The Conceptual and Empirical Co-ordinates of Comparative Youth Justice and Penality

Introduction

The extended and diversifying reach of modern criminal justice systems and, in particular, patterns of prison expansionism have comprised defining features of many western nation-states since the 1980s, not least so, in Australia and in England and Wales. Yet research into this phenomenon has, until relatively recently, privileged adults over children and young people.¹ We set out in this book to examine critically criminal justice and penality with specific regard to the punishment of children and young people, and to consider how penal cultures have changed, and are changing, with respect to them. The term ‘penality’ is taken to refer to the whole system of punishment, ranging from its philosophies, laws and methods, to its material effects and the wider social, cultural and political environments in which it is located. Analytically, we have engaged with the concept of penality to locate its constituent phenomena in their contemporary contexts; to encompass the broad complex of contemporary theories, laws, policies and practices that, taken together, frame youth justice, alongside the wider system of meanings, beliefs, ideas and symbols through which people understand and make sense of it. We seek to explore the specificities of penal cultures as they apply to children and young people in conflict with the law and, in particular, we aim to analyse both continuities and changes in the evolution and development of key legal, political, policy and social dimensions of youth justice and penality, from the early 1980s to the present.

Inter- and intra-jurisdictional convergence and divergence

We initially imagined the comparative foundations of this book as a means of making sense of (what appeared to be) some strangely anomalous aspects of youth justice and penality. At the time when we first conceptualised the project (late 2010), youth penal detention rates in Australia were relatively stable (Australian Institute of Health and Welfare (AIHW) 2011a: 120) and, over the longer term, the rates of juvenile detention were lower in 2010 than they had been in 1981 when national data was first available (Richards and Lyneham 2009). This pattern of stability, if not decline, stood in stark contrast to the temporal patterning of adult imprisonment in Australia, where rates had been growing dramatically and consistently over several decades (Cunneen et al. 2013). Moreover, the child and youth imprisonment trends in Australia were strikingly different to what was occurring over broadly the same period in England and Wales, where penal custody for children and young people was being used more frequently than in most other industrialised democratic countries in the world (Youth Justice Board 2004). Indeed, the number of child prisoners in England and Wales had more than doubled between 1993 and 2008, and the jurisdiction was being described as ‘one of the most punitive youth justice sites in the western world’ (Goldson 2010: 170). Given a common legal heritage, coupled with a range of contemporary youth justice policy transfers between Australia and England and Wales, we might, on the face of it, have expected patterns of youth penality in the respective jurisdictions to converge and to follow broadly similar trajectories. Instead, what we observed were conspicuous differences and divergences that could be seen across the penal continua; from initial criminalisation through to penal confinement.

Our initial reading of the situation in Australia during this period, therefore, was that - despite the uneven application of diversionary processes (between States and Territories (see Chapters 2 and 7) and especially between Aboriginal and Torres Strait Islander and non-Indigenous children (see Chapter 5)) - the principles ofjuvenile diversion were holding firm; child and youth imprisonment had declined steadily over the 1980s and 1990s and, during the first decade of the 21st century, only relatively modest increases were apparent. Conversely, our reading of circumstances in England and Wales during the corresponding period was that - despite essentially stable patterns of recorded youth crime - the frontend of the system was witness to ‘multiplying and increasingly interventionist powers and processes’ that gave rise to substantial net-widening, whilst the back-end of the same system evidenced ‘significant growth and diversification of intensive forms of surveillance and custodial responses’ that inevitably produced considerable penal expansion (Goldson and Muncie 2006a: 98).

The situation took a curious turn in the years that followed, however. Between May 2009 and May 2019, for example, the child and youth prison population in England and Wales dropped dramatically from 3,006 to 830 (HM Prison and Probation Service 2019). In contrast, over the 4-year period 2009-2013, the youth prison population in Australia remained relatively stable (AIHW 2013) and despite signs of some modest fluctuation, there has been no consistent trend of either penal contraction or penal expansion over the most recent longer term (AIHW 2013, 2014, 2015a, 2016, 2017a, 2018a, 2019). The overall effect of these comparative trends and the intrinsic anomalies within and between Australia and England and Wales, therefore, added new levels of complexity to the comparative project. It also reconfirmed the dynamic, diverse and differentiated nature of juvenile justice², and its fluid and contested forms (Goldson and Muncie 2006a). More fundamentally, it reinforced the criminological insight that there is only a limited relationship between the prevalence and nature of crime and the type and intensity of punishment, thereby underlining the value of a comparative approach to understanding the myriad drivers, parameters and possibilities of youth justice and penality.

From the outset we aimed to compare, selectively, four Australian states -New South Wales (NSW), Victoria (VIC), Western Australia (WA) and Queensland (QLD) - with England and Wales (E&W). The four Australian states were selected on the basis that NSW locks up more children and young people than the other states and has the largest youth justice sector; Western Australia has the highest rate of Aboriginal and Torres Strait Islander child and young prisoners; Victoria has the lowest rate of child and youth penal detention among the larger jurisdictions and Queensland is a ‘middle range’ jurisdiction. These are also the four most populous states in Australia, accounting for more than 85 per cent of the nation’s population. England and Wales was selected from the three United Kingdom (UK) jurisdictions (England and Wales, Northern Ireland and Scotland), because it is the largest by some considerable distance.³