A new article in the latest edition of the journal Youth Justice explores whether it is possible – or ethical – to deter children from crime through sentencing policy. Written by Laura Janes (@LauraJanes_UK, lawyer & academic and until very recently Legal Director at the Howard League), Thomas Crofts & Enys Delmage , the article explores whether deterrent sentencing is
justified from a legal, criminological and neuroscientific perspective. Regrettably, the timing of the article is impeccable, since last week the starting point for children convicted of murder changed from 12 yrs to a maximum starting point of 27 yrs in jail.
The authors start by explaining the two different purposes of deterrence in sentencing: general which aims to prevent other people from offending by virtue of the threat of punishment and individual which aims to deter the person being sentenced from further offending through their experience of punishment. The article looks at the use of deterrence as a sentencing principle in Australia and England & Wales.
The legal arguments in the article are complex and I have not tried to summarise them in full here. However, one point of particular interest is the authors’ discussion of Roper v Simmons (2005), a case which heralded the end of the death penalty for children in the United States of America, in which the court found that young people were more likely to act impetuously and irresponsibly and that this is understandable for those who are not yet adults. The authors quote part of the judgement:
“the absence of evidence of deterrent effect is of special concern because the same characteristics that render juveniles less culpable than adults suggest as well that juveniles will be less susceptible to deterrence.”
Although a US judgment, has been acknowledged and relied on across many jurisdictions in judgements dealing with how the law should treat children’s behaviour.
The legal position in England & Wales is somewhat contrary with the Sentencing Council saying that:
“deterrence can be a factor in sentencing children and young people although normally it should be restricted to serious offences and can, and often will, be outweighed by considerations of the child or young person’s welfare”
The authors them apply themselves to the matter of whether deterrence works – that is does it discourage others from committing the same crime? Criminological evidence from around the world and the UK (including studies specifically commissioned by the Home Office) found that deterrence sentencing seems to have no or negligible effects on adults and that there is little research in terms of the impact on children. There is good evidence to suggest that the majority of young people do not plan to commit the offence for which they are later imprisoned. Research has demonstrated that children committing more serious offences did not fear legal sanctions to the same degree that those committing less serious offences did, and that deterrence effects were reduced by poverty, drug use, association with antisocial peers and a lack of social constraints. Both these findings suggest that deterrence is likely to have less, rather than more, impact on children than adults.
Neuroscience and Developmental Psychology
Readers will be aware of a host of research over recent decades on the different rates of psychological developmental amongst children and young people. This research has borne fruit in the criminal justice system which a number of initiatives looking to meet the different developmental needs of young adults with a clear consensus that children mature at different rates and arguments that we should be prepared to treat people aged under 25 years more akin to how we treat children, than how we treat adults. HMPPS and many other providers across the social justice sector have specific policies and practice to working with young adults.
In addition to this issue, the authors point to the evidence that adolescents are more susceptible to peer influence and are more likely to engage in risk-taking behaviour. They also point out that many children in contact with the justice system are more likely to have experienced trauma, brain injury and other disadvantages meaning that many may be more developmentally immature and more vulnerable than their neurotypical counterparts in terms of their capacities and reasoning skills.
The authors conclude by saying that the deterrence impact of sentencing appears to have a very weak evidence base. They go on to say that its application in the sentencing principle of children is in conflict with growing international awareness of children’s rights and that our increased understanding of the neuroscience behind maturation means it is even less likely to be effective than with adults.
It is important to remember that this is not just a theoretical matter but one which is played out in our courts (particularly in connection with the contentious issue of joint enterprise) with children and young people on an almost daily basis.