The Barriers Punitive Responses to Youth Offending Pose to Producing an Effective Youth Justice System

By Chantelle Van Vuuren

The National Party's Combatting Youth Offending Plan serves as an example of penal populism in full swing. The Party claims that the outgoing Labour Government has had a failing soft-on-crime approach, and has consequently proposed policies that are more punitive in nature.[1] This raises questions of whether such a plan was put forward in an attempt to obtain more votes in the leadup to Aotearoa's 2023 general election or as a valid response to concerns around youth offending in the country.[2] The Plan seeks to implement stricter measures to see serious repeat youth offenders, such as ram-raiders, face harsher consequences for their behaviour with the intention of protecting the public and providing support to turn these offenders' lives around.[3] Under this Plan, National intends to introduce a Young Serious Offender (YSO) category for repeat youth offenders to face increased consequences.[4] They also plan to establish Young Offender Military Academies where YSOs would be sent for intensive rehabilitation for up to 12 months, which would see Aotearoa's youth justice system meet greater punitive influence.[5] 

Punitive Responses as a Historical Crutch and Some Criticisms

Proposing harsher punitive responses to address the allegedly pressing need to tackle youth offending are not new and flare up particularly in an election year. This has been seen not only this year but also in 2008, with then-National leader John Key addressing youth crime as a problem by proposing 'Fresh Start Programmes', a similar solution to National's current proposal.[6] Additionally, arguments for introducing boot camps for youth offenders came to light in 2005, with politicians such as then-Justice Minister Phil Goff asserting that these policies are ineffective as they do not reduce reoffending rates, nor are they a good financial investment.[7] Criticism of the implementation of boot camps and military academies also frequently points to the argument that these policies tend to create hardened offenders and do not effectively address youth offending.[8] Consequently, those in opposition to such policies often call instead for policies that tackle the causes of youth crime, with a particular emphasis on early intervention.[9] Early intervention is perhaps the most effective solution for tackling youth crime as opposed to boot camps or military academies.[10] These policies may serve as consequences for youth offenders and appease concerned members of society. However, they do not address the causes of offending, nor do they serve as circuit breakers in any form but rather pose a significant barrier to producing an effective and equitable youth justice system.[11]

Underlying Causes of Youth Offending Requiring Critical Consideration

Policies like National’s, that stem from ideas of penal populism and emphasise crime control, prioritise a punitive response over one that actually addresses the underlying causes of youth crime, backgrounds of deprivation, and responses that are age and culturally sensitive.[12] Backgrounds of deprivation typically underlie offending and are critical to bear in mind when looking at how best to respond to youth offending.[13] Said backgrounds of deprivation speak to interrelated and complex challenges, with poor mental health, poverty, housing instability and family violence prevalent amongst many young offenders.[14] Young people whose lives are intertwined with other challenges, such as neurodiversity, brain injuries, foetal alcohol spectrum disorder and trauma, also face proportionately higher rates of criminalisation as opposed to the general population.[15] Consequently, understanding and tackling the underlying causes of offending, supporting young people's well-being and diverting youth offenders out of the criminal justice system is of greater benefit than a heavy focus on punitive responses to youth offending.[16] Evidence in Aotearoa supports this, with Rangatahi Courts, or Ngā Kōti Rangatahi, and restorative justice practices helping to reduce rates of recidivism, while family group conferences have been shown to reduce the severity and frequency of offending for 70 per cent of participants.[17]

The Necessity of Cultural Considerations When Responding to Youth Offending

One glaring omission in the National Party's Combatting Youth Offending Plan is a lack of any recognition or direct addressing of racial inequities amongst young people. Many of the previously-mentioned root causes of youth offending disproportionately impact Māori and, consequently, many rangatahi Māori are disproportionately overrepresented in youth offending statistics. They also appear in the Youth Court at a rate of 66 per cent, despite Māori only comprising 15 per cent of the general population, further emphasising why culturally-appropriate responses to youth offending are necessary and should take priority over punitive outbursts.[18]

Aotearoa has Rangatahi Courts and Pasifika Courts, which operate as the Youth Court does and within the same legal structure with a few key differences.[19] The country's fifteen Rangatahi Courts follow Māori cultural processes and occur on marae. The two Pasifika Courts that sit in Auckland follow Pasifika cultural processes and take place in Pasifika community centres or churches.[20] While these Courts are not solely for Māori or Pasifika youth, they intend to assist in Māori and Pasifika young people's engagement with youth justice processes and to facilitate greater community and family involvement in these processes.[21] Such initiatives should be invested in further to assist in realising an effective and culturally-responsive youth justice system.

Requirements for a Successful Youth Justice System in Aotearoa

A successful youth justice system in Aotearoa is one that acknowledges the characteristics of young people as different to adults, with particular recognition of their vulnerability.[22] Such a system should entrench protections and interventions that circumvent issues of future reoffending to increase its effectiveness.[23] Further, any policies implemented regarding Aotearoa's youth justice system should be created with the Children, Young Persons, and Their Families Act 1989 (the Act) in mind.[24] The implementation of the Act saw the internationally-lauded principle of restorative justice interwoven in the country's youth justice system.[25] Such a principle speaks to the notion that where an alternative method of dealing with a young person's offending exists, it should be preferred and prioritised over criminal proceedings unless this would not be in the public interest.[26] This principle within the Act sees greater use of police discretion for youth offending, with most young people referred to Police Youth Aid, the Police force's specialist youth division, as opposed to seeing criminal proceedings taken against them.[27] Current processes within Aotearoa New Zealand's youth justice system reflect this to some extent. They typically see the Police manage the offending of children and young people in the community outside the court system, with only the most severe offending being dealt with by the Youth Court.[28] Often, this management will either see youth offenders receive Police warnings or referral to Police Youth Aid.[29] Where offending is unable to be managed in the community, family group conferences are often employed to address youth offending.[30] These initiatives should also see further investment to meaningfully contribute to producing an effective justice system in Aotearoa.

Conclusion

Ultimately, rather than introduce tried and problematic measures such as boot camps and military academies, combatting youth crime should seek to intercept pathways to offending by addressing the underlying causes of offending.[31] This should see a growth in the use of specialist courts, such as the Rangatahi and Pasifika Courts, across the country and greater resources for tackling issues of substance abuse, trauma and mental health for young people. It is critical to engage with and respond to barriers to engagement with the youth justice system to effectively address challenges emerging within the Youth Court, with any judicial processes developed also requiring cultural sensitivity.[32] Youth offending needs conscious and considerate engagement that transcends its adoption as a political football, especially when electioneering, with rehabilitation and reintegration of youth offenders prioritised to realise a youth justice system that is truly effective.

[1] “Combatting youth offending" The New Zealand National Party <https://www.national.org.nz/combatting_youth_offending>.

[2]Above n 1.

[3] Above n 1.

[4] Above n 1.

[5] Above n 1; Linda Mussell and Jessica Niurangi Maclean, 2023 “Promises to get tough on youth crime might win votes – but the evidence shows it hasn’t worked for NZ” (October 3 2023) The Conversation <https://theconversation.com/promises-to-get-tough-on-youth-crime-might-win-votes-but-the-evidence-shows-it-hasnt-worked-for-nz-214147>.

[6] Mussell and Maclean, above n 5; John Key “John Key: State of the Nation speech” The New Zealand Herald (online ed, Auckland, 30 January 2008); Phil Goff “Boot camp tried and failed” (press release, 20 July 2005).

[7] Goff, above n 6.

[8] Goff, above n 6.

[9] Goff, above n 6.

[10] Ian Lambie "The prison pipeline: Why early intervention is the best solution" (2022) 9 IJBPE 32.

[11] Lambie, above n 10.  

[12] Mussell and Maclean, above n 5.

[13] John Walker "Barriers to engagement: enabling full participation in the justice system for young people" (7 November 2018) District Court of New Zealand https://www.districtcourts.govt.nz/youth-court/publications/barriers-to-engagement-enabling-full-participation-in-the-justice-system-for-young-people/.

[14] Walker, above n 13; Mussell and Maclean, above n 5.

[15] Mussell and Maclean, above n 5.

[16] Mussell and Maclean, above n 5.

[17] Mussell and Maclean, above n 5.

[18] Walker, above n 13; Mussel and Maclean, above n 5.

[19] "Rangatahi Courts & Pasifika Courts" Youth Court of New Zealand <https://www.youthcourt.govt.nz/about-youth-court/rangatahi-courts-and-pasifika-courts/>.

[20] Above n 19.

[21] Above n 19.

[22] Andrew Becroft 10 Suggested Characteristics of a Good Youth Justice System (Ministry of Justice, March 2014).

[23] Becroft, above n 22.

[24] Children, Young Persons, and Their Families Act 1989.

[25] Children, Young Persons, and Their Families Act 1989, s 208.

[26] Becroft, above n 22; Children, Young Persons, and Their Families Act 1989, s 208.

[27] Becroft, above n 22.

[28] Trends for people with finalised charges in court (Ministry of Justice, June 2023); Walker, above n 13.

[29] Ministry of Justice, above n 28. 

[30] Ministry of Justice, above n 28. 

[31] Mussell and Maclean, above n 5.

[32] Walker, above n 13.

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