Why Is It Important To Divert Young People Who Have Committed Crime Away From The Criminal Justice System?

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Introduction

The process of criminalisation and marginalisation associated with juvenile offending can impact relationships, education and employment opportunities and mark young offenders with a stigma for the rest of their lives (Cunneen and White 2002). It has been highlighted that the stigmatisation process can lead to a more dangerous form of deviance, ‘’whereby labelled individuals begin to identify with and adopt such identities’’ (Lemert, 1969). The diversion strategies, based on this theoretical concept of labelling, aim to divert young offenders away from the criminal justice system and avoid the criminogenic effects that arise following the interactions with the criminal justice system (Cunneen and White 2002; Farrington 1977).

Further evidence suggests that most juvenile crime is episodic and offending behaviours tend to be controlled once the maturation process takes place (Cunneen and White 2002; Richards 2011). The involvement of young people with crime typically starts between 12 and 16 years of age (Richards 2009) and most likely the majority of them do not reoffend after the first contact with the criminal justice system (Weatherburn 2004). However, researchers underline that fostering the contact of young people with juvenile justice system may be more harmful than productive (Ericson and Vinson 2010) and clearly show that the young people who came into contact with the criminal justice and went through the adjudication process at Children’s Court are significantly more likely to reoffend (Chen et al 2005). Indeed, while recent findings confirm that involvement in the juvenile justice system amplify criminogenic effects and increase the chances of later involvement in crimes during the adulthood (Gatti et al 2009), conversely, young people diverted away from the criminal justice system show lower level of recidivism (Allart et al 2010).

More important, diversionary framework seems to be an effective alternative to the overcrowded juvenile correction system and the associated significant costs (Morris and Maxwell 2003) which did reveal itself as an ineffective measure to prevent reoffending. Furthermore, according to Polk (Polk et al 2003) a youth diversionary framework operates at three different levels: as a crime prevention strategy to prevent young people’s involvement in crime; as a diversionary schemes to divert young people away from the criminal justice system through earlier intervention; as a sentencing option to divert young people from custodial remand.

The diversion framework in Victoria

As a result of being a signatory to the United Nations Conventions on the Rights of the Child, under the provision 40.3, each Australian jurisdiction is obligated to put in place appropriate diversionary measures to deal with young offenders. In Victoria, under the section 59 of the Criminal Procedure Act 2009 (Vic), a Magistrates’ Court criminal proceedings can consider appropriate the access to the Criminal Justice diversion Program (CJDP) when a person is charged with summary offences, appears in Court and acknowledges responsibility for that offence. In addition to this legislated diversion scheme for adults offenders, which provides them the opportunity to avoid a criminal record, within the Magistrates ‘Court jurisdiction there are a range of specialist courts focussed on addressing issues associated with criminal behaviours of adults, such as Drug Court, Koori Court, Neighbourhood Justice Centre.

Victorian Youth diversion system and its limitations

In relation to youth crime, the Victoria Government has created the pathways to prevention and rehabilitation through various programs that aim to prevent and reduce recidivism (Department of Justice 2019). Unfortunately, despite the evident commitment to reducing young people’s engagement in crime and the fact that youth diversion programs are supported by international law, Victoria’s state has not legislated a court-based diversion scheme to address criminal behaviours of young people. Consequently, young people under 18 cannot access a legislated diversionary scheme and programs, similar to the CJDP, in the Children’s Court jurisdiction. Contrary to the expectation, the only legislation to refer to for Victoria’s youth justice service is the Children, Youth and Families Act 2005, which provided the constitution of the Children’s Court of Victoria and the criminal responsibility of children, and the Sentencing Act 1991, which allowed to adult courts to sentence young offenders (aged under 21 years) to serve custodial sentences in youth detention instead of adult prison.

Within the Victorian Justice system, other diversionary strategies operate such as police cautioning, and a range of non-cautioning programs for low- and high-level youth offenders such as Youth Support Services, Youth Justice Conferencing and other various programs. However, the limited investment the Government reserves to all those options, particularly scarce in rural and regional areas, reduces considerably the effectiveness of these measures and more broadly of the Victorian diversionary system as whole (Little and Karp 2012). As a result, prisons are overcrowded with a significant overrepresentation of young people with Aboriginal background and young women already victims of violence. While, within the Australian jurisdictions, Victoria presents a lower level of young people serving custodial sentences or on custodial remand, showing a good record of practicing diversion, an overview of the youth justice system highlights that the juvenile justice approach is limited to supervision, community programs and referring to support services.

It seems that Victoria has an incredible range of diversionary services to manage young offenders but, however looking more closer, practices denotes that the Victorian diversion system has a significant gaps in programs availability, in creating equity of access to existing programs and in funding to sustain and implement those programs. There is no doubt that these obstacles affect the design of a diversion policy strategy to keep young people away from the criminal system and at the same time the crime prevention strategies.

The youth criminal behaviours and the ‘’tough on crime response’’

Youth crime and behavioural issues are always a strong topic to discuss. Many years ago, during a speech to the University of Pennsylvania, F. Roosevelt said that ‘’We cannot always build the future for our youth, but we can build our youth for the future’’. This powerful statement shows us a clear message that the problem of youth offending is not just a Government responsibility but is everyone responsibility within our community. In other words, the problem of youth crime is complex and requires a cooperative approach through the involvement of the families, communities, schools, Governments and agencies, to develop and implement prevention initiatives which can prevent youth from coming into a contact with the criminal justice system and also diverting them from it, reducing recidivism. Recently, rather than acknowledging the concept of cooperative approach and implementation of diversionary strategies through innovative and targeted programs, the Victorian government, incited by the community calls on less tolerance on crime approach and fuelled by media reports, passed the the Children and Justice Legislation Bill, as part of Victoria’s largest legislative measures to fight crime and keep the community safe.

The passing of the Youth Justice Reform Bill had as immediate consequences that young offenders now face longer detention periods and more intensive supervision programs and a reinforcement of the police discretionary powers which generally works against the interests of young people. The immediate debate around these legislative measures has raised many concerns about the erosion of the foundations of Victoria’s youth justice system, which are already undermined by the geographical limit to access to the justice system, the short -term programs and the lack of government funding. Contrary to findings, the public view supports the call for harsher sentences for young offenders, as the community still feels that the most effective way to handle the problem is, once again, the old approach of severe punishment and incarceration. In fact, statistics show that in the last five years the number of young offenders recorded for offences against the person and drug offences have increased, while the proportions recorded for minor offences have decrease. Nonetheless, whilst there is not strong evidence that harsher sentences are more effective in reducing reoffending, experiences from overseas countries with more focus on rehabilitation and diversionary practices, show that this is the right direction to undertake.

There is no doubt that placing emphasis on early prevention intervention, education and rehabilitation as a more extensive approach to prevent crime and divert young people from reoffending, are the keystone to give effectiveness to the justice system. Acknowledging the successes obtained by other countries and inverting the trend of ‘’tough on crime’’, are the steps to undertake to make the juvenile justice system more effective and focused on giving to young people the best opportunities to rethink about their lives and prevent re-offending.

What improvements (if any) could be made to this process?

There are opportunities to improve diversion for young people in Victoria through the acknowledgement by the Government of the existence of different perspectives and international models as best practices but also rethinking youth diversion with new strategies and more adequate and sustained resourcing. Furthermore, it would be vital that the Government makes commitment to introduce legislative or policy changes to compelling the police and courts to consider the diversion as a priority option to prevent crime and reduce reoffending. In addition, it is crucial to investigate and address the causes of criminal behaviours of young people, who often from a very young age have been confronted with domestic violence, child abuse, alcohol and drug abuse. While it is obvious that we cannot generalise about the background of young offenders, we need to recognise that the rising in crime, and in particular juvenile crime, is definitely linked to the disruption of the fundamental pillars of our society such as family, school and community support. Indeed, those traditional values have been, undoubtedly, eroded by family breakdown, acceptance of violence models to solve social and private issues and large use of substances abuse. Redesigning policy strategies, focused on rehabilitation, that emphasise the importance of providing learning opportunities and employment services to young people in detention, would mean undertaking an effective pathway towards reintegration within the society. A wider approach by government to innovate and reinforce diversion options to prevent crime and reduce reoffending, should culminate in ensuring that detention is only seen as a last resort. It is an ambitious and challenging goal but that it is the only way to restate the precise role of punishment which is the re-educative function of it as a pathway leading to rehabilitation.

Conclusion

An important finding of this analysis is that a juvenile diversion system is necessary as an alternative to the overcrowded, very costly, and often ineffective juvenile justice system as several researchers have shown that the way this operates does not lead to rehabilitation. A different approach, more focused on the complexity of the youth experiences and circumstances, is needed to respond to young people’s engagement in criminal behaviours and preventing their transition into a life of crime. A broader approach would also reduce the labelling process associated with criminal behaviours that, primarily, is the cause of missing out any reintegration prospective within society. Therefore, an early intervention, through an effective juvenile diversionary framework, plays a pivotal role in diverting young offending away from criminal justice system. In the current Victorian juvenile system, the access to diversionary schemes has resulted in inequality, depending on geographical residency, level of financial resources, commitment by the communities, and discretionary action by the police and courts.

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Why Is It Important To Divert Young People Who Have Committed Crime Away From The Criminal Justice System?

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