Author and Contributors

Author

H. George Dieter has a degree in law from Germany and an MA (Psychology) and MApplSc obtained in Australia. 

He has worked as a psychologist for the Department of Juvenile Justice in a detention centre for more than 10 years. His clients ranged from repeat ‘petty’ offenders to young men convicted of serious crimes such as robbery, rape and murder. 

The author currently works in private practice as a psychologist and coach with a range of clients, and as facilitator and clinical supervisor for clients in the corporate and public sectors.  

Contributors

David Rose: Freelance writer and author.

Professor David Brown: Professor of Law at the University of NSW.

Ross Gittins: Chief Economic Editor for The Sydney Morning Herald.

Professor Stuart Henry: Director of the School of Public Affairs, San Diego University.

Coalition for Justice, Adam Ortiz: The Coalition for Juvenile Justice (CJJ), with grant support from the Office of Juvenile Justice and Delinquency Prevention (OJJDP) at the US Department of Justice, devoted a national conference to explore how juvenile justice systems could work more effectively with youth and families.

Robert Tudisco: Practising attorney in New York, diagnosed as an adult with ADHD and active in his local CHADD.

PREFACE

This book confronts the issues raised by juvenile crime, not least the question of whether juvenile offenders should be treated as adult offenders. While there is no disputing that juvenile offenders have sometimes committed horrendous crimes, exploring their lives invites the question: to what degree are juveniles victims as much as perpetrators? If we suspend the impoverished view that they are ‘born offenders,’ we must then ask: ‘What led them to commit their offences?’ This book invites readers to examine their own attitudes about justice, to explore their own views about revenge and retaliation, and delve into the depths of their satisfaction or frustration with the way ‘the juvenile justice system’ deals with deviant youth. By ignoring the voice of offenders, expressed through their actions against social cohesion and harmony, by locking them away, we miss an opportunity to reintegrate them into the fabric of society.

Ironically, in our belief that we act to preserve harmony, we actually create disharmony; instead of reducing the harm-producing processes in society we exacerbate them. Rethinking our attitudes, policies and juvenile justice processes may allow us to transcend the myopia of our existing ineffective responses. To begin to embark on this new vision of justice for juveniles, and to embrace a different kind of relationship with young people, we must first listen to their stories.

This book then is about how society should deal with youthful offenders. It is as much concerned with the ‘who’ and ‘why’ as it is with the ‘what to do’ to help them change their behaviour in the future. Unlike the many books on the topic written by academic writers and researchers, this is a book written by practitioners for a lay audience. It is based on personal experience.

Having worked with young offenders, I have experienced their stories and shared in an understanding of their lives, but have also been a part of the system that deals with them. This experience has raised serious questions for me about the often-stated policy solutions for juvenile criminality that are little more than locking them up or increasing their punishment. Does the implementation of tougher sentences, indeed retributive punishment, really deter juveniles from committing crimes? Is adult treatment with long sentences the most society is willing to invest in these young people? Is a child that commits an offence no longer a child?

A focus on crime and punishment can be very limiting and may discourage a deeper insight into the reasons behind the offence. Focusing on their offence may overlook and fail to address the fact these young offenders often have been victims themselves before turning the tables.

Instead, we need to re-examine both the individual and the common backgrounds of young offenders where contributing factors may be more easily isolated and identified than in their adult counterparts; their histories may provide insight about what drives a juvenile offender’s actions. This focus in turn may allow for a different perspective on juvenile offending and may suggest more effective ways of dealing with offenders toward preventing their unlawful behaviour. Refocusing our attention once again on juvenile offenders must begin with an understanding of childhood and particularly adolescence.

Adolescence is a time when young people are establishing their identity, when they may be racked with self-doubt, rebellious nonetheless, and eager to prove their developing maturity. Any parent will attest that even ‘normal’ adolescents need encouragement, support and a great degree of tolerance. Currently punishment is based on behavioural observation, which bypasses the important issue of culpability. A three-year-old child can destroy an object as much as an adult. However, the child does so mostly not considering the consequences, while an adult may do so to achieve the outcome. The ‘offences’ stem from different mindsets, and children and adolescents often do not fully appreciate the extent of their actions.

When adolescents offend it is because they have not successfully dealt with their task of becoming a ‘grown-up’. Are we willing to help them restore the harm that they may have caused others? Are there ways to help them change their situations to make crime and delinquency a less attractive, less likely pattern of behaviour?

It is important too, to recognise a global phenomenon. While a proportion of all juveniles commit delinquent acts, those that end up in the juvenile justice system have certain characteristics that are not representative of the population of offenders. Those enmeshed in juvenile justice systems around the world are predominantly from disadvantaged socio-economic backgrounds. This is not because middle and upper class juveniles don’t commit such offences, but because they are less likely to get caught, less likely to be arrested, less likely to be charged and less likely to remain in the system than their lower class peers. As a result, a proportion of juvenile offenders has already experienced the system failing to protect them and so their need for guidance, help and even pity is far greater than that of their middle-class peers.

These juvenile offenders often have a history of community service-based interventions that begin from an early age, with their parents already known to the respective social service departments. Their underprivileged background does not fade from their minds and into oblivion when they are thrown into detention; instead their sense of disadvantage is likely to be reinforced by the experience.

Should the fact that they have committed a crime exclude them from public empathy? Their plight is sadly still cast in the 16th century concept of the ‘undeserving poor’. However, given their patterns of behaviour, can these juveniles be expected to change in an instant what they have relied upon for most of their short lives? Or is it setting them up for failure by demanding an unrealistic improvement from not only the neediest, but also the least equipped to achieve it? The question needs to be answered whether society truly wants them to succeed and if so, what it is willing to do to make their task a little easier and increase their chance of success. Are we prepared to concede that the perpetration of an offence does not stop a child from being a child nor an adolescent from being an adolescent? If we accept that these juveniles are in fact deserving of help, what kind of help do they need?

Like it or not, our children are the messages we send to the future!

Clearly, the juvenile justice system has moved a long way from the days when children were seen as little adults in need of harsh discipline, detention and forced physical labour. Since the mid-20th century many initiatives have been developed that attempt to divert young offenders from custody such as warnings, youth conferencing, restorative justice, periods of supervision and community service. The benefits of these options are acknowledged, but they are not the focus here. The starting point for this book is what to do when these interventions fail or are deemed inappropriate.

The sub-title of this book could well have made reference to young offenders as: ‘The Other Stolen/Lost Generation’ on the basis that juvenile offenders share a similar fate to what has become known as the ‘stolen generation’ of Australian Aboriginal children who were taken away from their nurturing families as part of the assimilation program that took place well into the 20th century. Their families were replaced with another kind of care, which even in the most benign of cases, could not make up for the nurture they would have received from their own mothers. Likewise, just as nobody wanted to know about the ‘stolen generation’ of Aboriginal children, it appears juvenile offenders are receiving a similar treatment.

What follows is not meant as an excuse for their deeds, but aims to provide some background to uncover what may have contributed to their plight. The questions are: can preventative interventions be designed once factors associated with juvenile delinquency have been identified; and failing this, is incarceration the most effective way to deal with young offenders; and what new alternatives can be tried which hold a promise to be more effective?

When a serious crime is committed it evokes abhorrence. When committed by a juvenile it can turn to horror, amplified by the young age of the offender. Speaking up for them is then about as popular as trying to introduce a new tax. The evidence seems so compelling that no good can possibly come from a person who violates the rules at a young age in such a serious way. What will they do when they are adults?

Indeed, a troubling question. If the answer is to lock up young offenders, it is only the next logical step in the already chosen direction for some clown to suggest incarceration of children as young as ten and overturning the concept of doli incapax, which protects children from such fate. What next? The death penalty for juveniles to prevent them from becoming adult offenders? And why stop at legalised abortion up to three months gestation? Why not extend it until the age of four or five years so parents can keep their options open until they have a better idea how their product is shaping up?

If this sounds cynical and far-fetched I refer to the debate around the contraceptive pill in the 1960s. Then the spectre of euthanasia was raised as a logical next step and dismissed as an exaggerated concern in an effort to discredit the Pill and those who argued for it. Today euthanasia has been legalised, not by some administrations that are very different from Western Governments in their approach to governance, but is accepted, or at least seriously debated in many Western societies.

After more than 100 years of the juvenile justice system searching for effective and just ways to deal with young offenders, relying on and experimenting with theoretical models, most Western systems still oscillate between the two philosophically based pillars of what is essentially the dichotomy of free will vs. determinism, encapsulated in the welfare (their fault) and justice (not their fault) model. Despite the century-long search, having tried both and a few variations in between, none has produced the desired results evidenced by the fact that there is again debate about getting tough on ‘young thugs’ who, going by the quality of the debate, seem to account for most of the evil facing Western societies.

The issue could almost be summarised thus:

‘Troubled young people are responding to the troubles of our times. The overloaded juvenile justice system has responded erratically to them, mixing hostility with understanding, callous harshness with unreasoned lenience, and obsolete notions about human behaviour with the insights of the latest research. In the most literal sense of the cliché, the juvenile justice system is much more a part of the problem than a part of the solution. The need for an overhaul is sensed everywhere, but prescriptions for change have not emerged from the incessant discussion of the issues. (Hamparian, D. M., Schuster R., Dinitz S., and Conrad J. P., 1978)

Couldn’t have said it better myself.

However, this book is less concerned with current interventions on a micro level but aims to provide the impetus to rethink the policies underpinning them. Rather than pitching different approaches against each other, it aims to utilise what unites them and the knowledge gathered in various applied and theoretical disciplines to provide young offenders with positive alternatives to their dysfunctional disposition based on evidence, not political agenda.

Chapter Content

While I have attempted to present the issues of what I am inclined to call the ‘social disease’ that has become known as Juvenile Justice by arranging related topics in chapters, this has not always been possible. Both the complexity of the issues and the fact many are almost inextricably interwoven, have made it necessary to sometimes refer back as well as pointing forward to other chapters.

While theoretical models fulfil the important functions of pointing out directions and clarifying moral and ethical underpinnings, the question must be asked if these models have satisfactorily fulfilled this role. Or have they been abused as a means to a pre-determined end, blurring the lines between the role of the courts and the executive arm of the law which administers the sentences handed down by the court, making the idea of juvenile ‘justice’ an almost farcical proposition? (D. Brown: Time to Get Tough – Again).

The limitation of theories as hard and fast rules, spelt out in theoretical models is discussed in ‘Justice and Society’. While the social cost is already a steep price to pay, the economic cost of incarceration may provide an additional incentive to look for more effective and cheaper alternatives (R. Gittins: Not Sold on Hard Cell Solution).

Are young offenders in reality adults who were given the best in opportunities and guidance their parents and the social environment could provide, only to thumb their noses at this benevolent society and its rules? Or are they young people who represent a mirror image of the state of society, amplifying its excesses and shortcomings?

The background and upbringing of these young people brings to mind an analogy, which in computer language is known as the ‘garbage in equals garbage out’ equation. When it comes to these influences, implicated when young people turn to crime, society seems to have a lot to answer for. But even if their offending is a result of their own juvenile decision-making, there may be good reasons to ensure their offending does not continue into adulthood. Either way, how society deals with young offenders may decide the direction of their future – and that of society. If incarceration becomes an unavoidable consequence of their crimes, it seems even more important that what they learn in custody gives them the best chance to fit into the society where they will be released, without the need to rely on criminal activities to survive. David Rose’s article ‘A Life of Crime’ raises these issues and their implication in the treatment of young offenders.

The factors which may later influence a child’s behaviour and slide into delinquency are further discussed in ‘Child development: The Nurture Aspect’. It looks at the very early influences which shape a child’s perception and lay the foundation stone for its development.

The theories which try to explain, drive and justify interventions and the factors that have been identified as contributing to juvenile offending, are explored in ‘The Blame Game’. Can political agenda, expediency or localised government policy hide the underlying motivation of what represents the public’s seemingly inalienable right to punish with prejudice? Professor Stuart Henry addresses the question directly, that is, if punishment does provide the answers society is looking for when dealing with offenders, in On the Effectiveness of Prison as Punishment.

The Coalition for Juvenile Justice in Washington DC devoted a national conference to explore how juvenile justice systems can work more effectively with youth and families. Its report, What Are the Implications of Adolescent Brain Development for Juvenile Justice?, presents the neurological evidence and recent research findings on adolescent brain development. While this of course has far-reaching implications for the understanding and treatment of young offenders, it is also an eye-opening account for any parent having marvelled at the sometimes almost instant transformation of their offspring from one’s own child into some seemingly alien creature having been raised on a different planet.

Adam Ortiz also relies on this evidence, which calls into doubt the ability of adolescents to make rational decisions, especially in emotionally taxing situations, for example, while pursuing criminal activities, be it through the rush of adrenaline or the emotions which drive the offence. The influence of emotions on decision-making is further explored in ‘Crime: Decision or Process’.

Robert Tudisco casts ‘a little ray of hope’ in his account of a different approach taken in the Family Court in White Plains, New York. While acknowledging their wrongdoing the court takes the time and interest to see that these children receive the proper assessment, education and placement when deciding on consequences for their wayward behaviour.

The reality of incarceration and its aftermath is recounted in two narratives as seen through the eyes of two young offenders in ‘What do Juvenile Justice Departments have to do with it?’ This also establishes the backdrop for a proposal based on the evidence and suggestions provided in the various contributions and arguments presented therein, for ‘An alternative model to current detention practice’.

The intrepid reader may find the concluding chapter a close approximation of reality in the guise of fictitious shenanigans. The more innocently inclined may consider it as, surely, too wild to have any resemblance to reality. Others again may recognise some (or many) features as ‘another day in the office’. It contrasts the different concerns on the different levels of the same organisation in a, of course totally hypothetical department, in which any resemblance to existing, previous or future persons or institutions would have to be purely coincidental, unintended and grossly overdrawn (and whatever else legal advice would want me to include).

But, let’s not reach too far ahead; in order to understand such proviso, let’s start with the …

INTRODUCTION

Juvenile Justice: Who had THAT idea, for crying out loud?

As Steinberg & Schwartz (in Grisso & Schwartz, 2000) note for the US, today the juvenile justice system is not a ‘single, self-contained unit operated by one entity’, but rather part of the overall justice system which deals with young offenders in terms of punishment, supervision and rehabilitative interventions. Likewise in Australia the idea and development of a ‘juvenile justice’ system was neither linear nor uniform across the different states and territories.

What is commonly subsumed under the label ‘Juvenile Justice’ represents much more than a government authority dealing with young people who have committed crimes. The fact that young people commit crimes throws a challenge at the system questioning its values, its education system, morality and implied assertion of living by example. Crime in general and juvenile offending in particular, presents a threat to the Government’s ability to control the course and path of society. More concretely, it threatens the proclaimed sanctity of personal possessions and safety and impacts on the enjoyment of life as promised, planned and insured for. What will the future be like if this is our youth? Who will control them if the system does not or cannot?

But juvenile offending seems to reach even deeper and right into the very fabric of society, into the essence of human nature, as well as into political and religious convictions. The term ‘Juvenile Justice’ is generally used only in reference to the point when juvenile failings and shortcomings intersect with what society is unwilling to accept and when the destructive factors behind the crimes appear to become obvious. Although a destructive presence is often known long before it evolves into the climactic conclusion of a serious offence, it gets little attention at the time. It goes unaddressed in the hope all may turn out well, often against better judgment and experience to the contrary.

As such, juvenile offending represents reality in juxtaposition to the ideal of what mankind is meant to be. It appears the collective frustration over this realisation is taken out on the weakest link in the chain and all responsibility off-loaded onto the young offender. This infusion with public emotion into the circumstances which may have led to the crime only adds to the complexity and difficulty of teasing out what can be reasonably attributed to the juvenile and of showing where society may have to accept some responsibility. The casualty too often is justice itself, turning what was supposed to provide justice to juveniles into Juvenile Injustice.

‘Juvenile Justice’ is the rather incongruent label being applied to juveniles who offend, the special legislation which deals with their offences, the juvenile courts and the process therein, and the organisations charged with administering the sentences handed down by the courts. In addition there are the theoretical, philosophical and political positions underlying the approaches to juvenile offending.

The complexity of the issues brought under the umbrella of ‘juvenile justice’ however, seems already reflected in the many theoretical/ philosophical dispositions and policies driven not least by political expediency. This may also have contributed to the merry-go-round of approaches towards juvenile offending, oscillating between an emphasis on either punishment or the welfare of offenders, introduced then abandoned again with unsettling predictability. Finding it too difficult to decide may have provided momentum to the current push for the juvenile justice system to be re-integrated into the general justice system. It is now at serious risk of being abandoned and losing its identity as a separate part of the justice system, evident in the slogan ‘adult time for adult crime.’

Another way of course, of examining Juvenile Justice would be to define the two words in a different way. ‘Juvenile’: pertaining to young people who have a story to tell and the way they tell it. ‘Justice’: representing the way the community responds to their stories of disillusion and disadvantage, social injustice and mental disorders which have resulted in their breaking the law.

As will become apparent, juvenile offending is the result of an intricate interplay of many individual factors coinciding and culminating in young people going on public rampages and crime sprees or committing acts of sometimes unfathomable, seemingly senseless violence. These displays can make society appear to be out of control and the justice system unable to cope.

While not necessarily apparent, society is highly affected and, itself implicated by its young people breaking its laws. This impact does not stop when they are being locked up, but will continue after they have been released. It is one more reason to ensure we get it right when we deal with young offenders and was therefore, also the motivation of our legal forbearers to create a separate justice system for juveniles.

Juvenile Offending: When Things Start to Go Wrong, or, the Point of No Return?

What makes the issue of juvenile justice so compelling is its unique position: it is straddled precariously between the young person as a budding offender and his becoming a ‘career criminal’. Just as nothing is created big, but starts by adding little by little, so juveniles become juvenile offenders, become adult offenders.

Juvenile offending is the point where an individual starts to behave in a way which impacts on the fabric and internal peace of society, its coherence and the security it provides. However, although committing crimes runs contrary to the interests of the community, it nonetheless originates within the context of that same community. How then does a young innocent child develop into an abhorred juvenile offender? Who teaches the child to behave in such an undesirable and unacceptable manner or is criminal behaviour a child’s very own and original product? To identify the origins of offending and thereby being better equipped to develop strategies to deal with or even prevent criminal behaviour, juvenile delinquency presents an early opportunity for investigation as well as being a compelling issue for parents and lawmakers alike.

The task of tracing the origins of offending is difficult enough at any particular point in an offender’s history, but increases in difficulty with the age of the offender. The input from the environment and the individual reaction to it become increasingly interwoven, making it ever more difficult as a person gets older to isolate personality traits, their individual experiences and the reciprocal effects of their interactions with the environment and its influences. When an adult offender claims he made a mistake when he was young and gaol then taught him how to become a criminal, what does it mean? Is it his way of explaining what happened and simply a convenient excuse, or indeed, the truth?

In the case of juvenile offenders this process is a little less complex (but not to be confused with ‘easy’). Observations from child developmental psychology show much more readily the extent to which external influences help shape a child’s reaction to the world. For a significant period during human development we can observe a child’s behaviour as a direct reflection of the input it receives. We can appreciate the potential it is born with and the way it is then activated or stimulated before the child is in the position to evaluate these influences and then display its own decision-based behaviour.

At this point, normally associated with late adolescence, accepting responsibility for their actions is not only one of society’s expectations, but a prerequisite for becoming a fully accepted member of society endowed with all the rights as well as the obligations that come with membership. Even then, as an adult there is no escaping from the early life experiences, which will forever shape the way an individual thinks, feels and subsequently interacts with the world.

However, the individual is now assumed to have sufficiently dealt with his personal issues to be trusted to respect and accept societal norms and expectations, be it through the assumption of a ‘social contract’ as some philosophers may argue, or the Socratic presumed self-interest, which he proposed prompts us to want to act justly.

At what age can an individual reasonably be expected to act responsibly as far as the law is concerned? What exactly transforms a juvenile suddenly into an adult when they turn 18 years of age (or 17, as in Queensland, some countries overseas and many states in the US)? Interestingly, in 1849 the relevant legislation in Australia set the upper age limit for adult status at 19 years. What is the evidence to support the assumption adulthood is achieved at that age? Sometimes the law does not even wait for young offenders to reach that age before treating them as adults. Serious offences are often directly referred to the adult justice system bypassing the protection the juvenile courts are meant to afford youthful offenders.

What is the evidence that the severity of an offence should determine whether a child is treated as a child or as an adult by the law? From a developmental viewpoint the severity of the offence would rather indicate the immaturity of the offending child rather than its wickedness.

As the destructive progress unfolds and the young person spends more and more time in custody or becomes more crime savvy when thrown in with more seasoned adult offenders, are we prepared to pay the increasingly steeper price to the community when the young person inflicts more harm upon release?

Or are we willing to put aside preconceived ideas such as the age of maturity? Are we prepared to replace our emotional responses to the crimes young people commit, understandable as they might be, and suppress our desire for retribution and consider more constructive alternatives?

Instead of letting those who have offended feel the ‘full brunt of the law’, are we willing to help them so they can take advantage of that ‘second chance’ despite their failings? Giving young people who have fallen foul of the law the opportunity to change the course of their lives could mean their first failing does not have to become a point of no return.

It may require us to change our expectation that these young people take the first step towards their own rehabilitation and be prepared to extend a helping hand, even against the juvenile’s apparent resistance. The prize could be young lives saved from a future of delinquency, a potentially lost generation reclaimed.

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