Juvenile Justice Done Wrong, and How to Do It Right

Screengrab obtained Tuesday, July 26, 2016 of the Don Dale Youth Detention Centre in Berrimah, NT. Prime Minister Malcolm Turnbull has called for a royal commission into the NT's youth justice system after ABC's Four Corners exposed abuse of teen inmates at the centre. (AAP Image/Four Corners) NO ARCHIVING, EDITORIAL USE ONLY

(AAP Image/Four Corners)

Before the Northern Territory Royal Commission begins in October, let’s take a short breather to remind ourselves what it is we’re examining. Don Dale showed us the worst of what juvenile detention can be. Four Corners broadcast footage of children as young as thirteen being abused, assaulted and belittled. These children – denied opportunities and demonised by politicians and society – became trapped in the revolving door of prison, to be re-abused by another set of guards with inadequate training. Don Dale was like a version of the Stanford prison experiment: make-believe criminals being beaten up by make-believe guards.

If the Don Dale Youth Detention Centre ever had a justification to exist, it lost it a long while ago. When the Royal Commission looks at Don Dale it will be examining the model of an unsuccessful juvenile justice system. So today, let’s look at some successful systems, and see what can be learnt for the future of youth justice in Australia.

The Scandinavian Model

In Norway, Sweden, Denmark and Finland, the age of criminal responsibility is 15. This means that in those countries it would be legally impossible to incarcerate a thirteen-year-old for theft (this is what happened to Dylan Voller). Rather than a penal system, these Scandinavian countries address the crimes of the very young with intensive social welfare systems. It’s been called a “cross-professional” approach, and it sees schools, social welfare officers, child psychologists, health professionals and police sharing information about any at-risk children, so that a comprehensive, individualized approach can be taken to ensuring their welfare. It is exactly the way a caring parent would try and divert their child from further errant behaviour.

So Scandinavian countries don’t treat offending children like the bane of society? How do their politicians make small talk? In the words of The Atlantic:

“[T]hroughout Scandinavia, criminal justice policy rarely enters political debate. Decisions about best practices are left to professionals in the field, who are often published criminologists and consult closely with academics. Sustaining the barrier between populist politics and results-based prison policy are media that don’t sensationalize crime—if they report it at all.”

We can already hear the Hadley acolytes tapping out their objections: how do you expect to stop crime if you don’t adequately punish people? The thing is, Scandinavian countries do stop crime – it’s just that they stop it before it happens. This proactive approach results in vastly better outcomes for all parties: the victim doesn’t suffer the trauma of crime, society doesn’t have to pay to for lawyers and jailers, and the child doesn’t have their future compromised by criminal charges.

Sure, the acolytes protest, but does a softer system actually work? And would it work in New South Wales? In 2014 the Australian Children’s Commissioner, Megan Mitchell, stated that “evidence has shown that policies and preventative interventions which help to address vulnerability in children will ultimately reduce rates of juvenile offending.” On the contrary, she said, contact with the penal system actually increases the rate of reoffending, and makes it more likely that kids will commit crimes into adulthood. Mitchell’s evidence is here.

The full title of the upcoming royal commission is the Royal Commission into the Protection and Detention of Children in the Northern Territory. They’ve done one thing right already: Protection comes before Detention. Let’s make that a reality.

(Apologies for the lack of blogging. We’re going to follow the example of the Northern Territory government and blame everything on Four Corners.)

Under cross-examination, ADF Vice-Chief admits guilt of institution

ADF Chief Apologizes SMH

During cross-examination by Peter O’Brien, Vice-Chief Ray Griggs talked openly about the ADF’s failure to protect victims of child sexual abuse. Griggs’ comments came on the very last day of the Royal Commission’s 8-day inquiry into the Australian Defence Force.

Peter has been representing three survivors of child sexual abuse at the Royal Commission. One of them was a cadet at HMAS Leeuwin Naval Base; another attended Balcombe Army Apprentice School. Asked about these two institutions, Griggs replied:

Well, I’ve said publicly that I think the Navy of the day failed in its duty of care in respect to Leeuwin; and I would make the same sort of observation, based on the evidence that has been presented, in regards to Balcombe.

Peter further probed Vice-Chief Griggs about the ADF’s future role in assisting survivors of child sexual abuse.

Peter O’Brien: Practically speaking, then, what have you been doing or what do you intend to do, given what you have heard about the very significant difficulties that these survivors have had in accessing appropriate not only services but reparation in terms of compensation and payments of damages?

Griggs: …[T]here has been a massive shift in the approach that Defence has taken towards dealing with these claims. Now, you know, I’m not qualified to talk about the nuts and bolts of the claims, but what I would say is that we are not going to shy away from our responsibilities.

Earlier in proceedings, Vice-Chief Griggs had requested permission from Justice Peter McClellan to address the survivors directly. Turning to the public gallery, he stated that, “People and systems have failed you and they have put others at risk and that is simply not good enough.

“I am deeply sorry for what happened to you. No one who pulls on the uniform of this country and no child who is under our care should ever have had happen to them what has happened to you.”

Read more at: http://www.smh.com.au/nsw/adf-vicechief-ray-griggs-apologises-to-abuse-victims-at-royal-commission-20160629-gpv4b2

Lifeline: 13 11 14 or www.lifeline.org.au

Beyond Blue: 1300 22 4636 or www.beyondblue.org.au

Media, Misinformation and Punitiveness: The Unholy Trinity

Take a group, and split it into two. Each half is asked to comment on a case. The first group gets their information about the case from a newspaper. The second reads a summary of the court documents.

You won’t find a better metaphor of the divide between the informed and the misinformed than this 1988 study by Roberts and Doob. More than half of the people in the court documents group thought that the sentence imposed was too harsh. Of those who learnt about the case from the media, 63% thought that the sentence was too lenient.

The study provides two key lessons. The first is correlative: it demonstrates the connection between the media and misperceptions of criminal justice. The obvious explanation of this phenomenon comes from Gelb, who writes that “[the media tend to focus on unusual, dramatic and violent crime stories, in the process painting a picture of crime for the community that overestimates the prevalence of crime in general and of violent crime in particular.” Likewise, the only sentences that excite the press are the unusually lenient ones.

Lesson two again reveals a correlation; specifically, the bond between misinformation and punitiveness. The further a person is from the criminal justice system, the more bloodthirsty they become. (To illustrate: Kate Warner conducted a study in 2011 that asked jurors what they thought of the sentence imposed in their cases: 90% answered that it was either very or fairly appropriate.) There’s another obvious explanation here: the misinformed public is more keen on punishment, because the media makes crime rates seem worse than they actually are. The Doob and Roberts study pierces right to the core of the problem: the unholy trinity between media, misinformation and punitiveness.

The widespread diffusion of this blind belligerence made it inevitable that it would be adapted into public policy. The policy has been accurately termed “penal populism”. Populism is the mot juste: a policy is populist when it is designed to win votes, without any concern for its actual effectiveness. Punitiveness plays to the baser instincts of the uninformed electorate. As for its effectiveness, multiple studies have shown that rehabilitation is miles ahead when it comes to reducing recidivism. Rather than taking the reader through these multiple studies, one gets a much more powerful image by seeing just how ineffective harsher punishment is. In America – where the illness of penal populism is at a more advanced stage than in Australia – 1 in every 14 African-American children has a parent behind bars. If you’re black, male, and in the prime of your life (25-29 years old), on any given day you have a 1 in 8 chance of being incarcerated.

Unless the penal impulses of the public can be bested, this dystopia is the telos of the Australian criminal justice system. Smarter media coverage of crime is one way to resist punitiveness, and at the same time politicians need to resist the basic instinct to capitalise on populist policy. The central player, the legal system, needs to find a better way to communicate its work to the public. Misinformation doesn’t correct itself; not to oppose penal populism will be enough for it to rot our criminal system from the outside in.

The importance of the work of the Royal Commission

Peter has been appearing at the Royal Commission into Child Abuse for the past few week.A few sentences is not enough to communicate the full horror of Ken McIlwain’s experience, so instead we will give a mechanical retelling of his story. As a cadet in the Australian Defence Force Ken was sexually assaulted, repeatedly, by two senior members. When he approached medical officers, they brushed him off and gave him valium for anxiety. As the assaults continued, he attempted suicide by overdosing on the valium. He was taken to hospital. While there, his parents visited him, and Ken told his father about the assaults. His father beat him and called him a liar. To this day, he compulsively collects the brand of soap that he used to wash himself after each rape.

The Royal Commission into Institutional Responses to Child Sexual Abuse was established to investigate exactly how our institutions failed to protect children. The Commission needs to hear the stories – in their devastating entirety, rather than in the sanitized form above – so that it can make recommendations of how best to prevent this abuse from recurring. It is vital work.

The role of lawyers in this process is to facilitate the gathering and sharing of information. O’Brien Solicitors appeared at the Royal Commission when it was investigating child abuse in Ballarat, and is appearing now during the investigations into the ADF. Please, please watch the story below, and take note of Ken McIlwain’s appeal: if you, or someone you know, has been the victim of abuse, they will be supported to speak out.

Lifeline: 13 11 14 or www.lifeline.org.au

Beyond Blue: 1300 22 4636 or www.beyondblue.org.au

Criminal Justice During Elections

Elections and Criminal Justice pic

The best way to talk about justice during an election is not at all. The event that prompts me to write this is Trump’s atrocious attack on Judge Curiel in the United States, but the lesson is a universal one. Politics and justice are the toothpaste and orange juice; they shouldn’t be mixed.

The criminal justice system (in New South Wales, at least) is a highly artificial, regulated system. As such, it is possible – simple, even – to study its metrics and predict the outcomes that it will produce. For example, the relationships between recidivism and a lack of post-release options can be easily measured, and has been. The point is that because the criminal justice system is one that can be scientifically studied, it is a system where it is possible to discover best practices.

Due to research by BOCSAR and the various Law Reform Commissions, as well as comparisons with overseas systems, we already roughly know what these best practices are. Regulation is more effective than criminalisation; harsh punitive sentences isolate offenders from society, which propels them back into crime; rehabilitation lowers recidivism rates; and above all, that the best front line against crime is not more police, but more teachers and better education.

All of which is easy to say, but near-impossible to sell. Elections are adversarial affairs. Empathy and intelligence don’t thrive in contexts of disagreement, and it’s not at all advantageous for candidates to agree with each other on the best-practices model. Politicians don’t respect nuance and complexity at the best of times, and an election campaign is not the best of times.

I should qualify these remarks with the fact that criminal justice in Australia is predominantly a state affair, and so far hasn’t featured in the current federal campaign (fingers crossed it stays that way). The next NSW state election will be held in 2019 – between now and then there is ample opportunity to chart a considered new direction for criminal justice. All that needs to be done is to sell it to the electorate before the auction begins.