Important questions are being asked about why these children were treated this way in detention. But we also need to ask why children are being detained at all.
The ‘tough on crime’ response
Law-and-order rhetoric often pervades the community’s thinking about youth justice. Examples can be found in the comments in response to News Corp commentator Andrew Bolt’s column on the Don Dale revelations:
Of course the poor little darling was just a hard done by, misunderstood little fella who needed a cuddle. Spare me. If [sic] spits, bites or in any way endangers the life of an officer then the hood and chair routine should be the least of his issues.
It is this tough-on-crime, law-and-order rhetoric that spurred changes in the youth justice system in Queensland in 2014. The state’s attorney-general and justice minister, Jarrod Bleijie, suggested the amendments, which included removing the principle that detention should be a last resort for young people (along with “ending the fun in detention centres”) were necessary as:
We will no longer tolerate the shallow slap-on-the-wrist approach of those opposite to a generation of our most vulnerable.
These amendments became law, despite opposing claims that they were contrary to what works in youth justice. The new Queensland government later reversed the amendments.
Many of the aims and principles of youth justice systems in Australia are consistent with the United Nations Standard Minimum Rules for the Administration of Juvenile Justice. The specialised sentencing regimes in these systems recognise that children differ from adults. They provide for the possibility of detention, but stress it as an option of last resort.
These systems aim to prevent children from re-offending and divert children from the system, recognising that most children “grow out” of offending.
The harms of youth detention
However, adolescent brains are not fully developed. Changes during puberty lead young people in search of excitement and reward, especially in the presence of peers.
But the part of the brain that provides the ability to control oneself does not develop until late adolescence or even early adulthood. Adolescence, then, is a time of “heightened vulnerability to risky and reckless behaviour”.
The US Supreme Court has accepted the American Psychological Association’s claim that:
Adolescent brains are not fully mature in regions and systems related to … impulse control, planning ahead, and risk avoidance.
The upshot of this is:
children should not be considered as blameworthy as adult offenders whose brains are fully mature; and
locking children up as a means of teaching them, and others like them, to refrain from offending in the future is largely futile.
Instead, detention can result in significant harm to children. Offending children often have:
The traumatic experiences of young people in immigration detention have been previously reported. And the same can certainly be said for youth justice detention.
Research on young people in detention in Southern California found that:
When all types of abuse (i.e. direct, witnessed, and vicarious) were combined, nearly all youth experienced at least one type of abuse during incarceration. The majority of youth reported some form of direct abuse during incarceration.
Those who did experience or perceive abuse were more likely to re-offend and:
… experience poor mental health functioning post-release, above and beyond prior child maltreatment experiences.
Apart from this abuse, detention itself can traumatise a young person and can delay – or, worse, permanently impair – their development. Research has found greater levels of psychiatric disorders among children who had been incarcerated for a lengthy period of time. And Australian research suggests a strong association between juvenile incarceration and intellectual impairment of Indigenous young people.
Rather than assisting in prevention and allowing children to mature out of offending, detention does the opposite.
Why, then, do we resort to detention? One of the answers will no doubt be to protect the community. However, experience in the US shows a substantial decrease in the use of youth confinement did not see a consequent increase in youth offending.
Alternatives do exist
Alternatives to detention exist for those children who would otherwise be kept in detention pre-trial and for those who would otherwise be sentenced to detention.
Many of these programs have had success in changing children’s behaviour and reducing recidivism.
Particularly successful sentencing initiatives include multi-systemic therapy and functional family therapy. These programs target children with complex behavioural problems, involve the child’s family, and are community-based. They aim to provide a holistic approach – engaging, for example, with mental health services and education providers.
And, in addition to being more effective than detention, these programs are more cost-effective than detention.
Jodie O'Leary will be online for an Author Q&A between 2 and 3pm AEST on Thursday, 4 August, 2016. Post any questions you have in the comments section.
Authors: Jodie O'Leary, Assistant Professor in Criminal Law/International Criminal Law, Bond University