A call for innovative responses to youth justice

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By Stan Winford, Principal Coordinator, Legal Programs

The history of youth justice in Australia over the last 200 years or so is characterised by the failure of punitive detention to impact on recidivism or to address at an individual or systemic level the underlying issues which have propelled many young people into the justice system and into custody. Across Australia, youth detention facilities house a disproportionate number of detainees with mental health issues and cognitive impairments, limited educational attainment, and histories of abuse, trauma and victimisation. Detention facilities have effectively become warehouses for vulnerable and disadvantaged young people, failing to effectively support education and rehabilitation, instead engendering criminogenic relationships and behaviour.

Aboriginal people have been more exposed to this failure than any other group, and are devastatingly over-represented in the youth justice system, particularly in the Northern Territory. Not enough has been done by successive governments to implement the recommendations of the Royal Commission into Aboriginal Deaths in Custody. Aboriginal people represent approximately 30% of the population of the Northern Territory, but 96% of children and young people in detention in the Northern Territory are Aboriginal.

Jurisprudence, criminology and behavioural science all tell us that children and young people have a greater capacity for rehabilitation than adults. Yet the evidence shows that detention facilities provide an education in crime, and children who have been detained are more likely to re-offend in future. Detention is also the most costly form of responding to youth offending. Last year, governments across Australia spent $698 million on youth justice, and most of it (62.8 per cent, or $438 million) was spent on detention rather than community based responses. Detaining children and young people in closed environments is inherently unsafe. In the last five years, there have been investigations into youth detention facilities in almost every Australian state and territory. Violence and the use of excessive force appear to be endemic.

The documented backgrounds of children and young people in detention include very high rates of family violence, parental drug and alcohol abuse and contact with child protection systems. Rather than addressing this deep-seated trauma, however, youth detention exacerbates it by imposing additional trauma in the form of an uncompromising and authoritarian environment where violence – from other detainees and from authorities – is a constant threat.

If these costly facilities are not reducing re-offending and are harming young people, the question must be asked: why do we persist with this approach? Can we respond to trauma with trauma informed practices that address the underlying issues rather than their symptoms? Are there innovative alternatives?

It may be that the continued existence of youth detention centres themselves – with their consumption of a disproportionate share of juvenile justice budgets, and their tendency to present a deceptively appealing ‘out of sight, out of mind’ solution to a complex problem – create the greatest barriers to the development and adoption of alternative responses.

Despite this, alternative responses do exist, and demonstrate a path forward for youth justice. In Victoria, for example, Parkville College incorporates culturally appropriate and trauma informed practices, and establishes safeguards for young people in detention. Parkville College is a school within a detention facility in Melbourne.  Parkville College employs a therapeutic and trauma informed approach to learning and teaching. It aims to create lasting change for incarcerated students by establishing positive relationships and addressing the impact of trauma. It offers cultural connections to Koorie students and incorporates effective pathways for young people to maintain their education without interruption while transitioning out of detention.

Critically, it also helps create a safe environment for young people, and treats education as a right not a privilege. In many youth justice facilities, detainees frequently miss out on education because of the unavailability of custodial staff to supervise them, or because the ‘good order and security’ of the facility is prioritised above all else.  Normally, when education meets custody, custody wins. By contrast, if a young person is not available to participate in a class at Parkville College, education staff – having an obligation to teach them – can ask where they are, and for custodial staff to make them available.  Even if there is some valid reason for the absence of the student, the ability for teaching staff to ask the question provides an important measure of accountability. The learning environment established by the presence of teaching staff creates a fundamentally different culture, while the physical presence of teaching staff alongside custodial staff minimises the risk of inappropriate treatment.

Nationally and internationally, there are many other examples of innovative approaches to youth justice like Parkville College. Other jurisdictions are successfully harnessing the opportunities offered by restorative justice, therapeutic justice, justice reinvestment, culturally informed justice approaches, and solution-focussed courts to create more positive outcomes for young people.  Many of these responses are based on ‘user-centred’ approaches to designing solutions to entrenched and systemic problems. They recognise that to have the best chance of identifying opportunities for early intervention and diversion, the trajectory of people’s journeys through justice systems and processes must be understood. These are responses that focus on reducing trauma, and are informed by the people who have the most at stake in seeing them adopted. These responses focus on the power of education to transform young lives, disrupting the ‘trauma to prison pipeline’ and putting young people back on track. Innovative responses like these represent the best opportunity we have to change our approach for the better, so that another generation of young people are not lost to a system that fails to responds to their needs and the needs of the community.

The CIJ has formally provided the Royal Commission into the Protection and Detention of Children in the Northern Territory with a submission on innovative responses to youth justice.  Keep an eye out for the full submission on the Royal Commission website here.

When compulsion becomes crime

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By Rob Hulls, Director, Centre for Innovative Justice

This week is Responsible Gambling Awareness Week, a chance to reflect on how gambling has embedded itself into our culture, and whether the extent to which some participate in it is causing more harm than we currently realise.

Criminal behaviour is one of those potential harms. For a time, it was even a criteria in clinical tools used to diagnose gambling addiction. Whether a symptom of disorder or a consequence, however, the relationship between problem gambling and offending is not well understood.

Certainly, we see the occasional media story about corporate players who, to fund their high stakes habit, help themselves to funds which did not, strictly speaking, belong to them. We may also hear about more ordinary individuals who – perhaps working as a bookkeeper or in a bank – embezzled from their employer to fund a pokies habit and then were sentenced to jail. When we do hear these stories, most likely we think, ‘serves them right’, assuming it is just a consequence of greed.

What we don’t hear about is what might have driven them to obsessive gambling in the first place, or kept them there when it was no longer much fun – about the way in which mental illness or family violence, for example, can drive people to seek solace in bright, warm environments like gaming venues.

Similarly, we don’t hear about how gambling interacts with other factors which drive people into criminal behaviour, or how it might prevent them from getting out again. For, though it may be the primary cause of crime in only a small number of cases, research indicates that gambling can be a significant cause of re-offending. After all, even if an offender has been rehabilitated through their contact with the justice system – receiving effective treatment for mental illness, substance abuse or gambling addiction itself – gambling debt may await them upon release. Often the quickest way to repay that debt, especially for those accustomed to offending, is to commit another crime.

These are just some of the stories emerging from the Centre for Innovative Justice’s research into the intersection of problem gambling and the criminal justice system. Others concern vulnerable people, particularly women, coerced into offending – much of it drug related – as a way of repaying loan sharks from their particular community, or because their partner has spent their Centrelink benefits to fund a pokies habit and left them with no option but to steal to feed their kids In fact, a disproportionate number of inmates of Victoria’s women’s prison are there for offences that can be traced back to gambling debt, whether theirs or their partner’s – women whose children may then be removed and become vulnerable to crime themselves.

This seems a puzzling situation. Nobody benefits, including the community, if vulnerable people with no prior history of offending end up in prison. After all, we know that there is no better training ground for crime. On a cost-benefit analysis alone, therefore, the income we may be deriving from the gaming industry must be weighed up against the other costs.

The legal system needs to understand this issue better if it is going to respond effectively – including by engaging with growing evidence about changes to the neural pathways that can occur as a result of habitual and compulsive behaviour, and the cycle of anticipation and reward in which people can find themselves trapped. Knowledge about neural pathways should then converge with knowledge about offending pathways – the trajectories which can lead problem gamblers into crime, or in which gambling can entrench, or be entrenched by, other forms of anti-social behaviour.

Every case should be viewed independently, of course, and we should certainly guard against gambling becoming an excuse for crime. Courts rightly look for a nexus between an addiction and offending – but they are not currently supported with adequate information about more recognised forms of addiction. Knowledge is further curtailed by the failure of the system to gather any data about gambling, meaning that other factors which may be at play in offending are not addressed in a holistic way.

Our project is about bringing understanding across disciplines together – not to let anyone off the hook, but to seize the chance that contact with the legal system represents to set people on a different path. This therapeutic intervention can come from lawyers, from services, from the judiciary and ideally from all of the above – but it must be supported with shared knowledge across the board.

Whether it is the primary cause of offending by otherwise well-functioning individuals, or just present in the cocktail of chaos in which so many are caught, contact with the criminal justice system is an opportunity to address problem gambling. We must not let this opportunity go to waste.

My week shadowing Magistrate Ann Collins

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By Amy Nolan, RMIT JD student

I recently read an article by American Professor, William P. Quigley entitled ‘Letter to a Law Student,’ where he quoted one of his students who stated that ‘the first thing I lost in law school was the reason I came.’ This quote heavily resonates with me, with the experience of undertaking a law degree diluting my initial career goals and aspirations to practice social justice lawyering. With such a high emphasis on your Grade Point Average and with success defined as gaining employment in a top-tier commercial firm, I questioned my future as a law student during the first-half of my degree. After consulting some wise individuals who insisted that the practice of law could not be more different from the drudgery of studying law, I heavily immersed myself in the practical application of law through various internships and voluntary positions, rediscovering my original motivation for studying law; the desire to help people who are most in need. Having now volunteered and worked in the community legal sector over the past two years my passion and commitment to act with and on behalf of those who are suffering due to societal neglect, social decisions or social structures and institutions has been strengthened.

Many of these opportunities have arisen through the Centre for Innovative Justice (‘CIJ’) including my most recent internship, having the privilege to shadow Her Honour Magistrate Ann Collins, sitting on the Assessment and Referral Court (‘ARC’) list.

What has been described as ‘a little patch of green,’ the ARC list is a progressive example of where therapeutic justice meets the judicial system to provide a positive intervention for offenders coming before the Courts.

By addressing offenders’ mental health, housing and addiction issues among others by establishing a support network around the accused to help rehabilitate them into becoming a functional member of the community, the Court significantly reduces the inappropriate incarceration of seriously ill offenders and provides them with an opportunity for change. This heavily contrasts to the penal approach of the mainstream court system. By addressing the multitude of factors underlying the cause of the offending, recidivism rates significantly depreciate, with ARC presenting a ground-breaking blueprint to help break that cycle.

However, despite having a success rate of around 80 per cent, the ARC List is currently only implemented in the Melbourne Magistrates’ Court, limiting its availability to persons who live within this catchment. Questioning Magistrate Collins on why this model is not implemented in regional Courts, it appears it is simply a matter of funding. Due to the ongoing supportive nature of the ARC List, offenders may be monitored for up to one year on a suspended sentence, appearing before the Magistrate monthly to assess the offenders progress and to provide any further support systems if necessary. Here, politics prevails over common sense, as the long-term reduction in recidivism and subsequently contact with the Courts and prison system clearly outweighs the costs of running the ARC List. Therapeutic justice presents a better financial model, irrespective of the clear societal benefits I observed.

I would strongly encourage all students undertaking a law degree to engage in such opportunities, as they offer an invaluable insight to the true workings of the justice system and may also introduce you to less conventional professional legal pathways.

 

System which entrenches disadvantage is poorly designed

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If we were asked to design a legal system from scratch, it’s unlikely that we’d craft it to increase reoffending. In the way that our justice system responds to certain members of the community, however, that’s exactly what we’ve done. From cops, through courts to Corrections, our legal processes are shaped in ways that entrench disadvantage and make it almost impossible for particular people to establish a life beyond the cycle of disadvantage and crime.

No group could be more vulnerable to this design flaw than people with Acquired Brain Injury. As Brain Injury Awareness week rightly highlights, ABI is often known as the ‘hidden disability’, acquired at some point in a person’s life after birth – either through traumatic injury, such as a car collision or violent assault – including family violence, or through chronic problems such as substance abuse.

Manifesting in a range of ways, ABI is one of a range of factors which make people more likely to come into contact with the criminal justice system and less able to comply with its directions once they do. In fact, research commissioned by Corrections several years ago revealed that 44% of men and 33% of women in Victoria’s prisons have an ABI – an extraordinary figure which should tell us that something is terribly wrong under the metaphorical bonnet of the justice system.

Few among the general population, after all, have a hope of understanding the complex processes and language of a courtroom. Few would not be intimidated by an interaction with police or frightened when flung into a cell. When the experience is compounded by cognitive impairment, by potential mental illness, or by the prior experience of victimisation to which we know that people with ABI are vulnerable, then this experience becomes even more alienating.

Yet many police do not ask or even understand what an ABI is; most courts lack flexible or appropriate sentencing options; and our prisons systems – confirmed by last year’s Ombudsman’s report as effectively operating in a disability environment – are ill equipped to respond effectively. As a result, people with ABI, like people with other forms of disability, are cycled in and out of the prison system – unlikely to comply with orders, unable to understand the process, released to homelessness and inadequate support which means they turn to offending to get by.

Governments are recognising that this makes no fiscal or social policy sense but they struggle to grapple with how to begin to undo this mess. This is why our Enabling Justice project – a partnership between the Centre for Innovative Justice and Jesuit Social Services – is using the voices of people who have an ABI and who have experienced the criminal justice system, to design better responses. Their stories – and their participation in a Justice Users Group (JUG), which puts their voices front and centre – help to identify tangible ways to make each interaction more constructive and effective.  A podcast with JUG members Kerry and John can be found here.

Many of these suggestions are specific to people with ABI. As Brain Injury Awareness week also highlights, however, only a small proportion of ABI is identified. This means that we have to design the entire system differently – assuming that, if someone has come into contact with the criminal justice system, they are potentially already vulnerable.

Yes, there are a small number of hardened offenders in our prison for whom there seems no other option but incarceration. The majority of those in our prisons, however, are likely to have come from one of only a few Victorian postcodes and a background of intergenerational unemployment. They are unlikely to have completed their education. They are likely to have a substance abuse problem or mental illness. They are likely to be homeless. If they are a woman they are likely to have experienced family violence or childhood sexual assault. They may have a gambling addiction and be coerced into crime to pay off their debts. What’s more, by coming into contact with the criminal justice system, their situation is likely to have been made significantly worse.

Given that we know this, we have to design a system that takes this knowledge into account. Doing so is not about making excuses or letting people off the hook. It is about recognising that the community is losing money from a system which, in far too many cases, cements the commission of further crime, rather than prevents it.

It is also about recognising that people with ABI need justice to function as a positive, rather than a negative, intervention in their lives – treating them with the dignity and offering them the hope that the rest of the community rightly expects.

Rob Hulls                                                                Julie Edwards
Director                                                                  CEO
Centre for Innovative Justice                           Jesuit Social Services