Dr. Jonathan Doak: Department of Law, University of Sheffield
Juvenile Sentencing: The Impact of Short-Term Custodial Sentences
Juvenile Sentencing: The Impact of Short-Term Custodial Sentences
1. Overview
This paper evaluates the impact of short-term custodial sentences on the lives of young offenders. Overall, the imposition of such sentences is undesirable for a number of reasons which may be summarised as follows:
Such sentences risk drawing petty offenders into a criminal environment and a prison culture;
Labelling young people as ‘deviant’ harms their self-esteem and reinforces criminalisation;
They do not allow for any meaningful form of rehabilitative work;
They cause major disruption to home life and education or training.
The paper begins by considering in some depth the documented drawbacks of short-term custodial sentences and proceeds to highlight a number of international standards which strongly suggest that the interests of the young person should be regarded as the pre-eminent principle in sentencing. The paper then examines a number of potential benefits of longer-term custodial sentences which may afford prison staff the opportunity to engage with the juvenile and challenge his or her perceptions and attitudes, thereby minimising the chance of re-offending. It should be stressed however that longer term sentences should always be used as a measure of last resort for serious offenders, and under no circumstances should longer custodial sentences be imposed against a given tariff.
Traditionally custody has been used as a relatively frequent method of disposal for juvenile offenders in Northern Ireland. Prior to the mid-1990’s, young offenders were given custodial sentences more frequently and for less serious offences than their counterparts in England and Wales (O’Mahony and Deazley 2000). However, the rise of diversionary schemes and the introduction of Juvenile Justice Centre Orders have resulted in a sharp reduction in the numbers of young people serving custodial sentences (NISRA, 2004:83).
Sound empirical research on the full impact of custody upon young people is unfortunately thin on the ground, so much of the existing literature tends to be rather anecdotal. In particular, there is a paucity of information concerning the correlation between the length of sentence and re-offending rates and much of the research is not focused exclusively on juveniles. There is nonetheless a broad consensus amongst commentators that custodial sentences are generally harmful to the long term prospects of young people and should be avoided in all but the most serious of cases (Goldson, 2002; Morgan, 2002; Smith, 2003; Day, 2003). As a result, policies of most modern, western criminal justice systems seek to ensure that:
The use of custody is reduced for all but the most serious offenders
Most young offenders should be dealt with through community sentencing and diversionary approaches
2. Drawbacks of Short Sentences
One of the main factors underlying the increase in custodial sentences lies in the fact the courts have increasingly resorted to imposing short sentences for relatively minor offences, particularly in England and Wales. It is widely accepted, however, that such sentences do not provide an opportunity for prison workers to address the causes of offending and are thereby extremely disruptive to the life of the young person without being constructive in either preventing re-offending or addressing the personal needs of the young people:
‘Short-term sentences were extremely disruptive and distressing both for the prisoner and for her family, and did not provide sufficient time for the prison to help or support the prisoner, for example through detoxification or counselling.’ (JointParliamentary CommitteeonHumanRights, 2004: para 120)
‘Short custodial sentences disrupt the lives of young people and make it more difficult to implement effective educational and behaviour-changing programmes. They also waste resources.’ (Lord Warner, Former Chairman of the Youth Justice Board) [1]
‘Short periods of custody are unlikely to make an impact on offending behaviour, nor help offenders gain the educational qualifications often necessary for a change in lifestyle.’ (National Audit Office, 2004)
‘Short prison sentences provide little to no real opportunity for offenders to participate in the varied constructive activities that may help to, not only address the causes of their offending, but also equip them with better employment and educational opportunities upon release.’ (NSWSC, 2004:10)
Recent years have witnessed a trend both in Europe and farther afield away from short custodial sentences. Indeed, sentences of six months of less have been abolished in both Sweden and Western Australia.[2] In his review of the sentencing framework of England and Wales, Making Punishments Work, John Halliday noted that short prison sentences (those of less than 12 months) were unlikely to make any positive impact upon the lives of those who receive them. Although the Review was mainly focused on the sentencing of adult offenders, many of the principles enshrined in the report can be taken into account in considering issues surrounding juvenile custody (see below). The Review recommended that sentencing decisions should be structured so that if a prison sentence of 12 months or more was not necessary to meet the needs of punishment, sentencers should consider whether an alternative, non-custodial sentence would be better placed to meet the assessed needs for crime reduction, punishment and reparation (Home Office, 2001: iii). In particular, the Review concluded that short sentences were generally ineffective for a variety of reasons:
The questionable punitive effect of short prison sentences;
The questionable deterrent effect, particularly in relation to persistent offenders;
The strong risk of the inmate becoming infused in the prison subculture.
According to Halliday , young offenders who receive short sentences are more likely to be reconvicted within 2 years of their release than those who serve longer sentences.
‘The sentences are therefore being used in cases for which they are particularly ill-designed and equipped... The short prison sentence is likely to do little, if anything, to protect the communities to which the prisoners will very shortly return, beyond the briefest respite; and little if anything to help or influence those offenders to change their lifestyles and observe the law.’ (Ibid., 1)
Research conducted for the Review found that there was a strong correlation between number of previous convictions and the likelihood of receiving a short prison sentence. A sample of male prisoners receiving short prison sentences in mid-1998 showed that 54% had been to prison previously, and that 56% had five or more previous convictions (ibid., 3). The two year reconviction rate for those who had served short prison sentences was 60%, higher than any other custodial sentence (ibid., 126). More recently, the National Audit Office (2004) have produced statistics to show that approximately 8 out of 10 young short-term prisoners re-offend within two years of release. Short-term custodial sentences are thereby clearly ineffective in preventing re-offending, and figures from Northern Ireland show an even higher rate of re-offending among juveniles. Curran et al (1995) observed that 86% of juveniles who received custodial sentences re-offended within three years, while Wilson et al (1998) estimate that 97% of boys who received custodial orders are reconvicted of an offence within three years. O’Mahony and Deazley (2000:58) reported that juveniles were more likely to receive ‘up-tariff sentencing options’, including the use of immediate custody for less serious offences than adults.
Halliday concluded re-offending rates are so high among short-term prisoners because they are fundamentally ill-equipped to do anything to tackle the factors underlying criminal behaviour (ibid., 22).[3] In particular, problems relating to drug or alcohol dependency were not able to be properly addressed. This view was shared by many of the academics and stakeholders who were interviewed as part of the Halliday Review:
‘Many commented on the extreme limitations of short prison sentences (under 12 months) because of the absence of any work with most prisoners to prevent re-offending, and the absence of any such work under supervision after release.’ (Ibid., 78)
A number of weaknesses in shorter sentences were also identified by the New South Wales Sentencing Council, when they recently considered the possibility of abolishing all prison sentences under six months:
Their questionable rehabilitative value;
The high cost associated with processing and housing short term prisoners;
The resources required for prisoners serving short sentences could be used for more serious offenders;
As they presently stand, prisoners who have served a short prison sentence do not receive supervision/reintegration on release (NSWSC, 2004: 42).
It was further considered that the total abolition of such sentences may:
Reduce prison overcrowding;
Simplify the management of inmates;
Diminish the harmful effects of prison;
Encourage the use of sentencing alternatives;
Reduce social security costs.
Like the Halliday Review, the NSW Sentencing Council’s Report was concerned with the effects of short custodial sentences on prisoners generally as opposed to their particular impact on juveniles. However, if shorter sentences are potentially damaging to the welfare of adult prisoners, then their impact upon juveniles is likely to be considerably exacerbated. It is generally accepted that custodial sentences ought to be regarded as measures of last resort in the sentencing of young people, and punishment and general deterrence are considered subordinate to the rehabilitation of a young person (NSWSC, 2004: 17). Von Hirsch (2001) argues that since juveniles have ‘less capacity to assess and appreciate the harmful consequences of their criminal actions’ and have less opportunity to ‘develop impulse control and resist peer pressures’, sentencing for juveniles should be scaled well below that of adults. Von Hirsch also asserts that custodial sentences carry a greater ‘punitive bite’ for juveniles than for adults, since they are more psychologically vulnerable to the effects of the penalty. It is generally accepted that children in custody are at increased risk from bullying, assaults, suicide, self harm and the cultivation of criminal techniques than their adult counterparts (Ball et al., 2001, 153, 162; Department of Health, 1997). A Review of youth custody carried out in the late 1990’s found that many juveniles were ‘lost’ in the prison regime and that many young people were ‘forced into doing little more than warehouse adolescents’. The Review concluded that children should be kept out of the prison system as far as possible as ‘it is essentially an organisation for adults’:
‘Serving a period in custody can turn out to be a criminalising rather than a curative experience.’ (Home Office, 1997a: para 106)
3. International Standards
International standards dictate that criminal justice systems should always distinguish in the manner in which they treat adults and juveniles. Article 10(1)(b) of the International Covenant on Civil and Political Rights states that all juveniles shall be separated from adult prisoners and should be treated in a way appropriate to their age and legal status. Further obligations relating to juvenile custody are contained in the UN Convention on the Rights of the Child, which emphasises the need for custodial measures to be geared towards the rehabilitation and reintegration of juvenile offenders. Custodial sentences may be used to achieve this goal, although the Convention requires that custodial sentences should ‘be used only as a measure of last resort and for the shortest appropriate period of time’ (CRC, Art 37(b)). Additionally, all sentencers should take into account “the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society” (CRC, Art 40). The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The ‘Beijing Rules’) set out four key principles in Article 17(1) which ought to be adopted in the sentencing of juveniles:
The reaction shall be proportionate to the gravity of the offence, the needs of the child, and the needs of society;
Restrictions on the personal liberty of the child shall be imposed only after careful consideration and shall be limited to the possible minimum;
Deprivation of liberty shall not be imposed unless there is a serious act of violence against another person or a persistence in committing serious offences;
The well being of the child shall be the guiding factor.
The Commentary to the Beijing Rules underlines the fact that whilst it may be legitimate to sentence adults according to the principles of just deserts and retribution, in juvenile cases ‘such considerations should always be outweighed by the interest of safeguarding the well-being and the future of the child.’
4. Benefits of Longer Sentences (over 12 months)
Persistent and serious offenders cause greatest concern to the general public (Audit Commission, 2004). John Halliday found that there was a ‘general consensus’ support among the practitioners, stakeholders and the general public that lengthier prison sentences were appropriate in serious cases, such as those involving violence, drug dealing, organised crime, or offences against vulnerable persons (Home Office, 2001: 120). Recent Canadian legislation, while seeking to reduce the number of young offenders sent to prison, also facilitates the imposition of harsher sentences on a smallnumber of juveniles convicted of the most serious offences (Roberts, 2003). The rationale underpinning lengthier sentences seems to gravitate around punishment and deterrence, rather than rehabilitation. For this reason, even those who are sceptical about the entire concept of incarcerating young people accept that custodial sentences are still regarded as an appropriate method of disposal for young offenders who are considered to be at high risk of serious re-offending:
‘Deprivation of liberty as a punishment for serious and/or persistent offending is an understandable and legitimate response. In many cases it is necessary for young offenders to be stopped in their tracks as far as criminal activity is concerned, and custody brings offending in the community to an end, at least for the period of incarceration. Society has the right to expect custodial authorities to hold young prisoners, restrict their freedom, confront them with the consequences of their behaviour, provide conditions in which the punishment of the court can be served out and return them to society less likely to re-offend.’ (Home Office, 1997a: para 106)
The Government recently stated that it did not consider custodial sentences for juveniles to be thought of as ends in themselves, but that ‘the fundamental aim … should be to prevent re-offending’ (Home Office 1997b:19). Where custody is necessary, it should be ‘served in such a way as to provide the public with a reasonable prospect that young prisoners on discharge will not re-offend’ (Home Office 1997a, para 1.09). The Government has placed considerable emphasis upon education and training as being central to making custodial sentences worthwhile in terms of preventing re-offending, whilst drugs and alcohol problems should also be addressed (National Audit Office 2004). The Chief Inspector of Prisons advised that the following needs ought to be met ought to apply in every case where a custodial sentence is handed down to a juvenile (ibid., para 2.16)
The need for containment, discipline and control;
The need for accommodation, food and warmth;
The need to tackle offending behaviour the need to maintain positive contacts with families;
The need to experience positive human relationships with adults and other adolescents the need for individual needs assessment and custody;
Planning the need for participation in education, employment and recreation
The need for appropriate health care;
The need to learn practical skills the need for help with personal and emotional problems (for example, learning to cope with the experience of having been abused or dealing with substance misuse);
The need to be prepared for life outside the need to be treated and respected as individuals.
The Chief Inspector noted that if these needs are met and that efforts are made to reintegrate juveniles into the community, there is every chance that juveniles may be able to alter their behaviour as a result. Certain traits of behaviour were identified in the Review as forming part of a ‘street culture’ common to many young offenders. These beliefs underlying this culture included (ibid., 2.06):
To use of crime to meet financial needs;
To use of assertive techniques whilst offending;
Competitiveness;
The need to operate in small gangs;
To steal things which are easily sold ;
To learn how to sell the proceeds of crime;
To shop around to get a good price for the proceeds of crime;
To be indifferent towards the experiences consequent upon a court disposal;
The need to adopt short term goals.
If such values are widely held among juvenile offenders, the Chief Inspector concluded that the task of prison workers was to ‘confront these values and to motivate young people in custody by offering a more positive set of alternatives’ (ibid., 2.07). Obviously the shorter the period a young person spends in custody, the less time prison workers have to address and challenge this culture. On the contrary, lengthy custodial sentences give the prison staff the opportunity to engage constructively with the young person and may conceivably carry some of the following benefits: