New, fairer legal framework
A new (20 September 2018) report from the Howard League and Transition to Adulthood (T2A) Alliance argues that formal sentencing principles for young adults aged 18 to 25, similar to the Sentencing Council guidelines that are in place for children, would assist the courts and improve sentencing outcomes.
The report, Sentencing Young Adults: Making the case for sentencing principles for young adults, which draws on Howard League participation work with young adults, sets out how principled guidelines would help judges and magistrates to understand young adults better, and provide a legal framework to achieve better sentencing decisions.
The report recommends that the principles should consider the relationship between immaturity and blameworthiness, capacity to change, and the impact of race and histories of care.
It considers how the welfare principle – the principle that, when a court is dealing with proceedings relating to a child, its primary consideration shall lie with the welfare of the child – might be extended to apply to young adults, in recognition that full maturity and all the attributes of adulthood are not magically conferred on young people on their 18th birthdays.
Adults under the age of 25 represent ten per cent of the general population but account for 30 to 40 per cent of cases, including policing time, of those supervised by probation, and prison entrants. More than 140,000 young adults aged 18 to 24 were sentenced in criminal courts last year.
In 2017, 23 per cent of magistrates and crown court cases in England and Wales related to young adults, aged between 18 and 24 years old. Of young adults sentenced, 69,783 were sentenced to immediate custody, 35,494 were given community sentences and 37,767 received a suspended sentence.
Imprisonment of young adults can have tragic consequences. Between 2006 and 2016, 164 young adults aged 18 to 24 died in custody, 136 of whom lost their lives through suicide.
The Howard League brought together an advisory group of experts to help draft sentencing principles for young adults, drawing on the charity’s legal and participation work and the growing knowledge base about the needs and characteristics of young people.
The report states that there is a growing consensus that young adults aged 18 to 25 should be treated as a distinct group from older adults, largely because they are still maturing.
Particularly compelling is the neurological and psychological evidence that development of the frontal lobes – the area of the brain that helps to regulate decision-making and the control of impulses that underpin criminal behaviour – does not cease until the age of about 25.
In terms of brain physiology, susceptibility to peer pressure appears to continue until at least the mid-twenties, and the brain continues to mature in this period. Such evidence has led to calls from senior paediatricians to redefine ‘adolescence’ as the period between ages 10 and 24, and to reframe laws, social policies and service systems accordingly.
There is also evidence that one of the prevailing characteristics of this age range is the differing rates of development within the group – maturation occurs at different rates between individuals. Determining factors are not well understood, but there is growing recognition that social contexts have a strong influence, including those likely to also be influencing offending behaviour.
Almost half of young men under the age of 21 who come into the contact with the criminal justice system have experience of the care system.
There is evidence of disproportionate levels of neurodisability among young adults in custody when compared to the general population, including higher rates of learning disability, traumatic brain injury and communication impairment.
The report states: “These distinct characteristics and experiences are often highly relevant to decision-making that leads to offending. The distinct phases of maturation occurring during young adulthood also give rise to different needs.”
Research suggests criminal justice interventions should adopt a developmental perspective, but as the report states: “[A]t present, neither the distinct characteristics nor needs of young adults are adequately factored into the sentencing exercise, increasing the likelihood of a custodial sentence.”
Previous Howard League research found that where a young person’s immaturity was raised by court professionals, the courts were well placed to factor it in to achieve better outcomes – and more likely to do so if sentencing guidance encouraged it.
The graphic below shows some of the view and feelings of young adult offenders surveyed by the Howard League for this report.
Laura Janes, Legal Director of the Howard League for Penal Reform, said in a press release launching the report:
In spite of overwhelming evidence that young adults should be treated as a distinct group from older adults, the sentencing process, as it stands, does not sufficiently factor in the lessons from neuroscience, psychology and criminology.
This report makes the case for formal sentencing principles for young adults that would enable judges and magistrates to make better-informed decisions, and prevent more young people from being swept into deeper currents of crime and despair.
With the help of an advisory board, including experts and senior practitioners in the field, and in consultation with young adults who have experience of being sentenced, we are now developing principles that we hope will in due course be adopted by sentencers.
The key issues from the report are summarised in the helpful infographic below: