This week we are featuring guest blogs from two students in Dr Deirdre Healy’s ‘Introduction to Criminological Theory’ module, in the UCD Sutherland School of Law. Today’s piece was written by Law with Social Justice student Isabel Mooney.
We are so pleased to be able to use the site as a place to showcase the excellent undergraduate work being done in Irish universities. Enjoy!
An Analysis of the Influences of Labelling Theory in the Children Act 2001
Labelling theory proposes that a “person becomes the thing he is described as being” (Newburn, 2017: 231). This is particularly significant in a criminal context as it explains the harmful effects of a criminal justice system that is too ready to apply criminal labels to individuals. This theory emerged in the 1960s and was revolutionary in shifting the focus of deviance away from an individual’s own behaviour to society’s response to their actions. This new way of thinking was evident in the reconsideration of the Children Act 1908, as it was noted that “effective responses to youth crime can help ease not only current but also future problems of crime” (Select Committee on Crime, 1992). In response to this, the Children Act 2001 now allows for the non-disclosure of criminal labels in certain circumstances, creates a pathway for the offender to avoid the Court and criminal justice process through the use of a Garda Diversion Programme and attempts to utilise the shame associated with a label in a constructive manner (Kilkelly, 2006). However, these efforts to prevent reoffending behaviour will be ineffective where the juvenile perceives that they were unfairly dealt a criminal label (Restivo and Lanier, 2015).
Howard Becker is an American sociologist and is one of the most prominent thinkers in this area. He views crime as a social construct, and so he believes that no act is inherently deviant. Instead, he proposes that deviancy is created by the application of societal rules in response to a particular act. These rules are created by powerful groups in society, who Becker refers to as “moral entrepreneurs” (Newburn, 2017). These moral entrepreneurs have the power to impose their views on others through the rule application, and those who cannot conform to these values are considered as deviant individuals. Erikson, a fellow American sociologist, built upon this concept by emphasising that the social response to an act of deviance is a variable, rather than a constant, meaning that the deviancy of an act depends wholly on the social response to such an act (Erikson, 1962). Additionally, Erikson views the tension between rule breakers and rule markers in society as necessary in order to define the boundaries as to what is acceptable. However, labelling theory recognises that criminal labels can have negative implications on the labelled individual’s future “moral career”, resulting in the individual engaging in further acts of deviancy.
The concept of identity is central to understanding labelling theory, as an individual’s own understanding of their identity will inform their future decision-making processes. Where an individual views themselves as a delinquent in society, they will adapt their behaviour to fit this image and it will become “real in their consequences” (Barmaki, 2017: 1). Mead’s work in this area is particularly beneficial to understanding how the criminal justice system can inform an individual’s perceptions of themselves. Mead was a social philosopher who recognised that “the self was constructed in interaction with others” (Newburn, 2017: 229). Therefore, where an individual has been treated as though they are a criminal by law enforcement and the judiciary, this interaction will influence their behaviour so that they adhere to that label (Crank, 2018). This highlights the risk of a juvenile justice system which is too willing to apply criminal labels to adolescents, especially as it is commonly understood that most “grow out” of their delinquency (Costello, 2015: 23).
A report conducted by the Irish Penal Reform Trust found that adolescents are more likely to base their decision-making process on immediate concerns rather than considering the long-term implications of their actions (Costello, 2015). In this way, juveniles are particularly susceptible to basing their identity on their negative interactions with law enforcement (McAra and McVie, 2005). The Children Act 2001 is therefore extremely hesitant to apply criminal labels to adolescents and further minimises any formal interactions that young offenders have with the Courts. These safeguards reflect the fact that adolescents have been found to be more impressionable than adults, and so that the acquisition of a criminal label could therefore be detrimental to the shaping of their character.
Non-disclosure of guilt
One of these safeguards (s.258) is that in certain circumstances, the Children Act 2001 allows for the “non-disclosure of certain findings of guilt” following a three-year desistance period. However, this provision could serve as an overly simplistic solution to the problem, as it ignores the psychological effects that this label will have on the individual. Within these three years, the adolescent could undergo a “redefinition of self” (Newburn, 2017: 235) in response to the social stigma they experience due to their criminal label. Frank Tannenbaum equated a criminal record to a “branding of the soul” and conducted research into the effects of “tagging” an adolescent (Barmaki, 2017: 1). Tannenbaum’s work on the “Dramatisation of Evil” in the 1930s predates labelling theory yet is recognised as the first conception of deviance that is evident in labelling theory. He noted that it is the initial tagging of an individual which evokes an awareness of their deviant identity and so, it “stimulates” further deviant behaviour (ibid). In Ireland, it has been found that “73.6% of offenders under 18 re-offended within three years” (Law Society Gazette, 2019), indicating that for the young offender, a promise of the removal of a formal label following a three-year period might not be enough to steer their behaviour towards the path of desistance.
As stated by Mead, an individual’s interaction with others in society has a significant impact on their own understanding of their identity. This is why Erikson found that “degradation ceremonies” (Newburn, 2017: 235) in judicial systems can have such a profound impact on stigmatising an individual in the community. He felt the courtroom proceedings serve as a “rite of transition” which involves confrontation, judgement and then finally placement of a criminal label (Erikson, 1962: 311). The Children Act 2001 attempts to limit the impact of this interaction between the community and the individual through various provisions. For example, there is a specified Children’s Court (s.71), a limit to the amount of time a young person must spend waiting in Court (s.73), and a limit to the number of people entitled to be present at the hearing (s.94). Additionally, the Diversion Programme is an important part of the system and is encouraged as an alternative route to judicial punishment (s.18). These provisions help to mitigate the effect of the “dramatic, ritualised” setting that Erikson (1962: 311) describes. However, Erikson notes that the ceremony is “irreversible” (ibid), and this is not something that the Children Act 2001 has accounted for. There is no acknowledgement for the completion of these punitive measures, and so the community remains “suspicious” of the adolescent (Erikson, 1962: 312). Because of this, the adolescent will remain subject to stigmatisation within the community. This weakened relationship between the adolescent and their community results in a further obstacle in the adolescent’s journey to desistance (Boamah Abrah, 2019).
The propensity in engaging in further acts of criminal activity is explained by the concept of secondary deviance. This idea was proposed by Lemert, an American sociologist, who contended that an individual’s “primary” act of deviancy is relatively accepted by society, and so the offender will usually remain unlabelled with “marginal implications” (Newburn, 2017: 232). Secondary deviance on the other hand is a defensive response by the offender to the negative social reaction to their primary act of deviancy and will have more serious consequences for the offender as a result. A recent study on labelling theory confirms this proposition, stating that official intervention can lead to “increased delinquent self-identity” for young offenders (Restivo and Lanier, 2015: 116). The use of the Diversion Programme therefore avoids stigmatising and labelling the young offender and reduces the likelihood of the offender engaging in an act of secondary deviance. The Irish Penal Reform Trust has recognised that the “right intervention at the right time” is essential to preventing further delinquency and has recognised that prison is an “inappropriate” punitive measure for children (Costello, 2015: 22). The Diversion Programme is therefore a great strength of the Children Act 2001, as it has been found that these programmes can be used as an alternative to a criminal sanction without seeing an increase in recidivism (Knoth and Ruback, 2019).
Labelling theory is also concerned with the concept of shame. John Braithwaite is an Australian criminologist who explored the conditions under which the social response to deviancy can avoid stimulating reoffending behaviour. Braithwaite argues that the shame associated with a label can be a useful tool in the desistance process where it is not applied in a degrading manner (Resitvo and Lanier, 2015). The Children Act 2001 effectively utilises shame in this way by requiring the individual to accept responsibility for the offence committed in order to take part in the Garda Diversion Programme (s.19). However, Braithwaite also states that shame will be ineffective as a desistance tool where the individual does not feel as though they deserved such a label. According to Irish Penal Reform Trust, there is a consensus among certain groups of young people that they are unfairly targeted by Gardaí, with some young people attributing their negative relationship with the Gardaí to an increase in their offending behaviour (Costello, 2015). Erving Goffman was a sociologist who was concerned with “rituals of social interaction” (Britannica, 2020) and noted that often, parties to an encounter can hold “an already established biography of prior dealings” (Goffman, 1982: 4) with the other person, and this creates a set of expectations that can influence the outcome of an encounter. In the criminal justice context, this can derail the normal desistance process for the juveniles in question where they are treated as if they are likely to offend again (Schinkel et al, 2019). This supports Lemert’s thinking that increased social control leads to greater deviancy (Newburn, 2017).
In conclusion, there is a clear influence of labelling theory in the Children Act 2001. Labelling theory focuses on the idea of deviance as a social construct and examines the impact that a criminal label can have on the identity of an individual. To mitigate the effects of a criminal label, the Children Act 2001 allows for the non-disclosure of the label following a period of desistance. However, due to the stigma associated with the “degradation ceremony” in receiving a label, this period of desistance might be difficult for an offender to comply with. Additionally, the Garda Diversion Programme follows labelling theory by providing offenders with a chance to avoid the path of secondary deviance. However, following label theory, the shame associated with these measures may be ineffective as encouragement not to reoffend where the individual does not accept responsibility for the label due to the perceived unfairness of their acquisition of the label.
Abrah PB, ‘Labeling theory and life stories of juvenile delinquents transitioning into adulthood’ (2019) 63(2) International Journal of Offender Therapy and Comparative Criminology 179-197.
Barmaki R, ‘On the Origin of “Labeling” Theory in Criminology: Frank Tannenbaum and the Chicago School of Sociology’ (2017) 42(2) Deviant Behaviour 1-16.
Costello L, ‘Turnaround Youth: Young Adults (18–24) in the Criminal Justice System, The case for a distinct approach’ (Irish Penal Reform Trust 2015) https://www.iprt.ie/site/assets/files/6357/iprt-turnaround-web-optimised.pdf accessed 23/03/21.
Crank B, ‘Accepting deviant identities: the impact of self-labeling on intentions to desist from crime’ (2018) 41(2) Journal of Crime & Justice 155.
Editors of Encyclopaedia Britannica, ‘Erving Goffman’ (Britannica 2020) https://www.britannica.com/biography/Erving-Goffman accessed 23/03/21.
Erikson KT, ‘Notes on the Sociology of Deviance’ (1962) 9(4) Social Problems 307-314.
Goffman E, ‘The Interaction Order: American Sociological Association, 1982 Presidential Address’ (1983) 48(1) American Sociological Review 4.
Kilkelly U, ‘The Irish Juvenile Justice System: Positive Approaches to Young People in Conflict with the Law?’ (International Juvenile Justice Observatory 2006) https://sites.unicef.org/tdad/irelandjjsystemreview06.pdf accessed 23/3/21.
Knoth L, Ruback B, ‘Conviction or Diversion and the Labeling of First Time DUI Offenders: An Analysis of Sentencing and Recidivism in Pennsylvania’ (2019) 38(1) Justice Quarterly 72-100.
Law Society Gazette, ‘Rates of recidivism are highest in young offenders’ (Law Society Ireland, 2019) < https://www.lawsociety.ie/gazette/top-stories/recidivism-rates-higher-in-young-offenders/> accessed 23/03/21.
McAra L, McVie S, ‘The usual suspects? Street-life, young people and the police’ (2005) 5(1) Criminal Justice 5–36.
Newburn T, Criminology (3rd edn, Routledge 2017).
Restivo E, Lanier M, ‘Measuring the Contextual Effects and Mitigating Factors of Labelling Theory (2015) 32(1) Justice Quarterly 116-141.
Schinkel M, Atkinson C and Anderson S, ‘‘Well-kent Faces’: Policing Persistent Offenders and the Possibilities for Desistance’ (2019) 59(3) British Journal of Criminology 634–652.
Select Committee on Crime, Deb 7 July 1992, Report No. 01 – Juvenile Crime – Its Causes and its Remedies <http://archive.oireachtas.ie/1992/REPORT_07071992_1.html> accessed 23/03/21