This guest blog was written by Siobhán Buckley. Siobhán is an Irish Research Council Postgraduate Scholar in the Department of Law, Maynooth University. Her doctoral research concerns ‘“Contrasts in Tolerance?”: A cross-sectoral analysis of punitiveness in the adult and youth criminal justice systems of Ireland, Scotland and the Netherlands 1990 – 2015’. The project looks at differences of approach and transitions between the adult and youth justice systems.
Punitiveness and tolerance in a criminological context have been studied and examined considerably in the last decade, particularly on the increase in punitiveness or harshness in the criminal justice systems of western jurisdictions (Feeley and Simon 1992, Garland 2001, Simon 2007). There has been further discussion on the ‘punitive turn’ in the juvenile justice system, as manifested by soaring rates of detention in several western jurisdictions, and the treatment of juveniles as adult offenders (Muncie 2008, Hamilton et al., 2016). Yet this punitive turn is far from universal, as Tonry (2007: 3) has noted ‘faced with similar crime trends, different countries react in different ways’. One aspect of the debate that has arguably been under-explored in this regard is cross-sectoral variation within countries, namely, divergence in some countries between the adult and youth justice systems and a more consistent approach across the two sectors in other jurisdictions. This raises important questions about cross-sectoral ‘contrasts in tolerance’ (Downes, 1988) and the determinants of these policies, including those historical, political, cultural, economic and social factors preserving (or not) a distinct approach to youth justice in certain jurisdictions. Against this background, this piece will briefly analyse the development of the literature on multidimensional punitiveness and control of the power to punish proffering an argument that cross-sectoral differences and similarities within criminal justice systems are worthy of further analysis. The central role of diversion in youth justice systems and its relationship with the adult justice system will then be explored concluding the necessity for further research in this area.
Multidimensional punishment and control of the power to punish
The origins, effects and utility of the punitiveness concept have been extensively debated within criminology. Some of the earlier attempts to explain the punitive turn in western societies since the 1970s contended that we had witnessed a ‘new penology’ focusing on risk management (Feeley and Simon, 1992), a ‘culture of control’ (Garland, 2001) or the rise of ‘governing through crime’ (Simon, 2007). In tandem with this development of the punitiveness concept was the analysis of the measurement of punitiveness, with the overreliance on the singular measure of imprisonment rates being criticised (Matthews 2005). Few criminologists gave sustained attention to issues around the measurement of punitiveness (Hamilton, 2014) but notable exceptions are discussed below whose findings offer strong support for the argument that we should conduct a broad systemic analysis of criminal justice systems to take into account variation within jurisdictions.
It has been argued that different jurisdictions adopt qualitatively different approaches to policy requirements confronting the criminal justice system with Gordon (1989: 189) finding four different ‘crime control signatures’ arising from the results of factor analysis on ‘get-tough’ policies in the US. Gordon (ibid) therefore contended that there was no ‘single dimension of toughness’ running through criminal justice policy in recent decades but in fact there were two distinct policy approaches, namely, ‘symbolic’ and ‘custody’ punishment. Some states choose to focus on symbolic punishments such as the death penalty, while imprisoning relatively few offenders, and others choose to reject symbolism and incarcerate large numbers of prisoners. Gordon’s work has in turn been drawn on by Kutateladze (2009) who has argued for a more multidimensional concept of punitiveness, across various sectors of the criminal justice system. The findings of his study supported the assertion that being punitive in one dimension does not automatically result being punitive across other dimensions of state punitiveness (ibid: 10). Hamilton (2014), building on Kutateladze’s work, sought to refocus attention on the best ways in which to measure punitiveness. The principal argument proffered by Hamilton was the importance of including a maximum number of variables and the use of a multidimensional test (MDT) which illustrates the multidimensional nature of the punitiveness concept itself.
The importance of a broad analysis echoes Garland’s (2013) more recent work on the penal state, by which he meant the governing institutions directing and controlling the penal field. Garland argues that whilst there may be social forces seeking to affect penality such as cultural currents, political movements and criminological developments, they are only in a position to shape penal power to the extent that they are translated into law and backed by an administrative force. In order for these social forces to affect penality and engage penal consequence they must engage with the state, its actors and its institutions and influence state action. Penal practice is therefore a deployment of state power. Thus, the term ‘penal state’ to Garland is the aspects of the state that determine penal law and direct the deployment of the power to punish including the legislature, judiciary and executive acting in their penal capacity together with the leadership of penal agencies e.g., police commissioners, prosecutors etc. Specifically, the penal state refers to the penal leadership and its authority who direct and control the use of that apparatus and its personnel. Garland (2013: 500) maintains that ‘it matters where control of the power to punish is located, and it matters who controls its deployment’ with the allocation of the power to punish having consequences in respect of ‘how penal power is deployed and the purpose to which it is put’. Whilst Garland’s thesis can be difficult to translate into a national state frame due to its focus on the US, it is helpful in assisting our understanding as analysing where the locus of penal power lies in jurisdictions may be paramount to determining the differences between states, and also between sectors within jurisdictions.
Applying Garland’s (2013) insights to the current context, one may wonder whether the central role played by youth diversion schemes in certain youth justice systems may be worthy of further analysis and it is notable that this is beginning to be explored by some criminologists (Brown, 2016; Goldson et al., 2021). In Australia over last thirty years, Brown (2016) noted that there have been significant differences in the patterns of juvenile detention rates and adult imprisonment rates, despite similar sentencing principles, criminal laws, bail provisions, political imperatives and generally the same judges (although there are some specialist Children’s Court Judges). In order to answer why the detention and imprisonment rates are different, Brown (2016) argues that the major difference between both systems is the commitment to diversion in the youth justice system. Whilst Brown does state that this commitment is complex, uneven, selective, contradictory and bifurcated on racial lines (particularly in respect of the over-representation of Indigenous young people in the Australian youth justice system, see further: White, 2014 and Cunneen, 2019), he offers this as the main explanation for the diverse trends. Indeed, given the discussion above on control of the power to punish, this begs further interesting questions as to why diversion resonates with policymakers for young offenders but not adult offenders.
The Irish youth justice system, like Australia, has a strong commitment to diversion, which can assist in explaining why Irish youth justice has ‘sidestepped some of the more punitive trends’ of neighbouring European jurisdictions (Convery and Seymour, 2016: 250). Diversion, arguably the cornerstone of the new approach to juvenile justice signalled in the Children Act 2001, has been present in the Irish youth justice system for decades (Kilkelly, 2014). The consistent commitment to and use of diversion in Irish youth justice raises intriguing questions as to why this is the case and why has it resonated so strongly in Ireland and not in other countries. An Garda Síochána retains the power in determining who enters the juvenile diversion programme therefore it can be argued that Gardaí are key decision makers in Irish youth justice. Yet, diversion has not resonated with the adult system on the same level. There is a limited amount of data and research on the Garda Síochána Adult Cautioning Scheme but notable exceptions in this regard are Tolan and Seymour’s (2014) study and The Policing Authority’s review (2020). Since the Scheme’s establishment in 2006, there has been a steady, but modest, increase in the proportionate use of adult cautioning as a response to criminal behaviour and the percentage of incidents dealt with by way of adult caution rose from 3 per cent in 2006 to 7.3 per cent in 2010 (Tolan and Seymour, 2014). Whilst this increase is positive, in contrast, the percentage of referrals dealt with by receiving a caution in the Garda Diversion Programme was 61 per cent in 2010 (An Garda Síochána, 2008). This raises questions on why cautioning in the adult justice sector has not had the same impact or uptake as diversion in the youth justice sector.
In a Northern Irish context, the Public Prosecutor Service (PPS) or the Court determine whether a youth conference (as the primary youth justice response) takes place and the output of same must be approved by either directing parties (McAlister and Carr, 2014). Although, it is acknowledged that there is a broader question of whether youth justice conferences are truly diversionary as raised in the Youth Justice Review (2011). In applying Garland’s (2013) insights, however, the PPS/the Court are a key decision maker and have control of the power to punish in Northern Ireland. From these examples, it can be seen that certain powers have been assigned to specific decision makers. The process of not only identifying such decision makers but also identifying the factors driving the decision to vest these decision-makers with this responsibility is a crucial undertaking in the criminological field.
It has also been acknowledged in international research that optimising diversion (the front end of youth justice systems) would have the effect of driving down penal detention (at the back end of the same systems) (Goldson et al., 2021). Indeed, as argued by McAra and McVie (2010: 340, 2017) the use of ‘minimal intervention and maximal diversion’ is key to reducing youth offending and can be linked to the crime drop in Scotland. If this is the case, then it raises the question of the increased use in diversion in Ireland in recent years and the impact it may have on the adult justice sector, for example, the use of diversion peaked in 2007, could this assist in explaining the post 2008 crime drop? To what extent do the two criminal justice sectors speak to one another? Such questions, in addition to ones raised below, will be addressed in the author’s PhD research.
Looking ahead- potential for reform
The bifurcation between the adult and youth sectors raises the following questions: how do we explain such divergence between two sectors within one criminal justice system? What are the key factors impacting the levels of punitiveness in these sectors? To what degree are the policies in one sector insulated from policies in the other? Comparative study of these issues will allow us to begin to isolate some of the key drivers of differences/similarities in criminal justice systems and identify whether the same impulses which drive the adult system impact the youth system and vice versa. Not only will this help identify the drivers of penal policy but will assist further in the development of policy concerning the relationship between the two sectors. Crucially, there has been international recognition that young adulthood is a pivotal period in the course of criminal careers and that brain development (specifically planning and impulse control) continues up until the age of 25 reinforcing the importance of a distinct response to young adults in the criminal justice system (Pruin and Dünkel, 2015). If we don’t know and understand more about the relationship between the two sectors and their respective drivers then we will remain in the dark as to the impact of any potential increase in the upper limit of the youth justice system.
1 In 2007 there was a peak in the number of juveniles referred (21,941) to the Garda Juvenile Diversion Programme and the number of cautioned offenders in the Garda Juvenile Diversion Programme of 16,753 (Central Statistics Office (‘CSO’), 2009:189).
2 Total Recorded offences fell from 296,705 in 2008 to 229,418 in 2013. (CSO, 2014).
3 The author is currently doing a PhD in Maynooth University and is conducting a cross-sectoral analysis of punitiveness in the adult, young adult and youth criminal justice systems of Ireland, Scotland and the Netherlands over a twenty-five-year period from 1990-2015.
References (excluding links provided)
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Convery, U. and Seymour, M. (2016) Children, crime and justice. In: Healy, D., Hamilton, C., Daly, Y., and Butler, M., eds. (2016) The Routledge Handbook of Irish Criminology. New York: Routledge. Ch. 12.
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