Dr. Jonathan Doak: Department of Law, University of Sheffield
Juvenile Sentencing: The Impact of Short-Term Custodial Sentences
Juvenile Sentencing: The Impact of Short-Term Custodial Sentences
1. Overview
This paper evaluates the impact of short-term custodial sentences on the lives of
young offenders. Overall, the imposition of such sentences is undesirable for a
number of reasons which may be summarised as follows:
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Such sentences risk drawing petty offenders into a criminal environment
and a prison culture;
Labelling young people as ‘deviant’ harms their self-esteem and
reinforces criminalisation;
They do not allow for any meaningful form of rehabilitative work;
They cause major disruption to home life and education or training.
The paper begins by considering in some depth the documented drawbacks of
short-term custodial sentences and proceeds to highlight a number of
international standards which strongly suggest that the interests of the young
person should be regarded as the pre-eminent principle in sentencing. The paper
then examines a number of potential benefits of longer-term custodial sentences
which may afford prison staff the opportunity to engage with the juvenile and
challenge his or her perceptions and attitudes, thereby minimising the chance of
re-offending. It should be stressed however that longer term sentences should
always be used as a measure of last resort for serious offenders, and under no
circumstances should longer custodial sentences be imposed against a given
tariff.
Traditionally custody has been used as a relatively frequent method of disposal
for juvenile offenders in Northern Ireland. Prior to the mid-1990’s, young
offenders were given custodial sentences more frequently and for less serious
offences than their counterparts in England and Wales (O’Mahony and Deazley
2000). However, the rise of diversionary schemes and the introduction of Juvenile
Justice Centre Orders have resulted in a sharp reduction in the numbers of young
people serving custodial sentences (NISRA, 2004:83).
Sound empirical research on the full impact of custody upon young people is
unfortunately thin on the ground, so much of the existing literature tends to be
rather anecdotal. In particular, there is a paucity of information concerning the
correlation between the length of sentence and re-offending rates and much of
the research is not focused exclusively on juveniles. There is nonetheless a broad
consensus amongst commentators that custodial sentences are generally harmful
to the long term prospects of young people and should be avoided in all but the
most serious of cases (Goldson, 2002; Morgan, 2002; Smith, 2003; Day, 2003).
As a result, policies of most modern, western criminal justice systems seek to
ensure that:
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The use of custody is reduced for all but the most serious offenders
Most young offenders should be dealt with through community sentencing
and diversionary approaches
2. Drawbacks of Short Sentences
One of the main factors underlying the increase in custodial sentences lies in the
fact the courts have increasingly resorted to imposing short sentences for
relatively minor offences, particularly in England and Wales. It is widely accepted,
however, that such sentences do not provide an opportunity for prison workers to
address the causes of offending and are thereby extremely disruptive to the life
of the young person without being constructive in either preventing re-offending
or addressing the personal needs of the young people:
‘Short-term sentences were extremely disruptive and distressing both for
the prisoner and for her family, and did not provide sufficient time for the
prison to help or support the prisoner, for example through detoxification
or counselling.’ (Joint Parliamentary Committee on Human Rights, 2004:
para 120)
‘Short custodial sentences disrupt the lives of young people and make it
more difficult to implement effective educational and behaviour-changing
programmes. They also waste resources.’ (Lord Warner, Former Chairman
of the Youth Justice Board) 1
‘Short periods of custody are unlikely to make an impact on offending
behaviour, nor help offenders gain the educational qualifications often
necessary for a change in lifestyle.’ (National Audit Office, 2004)
‘Short prison sentences provide little to no real opportunity for offenders
to participate in the varied constructive activities that may help to, not
only address the causes of their offending, but also equip them with better
employment and educational opportunities upon release.’ (NSWSC,
2004:10)
Recent years have witnessed a trend both in Europe and farther afield away from
short custodial sentences. Indeed, sentences of six months of less have been
abolished in both Sweden and Western Australia.2 In his review of the sentencing
framework of England and Wales, Making Punishments Work, John Halliday noted
that short prison sentences (those of less than 12 months) were unlikely to make
any positive impact upon the lives of those who receive them. Although the
Review was mainly focused on the sentencing of adult offenders, many of the
principles enshrined in the report can be taken into account in considering issues
surrounding juvenile custody (see below). The Review recommended that
sentencing decisions should be structured so that if a prison sentence of 12
months or more was not necessary to meet the needs of punishment, sentencers
should consider whether an alternative, non-custodial sentence would be better
placed to meet the assessed needs for crime reduction, punishment and
reparation (Home Office, 2001: iii). In particular, the Review concluded that
short sentences were generally ineffective for a variety of reasons:
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The questionable punitive effect of short prison sentences;
The questionable deterrent effect, particularly in relation to persistent
offenders;
The strong risk of the inmate becoming infused in the prison subculture.
According to Halliday , young offenders who receive short sentences are more
likely to be reconvicted within 2 years of their release than those who serve
longer sentences.
1
2
Press Release, 22 August 2001 as cited by Smith (2003), 88.
However, juveniles are exempt from the abolition of short sentences in Western Australia.
‘The sentences are therefore being used in cases for which they are
particularly ill-designed and equipped... The short prison sentence is likely
to do little, if anything, to protect the communities to which the prisoners
will very shortly return, beyond the briefest respite; and little if anything
to help or influence those offenders to change their lifestyles and observe
the law.’ (Ibid., 1)
Research conducted for the Review found that there was a strong correlation
between number of previous convictions and the likelihood of receiving a short
prison sentence. A sample of male prisoners receiving short prison sentences in
mid-1998 showed that 54% had been to prison previously, and that 56% had five
or more previous convictions (ibid., 3). The two year reconviction rate for those
who had served short prison sentences was 60%, higher than any other custodial
sentence (ibid., 126). More recently, the National Audit Office (2004) have
produced statistics to show that approximately 8 out of 10 young short-term
prisoners re-offend within two years of release. Short-term custodial sentences
are thereby clearly ineffective in preventing re-offending, and figures from
Northern Ireland show an even higher rate of re-offending among juveniles.
Curran et al (1995) observed that 86% of juveniles who received custodial
sentences re-offended within three years, while Wilson et al (1998) estimate that
97% of boys who received custodial orders are reconvicted of an offence within
three years. O’Mahony and Deazley (2000:58) reported that juveniles were more
likely to receive ‘up-tariff sentencing options’, including the use of immediate
custody for less serious offences than adults.
Halliday concluded re-offending rates are so high among short-term prisoners
because they are fundamentally ill-equipped to do anything to tackle the factors
underlying criminal behaviour (ibid., 22).3 In particular, problems relating to drug
or alcohol dependency were not able to be properly addressed. This view was
shared by many of the academics and stakeholders who were interviewed as part
of the Halliday Review:
‘Many commented on the extreme limitations of short prison sentences
(under 12 months) because of the absence of any work with most
prisoners to prevent re-offending, and the absence of any such work under
supervision after release.’ (Ibid., 78)
A number of weaknesses in shorter sentences were also identified by the New
South Wales Sentencing Council, when they recently considered the possibility of
abolishing all prison sentences under six months:
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Their questionable rehabilitative value;
The high cost associated with processing and housing short term
prisoners;
The resources required for prisoners serving short sentences could be used
for more serious offenders;
As they presently stand, prisoners who have served a short prison
sentence do not receive supervision/reintegration on release (NSWSC,
2004: 42).
It was further considered that the total abolition of such sentences may:
3
Although the Halliday Report stopped short of recommending a total abolition of shorter custodial
sentences, it did recommend a ‘more robust use of community sentencing’ for non-serious offences
based around the so-called ‘Custody Plus’ system which has now been placed on a statutory footing in
the Criminal Justice Act 2003.
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Reduce prison overcrowding;
Simplify the management of inmates;
Diminish the harmful effects of prison;
Encourage the use of sentencing alternatives;
Reduce social security costs.
Like the Halliday Review, the NSW Sentencing Council’s Report was concerned
with the effects of short custodial sentences on prisoners generally as opposed to
their particular impact on juveniles. However, if shorter sentences are potentially
damaging to the welfare of adult prisoners, then their impact upon juveniles is
likely to be considerably exacerbated. It is generally accepted that custodial
sentences ought to be regarded as measures of last resort in the sentencing of
young people, and punishment and general deterrence are considered
subordinate to the rehabilitation of a young person (NSWSC, 2004: 17). Von
Hirsch (2001) argues that since juveniles have ‘less capacity to assess and
appreciate the harmful consequences of their criminal actions’ and have less
opportunity to ‘develop impulse control and resist peer pressures’, sentencing for
juveniles should be scaled well below that of adults. Von Hirsch also asserts that
custodial sentences carry a greater ‘punitive bite’ for juveniles than for adults,
since they are more psychologically vulnerable to the effects of the penalty. It is
generally accepted that children in custody are at increased risk from bullying,
assaults, suicide, self harm and the cultivation of criminal techniques than their
adult counterparts (Ball et al., 2001, 153, 162; Department of Health, 1997). A
Review of youth custody carried out in the late 1990’s found that many juveniles
were ‘lost’ in the prison regime and that many young people were ‘forced into
doing little more than warehouse adolescents’. The Review concluded that
children should be kept out of the prison system as far as possible as ‘it is
essentially an organisation for adults’:
‘Serving a period in custody can turn out to be a criminalising rather than
a curative experience.’ (Home Office, 1997a: para 106)
3. International Standards
International standards dictate that criminal justice systems should always
distinguish in the manner in which they treat adults and juveniles. Article
10(1)(b) of the International Covenant on Civil and Political Rights states that all
juveniles shall be separated from adult prisoners and should be treated in a way
appropriate to their age and legal status. Further obligations relating to juvenile
custody are contained in the UN Convention on the Rights of the Child, which
emphasises the need for custodial measures to be geared towards the
rehabilitation and reintegration of juvenile offenders. Custodial sentences may be
used to achieve this goal, although the Convention requires that custodial
sentences should ‘be used only as a measure of last resort and for the shortest
appropriate period of time’ (CRC, Art 37(b)). Additionally, all sentencers should
take into account “the child’s age and the desirability of promoting the child’s
reintegration and the child’s assuming a constructive role in society” (CRC, Art
40). The United Nations Standard Minimum Rules for the Administration of
Juvenile Justice (The ‘Beijing Rules’) set out four key principles in Article 17(1)
which ought to be adopted in the sentencing of juveniles:
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The reaction shall be proportionate to the gravity of the offence, the needs
of the child, and the needs of society;
Restrictions on the personal liberty of the child shall be imposed only after
careful consideration and shall be limited to the possible minimum;
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Deprivation of liberty shall not be imposed unless there is a serious act of
violence against another person or a persistence in committing serious
offences;
The well being of the child shall be the guiding factor.
The Commentary to the Beijing Rules underlines the fact that whilst it may be
legitimate to sentence adults according to the principles of just deserts and
retribution, in juvenile cases ‘such considerations should always be outweighed by
the interest of safeguarding the well-being and the future of the child.’
4. Benefits of Longer Sentences (over 12 months)
Persistent and serious offenders cause greatest concern to the general public
(Audit Commission, 2004). John Halliday found that there was a ‘general
consensus’ support among the practitioners, stakeholders and the general public
that lengthier prison sentences were appropriate in serious cases, such as those
involving violence, drug dealing, organised crime, or offences against vulnerable
persons (Home Office, 2001: 120). Recent Canadian legislation, while seeking to
reduce the number of young offenders sent to prison, also facilitates the
imposition of harsher sentences on a small number of juveniles convicted of the
most serious offences (Roberts, 2003). The rationale underpinning lengthier
sentences seems to gravitate around punishment and deterrence, rather than
rehabilitation. For this reason, even those who are sceptical about the entire
concept of incarcerating young people accept that custodial sentences are still
regarded as an appropriate method of disposal for young offenders who are
considered to be at high risk of serious re-offending:
‘Deprivation of liberty as a punishment for serious and/or persistent
offending is an understandable and legitimate response. In many cases it
is necessary for young offenders to be stopped in their tracks as far as
criminal activity is concerned, and custody brings offending in the
community to an end, at least for the period of incarceration. Society has
the right to expect custodial authorities to hold young prisoners, restrict
their freedom, confront them with the consequences of their behaviour,
provide conditions in which the punishment of the court can be served out
and return them to society less likely to re-offend.’ (Home Office, 1997a:
para 106)
The Government recently stated that it did not consider custodial sentences for
juveniles to be thought of as ends in themselves, but that ‘the fundamental aim …
should be to prevent re-offending’ (Home Office 1997b:19). Where custody is
necessary, it should be ‘served in such a way as to provide the public with a
reasonable prospect that young prisoners on discharge will not re-offend’ (Home
Office 1997a, para 1.09). The Government has placed considerable emphasis
upon education and training as being central to making custodial sentences
worthwhile in terms of preventing re-offending, whilst drugs and alcohol problems
should also be addressed (National Audit Office 2004). The Chief Inspector of
Prisons advised that the following needs ought to be met ought to apply in every
case where a custodial sentence is handed down to a juvenile (ibid., para 2.16)
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The need for containment, discipline and control;
The need for accommodation, food and warmth;
The need to tackle offending behaviour the need to maintain positive
contacts with families;
The need to experience positive human relationships with adults and other
adolescents the need for individual needs assessment and custody;
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Planning the need for participation in education, employment and
recreation
The need for appropriate health care;
The need to learn practical skills the need for help with personal and
emotional problems (for example, learning to cope with the experience of
having been abused or dealing with substance misuse);
The need to be prepared for life outside the need to be treated and
respected as individuals.
The Chief Inspector noted that if these needs are met and that efforts are made
to reintegrate juveniles into the community, there is every chance that juveniles
may be able to alter their behaviour as a result. Certain traits of behaviour were
identified in the Review as forming part of a ‘street culture’ common to many
young offenders. These beliefs underlying this culture included (ibid., 2.06):
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To use of crime to meet financial needs;
To use of assertive techniques whilst offending;
Competitiveness;
The need to operate in small gangs;
To steal things which are easily sold ;
To learn how to sell the proceeds of crime;
To shop around to get a good price for the proceeds of crime;
To be indifferent towards the experiences consequent upon a court
disposal;
The need to adopt short term goals.
If such values are widely held among juvenile offenders, the Chief Inspector
concluded that the task of prison workers was to ‘confront these values and to
motivate young people in custody by offering a more positive set of alternatives’
(ibid., 2.07). Obviously the shorter the period a young person spends in custody,
the less time prison workers have to address and challenge this culture. On the
contrary, lengthy custodial sentences give the prison staff the opportunity to
engage constructively with the young person and may conceivably carry some of
the following benefits:
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Interruption of a cycle of criminal activity;
Challenge attitudes;
The opportunity for the young person to make fresh start;
Acquire education and skills;
Time to think and plan;
Develop self-esteem;
Help in resisting peer pressure;
Removed from effects of drugs / alcohol.4
5. Summary
The idea that the ‘short, sharp shock’ of a brief custodial term of imprisonment
may carry a strong deterrent effect or assist in rehabilitation is not supported by
the existing literature in the field. Unfortunately, much of the evidence is
anecdotal. There is currently no existing literature which considers directly the
4
Similarly, John Halliday noted that lengthier sentences could play a role in the development of the
offender’s thinking and understanding, so as to change attitudes and decrease the likelihood of reoffending; the possibility of receiving treatment for drug or alcohol dependency; improving literacy
and numeracy levels, or other aspects of education; and improving job related skills (Home Office
2001, 6).
impact of sentencing on young offenders. Nonetheless, there appears to be a
widespread consensus among stakeholders and the academic community that the
drawbacks of short sentences substantially outweigh any perceived benefits.
However, custodial sentences are still considered appropriate in particularly
serious cases. This perception is reflected in the current direction of the
development of youth justice policy in most western countries.
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