Youth Justice System Promote Desistance


02 Nov 2017

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How far can the youth justice system promote desistance?

This paper will discuss how far the youth justice system can promote desistance by focusing on the system’s capability to promote desistance, whilst more generally exploring explanations of desistance. In doing so, the paper will provide a general overview of the concept by providing a definition, exploring past theories (although these will not be thoroughly analysed), presenting a few underlying problems, and highlighting what is most considered to promote desistance. In particular, whether current policies in place in the youth justice system successfully promote desistance, and the capability to accurately measure desistance rates in providing such evidence, will be questioned .

Firstly, it is important to provide a brief description of the role of the youth justice system in order to give a background to the discussion. To clarify, if one is under the age of eighteen and has committed a notifiable offence, a separate justice system applies, which works in three different parts (Newham London, 2009). Firstly, there are the ‘youth offending teams’ which endeavour to help young offenders in the community to cease from committing crime. Secondly, ‘youth courts’ address those young people who have been charged with a crime and decide where it is most appropriate for a case to be held (Newham London, 2009). Lastly, the final resort in terms of handling a juvenile offender is custody which consists of an offender being incarcerated in either a secure children’s home, a secure training centre, or a young offenders institution. Whereabouts one is held is dependent on one’s age, the court discretions, institutional availability and other conditions (Youth Justice Board, 2013:36). One can note, especially in relation to youth offending teams, that the youth justice system holds some importance on the desistance of youth offenders. This view shall be explored later in this paper, but in order for this to be the case it is necessary that ‘desistance’ is defined.

Since the 1980’s, desistance has become a research topic in its own right, due to an increasing emergence of information as to why offenders desist (Farrall, 2006:4-5). Maruna describes desistance as "the sustained absence of a certain type of event…crime", on this view, desistance is about sustaining legitimacy, and staying criminally inactive (2006:17). In the same way, desistance has been defined as a "process of ending a period of involvement in offending behaviour" (Farrall, 2006:1). The idea of desistance as an on-going process has not always been popular, by in the past being viewed as a termination of a criminal career. However, in recent years the understanding of desistance as a process has become emphasized by researchers (Fitzpatrick, 2011:233).

Like any concept, desistance it is difficult to accurately define, as many hold different views to what they believe it to be. However, viewing it as a process is favourable as there are problems with understanding desistance merely as "an end". For instance, if desistance was considered as just one moment in time, it would be harder to deeply study and research the concept (Maruna,2006:23). Therefore, for the purpose of this essay, Maruna’s definition of desistance as a sustained process will be used.

In terms of understanding desistance, and what is considered to promote desistance, one must look to past explanations as to why individuals desist. Firstly, Maruna (2006) discusses several explanations for desistance. The ‘medical model story’ is described to hold psychotherapy and other treatment-based programmes as the reason for the rehabilitation of offenders. Also, the ‘specific deterrence story’ is described to argue that it is custodial sentences themselves that deter offenders from crime, due to the fact that the conditions of prison teaches offenders not to re-offend. Even though it is the case that correctional interventions can be effective in reducing re-offending rates, it has been argued that these interventions from the state in use in the criminal justice system are not responsible for consistent desistance of offenders (Maruna, 2006:27) . This is arguably due to the persistence of many offenders after they have undergone sentencing and punishment. To demonstrate, reconviction rates of juvenile offenders have been said to stand at 80 percent (House of Commons Committee of Public Accounts, 2004). Consequently, it seems that other forces must account for desistance. Specifically, ontogenic and sociogenic theories are considered to promote desistance in a more consistent manner (Maruna, 2006 :27).

Glueck forwards the ontogenic theory that offenders age out of crime, and that with time one becomes a "responsible adult" (cited in Maruna, 2006:27). He goes as far as saying that there is an "intrinsic criminal impulse" which declines naturally after the age of twenty-five (cited in Maruna 2006:27). This theory has been popular as an explanation for desistance, although it is important to point out that the accuracy of the statistics that are provided are questionable, as they may only reflect the increased intellect of the offenders in committing offences as they age or the fact that the offender is unable to commit more offences due to their incarceration(Maruna, 2006:20 ). From this, ontogenic explanations must be received with a degree of scepticism.

Additionally, the importance of social context has been emphasized by a number of commentators with respect to desistance( Fitzpatrick, 2011 :228). These theories involve the consideration of quality relationships in an ex-offenders life, and of their job stability. On this view, Farrall (2002) argues that desistance "is often the result of attachments to the labour force or to marriage partners or both" (2002:227). To highlight, once one has an emphasis on self- attainment of a societal goal, then one is less likely to offend (Farrall & Calverley, 2006:1).

Despite the high regard of these theories in comparison to that of interventional programmes, several theorists have argued that it is more than just maturational and social causes that promote desistance. To illustrate, Cornish and Clarke point out that although social factors do contribute to desistance from crime, it is attributed more to the importance of the rationality of the offender in their decision-making (cited in Farrall & Calverley, 2006:9). Maruna puts particular emphasis on the importance of the offender’s ‘self’ in terms of desistance, arguing that "sustained desistance…requires a fundamental and intentional shift in a person’s sense of self" (2006:17). On this view, more traditional explanations of desistance do not provide much support of the justice system in promoting desistance, as there seem to be more grounds in arguing that social factors alongside the offender’s rationality and self-awareness promote desistance, with this belief arguably stemming from the high rates of re-offending after caution, conviction or release from custody.

Although the strength of individual, maturational and social factors to promote desistance has been established in comparison to that of state practices, it cannot be disregarded that the youth justice system has measures which do try to promote desistance to some extent. In 2008, the Youth Rehabilitation Order (YRO) came into effect as part of the Criminal Justice and Immigration Act (Youth Justice Board, 2011). This order is a "generic community sentence for young offenders and combines a number of sentences into one generic sentence", for example, ‘intensive fostering’ (Youth Justice Board , 2013:31). It offers a more needs-based and individualised risk approach to community sentencing (Youth Justice Board, 2013). The restorative justice approach underlies the YRO, which has recently become a main focus in dealing with crime generally. Restorative Justice involves the justice process operating from a belief that one can get justice through problem solving and reparation rather than from punitive solutions (Conflicts Solution Centre, 2009). Restorative approaches, such as offender-victim mediation, are being used for those under sentence, and as a means to divert young people from the justice system (Nacro, 2011). The idea of diversion supporting desistance can be viewed in parallel with the importance of self and social factors in aiding desistance, as if one is not in the system, then one has more opportunities to attain goals in society.

One can put further emphasis on the idea of diverting young people from the Youth Justice System, for instance McAre and McVie have argued that this diversion has shown to increase desistance. To explain, research from the ‘Edinburgh Study of Youth Transitions and Crime’ reflected that the more involved a juvenile is in the system, the less likely it is that they will desist (2007:315). This holds focus on the key to reducing youth offending as "maximum diversion and minimum intervention" (2007:340). Thereby, it could be considered that the policies surrounding youth offending, and orders such as the YRO, are not the correct way to promote desistance, as emphasis should be put on the youth justice system acting to divert young offenders. However, minimum intervention could actually consist of some involvement of the juvenile in the youth justice system, and as mentioned previously, there are elements of policies for juvenile offenders which do hold a focus on diversion. For instance, in terms of promoting desistance, one could see the YRO as an acceptable amount of contact for a juvenile offender, and custody as an unsuitable amount. Even so, McAre and McVie would disagree with this, arguing that as a whole "systems appear to damage young people and inhibit their capacity to change…and never will, deliver justice"(2007:340). On this view, the promotion of desistance may be seen completely out of the hands of the Youth Justice System. Albeit extreme, this belief emphasises the importance of diversion in terms of promoting desistance.

Although one may not entirely agree with McAre and McVie, one cannot deny that there is recognisable plausibility in the assertion that minimum intervention is successful in promoting desistance when looking at the Compendium of Re-offending Statistics and Analysis. This compares "proven re-offending rates for young offenders aged between 10 and 17 receiving different types of sentences at courts in England and Wales" from 2005 to 2009 (Ministry of Justice, 2012:3). The report states that juvenile offenders that received a low level community sentence from the courts, had a "statistically significant lower re-offending rate" in comparison to those juveniles that received a higher community sentence (2012:3). This suggests that the less involved one is in the youth justice system, the more likely one is to desist from crime. Furthermore, according to the report, there was a "higher re-offending rate for offenders receiving a custodial sentence of 6 months or less than those receiving a high level community sentence" (2012:4). From this, one could argue that the deeper a juvenile offender is in the youth justice system, the more likelihood the juvenile will re-offend. These statistics provide some evidence to suggest that the amount of intervention (in terms of the severity of punishment) with the youth justice system does affect rates of re-offending. Although, one must take into consideration that the comparisons in the report were made before the YRO was introduced in 2009, so in this case, evidence of rates of desistance in terms of the order is not available (2012:10).

After discussing these statistics, it should again be highlighted that within the current sentencing framework there are opportunities provided for young offenders to be diverted from the heaviest type of contact, namely custody. This is through the use of the referral order which is a "unique sentence directly involving the local community, by means of the volunteer youth offender panel members, in holding the young offender to account for their actions"(Youth Justice Board, 2012:7). This involves that, on occasion, the offender follows a restorative justice approach and makes reparation to their victim (Youth Justice Board, 2012). If the child is under 16 and is in court for the first time pleading guilty, a referral order must be passed (Youth Justice Board, 2012:7). An opportunity such as this instantly stops the juvenile’s incarceration, and in light of the report above, this order should be considered to help promote desistance.

Even though it is apparent that the recent policies in relation to youth justice are very much in favour of desistance, through the promotion of restorative approaches, and with attempts to divert young people from custodial sentences (although not as much from the system itself), it is questionable as to whether there is strong evidence to suggest that they are actually promoting desistance in practice. For instance, Harry Fletcher, assistant general secretary of Napo, acknowledged that when the community punishment of electronic monitoring (as part of the youth rehabilitation order) was increased in time span from six to twelve months, there was "no evidence…produced by any government over the past 20 years to show that curfew tags have any impact at all on re-offending rates" (Fletcher cited in the Guardian, 2011). This alerts one to the difficulties of determining evidence in relation to desistance. A huge factor of these difficulties could be attributed to the problems of assessing levels of desistance. For example, one cannot determine the exact point in which a person has desisted or what has caused the person desist. To explain, although it is possible to assess re-offending rates of ex-offenders as they return to court or prison, as a process it is questionable as to whether it is possible to accurately gather or assess rates of desistance. To illustrate, it is not clear as to how long an ex-offender will desist from crime, and when one can label an ex-offender as permanently desisting from crime. On this view, desistance is "not a variable to be measured" (Polizzi, 2010:192). Therefore, when attempting to assess the possible success of maximum diversion, or that of the YRO, there exist difficulties. Generally, this causes problems in knowing how far the youth justice system can go to promote desistance. Despite this, one can acknowledge that the government is going in a positive direction in terms of introducing policies which favour desistance in the youth justice system, whether solid evidence of the policies promoting desistance can be provided or not.

To summarise, due to high re-offending rates following conviction from offenders in general, it seems that the extent to which justice systems promote desistance is minimal. Instead of highlighting the strength of interventions within prison, many theorists have looked towards maturational and social factors, alongside the rationality of the offender, as key forces in promoting desistance. This may be considered to have little association with the justice system. However, youth justice policies do hold an emphasis on the rehabilitation of young offenders, to illustrate, the implementation of the YRO as a pro-active alternative to custodial sentencing. Although, many have argued it is in fact the diversion of juvenile offenders from the youth justice system that promotes desistance. This is reflected in the statistics which support the belief that the more involved a juvenile is in the system, the less likely they are to desist. On this view, it could be believed that the youth justice system cannot realistically promote desistance, unless the practice of maximum diversion is emphasised and seriously undertaken. Correspondently, this practice is thought to be an element in the new policies, with the referral order making minimal intervention possible. However, a main problem which underlies the whole idea of the desistance from crime is the fact that it is difficult to accurately measure desistance rates. Due to this, one cannot really know for certain if specific orders have aided the desistance from crime, as it cannot be known if someone has truly ceased to commit crime. Similarly, there are statistics we can look at which suggest that maximum intervention is effective in promoting desistance, but the extent to which this is true is uncertain. However, it should be recognised that despite these underlying problems, there are desistance-promoting policies in place in the youth justice system, and to some degree maximum diversion is a focus of the system and is somewhat in practice.

In conclusion, although the promotion of desistance can be recognised in the youth justice system, how far this system can go in promoting desistance can only be determined by the introduction of a means to verify the success of the system’s attempts to promote desistance. Until then, explanations for desistance that exist outside of the youth justice system will remain more highly regarded.


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