Prison Fellowship 25th Anniversary National Conference "New Approaches to Crime and Justice"

Upper Hutt, New Zealand 16 May 2008

Judge Andrew Becroft Principal Youth Court Judge for New Zealand
Te Kaiwhakawa Matua o Te Kooti Taiohi o Aotearoa

Contents

Introduction
1. Ignore the risk factors
2. Always arrest young people when they offend the first time. And, no matter what the circumstances, be disrespectful
3. Treat all young offenders as if they were the same
4. Always bring the young person to Court, and lay charges following arrest
5. 'Sideline' the young offender at the FGC, and run the FGC badly
6. Always enter a "conviction" on the young offender's record
7. Make no allowance for youth at sentencing; 'adult time for adult crime'
8. Give young offenders a short sharp shock. Use corrective training, boot camps and 'scared straight' programmes
9. Segregate young offenders from their families, communities and victims, and aggregate them together in prison
10. If all else fails, use 'what works', but deliver it badly
Conclusion

Introduction

The theme of this paper is little different from many others about Youth Justice, except that it is approached from a perspective that is deliberately contrary to all but the most committed devil's advocate. No reasonable person would ever suggest that the goal of a youth justice system is to promote criminality as a career choice for young people. However, blatantly inverting 20 years of accumulated youth justice wisdom provokes useful discussion from a starting point that recognises the risks to our community if these issues are ignored. It is also hoped that this deliberately polemical approach will help us to value what is positive about our youth justice system, and focus our attention and discussion on principles that are most important when addressing offending by young people.

The title of this paper attempts to turn on its head the conventional approach to identifying and discussing important areas of policy, process and practice in relation to young offenders. The 'ten steps' are by no means exhaustive, and no issue is explored in depth. What is significant from the Youth Court's perspective is that all these issues are important. The resulting complexity demands much energy and commitment from the diverse wider community if we are to prevent young people from graduating to tertiary level universities of crime. It is hoped that this paper will help highlight how easy it would be to relinquish the lead that the New Zealand system has enjoyed in global youth justice terms since 1989.

This paper constitutes a challenge to those working in the New Zealand criminal justice system to refocus on how best to stop young offenders becoming adult offenders. Regrettably, there is little research or statistical evidence available (as with so much about youth justice) showing what proportion of adult offenders were first dealt with in the youth justice system. Nor do we know how many young offenders dealt with in the youth court re-offend as adults. Even without this information, we know that part of the solution to reducing crime and imprisonment (the theme of this Conference) must involve reducing the flow of young offenders into the adult courts. An effective youth court and youth justice system will be important factors, indirectly at least, in reducing adult crime and imprisonment rates.

This paper focuses on appropriate responses to young offenders and how to stop them re-offending. It does not tackle, other than indirectly, the much wider issue of how to stop young people offending in the first place. That much larger discussion involving important issues of comprehensive early intervention etc, is outside the scope of the paper.

For clear identification, the statements below that speak directly to the title of the paper and to the subtitles of each section are italicised and boxed.

1. Ignore the risk factors

Much of the analysis and theorising about the causes of youth offending and antisocial behaviour in the years since the implementation of the world leading Children, Young Persons, and Their Families Act 1989 (the Act) has focussed on identifying and categorising so-called 'risk factors' and 'protective factors' in the lives of young people. These factors will be discussed in more detail later. The reason we use the concept of 'risk' is that none of these factors, on their own, or even considered together, can be said to actually cause youth offending. Research suggests these factors are associated with youth offending, and that the larger the group of risk factors present in any particular young person, the greater the risk of that person being involved in antisocial behaviour.

The usefulness of correctly identifying risk and protective factors should come when authorities and communities try to intervene in the social fabric, as well as in the lives of young people and their families, in order to reduce the amount of youth crime. A variety of studies (see McLaren 2000, pp20-36) have come up with lists of risk and protective factors, and a variety of ranking systems to try to explain which factors might be more or less important, and how these factors may change in importance over time, or at different stages in a young person's life.

It is certainly true that not all non-enrolled, truanting, gang-prospected, drug addicted, behaviour-disordered, mentally ill, young men from dysfunctional, disadvantaged, and violent families are, or are destined to be, in trouble with the Police or the Courts. Unfortunately, research shows that the chances of a criminal career beyond the teenage years is enhanced if a young person, or a child, experiences a collection of these risk factors. On a positive note, the presence of protective factors can, as their label suggests, diminish the effects of the risks mentioned above.

New Zealand researcher Kaye McLaren (2000) is reassuring. She says, with the exception of gender, most of the risk factors can be changed by intervention, and that interventions exist which can reliably moderate the most serious of these risk factors. One way to approach this issue is to reverse the oft heard admonishment "hey judge, it's ok, don't sweat the small stuff". Deciding to actually 'sweat the small stuff' is about intervening to target the effects of these risk factors. It does not necessarily mean instituting a zero tolerance approach to minor rule-breaking behaviour. However, it is very important that young people know there are consequences for criminal behaviour that are firm, prompt, and escalating if offending continues. As respected former New Zealand chief social worker Mike Doolan advised in 2001 (paper for Glasgow conference, p4) when talking about the best approach toward so-called adolescent specific offenders:

... the management of this group is low key and measured and does not involve responses that may confirm the young person in an adult offending career. The regime should be focussed on shutting down the offending cycle at the earliest possible time, but should also include increasing personal cost for increased offending.

Neither does it necessarily mean labelling every unruly teenager as a criminal, and treating them like an adult when it comes to sentencing. Sweating the small stuff is more about reducing the negative effects of the risk factors and enhancing the positive effects of the protective factors. A 17 year old who ends up sentenced to imprisonment in an adult court is, without doubt, facing an altogether different and more serious kind of 'stuff', for which interventions may struggle to prove as effective as if they had been targeted at risk factors earlier in his life.

The dangers that ignorance of, and inattention to, risk factors is disturbingly illustrated in the case of Bailey Junior Kurariki (aged 12 at the time of the offence) and his associates who were charged and convicted in connection with the death of pizza delivery worker Michael Choy in September
2001.

The Ministry of Justice undertook a review of the dealings over time between the convicted offenders and the Police, Department of Child Youth and Family, and Health and Education Services to consider what improvements could be made in services available to those young people and their families[1].

The Ministry's review produced "3 key lessons":

• The underlying causes of Kurariki's behaviour were not addressed, and, following a decision to keep him in the family home, a lack of support for Kurariki's mother meant that she was not equipped to manage him.
  Underlying causes of offending can be better targeted by training frontline staff and police in the use of risk assessment tools and processes. These tools are developed by medical professionals and researchers and can be ordered by a FGC or a CYF Youth Justice Co-ordinator. Education and heath assessment tools are also used to help get a comprehensive understanding of all relevant influences on a young person's offending.

• Kurariki had been excluded from formal education because schools could not cope with his behaviour. The review concluded that the burden of dealing with Kurariki was too much to place on the shoulders of the schools alone, and, that greater assistance should have been available from other social service agencies. The review pointed out that CYF fund a number of community based social service agencies which should be used by schools to help manage young people with difficult behaviours. To facilitate this, the review recommended that directories of community agencies should be compiled at a local or national level and distributed to schools by CYF or Youth Offending Teams.

• Poor communication between Police and CYF in Kurariki's case meant that full advantage was not taken of the provisions of the Children, Young Persons and their Families Act 1989 (CYPFA) in relation to the holding of an FGC. A FGC is a measure provided for in the CYPFA as a positive early step to holding a young person or a child accountable for their offending.

2. Treat all young offenders as if they were the same

Young people who get in trouble with the law come in all shapes and sizes. A justice and rehabilitation system that is serious about reducing rates of reoffending must address its responses to young people based on their relevant differences. As White & Wyn (2008 156) state:

The crux of the developmental approach to understanding juvenile behaviour is that crime is a consequence of cumulative risks and combinations of factors, and that these vary over the life course (see Developmental Crime Prevention Consortium 1999). The analysis of multiple causal factors, combined with an acknowledgement of the need for multiple forms of service delivery, is also important with regard to the profile of young offenders: complexity of explanation and complexity of response mirror the complexity of offending
itself.

Persisters/Desisters

Research has revealed that there are, in very general and crude terms, two distinct types of young offender, susceptible to different risks and having different needs, and consequently, an effective and principled approach requires different responses for these two groups.

At least a quarter of young men will commit at least one offence during their formative years but most of these will desist from crime and go on to settle into law-abiding lifestyles by their mid-twenties, having committed only a few trivial crimes[2]. However, in New Zealand and internationally, 15%-20% of youth offenders will persist and go on to become "life course" offenders — these 'persisters' are responsible for a large proportion of crime.[3] Thus, there are two groups — those that persist with crime and those that desist from it.

'Desisters' commit at least one crime, but usually start offending after 13 years of age and tend to stop or age out of offending by age 24 to 28.[4] However with firm, prompt, community based interventions most offending by desisters can be shut down quickly. In contrast, 'persisters' start early, before age 14 and as early as 10 years of age,[5] offend at high rates — around 40% to 60% of youth offending in New Zealand - and continue offending into adulthood.

Young people in the desister group make few court appearances and have fewer risk factors. Also called 'adolescent limited' offenders,[6] they are particularly at risk from substance abuse and antisocial peers, and are considered by some to be the priority for intervention. The following list gives an order of priority for addressing risks with this group:[7]

• Mixing with antisocial peers;
• Substance abuse;
• Family problems — poor parental monitoring, negative parent-child relationships;
• Poor performance and attendance at school, negative feelings about school;
• Others as per the persisters list below.

Persisters' tend to come from multi-problem backgrounds, and are characterised by major personal, social and family disorder (Doolan 2001, p4). They are the most likely of all offenders to keep offending into adulthood. Also known as 'early onset' offenders, these youths are usually seekers of immediate gratification and give no thought to the consequences of their actions. Effective interventions with this group must tackle multiple identified risk factors. Risk factors in order of the highest to lowest priority for persisters are:[8]

• Having few social ties (being low in popularity, and engaging in few social activities);
• Mixing with antisocial peers;
• Having family problems, particularly poor parental monitoring of children and negative parent-child relationships;
• Experiencing barriers to treatment, whether low motivation to change, or practical problems such as difficulty in attending appointments due to lack of transport and work hours;
• Showing poor self-management, including impulsive behaviour, poor thinking skills, poor social/interpersonal skills;
• Showing aggressiveness (both verbal and physical, against people and objects) and anger;
• Performing and attending poorly at school, lacking positive involvement in and positive feelings about school;
• Lacking vocational skills and a job (for older offenders);
• Demonstrating antisocial attitudes that are supportive of crime, theft, drug taking, violence, truancy and unemployment;
• Abusing drugs and alcohol;
• Living in a neighbourhood that is poor, disorganised, with high rates of crime and violence, in overcrowded and/or frequently changing living conditions;
• Lacking cultural pride and positive cultural identity.

Given these factors, it is unsurprising that Mike Doolan advised in 2001 (Glasgow conference paper, p4) that a "much more sophisticated policy and practice response is required" for dealing with early onset offenders.

Māori/non-Māori

Māori youth have a different experience of, and are more likely to come into contact with the youth justice system that non Māori (Maxwell et al 2004 Chapter 6). Reasons for this are complex and beyond the scope of this paper. Maxwell et al report that socio-economic factors do not explain these differences. While Māori youth may come to the attention of the police more often, the nature of their offences are less serious than their non Māori peers. Maxwell et al support previous research that suggests that this is because the public and the police are more vigilant toward Māori youth. Maxwell et al also report that more Māori youth tend to be dealt with in Court, and therefore the severity of sentences received is greater, regardless of the nature of their offending.

Maxwell et al counsel police to be careful when dealing with reports of offending by Māori youth; not to react based on the ethnicity of the young person. They also remind youth justice co-ordinators to be alive to the often subtle differences in cultural practice between Māori, when it comes to practices in family group conferences.

Girls/boys

McLaren (2004, p32) says the limited research into the differences between boys and girls who offend, strongly suggests that girls are put at risk of (re)offending by some very different factors. The most important of these as targets for intervention are: the existence of child abuse inside the family, and preventing young girls from running away from home.

As well as the different offender profiles mentioned above, there are specific pathological differences that should inform the responses of police, courts and treatment agencies. These include tailored responses to offenders who are, amongst other things, conduct disordered, mentally ill or sexual offenders.

3. Always arrest the young person when they offend for the first time, and, no matter what the circumstances, be disrespectful

Specific research into the effect on young people of the way they are 'processed' by the youth justice system is scant (McLaren 2000, p38). McLaren mentions one study that reviewed the literature on the effectiveness of police responses to adult offending (Sherman et al 1998), but points out that only some of the suggestions might be relevant to young people. She does assert that "arresting some juveniles for minor offences reliably doesn't work" (McLaren 2000, p42). She says that examination of the studies reviewed by Sherman shows that most found that arresting juveniles resulted in increased offending.

McLaren points to an emotional sensitivity in high-risk young offenders. She cites the 1998 Sherman study which notes that the manner in which police behave can have a powerful influence on a young person and their community. McLaren says that the risk of offending can be increased if police behave less respectfully, and with worse manners towards young people. She says both Sherman studies suggest that "cautioning young offenders in a fair and respectful fashion, rather than arresting them, will have a greater impact than other approaches".

Data produced by Maxwell et al (2004) led them to conclude that dealing with matters of youth offending at the lowest level possible reduced the likelihood that young people would be convicted as adults, or have poorer life outcomes. Dealing at the lowest level meant: convening a family group conference rather than laying a charge in the Youth Court; asking a young person to stick to the terms of a FGC plan that were less restrictive; and handing out lower rather than higher Youth Court tariffs. Maxwell et al criticise approaches to minor offending which saw young people sent to family group conferences when police diversion could have been sufficient, or young people being charged in the Youth Court when a family group conference would have been just as effective.

Bernberg, Gunnar & Krohn (2003) (in Becroft 2007, p19) conclude that contact with the formal juvenile justice system has been shown to have a reasonable likelihood of increasing the level of criminal activity in early childhood.

Reflecting the importance of only arresting a young person when necessary, s 214 of the Act restricts circumstances in which a young person can be arrested by the Police without warrant. There are no figures available showing the number of arrests of young people. The closest available figure is for apprehensions — quite different from arrests — and even then the figure measures offences not offenders. Those figures we do have however, reveal some quite startling differences in apprehension rates between the twelve Police districts. They range from 877 per 10,000 population (Auckland) through to 2097 per 10,000 (Southern region)[9]. Further research is required to fully understand the significance of these discrepancies.

4. Always bring the young person to Court, and lay charges following arrest

The first principle under s208 of the Act states that:

".unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter:"

This principle recognises that contact with the formal criminal justice system can be detrimental. Although the shock of a formal process at an early age might be expected to deter young people from re-offending, research shows it, all too often can have the opposite effect. Contact with the formal juvenile justice system has been shown to have a reasonable likelihood of increasing the level of criminal activity in early adulthood.[10] Such negative effects on young people are more likely for those who come from impoverished backgrounds or those who are black.[11] This throws doubt on the suggestion that formal prosecution is the effective way to hold young people accountable for their crimes.

Also, the United Nations Convention on the Rights of the Child Art 40.3(b) states that whenever appropriate and desirable, alternatives to judicial proceedings should be found, though not at the expense of the young person's human rights and appropriate legal safeguards. This principle shelters young people from formal criminal justice processes in recognition of their immaturity and the likelihood that rehabilitative approaches will be particularly effective for those of tender years.

Perhaps because young people have opportunities to mix with other young offenders and become au fait with Court procedures, it can become very difficult to remove them from the formal criminal justice system. Further, as most offenders are 'desisters', they are low risk and there is no need for a court-based intervention - intervention (often firm and decisive) is necessary but it can take place very effectively in the community.

However, as the decision on whether to grant a particular young person access to the alternative procedures is discretionary, there is a danger that these procedures are not always applied fairly. Equally, there is a concern (usually unfounded) that diversionary procedures allow young people to avoid the consequences of their actions. It is necessary to find alternatives that are applied consistently throughout the country and that, nevertheless, hold the young person to properly account for their wrongdoing.

The Act pays particular attention to the role of Police Officers, and as emphasised there is considerable discretion as to charging. As with arrest rates, there are significant (worryingly significant), differences in Police charging rates across the twelve Police Districts. That said, in general the commitment by the NZ Police, and the Police Youth Aid section in particular, has been one of the great successes of the NZ youth justice system. The contribution of Police Youth Aid constables in this respect, undervalued and under recognised though it has been, is nothing short of outstanding

Below is a graphic representation of the dramatic reduction in the use of the Youth Court for young offenders since the introduction of the CYPFA in 1989. In particular, it clearly depicts the almost overnight revolution in Police practice and the extent of diversionary practice over the last ten years.

Rate per 10,000 population of 14 to 16 year-olds, of cases appearing in the Youth Court 1980-2006.[12]

Notes
1 Source: Ministry of Justice.
2 Age is as at time of offence.
3 Rates per 10,000 have been calculated using population estimates (as at 30 June each year) from Statistics New Zealand based on the 2006 census.
4 Cases are counted over calendar years.
5 The system used to log cases was updated in 2004 (from LES to CMS). This has caused changes in the figures and trends in cases that are observed prior to 2003 and following 2004. In particular, any changes in the number of cases in 2004 may not represent a true change in offender patterns. Accordingly, extreme caution should be used when making inferences based on any change between 2003 and 2004. Please also note that any other changes in the above data are due to, for example, finalised appeals

These consequences should, obviously, be promoted in the minds of those, particularly the police, who are tasked with exercising crucial discretions about the processing of young offenders. Young people also need to know that the criminal justice system is a place they can rely on to make them feel 'at home', and provide them with a career path that is bewilderingly both endorsed and condemned by the system set up to manage it.

This is not to say that Court is not important. But it is a last resort, or to be reserved for serious offending or offenders. Section 208(a) of the Act provides the statutory mandate for that approach. A community based approached seem to work best, if at all possible.

5. Sideline the young offender at the family group conference (FGC) and run the FGC badly

The family group conference process (FGC) is reserved for those more serious offenders charged in Court, or who the Police have not arrested but nevertheless still wish to charge. It is an important opportunity for young people and their families to participate in the accountability, restoration, and rehabilitation processes envisioned by the principles of the Act. FGC's were pioneered in New Zealand, and are widely considered to be the 'lynch pin' and the 'jewel in the crown' of our youth justice system[13]. The FGC model has been adopted and adapted to a greater or lesser degree by many other jurisdictions (Becroft 2006, p2).

The FGC process recognises that young people may be immature, vulnerable and still very much part of and influenced by their families. When well prepared, conducted and followed up, the FGC has been a profoundly powerful response to youth crime. It is demanding for the young offender; it facilitates, and indeed necessitates the active involvement of his/her immediate and wider family, and it can prove deeply satisfying for victims — all in ways that have surpassed the more traditional adversarial approach to dealing with offending. And it is worth noting that FGCs are able to recommend stern responses to serious young offenders, including, where accountability demands it, sentences of imprisonment (Becroft 2006, p3).

Maxwell et al's 2004 study of young offenders who had participated in FGCs provides some useful insights. The authors confirm that a constructive FGC can make an important contribution to preventing further offending despite negative background factors and irrespective of the nature of the offending. They identify particular aspects of the FGC that make reoffending less likely: good preparation; the young person should feel supported, understand what is happening, participate in the conference, and not feel stigmatised or excluded. A conference that generates in the young offender feelings of remorse, of being able to repair harm and of being forgiven, and which encourages the young offender to form the intention not to reoffend, is likely to reduce the chances of their further offending.

The Maxwell et al 2004 study also reported that most of the FGC participants interviewed had gone on to experience a negative life event or risk factor post their involvement with the youth justice system. Nearly half of those surveyed appeared before the courts in the first year after they turned 17, and that, after three years, this figure had risen to 69% (Maxwell 2004, p15). This may appear to be a negative finding, but compared to overseas jurisdictions, it outshines even the best-resourced programmes available in the most liberal of American states (Becroft 2006, p9).

In 2006 (Becroft 2006) highlighted a number of areas of FGC practice which, if ignored, would also help lessen the potential for more young people to avoid offending in the future. These areas included:

• more emphasis on rehabilitation and reintegration and identification of "criminogenic needs"
• better access to important information from professionals
• wider, formalised, community input
• no more 'subject to finance' FGC plans
• improved formalised training for FGC co-ordinators
• better monitoring and implementation of plans by parties to the plan, and not the Court

6. Always enter a conviction on the young person's record

White and Wyn (2008) argue that a young person's status in society "will be determined by the nature of their contact with law enforcement officers and the juvenile court system". This is in the context that most young people break the law or do antisocial things at some point in their teenage years, and then 'grow out' of these tendencies by their mid twenties. The argument is that it does not only matter 'what' the young person has done that contributes to their label as a 'criminal', but also how the system has treated them, irrespective of their offences. One effect of labelling a young person as 'criminal' can be seen when criminalisation is viewed as a risk factor for further offending.

White and Wyn (2008, p158) refer to Harding and Maller (1997) to support the contention that the sooner a young person is criminalised, the higher the risk of them reoffending. McLaren (2000, p20) says the age at first offence, number of prior offences, total time in custody, and age and gender are "very good predictors of who will offend again". McLaren labels all these factors as 'tombstone' or 'static'. That is, they are fixed and cannot be changed by interventions. On the other hand, with the exception of age and gender, the others could be grouped under the idea of criminalisation, and re-targeted as part of society's response to youth offending.

Muncie (2004, p29) recounts how the New Labour government in Britain announced their intention to introduce a new tough sentence to deal with children aged 12 — 14 who could be identified as "seriously persistent juvenile offenders". Researchers identified hundreds of children with multiple arrests but were unable to organise them into discrete groups that made sense, or come up with a definition for 'persistence' that was not arbitrary. This suggests that there is a disconnection between the number of times a young person has been labelled a criminal by the justice system, and any attempt to fit that person into any set of standard criteria that would see them as part of a criminal subset of the population. The government in Britain went ahead despite their experts' opinion that defining persistent young offenders as those with multiple convictions was problematic.

In summing up their 2007 book on restorative justice practices, Maxwell and Liu conclude that restorative practices have the power to shift values away denunciation, blame, punishment, exile, exclusion and shaming towards remorse, apology, healing, repair, forgiveness, and reintegration. It is entirely fair to describe this shift as a retreat from criminalisation. This is a retreat that seems sensible given the blunt nature of the term and the nuanced nature of the problem.

Criminalisation is a shaky rock on which to base a youth justice strategy because it appears to have very little to do with the complex issues faced by individual young people. Labelling young people as criminals when their behaviour does not justify such labelling, or premature labelling, given their potential to still develop as functioning adults, could do more harm than good. But not labelling with a conviction, and not criminalising, does not equate to not dealing properly and effectively with young people who come before the courts.

In fact, not entering a "conviction" in the case of minor to moderately serious offending, where there has been a satisfactory response to a Family Group Conference plan, may play a significant part in a young offenders ultimate rehabilitation. A Youth Court order, appearing on a person's criminal record for the rest of his/her life, can be a significant impediment to future progress, employment prospects and overseas travel etc. Where there have been comprehensive interventions and successful responses by a young offender, the power in s 282 of the Act for a Youth Court to absolutely discharge a young offender - as if the charge had never been laid - is a very powerful tool, and an incentive for a young person to actively co-operate in the youth justice rehabilitative process.

7. Make no allowance for youth at sentencing; 'adult time for adult crime'

The Children, Young Persons, and Their Families Act 1989 enshrines principles and practices of the relationship between state authorities and young people that marks out that relationship as special, and one that is based on the particular needs, characteristics, and vulnerabilities of young people.

Section 4(f) addresses the object of the Act ("to promote the well-being of children, young persons, and their families and family groups") by placing the accountability, and responsibility of young offenders on the same footing as the acknowledgement of their needs, and the provision of opportunities for them to "develop in responsible, beneficial, and socially acceptable ways".

Section 208 goes further with respect to principles of youth justice promoted by the Act. It says that a young person's age is a mitigating factor in determining whether or not to impose sanctions for offending, and in determining the nature of such sanctions. It goes on to prescribe that sanctions should promote the development of the young person within their family, and take "the least restrictive form that is appropriate in the circumstances".

Despite these provisions, the New Zealand criminal justice system already differentiates between young offenders on the basis of the seriousness of their offending. The Youth Court has the power to convict a young person and then transfer them to the District Court for sentencing in cases where the seriousness of the offending is such that even the toughest Youth Court order would be inadequate. Similarly, charges of murder and manslaughter are always tried in higher courts. The principle of adult time for adult crime is still thoroughly alive.

To modify the stringencies of the application of tariff cases in higher courts (such as R v Taueki [2005] NZLR 372 and R v Mako (2000) CRNZ 272 (CA)) to young people, s9(2) of the Sentencing Act lists age as a mitigating factor. Even in appeal cases where higher courts have rejected the idea that so-called 'youth justice principles' should dominate sentencing of young offenders, those courts have also come to the conclusion that the application of age as a mitigating factor in the Sentencing Act has much the same effect as if youth justice principles were otherwise applied.

As part of this discussion it is important to note the relatively recent research, emerging particularly from the United States of America, establishing that the teenage brain undergoes a further and final period of development in the frontal lobe area from the age of 16 or 17. It seems that full decision making maturity is not reached until the late teenage years or early twenties. In one sense then teenagers are not simply junior adults, but are almost a different development animal!

In Roper v Simmons[14] the United States Supreme Court recognised that punishing young people as adults through the death penalty was unconstitutional on a number of grounds including the fact that young people are immature, are particularly susceptible to negative influences and their character is not as well formed as that of an adult. The Court considered that, from a moral standpoint, it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed.[15]

8. Convicted young people need a short sharp shock; in praise of corrective training, boot camps, and scared straight programmes

Combined global youth justice wisdom is now at the point where we can agree that there are indeed interventions that can be applied to the lives of young offenders which will reduce the likelihood of them reoffending (McLaren 2000, p53). McLaren refers to research by Redondo et al (1997) which showed that taking part in any rehabilitative programme was better than not taking part in any, and that the younger the offender, the better the chances of success.
McLaren (2000, p53) cites Lawrence Sherman's research into what kinds of programmes are the most effective. She reports that strategies that worked reliably included:

• maintenance of good discipline and standards of performance at school
• behaviour contracts, and behaviour modification methods
• drug rehabilitation in prison
• programmes that are structured and focussed

McLaren (2000, p64) also addresses multi-systemic family therapy, which has come to be be seen as a 'gold standard' in treatment programmes worldwide in the last few years.

Other researchers have since focussed on the three principles of risk, need, and responsivity proposed by Canadian, Donald Andrews. Issues associated with these principles will be canvassed under point 10 following.

After much seemingly contradictory research into whether residential or non residential settings are best for turning young people away from offending, it appears that it is not so important to ask 'where' a programme is delivered, as it is to ask 'what sort' of programme is delivered there. McLaren (2000, p60) summarises research into what works in residential settings, and concludes that the following are important:

• staff attitudes and modelling
• the longer the programme runs - the better it is
• that programmes actually deliver what they intend to deliver
• highly trained staff
• a positive peer culture that encourages young people to remind each other of the rules and promote pro-social attitudes
• cognitive behaviour therapy, with rewards for good performance
• establishing a segregated alternative community
• the provision of proper and intensive post-residential supervision and re-integrative services

McLaren (2000, p61) reports that Germany manages to turn whole prisons into therapeutic communities. These prisons offer a "fairly relaxed regime" including: no uniforms, visitors in cells, not much censoring of mail and phone calls, and small communal living units.

On the other hand, when it comes to asking 'what doesn't work', conclusions from the research are clear. Punishment alone is not enough — deterrent sentencing does not live up to its name (Muncie 2004, 289). Shocking young offenders into changing their attitudes and behaviours by exposing them to already hardened adult criminals, and giving them the opportunity to spend nights in jail also has a poor track record. Boot camps are the best of these punitive style programmes, but only in that they prove similarly effective to simple probation (McKenzie 1990, 1991 in McLaren 2000, p79). McLean and Grace have concluded that boot camps, shock incarceration and electronic monitoring are less likely to be effective.

An oft-promoted residential alternative for young people is the so-called 'wilderness challenge' style boot camp. These programmes can involve intense periods of highly physical activity in remote settings with mountain guides as instructors. While most research takes a dim view of wilderness challenge programmes, McLaren cautions us to look at such activities as possibly just one element of a more comprehensive approach, or as an incentive for young people to take part in other, less-attractive programme components (McLaren 2000, p81). Positive aspects of wilderness challenge programmes include the development of valuable relationships with staff and mentors that should continue beyond the particular programme, and the chance to experience a pro-social activity that may eventually develop into a hobby, or even a career.

In Britain detention centres for young offenders were established in the 1940s. The regime in these centres was "explicitly punitive" (Muncie 2004, p286), yet, by the 1970s, they were criticised for being too soft, and toughened regimes were instituted in select centres. Despite research that showed that these 'short, sharp, shock' programmes had, at best, no effect on re-offending, the toughened regimes were later extended to all detention centres. Two military style 'boot camps' were also introduced in Britain in the 1990s. One has since shut down due to its excessive cost.

ew Zealand had it's own short, sharp shock sentence. Corrective training was a three month custodial sentence for young offenders that was abolished by the Sentencing Act 2002 because, as Minister of Justice Phil Goff commented in 1991, "this sentence has failed to achieve the objectives for which it was introduced ..." (Hall's Sentencing 1.8).

9. Segregate young offenders from their families, communities and victims, and aggregate them together in prison

One response to serious youth behaviour issues is to segregate young people from their families, schools, communities and non-at-risk youths, and aggregate them in groups with young people who exhibit similar behaviours. These groups may include group counselling sessions, residential programmes, imprisonment, boot camps, 'scared straight' programmes to name a few. In the past, agencies have been tempted to segregate and then aggregate young offenders because "[s]uch practices make meeting the needs of deviant youth more financially and logistically feasible and serve the potential function of protecting non-delinquent youth from harm or negative influence."[16] Emerging research is showing the opposite; that segregation and aggregation may serve to spread deviant behaviour.

'Deviant peer contagion' refers to "inadvertent negative effects associated with intervention programmes that aggregate peers in the delivery of a therapeutic protocol, educational service, or community programme." [17]

The evidence for this phenomenon has been extensively reviewed and compiled in a recent volume from the United States[18]. The contagious effect of placing at-risk youths together has been labelled deviant peer contagion. The basic thesis is that the placement of a high-risk young person in group settings with deviant peers has the potential to worsen his or her problems. Deviant behaviour is concentrated in groups such as gangs where deviant behaviour is committed. Apart from deviant peer contagion in naturally occurring groups, the recent hypothesis is that this phenomenon occurs in groups designed to treat or reduce the behaviour. This is called the iotrogenic effect.

Although research directly examining peer influence in justice programme settings is rare, concern that grouping anti-social youth would result in negative social influence is not new. In 2002, a commission of scholars was formed to study the problem of peer contagion. The following is a summary of the commission's findings:

Deviant peer contagion happens in naturally occurring peer interaction and is strongest:

• during early adolescence;
• for youth who have not yet committed themselves to a deviant life;
• for youth who are exposed to other youth slightly more deviant than themselves;
• for youth who interact in unstructured, unsupervised settings;
• for behaviours normally acquired through social process.[19]

The traditional justification for the segregation and aggregation model is the protection of society, cost savings and optimal treatment for deviant youth.[20] The researchers argue that society's protection is 'short-lived', as these youth soon return to society. The costs savings also may amount to a false economy as deviant youth who are not successfully socialised away from a criminal life may cost society more than US$2 million each.[21] The third argument, that aggregation is an optimal treatment model is not supported by empirical analyses.

There is sometimes an assumption that the power of deviant peer influences could be harnessed to effect positive change for vulnerable youth. However, Dodge, Lansford, and Dishion submit that it is clear from the research that some group-administered interventions, including 'scared straight' programmes have adverse effects on their recipients, although it is not always clear what aspect of the intervention is responsible for the adverse effects. However, on the basis of compelling studies involving random assignment, long-term follow up, Dodge, Lansford and Dishion conclude that "under some circumstances the aggregation of deviant peers subverts the intended benefits of interventions and leads to less positive, sometimes even negative, outcomes for participating youth".[22]

Placement with deviant peers can also further erode treatment effects. The above authors referred to deviancy training, which involves reinforcement of deviant behaviour among peers. This can include laughter, imitation and modelling.

On the positive side, Osgood and Briddell[23] point to studies of multi-systemic and multi-dimensional programmes that are non-residential and concentrate on developing connections between young offenders and key adults in their family and community. The authors quote a study that showed reductions in official and self-reported delinquency were partly due to the fact that the opportunities for negative peer influence were reduced.[24] The particular 'multi-dimensional treatment foster care' programme in question also succeeded in improving youth-adult relationships, increasing discipline, and enhancing supervision.

In the justice context Dodge, Lansford and Dishion recommend alternatives to incarceration and deviant group placement. Promising, cost-effective alternatives are Functional Family Therapy (FFT) and multi-systemic therapy (MST)[25] and Multidimensional Treatment Foster Care Evaluation.[26]

In summary, this recent research provides valuable insight for the future management of at-risk youth. If it is accepted that the contagious effects of placing young offenders together in group programmes will tend to cancel out any positive influences of that programme [27], it can be argued that better results will be obtained by providing programmes in community settings, rather than institutions.

It should be made clear that it is not suggested there is no place for prison. Prison will be necessary for community safety and protection. It is the ultimate sanction and needs to be available for the most serious offenders. However, while effective for community protection, prison is generally ineffective for young people's needs and should always be a last resort and subject to real restrictions. Further, young people should be contained in dedicated youth justice residences that provide meaningful activities and programmes to assist them in dealing with their issues. Generally, youth detention centres are thought preferable to adult prisons, as a specialist response. Even then, grouping together and effectively warehousing impulsive and violent young men who are drug dependent and conduct disordered can be counter productive and enduring rehabilitation is an extraordinarily challenging task.

Custodial Sentences for Youth Court Cases, 1987-2006

Number of cases where young offender sentenced to corrective training or imprisonment (excludes non-imprisonable traffic offences)

10. If all else fails, use 'what works', but deliver it badly

Kaye Mclaren begins her 2000 survey of 'what works' by pointing out that it is not the 'what' that is important when reviewing successful programmes and interventions for young offenders, but rather the "shared characteristics of successful approaches" (McLaren 2000, p53). Programmes that work also need to be done well in order to work best.

McLaren surveys many recent studies and concludes that the following are common factors for successful interventions (McLaren 2000, p57):

• Having a multi-faceted approach, targeting a number of needs or skill deficits
• The use of cognitive behavioural techniques that actively teach new skills and attitudes
• Targeting the causes of offending
• Teaching life skills to higher risk young people

In 2000 McLaren quoted Canadian criminologist Don Andrews' opinion that functional family therapy, and multi-systemic therapy are the two most promising approaches for young offenders. Multi-systemic therapy identifies the causes of offending then works across the young person's different social systems: family, school, peer group, and neighbourhood to treat them.

In his 2006 paper Enhancing Adherence to Risk-Need-Responsivity: Making Quality a Matter of Policy Andrews advocates strongly for not only doing 'what works', but making sure that what works is done well. The risk-need-responsivity approach (RNR) has three principles: treat moderate and higher risk cases, target criminogenic needs, and use powerful cognitive social learning influence strategies. To make this approach as effective as it can be, Andrews advises service providers to:

• use the best and most up to date risk/need assessment tools, and provide differentiated services to young people who have different risks and needs
• never let low risk young people come into contact with those with higher risks, because "the waiting rooms of community correctional agencies and group counselling sessions are criminal gathering places"
• reserve intensive services for moderate and higher risk young people. Don't exclude hard cases just because they require more effort, or tend to self-select themselves out of particular programmes
• not target inappropriate needs
• not see all cognitive behavioural programmes as appropriate. Structured social learning and cognitive-behavioural strategies of influence in the context of high quality interpersonal relationships are best
• select, train, and clinically supervise staff according to the skills and competencies demanded by RNR
• see clinical supervision as a commitment to on-going high level modelling and reinforcement of relationship and structuring skills
• put in place quality assurance practices at the programme and agency level. Implement RNR programmes slowly and carefully, and involve competent researchers in programme design, delivery, review, and process and outcome evaluations.

Above all, Andrews counsels programme providers to be realistic and positive when implementing RNR principles. He says "policy and management must demonstrate hope and provide direction, and avoid modelling despair and disrespect for RNR adherence."

Andrews cites studies on both sides of the Atlantic of well-researched family and multi-systemic therapy programmes as well as cognitive skills programmes that found that some so-called 'blueprint' programmes actually increased re-offending rates.

Conclusion

The tenor of this paper may be somewhat tongue-in-cheek, but the fact remains that every week, Youth Courts deal with young people aged 14 to 16 who are, all too easily, 'passing through' on their way to appointments with adult courts and adult consequences. This small but significant procession can only be avoided by applying a series of principled, multi-systemic effective interventions. These interventions have been developed through decades of research, grass roots practice, and learning lessons the hard way.

The Ministry of Justice's 2002 review of the government agency response to the issues behind or directly related to the tragic death of Michael Choy brought home to many in the youth justice sector that inaction, poor communication, poor resourcing, poor understanding, and poor processes have the potential to combine to produce recipes for disaster and tragedy in the lives of victims and offenders, and their families and communities.

Bibliography

D. A. Andrews, Enhancing Adherence to Risk-Need-Responsivity: Making Quality a Matter of Policy, in Criminology and Public Policy, August 2006, 5(3).

Andrew Becroft, Youth Justice Under The Microscope: A Quick Nip and Tuck or Radical Surgery, Speech to National Council of Juvenile and Family Court Judges Annual Conference, San Francisco 2007.

Andrew Becroft, Youth Justice Under The Microscope: A Quick Nip and Tuck or Radical Surgery — What Would the Doctor Order in 2006?, Speech to the International Conference on the Family Group Conference — "Coming Home — Te Hokinga Mai", Wellington NZ, November 2006.

Bernberg, Jon Gunnar and Marvin D Krohn (2003) Labelling, Life Chances, and Adult Crime: The Direct and Indirect Effects of Official Intervention in Adolescence on Crime in Early Adulthood. Criminology, 41(4), 1287-1318; Criminological Highlights, August 2004, Vol. 6 No. 5.

Kenneth Dodge, Thomas Dishion, Jennifer Lansford, Deviant Peer Influences in Programs for Youth,
The Guilford Press 2006.

Mike Doolan, Work with Young People Who Offend, Paper delivered in Glasgow, Scotland, 25
September 2001.

Kaye L McLaren, Tough Is not Enough — Getting Smart about Youth Crime, Ministry of Youth Affairs
2000.

Maxwell, Robertson, Kingi, Morris & Cunningham, Achieving Effective outcomes in Youth Justice: An Overview of Findings, Ministry of Social Development 2004.

John Muncie, Youth & Crime 2nd Edition, Sage Publications 2004.

John Muncie, Gordon Hughes, Eugene McLaughlin, Youth Justice Critical Readings, Sage Publications/The Open University 2002.

Rob White & Johanna Wyn, Youth & Society 2nd Edition, Oxford University Press 2008.

Footnotes

1 Ministry of Justice Youth Justice and Social Sector Service Delivery to the Children and Young People Convicted in relation to the Death of Michael Choy, http://www.justice.govt.nz/pubs/reports/2003/choy-report/index.html.
2 McLaren 2000, p16 referencing Lovell and Norris 1990, and Moffit 1993.
3 McLaren 2000, n 7.
4 Mofftt T E (1996) Adolescence-Limited and Life-Course Persistent Offending. A Complementary Pair of Developmental Theories, in T Thornberry (eds) Advances in Criminological Theory: Developmental Theories of Crimes and Delinquency, 11-54, London: Transaction Press quoted in McLaren 2000, n 7, 16.
5 McLaren 2000, n 7, 16.
6 Mofftt T E, Adolescence-Limited and Life-Course Persistent Antisocial Behaviour: A Developmental Taxonomy, n 4.
7 McLaren 2000, n 7, 36.
8 McLaren 2000, n 7, 36.
9 Youth Justice Statistics in New Zealand: 1992 — 2006, Jin Chong, Ministry of Justice, first published in August 2007
10 Bernberg, Jon Gunnar and Marvin D Krohn 2003, Item 3.
11 Bernberg, Jon Gunnar and Marvin D Krohn 2003, n 56.
12 Table produced in, G Maxwell, Achieving Effective Outcomes in Youth Justice: Implications of New Research for Principles, Policy and Practice, Paper presented at AIC Conference, Sydney, December 2003, 8. Source Ministry of Justice.
13 Henwood 1997, quoted in Becroft 2006, p2
14 (Donald P Roper, Superintendent Potosi Correctional Center, Petitioner v Christopher Simmons (1 March 2005) 543 US (unreported)).
15 R Paton, Summary of Roper v Simmons available in "Court in the Act", March 2005 on
http://www.justice.govt.nz/youth/media.
16 Dodge, Lansford, Dishion "The Problem of Deviant Peer Influences in Intervention Programs", in Kenneth
Dodge, Thomas Dishion, Jennifer Lansford 2006, p4.
17 Dishion, T, Dodge, K, Chapter 2 "Deviant Peer Contagion in Interventions and Programs An Ecological
Framework for Understanding Influence Mechanisms" in Kenneth Dodge, Thomas Dishion, Jennifer Lansford
2006, p14.
18 Kenneth Dodge, Thomas Dishion, Jennifer Lansford, Deviant Peer Influences in Programs for Youth, 2006. This research was developed over 3 years of collaborative research and systematic analysis of problems and solutions.
19 Dishion, T, Dodge. K and Lansford, J "Findings and Recommendations: A Blueprint to Minimize Deviant Peer Influence in Youth Interventions and Programmes" in Kenneth Dodge, Thomas Dishion, Jennifer Lansford 2006, 367.
20 Ibid p368.
21 Ibid p368.
22 Ibid p369.
23 Osgood, W and O'Neill Briddell, L "Peer Effects in Juvenile Justice" in Kenneth Dodge, Thomas Dishion,
Jennifer Lansford 2006, p141-161.
24 Ibid p153.
25 Dishion, T, Dodge. K and Lansford, J "Findings and Recommendations: A Blueprint to Minimize Deviant Peer Influence in Youth Interventions and Programmes" in Kenneth Dodge, Thomas Dishion, Jennifer Lansford 2006, p385.
26 Osgood, W and O'Neill Briddell, L "Peer Effects in Juvenile Justice" in Kenneth Dodge, Thomas Dishion,
Jennifer Lansford 2006, p153.
27 Greenwood, P "Promising Solutions in Juvenile Justice" in Kenneth Dodge, Thomas Dishion, Jennifer Lansford 2006.