Help Them Realise Their Potential by Estela Stevens and Jordan Paiva

A LOOK AT THE INCREASING PUNITIVENESS OF SENTENCING CHILDREN AND ITS SOCIOLOGICAL UNDERPINNINGS

Society places great faith in the potential of children, however, this faith can prove fickle when it encounters an interaction with the justice system. Public response often transitions from nurturing to hostile when children receive welfare modeled consequences rather than solely punitive penalties. Expectation for tougher punishments for children in the justice system is not new, however, it is misinformed as recidivism may be increased by such punitive measures. Magnifying retributive reaction does not aid the community nor the offender, however rehabilitative sentencing options may be beneficial to both. This paper seeks to uncover why the public seeks increasingly ‘tough on youth crime’ rhetoric through the lens of three arguments; sociological understandings of political and media advocacy for harsher juvenile sentencing, effects of harsher sentencing on the community, and why the justice system should distance itself from such harsh attitudes towards rehabilitation.

The media and politicians work hand in hand to stir up public sentiment around youth crime. This persuasion can be damaging to public perception of young offenders as the media often reports on emotionally charged and violent stories, encouraging simplified rhetoric, rather than a more balanced view of young offenders. The general public doesn’t have access to the in-depth knowledge of the justice system needed to understand the nuance of juvenile crime, and without it, it is easy to rely on a rudimentary and incomplete attitude towards sentencing. Society’s perceived feeling of safety is primarily shaped by their perception of social disorder, and then secondarily by reported levels of anxiety. Politicians and media outlets frequently adopt ‘tough on crime’ discourse, which may have an adverse effect on the public’s impression of community safety. When the media encourages politicians’ ‘tough on crime’ rhetoric by reporting on heinous criminal offenses, it may increase feelings of social disorder. As a result, politicians will often take advantage of this for their own gain by using it for their own purposes, such as employing this language to garner votes for re-election. An example of this is when the Courier Mail’s stories regarding the need to be ‘tougher on young criminals. Clearly this would assist a politicians’ efforts for re-election should the media also align their stances with those up for re-election. Conversely, more proportional representation of crimes and more balanced policies may elevate a sense of public safety. Analysis of adult offenders has displayed that retributive attitudes expressed by the public on sentencing become more lenient when presented with the same contextual background to the crimes that judges normally consider. The Palaszczuk government’s ‘strong’ new youth justice reforms increase punitive measures on youth crime, reiterating to the public the stigma and labelling of young people involved in the criminal justice system. When the media and politicians retrospectively label children as deviants, they fail to foster the potential of that child.

Despite the wealth of research in the area to the contrary, much of the public and legislature still believe in the value of punishment for punishment’s sake. The effect of this is the opposite of what these groups intend, and reality exacerbates it. It is a well-developed principle that incarceration is the single biggest factor which leads to recidivism. This risk is exacerbated when the child is in their formative years when being sentenced. Despite this, the Queensland Government has enacted amendments to the Youth Justice Act 1992 (Qld), removing the presumption of bail for children in certain offences. Failure to provide early intervention for at-risk children has shown to increase recidivism later in life. Further, the incarceration of a child can have lasting harmful effects on the child’s family. The profiles of young offenders often see children exposed to harmful stimuli such as drug and alcohol use, poor mental and physical health, low levels of education, exposure to violence during childhood and early adolescence and severe and long term neglect and family dysfunction. This creates a harmful cycle of children growing up in harmful environments, committing a crime and being exposed to harmful criminal elements. These criminal elements can cause a spillover effect to their families and potentially expose more children to the criminal behavior. Given that the public often do not give much leeway to those who make these mistakes, it is easy to ascertain why criminal activity may be the only option for some young people without any support. Therefore, it is clear that the incarceration and increased harshness of punishment is ultimately harmful to the child in the long run.

Taking a rehabilitative approach to the sentencing of children is the most research-backed, utilitarian and emotionally sensitive approach. This is clearly shown in the responses elicited when public focus groups are given the same information judges use in their sentencing decisions. The public as it stands now is largely not educated on sentencing calculus or how courts operate (particularly children’s courts), leading them to make harsh judgements. However, when they are presented with how the court works and how sentences are calculated, their attitudes change from punitive to fostering, advocating for diversions as opposed to incarceration. It has been shown consistently that diversions and cautions are the most effective way to deter most young offenders from continuing lives of crime. While it must be conceded that not all children are deterred by these measures, the vast majority take the cautions to heart. Often the most effective programs for child offenders are those which allow the offender to still contribute to society. An example of how this happens is electronic monitoring within the community. Instead of being exposed to the criminogenic environment of prison, the offender is able to make amends and continue his life through various education and therapy programs at the court’s disposal. As such, it will place the offender at a better wicket to re-enter society and contribute meaningfully. It is clear then that the alternative of rehabilitative sentencing is more effective than retributive punishment in rebuilding a person to reenter society.

The ‘tough on youth crime’ rhetoric encouraged by the media and made into policy by politicians may ultimately, according to the research, increase recidivism. Children who receive rehabilitative help for criminal behavior also can experience unsympathetic public reactions. There is a lack of balanced education and representation of young offenders that is required for the public to fully comprehend juvenile crime and recidivism. Through the investigation of political and media advocacy of tougher sentences, the effects of harsher penalties, and the benefits of rehabilitative sentencing, advocacy for solely punitive sentencing should be reconsidered. Often, the argument advanced when discussing convicted individuals is the argument of ‘they’ve had their chance’. However this limits the potential and the social identity of young people. On a purely pragmatic level, it is within society’s best interest to see children realise their highest potential, and lifting them out of crime is a vital way to do that.

Sources:

Baker, David, ‘Tough on crime rhetoric and reality of property crime and feeling safe in Australia’ (Policy Brief, Australian Institute, Parliament of Australia, 6 August 2013)

Bartels, Lorana and Marietta Martinovic, ‘Electronic Monitoring: The experience in Australia’ (2017) 9(1) European Journal of Probation 80

Ellis, Suzanne et al, ‘Give them a chance: Public Attitudes to Sentencing Young Offenders in Western Australia. (2018) 18(2) Youth Justice 169

Hutchinson, Terry, ‘“A Slap on the Wrist” The Conservative Agenda in Queensland, Australia’ (2015) 15(2). Youth Justice 134

Mark Ryan, ‘Palaszczuk Government’s strong new Youth Justice reforms passed by Queensland Parliament’ (Statement, Department of the Premier and Cabinet 2021)

Payne, Jason and Don Weatherburn, ‘Juvenile reoffending: A ten- year retrospective cohort analysis. (2015) 50(4) Australian Journal of Social Issues 349

Stobbs, Nigel et al, ‘Sentencing and public confidence in Australia: The dynamics and foci of small group deliberations’ (2014) 1(19) Australian and New Zealand Journal of Criminology 1

Youth Justice Act 1992 (Qld)