India

Jennifer Peirce, John Jay College of Criminal Justice

For the first part of the 20th century, the Indian government dealt with juveniles in conflict with the law under various state-level Children’s Acts. The purpose of these laws was to protect vulnerable minors, and they included separate trial processes for juveniles, the first of which was the Bombay Juvenile Court, established in 1927. However, there were not always separate detention facilities. The Children’s Act of 1960 explicitly separated the protection of delinquent children, and defined juveniles as boys under 16 and girls under 18. This Act maintained two institutions that worked in tandem: the Welfare Board and the Children’s Court. During this period, states retained autonomous systems, which led to considerable differences across Indian states (Adenwalla 2006).

juvenile crimes in India by age group
click to enlarge

The Juvenile Justice Act of 1986 marked a shift from a welfare model to a justice model, and attempted to consolidate legislation nationally and to align it with the UN Minimum Rules on the Detention of Juveniles (Beijing Rules 1985). The Act calls for the rehabilitation, development, and protection of minor offending juveniles and adjudication for more serious offending juveniles (Hartjen and Kethineni 1996). However, both juvenile offenders and neglected minors under state protection were held in the same detention centers. The Indian juvenile justice system appears to be relatively non-punitive. In 1988, youth courts issued dispositions for 23,228 juveniles and sent just over 900 juveniles to a Special Home, which is an out-of-home placement for juveniles with delinquent or special needs. Placement in a Special Home typically lasts for a minimum of three years, but judges can shorten or lengthen these sentences. Youth courts acquitted, fined, or released the majority of the remaining juvenile cases (Hartjen and Kethineni 1996). The juvenile population in India in the late 1980s was over 200 million so it would appear that juvenile crime is proportionally non-existent in India. However, part of the reason for the low number of juvenile arrests is that Indian citizens mistrust the police. Also, families exercise informal control over their children to ensure their compliance because youth deviance stigmatizes the entire family (Hartjen and Kethineni 1996).

India ratified the UN Convention on the Rights of the Child (CRC) in 1992, and this required further protection measures within the Indian juvenile justice system. This resulted in the Juvenile Justice (Care and Protection) Act (2000), which is considered one of the most progressive juvenile justice frameworks in Asia (PRI 2014). The JJA addresses both minors who are in conflict with the law and those who are vulnerable due to neglect or poverty, and mandates separate treatment for the two groups. Juveniles in the first group go through a trial-type process managed by a Juvenile Justice Board, which is composed of a magistrate and two social workers and promotes a “socio-legal” perspective that prioritizes rehabilitation. The maximum sentence for a juvenile is three years, served in a “Special Home” or “Observation Home.” Other sentence options include community service and probation. Minors who are vulnerable or neglected but not accused of a crime are the responsibility of the Juvenile Welfare Board, which can place them in a Juvenile home.

The Juvenile Justice Act clarified that all people who are under 18 years old at the time of the alleged offence are juveniles. The minimum age of criminal responsibility in India is 7 years old, although minors between 7-12 years old are treated differently than those who are 12-18 years old. Given that the previous law had set the age for being charged as an adult at 16 years old for boys, after the Juvenile Justice Act was in place, the number of boys in the juvenile system increased substantially and suddenly (Adenwalla 2006). Despite this, the infrastructure for the juvenile justice system was not expanded, and both the Boards and the detention centers continue to face capacity constraints.

A criticism of the JJA is that it provides more protection to neglected minors than to those accused of crimes, many of whom are also neglected and vulnerable (Adenwalla 2006). Conversely, critics also contend that it criminalizes neglected youth who have no criminal activity, as it requires them to live in a confined center for protection and rehabilitation aims. Furthermore, the juvenile justice system, though relatively progressive on paper, is implemented unevenly (and sometimes not at all) across India (Ferrara and Ferrara 2005), and with insufficient resources. Although the maximum time for case disposition is supposed to be seven months, the Juvenile Justice Boards typically have significant backlogs and delays. Since there are minimal programs and services in the “Observation Homes,” the youth often become restless and aggressive, and escapes occur (Adenwalla 2006). Critics claim that police often exaggerate the age of youth they arrest, as processing them through the juvenile system is more onerous. Despite a 1984 ruling that requires a court to verify the age of any defendant appearing to be under 21 years old, this does not always occur, especially in areas with lower birth registration rates (Adenwalla 2006).

Youth custody in India appears to have fluctuated since the enactment of the Juvenile Justice (Care and Protection) Act. However, the different placement facilities for juveniles obscure the relative constancy of youths in custody in recent years. Between 2005 and 2009, youth courts placed 692 fewer juveniles in a fit institution (1,933 down to 1,241 juveniles). During this time, youth courts placed 997 more juveniles in a Special Home (4,423 up to 5,420 juveniles) (National Crime Records Bureau 2005; National Crime Records Bureau 2009). In 2013, there were 1,489 (4%) were sent to fit institutions, while 9,549 (22%) were sent to Special Homes. One form of custody was substituted for another. While the Indian government has attempted to reduce imprisonment and provide rehabilitation for juvenile delinquents and neglected youths, the legislation has had minimal effect on overall youth custody. In addition, 27.8% of youth apprehended in 2013 had their case disposal pending at the end of the year; some of these youth are in pre-trial detention. Three states reported 100% case disposal for 2013, which suggests that other states had very low disposal rates (National Crime Records Bureau 2013).

In 2013, the Indian authorities apprehended (the term used for arresting a minor) 43,506 minors, 95 percent of whom were boys. Two-thirds of these minors were ages 16-18 years old, and 31 percent were 12-16 years old. About half (51%) had less than primary-level education, and 81 percent resided with their parents. The total number of Indian Penal Code crimes committed by juveniles rose by 13 percent from 2012-2013, although as a proportion of total crimes in India, there was little change: 1.3 pecent in 2013, compared to 1.0 percent in 2003. (The majority of apprehensions of youth are for IPC crimes – 89% – with the remainder of apprehensions for Special and Local Law violations, such as gambling or pornography.) The most significant increases occurred in crimes against women (132% increase in assault on women, 71% increase in insult to women’s modesty, and 60% increase in rape) – although these rates could also be influenced by the growing willingness to report this type of incident (National Crime Records Bureau 2013).

In the past few years, there is growing debate in India about whether the juvenile justice system is too lenient. The perception of lenience is sparked mostly by high-profile cases of very serious crimes committed by juveniles, for which the maximum sentence remains three years in a detention facility. The most influential case was the 2013 gang-rape of a student on a bus in Delhi; one of the perpetrators was a juvenile. Given this context, the Minister of Women and Child Development proposed a bill in 2014 that would allow people 16-18 years old who are accused of serious crimes to be treated as adults, with the possibility of sentences above 3 years – but excluding the possibility of a life sentence or the death penalty. Child protection and human rights advocates oppose this bill, as it does not ensure other protections for minors during the trial (e.g. role of guardian, anonymity), and it goes against the principles of the CRC. Nevertheless, there is broad public and political support for this measure.

References

Adenwalla, M. (2006). Child Protection and Juvenile Justice System for Juveniles in Conflict with the Law. Mumbai: Childline India Foundation.

Ferrara, Frederico and Valentina Ferrara (2005). The Children’s Prison: Street Children and India’s Juvenile Justice System. Care Share India.

Hartjen, C., and S. Kethineni (1996). Comparative delinquency: India and the United States. New York: Garland Publishing

Kumar, S. (2014, 13 August). How Should India Try its Juvenile Criminals? The Diplomat.

National Crime Records Bureau (2013). Crime in India 2013. Ministry of Home Affairs.

National Crime Records Bureau (2009). Crime in India 2009. Ministry of Home Affairs.

National Crime Records Bureau (2005). Crime in India 2005. Ministry of Home Affairs.

Penal Reform International (2014). When the crime overshadows the child: International standards and national practice in reconciling serious crime and childhood. Penal Reform International and UNICEF.

Advertisements

Italy

Jennifer Peirce, John Jay College of Criminal Justice

Italy established its first Juvenile Courts in 1934, which set out specialized judges and prioritized “moral correction.” In 1956, a new law updated this framework, emphasizing that the system should respond to minors’ social and economic needs. Nevertheless, during the following decades, the detention of youth in locked facilities (often old convents and schools) expanded. In the late 1970s, there was an effort to decentralize the social services for youth offenders, including offering them in communities rather than in detention facilities. In 1988, the Juvenile Justice Procedural Reform Act restructured the juvenile justice system, in anticipation of the requirements of the 1989 UN Convention on the Rights of the Child and in order to align with the shift from an inquisitorial to an accusatory justice system. This law is based on principles of reducing minors’ contact with the criminal justice system, reducing social stigmatization of adjudicated youth, and ensuring that detention is a measure of last resort (Istituto Don Calabria 2013).

In the current system, the minimum age of criminal responsibility is 14 years old. Youth between 14 to 17 years old are the responsibility of the juvenile justice system, but they can remain under the juvenile system until they are 21 years old, rather than being transferred to the adult system. A 1994 Constitutional Court ruling prohibited sentences of life without parole for minors.

The 1988 Reform Act significantly expanded alternatives to incarceration and diversion of juveniles away from adjudication. The Act established three methods of diversion. Prior to a case reaching trial, a judge can a) dismiss a charge by declaring the offense irrelevant or by prioritizing the “non-interruption” of the youth’s education process, b) issue a pardon if they believe the youth will not reoffend, or c) order messa alla prova (‘putting you to the test’), which is essentially pre-trial probation. Judges can issue messa alla prova regardless of a youth’s offense, so that even murderers can serve pre-trial probation.

There are approximately 1,200 juveniles on pre-trial probation each year (Nelken 2006). At the trial stage, judicial options are more restricted. If a judge finds a youth guilty, the only punishment option is imprisonment. However, judges have the discretion to suspend or reduce a sentence, which typically entail community supervision, probation, or a semi-custodial sentence. The majority of youth delinquents do not make it to trial, but, for those who do, judges convict and imprison about 20 percent (McAuley 2010). Notably, since suspended or reduced sentences often require that a family or community take on “custody” of the youth, this option is less accessible to foreign minors and those involved in mafia dynamics, as they typically do not have families or communities willing to accept this role (Meringolo 2012). In order for a community to take on officially the supervision and reintegration of an adjudicated youth, the juvenile court must qualify it as a “ministerial community,” with the capacity to provide education and reentry services (Istituto Don Calabria 2013).

Italian youth courts have reduced prison sentence orders since passage of the Juvenile Justice Procedural Reform Act. Even though the arrest rate for minors ages 14-17 has increased (from about 1400 to 1828 per 100,000 youth (Padovino and Brutto 2008)), the numbers of minors in detention facilities has dropped significantly. In general, only youths convicted of serious crimes are sent to juvenile detention centers, known as Istituto Penale Minorile or IPM (Nelken 2006; Istituto Don Calabria 2013). There are 16 such centers in Italy, with almost 1,400 employees (Meringolo 2012). Separate centers, known as “first reception centers” (CPA), hold youth for short periods after arrest or during pretrial stages, and provide some basic social and psychological services (Istituto Don Calabria 2013).

In 1988, there were approximately 7,500 juveniles in prison facilities (IPMs) throughout the year. Two years later, there were less than 1,000 juveniles in these facilities. The number of imprisoned youth slightly rebounded to about 2,000 the following year, and remained stable through the 1990s, dropping to 1,200 in 2009 (Meringolo 2012), and to 992 in 2014 (Ministry of Justice 2015). Despite the high number of youths that enter prisons each year, the average number of youth in prison on a given day is much less: approximately 452 in 2013, 184 of whom are foreign-born youth (Istituto Don Calabria 2013). At least half of these youth are actually between 18-21 years old, as those sentenced to detention prior to age 18 can remain in the juvenile detention system until they turn 21, in line with international recommendations about young adult maturation processes (Meringolo 2012).

Through the 1990s, judges sentenced between 300 and 500 youths to prison sentences each year. Since 2001, courts have sent less than 200 youths to prison annually (McAuley 2010); in 2014, 37 percent of youth in IPMs entered that year (Ministry of Justice 2015). The total number of minors under the jurisdiction of the Social Services Office has increased from 14,744 in 2007 to 20,222 in 2014 (Ministry of Justice 2015), with a growing proportion of this number being foreign youth. The rate of system-involved youth who are in community placement (as opposed to detention) has increased steadily since 2006, with 1,716 in this category in 2014 (Ministry of Justice 2015). There are also a significant and growing proportion under alternative measures: 408 in 2013 (Istituto Don Calabria 2013).

The decline in youth prison sentences suggests that the Procedural Reform Act has been achieving its primary goal. Youth courts use alternative sanctions to divert delinquents from legal proceedings, require them to participate in tailored educational programs, and expose them to support services that aid their rehabilitation. Community placements are also much less costly than detention: 111 euros per day, compared to 424 euros for a detention facility (Istituto Don Calabria 2013). Furthermore, in partnership with non-governmental organizations, the Italian government has piloted and expanded victim-offender mediation and restorative justice programs focused on juveniles in conflict with the law (Padovino and Brutto 2008).

There are not yet any formal evaluations of these programs in terms of recidivism or other social outcomes, but anecdotal evidence is positive and communities are requesting more such services. It took Italy more than a decade after passing the Procedural Reform Act to establish alternative and rehabilitative sanctions, but the country now has one of the lowest youth incarceration rates in the world.

Nevertheless, there are growing concerns about the disproportionate involvement of foreign and Roma youth in the Italian juvenile justice. The foreign minors involved in the juvenile justice system are primarily migrants from Eastern Europe and North Africa, many of whom arrive in Italy unaccompanied and with few resources (Meringolo 2012). Out of the total of juveniles charged in 2000-2003, a higher proportion of foreign and Roma youth ended up with a sentence or detention. More than 40 percent of youth in the IPMs are foreign or Roma youth (and this proportion reaches 70% in Northern Italy), even though only about 25 percent of youth charged with a crime and 20 percent of all youth under the juvenile justice system’s supervision in Italy are foreign (Meringolo 2012; Ministry of Justice 2015).

This imbalance is more striking considering the fact that foreign and Roma youth are primarily charged with property crimes, while Italian-born youth form the majority of those charged with violent and interpersonal crimes. In the South of Italy, many Italian-born minors are also charged for involvement in organized crime (Meringolo 2012). A larger proportion of the foreign and Roma minors in detention are girls, compared to Italian minors – 38 percent compared to 5 percent (Padovino and Brutto 2008). Critics contend that minors with few economic resources and little access to social networks in Italy are less able to access the range of alternative and educational services that are, in principle, available to them in the juvenile justice system (Padovino and Brutto 2008; Istituto Don Calabria 2013).

 

References

Istituto Don Calabria (2013). Italy National Report – J.O.D.A. – Juvenile Offenders Detention Alternative in Europe. Brussels: European Union.

McAuley, Mary (2010). Children in Custody: Anglo-Russian Perspectives. London: Bloomsbury.

Meringolo, Patrizia (2012). Juvenile justice system in Italy: Researches and interventions. Universitas Psychologica, 11(4), 1081-1092.

Ministero della Giustizia [Ministry of Justice]. (2015). I Servizi della Giustizia Minorile: Dati statistici [Juvenile Justice Services: Statistical Data]. Rome.

Nelken, David (2006). Italy: A Lesson in Tolerance? In John Muncie and Barry Goldson (Eds.), Comparative Youth Justic (159-176). United Kingdom: Sage Publications.

Padovani, Alessandro and Sabrina Brutto (2008). Qualifying elements of a good practice: some intervention praxis of inclusion and treatment with young offenders in Italy. Proceedings from IJJO 2008: III International Conference on Juvenile Justice. Valencia: International Juvenile Justice Observatory.

Colombia

Jennifer Peirce, John Jay College of Criminal Justice

Colombian juvenile justice is regulated primarily by the Code on Minors (1989) and the Code on Childhood and Adolescence (1991). This marked a shift from the traditional “tutelary” system, common throughout Latin America, under which a judge takes on a parent-like discretionary role in dealing with juvenile offenders. In practice, this meant that in many cases, there was little distinction between juveniles and adults.

At the time of sentencing, there were three basic choices: community service, probation, or imprisonment. When the sentence was prison, youth and adults were housed in the same facilities. Throughout the 1980s, youth advocates pressed government officials to end the practice of imprisoning youth alongside adults. They also objected to the system of indeterminate youth sentences that gave prison staff the discretion to extend youth sentences for as long as they deemed necessary (Zalkind and Simon 2004).

These Codes integrated juvenile justice issues into the general criminal justice reform process in Colombia (a shift from an inquisitorial to an adversarial system) and aimed to align Colombian juvenile justice legislation with the UN Convention on the Rights of the Child (UN CRC). The CRC requires that incarceration be used only as a last resort for minors under 18. The new juvenile justice framework in Colombia is clearly differentiated from the adult system: juveniles between 14-18 years of age can be held to some degree of criminal responsibility, while those under 14 years old cannot have criminal responsibility (ICBF 2007).

The juvenile justice system emphasizes rehabilitation and restoration over punishment, and promotes a pedagogical approach. However, in the 1990s, critics noted that juvenile often disregarded the Code for Minors and continued to incarcerate youth alongside adult offenders in high numbers (Zalkind and Simon 2004). Although the Code specified that police were empowered to detain youth only in exceptional circumstances, welfare services were under-funded and young offenders often remained in police custody for extended periods, where abuse sometimes occurred (Human Rights Watch 1994).

In 2006, Law 1098 updated the Code for Adolescence and Childhood, adding explicit reference to the UN CRC and eliminating the possibility for juveniles to be prosecuted under the Criminal Code, excluding serious crimes. The System for Youth Criminal Responsibility (SRPA), under Law 1098, outlines twelve guiding principles for juvenile justice in Colombia, emphasizing the protection of youth and a flexible, specialized justice system oriented toward rehabilitation. The SRPA coordinates with the Colombian Institute for Family Welfare (ICBF) when minors require protective measures.

The Colombian juvenile justice system allows the following sentencing options for youth found criminally responsible: reprimand, community service, probation, or incarceration in a semi-closed or fully-closed facility. Juvenile detention facilities house only minors and are managed by the ICBF. In 2011, the Law on Citizen Security established that if a juvenile turns 18 years old before completing a sentence, he or she is permitted to finish the remainder of the sentence in the juvenile system, until age 25. Some political leaders argue that these changes to the juvenile justice system are too lenient and call for youth over 15 years old accused of serious crimes to be charged as adults (Semana 2013).

The number of minors processed by the juvenile justice system in Colombia steadily risen since then, with over 130,000 processed from 2007-2013; three-quarters of those cases were minor crimes, with only six percent for serious crimes (Semana, 2013). According to the ICBF, in 2014, 8,060 minors under 18 were under the supervision of the SRPA, and 3,415 of that group were incarcerated. The most common crime for which juveniles are convicted is trafficking, manufacturing, and possession of a weapon (31%), followed by robbery (29%). There were 300 youth arrested for homicide, the crime that receives the most media attention (RCN News 2014).

References

Human Rights Watch (HRW). (1994). Colombia: Code for Minors.

Instituto Colombiano de Bienestar Familiar (ICBF) (2007). ¿Qué es el Código de Infancia y Adolescencia? [What is the Code for Childhood and Adolescence?] Bogota: ICBF.

Instituto Latinoamericano Instituto Latinoamericano de Naciones Unidas para la Prevención del Delito y el Tratamiento del Delincuente (ILANUD). (1999). Grado de Adecuación de la Legislación Penal de Menores de 18 anos vigente en Colombia a la Convención sobre los Derechos del Niño. [Level of Alignment of Colombian Juvenile Justice Legislation with the Convention on the Rights of the Child.]

Jiménez Marín, D. (2009) Responsabilidad penal juvenil en Colombia: de la ideología tutelar a la protección integral. [Criminal responsibility of minors in Colombia: from the tutelary ideology to comprehensive protection.] Diálogos de Derecho y Política 1(1).

RCN News (2014, 9 May). Más de 3.000 menores están privados de la libertad: ICBF. [More than 3,000 minors in detention: ICBF]. RCN Noticias.

Semana (2013, 10 August). ¿Qué hacer con los jóvenes delincuentes? [What to do with young offenders?] Semana.

Sistema de Responsabilidad Penal para Adolescentes (SRPA) (2013). SRPA: Guía para su comprensión. Bogota: Instituto Colombiano de Bienestar Familiar (ICBF).

Zalkind, Paola and Rita J. Simon (2004). Global perspectives on social issues: Juvenile justice systems. Lexington Books.

Canada

Douglas Evans, John Jay College of Criminal Justice

Canadian juvenile justice is authorized at the national level. The national government enacts laws and legislation to provide the structure of juvenile justice policy and practice, although provincial governments are responsible for managing juvenile confinement facilities, community-based programs, and the various forms of treatment and rehabilitation services. The national government, however, may subsidize a portion of costs at the provincial level.

The 1908 Juvenile Delinquents Act and its subsequent amendments guided the structure of Canadian juvenile justice until 1984. The 1908 Act was the first law to require different legal procedures and different sentences for juveniles. While the criminal (adult) system used determinate (or fixed length) sentences, the Juvenile Delinquents Act allowed for indeterminate custody of youth offenders, with release from custody depending on an assessment of each youth’s readiness. The law placed the responsibility for determining juvenile sentence length with the executive rather than the judiciary (Bala and Roberts 2006).

Canada’s 1984 Young Offenders Act replaced the 1908 Juvenile Delinquents Act. The new legislation set the national range for juvenile jurisdiction at ages 12 to 18. It also abolished indeterminate sentences and involuntary treatment for youths. It gave judges the discretion to allow early release for juvenile delinquents and established guidelines for the use of community-based sanctions for youth offenders.

The Young Offenders Act was the subject of public and political criticism. Some political officials believed that the Act’s maximum three-year sentence for violent youth was too lenient, even though most of the youth placed in custody were neither violent nor serious offenders. Over three-fourths of all juveniles placed in custody following the passage of the 1984 Act were held for non-violent offenses.

By the early 2000s, Canada had one of the highest rates of youth custody in the world (Bala and Roberts 2006). Increasingly, the costs of youth custody were becoming a significant fiscal burden.

The 2003 Youth Criminal Justice Act (YCJA) replaced the Young Offenders Act. The YCJA limited judicial discretion in cases involving orders for custodial sentences. The law allowed incarceration and other restrictive interventions for only the most serious and violent offenses, and it specified that the primary goals of youth justice were crime prevention and rehabilitation. Severe sanctions were to be used only when necessary to promote public safety.

The YCJA prohibited the use of incarceration for violations of community sentences. To expand alternatives to custody for low-level offenders, the 2003 Act encouraged the use of community sanctions, including deferred custody, community supervision orders, and intensive support and supervision programs (Kong 2009). The legislation devoted considerable resources to prevention programs. In recent years, the Canadian national government distributed $200 million among the provinces to increase the use of community sentences, and another $30 million for prevention services.

In the year following enactment of the YCJA, custodial placements (i.e., youth confinement) declined 37 percent across Canada (Bala and Roberts 2006). The YCJA also changed the composition of those sentenced to custody. From 2003 to 2008, the number of youth property offenders sentenced to custody in five reporting jurisdictions dropped 50 percent. During the same period, there was a 36 percent decline in the overall number of youths sentenced to custody in nine Canadian jurisdictions (Kong 2009). The YCJA also reduced youth court caseloads. From 1999 to 2006, the number of youth court cases decreased 28 percent (Kong 2009).

The Act, however, did not accomplish all of its stated goals. Despite the YCJA’s restriction on custody for community sentence violators, courts continued to order custody for many youths charged with technical violations during a period of community sanctions (Solomon and Allen 2009). Canadian officials continued to seek an effective balance between offense-based sanctioning and needs-based rehabilitation. The focus of the system, at least officially, remained on preventing youth crime rather than punishing youth offenders. The YCJA expanded options for handling youth outside of the formal justice system, and Canadian policies continued to encourage rehabilitation through community supervision for all but the highest-risk juveniles.

Maintaining an appropriate balance in juvenile justice is somewhat easier in Canada than in other countries due to the nation’s single system of laws and policies. Legislation guiding juvenile justice policy and practice changed several times in recent decades, but the current system shows considerable promise in its ability to restrict the use of secure confinement to only the most serious and violent young offenders.

References

Bala, Nicholas and Julian V. Roberts (2006). Canada’s juvenile justice system: Promoting community-based responses to youth crime. In Junger-Tas, Josine and Scott H. Decker (Eds.) International Handbook of Juvenile Justice (pp. 37-63). New York, NY: Springer.

Kong, Rebecca (2009). Youth custody and community services in Canada: 2007/2008. Ottawa, ON: Statistics Canada.

Solomon, Enver and Rob Allen (2009). Reducing child imprisonment in England and Wales: Lessons from abroad. London, UK: Prison Reform Trust.

New Zealand

New Zealand has developed innovative methods for handling juvenile offenders. Juvenile justice in New Zealand is a collaborative effort between youths, their families, victims, the community, and the government. It is based on restorative justice principles.

Prior to the 1960s, New Zealand held juveniles as young as seven years old culpable for their criminal acts. The Crimes Act of 1961 raised the age of criminal responsibility to 10. A decade later, the Children and Young Persons Act of 1974 further categorized degrees of youth. The Act specified a “child” as someone under age 14. The only offenses that the youth justice system can charge a child with are murder and manslaughter. A “young person” is an individual between the age of 14 and 16 who is unmarried. Young persons are culpable for all criminal offenses. Adult Courts handle criminal offenders ages 17 and older (Becroft 2003).

The New Zealand youth justice system seeks to hold offenders accountable and offer rehabilitation to improve their reintegration. Youth justice officials recognize that youth imprisonment, especially in large numbers, is ineffective, damaging, and does not reduce recidivism. The current system is geared toward decarceration and placement in the least restrictive alternative. To provide more effective resources for rehabilitation, officials gradually have shifted resources from state agencies to private sector organizations that can offer faster and more in-depth services (Becroft 2003).

Youth Courts have several options for handling juvenile offenders. The strictest options are transfer to adult court and residential confinement. Juveniles can only remain in a residential facility for three months and after their release, a social worker supervises them for six months. Other Youth Court options include community supervision with activity requirements, community service, fines, restitution, admonition (reprimand), and discharge from proceedings (Morris and Maxwell 1997).

New Zealand passed the Children, Young Persons and Their Families (CYPTF) Act in 1989 to promote the wellbeing of youths and their families (New Zealand Ministry of Social Development 2012). The legislation made youth arrests a last resort and required the least restrictive placement for youth offenders. Incarceration is prohibited unless a youth’s offense is indictable or the youth is likely to abscond, reoffend, or interfere with his or her case. The Act urged courts to keep youths in their community and allocated resources for rehabilitation programs. It also encouraged youth offenders, their families, victims, and communities to be involved in the rehabilitation process and to offer input into the consequences for offending (Becroft 2003).

The CYPTF Act of 1989 specified other legal and bureaucratic reforms for youth justice. It required every district to have a Youth Court to which the Governor-General must appoint a Principal Youth Court Judge. The legislation mandated that the chief executor appoint competent youth justice coordinators to explore options for dealing with young offenders by means other than criminal proceedings. It suggested that stakeholders convene and report on Family Group Conferencing, an approach in which everyone affected by the offense contributes to a plan for managing the youth (New Zealand Ministry of Social Development 2012).

The Child Youth and Family Services (CYFS) department is responsible for overseeing the youth justice components of the Act. However, the CYFS lacks funding and there is no system of financial oversight so the CYFS has no accountability for spending. The CYFS relies on Youth Justice social workers to assist in the rehabilitation of youth offenders, but a majority of social workers are unqualified, which degrades the quality of rehabilitation services (Becroft 2003).

Police are the gatekeepers of the youth justice system in New Zealand. The CYPTF Act calls for police to use formal cautions in lieu of court referrals whenever possible. A formal caution occurs in a police station when a senior officer discusses the offense with the youth and his or her family or guardian and gives a written notice detailing the offense. As of 2003, 84 percent of juvenile cases were handled outside of court and 76 percent were dealt with through warnings and diversionary programs (Watt 2003). Police issued formal warnings in 44 percent of instances involving a youth offense and alternative sanctions in 32 percent (Becroft 2003). Alternative sanctions include restitution, participation in educational programs, and written apologies. Police made arrests in about 12 percent of offenses involving youths (Becroft 2003).

The Act has changed New Zealand youth justice. Arrests of 14 to 16 year olds decreased from more than 8,000 in 1987 to less than 2,000 in 1990. However, after the initial impact of the Act, the number of youth arrests increased steadily between 1990 and 2001, when it approached 3,000 (Maxwell, Robertson and Kingi 2002). The caseload of Youth Courts decreased from 11,327 cases in 1987 to 2,249 in 1990, a decline of more than 80 percent. Similar to the arrest rebound, the number of court cases gradually increased through the 1990s and reached 4,046 cases in 2001 (Maxwell, Robertson and Kingi 2002). Despite the increase in Youth Court cases, the number of court orders (sentences entailing some degree of formal supervision) and transfers to adult court decreased during this time. Judges rendered a court order in 82 percent of cases in 1987 and only 39 percent of cases in 2001. There were 1,318 Youth Court convictions transferred to a higher court in 1987 and only to 234 transfers in 2001 (Maxwell, Robertson and Kingi 2002).

The CYPTF Act had a consierable impact on youth custody. Custodial sentences decreased more than 50 percent in the decade following the Act. In 1987, Youth Courts sentenced 295 juveniles to custody and in 2001 there were only 73 custodial sentences (Maxwell, Robertson and Kingi 2002). Custodial sentences include prison and corrective training (similar to boot camp). In 2000, Youth Courts ordered custody for only 3.5 percent of youth offenders, which suggests Youth Courts’ preference for community-based sentences.

The reduction in custodial placements has allowed New Zealand to downside its youth facilities. The CYFS maintained over 1,000 youth beds in secure facilities in the 1980s. Since the passage of the CYPTF Act, the Department maintains only 75 beds (Becroft 2003). The shortage of youth beds became problematic. In 2002, there were not enough beds to meet the demand for juveniles sentenced to custody so police cells were used as short-term options to house the overflow of juveniles. Within a few years, more juveniles were held in police cells than in secure facilities. To meet the demand for secure beds, the CYFS proposed building at least three new residential youth facilities.

Another innovation of the CYPTF Act was the introduction of Family Group Conferencing (FGC) in place of court hearings. FGC is a meeting between the youth offender, the offender’s family, the victim(s), and a youth coordinator to decide the best course of action for the youth. This is a three-stage process that includes information sharing, private family deliberation, and reaching of an agreement (Connolly 1994). Youth Courts accept about 95 percent of FGC plans (Becroft 2003). While Youth Courts use diversions for low-level offenders, police and Youth Courts often recommend that persistent and serious juvenile offenders participate in FGC.

Studies have explored the nature and impact of FGC. An evaluation of FGC outcomes in 1998 found that 16 percent of the outcomes were minor (warning, curfew), 69 percent were moderate (community service, restitution), and 15 percent were severe (supervision, confinement) (Maxwell, Robertson and Kingi 2002). Another study found that 26 percent of those who participated in FGC were reconvicted within a year following the conference. This is no worse than what would be expected from juveniles released from residential confinement, though the researchers did not use a comparative sample. Juveniles who did not apologize to their victim in the FGC were three times more likely to be reconvicted than those who did apologize (Morris and Maxwell 1997).

FGC has become a prevalent alternative to Youth Court. Since the 1989 Act, FGC has replaced court hearings in three-fourths of cases involving youth offenders (Morris and Maxwell 1997). Funding is key issue that will affect the future of FGC. Between 1991 and 1994, the budget for youth justice decreased from $34.5 million to $27.5 million (Morris and Maxwell 1997). FGC will certainly suffer from the budget reduction.

The youth justice system stands to gain considerably from reductions in court appearances and custodial placements. Reducing the number of juveniles in the youth justice system could generate significant financial savings for New Zealand. The country could use the savings to to handle more referrals through Family Group Conferencing.

Australia

Jeffrey Butts, John Jay College of Criminal Justice

Juvenile justice in Australia dates to 1895 when the country created a specialized court for youthful offenders. The early juvenile court began as a progressive reform effort, but without a clear mission backed by law, implementation of juvenile procedures and policies vacillated between punishment and rehabilitation. The struggle shaped the development of juvenile justice systems across the states and territories of Australia.

Police in Australia retain considerable discretion during encounters with juveniles suspected of law violations. They may choose to divert the juvenile from the legal system, to issue formal or informal cautions, or refer the case to the system of Youth Justice Courts. The youth justice system in Australia handles many cases—41,158 in 2006 and 2007. The youth incarceration rate, however, is relatively low— 31 compared with 295 per 100,000 youth in the U.S. (Murphy, McGinness and McDermott 2010).

The incarceration rate varies across the country, from a low of 9 per 100,000 in Victoria to a high of 99 per 100,000 in the Northern Territory (Adler and Wundersitz 1994). In 2006 and 2007, there were 10,675 juveniles under formal supervision in Australia. Of these, 83 percent were under community-based supervision, 46 percent were under detention supervision, and the overlapping 29 percent experienced both forms of supervision during the year (Richards 2009). Community-based supervision includes probation, parole, youth supervision orders, and youth attendance orders, which are stricter than supervision orders.

australiafig1
click to enlarge

Most juveniles that reach court either plead guilty or are found guilty, and about 92 percent of adjudicated cases result in a non-custodial sentence. In the 1970s and 80s, policymakers changed juvenile justice procedures to remove as many youth as possible from the formal justice system and to reduce the use of incarceration for those handled formally (Adler and Wundersitz 1994). These reforms helped to reduce youth incarceration, but they may have also created net-widening (i.e., more juveniles were drawn into the system simply due to the presence of expanded alternatives).

Some policymakers have begun to advocate strategies to require further reductions in youth incarceration and to shift in resources to community programs (Murphy, McGinness and McDermott 2010). Jurisdictions in the United States increasingly use similar methods to conserve financial resources and reduce youth incarceration (Butts and Evans 2011).

Juvenile justice in Australia differs across the states and territories because each government has its own set of laws and diversionary options. Victoria made considerable reforms to its juvenile justice system in 2000. The reforms called for the diversion of youth offenders, especially high-risk youths, into rehabilitation programs and established transitional support services for juveniles released from custody. Victoria started the Vulnerable Youth Framework (VYF) to identify at-risk juveniles through reports of truancy, substance use, and family conflict. The VYF is evidence-based and promotes rehabilitation through education and employment training (Murphy, McGinness and McDermott 2010).

In South Australia, Families SA is tasked with carrying out orders from the Youth Court. The division utilizes program placements (mentoring, youth and family support, poverty intervention, victim-offender mediation) as alternatives to detention to reduce future offending and prevent at-risk youths from escalating to crime. Families SA manages two secure juvenile facilities for the highest-risk youths and assists with reintegration following their release (Murphy, McGinness and McDermott 2010).

australiafig21
click to enlarge

South Australia passed the Young Offenders Act in 1993 to reform its juvenile justice system. The principal purpose of the Act was to require courts to provide juvenile offenders with care and guidance necessary to become responsible members of their community. The Act advocates keeping youths in their communities so they can remain with their families, hold a job, and go to school (Darby 1994). The Youth Court Act of 1993 established the South Australian Youth Court and specified procedural guidelines.

Western Australia juvenile justice is based on the Young Offenders (YO) Act of 1994. The YO Act calls for non-judicial measures for youths who come in contact with the law. Courts are only to use custody as a last resort. The goal is to rehabilitate youths and keep them out of custody, which costs over $190,000 annually per juvenile (Blagg 2009). Sentencing options in Western Australia include fines, community-based orders with the possibility of community service and participation in treatment programs, intensive supervision outside of detention, conditional release orders in which reoffending would lead to a custodial sentence, and custody followed by supervised release. The Intensive Supervision Program (ISP) is a recent innovation for juveniles who commit minor offenses. The ISP enables juveniles to participate in therapeutic and mediation programs under supervision. It has been effective at reducing recidivism and taxpayer costs for imprisonment (Murphy, McGinness and McDermott 2010).

The Northern Territory (NT) has the highest juvenile incarceration rate in Australia. NT offers diversions such as written or verbal warnings and victim-offender conferences to keep youths out of secure custody. Corrective Services, which oversees juvenile justice in NT, is cracking down on repeat offenders and prohibiting them from diversions. The Family Responsibility Order holds parents accountable for the repeated criminal actions of their children. Under the Order, parents are required to ensure that their children meet certain conditions such as school attendance, curfews, and participation in treatment programs (Murphy, McGinness and McDermott 2010). Corrective Services offers support to meet these objectives and punishes parents (fines, seizing non-essential household items) for a failure to do so.

The Department of Communities and the police collectively manage juvenile justice in Queensland. Youth Courts can send juvenile offenders to a detention center for up to one year, and at least 50 percent of the sentence must be served in a detention facility. Juveniles can serve the remainder on supervised release (Murphy, McGinness and McDermott 2010). Queensland recently created a program to lessen the duration of detention and reduce the number of juveniles in custody. The Conditional Bail Program allows courts to suspend detention so that juveniles can participate in intensive community programming. If a juvenile breaches their release or reoffends, a judge can send him or her back to detention. The Department of Communities offers funding to community organizations that provide bail support. Bail support reduces the territory’s reliance on custody for youth offenders (Murphy, McGinness and McDermott 2010). Queensland is the only Australian territory to incarcerate 17 year-old offenders in adult prison. In 2009, there were 32 juveniles in Queensland prisons (Koch 2009).

Queensland passed the Juvenile Justice Act in 1992 to promote the reintegration of youth offenders and discourage the use of custody. The Act promoted the diversion of youths unless their offense is severe or they have a lengthy criminal history. It holds juveniles accountable for their actions and encourages them to take responsibility for their offense. If secure custody is necessary, courts must use it as a last resort and it should last for the minimum amount of time (Australasian Legal Information Institute 2011). In 2010, amendments to the Juvenile Justice Act expanded police powers to arrest, gave courts the power to impose curfews, increased minimum sentences for murderers, and relaxed orders against the publishing of information identifying youth offenders (Queensland Government 2010).

The Children and Young People Act of 2008 provides the blueprint for juvenile justice in the Australian Capital Territory. The Act promotes the well-being of all juveniles and encourages parents, communities, and the government to take responsibility for juveniles. It requires the government to expand community sentence options. The legislation sought to reduce imprisonment by prohibiting life sentences for youths under age 18 and calling for Youth Courts to consider split sentences of imprisonment and community supervision rather than just custody. It also enabled courts to impose rehabilitative sentences that are individualized to the needs of each youth. Under the Act, police have discretion to issue warnings and diversions for minor offending youths depending on their criminal history, maturity, and input from their parents (Murphy, McGinness and McDermott 2010).

In Tasmania, police make an initial determination whether to divert youths or to send them into the legal system. The Youth Justice Act of 1997 guides current juvenile justice practice. It seeks to divert youths from the legal system when appropriate, provide them with rehabilitation services, and connect them to internal and external agencies that offer further support services (Murphy, McGinness and McDermott 2010).

 

[1] In Australia, “juvenile” refers to youth age 10 to 17 (in Queensland, 10 to 16)

References

Adler, Christine and Joy Wundersitz (1994). New directions in juvenile justice reform in Australia. In Adler, Christine and Joy Wundersitz (Eds.), Family conferencing and juvenile justice: The way forward or misplaced optimism? Canberra, AU: Australian Institute of Criminology.

Australasian Legal Information Institute (2011). Juvenile Justice Act 1992: Schedule 1 charter of juvenile justice principles. Broadway, NSW: Author.

Blagg, Harry (2009). Youth justice in Western Australia. Western Australia: Commissioner for Children and Young People.

Butts, Jeffrey A. and Douglas N. Evans (2011). Resolution, reinvestment, and realignment: Three strategies for changing juvenile justice. New York, NY: Research and Evaluation Center, John Jay College of Criminal Justice.

Darby, Christopher (1994). The Young Offenders Act 1993 (SA) and the rights of the child. Adelaide Law Review, 16(2), 285-307.

Koch, Tony (2009). 17-year-olds ‘brutalised’ by exposure to adult prisons. The Australian (Sept. 28, 2009).

Murphy, Peter, Anthony McGinness, and Tom McDermott (2010). Review of effective practice in juvenile justice: Report for the minister of juvenile justice. Canberra, AU: Noetic Solutions Pty Limited.

Queensland Government (2010). Review of the Juvenile Justice Act 1992. Brisbane, Qld: Author.

Richards, Kelly (2009). Juveniles’ contact with the criminal justice system in Australia. Canberra, AU: Australian Institute of Criminology.