Referral Order initiates the use of a Youth Offender Panel, in which two fully trained volunteers from the local community, a representative of the Youth Offending Team and in some cases, the victim of the offence, come together in a mediated session to discuss the offence in detail and aim to agree a contract. According to the Youth Justice Board (2003: 2), ‘the contract involves direct reparation to the victim, or wider community by the offender and entails a programme of various intervention methods that will address the risk factors that may have influenced the offender to participate in criminal activity’. There are of course a number of drawbacks with such an intricate sentence, two of which are outlined to be of serious public concern; firstly, the notion that ‘39% of Referral Orders are given to young people for motoring offences that would have constituted a Fixed Penalty Notice for an adult’ is far too punitive (Youth Justice Board. 2003: 5). Secondly, there can be ‘great difficulty in getting victims to attend the Youth Offender Panels as often the panel meeting is held far too close to the time of the offence, and often the victim feels much more comfortable meeting the offender after a longer period of time. However due to the limitations of youth justice policy, the panel must meet within 6 months of the offence’ (Mallard, T. 2011: np).
According to Walgrave (2004: 547) the ‘challenges for Restorative Justice are twofold: Firstly the concept must develop its own effectiveness criteria through gaining the interests and support from a highly punitive and fearful society and justice system. Secondly the effects of the Restorative Justice approaches taken must not be more punitive than those from existing rehabilitative approaches.’ In accordance with these challenges, it should be questioned as to whether ‘Restorative Justice can provide sufficient legal safeguards without being overly punitive’ (Walgrave, L. 2004: 549).
With the use of programs and sentences such as; the Referral Order, Youth Rehabilitation Orders and various Early Intervention projects, the concepts of Restorative Justice and a welfare driven youth justice policy can retreat from being ‘within a state of political and societal flux’ (Bottoms, A., Dignan, J. 2004: 114), and eventually become a vital part of our criminal and youth justice systems to begin what has been called our “Fresh Start” (Independent Commission on Youth Crime and Anti-Social Behaviour. 2010: 110).
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