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Out of Trouble

Reducing child imprisonment in England and Wales - lessons from abroad

Enver Solomon and Rob Allen

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The Prison Reform Trust aims to create a just, humane and effective penal system. We do this by inquiringinto the workings of the system; by informing prisoners, staff and the wider public; and by influencingparliament, government and officials towards reform.www.prisonreformtrust.org.uk

The International Centre for Prison Studies is part of the Law school in King's College London. Itundertakes research on the use and practice of imprisonment around the world and consultancy work toassist governments to develop criminal justice and prison systems in line with international human rightsstandards. www.kcl.ac.uk/schools/law/research/icps

The Diana, Princess of Wales Memorial Fund continues the Princess' humanitarian work in the UK andoverseas. By giving grants to organisations, championing charitable causes, advocacy, campaigning andawareness raising, the Fund works to secure sustainable improvements in the lives of the mostdisadvantaged people in the UK and around the world.www.theworkcontinues.org

Copyright 2009 Prison Reform Trust

All rights reserved. No part of this publication may be reproduced or transmitted, in any form or by anymeans, electronic, mechanical, photocopying, recording or otherwise without prior permission of thecopyright owners.

This report was written by Enver Solomon and Rob Allen.

Until 2009, Enver Solomon was deputy director at the Centre for Crime and Justice Studies and led theCentre's public affairs projects. He will shortly be taking up the post of Assistant Director of Policy atBarnardo’s. Previously he was head of policy and research at the Revolving Doors Agency and head ofpolicy and communications at the Prison Reform Trust. He has published work on knife crime, youthjustice, crime and the media, prison policy and sentencing, and recently co-authored a major analysis of thegovernment's performance against key criminal justice targets, ten years of criminal justice under Labour:an independent audit. Prior to working on criminal justice policy he was a BBC journalist.

Rob Allen has been director of the International Centre for Prison Studies since 2005. He was a memberof the Youth Justice Board for England and Wales from 1998 to 2006 and has been an adviser to theHouse of Commons Justice Committee since 2007. He has written widely on youth justice mattersincluding children and crime: taking responsibility (IPPR 1996) and From punishment to problem solving -A new approach to children in trouble (CCJS 2006).

First published in 2009 by the Prison Reform TrustISBN 0946209987Cover images: Center for Court Innovation, NYC and Wetherby YOI, Andrew Aitchison www.andrewaitchison.comPrinted by Aquatint BSC

For further information contact: Penelope Gibbs15 Northburgh StreetLondon EC1V [email protected]: 020 7689 7742


Contents

Foreword ii

Introduction iii

Chapter 1: Alternatives to custodial remand 1

Chapter 2: Dealing with non-compliance 8

Chapter 3: Measures for children under 15 13

Chapter 4: Alternatives for non-violent offenders 16

Chapter 5: Alternatives for violent/serious persistent offenders 20

Chapter 6: Treating substance misuse and mental health problems 24

Chapter 7: Other options 29

Chapter 8: Decarceration case study one: Canada 32

Chapter 9: Decarceration case study two: New York State, USA 41

Chapter 10: Using the fiscal infrastructure to cut imprisonment 48

Conclusions 52

Appendix 1: Population and comparative social indicators for five countries 57


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Foreword

The number of children and young people sent to prison in England and Wales and thelevel of reoffending on release indicate that, by any measure, custody is proving anexpensive, ineffective tool for addressing youth crime. Imprisonment leaves a lasting markon the young. And excessive use of youth custody is one of the surest ways to grow theadult prison population of the future. The Prison Reform Trust commissioned this reviewby the International Centre for Prison Studies so that lessons can be drawn, and applied,from the way in which other countries respond more effectively to young people introuble.

This is a timely report. Reducing youth crime, and at the same time reducing costly youthimprisonment, is on the agenda for politicians of all parties. Public opinion would supportinvestment in local community solutions to crime. Our SmartJustice poll1, conducted byICM across the UK and published in 2008, revealed that 65% of people surveyed believedimprisonment is not the right way to punish young people who commit non-violentcrime. Where non-violent, petty offending is driven by drug addiction, the overwhelmingmajority, 84%, saw compulsory work in the community, coupled with drug treatment, asthe most effective way to reduce the likelihood of further offending. Nearly two-thirds ofthose polled thought that prisons were ‘universities of crime’ for young offenders.

There is considerable scope for further reform of the youth justice system, change insentencing policy and renewed commitment to reducing child and youth imprisonment.Notably many of the international examples offered by the report authors illustrate thebenefits of working across departmental boundaries, opportunities for pooling budgets,and adopting a refreshing ‘do what it takes’ approach to enable young people to get out oftrouble.

Juliet Lyon CBEDirector, Prison Reform Trust

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Introduction

A radical overhaul of the youth justice system in England and Wales in the late 1990s saw thecreation of the Youth Justice Board, new local youth offending teams and investment in thesecure estate. The Audit Commission, following its earlier criticism2, noted considerableimprovements on the old, less integrated system for dealing with youth crime3. There remainshowever substantial dissatisfaction with aspects of youth justice - not least in the stubbornlyhigh numbers of young people who are remanded and sentenced to custody. Just over ten yearsfrom the introduction of sweeping youth justice reform, it is arguably time to turn attentiononce again to the adequacy of the arrangements for dealing with children in trouble. This reportexamines lessons that can be learned from abroad, especially where countries have madesystematic efforts to reduce their reliance on custodial measures as a way of dealing with suchchildren.

In recent years there has been an expansion in comparative youth justice analysis examining thedifferences and similarities across countries in their approach to youth crime. A number ofpublications have been produced bringing together summaries and analyses of various youthjustice systems.4 At the same time there has been a growing interest by policy makers andreform organisations in cross-national learning and policy transfer from one country to another.5In fact, one of the most recent alternatives to custody introduced in England and Wales –intensive fostering – was modelled closely on a scheme developed in the USA. Other sanctionsfor young offenders, such as the referral order, have also been inspired by international practice.

This report, commissioned as part of the Prison Reform Trust’s strategy to reduce child andyouth imprisonment in the UK, focuses specifically on international examples of policies andpractices that are used in countries which have relatively low numbers of children in custody orhave been developed and implemented in countries to reduce child imprisonment. It looks atalternative sanctions that could potentially be transferred to England and Wales to reduce thenumber of children either remanded or sentenced to custody. The report does not, therefore,examine a particular intervention programme unless it is delivered as part of a non-custodialcourt or pre-court disposal nor does it look at preventative work.6

Given that some of the sentencing options and interventions already implemented in Englandand Wales have been informed by international policy and practice, the report concentrates onexamples which mostly have not yet caught the attention of policy makers. In particular, it doesnot look at restorative justice, which has been a clear cross-national trend in youth justice inrecent decades7 and has been implemented in different formats by youth offending teams. Aforthcoming report by the Prison Reform Trust will also explore the positive impact ofrestorative justice as the centrepiece of youth justice interventions in Northern Ireland.

Drawing information from other countries and jurisdictions is not easy. The definition of a child,the classification of an offence or prison custody for children and the recording of youth justicedata vary enormously. Comparable data to that collected in England and Wales is therefore notalways available. Robust and accurate statistics are also difficult to obtain. Inevitably there aregaps in the statistics that we have been able to present.

Assessing the impact of the examples presented in the report is also a challenging task.Outcome data is not always robust and evaluations are limited. It is not often that policies andpractices are subject to in-depth credible assessment to determine their impact on furtheroffending. Where possible this information has been provided but we have not been able to

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verify all of it or check it against criteria used in meta-analytical systematic academic reviews.

The scope of this report has meant it has not been possible to provide exhaustive informationfor each of the policy examples presented. Those examples that are considered to be mostpromising for policy transfer may therefore require further investigation.

Finally, in considering the examples set out in this report it is important to recognise that thecountries from which the examples are taken vary significantly in terms of population,urbanisation, income inequality, the provision of welfare support, and crime levels. (The data ofkey social indicators from a sample of countries covered in this report presented in Appendix1 clearly demonstrates this). Consequently, the responses to youth crime that have emerged ineach country are very different and inevitably reflect the social differences. Any approach topolicy transfer needs to be conscious of this fact and the need to adapt policies as they aremoved across national boundaries and cultures.

Remit and structure of the reportThe primary purpose of this report is to look at specific policy and practice examples fromoutside the UK and also examples of relevant recent wholesale youth justice reform that hassuccessfully reduced the number of children incarcerated in a particular jurisdiction.

The brief was to look at alternatives to custodial remand; methods for dealing with breach ofdisposals that do not result in the use of custody; alternative approaches for dealing withchildren under the age of 15 who have committed violent offences; alternative approaches fordealing with children under the age of 16 who have committed non-violent offences oroffences involving low levels of violence; non-custodial penalties that have been used for non-violent offences such as burglary, theft, car crime and drug dealing; and non-custodial optionsfor children with diagnosed mental health disorders.

There are chapters on each of the areas. However, there have been some minor modificationsto the structure of the report. Given the lack of distinct options available in any country forchildren under the age of 16, the report only looks at non-custodial sanctions for non-violentoffences committed by all children regardless of their age (see Chapter 4). Also, for under-15year olds, Chapter 3 does not differentiate between violent and non-violent offences as thereare no countries where this happens for that age group.

Chapters 8 and 9 focus on two examples of jurisdictions that have successfully implementedwide-ranging reforms with the explicit goal of reducing the use of custody. Chapter 8 looks atCanada, which provides an example of legislative driven change and Chapter 9 examines NewYork State in America where extensive administrative reforms have been implemented.

In addition two further chapters are included in order to consider key issues that emerged inthe course of the research. Firstly, in the course of conducting the research for this report wecame across policies that clearly had an impact on the number of children in custody but wereoutside of the report’s brief. These ‘other’ approaches, which look at the role of specialistyouth police and prosecutors as well as an alternative model of custodial decision-making, areset out in Chapter 7.

Secondly, given the recent interest in England and Wales in looking at ways of making localauthorities more accountable for the cost of custody,8 Chapter 10 considers examples fromthree American states that have successfully used a variety of fiscal incentives to reducecustodial placements.

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It became clear from studying the reform efforts in different countries that the approach taken toimplementation is very important. The effectiveness of new policies depends as much on thequality of implementation as on the type of disposals. In particular, a major national initiative inAmerica to reduce the use of pre-trial detention has sought to identify the key features of goodquality implementation. In interviews conducted for the report senior officials also highlighted theimportance of getting the implementation process right. Therefore in the conclusions weendeavour to draw out a number of the learning points from this process.

Finally, the report specifically concentrates on options for policy transfer. At the end of eachchapter we have therefore included a brief section which sets out how the policies outlined couldbe applied to England and Wales.

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1: Alternatives to custodial remand

The use of custodial remand for children, alsoknown as pre-trial detention, varies across differentcountries. In many European countries there aretight legal restrictions on the use of remand forchildren with an emphasis on pre-trial detentionbeing an absolute last resort. In contrast, in theUnited States custodial remand is more commonand the number of children detained pre-trial hasincreased in recent years. This has become a majorconcern for juvenile justice reformers and a high-profile national programme operated and funded bythe Annie E. Casey Foundation has been launched toaddress the issue. The foundation’s juveniledetention alternative initiative has sought toimplement proven community-based interventionsto reduce the number of children held in custodyawaiting trial or sentencing. It has programmes in 24states and has had considerable success reducingthe average number of children held in pre-trialdetention, increasing the use of communityalternatives and reducing the rate of children whojump bail or are arrested whilst on bail. Forexample, in the initiative’s main sites in four differentstates there have been reductions of between 35%and 65% in the average daily number of children indetention over a five year period.9

This chapter begins by highlighting some of thereform programmes in America and then goes on toconsider alternatives to custodial remand in Europe,including options for imposing legislativerestrictions.

Detention diversion advocacy programme10

The detention diversion advocacy programme(DDAP) was set up in San Francisco California in1993 and has since been replicated in BaltimorePhiladelphia, the District of Columbia, OaklandMaryland and Boston Massachusetts. The Office ofJuvenile Justice and Delinquency Prevention in thefederal government’s Department of Justice haveendorsed it as an effective model for divertingchildren awaiting trial from detention.

The programme is based on the twin concepts ofcase advocacy and intensive case management. Caseadvocacy involves a non-legal expert acting onbehalf of the child to put forward a case plan to the

court setting out the community services that willbe made available to the child and the specificconditions and requirements which will be imposedon them. Intensive case management involvesproviding the kind of personal support to overcomeadversities and facilitate compliance with thoserequirements, to monitor the child’s behaviour andto co-ordinate a range of measures to ensurecontinuity of care and the development ofappropriate attitudes and skills.

In both California and Massachusetts the DDAP isoperated by not-for profit organisations that have atrack record of working with young offenders andvulnerable children and their families.

Referral and selectionDDAP targets children and young people who arelikely to be remanded into custody or are alreadyon remand in custody. These are identified throughreferrals from the public defenders’ office (whoprovide legal representation in the family andcriminal courts), the juvenile probation department,and from community agencies, schools, social serviceagencies and even families, who are also able tomake referrals. Staff make a special effort toestablish good working relationships with all youthcourt personnel - prosecutors, defence attorneysand sentencers.

As the DDAP targets children who are at risk ofbeing detained pre-trial it typically involves somesummary offences but mostly more seriousindictable offences such as burglary, robbery, drugpossession, assault, and weapon-related offences aswell as repeat offenders. The programme does notaccept children who are accused of sex offences orthe use of firearms.

A risk assessment instrument is used to determineeligibility for the programme. The ‘detentioneligibility form’ tabulates a score based on thealleged offence(s), prior guilty findings, open cases,pre-existing probation status, history of failure-to-appear, history of escape/runaway, and warrantstatus. The score places children in one of threecategories:

• release (0-9 points)• detention alternative (10-14 points)• detention (15+ points)

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The score, however, is akin to a subtotal - what therisk assessment form calls an ‘indicated score’ - anddoes not automatically determine where the child isplaced. The assessment tool allows for additionalconsideration beyond the indicated score: adding‘mandatory over-rides’ (firearm charges, forexample), and ‘discretionary over-rides’ for bothaggravating and mitigating factors.

On completion of the assessment, if the child isdeemed eligible for the DDAP a request is made tothe youth court judge when the child first appears incourt to divert the case to the programme, pendingagreement of a case plan. Research in both Bostonand San Francisco has found that this occurs in 85%of cases.

The selection process is considered to be veryimportant because, by focusing on children whowould previously have been remanded into custody,it ensures that the DDAP remains a true diversionalternative rather than evolving into a net-wideningprogramme - a major risk with all community-basedalternatives to custody.

Case advocacyOnce a child has been scored as being eligible forthe programme he/she has to agree to participate. Ifthe child agrees an individualised case plan isdeveloped, involving a detailed report that includesspecific conditions, types of services andinterventions required to support the young personand agreed outcomes. It may also include anyconditions that the court stipulates when agreeingto divert the child to the programme. Normally thisincludes a request for a curfew and also attendanceat school. However, depending on the youth courtjudge, such conditions are not always requested bythe court.

The plan is based on an interview conducted bycase workers with the child and his/her parent orguardian. This might take place immediately at courtor be conducted the next day. The case managermay also decide to contact other relevantprofessionals such as school teachers.

Case plans typically include provisions for ensuringattendance at school, familyinterventions/counselling, drug treatment, recreationactivities, tutoring and vocational training. It will alsoinclude specified objectives, (such as improvedgrades, meeting curfew requirements to be at homeby a certain time after school, remaining drug-free,and making restitution to victims), as a means toevaluate the child’s progress. It is the case manager’sjob to ensure that the young person is able toaccess the services set out in the plan and tomonitor progress.

Whilst preparing the plan staff can also identifyareas of need for the child’s family. This may includeassistance with benefits, or help with housingproblems. The case manager will not generallyinclude these in the plan but will actively seek toprovide help to the family if possible.

The case plan will cover the period up to the dateset for the trial hearing - usually up to 12 weeks.However, in Boston case plans have beenoperational for up to 19 weeks due to the averagelength of time from arrest to trial being longer.

Intensive case managementThe purpose of intensive case management is topromote successful completion of the DDAP byproviding support to children to overcome theadversities and behaviour patterns that can lead tothem failing to appear in court and/or committingfurther offences.

DDAP staff use regular face-to-face visits. In the firstfew weeks this can be as many as three times a day.By the fourth week it is usually just once a day andthen from the sixth or eighth week it is down tothree weekly face-to-face contacts. Case workersalso carry pagers/mobile phones to enable them tokeep in regular contact and respond to crisis callson a 24 hour basis.

The maximum caseload is ten children per staffmember. This enables case workers to provide theintensity of contact and consistent, stable supportnecessary for them to become role models and

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mentors. Some of the most effective case workershave experiences similar to their clients, know thelocal communities well and are thus quickly able tofacilitate trusting relationships with the children.They work with the children to enhance their self-sufficiency and responsibility. In some instances caseworkers are assisted by a part-time case monitorwho provides back up support.

Caseworkers are responsible for making telephonechecks to ensure that a child is meeting their dailycurfew requirements to be home at a certain time.They also check up on school attendance. Based ontheir professional judgment and discretion they willdetermine if a young person should be breached forfailing to meet the objectives of the case plan.Children who persistently fail to co-operate withthe programme will be returned to court. In mostcases they are remanded into custody.

A caseworker in Boston described his role:

I act as a kind of parent and also a mentor,advocate and social worker but I am not alaw enforcer, my role is to keep the kid busyand help them move on in society.

OutcomesEvaluations of the detention diversion advocacyprogramme (DDAP) in each location have foundthat between 85 to 90% of young people completethe programme without being arrested or failing toappear in court. A detailed evaluation that included acomparison group of the San Francisco-basedprogramme conducted by the University of Nevada,Las Vegas11 found that:

• The overall recidivism rate of the DDAPgroup was 34%, compared with 60% for thecomparison group.

• 14% of the DDAP group had two or moresubsequent referrals, compared with 50% ofthe comparison group.

• Only 9% of the DDAP group returned tocourt on a violent crime charge, comparedwith 25% of the comparison group.

• Only 5% of the DDAP group had two ormore subsequent arrests compared with22% of the comparison group.

A crude cost/benefit analysis conducted by theBoston programme concluded that the DDAP savesas much as $5m (approximately £3m) per year fromavoiding the unnecessary use of custodial remands.The per-diem cost is $70 (approximately £42)compared to $225 (approximately £135) for acustodial placement.

Reasons for successThere are a number of reasons which have beenidentified for the DDAP’s apparent success:

Low caseloads – The fact that the maximumcase load is 10 is a significant factor, ensuringthat caseworkers can spend sufficient timewith their clients and develop successfulrelationships. The average caseload is far lowerthan for youth probation officers in America.

Case workers – DDAP case workers are fromsimilar backgrounds to the children enablingthem to genuinely engage with them. They alsoexhibit exceptional dedication andcommitment to their clients. Critically, theyare perceived as being separate from theformal youth justice system and thereforetreated with less suspicion by their clients.

Community location – The organisationsoperating the DDAP often have establishedlinks with relevant agencies and the DDAPoffices are based in community centresenabling them to be well connected to localservice providers. Staff are therefore able tolink up services effectively to meet the needsof clients.

Intensive supervision – The 24/7 supportenables caseworkers to deflect potentialproblems for children if, for example, they getinto trouble at school or with the police onthe street. The caseworker is able to de-escalate the situation and avoid formal actionbeing taken.



Family support – The DDAP does not justsupport the young person but also seeks toaddress problems in the family that may beone of the causes of the child’s behaviour.Caseworkers can mediate between parentsand children, resolving conflict and ensuringthe child is able to stay at home. They provideadvice and support for parents who arestruggling to manage their children’s behaviourand/or are finding it difficult to cope due tohousing, benefits or employment problems.

Youth court support – DDAP staff work hard todevelop good working relationships with allyouth court staff, in particular the sentencers.This has meant that youth courts haveconfidence and trust in the programme ratherthen regarding it with suspicion. In Boston, theprogramme was helped by the fact that theyouth court judge already acknowledged thatpre-trial detention was counter-productiveand was therefore pre-disposed to a realisticalternative programme.

After school, evening reporting and supportcentresAfter school and early-evening reporting centreshave been set up in a number of US states asalternatives to pre-trial detention, to help reducethe number of children being remanded to custodyand to save money. They are operated by not-for-profit organisations which have a track record ofworking with young offenders. The centres are openbetween 3pm and 9pm providing supervision tochildren who would normally be on remand incustody. The goal is to ensure that the childrenreturn to court for their scheduled hearings with nonew violations.

The first centres were established in Cook CountyIllinois in the mid-1990s. They have since beenreplicated in many other states. The informationpresented below is based on a visit to the centreoperating in the Queens area of New York.

Eligibility and referralAny child at risk of being remanded into custodywho has not committed a sex offence, murder,manslaughter or arson is eligible for the

programme. Children with persistent or seriousmental illnesses are also excluded.

A risk assessment instrument is used to determineif the child can be admitted to the centre. Itexamines risk of failure to appear in court and riskof re-arrest. Only those children who score at leastin the moderate risk range are eligible for theprogramme.

The majority of children on the programme havecommitted robbery or assault offences. Otheroffences include weapons possession, drugpossession, theft and shoplifting. Most of thechildren are repeat offenders.

A court liaison officer works with court staff,defence lawyers, prosecutors and youth probationto identify potential cases as they come to court forthe first time. If a case meets the criteria based onthe risk assessment then the final decision restswith the judge. In approximately 90% of cases thejudge will agree with the referral and inform theparents that they must complete all the necessaryconsent forms and their child must participate inthe programme. If the child or the parents refuse toco-operate, the child will be remanded into custody.

AssessmentThe family and child meet with the programmesocial worker for a comprehensive assessment assoon as they are accepted on the programme. Theassessment is designed to identify needs, strengths,challenges and any potential obstacles to successfulprogramme completion. It also considers anyproblems the family face that are affecting the child,such as financial concerns or housing issues. Thesocial worker develops a ‘strengthening plan’ thatsummarises the child’s needs and interests. It alsosets out any necessary additional referrals to otherservices that the social worker will follow up. Staffmake an effort to ensure referral services areutilised and that families are linked to the mostappropriate and responsive services.

If the court has not already set the terms of acurfew the plan will also set this out. The curfew isan agreed time between the child andparent/guardian that he/she should be home eachday on return from the after-school programme. It is



monitored by a dedicated member of theprogramme staff who makes a check-call to theparent each evening.

The programmeChildren remain on the programme for at least 30days or until the case ends in court. The averagelength of stay on the programme is just over 60days.

Children participate in three and a half hours ofafter-school supervision for up to five days perweek, in addition to being monitored for schoolattendance, meeting curfew requirements andmaking court appearances. The after-schoolprogramme includes group and individualcounselling, educational support (computer training,tutoring with homework), behaviour interventionssuch as anger management and conflict resolutionsessions and recreational sports. Children alsoreceive a full evening meal each day which is eatentogether with staff before they leave theprogramme. The costs of their travel to and fromthe programme are also covered.

Staff keep in regular contact with parents and thechild’s school, making regular visits depending on thechild’s progress. They work to resolve any difficultiesthe child has at school and ensure they remain inschool full-time. If a child is not meeting therequirements of the programme a system ofgraduated sanctions is used including parentalconferences, increased home visits and earliercurfew times. Ultimately a child can be returned tocourt for review. Alternatively if a child isprogressing well they can be given the option ofbeing subject only to curfew and school attendancemonitoring.

The programme has a capacity for up to 40 childrenand has six staff with a ratio of around six childrento one staff member.

OutcomesAn evaluation of the Cook County scheme foundthat 90% of young people made their court hearingsand remained ‘arrest free’.12 Overall in Cook Countythe annual number of admissions to custody

declined from 10,200 in 1995 to 4,750 in 2005. TheNew York programme, which has been running fortwo years, has so far had an 85% compliance rateand has contributed to the overall reduction in thenumber of children in custody in New York State(see Chapter 9).

The Casey Foundation calculates that the per-diemcost for an after-school reporting centre is between$32 and $35 dollars (around £20), which is muchcheaper than a custodial remand bed. Operatingcosts for custodial places vary enormouslythroughout the USA but it is not uncommon forthem to average $150 to $250 (£90 to £150) perbed per day.13

Reasons for successStaff believe the programme has a number of keyfeatures which account for the high rate ofcompliance. These include:

• The simple fact that children can besomewhere after school where they can feelsafe, relax and be supported.

• The high level of support provided to thechildren and the low staff-to-children ratio.

• The fact that the programme is family-centred and seeks to provide support toparents/guardians as well as the children.

• The focus on ensuring that children arelinked in to other services and the follow-upsupport to ensure the service is responsiveto the child’s needs.

Shelter programmeNon-secure residential alternatives have been set upunder the juvenile detention alternative initiative inthe United States for children for whom a parent orguardian has not been identified and are thereforehomeless. These are children who find themselvesheld in custody awaiting trial because the courtconsiders it to be the only available option. So-calledshelter beds have been established to provideaccommodation for these children.



Typically, placement accommodation has beencreated by contracting with a not-for-profitcommunity based agency to operate a short-termresidential facility. Children stay in the shelter foraround 30 days or until their trial commences.However, the length of stay can be much shorter ifstaff are able to locate family members or aresponsible guardian and release the child to theircare within a few days of placement.

A shelter is relatively small with between 8-20 beds.It is very similar to supported living accommodationor foyer accommodation for homeless young peoplein the UK14. Staff provide 24 hour supervision andsupport with meals. Effective shelter programmesestablish strong internal programmes so thatchildren experience consistent and structuredactivities, including both educational and recreationalopportunities. Some provide an educationalprogramme within the shelter; in others thechildren are supported to attend school.Programmes will typically include individual andgroup counselling, independent living support,support with homework and transportation for pre-trial court appearances and other courtappointments.

Some counties in America provide accommodationby contracting for beds in various group homes (theequivalent of care homes or foyers in England andWales), ‘reserving’ a number of places for childrenwho are in need of time-limited residentialsupervision whilst awaiting trial. Although this can befiscally and administratively more convenient andavoid high-capital costs, some counties have foundthat mixing young people on remand into a grouphome with a different original mission andpopulation poses other challenges and does notnecessarily work well.

The Casey Foundation has calculated that shelterscost up to $130 (approximately £80) per youngperson per day. An evaluation of a shelter in Chicagofound that 96% of children made all courtappearances and were not arrested or cautionedwhilst on the programme.15

Night detentionIn the Netherlands, where the age of criminalresponsibility is 12, children aged 12-17 years oldcan be held in pre-trial detention for a maximum of110 days if they are accused of committing seriousoffences. This can involve night detention duringwhich children are allowed to go to school or workduring the day and are required to return tocustody each evening and at the weekend.

According to a recent document submitted by theNetherlands government to the United NationsCommittee on the Rights of the Child there areplans to extend the use of pre-trial night detention.It states:

Plans are currently being prepared to ensurethat a proportion of pre-trial detention takesplace outside young offenders’ institutions.The Bill amending the Young Offenders’Institution Framework Act to be presented tothe House of Representatives will provide astatutory basis for night detention during pre-trial detention. This can help to preservecontinuity in the young person’s school orcareer, since he or she would only be requiredto remain at the institution at night and inthe weekends.16

(Committee on the Rights of the Child, 2009)

Legal restrictions17

A number of European countries have tight legalrestrictions on the use of custodial remand forchildren that are set out in legislation. They includerestrictions based on a variety of different criteria,some of which are included in the current Englishlaw, others not:

Offence seriousness – In some countries lessserious offences are excluded. In Finland pre-trial detention can only be imposed when theoffence is punishable with a minimumsentence of two years imprisonment. If theminimum sentence is one year, pre-trialdetention is only possible when a child hasalready jumped bail, is not resident in the



country, refuses to divulge his/her name oraddress, or gives false information. In theNetherlands there is also a restriction basedon the gravity of the offence. Pre-trialdetention is only permitted for crimespunishable with more than six years ofimprisonment. In Germany it is restricted tospecified serious crimes because it isconsidered that only in those cases is there agreater risk of the defendant committingfurther crimes. Offences where nounconditional prison sentence is expected arealso exempted as this would be considered aviolation of the principle of proportionality.

Age – In France pre-trial detention is excludedfor children under 16 if they are onlyprosecuted for low-level offences. In Germanythere are additional restrictions for 14 and 15year olds as the court can use custodialremand if the child has already jumped bail orabsconded or has no place of residence.

Evidence – In a number of countries (Austria,Belgium, Finland and Germany) there must bestrong evidence or well-founded suspicionthat the child has committed the offence andwill be convicted if he/she is to be remandedinto custody. New youth justice legislation inCanada also sets similar restrictions (seeChapter 8).

Options for policy transfer to England andWalesBased on the examples presented in this chapterthere are various options for policy transfer toEngland and Wales. Since 2000, the number ofchildren locked up on remand has increased by 41%,with children on remand accounting for 20% of allchildren in custody at any one time. In 2008/9, 1,484children were locked up on remand for a week orless – in addition, it is estimated that 75% of childrenremanded in custody by magistrates or districtjudges are either acquitted or given a communitysentence. There is scope therefore for a change inpolicy to reduce the number of children remandedinto custody.

Several of these options would build on the level ofbail support which is currently offered by all youthoffending teams (YOTS) through the intensivesupervision and surveillance programmes. They are:

• Legislative amendments to introduce greaterlegal restrictions on the use of custodialremand based on offence seriousness and/orage and/or likelihood of conviction

• The piloting of disposals modelled on thedetention diversion advocacy programme orthe after-school/evening support centres

• The commissioning of shelter-typeaccommodation

• The introduction of night detention.



2: Dealing with non-compliance

Compared to their European neighbours, Englandand Wales stand out for their high use of custody inresponse to non-compliance with court orders,leading to so-called breach proceedings. The same isalso the case in the United States and in Canada,where it is common to use custody to sanctionchildren who do not comply with the conditions oftheir sentence. Reducing the use of custody for socalled ‘probation violations’ has become a keyelement of youth justice reform efforts in bothcountries. This chapter looks at the policies thathave been adopted to address high breach rates.

CanadaThe Youth Criminal Justice Act (YCJA) 2002 radicallyreformed the use of custody for children over 12who are convicted of a criminal offence in Canada(see Chapter 8). One aspect of these reformsrelated to the introduction of measures andguidelines to restrict the use of custody for childrenwho breach their court orders.

Prior to the introduction of the new legislation,approximately 20% of custodial sentences weregiven to young people found guilty of breachingconditions of community sentences. Breach wastherefore considered to be a major factorcontributing to Canada’s over-reliance on youthimprisonment.

The YCJA attempted to change this by including aspecific provision that a breach of a communitysentence on the first occasion cannot result incustody. A child or young person must havebreached a previous community sentence forcustody to be used.

Guidelines for practitioners published with thelegislation also included further means to avoid theuse of custody. There was particular concern thatconditions of community sentences could setchildren up to fail, resulting in them beingimprisoned for behaviour that would not justify acriminal charge if it were not related to acommunity order. Advice was issued that stressedthat conditions of probation must be assessed as towhether or not they are in accordance with thepurpose and principles of sentencing set out in theYCJA (see Chapter 8). The guidance states:

Although a condition may be intended to‘promote the rehabilitation’ of the youngperson, it should be carefully scrutinised todetermine whether there is a clear and directrelationship between the condition and acause of the young person’s criminalbehaviour. A realistic assessment should bemade as to whether the young person will belikely to comply with the condition. Inaddition, if a condition is essentially anattempt to address child welfare needs of theyoung person, it should not be imposed. Areferral to a child welfare agency undersection 35 should be made instead.18

The YCJA also sets out an alternative approach fordealing with children who fail to comply with theircommunity orders. It involves initiating a review ofthe probation order to provide an opportunity tomake changes to the conditions so that it can bemore effective in promoting compliance. The reviewis held in court and the young person or theparent/guardian has the opportunity to appear. Thecourt can consider altering the sentence orimposing a new non-custodial sentence. Guidelinesstrongly encourage the use of such reviews:

Reviewing the order, instead of charging theyoung person with a new offence, is inkeeping with the YCJA’s objective of reducingthe over-reliance on incarceration,particularly for non-violent offences. For alarge number of breaches, a review, ratherthan a charge, is the option that complieswith the YCJA’s principle that measures takenagainst young persons must be fair andproportionate to the seriousness of theoffending behaviour. In these cases, a review,rather than a charge, is also more consistentwith the YCJA’s objective of reserving thesystem’s most serious interventions for themost serious offences.19

Despite the introduction of legislation restrictingthe use of imprisonment for breach and theguidance setting out a new approach, custody hascontinued to be used for a high proportion of casesinvolving technical violations of conditions of acommunity sentence, such as failing to abide bycurfew requirements, non-association requirementsor failing to attend probation appointments. Officialsin the Department of Justice say that the


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restrictions in the new legislation were too weakand the guidance was insufficient to change practice.They say that in retrospect the YCJA should haveincluded a provision that custody could only be usedfor a breach if a new criminal offence is committedtherefore exempting its use for technical violations.20

Continuum of graduated sanctions21

The Annie E. Casey Foundation’s juvenile detentionalternatives initiative (JDAI) has worked with youthjustice probation departments in different statesacross America to develop alternative responses tobreach. They have been encouraged to develop arange of graduated sanctions, such as increasing theintensity of probation supervision, so that custody isused as a genuine last resort.

In Multnomah County in Oregon a grid ofproportionate graduated sanctions has beendeveloped for probation officers to use whensanctioning children and young people who breachtheir conditions (see Figure 1). The grid classifiesbreaches as minor, moderate or serious andpresents sanctions for each type of violation. Staffcannot recommend detention without first using therecommended alternative sanctions as set out in thegrid. As a result of the classification process therewas a 33% reduction in admissions to custody fortechnical breaches.22


Figure 1: Multnomah County continuum of sanctions grid23

RISK LEVEL

LOW MEDIUM HIGH

Sanction M inor Moderate Serious M inor Moderate Serious M inor Moderate Serious Warning * Problem Solving

* * * *

Written Assignment

*

Community Service

* 1 day

* 1-2 days

* 1-5 days

* 1 day

* 1-2 days

* 1-6 days

* 1 day

* 1-2 days

* 1-5 days

Mediation * Court Watch * * * Off ice Report

* * *

Home Conf inement Parent Supervision

* 1-3 days

* 3-5 days

* 1-5 days

Home Conf inement Department Supervision

* 3-5 days

* 1-5 days

* 5-10 days

Day Reporting

* 2-7 days

* 2-4 days

* 4-14 days

* 7-14 days

* 4-10 days

* 7-21 days

* 21 days

E lectronic Monitoring

* 5 days

* 5-8 days

* 8 days

* 8 + days

House Arrest * Up to 4

days

* Up to 8

days

* 8 + days

Forestry Project

* 1

weekend

* 1-2

weekends

* 2

weekends

* 2

weekends Court S chool * * * * * * Detention *

1-4 days *

2-5 days *

2-8 days


In Cook County in Illinois a similar system ofgraduated sanctions has been implemented.However, staff have to go through a more detailedclassification process. First, the child is screened todetermine the level of public safety risk. Second, theseverity of the breach is identified using a table ofoffences and behaviours. Third, the risk score andviolation severity are cross-referenced on a grid toproduce a level of sanction. Fourth, the caseworkerselects sanctions from a ‘sanction severity table’ (seeFigure 2).

Other states in America have developed similarsystems of graduated sanctions, drawing from abroad menu of options that include:

Intensive home supervision – the child has to remainat home subject to special oversight rules, such ashome visits by a probation officer and frequent call-in or office visit requirements.

Case advocates, trackers, and mentors – a mentor oradvocate (rather than a probation officer) monitorscompliance by the child (see the Missouri approachbelow). Mentors/advocates can respond tobehaviour compliance problems on a 24 hour basis.For example, in Tarrant County, Fort Worth, Texas,the Juvenile Services Department contracts with alocal non-profit youth service organisation (TarrantCounty Advocates) to provide intensive one-on-onework with children on probation which supplementsthe supervision probation staff provide. The caseadvocates are available to respond to complianceproblems on a 24-hour basis. In Sacramento County,California, children can be assigned to a special

mentoring programme with students fromSacramento State University who work withchildren while receiving college credits.

After school reporting centres – children are requiredto attend after school programmes very similar tothose set out in Chapter 1.Work service programmes – children who breach arerequired to carry out unpaid work at the weekendon specially organised community serviceprogrammes.

Weekend custody – in some states, non-secureweekend custody is applied for a limited time formore serious breaches. In Virginia, an innovativevariant of weekend custody is the Richmondweekend community service program. Children haveto spend their weekend at community-based grouphomes. During the day they carry out unpaidcommunity service, maintaining parks and otherpublic property, and in the evenings they participatein group counselling and guidance sessions.

Electronic monitoring – this can be used as a way ofstrengthening supervision or as a sanction.

Court reviewsIn problem-solving community courts, sentencersplay an active role reviewing an offender’s progress.The Red Hook community justice centre in NewYork has pioneered this approach.25 EveryWednesday, its court hears youth cases for childrenaged up to 16 (the maximum age of the youthjustice system in New York – see Chapter 9).


Level One (Low) Level Two (Medium) Level Three (High)

Admonishment by probationofficer

Require attendance in counsellingor group therapy

Judicial admonishment

Impose curfew Order community service House arrest after school

Minor to contact probation officerweekly by phone

Minor to contact probation officerweekly in person

More frequent personal reportingto probation officer

Require minor to attend a specialprogramme

School detention where available,or teachers to sign classattendance sheets

Participate in ‘personal enrichmentprogramme’ sponsored byprobation department

Require minor to seekemployment

Limit minor’s freedom of travel

Other sanctions Other sanctions

Figure 2: Cook County sanctions severity table24


Although the court only deals with the equivalentof summary offences, excluding more seriousindictable offences, the judge plays a far moreactive role in the child’s community sentence thanis the case in ordinary courts.

A court review hearing is set every two weeks orevery month to examine a child’s progress, ineffect holding the young person to account fortheir behaviour. It is also a means of providingincentives and rewards to encourage complianceand problem solving when children are strugglingto meet the requirements of the sentence.

The Red Hook community justice centre hasfound that the review mechanism is an effectivemeans of ensuring compliance. The judgecongratulates a child in court for good progressand develops a positive personal relationship toseek to support them, using the authority of thecourt in a way which reflects the originalphilosophy of the juvenile court – as a ‘kind andjust parent’. If a child is not progressing well theywill try to address the reasons behind it. Instead ofautomatically sanctioning the child, attempts aremade to encourage improved behaviour.

Similar court reviews are used in youth drugcourts and youth mental health courts (seeChapter 6).

In England and Wales section 178 of the CriminalJustice Act 2003 enables courts to review adultoffenders’ progress as they complete communityorders. This means that when an offender is givena community order, the court can require theoffender to come back to court on a regular basisto consider their behaviour during the sentence.At present the provision is only used by the 10adult community justice courts in England,however the recently published green paper,Engaging communities in the criminal justicesystem26, proposes extending the review power toall magistrates’ courts. Evidence suggests that,providing the necessary resources are madeavailable, introducing or extending provision forreview will be welcomed by sentencers27.

The power of review is also available for the newyouth rehabilitation order, due to be implementedat the end of 2009, as set out in schedule 1,

paragraph 35 of the Criminal Justice andImmigration Act 2008, which includes provisionsthat are very similar to section 178 of theCriminal Justice Act 2003 for adults.28

Missouri community mentors and problemsolving assessments29

The state of Missouri has developed a juvenilejustice system which is based on a philosophy oftreatment and individualised care. Operated by theDepartment of Youth Services, the approach ispremised on the notion that each child is uniqueand therefore requires a flexible response that isnot based on one specific mode of treatment. Eachchild is given a comprehensive risk and needsassessment to determine an ‘individual treatmentplan’.

Consequently, this means that the departmenttakes an individualised approach to violations ofcourt orders. If a child breaches the conditions oftheir order an assessment is made by the child’scase coordinator to establish the reasons for thebreach, the risks posed by the child’s behaviourand what the response should be, depending ontheir treatment needs.

Each child retains the same case coordinatorthroughout their entire court order, ensuring staffprovide consistency and continuity. It also enablesstaff to develop effective relationships withchildren and respond in accordance with thetreatment plan when breaches occur.

The individualised treatment approach meansthere is not a standardised policy for respondingto breach. There are also no prescribed sanctionsor rewards. Instead staff work on a case-by-casebasis, making decisions that are considered to bemost appropriate for each individual child’streatment plan. When making these decisions aproblem solving approach is adopted that seeks toaddress the reasons for the child’s behaviour andprovide the necessary treatment and support toaddress it. For example, if a child fails to co-operate with the treatment plan by not attendingappointments or refusing to co-operate with theplan’s objectives, the case co-ordinator will seek toaddress the factors which are leading to the child’sbehaviour rather than using sanctions.



Student community mentorsTo support children to meet the requirements oftheir court order and progress successfully theDepartment of Youth Services employs universitystudents who operate as community mentors.Their role is to monitor compliance and provideadditional support and guidance to each child. Thementors assist children in a variety of ways to helpthem to lead law-abiding lives in the community.This often involves supporting the child to stay inschool, or find vocational training or employment.

In effect the mentors are assisting young offendersto facilitate compliance. They are ‘teaching’ themimportant life skills and problem-solving strategiesto prevent breach.

The community mentor approach is premised onthe idea that children change through building pro-social relationships and contacts. In addition it isalso considered to be an effective tool for staffrecruitment.

The mentors supplement the work of the case co-ordinators and support the overall problem-solving approach that is taken in response tochildren who fail to comply with their courtorders.

A non-detention policy for technicalviolationsSome states in America have adopted a more swiftand simple approach of prohibiting the use ofcustody for technical violations, such as failing tokeep appointments or meet curfew requirements.Custody can only be used if a child commits a newcriminal offence.

This approach is statewide policy in Florida, wheretechnical violations do not qualify for custodyunder statutory detention criteria. It is also localpolicy in some jurisdictions, such as TarrantCounty, Texas.

The policy need not necessarily be inflexible. Itcould include an override procedure that allowstechnical violators to be detained in exceptionalcircumstances, for example, where they pose asignificant risk of harm or have proved repeatedlyunwilling to comply with any terms of communitysupervision.

(As noted earlier in this chapter, a policy of non-detention for technical violations is the approachthat civil servants in Canada say should have beenapplied when they drew up the country’s newyouth justice legislation, the Youth Criminal JusticeAct.30)

Options for policy transfer to England andWalesBreach is a significant driver to child custody inEngland and Wales – indeed in 2007/8, on average16% of all children in custody were imprisoned forbreach (breach of bail or breach of a statutoryorder)31. Based on the policy examples presentedin this chapter there are a number of options forpolicy transfer to England and Wales to reduce thenumber of children sentenced to custody forbreach of a community order. They are:

• Limiting the use of custodial sentences forbreach of a community sentence by first-time offenders, so that a child must havebreached a previous community sentencebefore a custodial sentence can beconsidered.

• Introducing a policy of non-detention fortechnical violations so that statutorycriteria prevent the use of custody forthese types of breaches. A custodialsentence could only be considered in casesinvolving a new criminal offence.

• Using court reviews based on a problem-solving approach as a means of dealing withbreach.

• Developing a graduated sanctions grid andclassification process.

• Using student community mentors tosupport and monitor compliance.



3: Measures for children under 15

There are a number of European countries thattake either a primarily welfare, or an educational,approach to children under the age of 15 whobreak the law or commit anti-social acts. Thischapter explores both approaches. Firstly it looksat Sweden which, like many European countries,takes a welfare approach. It then looks at a specificprogramme in the Netherlands and at Francewhich has adopted an educational model. In eachcountry the age of criminal responsibility is higherthan in England and Wales. However, applying theapproaches to England and Wales would notnecessarily require raising the age of criminalresponsibility. Instead, a presumption againstprosecution for all but the most serious casescould be introduced so that cases could betransferred to social services (children’s servicesin England and Wales) or alternatively, followingthe French model, a presumption of educationalsanctions could be applied. In each case theoptions for applying the models to England andWales will be considered.

Sweden32

The age of criminal responsibility in Sweden is 15and Swedish law places the entire responsibilityfor responding to crimes committed by individualsunder that age on social services. An offencecommitted by a child under the age of 15 isconsidered to be a social welfare matter ratherthan a criminal justice concern. The role of socialservices is to address the causes of the child’sbehaviour and help them and their family orguardian overcome their social problems.

A case can be reported directly to social servicesor can be referred by the police. If it comes to theattention of the police first they can choose totalk to the child and resolve the matter informallywithout reporting the incident to social services.

A variety of measures are available to socialservices to respond to a child’s offendingbehaviour. They are mainly voluntary non-coerciveoptions but coercive options are also available ifthey are deemed necessary because the child’shealth or well-being is considered to be injeopardy.

Most under 15 year olds are dealt with under theSocial Services Act 1980, which stipulates thatsocial services should seek co-operation from thechild and the family to adopt measures to addressthe causes of the child’s behaviour. Social serviceshold meetings with the child and his/her family toassess the factors behind the child’s behaviour anddetermine what kind of support is required. If itbecomes apparent that there are serious problemsin the home (such as poverty, domestic violenceor abuse), social services will seek to resolvethem.

A support plan for the family and child isdeveloped that include opportunities to receiveservices such as help with welfare benefits, therapyor parenting guidance. Depending on the nature ofthe support provided, the family may be assigned asocial worker for a longer contact period who willwork with the family to provide support toaddress a range of issues.

This model is similar to the family interventionprogrammes (FIP) that operate in England andWales, targeting so called problem families whohave been involved in anti-social behaviour withcontractual support using methods of assertiveout-reach. A contract between the family and theproject is drawn up which sets out the changes inbehaviour that are expected, support that will beprovided and sanctions that will be imposed ifbehaviour does not improve.33 The key differenceis that the FIP is not purely voluntary as familiesare threatened with civil orders unless they co-operate with the programme and change theirbehaviour.

For cases where the child is involved in extensivecriminal and anti-social behaviour or there areserious concerns about significant substancemisuse, social services can use a care order toplace the child either in a care home or withfoster parents. In the majority of cases this is doneon a voluntary basis. However coercive action canbe taken where necessary under either the Careof Young People Special Provisions Act 1990 or theCare of Addicts in Certain Cases Act 1982. Bothinclude provisions which allow for a child to beforcibly taken into custody for the purposes ofsocial services care, although the rules governingsuch action are very restrictive.



The decision has to be taken by local socialwelfare boards made up of local politicians andthen approved by a county administrative court, acivil court that is completely separate from thecountry’s criminal courts. The final decision can beappealed to higher courts.

It is, generally, very rare for a child under the ageof 15 to be forcibly taken into care. However, if itdoes happen a child can be held in a secure youthcare facility rather than in a care home or in fostercare. Unlike a care home, these facilities have theright to use compulsion to keep the young peoplein place and they have secure units. A child’splacement in this facility would be reviewed bysocial services every six months. During thecourse of 2000, 105 10-15 year olds were held insuch a facility.34

Netherlands ‘Stop’ programme35

In the Netherlands the age of criminal responsibilityis 12. Due to widespread public concern about anti-social behaviour by children a special project, ‘stop’,has been established to provide interventions tochildren under the age of 12.

Police officers can arrest, but not prosecute,children under the age of 12 who are involved incriminal behaviour on the street, such asvandalism, shoplifting, theft and assault, and thenreturn the child to their parents. Instead ofproceeding with prosecution they offer theparents a so-called ‘stop-reaction’. If the parentsconsent together with their child they will takepart in a meeting with the stop programme(operated by a non-governmental social servicesagency) to determine what happened and how thebehaviour can be rectified.

The programme typically proposes a learningassignment to the parents and the child, such asplaying a special ‘stop-game’, doing a ‘stop-lesson’or homework assignment, writing an essay and/orapologising to the victim. Support can also beprovided to deal with any problems the child mayhave concerning peer pressure, bullying or mentalhealth issues.

Since it began in 2001, on average about 2000children each year have been referred to stop.

French educative model36

In France children under the age of 13 cannot beconvicted or sentenced for a crime irrespective ofits gravity. The government is proposing to reducethis age to 12, however children can still beconsidered criminally responsible as soon as theyare ‘capable of discernment’. Discernment isgenerally considered to be between the ages of 8and 10. Up to the age of 10 only measures of‘protection, assistance, supervision and education’,described as educational measures, can beimposed. From the age of 10 to 13 specificeducational sanctions/penalties can also beimposed. The judicial youth protection service (PJJ)of the Ministry of Justice carries out all educationalmeasures or sanctions.

Educational measuresEducational measures for children up to the age of10 include:

• A measure of liberty under supervision –regular monitoring of the child whoremains with his family.

• Placement in a facility – such as a children’shome or a secure educational centre(centres éducatifs renforcés, CER) or anemergency placement centre (centres deplacement immediate, CPI).

• Reparation – the child is made aware of hisresponsibility and his place in society andrequired to pay back the harm he has donethrough prescribed measures.

Secure educational centres (centres éducatifsrenforcés, CER) are residential units where groupsof 5-7 children participate in sessions which lastfor between 3 and 6 months. Through educationalprovision they aim to transform the children’sattitudes and behaviours. There are 47 centresthroughout France. The objective is to ‘create,through the discovery of a new way of life outsidetheir normal environment, the conditions capableof producing a transformation of their image ofthe adult world and life in society’.Emergency placement centres (centres deplacement immediate, CPI) provide residentialplacements for between 3 and 4 months. The aim



is to provide a break from the home environmentso that the child’s situation can be evaluated by arange of services and proposals can be made toprovide long term solutions.

Educational sanctionsIn addition to educational measures, educationalsanctions were introduced in 2002 and areintended to enable youth courts to apply a penaltyto minors who have not reached the age ofcriminal responsibility (13 years) and whopreviously escaped all punishment.

Educational sanctions include: the confiscation ofan object, a ban on associating with the victim orthe accomplices in the offence, a ban on going tothe place of the offence, reparation and theobligation to participate in some form of civiceducation. In the event of non-compliance themagistrate can order placement in an institutionsuch as a children’s home or a secure educationalcentre.

Options for policy transfer to England andWalesThe age of criminal responsibility in England andWales is one of the lowest in the world (seeFigure 3). This position will be reinforced ifcurrent proposals to change legislation in Scotlandsucceed37. Reformers have long sought similarlegislative change in England and Wales in line withinternational norms and standards.

Although the age of criminal responsibility in eachcountry highlighted in this chapter is higher than inEngland and Wales there are still various optionsfor policy transfer that could be considered. Theseinclude:

• A presumption against prosecution forunder-15 year olds or under-14 year oldsdepending on the severity of the offence.Children would be referred by the policeto be dealt with by children’s servicesunless the case was very serious.Alternatively a similar programme to the‘stop’ initiative in the Netherlands could beestablished to work with children who arenot prosecuted.

• Limited specific sanctions could be usedfor under-15 or under-14 year olds similarto the educational sanctions used inFrance for under-13 year olds. There wouldhave to be a presumption againstprosecution but instead of being referredto children’s services or a stop-styleinitiative, youth courts could applyeducational sanctions that do not includethe option of custody.

• The use of prison for those under the ageof 15 could be restricted to those whocommit very serious offences. This would,in effect, be a return to the legal situationin England and Wales pre-1994, whencustodial sentences could only be given tochildren aged 15-17, with the exception ofyounger children who had committed thegravest offences.


Country Age ofcriminal responsibility

Scotland 8

England and Wales 10

Northern Ireland 10

Australia 10Netherlands 12

Canada 12

France 13Germany 14

New Zealand 14

Japan 15

Sweden 15Italy 15

Norway 15

Spain 16

Belgium 18

Figure 3: Age of criminal responsibility in selected countries38


4: Alternatives for non-violentoffenders

At a conservative estimate, Youth Justice Boardstatistics suggest that at least a quarter of childrenin custody at any one time in England and Waleshave committed offences which do not involveviolence.39 Indeed, over half of all 15-17 year oldsentering prison establishments in 2008 had beenconvicted of non-violent offences.40

This chapter explores the kind of alternatives tocustody used internationally for non-violentoffences. It begins by looking at a disposal that iswidely available in the United States for childrenwho mainly commit the equivalent of summaryoffences, or shoplifting or minor thefts. Thesewould be classified in England and Wales asindictable either way offences as they could bedealt with in either the magistrates’ court or thecrown court. It then considers three sanctions thatare widely used in other jurisdictions asalternatives to custody for non-violent offenders.In those jurisdictions they may also be used foroffences involving low levels of violence such as arobbery involving a minor assault.

Teen courts41

Teen courts, also known as peer youth courts, arecommon across the United States, where theyhave developed into a national movement in youthjustice. They began 30 years ago and today thereare 1,255 programmes. It is estimated that they areprocessing 100,000 cases per year. In 2007 anational association was established and the firstnational teen courts conference was held.

In effect, teen courts are specialised diversionprogrammes for young offenders who admit guiltfor first-time minor offences. If they successfullycomplete the teen court programme they will bediverted from prosecution.

Teen courts operate in the same way as a youthcourt, except young people are involved in theprocess alongside adults. The format andoperations of teen courts varies greatly. Figure 4demonstrates that youth peers can play differentroles and the courts can include adult legalprofessionals. However, the fundamental premise isthat a teenager is held to account by his/her peersacting as peer juries, lawyers, prosecutors and evenjudges. Teenagers take an active role in determiningthe consequences for the criminal behaviour oftheir peers.


Adult judge model Youth judge model Tribunal model Peer jury model

Who performs therole of judge in thecourtroom?

Adult Youth 3 Youth Adult (sometimesno judge)

Are teen attorneysincluded in theprocess?

Yes Yes Yes No

What is the role ofthe teen jury duringcourt?

Listen to attorneypresentations,recommendsentence to judge

Listen to attorneypresentations,recommendsentence to judge

Usually no jury Questiondefendant,recommend ororder sentence

Figure 4: Courtroom models used by teen courts in the United States42


Some teen courts are operated entirely by youngpeople. For example, the youth court within theRed Hook community justice centre in New Yorkdoes not involve any adults in the court process.Staff from the centre support the court’soperations but do not take part in it.

Teen courts do not deal with serious indictableoffences. They mainly deal with less serioussummary offences, such as motoring and publicorder offences (see Figure 5), but also hear manycases involving shoplifting and low-level theftswhich in England and Wales are classified as moreserious indictable either way offences and can bedealt with by either the magistrates’ court or thecrown court.

The child has to admit guilt and agree to gothrough the teen court process. Usually it will bethe child’s first recorded offence. The courtdetermines the sanction which can include a letter

of apology, a spell of community service,attendance on an educational programme or evenreturning to the court to serve on the jury.Compared to the sentence children might havereceived in the juvenile court in America for a firsttime non-violent offence, the sanction can berelatively severe.

Although teen courts have been promotedthroughout the US as a viable alternative toprosecution, their success is mixed. Evaluationshave not produced conclusive evidence thatchildren who have been through the courts areless likely to be reconvicted. Some courts doappear to have reduced the likelihood ofreconviction whereas others have not.43

Much depends on the kind of teen court modelthat is used. There is a need for further researchto establish the range of outcomes.


15 year old boy whostole a stereo

14 year old girl whowas arrested trying tosteal $280 ofmerchandise from adepartment store

Most commonadministrativearrangementWho usually runs theteen court?

Court or probationagencyPrivate agencyOther service agencyLocal law enforcementLocal prosecutor

14 year old girl whostole cigarettes from astore, claiming she didit for a friend

15 year old girl wholeft a restaurantwithout paying the bill;sent to youth courteven though she laterreturned to therestaurant and paid thebill

Most commonoffences What laws have teencourt defendantsusually broken?

Theft or shopliftingMinor assaultDisorderly conductAlcohol possession oruseVandalism

16 year old female co-defendants who didnot open the door fora police officer whofollowed them homeafter seeing themcommit a drivingoffence

15 year old boy whowas charged withcurfew violation

Most commonsanctionsWhat are teen courtdefendants most oftenordered to do?

Community serviceVictim apologyWritten essayTeen court jury dutyDrug/alcohol class orother classes

13 year old girlcharged withshoplifting; came toyouth court wearing aWinnie the Pooh shirt

16 year old boy whowas arrested forshoplifting $9 worth ofmerchandise

Cases appearing in teen court Features of US teen courtsFigure 5: Teen court cases and features44


Mentor Family Support OrderIn the Republic of Ireland, the Irish Children Act2001 created a range of community-basedsanctions available to the courts for juvenile cases.The mentor family support order is a newsanction intended to provide individualisedsupport to the child and his/her family to addressthe factors behind the child’s offending behaviour.

A court may assign a professional mentor to achild and their family to help, advise and support them in efforts to prevent the child fromcommitting further offences. The mentor assistswith both educational and welfare needs and isalso expected to monitor the child’s behaviour. Thefocus is on both the child and the family as it isrecognised that parents/guardians often need asmuch support as their children.

The child and the parents must consent to theorder and it can last for no more than two years.The child continues to be under the supervision ofthe youth probation service for the duration ofthe order. Probation officers support the work ofthe mentor.

An order can specify other conditions, such ascurfew requirements, community service orparticipation in designated programmes.

The order has only been in operation for twoyears and it has yet to be evaluated.

Suspended sentencesIn many European countries, for example Finland,France, Germany and Denmark, custodialsentences are commonly suspended in the cases ofchildren who have committed serious offencessuch as repeat burglaries or repeat robberies. InDenmark data from 2002 shows that around halfof children sentenced for multiple burglaries weregiven a suspended sentence.45

Suspended sentences can last up to one or twoyears. To be eligible, the offence must reach thecustody threshold, but the custodial sentence issuspended for a specified period, and is insteadserved in the community with specific conditionsthat are supervised by youth probation officers.Breach of a condition can result in the remainderof the sentence being served in custody.

In Germany about 70% of youth prison sentencesare suspended, demonstrating that they are clearlybeing used in place of custody rather than in placeof community sentences. The suspended sentenceis considered to be a ‘great success as therevocation rate dropped to only about 30%’.46

Dunkel suggests there are two reasons for this.Firstly, the German probation service has becomemore effective in its work with children servingsuspended sentences and secondly, the courts havesought to avoid revoking a sentence for as long aspossible. This is due to the fact that German youthcourts strictly adhere to the principle of usingcustody as a genuine last resort.

The Canadian Youth and Criminal Justice Act 2004(see Chapter 8) includes a new suspendedsentence, the deferred custody and supervisionorder, intended for cases that are not seriousviolent offences. The order can be for no morethan six months. The youth court judge setsconditions. Breach can result in the modification ofthe conditions or in the remainder of the sentencebeing served in custody. The DCSO has been usedrelatively frequently but thus far it is not clear if itis being used as intended or in place of communitysentences.47

The suspended sentences used for children incertain European countries and in Canada are verysimilar to the suspended sentence orderintroduced under the Criminal Justice Act 2003 foradult offenders in England and Wales. To date, therehas not been any suggestion of a similar sentencebeing introduced for children.

Day treatment centres48

Day treatment centres have been developed in theAmerican state of Missouri as an alternative toresidential custody for children from chaotic familybackgrounds who have committed both non-violent offences and offences including less seriousviolence, such as common assault. Described as atype of therapeutic one-room school house thecentres are based on the state’s treatmentphilosophy that ‘for children to truly change andavoid reoffending, they must go through a processof self-exploration and a change process thataddresses their history/family dynamics and how ithas influenced their present situation’.49



The centres are accredited schools providing theequivalent of a full day’s education to the samestandards and requirements of mainstreamschools. However, the education is moreindividualised to meet the specific needs of thechildren.

There is a structured and purposeful dailyschedule focused on building ‘healthy peer-to-peerand adult-child relationships, self-awareness andinsight, skill development, resolution of core issues,behavioural change, and leadership’. Counselling isa key element of the day’s activities and isprovided in the form of individual, group and familytherapy. In addition there are job mentoringprogrammes, independent living programmes andvarious community service activities. Parentsupport groups are also provided.

Placement at the day centre can be open-endeddepending on the length of a court order and theprogress of an individual child. The centres are alsoused as a form of ‘intermediate care’ for childrenleaving custody.

The key features of the day centre’s integratedtreatment approach are:

• an individualised and integratededucational approach

• predictable daily group meetings (‘sacredtime’, emotional safety, trauma work, selfacceptance and accountability)

• ongoing treatment activities and groupcircle (educational, conflict resolution,problem solving)

• regular engagement with family andcommunity (empathy and giving back)

• leadership, youth development andrecreational opportunities.

Options for policy transfer to England andWalesThe sanctions and sentencing disposals presentedin this chapter provide various options for policytransfer to England and Wales to reduce thenumber of children sentenced to custody for non-

violent offences. Evidence from a range of opinion polls50 suggeststhat there would be public support for effectivealternatives to custody for children who havecommitted non-violent offences.

• Day treatment centres could beestablished based on the Missouri model.

• For girls and young women, there is scopeto build on the women’s centre modeldeveloped and extended as a result ofBaroness Corston’s review of vulnerablewomen in the criminal justice system.

• A suspended sentence could beintroduced as part of a wider set ofsentencing reforms to ensure there is notunexpected net-widening.

• Building on the restorative peer panelpiloted by Nacro in Preston, peer courtscould be used in addition to referralorders for non-violent summary offences,and offences of low-level theft andshoplifting could be diverted fromprosecution to a peer court.



5: Alternatives for violent/seriouspersistent offenders

Many countries have developed alternatives tocustody for children who commit violent offences,excluding serious violence such as murder,manslaughter and serious sexual violence. Thealternatives are also used for children who areserious persistent offenders repeatedly involved inoffences such as robbery, burglary, commonassault, theft and criminal damage. This chapterlooks at the various alternatives and how they areused in each country.

French educational centresIn France persistent offenders aged 13-18 can beplaced in ‘centres éducatifs fermés’ (CEF) orclosed educational centres set up followinglegislation in 2002. They can be used for teenagerswho have been given a judicial supervision orderor a conditional (suspended) custodial sentence. Achild can remain in the centre for between oneand 12 months.

In November 2007 there were 25 centres inoperation, all but two of which are managed bylicensed private associations.51

Although they are called closed centres this doesnot mean they are the same as closed prisons.Placements are made in the framework of judicialcontrol and thus entail the threat of incarcerationin prison if a child fails to comply by, for example,absconding from the centre. Security is relaxedand children can even be granted permission toattend the local high school each day.52 There isalso a high staff-to-child ratio to allow staff towork as effectively as possible with the children.53

Alternative institutional placementsThe Irish Children Act 2001 created the residentialsupervision order as an alternative to a securecustodial placement. This legislation stipulates thata child should reside in a hostel residence whichshould be reasonably close to the child’s usualplace of residence or to any place where theyoung person is receiving education or training oris employed. The hostel must be inspected andcertified as suitable for use by the Head of theProbation Service. The order should not exceedone year in duration.

The order has recently come into operation andthe new Irish youth justice service is in theprocess of commissioning hostel placements.54

In Denmark the law allows for children to serve aprison sentence in an institution or other placeoutside the prison system.55 A child may serve allor part of a prison sentence in a hospital, in familycare or in a specialised drug treatment centre orany other institution, such as a hostel.

In 2001 it was made mandatory that children mustserve a prison sentence in an alternativeinstitution unless particular considerations relatingto public safety and dangerousness deem itunsuitable.

The length of the prison sentence determines themaximum length of stay in the institution.Probation continues to be responsible for thesupervision and oversight of the offender. If a childfails to comply they can be returned to prison toserve the remainder of the sentence.

Juvenile justice initiativeIn 2007 the juvenile justice initiative was set up inNew York to provide evidence-based alternativesto custody for children who have committedserious offences and/or are repeat offenders. Thealternatives were implemented as part of a wide-ranging strategy to reduce the use of custody forchildren (see Chapter 9). Three community-basedintensive therapeutic programmes have been setup for children who previously would have beensentenced to custody. All the programmes arestrictly based on models that have been subject tohigh quality evaluations which show they reducereoffending by between 30 and 70%.

Functional family therapy (FFT): A small team ofhighly trained therapists, with a maximum caseloadof ten families, provides therapy to the entirefamily in the home. Therapy takes place over anintensive three to five month period and includesup to 30 one-hour therapeutic sessions. FFT hasthree phases, which it implements sequentially:

• engage and motivate young people andtheir families

• develop and implement long-termbehaviour plans for each family member



• strengthen families’ capacities to utilisecommunity resources.

Multisystemic therapy (MST): A small team of highlytrained therapists, with a maximum caseload of sixfamilies, provides therapy to the entire family inthe home over a six to 12 month period.Therapists visit the home multiple times per weekand are also available by phone 24 hours a day.The child’s entire social network is considered andrelied upon to assist the young person and theirfamily in making positive changes. Therapists usecognitive, behavioural, and family therapies toaddress issues relating to substance abuse, familydysfunction, negative peer influences, and poorschool attachment.

Multidimensional treatment foster care (MTFC):Children are placed with a specially trained fosterfamily which becomes, alongside a family therapist,part of the young person’s therapeutic treatmentteam. For six to nine months, MTFC fosterparents, who have 24 hours per day/7 days perweek access to programme support, carry out anindividualised programme that sets clear rules,expectations and limits to manage behaviour. Thefoster parents provide a daily report, which relaysinformation about the youth’s behaviour to thetreatment team and ensures that the programmeis being implemented correctly. Simultaneously,the young person’s family receives intensivetherapy and parenting skills designed to teachthem how to provide consistent discipline,supervision, and to encourage them to makechanges in their parenting style. The goal is toprepare parents for their child’s return homewhile increasing positive relationships in the family.Upon return, the family then receivesmultisystemic therapy until the family and youngperson are able to show sufficient progress. Datashow that MTFC reduces recidivism byapproximately 60% at a cost significantly lowerthan custody.

Blue sky project pilots: Blue sky utilises all threeevidence-based interventions as a continuum.Children may move from one to another, and backagain, depending on the child and family’s needsand their response to each modality. The founders

and developers of MST, FFT, and MTFC chose thejuvenile justice initiative to be the first site forpiloting the blue sky programme.

Each child is given a standard probation order andis allocated to one of the programmes based onan assessment of their probation report and riskof reoffending. Around half of children on theprogrammes have committed violence against theperson offences, around 15% drug offences andthe remainder non-violent repeat offending. Eightout of ten of the children’s families have hadprevious involvement with child welfare agencies.

Each child will also have additional conditionsattached to their probation order, such as schoolattendance, a curfew requiring them to be athome at a certain time and restrictions on goingto specified places. Ideally these conditions aredeveloped in collaboration with the family and thetherapy team.

Each therapy team has an educational specialist todeal with school issues and a resource specialist tolink the child with pro-social activities and helpfamilies with concrete needs such as housingproblems. In addition to the therapy team eachchild continues to have a probation officer.

Every effort is made to ensure that theprogrammes are implemented in strict accordancewith the programme model. This is seen to bevitally important for the initiative’s success.

Although probation determines when to breach achild, the treatment approach means that theyseek to problem-solve the causes for the breachrather than taking a strict, prescribed enforcementresponse.

The costs per child range from $5,000(approximately £3,000) to $18,000 (approximately£11,000) depending on the programme.

Although there are similar intensive fosteringpilots currently being used by a number of youthoffending teams in England and multisystemictherapy pilots in additional youth offending teamsthere is not the same coherent model like thejuvenile justice initiative.



Multifunctional treatment in residential andcommunity settings (MultifunC)56

Based on an analysis of the research and evidenceon residential treatment for young people withsevere behaviour problems the MultifunCresidential treatment model for children withserious, including violent, behavioural problems hasbeen developed in Norway and Sweden. Eachfacility is a small unit housing only eight children ina non-secure setting with links to localcommunities. There are six facilities in Norway andthree in Sweden. The centres are run by socialservices but accept children given a custodialsentence that the court decides should be servedin a MultifunC centre.

The programme consists of a time-limited periodin the residential setting followed by an integrated,focused aftercare period. The total length of theprogramme depends on an individual assessment,but is usually about 10-12 months includingaftercare, with the aim that no child stays longerthan six months in the residential centre.

The programme focuses on changing the child’sbehaviour using cognitive behavioural techniquesand social learning theory. Links with local schoolsare established to support the development ofpro-social peer relationships outside the centres,and children attend local schools and accesscommunity leisure activities. In addition a greatdeal of support work is done with parents whoare directly involved in treatment planning and aresupported according to the principles ofmultisystemic therapy and parental managementtherapy.

Comprised of three key components, theprogramme involves a relatively short stay in theresidential centre, intensive aftercare support andparental support and training. The short stay isregarded as critical to avoid institutionalisation andnegative influence from peers with similarproblems. Aftercare support is also vital aschanging a child’s behaviour is only considered tobe possible if children and their families aresupported to adapt in their home settings.Children are allowed periods of leave from theresidential centre to prepare them and theirfamilies for the return home. Finally, the

programme is premised on the idea that parentsneed to develop new skills and strategies tosucceed in changing their child, and parents aretherefore an integral part of the treatmentprocess.

The MultifunC programme and residential centreswere set up between 2005 and 2007. An evaluationis currently being carried out and is due to becompleted in 2010.

Continuum of secure care Many jurisdictions have developed what they call acontinuum of secure care. Instead of only havingsecure custodial facilities for children, they havegraduated institutions that use different degrees ofsecurity. For example, in the autonomous region ofCatalonia in Spain, five types of custodial measuresare provided by the general directorate forjuvenile justice - closed, semi-open, open,therapeutic custody and weekend residence in aneducation centre.57

The US state of Missouri has also developeddifferent levels of residential provision. Theyinclude:

• Secure care – these are locked enclosedfacilities for the most serious youngoffenders who have committed seriousviolent crimes. They house about 30children who live in open dormaccommodation in treatment groups of 10to 12.

• Medium care – these are open dormfacilities that are locked but do not have asecure perimeter fence. They have full timeteachers and run in-house day schools.Some of the facilities are housed in stateparks that operate intensive outdoorprogrammes.

• Group homes – these are small 10-12 bedhomes located in residential communities,where children access local education,vocational training or employmentprogrammes.



Options for policy transfer to England andWalesThe alternatives to custody for violent and/orpersistent young offenders presented in thischapter could be transferred to England and Walesin various ways.

• A MultifunC programme based on thedevelopments in Sweden and Norwaycould be piloted or developed in eachregional youth offending team area.

• Therapy teams based on the juvenilejustice initiative model in New York couldbe established serving regional youthoffending team areas, providing greateraccess to the four evidence-basedintensive therapeutic programmes thatmake up the initiative.

• Consideration should be given to the long-term development of continuum of securecare facilities for violent young offenders.

The legislative framework that would allowchildren to serve custodial sentences ininstitutions other than secure custodial facilities(for instance drug treatment centres or otherresidential facilities) already exists, through theCriminal Justice Act 2003. Section 235 of the Actallows for those aged under 18 who are sentencedfor serious offences under section 226 of the Act,or for certain violent or sexual offences undersection 228 of the Act, ‘to be detained in suchplace, and under such conditions, as may bedetermined by the Secretary of State or by suchother person as may be authorised by him for thepurpose’58. To date, this legislation has not beenutilised.



6: Treating substance misuse andmental health problems

It is well established that children in manycountries who are sentenced to custody havehigher than average substance misuse and mentalhealth problems. Some of the alternatives tocustody highlighted in this report includecomponents such as individual or group therapy orcounselling that seek to address these needs. Insome countries there is also the option to serve acustodial sentence in a treatment facility (seeChapter 5). However, there are few examples ofnon-custodial penalties that specifically addresseither substance misuse, mental health or socialcare needs.

This chapter focuses on approaches that have beentaken in America through the extension ofproblem-solving drug courts and dedicated mentalhealth courts for juvenile offenders. Although theirdevelopment is still in its early stages and theevidence about their impact is limited, they doprovide possible options for application in Englandand Wales where drug courts and mental healthcourts are currently being piloted for adults.

Juvenile drug courts59

Drug courts have proliferated throughout theUnited States since the first was opened inCalifornia in 1989. They were initially establishedfor adult offenders but since the mid-1990sjuvenile drug courts have emerged as analternative approach for dealing with young drugoffenders. They are designed to guide offendersidentified as drug-addicted into treatment toreduce drug dependence and improve quality oflife for them and their families.

In a typical drug court programme, a judge issupported by a team made up of a drug courtcoordinator, addiction treatment providers,district/state’s attorneys, law enforcement officers,and parole and probation officers, who closelysupervise participants. They work together toprovide coordinated services to drug courtparticipants. District/state attorneys and publicdefenders hold their usual adversarial positions inabeyance to support the treatment and

supervision needs of programme participants. Thejudge plays an active role, regularly reviewing thecase and supporting the young offender’s progress.

In most juvenile drug courts in America, eligibilitycriteria covers young offenders who have beenfound guilty of a drug-related offence and have ahistory of drug-related offending. However, thecourts only deal with relatively minor drugoffences, such as possession of small amounts ofdrugs such as methamphetamine, marijuana andcocaine. Cases that involve possession of largeamounts, dealing or manufacturing, or includesexual or violent offences, are not eligible.

Children can be referred from a variety of sources:a parent, treatment agency, probation officer, judge,prosecutor or defence attorney, although they areusually referred by probation. Those selected toparticipate in the drug court programme candecline the offer - however if they refuse toparticipate they are most likely to be given acustodial sentence.

A parent or guardian is required to support theyoung person through the drug court programme,which involves a series of stages that includesanctions and rewards depending on an individual’sprogress.60 As an example, Figure 6 sets out thethree phases of the Vanderburgh County, Indiana,juvenile drug court programme. The average timeparticipants spend in the programme is 7 months.61



All participants, no matter what phase they are in,are required to attend school regularly orparticipate in a training programme three days aweek. Each phase also has specific requirementsaround participation in drug screening, attendanceat support groups, and at drug court statushearings. Individualised treatment objectives areidentified for each client based on therapists’recommendations and therefore the frequency ofrequired sessions varies depending on theparticipant.

Aftercare, also called continuing care is an integralpart of juvenile drug courts. It is offered bytreatment providers and typically begins shortlybefore the young person graduates from the drug

court programme. The length of aftercare isdependent on the treatment provider’s policy butusually lasts at least 90 days.

A key element of the juvenile drug court is therole of the judge/magistrate who actively reviewscases on a regular basis. During drug courtsessions the magistrate provides participants withpositive encouragement when they show signs ofprogress and imposes sanctions when they are notfollowing programme requirements (see Figure 6).They get to know participants individually, learningin detail about many aspects of their lives andfamily in an effort to better connect andunderstand them.


Figure 6: Vanderburgh juvenile drug court process62


OutcomesMost drug courts in America are too new todetermine if they are effective and they havedeveloped so rapidly that researchers have not hadthe time to complete credible outcomeevaluations. The Justice Department raises anumber of questions about the role of the courtsthat still need to be answered:

Are drug courts better than the traditionaljuvenile justice system at stopping orreducing substance abuse in teenageoffenders? How serious should a youth’sdrug behaviour be to justify the addedexpense and treatment intensity of juveniledrug court? What happens to offenders afterthey leave the drug court program?Researchers...raise these and other criticalquestions, but until a body of soundevidence can be compiled, no definitiveanswers are forthcoming.63

Clearly, questions remain about the need forjuvenile drug courts. There continues to be adebate in the US about whether or not drugcourts dedicated to juveniles are really necessary.Some argue that the juvenile court already uses aproblem-solving approach and recognises theunique circumstances surrounding youth offending,including the use of alcohol and illicit drugs. Even iftheir need can be established, sceptics questionthe appropriateness of superimposing the adultmodel on children whose criminal and drug-usingprofiles are markedly different from seriouslyaddicted adult offenders.

Juvenile mental health courts64

Following the development of mental healthcourts for adult offenders over the last twentyyears, juvenile mental health courts have developedas an alternative for children and young peoplewith mental health needs who are convicted of arange of offences.

While there has been no large-scale evaluation orreview of the courts there is a growing interest intheir operation as a means of providing effectivemental health services to children who enter theyouth justice system.

There are far fewer juvenile mental health courtsthan there are juvenile drug courts. A recentreview found just 10 operating in the USA with afurther 20 planned. They have emerged in an adhoc fashion usually initiated by a juvenile courtjudge or a key politician in response to a largenumber of children with mental health needsappearing in court and a lack of available servicesto meet their needs.

The courts operate separately and are typicallyoverseen by a single judge who, in the same way asjuvenile drug courts, is actively involved inreviewing each case. The courts adopt a multi-disciplinary team approach to develop treatmentplans and monitor treatment compliance andprogress and make recommendations to the court.

Some courts have very strict exclusionary criteriafor participation, barring any child who hascommitted violent offences or sex offences, whileothers use broader criteria and discretion. Forexample, while the Los Angeles County, California,juvenile mental health court has no formalexclusion criteria, the judge, working inconjunction with a team of juvenile justice, mentalhealth and school officials, uses discretion whendealing with very serious offences.

Courts also have different criteria for mentalhealth eligibility; some will only accept childrenwith the most serious mental health illnesses whileothers accept children with any identified mentalhealth disorder or issue. The majority of courts,however, exclude those children who only have adiagnosis of conduct disorder or oppositionaldefiant disorder.

A child can be referred to the court afterconviction and prior to sentencing. In some courtsa referral can take place whilst awaiting trial andprogress can impact on the sentencing decision.Each case is regularly reviewed by the judge tomonitor a child’s progress and rewards, incentivesand sanctions are used as required. Courts mightexpunge a child’s record or drop all charges(depending on the point at which the child isreferred to the court) upon successful completionof the treatment programme. Other courtsrecognise achievements through graduationceremonies, reduced frequency of judicial review



hearings, or termination of probation. In the eventof non-compliance, juvenile mental health courtsuse a variety of sanctions including electronicmonitoring, judicial review, temporary placementin detention, or increased intensity of treatment.

Treatment programmes are provided throughformal linkages with existing community-basedmental health services. As a result, the servicesavailable are largely determined by what isprovided in the local community. Typical servicesprovided to a child participating in a juvenilemental health court include traditional mentalhealth services, such as individual, group and familytherapy; medication and medication management;and case management services. Some courts willprovide specific additional services, such asmultisystemic therapy (MST), to childrenparticipating in the programme.

OutcomesThe effectiveness of juvenile mental health courtshas yet to be determined despite the growinginterest in them across the United States. Therecontinues to be some debate about the need forthese courts and whether or not the services andprogrammes could just as easily be provided aspart of mainstream juvenile court provision. Thereare also concerns that more children could bereferred to the courts, and therefore becomeinvolved in the juvenile justice system, in order toaccess mental health services.

Juvenile court clinicsJuvenile court clinics have been established insome states in America to ensure that judicialdecisions are based on the best available clinicalinformation about a child’s mental health needs.The objective of the clinics is to provideinformation that is ‘relevant, timely, accurate,culturally sensitive, and appropriately used’.65

The juvenile court clinic in Cook County, Illinois, isa good example of how the clinics have improvedthe quality of decision making.66 It focuses on anumber of areas:

• Co-ordination – clinical co-ordinators areassigned to each youth courtroom toassist sentencers, lawyers and probationofficers to request and obtain useful

clinical information. Their role is to addresscommon problems found in youth courtsincluding ‘vague referral questions that inturn produce generic clinical responses,inappropriate requests for clinicalevaluations, untimely receipt of requestedinformation, and insufficientcommunication between mental healthservices and the court’.67 The coordinatorsact as the main contact between the courtand mental heath agencies, documentingrequests for information and ensuring atimely response.

• Forensic evaluations – the clinics are alsoresponsible for conducting forensic clinicalassessments. After a family has beenordered to undergo a clinical evaluation,the clinical coordinator facilitates theprocess, which includes evaluating theinformation request, documenting therequest, and arranging an intake interview.The assessment is conducted by apsychologist or psychiatrist who is amember of the clinic’s staff, and isdelivered to court before the family’s nextcourt date.

• Linking with community based mentalhealth services – the clinic does notprovide clinical intervention services.Instead, it responds to requests for serviceprovision by providing information oncommunity-based services and linkingchildren and their families to theseservices. To facilitate this process, the clinicregularly gathers information oncommunity clinical mental healthintervention resources on an interactivedatabase. This enhances the likelihood ofthe court referring children torecommended community-based services.

• Advice, guidance and training – the clinicplays a vital role in advising the courtabout the need for clinical assessment andevaluation. It also provides education andtraining for all court staff to help them tobetter understand and analyse the clinicalinformation they receive.



The Cook County juvenile court clinic is currentlybeing evaluated - however it has already beenshown to have contributed to an overall reductionin the number of children sentenced to custody inthe county.68

Options for policy transfer to England andWalesThere is much evidence on the prevalence of drugand alcohol addictions, and mental healthproblems, within the child custody population inEngland and Wales. Thirty six percent of youngmen in custody cited coming off drugs or alcoholas a problem when arriving in prison69 andresearch conducted by the Youth Justice Board(YJB) in 2004 found that 30% of juveniles incustody had used drugs ‘to feel normal’, whilst 38%had taken a drug ‘to forget everything’ or to ‘blotthings out’70. Behavioural and mental healthproblems are particularly prevalent amongstchildren in prison, with 85% showing signs of apersonality disorder, and one in ten signs of apsychotic illness71. More recent researchconducted by the YJB found that 86% of 17 yearold girls in custody had some level of psychiatricdisturbances, including long-standing disorders72.That the prevalence of substance misuse/ abuseand mental health problems are sodisproportionately high amongst children incustody suggests that the current arrangementsfor screening and diverting these children from thecriminal justice system are failing.

As drug courts and mental health courts are beingpiloted for adults in England and Wales there is agood chance that they could, in the future, beproposed for young offenders. Based on thedetails provided in this chapter, carefulconsideration should be given to whether or notsuch courts should be developed in England andWales. Lord Bradley’s recent review of diversionfrom the criminal justice system into mental healthand social care, although largely focussed onadults, could be used to lead to an improvement inresponse to children with mental health needs orlearning disabilities.

Court clinics that have been developed in Americaprovide an example of how community-basedmental health treatment could be improved forchildren appearing in court in England and Wales.

What both models explored in this chapter havein common is a problem-solving approach utilisingthe court’s authority to encourage and monitorjuveniles. There is undoubtedly scope for extendingsuch an approach to the youth court - whether ornot specific courts are established.



7: Other options

In the course of conducting the research for thisreport we came across policies that clearlyimpacted on the number of children in custodybut were outside the report’s brief. This chapterlooks at these miscellaneous policy options. Itoutlines three approaches to dealing with childrenwho come into conflict with the law, in Europe,New Zealand and America, that we consider to beinfluential in ultimately determining how manychildren are sent to prison.

Specialist child prosecutorsSome European countries (Spain, Holland,Germany) have specialist youth prosecutors whoonly deal with juvenile cases. They operate inaccordance with specific guidelines for juvenilecases with an emphasis on early diversion wherepossible.

Holland73

The role of specialist youth prosecutors inHolland provides an example of how they can actas gatekeepers determining whether or not a childaccelerates through the court system intocustody.

In the Dutch criminal justice system, they play akey role exercising wide ranging power. Theprosecutor is responsible for all investigatingactivities of the police. If the case is referred tocourt he/she is also responsible for the indictmentand for recommending a specific penalty.

A prosecutor can dismiss cases unconditionallywhen it is considered to be in the public interestor is not required by law. However, thepresumption is that cases will not be dismissedunless there are very strong public interestgrounds.

Alternatively a case can be dismissed withconditions attached. In juvenile cases theprosecutor may meet with the child and theparents and impose a conditional dismissal. Theconditions can include an apology, payment ofcompensation to the victim or the imposition of acommunity service sanction of up to 40 hours.

It is important to note that whenever aprosecutor decides to dismiss a caseunconditionally or conditionally, he must consult ajuvenile judge to gain their approval. It is usuallythe case that consultations take place at tripartitemeetings that also involve the local childprotection council.

Conditions can also include referral to the childprotection council who may ask the judge for acivil child protection measure.Conditional dismissals are usually imposed for theequivalent of summary cases and propertyoffences.

GermanyIn Germany, police do not have the power todivert cases from prosecution. Due to the abusesof police power exercised under the Nazi regimethere continues to be a deep-rooted reluctance togrant police extrajudicial powers. Specialistjuvenile prosecutors, often in consultation withjuvenile court judges, carry out all forms ofdiversion.

There are four levels of diversion74:

• Diversion without any sanction, ie. non-intervention, which is given priority incases of petty offences.

• Diversion with education wherebydiversion measures are taken by otheragencies, such as parents or the school, orin combination with mediation.

• Diversion with intervention/obligationswhich involves a sanction. The prosecutorwill propose that the juvenile court judgeimpose a minor sanction, such as awarning, community service (usuallybetween 10 and 40 hours), mediation,participation at a training course for trafficoffenders or certain obligations likereparation/restitution, an apology to thevictim, or a fine. Once the young offenderhas fulfilled these obligations, the juvenilecourt prosecutor will dismiss the case inco-operation with the judge.



• Diversion following charge if the youngoffender has, prior to the case coming tocourt, undergone an educational measuresuch as mediation and the court concludesthat formal proceedings are no longernecessary. In such instances the judge hasthe power to dismiss the case.

The 1990 reform of the Juvenile Justice Act inGermany emphasised the importance of diversion,particularly for minor offences, and extended thelegal possibilities for its application. Diversion canbe used for any offence, either summary orindictable. If, for example, a child has committed arobbery and then demonstrates that they haverepaired the damage or made another form ofapology/reparation to the victim, the case is likelyto be dismissed. Consequently a high proportionof cases are diverted. In 2003, juvenile prosecutorsdismissed around 70% of all cases from the youthcourts.75

Specialist youth police As well as having specialist youth prosecutorssome jurisdictions have police officers whospecialise in juvenile justice. They act in a similarway to prosecutors, taking extrajudicial decisionsand acting as a gatekeeper to the youth justicesystem. One of the best examples of specialisedyouth police is the police youth aid programme inNew Zealand.76 The programme employs policeofficers who have chosen to specialise in dealingwith young people and their families. Their workinvolves:

• Implementing alternative methods ofdealing with young offenders other thanthrough criminal prosecution, whereappropriate.

• Liaising with all agencies and institutionsconcerned with the care, welfare,protection and rehabilitation of childrenwho have come into contact with thepolice.

• Providing guidance and assistance toparents, schools and other relevantagencies.

• Leading on training and best practicepolicing work with children and youngpeople.

• Prosecuting and supporting prosecutors inthe youth court and representing thepolice in family group conferences.

Under statutory guidance police are obliged toconsider diversion from prosecution unless it isdeemed inappropriate due to the seriousness ofthe offence or the offence history of theperpetrator.

If the incident involves a minor summary offencepolice can issue an on the spot warning which isfollowed up in writing to the child’s parents. Whenthe offence is more serious the case is referred tothe youth aid officers who then decide whether ornot to prosecute or divert the case. Based onconsultations with the child, the family and thevictim, youth aid officers have to consider anumber of factors in determining the mostappropriate action. These include:

• nature and circumstances of the offence

• previous offence history

• attitude toward the offence and the victim

• response of the child and their family

• family circumstances and the attitude ofthe family to the child

• impact of the offence on the victim

• victim’s views

• effects of previous sanctions imposed onthe child

• if the public interest requires criminalproceedings.

The youth aid officer then decides whether or notto take further action or develop a diversion planwith conditions, to proceed to a family groupconference or proceed to court.



Conditions of diversion can include: reparation;curfew; attendance at counselling; sport activities;restrictions from association with other groups ofchildren or improvement in school attendance.The majority of offences dealt with in this way areproperty offences, such as shoplifting, propertydamage, offences involving motor vehicles, burglaryand driving offences.

According to an evaluation of the youth aidprogramme following implementation, the arrestrate for young offenders dramatically reduced andeight out of ten cases were diverted fromprosecution.77

Custodial decision making78

The administration of the District of Colombia(Washington DC) in America adopts a uniqueapproach to deciding where to place childrenconvicted by the courts.

Under case law interpretation of local statutes,once the court convicts a young person theagency responsible for operating the youth justicesystem and running all custodial facilities, theDepartment of Youth Rehabilitation Services(DYRS), has discretion to determine where thechild should be placed (in custody or in thecommunity) and for how long up to their 18thbirthday.

The court simply passes a sentence ofcommitment to DYRS and advises on whether itshould be a community or custodial sanction. Thefinal decision on the nature of the sentence restswith the department.

DYRS staff use what is described as a structureddecision making model and case planning process.This involves using a risk assessment that definesthe level of risk the child poses to the public and amental health assessment to identify emergent andacute mental health disorders. A youth family teammeeting which brings together the child, familymembers, victims, community members, socialwork and mental health staff, prosecutors anddefence lawyers is held to discuss the child’sstrengths and needs, and create an individualiseddevelopment plan.

The overall process considers the severity ofcurrent and prior offences as well as the child’s

individual needs and their family circumstances. Itis intended to provide a transparent, consistentand evidence-based process.

In some cases the court will recommend custodybut following the structured decision makingprocess DYRS will place the child in thecommunity if it has concluded that it offers a moresuitable placement.

Options for policy transfer to England andWalesJust over half of all 15-17 year olds entering prisonestablishments in England and Wales in 2008 hadbeen convicted of non-violent offences79 – at thesame time, the average length of immediatecustodial sentences given to children bymagistrates courts’ for non-violent offences hasincreased across the board since 1997. Theaverage custodial sentence given for criminaldamage offences has gone up from 2.8 months to7.5 months; for drug offences from 3.6 months to8.3 months, and for theft and handling stolengoods from 3.2 months to 5.7 months80. Theseincreases have not been mirrored across other agegroups, where the average sentence length forthese particular offences has remained largelystatic. Most juveniles sentenced to immediatecustody have committed non-violent offences. Thisindicates that imprisonment is still not being usedas a measure of last resort for children.

This chapter has highlighted approaches to dealingwith child offenders that could ultimatelycontribute to a reduction in the use of custody.They do not include specific sanctions or disposalsthat could be transferred to England and Wales,however the roles of specialist youth prosecutorsand youth police do merit further consideration,as both play important gatekeeper roles ensuringchildren who commit less serious offences arediverted from prosecution and could have aconsiderable impact on controlling the flow ofchildren into the youth justice system here.

The decision making process used in the Districtof Columbia in America would require a radicallydifferent approach if adopted in England andWales. It therefore needs further investigation andmore detailed consideration.



8: Decarceration case study one:Canada

KEY FACTS81:

u Age of criminal responsibility is 12. Youthjustice legislation in Canada applies tochildren aged 12 to 18.

u Is a federation made up of 10 provincesand three territories. The provinces andterritories have responsibility for theadministration of youth justice.

u Any given day in Canada in 2007/08,there was an average of 2,018 youngpeople in custody.

u The youth incarceration rate, theaverage daily count per 10,000 youth,was 8% in 2007/08, half of the rate in1999/00 when it was 16%.

u The rate of admission to secure custodyfell by a third from 2003/4 to 2007/8from 12 per 10,000 to nine.

u Between 2003/4 and 2007/8, the numberof young people entering sentencedcustody for property crimes dropped bymore than 50%, while the numberadmitted for violent offences declined by12%. As a result, among the reportingjurisdictions, 39% of youths admitted tosentenced custody in 2007/8 had beenconvicted of violent crimes and 27% ofproperty crimes. The reverse was true in2003/4 when 29% were admitted as aresult of violent crimes and 36% due toproperty crimes.

u The use of remand has increased since2003/4 when the Youth Criminal JusticeAct (YCJA) came into effect. Prior to theintroduction of the YCJA, remandnumbers had been relatively stable. Theyear 2007/8 marked the first time sincethe introduction of the Youth CriminalJustice Act, that, on any given day, there

were more young people aged 12 to 17being held on remand awaiting trial orsentencing than those serving a custodialsentence.

u Youth crime levels peaked in 2003 andhave since declined, although violentcrime has remained more stable.

Whilst western countries have generally taken amore punitive approach to youth justice reform inrecent years82 Canada has passed a far moreprogressive piece of legislation. The 2002 YouthCriminal Justice Act (YCJA) enshrines the principlethat custody should genuinely be used as a lastresort and that diversion from prosecution shouldbe used for non-violent child offenders. It hasresulted in a significant reduction in the number ofchildren being sent to court and far fewer beingsentenced to custody. The legislation has certainlymet its objective of reserving custody for the mostserious violent young offenders.

The nature and content of the YCJA provides anexample of the type of legislative reform requiredto reduce the number of children imprisoned inEngland and Wales. However, equally important isthe political process that led to the reform inCanada, in particular how and why a moreprogressive piece of legislation was successfullyimplemented in a country where law and orderhas been a significant political issue. This chaptertherefore not only looks at the key parts of theYCJA and its impact but also considers how thereforms were achieved and the lessons that can belearned from the Canadian experience.

The backgroundTowards the end of the millennium there was agrowing concern in Canada that the youth justicelegislation was not working. The Young OffendersAct which came into force in 1984 was criticisedby Conservative politicians as being too soft andby Liberals and reformers as resulting in an over-use of custody for non-violent offenders. Therewas also a widespread concern around the factthat, at that period in time, Canada had one of thelowest rates of youth diversion, and highest ratesof youth custody, in the world.83



A cross-party parliamentary committee wasestablished in 1998 to review the legislation, and itconcluded that radical reform was needed toreduce the use of custody. Although theConservative politicians on the committeedissented from the findings, the then Liberalgovernment proceeded with its own vision papersetting out plans for a completely new statute, theYouth Criminal Justice Act (YCJA).

The new legislation was passed by the Canadianparliament in February 2002 with the explicit aimof reducing the number of children sentenced tocustody. Indeed the preamble to the act statesthat:

…Canadian society should have a youthcriminal justice system that… reserves itsmost serious intervention for the mostserious crimes and that reduces the over-reliance on incarceration for non-violentyoung persons.84

From early on in the process of reform, the thenLiberal government made it very clear that aprimary goal was a reduction in the number ofchildren in prison. The clarity of this message wasvery significant when the legislation wasimplemented and contributed to its success (seebelow). However, the legislation had an equallyimportant objective - to improve the effectivenessof the responses to the relatively small number ofyoung offenders convicted of serious crimes ofviolence. Critically, this enabled the government tosell the reforms as being tough on the mostserious young offenders.

The Youth Criminal Justice Act’s principleand purposeThe YCJA includes a ‘declaration of principle’establishing the overall purpose of the youthjustice system. It states that it is intended to:

(i) prevent crime by addressing thecircumstances underlying a youngperson’s offending behaviour

(ii) rehabilitate young persons who commitoffences and reintegrate them intosociety

(iii) ensure that a young person is subject tomeaningful consequences for his or heroffence, in order to promote the long-term protection of the public.85

The YCJA also sets out the ‘purpose’ ofsentencing, stating that it:

…is to hold a young person accountable foran offence through the imposition of justsanctions that have meaningfulconsequences for the young person andthat promote his or her rehabilitation andreintegration.86

Neither this purpose nor the declaration ofprinciple mentions deterrence. This is a notableomission as it suggests that deterrence does notneed to be taken into account when sentencingyoung offenders. Canadian criminologists havesuggested that the elimination of deterrence hascontributed to the decline in the use of custodyfor children by the courts.87

The key elements of the legislationThere are a number of important elements of thelegislation which together contribute to settingclear limitations on the use of custody andencouraging alternative sanctions.

1. Restrictions on the use of custody (even forviolent offenders)Many of the sentencing principles included in thelegislation clearly propose limited use ofimprisonment.

Firstly, the principle of the concept of restraint inthe use of custody states that ‘all availablesanctions other than custody that are reasonablein the circumstances must be considered’.88

Secondly, proportionality is required not just in itsown right but also subject to the requirement that‘the sentence must be the least restrictivesentence that is capable of achieving the purpose[of sentencing]’.89 Finally there is a limit on theseverity of sentencing in the youth court as thesentence must not result in a punishment that ismore severe than the punishment that an adultoffender convicted of the same offence in similarcircumstances would receive.



Having articulated general sentencing principles,the legislation then prescribes specific criteria thathave to be met before a young offender can besentenced to custody. This explicitly establishesfour barriers to custody, described by theCanadian Supreme Court as ‘gateways’.

A youth justice court shall not commit a person tocustody ... unless

(a) the young person has committed aviolent offence [or]

(b) the young person has failed to complywith non-custodial sentences [or]

(c) the young person has committed an …offence for which an adult would beliable to imprisonment for a term ofmore than two years and has a historythat indicates a pattern of findings ofguilt ... [or]

(d) in exceptional cases where the youngperson has committed an indictableoffence, the aggravating circumstancesof the offence are such that theimposition of a non-custodial sentencewould be inconsistent with the purposeand principles set out in section 38.90

It is notable that breach of a community sentencefor the first time cannot result in custody. A youngperson must have breached a previous communitysentence for custody to be given.

In specific rulings the Canadian Supreme Courthas emphasised the need to narrowly construe thefour gateways, ruling, for example, that the thirdprovision generally requires a minimum of threeprior judicial findings of guilt.91

Even if a case meets one of the four provisions anumber of other custody-related principles muststill be considered before a court can impose acustodial term.

The first restriction is a clear reminder to thecourt of the importance of the principle ofrestraint in the use of custody stating that if one ofthe provisions apply:

...a youth justice court shall not impose acustodial sentence... unless the court hasconsidered all alternatives to custody raisedat the sentencing hearing that arereasonable in the circumstances, anddetermined that there is not a reasonablealternative, or combination of alternatives,that is in accordance with the purpose andprinciples [of sentencing at the youth courtlevel].92

A second principle to be observed before acustodial sentence is imposed is intended todiscourage courts from escalating the severity ofthe sentence in response to further offending byup-tariffing and imposing a custodial sentence. Itstates: ‘The previous imposition of a particularnon-custodial sentence on a young person doesnot preclude a youth justice court from imposingthe same or any other non-custodial sentence foranother offence.’93 This clearly allows courts toimpose alternatives to custody on consecutiveoccasions.

The third principle significantly restricts the use ofcustody for welfare purposes, setting out that acourt ‘shall not’ use custody as a substitute for achild protection, mental health or other socialmeasure. As is currently thought to be the case inEngland and Wales, under the previous Canadianyouth justice legislation courts often used custodyfor children because they could see no way ofproviding what were thought to be necessarysocial interventions for vulnerable at-risk children.

The legislation also requires courts to consider apre-sentence report as well as any sentencingproposal made by the young offender or his legalrepresentative. It also allows for the possibility ofthe convening of a conference before sentencingto facilitate receiving advice from family orcommunity members, or allowing for a victim-offender meeting before sentencing.

Finally, when a court imposes a term of custodythere is a requirement to provide reasons why ‘ithas determined that a non-custodial sentence isnot adequate’94 to achieve the purpose ofsentencing set out in the legislation. This is yetanother provision of the YCJA that clearly createsa further barrier to the imposition of a custodialsentence.



2. DiversionThe YCJA is clearly intended to reduce thenumber of children coming to court, particularlyfirst-time offenders and children accused of minoroffences, by encouraging the use of diversion. Itstates:

Extrajudicial measures are presumed to beadequate to hold a young personaccountable for his or her offendingbehaviour if the young person hascommitted a non-violent offence and hasnot previously been found guilty of anoffence.95

In addition, statutory guidance to police officersstates that they ‘shall’ consider whether an out-of-court solution is adequate before taking a case tocourt. The YCJA also makes clear thatextrajudicial options should not be precluded incases where a young person has already beengiven one or has previously been found guilty of aseparate offence. The explicit purpose is to avoidescalating the severity of the criminal justicesanction in response to subsequent offending.

An extrajudicial provision can only be used if thereis sufficient evidence to prosecute a child in theyouth court. It also requires the child or youngperson to ‘accept responsibility’ for the offencethat is alleged to have been committed and toconsent to the imposition of the sanction. A youthwho denies responsibility for the offence orobjects to a specific sanction is referred to youthcourt.

3. Custodial remandPrior to drawing up the YCJA there wereconcerns that children were being remanded tocustody unnecessarily, in cases, for instance, wherea judge was concerned that a homeless youngperson might be at risk of harm. The YCJAtherefore contains provisions intended to reducecustodial remands.

The legislation specifies that pre-trial detentionshall not be used as a ‘substitute for appropriatechild protection, mental health or other socialmeasures’.96 It also makes clear that a youth shouldonly be detained before sentencing incircumstances in which an adult could be detained.

In Canada, pre-trial detention can only be used foradults in order to assure attendance in court orfor reasons of public protection or safety.

In addition the YCJA allows for a rebuttablepresumption that detention on grounds of publicsafety/protection should only occur if the youthcould receive a custodial sentence under theprovisions set out in the act, ie the case wouldhave to meet one of the four ‘gateways’.

4. Non-custodial sentences In order to encourage judges to sentence fewerchildren to custody, the YCJA created a number of new community-based alternatives tocustody. Most of these, such as attendance centreorders and intensive supervision and supportorders, are the same as those available in Englandand Wales. However there is one new sentence,the deferred custody and supervision order(DCSO), which is particularly interesting.

The DCSO is effectively a suspended custodialsentence that allows the court to permit the childto remain in the community for the duration ofthe order, subject to supervision by probationofficers. In the event of breach the child mayimmediately be placed in custody for the balanceof the sentence without the need for anothercourt hearing. The sentence can only be imposedfor a period of up to six months, and not forserious violent offences.

The DCSO is only to be imposed if the courtconcludes that a custodial sentence must beimposed. In effect, the sentence represents thelast opportunity for the court to spare a childfrom custody, with them on a much shorter leashthan if serving a community sentence.

5. Sentencing young offenders as adultsAlthough much of the YCJA is intended to reducethe use of custody for less serious youngoffenders, the legislation balances this less punitiveapproach by including provisions to facilitate harshsentencing of the most serious young offenders asadults.

If a child or young person is charged with murder,attempted murder, manslaughter, aggravated sexualassault or found guilty of a third ‘serious violent



offence’ there is a presumption of transfer to trialin an adult court and adult sentencing. Accordingto the YCJA, the initial onus was on the defendantto satisfy the court why they should not be dealtwith as an adult, however the Canadian SupremeCourt subsequently ruled that this provision wasunconstitutional and that the crown must alwaysjustify imposing an adult sentence on a child.

The impactOverall the YCJA has successfully resulted in fewerchildren being sentenced to custody.

Official data shows that between 2002/3 and2003/4, the year the YCJA came into operation,there was a substantial fall in the number ofchildren sentenced to custody, declining from14,118 to 9,570 a decline of 32% and the largestannual change since 1991/92.97 Since 2003/4 thedecline has remained constant. In addition, theaverage daily rate of sentenced children in custodyfell by 37% between 2002/3 and 2007/8.98

According to a recent analysis by Canadiancriminologists, and an unpublished internal analysisby the Canadian Department of Justice, the declinecan be attributed to:

• A significant drop in the number ofchildren charged by police, and an increasein the use of various methods of pre-courtdiversion. In 2003, the year that the YCJAcame into effect, the rate of childrencharged by police dropped by 18% fromthe previous year (from 4,490 per 100,000to 3,690) and the rate of children dealtwith by alternatives to charging increasedby a similar amount. For the first time sinceyouth justice statistics were collected,more young people apprehended by thepolice were dealt with by alternatives tocharging than by the laying of a criminalcharge. Since 2003, the rates of childrencharged and cleared have remained almostconstant, and show no signs of returning totheir pre-YCJA levels.

• A reduction in the number of cases in theyouth court. Between 1999/0 and 2005/6there was a 28% decline in the number of

cases heard in the youth courts. The mostdramatic year on year decrease (16%) wasseen in 2003/4, just after the YCJA cameinto force. This downward trend continuedwith another 10% drop in 2004/5 andslowed down in 2005/6 with a 2%reduction.

• A substantial decline in both the rates andproportion of custodial sentences given inthe youth court. The proportion of casesgiven a custodial sentence almost halvedbetween 2002/3 and 2006/7, falling from27% to 16.6% and the rate of custodialsentences dropped by 35% in 2003/4, andby a further 36% over the following threeyears.

The analysis by the Canadian criminologistsconcludes:

…the police, prosecutors and judges inCanada have responded to the admonitionin the preamble that the Act is intended to‘reduce the over-reliance on theincarceration of...young persons.’ Youthcourts have generally recognised the limitedaccountability of [young people] incomparison to adults and focused on theneed to impose community-based sentencesthat ‘promote...rehabilitation andreintegration into society.’ However, in casesinvolving more serious offences or youthswith lengthy records who have notresponded to community-based options,youth courts have continued to imposecustodial sentences. Further, while thepresumption for adult sentencing for themost serious youth offenders has been ruledunconstitutional, adult sentences are stillimposed in a small number of casesinvolving very violent [young people] wherethe crown satisfies the youth court that thisis an appropriate sentence.99

It is important to note that the decline in the useof custody has not been accompanied by anincrease in youth crime. An internal analysis by theDepartment of Justice found that the youth crimerate in Canada, which is measured as the numberof children accused of an offence per 100,000 of



the youth population, was on the rise until itpeaked in 2003, and has since decreased. In otherwords, since the implementation of the YCJAoverall youth crime has fallen. In particularproperty crime by children has fallen substantiallyalthough the youth violent crime rate remainedrelatively stable over the years.

Although the decline in the number of childrenimprisoned is clearly a success it does hide someoutcomes that were hoped for but have not beenachieved. An internal analysis conducted by theCanadian Department of Justice has identified twoprimary failures:

Custodial remand – the number of childrenremanded into custody has continued torise. In 1999/00, about one in five (19%)children in custody on an average day wasawaiting trial. This rose to more than two infive (42%) in 2005/6 and by 2007/8, on anygiven day, there were more young peopleaged 12 to 17 being held on remand awaitingtrial or sentencing than those serving acustodial sentence. However, the rate ofchildren on remand (the number of childrenon remand per 10,000 in the population) hasremained broadly the same as under theprevious legislation. Officials in theDepartment of Justice say that the remandprovisions have not had the impact intendedbecause unlike the sentencing provisionsthey were not a comprehensive reform ofthe pre-trial stage of the youth justiceprocess. Legislative reform that would bemost likely to reduce the use of pre-trialdetention would involve a comprehensive,stand-alone, pre-trial detention code forchildren that includes clearly defined andspecific, restrictive grounds for detention,similar to the restrictions on custodialsentences in the YCJA.

Breach – the use of custody for breach hascontinued unabated. This is reflected by thefact that administration of justice offenceswhich include failure to comply with courtorders and failure to appear in court,account for the highest proportion ofoffences that result in custody. Officials inthe Department of Justice say that this is

because the legislation does not includesufficient restrictions on the use of custodyfor technical violations.

Despite these two facts, it would be fair toconclude that the YCJA has been a qualifiedsuccess in achieving its objective to reservecustody for violent young offenders.

How reform was achieved Although Canada has a reputation for having amore liberal political culture, in particularcompared to the USA, and for traditionallyexercising restraint in the use of custody100 therewas no guarantee that the legislation wouldsucceed. The Canadian media had a reputation forpublicising criminal justice failures and, in general,promoting punitive responses. Canadianpoliticians, who had a tendency to seek knee-jerkresponses to high profile crimes, often endorsedharsher sentences.

Based on interviews with senior civil servants whowere responsible for overseeing the drafting of theYCJA101, its passage through Parliament and itssubsequent implementation, a number of factorscan be identified which explain how the reformswere successfully delivered.

1. Strong political commitment As already noted, the Liberal government and itsthen Prime Minister, Jean Chretien, werecommitted to reforming youth justice legislation.They accepted that the number of childrenimprisoned for non-violent offences was too high.In principle they were therefore committed toonly using custody for serious repeat youngoffenders and serious violent young offenders. Thereform commitment therefore had two keyelements. Firstly, there was an acceptance of theneed for ‘more effective alternatives [to custody]for non-violent, low-risk [young people]’102.Secondly, there was recognition that there was ‘aninability to deal with violent and repeatoffenders’103 and change was needed. These dualcommitments were made very clear in the visionpaper on youth justice reform which preceded theYCJA.



2. Soft and toughThe dual objectives were seen in the Departmentof Justice as being both softer and tougher onyoung offenders. In fact, at the time, the Minister ofJustice, Anne McLellan, was from the state ofAlberta which favoured a more punitive approachto youth crime. She accepted that there were toomany children in custody but wanted to ensure ano-excuses approach was taken towards seriouschild offenders. She explicitly made it clear to civilservants that the legislation had to include toughmeasures for violent and persistent youngoffenders and requested that there should be apresumption of custody for particular serious,violent youth crimes.

3. Clear messaging and agenda settingFrom very early on in the reform process, thegovernment set the agenda for progressive changeby suggesting that Canada imprisoned too manychildren. The fact that child imprisonment wasproportionally as high as in the USA by the year2000 was considered to be a failure. This firmly setthe political agenda and the terms of the politicaldebate. It also set a more progressive frameworkfor thinking about how to respond to youthoffending.

4. Winning support from key stakeholdersThere was recognition in the Department ofJustice that there had to be buy-in and supportfrom all the major criminal justice agencies,particularly the police. As it happened, the policesaw the merits of early diversion and fullysupported diverting as many children as possibleaway from the courts at the earliest opportunity.Sentencers were also supportive of fewer childrenbeing sent to court for minor low-level offending.In particular, police support was considered criticalto seeing off opposition to the legislation fromvictims groups and opposition politicians whoargued it was too soft.

5. Managing the message with the media andthe publicConsiderable thought and planning was given tohow to ‘sell’ the legislation to the public and themedia. Focus groups were conducted to test outhow messages would play with the public. Theycarefully worked out which messages would playbest and it became important that the whole

government and cabinet could see that thoughthad gone into this. In addition, strategic briefingswere held when the bill was first published, withkey journalists targeted for background briefingsand careful preparation carried out to ensure keystakeholders were ready to make supportivestatements. Not surprisingly, a prominentlypublicised aspect of the Act highlighted in theDepartment of Justice’s first press release was theprovision intended ‘to respond more firmly andeffectively to the small number of the mostserious, violent young offenders’ in order toaddress the ‘disturbing decline in public confidencein the youth justice system’ in Canada.104

6. A break from the pastThe decision to replace the old youth justicelegislation with an entirely new statute, rather thanamending existing legislation, led to a clear breakfrom the past and the introduction of a new youthsentencing framework. Practitioners had to rethinktheir approach to decision-making instead ofignoring or blocking changes. What happenedunder the previous legislation was no longerrelevant, and the explicit provisions required allagencies to think about alternatives to custody.

7. TimingThe reform process was very lengthy, beginningwith a parliamentary review, then the equivalent ofa green paper, and finally publication of a bill, withthe legislation taking nearly four years to passthrough parliament. This long timeframe allowedfor constituencies of support to be built, for awide ranging consultation process and, critically,for the philosophy behind the reforms to beunderstood by the professionals who would beimplementing it.

8. Education and trainingA lot of energy and resources were put intoeducating sentencers and all key youth justiceprofessionals so they understood the rationale forthe legislation and how it should be implemented.A detailed programme of training for sentencerswas implemented and substantial training wasundertaken with probation staff to ensure theirpre-sentence report recommendations were inaccordance with the principles and objectives ofthe legislation. In contrast, on previous occasionsthe Department of Justice had not invested



adequate resources in training and education fornew legislation.

9. FundingThe introduction of the YCJA was accompanied bytransitional federal government funding toencourage the establishment of more community-based programmes. As the administration of youthjustice is the responsibility of the Canadianprovinces, this was critical to ensuring that theresources were in place to allow for effectivedelivery.

10. The federal structureThe Canadian federal administrative and politicalstructure was advantageous because the provinceof Quebec had a long history of supporting awelfare approach to youth crime. Given thepolitical necessity for any government to maintainthe support of Quebec public opinion the moreliberal attitudes in the province helped constrainpressures to be tough.

Sustaining the reforms: how they were notderailedPerhaps unsurprisingly, following implementationof the YCJA there were a number of high profilecases involving children who had committedserious crimes being given non-custodialsentences. The Liberal government, however,managed to avoid them blowing up into a majorcrisis by blaming sentencers for misunderstandingthe provisions in the legislation and by ensuringthat key stakeholders, particularly the police,remained firmly behind the reforms.

The Supreme Court also helped to reinforce thephilosophical underpinnings of the legislation,ruling that the four gateways to custody should benarrowly construed and also that the presumptionof custody for three serious offences wasunconstitutional.

In the 2006 election the Conservative oppositiondefeated the Liberal government which hadsuccessfully overseen the youth justice reforms,and law and order became a major politicalbattleground, with the new government making acommitment to review the YCJA. However, it wasonly able to form a minority government andother political developments conspired to

undermine its authority. A second election tookplace at the end of 2008 and during the campaignthe Conservatives again pledged to create a newyouth justice law that would be more punitive.After it failed to win enough votes to become amajority government and was forced to form asecond minority government, far more importantissues, such as the global financial crisis and healthcare funding, have dominated the national politicaldebate.

Lessons from the Canadian experienceThere are a number of lessons for reform effortsin England and Wales that can be drawn from theCanadian experience.

• Gateways to custody and judicialdiscretion – the inclusion of explicithurdles or ‘gateways’ to the use ofcustodial sentences clearly restricted theability of the courts to imprison non-violent young offenders. The presumptionin favour of diversion and against custodyfor these offenders was critical in reducingthe number of children in prison. Theadditional barriers on the use of custody, inparticular on welfare grounds, furtherlimited judicial discretion. The need forspecific limitations and control of judicialdecision-making are clearly very important.

• Importance of whole system reform – theYCJA introduced reforms to the entireyouth justice process for children. Thisdemonstrates that there needs to be wideranging reform that addresses mechanismsfor diversion as well as sentencing options.Reducing the number of children in prisonthrough legislative reform requires theintroduction of new sentencing optionsand alternatives to custody as well asprovisions to reduce the number ofchildren being charged, appearing in courtand then sentenced to custody.

• Appealing to both ‘left’ and ‘right’ – seniorcivil servants in the Department of Justicestress that the YCJA was successfulbecause it could be used to appeal to bothprogressives and conservatives. Theprovisions allowing for the sentencing of



serious young offenders as adults wereemphasised very early on in order to sellthe reforms as a means of toughening-uplegislation. Ironically, this led many youthjustice advocates and reform-mindedacademics to openly oppose the legislationwhen it was first published. At the sametime, however, the clear statement in thepreamble to the Act and provisions in thelegislation made clear that there should bea far more selective use of imprisonment.

• Managing the media message – what is saidand how it is said matters greatly.Considerable thought was given tomanaging the reform messages andtargeting them at specific audiences. Thiswas particularly the case when thelegislation was first unveiled. Overall, thegovernment was well prepared to set theagenda for reform and shape the terms ofthe debate.

• Professional education and training – allthose who worked on the YCJA highlightedjudicial education and training as beingextremely important. A lengthy period oftraining was specifically built into thedelivery process by the Department ofJustice as officials had learned from pastexperience that the courts, probation andthe police needed to be grounded in theprinciples, provisions and objectives of thelegislation. The importance of training forall practitioners should not beunderestimated.

• Support from across the criminal justicesystem – there was wide-ranging supportfrom all the criminal justice agencies, mostimportantly the police, who wereinstrumental to the YCJA’s success,underlining the importance of stakeholderbuy-in. If legislative reform is to succeed itneeds to have the firm support of all thecriminal justice agencies.

• Resourcing – the Department of Justicebudgeted to ensure there were fundsavailable to support implementation.Without appropriate resourcing, legislationcan be rendered meaningless. Experience inEngland and Wales following theintroduction of the ‘custody plus’ and‘custody minus’ sentences in the CriminalJustice Act 2003 demonstrate this all toowell.



9: Decarceration case study two: NewYork State, USA

KEY FACTS:

u New York State law does not explicitlyset an age of criminal responsibility asany child can be technically charged witha criminal offence.

u It is commonly accepted the age ofcriminal responsibility is seven.

u The youth justice system covers childrenup to their 16th birthday.

u Children who commit criminal offencesare dealt with in the family court withthe exception of the most seriousviolent cases, which are waived into theadult court.

u New York State includes New York City(NYC) but the city has its ownadministration for juvenile justiceseparate from the State’s. In NYCjuvenile justice comes under the city’sprobation service and in New York Stateit is run by the Office of Children &Family Services (OCFS).

u NYC and the counties that make up theadministrative municipalities of NewYork State provide pre-trial custodialplaces. They are paid for by the countiesbut 50% of the costs are reimbursed bythe State government. Custodial facilitiesfor sentenced children, known asplacements, are provided by the Stategovernment (OCFS) or its contractorsand are paid for by the State andcounties equally.

u 60% of children sentenced to custodyare from New York City.

u The total number of children in custodyhas declined from 3,179 at the end of2000 to 2,318 at the end of 2006, a 27%reduction.

u The average annual detention cost forone young person in secure custodialdetention in 2007 was $201,115(approximately £125,000).

u In 1999 the most recent year for whichdata is available, a study for the NewYork state government found that 81%of boys and 45% of girls released fromits custody were rearrested within 36months.

u The population of New York State is 19million, 23% of whom are under 18.

u Overall there has been a sustaineddecline in juvenile crime in recent years,although there has been an increase injuvenile arrests in New York City since2004.

New York State provides a good example of wideranging administrative reform that has resulted infewer children being either remanded orsentenced to custody. With the explicit support oftheir political masters, juvenile justice leaders havesought to increase the number of childrendiverted from prosecution and introducealternatives to custody. As a result custodial bedshave been left empty and the state has closed fourjuvenile jails.

Background By 2000 the number of children imprisoned inNew York State was steadily increasing at greatcost to the state government. At the same time anew analysis found that reconviction rates wereover 80%. The high costs and very poor outcomesprompted a rethink.

The reforms began in New York City (NYC)where in 2003 a newly appointed Commissionerof Probation, Martin Horn, set up ‘Project Zero’.Six out of every 10 children in sentenced custodyin New York State were from NYC. ‘Zero’ stoodfor the goal of sending no children to juvenileprisons outside the city. The intention instead, wasfor them to remain in the community, at homewith their families, so they could continue toattend school and participate in intensive therapysessions aimed at helping them get on the right



path from inside their own neighbourhoods.

Project Zero had five very clear goals; to:105

1. Demonstrate to youth justice stakeholdersthat the ‘incarceration approach’ wasfailing to ensure public safety and washurting children.

2. Create a philosophical approach totackling youth crime that promoted bothpublic safety and child welfare.

3. Create consistency and rationality indetermining which children should be sentto custody.

4. Create a culture that values community-based, in-home solutions to youth crime.

5. Create a set of alternatives to custody forjudges to use when sentencing.

The New York City Department of Probationrestructured its juvenile assessment, courtreporting and supervision functions and workedwith stakeholders to improve decision makingboth pre-court and at the sentencing stage. It alsointroduced a wider range of alternatives tocustodial remand and more communityalternatives to custodial sentences.

Other counties (local municipalities) within NewYork State also adopted a wider range ofalternatives to custody. They specifically targetedchildren considered to be at low or moderate riskof reoffending and worked with the courts topromote greater use of alternatives for them.The reform efforts in New York City and acrossNew York State led the state government to makea clear commitment to reform the juvenile justicesystem and further reduce the number of childrenlocked up. The Commissioner for Children andFamily Services, Gladys Clarion, stated: ‘I don’t saythis proudly, but we preside over a pipeline toprison…And we can’t tolerate that any longer’.106

New York State Governor, David Paterson, has setup a taskforce on transforming juvenile justice toestablish a state-wide process of improving theyouth justice system. The taskforce is developing

detailed options to reduce the use of custody forchildren. When launching the taskforce, GovernorPaterson made a strong commitment to restrictthe use of custody for children:

It is imperative that our State seekalternatives to a costly system that is notserving New York’s children, families andcommunities well. With 80% of the childrenin New York’s custody released andrearrested within three years, reform of NewYork’s juvenile justice system will not onlyprovide those children with necessaryservices for success, but will translate intosafer communities across the State.107

The taskforce is due to report by the end of 2009.Unpublished draft recommendations includeproposals for a custody threshold based on aparticular risk assessment score intended to resultin probation only recommending custody to thecourt if a case is assessed as being of high-risk tothe public.108 The taskforce will also propose agraduated response to breach similar to thatadopted in other parts of America (see Chapter 2)and the use of day centres as alternatives tocustody (see Chapter 4).

The reformsDetailed reviews were conducted to find thedecision points where policy and practice could bechanged. This resulted in the implementation ofwide-ranging reforms at three critical stages – atarrest prior to prosecution, in court whendetermining whether or not to remand intocustody, and at the sentencing stage.

Pre-court diversionWhen a child is first arrested by the police theyare referred to a probation officer. Probation hasthe statutory authority to decide whether or notto recommend diverting the case fromprosecution. Probation will therefore conductinterviews with all concerned parties, including thearresting officer and the complainant, the parentsor guardians and the child, to determine whetheror not the case should be referred for formalcourt proceedings or diverted from prosecution. Ifthe case is to be diverted then the victim or, if thevictim is not available or the crime is victimless,the police, have to agree.



Previously probation was not encouraged todivert low-level cases and the police wereunwilling to support it. However, police andprobation leaders have jointly sought to changethe culture and promote greater use of diversion.Probation officers have been given training andprovided with guidance to ensure more cases arediverted. Consequently they have felt moreconfident and supported in recommending thatgreater numbers of cases are not referred forprosecution. The result has been a significantincrease in the proportion of cases diverted pre-court from 10% in 2002 to 30% in 2008. The actualnumber of cases diverted has increased over thatperiod by 234%.

When a case is diverted the child has to meetspecified conditions and may also be required toattend specific programmes. Typically, conditionsrelate to school attendance or attending amediation programme or substance misuseprogramme. There has been a concerted effort toimprove the quality of diversion programmes andservices, which are operated by probation or thevoluntary sector, in order to demonstrate that thisis an effective option.

Diversion lasts for between 60 and 120 days.Probation determines the conditions andprogrammes/services for each case and thenmonitors a child’s progress. If the child compliesthe case is dismissed – if he/she fails to comply itgoes to prosecution.

Remand decision makingIn order to improve the quality of remanddecision making, a risk assessment instrument(RAI) was created to rationalise the decision todetain or release a child pre-trial while the case ispending. The RAI is an evidence-based assessmenttool completed by probation staff and used by thecourt. It determines the risk of a child reoffendingwhilst awaiting trial and the likelihood of the childfailing to return to court. It has become part ofeveryday practice for children in the family courtand resulted in fewer children being remanded tocustody.

A ‘continuum of alternatives’ to pre-trial detention(known as alternative to detention programmes)have also been established, providing supervision

and service options based on a child’s risk leveldetermined by the RAI. There are three tiers:

Tier 1: Low risk children are subject to acommunity monitoring programme whichinvolves compliance monitors checking eachevening that the child has remained at homefrom an agreed curfew time. They also haveto maintain full school attendance.

Tier 2: Medium risk children are placed onan after-school programme (see Chapter 1).

Tier 3: Intensive community monitoring iscombined with probation supervision. Eachprobation officer has a caseload of no morethan 15 children.

Tier 1 and Tier 2 programmes are operated byvoluntary sector agencies. Tier 3 is operated bythe youth division of the probation service.

Children can move between tiers depending ontheir progress and as a form of reward orsanction.

Sentencing decisionsA review of sentencing decisions found that themost significant factor in determining whether thecourt sentences a child to custody was therecommendation made in the pre-sentence reportcompiled by probation for the court, known as theinvestigation and recommendation report (I&R).However, it also found that there was considerablevariation and that probation officers wereidiosyncratic in their decision-making.

To achieve greater consistency and to improve thequality of recommendations a research-validatedinstrument was created to supplement the I&R.The probation assessment tool (PAT) aims toimprove the pre-sentencing report process by‘refining the quality of assessments and by guidingprobation officers to the most appropriaterecommendations that benefit the [young person]and the community’.109

PAT looks at two key areas – the needs of a childin terms of services required and the risk offurther offending. It is specifically designed toseparate the two issues so that decisions about



custody are based on the level of risk to thecommunity rather than the presumption thatneeds alone should trigger custody.

Once completed, the form gives an ‘Asset level’(high, medium or low) for the likelihood of thechild offending. It also provides a summary of thefull needs of the child in order to ensureappropriate services are identified in the finalrecommendation to the court.

Following the implementation of the PAT therewere immediate and dramatic results. From 2004 to 2008 the proportion of custodyrecommendations declined from 38% to 20%. Theactual number of custodial admissions declinedfrom 1,257 to 853.

Alternatives to custody Alongside the development of the PATsupplementary decision-making tool, a number ofalternatives to custody sentencing options wereimplemented. These include:

Juvenile justice initiative (JJI)The juvenile justice initiative uses evidence-basedtherapeutic interventions for children convicted ofmore serious indictable offences as well as moreserious repeat offenders. Children are given aprobation order but are referred to the initiativewhere they are assessed by professional clinicianswho determine whether they should be placed onone of three programmes – functional familytherapy (FFT), multisystemic therapy (MST) ormultidimensional treatment foster care (MDTFC).

The majority of children are given either FFT orMST with fewer being place in MDTFC. Theinitiative ensures that there is strict adherence tothe evidence-based modalities of eachintervention. (See Chapter 5 for a detaileddescription of the JJI).

EsperanzaEsperanza was developed as a specific alternativeto custody programme for children who wouldotherwise be given a prison sentence. They aretypically children who come from chaotic families,are repeat offenders who have committedrobberies, assaults, burglaries or been charged withdrug possession or small scale drug dealing. Many

are in the early stages of ‘gang’ involvement. Theprogramme does not take offences that haveinvolved the active use of firearms but have hadcases of firearm possession. It very rarely takescases involving sex offences.

Esperanza is different from the juvenile justiceinitiative as it is not based on a specific evidence-based model of intervention but uses its ownorganically developed model more loosely basedon the evidence from what works with childrenfrom troubled backgrounds. However, it is aimed atthe same type of children who are referred to theJJI. Although there are some differences in thereferral criteria110 there is close coordination todetermine which programme is most appropriate.

Each child and their family receive six months ofin-home counselling from an Esperanza fieldcounsellor, who works in a complementary fashionwith the child’s probation officer. Esperanza’sservices help the child and their family tocommunicate and solve problems using a variety oftherapeutic approaches. All the work is home-based. The counsellor will see the child and thefamily at least three times a week, providingintensive family support. The focus is on providingthe family with the tools to move forward andsolve the factors that are behind the child’soffending. It is an intensive therapeutic cognitivebased approach.

Counsellors work with the child and family todevelop a treatment plan that includes realisticgoals. It will always include some kind of agreedcurfew whereby the child has to be at home by acertain time. The parents will then be responsiblefor ensuring the curfew is met and counsellors willdo regular random checks. The family is supportedto address a wide range of needs includingbenefit/housing problems. This might involveaccompanying the parent to the benefit office. Anadditional key focus is supporting the child to stayin school and improve their performance.Counsellors are trained social workers/therapistssupported by a clinical director, with a maximumcaseload at any given time of no more than sixchildren. They are accessible to the child and familyseven days a week. Counsellors seek to form pro-social relationships with the children, supportingthem to successfully negotiate through society.



Given that so many of the children are from blackand minority ethnic backgrounds they also workto address feelings of oppression/discrimination.

Each case lasts six months, after which the childwill continue to be supervised by probation forthe duration of their community sentence, whichcould be another six or 12 months. The idea isthat in the six months the family is supported tobecome able to independently address theunderlying problems and not become dependenton help.

The programme has now become a stand-alonevoluntary sector organisation, although itinevitably works closely with the courts andprobation.

In terms of outcomes:

• Nearly two thirds (64%) of children havesuccessfully completed the programme, ahigher proportion than children withsimilar profiles.

• In 2007 only 16% of children on theprogramme were re-arrested.

• Three quarters (74%) of children haveremained out of custody within ninemonths of completing the programme.

Esperanza costs on average $26,250 (£16,000) perchild, considerably less than a custodial placement– in 2007, the average annual detention cost forone young person in secure custodial detentionwas $201,115 (approximately £120,000).

Enhanced supervision probationEnhanced supervision probation (ESP) is a moreintensive form of probation for children who areat medium to high risk of reoffending. ESPprobation officers have low caseloads (around 15)and are provided with discretionary ‘wrap-around’funds to provide additional service support. Forexample, probation has purchased professionaltutoring services when needed and computers forchildren.

Staff are specially trained to work with thechildren but they do not use any counselling or

therapy, though they might refer a case tospecialist mental health services. ESP is moresimilar to the intensive supervision andsurveillance programme in England and Wales, thaneither the JJI or Esperanza.

The impact• The number of cases diverted pre-court

increased from 10% in 2002 to 30% in2008.

• Fewer children are being remanded intocustody and this is then having an impacton sentencing decisions with courts morelikely to sentence children to alternativesto custody.

• Between 2000 and 2006 the number ofchildren in custody in New York Statedeclined by 27%, from 3,179 at the end of2000 to 2,318 at the end of 2006.

• There have been significant reductions inthe number of admissions to custody forviolence against the person offences, whichfell by 22% from 977 in 2000 to 762 in2006 and for property crimes, which fell by17% from 919 to 766 over the sameperiod. However, the biggest decline hasbeen for drug offences, which halved, fallingfrom 315 to 146 over the same period.

• Between 2002 and 2007 the number ofchildren sentenced to custody from NYCdeclined by 25%.

• Four juvenile detention facilities have beenclosed, saving an estimated $16m (£10m).

• New York City estimates that Project Zerohas saved $43m (£26m) due to thereduction in the use of custody.

• Overall there has been a decline in youthcrime in New York State, although since2004 the number of children arrested inNew York City has increased by 36%.



How reform was achievedBased on interviews with senior practitioners111

who are leading reform efforts, a number offactors can be identified which explain why thereforms were implemented.

Political commitment to reform – there wasa firm political commitment to reform made byMayor Bloomberg in New York and then thegovernor, David Patterson, of New York State. Bothwere determined to drive through wide-rangingfundamental changes on an unprecedented scale.

The impetus for this political change came from agrowing recognition that the juvenile system wasfailing. Research by the state government foundhigh rates of reconviction which forced policymakers to rethink the over-reliance onincarceration. At the same time, evidence wasemerging from research in the United States thatthere were community-basedprogrammes/interventions that had far betteroutcomes. Presented with this evidence politiciansaccepted that reform was necessary.

The fact that the key criminal justice leaders,including the Probation Commissioner and thehead of the family courts, are politicalappointments made by the mayor in New YorkCity and the governor in New York State has madeit easy for them to implement their reformcommitments.

Financial pressures – the pressure on budgetshas been a key factor in reappraising the cost ofcustody. The need to cut spending has thereforeprovided an opportunity to implement cheaperalternatives. Had there not been an economicdownturn the imperative for reform would nothave been so strong.

Decline in crime rates – the overall decline incrime rates, particularly in New York City, hasmeant that the media gaze is no longer focused onthe response to offending and this is no longer aprominent public or political issue. This hasprovided the cover to embark on a far moreprogressive reform agenda.

Stakeholder support – the key youth justiceagencies all had leaders who have been willing to

push forward a new approach and challenge theold cultures. This has particularly been the case forthe Probation Commissioner and the Chief of theLaw Department’s family court division, who haveworked to fundamentally change the decision-making mentality so that custody is regarded as agenuine last resort. Police leaders were also criticalin supporting greater use of pre-court diversion, aswere judges, who supported the initiatives.

LessonsThere are a number of lessons which can beidentified from the New York experience forreform efforts in England and Wales:

1.Administrative reform is possiblewith the right political commitmentand stakeholder buy-inThe reforms in New York were achievedwithout introducing new legislation. Thisdemonstrates that if there is the politicalcommitment and support from leadershipin all the criminal justice agencies, radicaladministrative reform can result in adecline in the use of custody.

2. Whole system reformA detailed assessment was made of everystage of the youth justice process in orderto determine what reforms werenecessary. This then informed changes todecision making at the prosecution, thepre-trial and sentencing stages. Thiswhole-system approach was vital to thesuccess of the reforms, and also ensuredthat fewer children were entering thecourts.

3. Need for objectivity and uniformityin court recommendationsOne of the key reforms introduced wasthe use of supplementary assessment toolsat both pre-trial and sentencing stagewhich led to improved decision-makingand the use of custody for more seriouscases. In effect, objective assessments haveresulted in an informal custody thresholdbeing set whereby low or medium riskcases are not sentenced to custody.

It may be the case that a supplementary



risk assessment tool is needed to informcourt remand decision-making in Englandand Wales. At the very least, the bailsupervision and support profile currentlyused where bail, bail support or a remandto local authority accommodation is beingproposed as an alternative to custodial orcourt-ordered secure remand, should bereviewed to achieve greater consistencyand improve court decision-making.

4. Discretion for probation/youthoffending staff over diversionThat probation staff in New York have theauthority to make decisions about pre-court diversion is of particular interest,and whilst a decision still requires policesupport, this clearly gives greater leverageover the use of diversion. If youthoffending team staff played a similar rolein England and Wales, it could be arguedthat there would be greater opportunityto divert high numbers of low riskchildren from prosecution.

5. Low caseloads matterA key feature of all the alternatives tocustody profiled is the low caseloads ofprobation staff in New York. Staff workingon the enhanced supervision probationprogramme have a maximum of 15 casesand both the Esperanza and JJIprogrammes have even fewer. It isconsidered to be extremely important forstaff to have the time and capacity towork closely with children and theirfamilies without being overloaded. Clearly,low caseloads matter when working withchildren who have multiple problems andare from chaotic backgrounds.

6. Family approachThe alternatives to custody in New Yorkhave adopted an approach that involvesworking with both the child and theirfamily. Interventions directly involveparents/guardians and also actively workwith them to address their separate socialproblems. This family-centred policy isconsidered critical to ensuring a child isable to change their life, and suggests that

community sentences for children whopreviously would have been sentenced tocustody need to be more family-orientated.

7. The role of the voluntary sectorMany of the alternatives to custody inNew York are operated by the voluntarysector, which has played a key role, forexample in delivering the monitoring andafter-school programmes which operateas alternatives to custodial remand,demonstrating how the voluntary sectorcould be used to deliver progressivealternative-to-custody programmes inEngland and Wales.

8. Cultural and attitudinal changeAll senior practitioners who wereinterviewed recognised the importance ofcultural and attitudinal change amongstfront-line staff. Juvenile justice leadersmade the commitment to reform andthen delivered cultural change in each oftheir agencies. Through a combination oftraining and guidance, staff in the police,prosecution, and probation services allrecognised the need for reform and themerit of reserving custody for moreserious, violent young offenders.



10: Using the fiscal infrastructure tocut imprisonment

This report has thus far focused on both legislativereforms and administrative system and policyreforms that have been implemented in countriesto reduce the use of custody for children. Inaddition to these reforms another means ofachieving the same outcome is to change the fiscalinfrastructure of juvenile justice funding. Severalstates in America have done this and provideinformative examples of how to alter financialstructures so there is less of an incentive to resortto imprisonment.

The structure of governance in the USA lendsitself to the use of fiscal incentives to producepolicy outcomes. For example in 1988, in responseto overwhelming evidence that minority youthwere disproportionately confined in the nation’ssecure facilities, Congress amended the JuvenileJustice and Delinquency Prevention (JJDP) Act of1974 so that all states participating in the federalgovernment’s formula grants programme addressdisproportionate minority confinement (DMC) intheir state plans. In 2002 the requirement wasextended so that states must addressdisproportionate rates of contact with the justicesystem, not simply rates of detention.

In most American states, youth offending is dealtwith at the county level – the equivalent of thelocal authority level in England and Wales – wherechildren and young people are charged by localpolice and processed by local courts. The cost ofproviding the equivalent services of a youthoffending team are covered by the county whichpays for youth probation, drug treatment, mentalhealth counselling and community sanctions.However, if a child is sentenced to custody theyare usually sent to a state-run prison at no cost tothe county which means it can be cheaper to usecustody than alternative community-basedsanctions. In effect this is the same as England andWales with central government paying the full costfor custodial places.

The structure of spending on youth custody inAmerica has often led to undesirable results.Counties commonly lack the financial means orincentive to expand local programmes or services

so fewer of these options exist for children thandemand would otherwise necessitate. Withoutsufficient local community-based programmes andservices, local courts have had little choice but toremand or sentence children to custody. At thesame time there has been no incentive to invest inprevention programmes to reduce the use ofimprisonment.

To address this situation a number of states havechanged their youth justice funding formulas, withthe result that more children are being dealt withat home in the community, reducing the use ofcustody and delivering significant financial savings.This chapter provides brief outline descriptions ofthe most prominent examples which have beenrecognised by the federal government and/ornational advocacy groups.112 The examples meritfurther consideration as part of efforts to look athow local councils in England and Wales could beheld accountable for the cost of childimprisonment.

RECLAIM Ohio In the early 1990s, Ohio was faced with a risingchild prison population resulting in overcrowdingand burgeoning costs. In response, the statelegislature created RECLAIM Ohio (reasoned andequitable community and local alternatives to theincarceration of minors) in 1993. The programmewas piloted in nine counties for two years, andresulted in a 42% year-on-year reduction in thenumber of children sentenced to custody in thoseareas. This success led to the initiative being rolledout across the state in 1995.

Ohio is made up of 88 administrative countieswith each one having at least one juvenile court.The court is responsible not only for sentencingbut also for the implementation of the sentence –each juvenile court therefore has a dedicatedprobation service that is managed by a chief officeraccountable to the court’s senior administrativeofficer. The probation team delivers communitydisposals and also contracts with other voluntaryand private sector providers.

RECLAIM is essentially a funding initiative whichencourages juvenile courts and their probationstaff to develop or purchase a range ofcommunity-based options to meet the needs ofeach juvenile offender or child at risk of offending.



By diverting children from custody, courts andprobation have the opportunity to increase thefunds available locally through RECLAIM.

RECLAIM Ohio operates by giving each court’sprobation department a fixed funding allocationfrom the state based upon a four-year average forthe number of court convictions for indictableoffences. Thus, counties with a higher number ofconvictions receive more funds. However, financialdeductions are made for the number of custodialbeds that each county used in the previous year. Inother words, the fewer children the county sendsto state run prisons, the more money it willreceive in the next year. This funding structureencourages counties to develop or purchase arange of community-based options to meet theneeds of children who have been convicted orwho are at risk of offending.

Under the formula, each court is given a numberof ‘credits’ based on the court’s four-year averageof youth convictions for indictable offences. Thosecredits are reduced by one credit for each state-run custodial bed day used during the previousyear and two-thirds of a credit for each locally-operated custodial bed. Each court’s percentage ofthe remaining credits statewide translates into thatcourt’s percentage of the total RECLAIM fundsallocated to the court and its probation team.

RECLAIM is premised on the recognition thatmore serious violent crimes should be sentencedto state custodial facilities. The financial incentive isto keep children who do not represent a risk topublic safety in the community. The formulatherefore specifically excludes serious and violentcrimes (all homicides, manslaughter, kidnapping,rape, serious sex offences and certain firearmsoffences). RECLAIM funding is not reduced forcounties if a child is sentenced to custody for anyof these offences.

Official data and evaluations by the stategovernment show that RECLAIM has succeeded insubstantially reducing the number of childrensentenced to custody.

The number of children in custody has fallen from2,600 in 2002 to 1,555 in 2008. In January thestate administration announced plans to close acustodial facility holding 176 boys.

REDEPLOY IllinoisEach year approximately 1,800 children aresentenced to custody in the state of Illinois. Ofthese, nearly half have committed propertyoffences. Given the high cost of custody and thegrowing recognition amongst Illinois’s politiciansthat custody for non-violent young offendersproduced poor outcomes, there was a rethink ofhow to incentivise counties to make greater use ofalternatives to custody. The outcome was thedevelopment of REDEPLOY Illinois in 2005.

REDEPLOY is designed to give counties financialsupport to provide community services tochildren who would otherwise have beensentenced to custody. In return, counties committo reducing custodial sentences. The funds fill gapsin local programming and services available foryoung offenders, allowing counties to reduce theirreliance on custody.

Participating counties agree to cut the number ofjuveniles they send to state prisons by at least 25%below the average of the previous three years. Thereduction can be in the overall population or inany specific population. In return, the statereimburses the counties for money they spendmanaging children in the community.

The programme has resulted in counties investingsubstantial resources in locally-based programmesand services to support children who previouslywould have been sentenced to custody. They havealso diverted funds into local substance misuseand adolescent mental health provision.

The programme was piloted in a number ofcounties and is due to be rolled out across thestate later this year. Since it began in 2005, therehas been a 15% reduction in the average numberof annual new admissions to state juvenile prisons.

Pennsylvania Act 148Act 148 in Pennsylvania was established in 1976 tocreate an incentive for counties to developadditional capacity for local youth programmes forchildren who offend or are at risk of offending. Itdoes not mandate what services counties mustprovide but instead creates an incentive structurethat drives county planning in a clear direction. The state government reimburses the counties for



most of the costs of community-based services forchildren, while counties are required to pay 40% ofthe cost of imprisoning a child in a state prison.This incentive structure encourages counties touse more community alternatives to custody.

Specific reimbursements in the legislation include:

Keeping children in a home environment –Act 148 provides for reimbursement of 80%of the cost of services designed to keepchildren at home rather then sending themto custody, such as after-school programmes,evening reporting centres, out-patient mentalhealth treatment or drug treatment. Inappropriate cases it can include foster careor adoption, but the high reimbursementrates create an incentive to keep children intheir home environment.

Keeping children in their originalcommunities – when the court determinesthat a child should be removed from theirhome, Act 148 favours a placement thatallows the child to remain in the localcommunity and continue their schooling.Reimbursement rates generally run at 80%for placement in group homes or othertypes of non-secure residential or treatmentprogrammes that allow children to attendlocal schools, use local recreational facilities,or attend local training and vocationalprogrammes in their communities.

Using less restrictive options – Act 148discourages the most restrictive placementsby setting the lowest reimbursement ratesfor pre-trial detention in local facilities (50%)and custodial detention (60%). Thus, thefinancial cost of the most secure andrestrictive placement is the most onerousfor the county.

Act 148 fundamentally changed the nature ofyouth justice services in Pennsylvania and the waythey were delivered. In the three years after it wasenacted, state subsidies for communityprogrammes nearly doubled. This investmentincreased the number of children placed in thecommunity while decreasing the number of

children sent to state custody. From 1981 to1984, the use of custody declined by 24%, whilethe number of children in the communityincreased by 20% and day treatment programmesincreased by 52%. Over the next two decades, thenumber of children sentenced to custodycontinued to decline.

In the first few years after Act 148’sreimbursement formulas came into effect,concerns raised at both the state and county levelsled to further reforms and inspired a budget-planning process to support and sustain localyouth services.

The state was concerned that Act 148 functionedlike an uncapped entitlement. On the other hand,counties were concerned about being locked intoan annual budget formula. If there was a suddenchange in the service needs for a given year, suchas an increase in foster care placements, thecounties could run out of state funds to meet localneeds well before the end of the fiscal year.

Act 148 was amended in the early 1990s to createa system of needs-based planning and budgeting.Each county’s welfare agency, with the participationand authorisation of the local courts andprobation department, develops a plan that showsboth the predicted service needs for youngoffenders coming to court and how much thoseservices will cost. The state government receivesthe submissions, calculates the approved costs forall 67 counties, and submits an aggregate budgetallocation request to the legislature that takes intoaccount the state share of county services. Needs-based planning and budgeting allows counties toplan more accurately and request funding for theservices they need. It also allows the state tobetter meet the demand for services.

More recently, needs-based planning and budgetingwas administratively incorporated into a largerintegrated children’s services plan at the countylevel in 2004. This expanded the number ofagencies working with children who were involvedin the process to include, for example, mentalhealth and drug and alcohol services. This effortcontributed to eliminating the silos of serviceprovision.



Options for policy transfer to England andWalesSecure accommodation for children in England andWales cost £297m in 2008/09 and accounted for63% of the Youth Justice Board’s budget – incontrast, £33m (7% of the YJB budget) was madeavailable for the intensive supervision andsurveillance programme (ISSP) a community-basedalternative to custody, and £36m was spent onprevention programmes113. In addition, recentresearch conducted by the Foyer Federationsuggests that the true costs of custody in youngoffender institutions (YOIs) may be even higher114.As well as being the most expensive, custodialsentences have the highest reoffending rate of allsentence types given to children, with the mostrecent statistics showing that 75.3% will reoffendwithin a year of release115 – this figure has littlechanged since 2000.

These factors lend weight to the currentconsideration being given to making localauthorities in England and Wales moreaccountable for the cost of child imprisonment.The approaches used in Ohio and Pennsylvania inparticular are possible options that could informdevelopments in England and Wales. Considerationcould also be given to making receipt of fundsfrom central government contingent on thedevelopment of policies to reducedisproportionate custodial rates for black andminority ethnic young people.



Conclusions

The aim of this concluding section is to draw outthe key learning points from the report as well ashighlighting important elements in the process ofimplementing successful reforms. Much of thelearning is taken from North America rather thanEurope because it is in parts of the USA and inCanada that the most conspicuous recent effortshave been to reduce custodial numbers. In much ofEurope, the structure of youth justice and theprevailing philosophy for responding to youthoffending serve to keep the use of custody at amuch lower level than in England and Wales.

Policy transferIn any area of public policy, learning and applyinglessons from other countries is notstraightforward. Within criminal justice there areexamples of successful and unsuccessful policytransfer. Probation, for example, emerged as analternative to punishment throughout the world ina relatively short period of time at the end of thenineteenth century. On the other hand, morerecent efforts in the UK to introduce a number ofmore specific initiatives such as unit fines, nightcourts and intermittent custody – all of whichoperate successfully in various jurisdictions – havebeen abandoned at an early stage.

While this is not the place to analyse the reasonsfor those failures, it goes without saying that anyattempt to import measures which operate in onecontext needs to be informed by a thoroughanalysis of both the host context in which theinitiative currently operates, and the context intowhich it might be transferred. A much moredetailed exercise than has been possible in thisreport would need to be undertaken before any ofthe measures discussed here were introduced inEngland and Wales.

The examples on which we report are taken fromcountries whose overall approach to youth justicevaries enormously – from Sweden, where nochildren under 15 can be prosecuted, to NewYork, whose age of criminal responsibility is sevenand where children are waived into the adultcriminal court when charged with serious crimes.The basic parameters and structures of the youthjustice system clearly provide the underlying

context in which particular measures aredeveloped. This context must be kept in mind.

Introducing alternatives to prison, for both adultsand juveniles, needs particular care because of thedanger of alternatives fuelling, rather than draining,the numbers who are locked up. Analysis of themost successful recent period of juveniledecarceration during the 1980’s showed that thiswas achieved by starving the system of candidatesfor custody through large scale diversion fromprosecution by the police, combined withsystematic efforts to keep as many youngoffenders as possible as far down the tariff ofpenalties as possible. Carefully targeted intensivesupervision schemes were reserved for the mostserious and persistent cases for whom custodialplacements were highly likely.116

Programmes and processesAs well as programme content (for instance, thekind of community-based facilities and measureswhich are available to supervise delinquentchildren) attention needs to be paid to process –the way the police, prosecutors, social workers,probation staff, courts and prisons make decisionsabout cases which result in some young peopleparticipating in such programmes. This isparticularly important if these programmes aregoing to have an impact on custodial numbers. It isof course possible to focus reform efforts on onepart of the juvenile justice system, for examplereducing pre-trial detention, which has been thefocus of the Annie E. Casey Foundation’s nationalinitiative in America. The Netherlands has recentlylegislated to remove the possibility of lifesentences for juveniles. However, if there is to be asustained reduction in child imprisonment a morethoroughgoing and comprehensive reform isnecessary. In Canada and New York State,reductions in the number of children imprisonedcame as a result of reforms implemented from thepoint of police questioning through to sentence,with decision-making at each stage addressed.

One of the lessons identified by Martin Horn,Commissioner of Probation for New York City, isthe need for every step of the process to beanalysed.117 The reforms he led clearly demonstratethe importance of considering decision-making atevery stage of the youth justice process in order



to reduce the number of non-violent youngoffenders being sent to custody.

ProgrammesThis report covers aspects of both programmecontent and process. In terms of programmes,much of the material in Chapters 1-7 is selfexplanatory. While it is difficult to draw generallessons, measures worth further explorationinclude:

• The development of a problem-solvingapproach by courts, in which they have acontinuing interest in cases afterdisposition and review progress.

• A greater focus on work with families, aswell as young people themselves, utilisingstructured, evidence-based programmesand well-trained staff.

• The development of intensive wraparoundservices for individuals, facilitated by lowcaseloads, partnerships between differentservice providers, neighbourhood locationand evening and weekend availability ofstaff.

• The deployment of mentors from a varietyof backgrounds (including students andpeople from deprived neighbourhoods).

• A strengths-based approach whichconcentrates not only on weaknesses, orso called ‘criminogenic needs’, but on thecapacity for young people to change andprogress.

• The need for a wide range of institutionalfacilities of varying degrees of security,control and links with families andcommunity.

• The important role played by police andprosecutors in the reform process.

• The need for systems which monitor andreview progress and results.

Perhaps the most important reflection is that agood number of these measures could build onwork which is currently being undertaken inEngland and Wales – whether under the aegis ofcommunity justice centres, bail support, intensivesupervision and support or youth offending teamor voluntary sector initiatives.

ProcessesIn terms of process, a number of examples aregiven of efforts to minimise the risk of netwidening which can result when introducing a newsentencing disposal. Ensuring that there areexplicit criteria for determining detentioneligibility has been critical to reform efforts. In theabsence of legislative custody thresholds andbarriers (as is the case in Canada), jurisdictions, inparticular states in America, have developedobjective admission policies and practices. This hasinvolved specific risk-assessment instruments todetermine eligibility based on high, medium andlow-risk child offenders. With explicit detentioncriteria, law enforcement officials, the courts andprobation staff have established in advance whichchildren are eligible for secure detention oralternatives to custody.

The experience in New York State (see Chapter 9)shows that supplementary assessment tools canalso be used to avoid net widening whennecessary. In the US, states that have sought toreduce the number of children detained pre-trialas part of the juvenile detention alternativeinitiative have reviewed and modified assessmentinstruments to ensure medium-risk offenders areeligible for placement in detention alternatives. Forexample, in Cook County, Illinois this led to anincrease in admissions to non-custodialprogrammes while admissions to custodydecreased.

There is clearly a strong case for reviewing Asset,the assessment instrument used in England andWales, to ensure there is greater objectivity anduniformity in pre-sentence reportrecommendations.

Practitioner cultureLinked to this is a question of practitioner cultureand attitude. Much of the change in New York Cityhas come through the recommendations made by



probation staff to courts about the need forplacement. The number of recommendations forplacements has fallen substantially – from 50% ofall cases to a sixth of cases. There is someevidence that a relatively high number of custodialsentences in England follow a proposal by the YOTor at least the absence of a proposal for a crediblealternative. This contrasts sharply with successfuldecarceration in the 1980’s, which wascharacterised by a crusading zeal on the part ofpractitioners to keep juveniles out of custody.

Developing community-based alternatives tocustody thus requires a philosophical andattitudinal shift by staff. They have to develop newworking practices, attitudes and habits premisedon the notion that custody is a genuine last resort.If alternatives to custody are to work, staff mustadopt a new approach to assessment, to workingwith children and their families, and to planning aweb of support to help them succeed.

The experience of policy reform has shown thatidentifying and developing a continuum ofcommunity-based alternatives is insufficient if it isnot matched by cultural shift. In Europeancountries which imprison fewer children thanEngland and Wales, there is a far greater emphasison welfare and pedagogical practices which haveresulted in a different philosophical approachemphasising the need to keep children out ofcustody.

Ultimately, achieving a change in staff culture andattitudes is important for embedding the reforms.No reforms can endure if frontline staff are notconvinced that reform is worthwhile.

The wider stakeholders – police,prosecutors and courts There is also the question of how the otherplayers in the system – police, prosecutors and inparticular judges and magistrates, respond toefforts to reduce custody. The counter-revolutionin juvenile justice in England and Wales in the early1990’s was led in part by the police whoabandoned their enthusiasm for cautioning anddiversion in favour of a desire to crack down onpersistent young offenders who they claimed wereresponsible for very large amounts of crime. Theinvolvement of police in diversion in Germany and

New Zealand seems well worth further study. Sotoo do the ideas of specialist prosecutors andproblem-solving courts.

In New York City, the appointment by MayorBloomberg of a new reform-minded chief of theLaw Department’s family court division wasinstrumental in delivering the shift in policyemphasis away from custody towards thecommunity. The mayor has also been able toappoint more progressive judges to sit in thefamily court, although many remain who are moreconservative. The ability of the executive toexercise considerable influence has undoubtedlyenabled the reform process. The risk tools havealso provided compelling evidence that many ofthose previously sent to secure placements aredysfunctional rather than dangerous, and workwith families is therefore seen as a rational andcredible response.

One of the most important elements needed todevelop effective alternatives to custody, whateverthe structure of accountability, is the jointcommitment from all the criminal justice agencies.This involves the leaders of the courts, police,prosecution service, youth offending service andschools acknowledging the problems with thecurrent system: the inappropriateness of manyadmissions to custody; the ineffectiveness ofcustody; poor decision-making; system failure;disproportionate impact on particular groups; andhigh caseloads. Once these problems areacknowledged, a consensus can be established insupport of the need for reform, as was case inboth New York State and Canada. The supportprovided by senior police leaders in Canada wasparticularly important in addressing concernsraised by victims groups.

Overall, all juvenile justice practitioners – custodialstaff, police, probation officers, prosecutors,lawyers and judges – need to understand thenature and purpose of any proposed alternativesto custody, though sentencers are particularlyimportant, as without their cooperation, thecourts will not refer sufficient numbers of childrenwho would have otherwise have beenincarcerated. Perhaps, therefore, no leader oragency is more important to detention reformthan the head of the youth court, and it is no



surprise that Canadian officials identified the workthat was done with sentencers and theirunderstanding of the reforms as a critical factor intheir success.

The politics of youth justice Of course juvenile justice is a highly politicisedarea of policy-making that is volatile and uncertain.Policy can suddenly shift in response to high-profile cases or crimes. Assessing the politicalclimate is therefore critical to any reforminitiative.

Jurisdictions where reforms have been successfulhave been characterised by strong politicalcommitment to change, with politicians who havebeen prepared to actively make the case forreducing the use of custody for non-violent childoffenders. They have accepted the evidence put tothem by officials and not been afraid to defendnew reforms publicly, even when high profile caseshave resulted in reforms being scrutinised by themedia.

The wider political context has also beenimportant to the way in which reforms have beenimplemented, contributing to an overall consensusin support of change that has ensured reformshave not been undermined by lingering punitivepractices. This has helped to avoid, for example,the ‘up-tariffing’ which occurred following theintroduction of the intensive supervision andsurveillance programme in England and Wales.

In the US state of Missouri, for instance, wherewide-ranging reforms were implemented overmany years, during which time control of the stategovernment switched between Democrats andRepublicans, political buy-in was identified byyouth justice leaders as being a key factor inembedding the reforms. They worked hard todevelop good relationships with key politicians,gaining their commitment to support efforts toeffect change. This ensured there was politicalcover for their work, without which the reformswould not have succeeded.118

Sustaining political support requires work toensure that the public and media do not becomehostile. Managing the message so that the mediadoes not publicly maul new policies is a

particularly important part of any reform effort. InCanada, considerable work was put into testingmessages with focus groups and also working withthe media to ensure the right message waspresented in the press. Messages were alsocarefully tailored for different audiences – thepublic, provincial leaders, the courts and judiciary.

One possible strategy is not to over-publicisepotentially controversial policies. To some extent,this was the approach taken in New York, whereleaders felt that the tabloid quality of much of thedaily media meant the reforms would only becovered when a terrible crime happened. Thus,officials intentionally made minimal efforts topublicise their reform efforts.

Alternatively, proactive approaches have been usedat a local level to start a conversation with thelocal media and educate reporters about the keyissues. This was the approach taken by the Annie E.Casey Foundation’s work to promote alternativesto pre-trial detention which produced a specialtoolkit – using media advocacy to promotedetention reform.119

Whatever media strategy is adopted it is clearthat, where reforms have worked, considerableattention has been given to developing anappropriate public relations strategy to ensurethey are not knocked off-course by a hostile press.

Costs and responsibility The final lesson from other jurisdictionsdemonstrates that even when reforms are aconsequence of national change in legislation theyhave to be delivered at the local level. At the sametime it is possible to deliver wide-ranging reformby focusing efforts on administrative change at thelocal level, as was the case in New York. In additionfinancial mechanisms have been used in otherparts of America to successfully incentivise localreform.

Whilst youth justice in England and Wales isdelivered locally by youth offending teams, reformefforts are normally driven centrally by the YouthJustice Board and the Ministry of Justice orDepartment for Children Schools and Familiesthrough the Joint Youth Justice Unit. It could be



argued that, for reform to succeed, it needs to bedriven at the local level, as attempts to buildcollaborative support amongst stakeholders canbest be achieved here. Strong local leadership isalso vital.

In particular, the reform process in New Yorkcould inform youth offending team and localauthority practice in England and Wales. A similarattempt at wide ranging reforms supported bylocal stakeholders could address decision-makingat each stage of the youth justice process todeliver significant reductions in the number ofchildren from each local area sent to custody.

There are also lessons to be learned from thefinancial measures that have been implemented insome US states to deliver youth justice reform atthe local level, and current discussions in Englandand Wales around making local government moreresponsible for the costs of custody should not beseen simply as a governmental wheeze to reducedemand for custody, but instead as part of abroader effort to re-locate responsibility forchildren who offend more firmly at the local level,with resources currently spent on custodyreinvested into a range of community-basedmeasures for young offenders and their families.The youth crime action plan could be furtherdeveloped to pave the way for this approach inEngland and Wales.

Long-term reform Reform is a long-term proposition that is oftenvery fragile. High staff turnover is common injuvenile justice, and new practitioners who do notunderstand that the world has changed can easilyundermine reforms. Equally, budgets can be cut asfinancial priorities change, and high profile casescan challenge even the most effective risk-management systems. Finally, wider factors, such asan influx of offending young women, drug users orchildren with mental health problems, can changeoffender populations.

Vigilance and adaptation to change are thereforeextremely important to ensure that reforms aresustained over the long-term. The Annie E. CaseyFoundation initiative found that the sites that werecapable of adapting to changed circumstanceswere most successful. For example, if one risk

assessment failed, they developed another. TheFoundation notes that ‘they tested it, built supportfor it, validated it, and demonstrated its value tostakeholders. If circumstances changed, theychanged the instrument and continued a processof renewing support for it’.120 It is striking that thisdid not happen following the introduction of theAsset assessment tool in England and Wales in2000.

Continuous promotional efforts were made tosustain the Foundation’s initiative, and key to thiswas the use of good data to provide objectivereports of progress. In addition, training wasimportant, as was the institutionalisation of reformwith written policy and procedure manuals, ring-fenced budgets and on-going political patronagefor the reform process.

Despite the need for a cautious approach to policyand practice transfer, this report demonstratesthat there are many lessons to be learned fromabroad, not only in terms of different sanctions anddisposals, but also how best to approach reformusing both legislative and administrative measures,and how best to sustain it.




Population2008(million)

Crimevictimisationrates (%)2004/05121

Incomeinequality(Ginicoefficient)mid-2000s122

Child povertyrate (%) mid-2000s

Young males notin educationemployment ortraining (%) 2006

Gross publicsocial spending(% of net nationalincome) 2005

Denmark 5.5 19 0.23 3 5 38

Germany 82 13 0.30 16 4 36

UnitedKingdom

61 21 0.34 10 9 27

Canada 33 17 0.32 15 8 22

United States 301 18 0.38 21 7 20

Appendix 1: Population and comparative social indicators for five countries

Source: CIA Factbook 2008; Society at a Glance 2009 – OECD Social Indicators, available at:http://www.oecd.org/document/24/0,3343,en_2649_34637_2671576_1_1_1_37419,00.html


References

1 Prison Reform Trust/SmartJustice (2007) ICMpoll interviewing 1,034 adults aged 18 and overacross the UK.

2 Audit Commission (1996) Misspent youth:Young people and crime, London: AuditCommission.

3 Audit Commission (2004) Youth justice,London: Audit Commission.

4 See, for example, Muncie, J. and Goldson, B.(eds.) Comparative youth justice, London: Sage;Junger-Tas, J. and Decker, S. (2006)International handbook on juvenile justice,Kluwer Academic Publishers; Tonry, M. andDoob, A.N. (eds.) (2004) Youth crime and youthjustice: Comparative and cross-nationalperspectives. Crime and Justice: A review ofresearch, 31.

5 See, for example, Howard League for PenalReform (2008) Punishing children: A survey ofcriminal responsibility and approaches acrossEurope, London: Howard League for PenalReform.

6 For a discussion of approaches taken in othercountries to youth crime prevention see Allen,R. (2008), ‘European perspectives onprevention’ in Blyth, M. and Solomon, E. (eds)Prevention and youth crime: Is earlyintervention working?, Bristol: Policy Press.

7 For a detailed discussion of how restorativejustice has been developed for young offendersin many jurisdictions see, Hazel, N. (2008)Cross national comparison of youth justice,London: Youth Justice Board.

8 In an interview in The Independent on 12 May2009 the chair of the Youth Justice Board,Frances Done, said she had asked ministers toconsider new ways of making councilsfinancially accountable for the numbers ofchildren sent to prison.

9 See:www.aecf.org/Home/MajorInitiatives/JuvenileDetentionAlternativesInitiative.aspx

10 The information presented in this section isbased on interviews with DDAP staff in Boston,local evaluation data and internal reports. Italso draws extensively on Sheldon (1999)Detention diversion advocacy: An evaluation,Washington: US Department of Justice.

11 Sheldon (1999) Detention diversion advocacy:An evaluation, Washington: US Department ofJustice.

12 DeMuro, P. (2005) Consider the alternatives:Planning and implementing detentionalternatives, Baltimore: Annie E. Casey

Foundation.13 Ibid.14 For an example of a foyer project in England

see: http://www.canglejunction.com15 DeMuro, P. (2005) Consider the alternatives:

Planning and implementing detentionalternatives, Baltimore: Annie E. CaseyFoundation.

16 United Nations (2009) Written replies by thegovernment of the Netherlands to the list ofissues prepared by the Committee on theRights of the Child in connection with theconsideration of the third period report of theNetherlands, New York: UN Committee on theRights of the Child.

17 The information in this section is drawn from:Dunkel, F. and Pruin, I. (2009) EuropeanCommittee on Crime Problems: Summaryanalysis of the national replies to thequestionnaire related to the treatment ofjuvenile offenders, Strasbourg: Council ofEurope.

18 Department of Justice, YCJA guidance onyouthsentencing options available at:www.justice.gc.ca/eng/pi/yj-jj/repos-depot/3modules/04you-ado/3040301h.html

19 Ibid.20 Interviews with senior officials in the

Department of Justice youth policy section (seeChapter 8).

21 This section draws on two reports: Steinhart,D. (2001) Pathways to juvenile detentionreform: Special detention cases - strategies forhandling difficult populations, Baltimore: AnnieE. Casey Foundation; DeMuro, P. (2005)Consider the alternatives: Planning andimplementing detention alternatives, Baltimore:Annie E. Casey Foundation.

22 Steinhart, D. (2001) Pathways to juveniledetention reform: Special detention cases -strategies for handling difficult populations,Baltimore: Annie E. Casey Foundation.

23 DeMuro, P. (1999) Consider the alternatives:Planning and implementing detentionalternatives, Baltimore: Annie E. CaseyFoundation.

24 Steinhart, D. (2001) Pathways to juveniledetention reform: Special detention cases -strategies for handling difficult populationsBaltimore: Annie E. Casey Foundation.

25 The information about Red Hook is based on avisit to the Centre to observe the youth courtand interviews with court staff.

26 Ministry of Justice/ Home Office (2009)Engaging communities in criminal justice greenpaper, London: Office for Criminal Justice



Reform. 27 Hough, M. et al (2003) The decision to

imprison: sentencing and the prisonpopulation, London: Prison Reform Trust. Seealso Rethinking crime and punishment: Themanifesto (2008), London: Esmee FairbairnFoundation.

28 The authors are grateful to Tim Bateman ofNacro for providing this detail.

29 Information in this section is based on aninterview with Tim Decker, Director of theMissouri Department of Youth Services andunpublished reports provided by him.

30 Interviews with senior officials in theDepartment of Justice youth policy section(see chapter 8).

31 Youth Justice Board (2009) Annual workloaddata 2007/8, London: Youth Justice Board

32 This section is based on: Janson, C. (2004)‘Youth justice in Sweden’ in Youth crime andyouth justice: Comparative and cross-nationalperspectives, Tonry, M. and Doob, A.N., (eds),Chicago: Chicago University Press; Sarnecki, J.and Estrada, F. (2004) Juvenile crime inSweden - A trend report on criminal policy, thedevelopment of juvenile delinquency and thejuvenile justice system, Stockholm: StockholmUniversity Department of Criminology.

33 See Nixon, J. and Parr, S. (2008) ‘Familyintervention projects and the efficacy ofparenting interventions’ in Prevention andyouth crime: Is early intervention working,Blyth, M. and Solomon, E. (eds) Bristol: PolicyPress.

34 Janson, C. (2004) ‘Youth justice in Sweden’ inYouth crime and youth justice: Comparativeand cross-national perspectives, Tonry, M andDoob, A.N., (eds), Chicago, Chicago UniversityPress.

35 This section draws on: Junger-Tas, J. (2004)‘Youth in the Netherlands’ in Youth crime andyouth justice: Comparative and cross-nationalperspectives, Tonry, M. and Doob, A.N., (eds),Chicago: Chicago University Press, andinformation about Stop available at:http://www.halt.nl/index.cfm/site/Halt%20English/pageid/D9BCE30A-E081-2F5B423208CA6A137D89/index.cfm

36 This section draws on information from:Project best, concise presentation of juvenilejustice in France available at:www.best.spj.cz/dokumenty/analysis_ENGLISH_from_French.doc; Wyvekens, A. (2004) TheFrench juvenile justice system – working groupon juvenile justice, available at:www.esc-

eurocrim.org/files/french_juvenile_justice.doc; Allen, R. (2009) ‘Custodial establishments for juveniles in Europe’ in Dunkel, F. and Junger-Tas, J. (eds) Reforming juvenile justice, New York: Springer.

37 Proposals to raise the age of criminalresponsibility to 12 in Scotland are currentlygoing through the Scottish Parliament as partof the Criminal Justice and Licensing Bill.

38 Data from House of Commons (2009) The ageof criminal responsibility in England andWales. Standard Note SN/HA/3001, London:House of Commons.

39 Data from House of Commons (2009) The ageof criminal responsibility in England andWales. Standard Note SN/HA/3001. London:House of Commons. 33 had committedmotoring offences and 84 had committedpublic order offences. The number in custodyfor minor assaults is not given. For the full listof offences that are classified as either asummary offence, an indictable either wayoffence (which can be dealt with in either themagistrates’ court or the crown court) orindictable only offence see Ministry of Justice(2008) Criminal Statistics: England and Wales2007, London: Ministry of Justice, Appendix 3and Appendix 4.

40 Ministry of Justice (2009) OffenderManagement Caseload Statistics 2008London: Ministry of Justice – calculated whereviolent offences include: violence against theperson; sexual offences; robbery; arson;kidnapping; affray; violent disorder;threat/disorderly behavior.

41 This section draws on the research presentedin Butts, J. A., Buck, J., & Coggeshall, M. B.(2002) The impact of teen courts on youngoffenders, Washington DC: Urban Institute,and includes figures from that report.

42 Butts, A. et al (2002) The Impact of teencourts on young offenders, Washington DC:Urban Institute.

43 Povitsky, W., Connell, N., Wilson, D. andGottfredson, D. (2008) ‘An ExperimentalEvaluation of Teen Courts’, Journal ofExperimental Criminology, 4, 137-163.

44 Butts, A. et al (2002) The Impact of teencourts on young offenders, Washington DC:Urban Institute.

45 Kyvsgaard, B, (2002) ‘Youth Justice inDenmark’ in Youth crime and youth justice:Comparative and cross-national perspectives,Tonry, M. and Doob, A.N., (eds), Chicago:Chicago University Press.

46 Dunkel, F. (2009) Juvenile justice in Germany



(forthcoming). 47 Bala, N., Carrington P. J., and Roberts, J.V.

(2009) ‘Evaluating the Youth Criminal JusticeAct after five years – A qualified success’,Canadian Journal of Criminology and CriminalJustice vol. 51, no. 2.

48 The information in this section is based on atelephone interview with Tim Decker, directorof the Missouri Division of Youth Services anda presentation he gave on 1 December 2008at the Harvard School of Government criminaljustice program, ‘Young people in the juvenilejustice system – perspectives from Missouri’.

49 Presentation by Tim Decker, director of theMissouri Division of Youth Services on 1stDecember 2008 at the Harvard School ofGovernment Criminal Justice Program, ‘Youngpeople in the juvenile justice system –perspectives from Missouri’.

50 Smart Justice/ Prison Reform Trust (2007)ICM poll interviewing 1,034 adults aged 18and over across the UK.

51 Detrick, S. et al (2008) Violence againstchildren in conflict with the law - A study ofindications and data collection in Belgium,England and Wales, France and theNetherlands, Amsterdam: Defence for ChildrenInternational.

52 Based on a visit to one of the centres wheretwo of the children were attending the locallycee each day.

53 Dunkel, F. and Pruin, I. (2009) Summaryanalysis of the national replies to thequestionnaire related to the treatment ofjuvenile offenders, Strasbourg: Council ofEurope.

54 See: http://www.iyjs.ie55 Kyvsgaard, B. (2004) ‘Youth justice in

Denmark’ in Youth crime and youth justice:Comparative and cross -national perspectives,Tonry, M. and Doob, A.N., (eds), Chicago:Chicago University Press.

56 This section is based on e-mailcorrespondence with Tore Andreasson whodeveloped the MultifunC model and his reportMultifunctional treatment in residential andcommunity settings.

57 Allen, R. (2008) ‘Custodial establishments forjuveniles in Europe’ In Dunkel, F. and Junger-Tas, J. Reforming Juvenile Justice. New York:Springer New York.

58 Houses of Parliament (2003) Criminal JusticeAct 2003 UK: The Stationery Office Limitedwww.opsi.gov.uk/acts/acts2003/ukpga_20030044_en_18#pt12-ch5-l1g235

59 Information in this section is based on a range

of process evaluations of juvenile drug courtsin America disseminated by the USDepartment of Justice at:www.ojp.usdoj.gov/BJA/evaluation/program-substance-abuse/drug6.htm

60 A range of graduated sanctions include: essaywriting; increased numbers of required NA/AAmeetings; increased numbers of courtsessions; increased numbers of drug screens;community service work; home detention;inpatient treatment, and termination.

61 NPC Research (2007) Indiana Drug Courts:Vanderburgh County Juvenile Drug Court,Program Process Evaluation, Oregon: NPC.

62 NPC Research (2007) Indiana Drug Courts:Vanderburgh County Juvenile Drug Court,Program Process Evaluation, Oregon: NPC.

63 Department of Justice (2006) Drug courts: thesecond decade, Washington: Department ofJustice.

64 This section draws on Cocozza, J.J. andShufelt, J.L. (2006) Juvenile mental healthcourts: an emerging strategy, Delmar: NationalCentre for Mental Health and Juvenile Justice.

65 Skowyra, K.R. and Cocozza, J.J. (2007)Blueprint for change: a comprehensive modelfor the identification and treatment of youthwith mental health needs in contact with thejuvenile justice system, Delmar: NationalCentre for Mental Health and Juvenile Justice.

66 Information about the Cook County juvenilecourt clinic draws on: Skowyra, K.R. andCocozza, J.J (2007) Blueprint for change: Acomprehensive model for the identification andtreatment of youth with mental health needs incontact with the juvenile justice system,Delmar: National Centre for Mental Health andJuvenile Justice; Biehl, J. & Kahn, B. (2002) ‘Apractice model for acquiring and using clinicalinformation in juvenile court’, Youth Law News12(2).

67 Ibid.68 Center for Children’s Law and Policy (2008)

The second century: juvenile justice reform inIllinois, Washington: Center for Children’s Lawand Policy.

69 HM Inspectorate of Prisons/ Youth JusticeBoard (2009) Children and Young People inCustody 2006-2008 – An analysis of theexperiences of 15-18 year olds in prison,London: Youth Justice Board.

70 Youth Justice Board (2004) Substance Misuseand the Juvenile Secure Estate. London: YouthJustice Board

71 Children’s Rights Alliance for England (2002),Rethinking child imprisonment, as cited in



Legal Action, February 2008.72 YJB (2006) Female health needs in young

offender institutions, London: Youth JusticeBoard.

73 This section is based on Junger-Tas, J. (2004)‘Youth justice in the Netherlands’ Youth crimeand youth justice: Comparative and cross-national perspectives, Tonry, M. and Doob,A.N., (eds), Chicago: Chicago University Press.

74 Dunkel, F. (2008) ‘Juvenile justice in Germany’in Junger-Tas, J. and Decker, S.H. (eds)International handbook of juvenile justice,London: Springer; e-mail correspondence withFrieder Dunkel.

75 Ibid.76 This section draws on: Bergeron, J. (2004)

Justice for children: Detention as a last resort,innovative initiatives in the East Asia andPacific Region, East Asia and Pacific RegionalOffice: UNICEF.

77 Crime and Justice Research Centre (2002),Police youth diversion: Final report, Wellington:Victoria University of Wellington.

78 This section is based on an interview with, anddocumentation provided by, Marc Schindler, Chief of Staff, Department ofYouth Rehabilitation Services, Washington DC.

79 Ministry of Justice (2009) Offendermanagement caseload statistics 2008London: Ministry of Justice – calculated whereviolent offences include: violence against theperson; sexual offences; robbery; arson;kidnapping; affray; violent disorder;threat/disorderly behavior.

80 Ministry of Justice (2009) Sentencingstatistics 2007, England and Wales, London:Ministry of Justice.

81 All data provided by the youth justice policysection of the Department of Justice and fromKong, R. Youth custody and communityservices in Canada, 2007/8www.statcan.gc.ca/pub/85-002-x/2009002/article/10846-eng.htm#a4

82 See: Muncie, J. and Goldson, B. (eds) (2006)Comparative youth justice, London: Sage.

83 Doob, A. N. and Sprott, J. B. (2004), ‘ChangingModels of Youth Justice in Canada’, in Tonry,M. and Doob, A. N. (Eds.). Youth crime andyouth justice: Comparative and cross-nationalperspectives; Crime and Justice: A Review ofResearch, 31, pp.185-242; Department ofJustice, Canada (2002), YCJA explained,Ottawa: Department of Justice Canada. At:http://canada.justice.gc.ca/eng/pi/yj-jj/repos-depot/index.html

84 Youth Criminal Justice Act 2002, p1.

85 Ibid. section 3 p6.86 Ibid. section 38(1), p38.87 Bala, N., Carrington P. J. and Roberts, J.V.


88 Youth Criminal Justice Act, 2002, section 38(2)(d).

89 Ibid. section 38 (2)(c).90 Ibid. section 39 (1).91 Bala, N., Carrington P. J. and Roberts, J.V.


92 Youth Criminal Justice Act, section 39(1).93 Ibid. section 39(4).94 Ibid. section 39(9).95 Ibid. section 4(c).96 Ibid. section 29(1). 97 Doob, A. N. and Sprott, J. B. (2005), The use

of custody under the Youth Criminal JusticeAct, Ottawa: Department of Justice, Canada.

98 Bala, N., Carrington P. J. and Roberts, J.V.(2009) ‘Evaluating the Youth Criminal JusticeAct after five years – A qualified success’,Canadian Journal of Criminology and CriminalJustice vol. 51, no. 2.

99 Ibid.100 Doob, A. N. and Sprott, J. B. (2009),

‘Reducing child imprisonment in Canada’,Criminal Justice Matters, No 75.

101 Interviews were conducted with CatherineLatimer and Stephanie Robinson, seniorofficials in the youth policy section of theDepartment of Justice and with GeorgeThomson, former permanent secretary in theDepartment of Justice.

102 Department of Justice, Canada (1998), Astrategy for the renewal of youth justice,Ottawa: Department of Justice, Canada.

103 Ibid.104 Department of Justice, Canada, press release

(Department of Justice), 12 May 1999.105 The goals are set out in the ‘Project Zero’

document available at:www.nyc.gov/html/prob/downloads/pdf/project_zero.pdf

106 City Limits, 28 February 2008, available at:www.citylimits.org/content/articles/viewarticle.cfm?article_id=3511

107 Office for Children and Family Services, pressrelease, 10 September 2008, available at:www.ocfs.state.ny.us/main/news/2008/2008_09_10_juvenilejusticetaskforce.html



108 Provided by Al Siegel, deputy director of theCenter for Court Innovation and chair of thetaskforce’s committee on alternatives tocustody.

109 Probation assessment tool manual, 2004.110 For example, Esperanza does not take cases

that have additional pending prosecutions anddoes not work with families who requiretranslation services.

111 Interviews were conducted with Martin Horn,head of probation in New York City, AlfredSiegel, deputy director of the Center for CourtInnovation and member of the juvenile justicetaskforce, Abby Leslie, Executive Director ofNew York City Children’s Services juvenilejustice initiative and Jenny Kronenfeld,Director of the Esperanza programme.

112 This chapter draws on two reports: JusticePolicy Institute (2009) The costs ofconfinement: Why good juvenile justicepolicies make good fiscal sense, Washington:JPI; Justice Policy Institute (2006) Cost-effective youth corrections: Rationalizing thefiscal architecture of juvenile justice systems,Washington: JPI. It is also based oninformation provided by officials in Ohio andIllinois.

113 Youth Justice Board (2009) Annual report andaccounts 2008-09, London: Youth JusticeBoard.

114 ‘YOIs cost £100k a place, says report’ (30July 2009) Children and Young People Now.

115 Ministry of Justice (2009) Reoffending ofjuveniles: results from the 2007 cohortLondon: Ministry of Justice.

116 Allen, R. (1991) ‘Out of Jail: The Reduction inthe use of penal custody for male juveniles,1981-1988’ in The Howard Journal, 30: 1.London: Howard League for Penal Reform.

117 City of New York Department of ProbationJuvenile Operations, presentation by Martin F.Horn, Commissioner, 11 March 2009.

118 Interviews were conducted with Tim Decker,Director, Missouri division of youth servicesand Gary Strangler, former director, Missouridivision of youth services.

119 Available at:www.aecf.org/~/media/PublicationFiles/JDAI_4_Media.pdf

120 Schwartz, R.G. (1999) Pathways to juveniledetention reform: Promoting and sustainingdetention reforms, Baltimore: Annie E. CaseyFoundation.

121 Percentage of people reporting crimevictimization over the previous 12 months,from: Van Djik J., Van Kesteren, J. and Smit

Paul, P. (2008) ‘Criminal victimisation ininternational perspectives - Key findings fromthe 2004-2005 international crime victimssurvey and European survey on crime andsafety’, WODC Publication no 257.

122 The Gini coefficient is a measure of statisticaldispersion. It is defined as a ratio: a low Ginicoefficient indicates more equal income orwealth distribution, while a high Ginicoefficient indicates more unequaldistribution.



Out of Trouble

Reducing child imprisonment in England andWales - lessons from abroad

In recent years there has been an expansion incomparative youth justice analysis examining thedifferences and similarities across countries in theirapproach to youth crime. A number of publicationshave been produced bringing together summariesand analyses of various youth justice systems. At thesame time there has been a growing interest bypolicy makers and reform organisations in cross-national learning and policy transfer from onecountry to another. In fact, one of the most recentalternatives to custody introduced in England andWales – intensive fostering – was modelled closelyon a scheme developed in the USA. Other sanctionsfor young offenders, such as the referral order, havealso been inspired by international practice.

This report, commissioned as part of the PrisonReform Trust’s strategy to reduce child and youthimprisonment in the UK, supported by The Diana,Princess of Wales Memorial Fund, focuses specificallyon international examples of policy and practice usedin countries which have relatively low numbers ofchildren in custody or those that have beendeveloped and implemented in countries in order toreduce child imprisonment. It looks at alternativesanctions that could potentially be transferred toEngland and Wales to reduce the number of childreneither remanded or sentenced to custody.

Price £10.00


out of trouble · out of trouble reducing child imprisonment in england and wales ... the diana,...

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