The Disabling Effects of Youth Justice and Penality
Introduction
In Chapter 1, we briefly reviewed the overrepresentation of children and young people with mental health disorders' and/or cognitive/neuro-disabilities2 in youth justice systems in Australia and in England and Wales.3 We aim to explore such overrepresentation in greater detail here, together with the ways in which mental health disorders and/or cognitive/neuro-disabilities intersect with other dimensions of structural disadvantage to produce, and compound, a range of (often unmet) complex support needs4 for identifiable groups of children and young people.
We open the chapter by mapping the social demography of youth justice and penality - with specific emphasis on children and young people with mental health disorders, cognitive disabilities/neuro-disabilities and/or complex support needs - and setting out our theoretical framework. We conceptualise the disproportionate criminalisation of such children and young people principally by drawing upon, and applying, what we have previously termed ‘critical disability criminology’ (Baldry et al. 2018), a theoretical orientation that shifts the analytical focus from individualised constructions of impairment to the systemic disabling effects of youth justice and related institutional processes.
We centre our analytical gaze on the systemic injustices that derive from, and are compounded by, the interactions and intersections within and between different institutional processes; in particular education, public care and youth justice. We then turn our attention to more specific dimensions of youth justice and penality including policing, courts, bail adjudications and custodial detention, in order to illuminate and elaborate the operationalisation of disabling effects. Finally, and in drawing towards a conclusion, we argue that the systems through which children and young people with mental health disorders, cognitive/ neuro-disabilities and/or complex support needs are processed in Australia and in England and Wales are fundamentally broken.
Mapping the social demography and conceptualising the disabling effects of youth justice and penality
We begin by mapping some of the key social demographics of children and young people who typically (over) populate youth justice systems in Australia and in England and Wales. In the previous chapter we analysed the overrepresentation of Aboriginal and Torres Strait Islander children and black (particularly African Caribbean) and minority ethnic young people in youth justice systems in Australia and in England and Wales, respectively. Here we are especially interested in the disproportionate criminalisation of children and young people with mental health disorders and/or cognitive/neuro-disabilities, including the means by which class-based and racialised injustices - often accentuated by other indicators of social disadvantage (for example, exclusion from education and engagement with social welfare and public care systems) - intersect with ‘disability’. Indeed -and as discussed throughout the book - while there are differences and important points of temporal and spatial divergence between youth justice policy and practice within and across our selected jurisdictions, there are also consistent similarities and persistent convergent patterns regarding the social demographics of the respective youth justice populations. Moreover, during periods - such as the present time - when the numbers of children and young people engaged with youth justice systems are diminishing (at both the front-end and the back-end), the overrepresentation of the most acutely disadvantaged, racialised and structurally vulnerable children and young people (including those with mental health disorders and/or cognitive/neuro-disabilities) becomes even more conspicuous. To put it another way, at times of relative penal parsimony there is mounting evidence that youth justice and penality is increasingly reserved for managing, regulating, controlling and ultimately punishing the very children and young people who are in greatest need.
Interestingly, although such patterns of overrepresentation are increasingly acknowledged there is a paucity of reliable comprehensive and longitudinal data on rates of mental health disorders, cognitive/neuro-disabilities and/or complex support needs experienced by children and young people in our selected youth justice systems. By combining a relatively disparate corpus of secondary data with our primary interview data, however, a comparative picture of (often unmet) complex support needs emerges across the jurisdictions.
A developing body of research in Australia and in England and Wales reveals that children and young people engaged with youth justice systems (especially those held in penal detention) have significantly higher rates of mental health disorders3, cognitive/neuro-disabilities and/or complex support needs when compared with general youth populations. The same children and young people are also likely to experience co-morbidity - that is co-occurring mental health disorders and/or cognitive/neuro-disabilities - not infrequently combined with drug and/or alcohol misuse/reliance (see, for example, Harrington and Bailey 2005; Chitsabesan et al. 2006; Bryan et al. 2007; Haysom et al. 2014; NSW Health and NSW Juvenile Justice 2016; Baldry 2017; Department for Education 2017; Justice Health and Forensic Mental Health Network and Juvenile Justice NSW 2017; Youth Justice Board and the Ministry of Justice 2017; Baldry et al. 2018; Baldry and Cunneen 2019; HM Inspectorate of Prisons 2019). As one Magistrate put it:
You name every problem and usually they’ll tick at least one of those boxes, whether its physical health, mental health, learning problem... [or] all of them. (NSW, Children’s Court Magistrate)
Indeed, many interviewees referred to the prevalence of mental health disorders, cognitive/neuro-disabilities and/or complex support needs within youth justice populations. According to one interviewee, for example, most young people who come through the system have ‘a mild issue or impairment or disability’ (QLD, Juvenile/Youth Justice Manager), whilst another reflected that ‘the number of people we see with a mental handicap [sic], or mental disabilities of some level worries me’ (E&W, Youth Court Magistrate).
A corresponding literature reveals a higher-than-average range of associated impairments among children and young people engaged with youth justice systems including speech, language and communication difficulties (Anderson et al. 2016; Snow et al. 2016; Hughes et al. 2017); attention deficit hyperactivity disorder (ADHD) (Young et al. 2015); autism spectrum disorders (Hughes et al. 2012); foetal alcohol spectrum disorders (FASD) (Education and Health Standing Committee 2012; Hughes et al. 2016) and acquired/traumatic brain injury (Farrer et al. 2013; Hughes et al. 2015; Clasby et al. 2019). Moreover, the intersecting nature of some of these conditions create complex support needs. For example, evidence from both Australia and England and Wales suggests that children and young people with cognitive/neuro-disabilities are more likely than others to develop mental health disorders and to have additional developmental disorders such as autism spectrum disorders and attention deficit hyperactivity disorder (ADHD) (Emerson 2003; Emerson and Hatton 2007; Hughes et al. 2012; Baldry et al. 2015). Similarly, children and young people who have an acquired brain injury are also more likely to experience psychological distress; be diagnosed with mental health disorders; express associated behavioural problems; be victims of bullying and/or to engage in drug and alcohol misuse (Kenny et al. 2007; Williams et al. 2010; Moore et al. 2014; Vaughn et al. 2014).
Furthermore, higher rates of other health-related concerns including otitis media - resulting in hearing impairment - also comprise important reference points in conceptualising disproportionate criminalisation. Evidence from Australia, for example, suggests that the behaviour of many Aboriginal and Torres
Strait Islander people in penal detention is misinterpreted - as non-compliance, rudeness, defiance or indifference - owing to the fact that their hearing and language impairments are often undiagnosed (Vanderpoll and Howard 2012; Howard 2016; Snow et al. 2016). As one of our interviewees put it:
Whether it’s intellectual disability, cognitive impairment or whether it’s a very severe social disability, everything from the autism spectrum to... FASD, and then all the other aspects in between. It’s very apparent to you as a magistrate how many people struggle from these things. (WA, Children’s Court Magistrate)
The specific attention that the Children’s Court Magistrate draws to FASD echoes a broader and growing concern, especially in Australia, regarding high rates of FASD amongst young people engaged in the youth justice system (Hughes et al. 2016). While this is by no means an issue specific to Aboriginal and Torres Strait Islander children - with evidence also suggesting high rates amongst non-Indigenous young people - the then Chief Justice of Western Australia, Wayne Martin, stated:
The overrepresentation of Aboriginal people in the criminal justice system of this State is probably the single biggest issue confronting that system. Tragically, foetal alcohol spectrum disorder is becoming an increasingly significant component for many interrelated issues that produce that overrepresentation.
(Education and Health Standing Committee 2012: 1)
There is no reliable diagnostic instrument for FASD in England and Wales and although a diagnostic tool has recently been introduced in Australia6 there is still no nationally agreed method of assessment across all Australian criminal/ youth justice agencies. As a result, figures on the precise prevalence of FASD within youth justice populations are either unavailable or unreliable, and as such, it has been referred to as the ‘invisible disability’ (Standing Committee on Social Policy and Legal Affairs 2012). Notwithstanding this, it is widely and increasingly hypothesised that children and young people with FASD are significantly overrepresented within youth justice systems in Australia (and elsewhere) (Parkinson and Australian National Council on Drugs 2012; Mutch et al. 2013; McLean 2013) and emerging evidence appears to substantiate this (Hamilton et al. 2018; Flannigan et al. 2018). Research conducted by Bower et al. (2018) in youth detention in WA reported that over one-third (36 per cent) of the 99 children (74 per cent of whom were Aboriginal) who participated in their study have a FASD diagnosis and research from Canada has found that young people with FASD are 19 times more likely to be in prison than those without FASD (Popova et al. 2011).
By mapping the social demography of youth justice and penality in this way, it becomes increasingly apparent that children and young people with mental health disorders, cognitive/neuro-disabilities and/or complex support needs are significantly overrepresented. This raises the question as to how such overrepresentation is best conceptualised and we draw upon ‘critical disability criminology’ to theorise and understand this phenomenon; an analytical orientation that focuses principally on the disproportionately criminalising and disabling effects of a range of structural and systemic processes - including youth justice intervention - as distinct from individualised constructions of pathology and/ or impairment. In other words, we are aiming to build on, integrate and extend conceptual frameworks that have developed within critical disability studies and critical criminology (Baldry and Dowse 2013; Dowse et al. 2014; Baldry et al. 2015; Baldry 2017; Baldry et al. 2018). On the one hand, this situates our theoretical position unequivocally within the ‘social model of disability’ (Oliver 1996), which makes a crucial distinction between ‘impairment’ as a characteristic of an individual’s body or mind, and ‘disability’ as a socially constructed systemic phenomenon that creates obstructive arrangements and compounds discriminatory barriers in ways that disable people. On the other hand, we draw on critical criminological conceptions that foreground the contexts of power and the intersectional, institutional and social-structural relations that give rise to systemic injustices and, in turn, to grossly uneven patterns of criminalisation. By combining and integrating such theoretical positions, critical disability criminology aims to correct the absences that derive from the conventional tendencies of critical disability studies to overlook criminal/youth justice and for critical criminological analyses to neglect the criminalisation of disability. As Dowse et al. (2009: 31) have identified:
There is a pressing need... to move beyond traditional theoretical approaches which examine social support systems, processes of criminal justice and the presence of impairment as separate issues and towards an integrated conceptualisation of the overrepresentation of people with MHD&CD [mental health disorders and cognitive disabilities] in the criminal justice system as a complex human, social and political phenomenon.
We aim, therefore, to better comprehend the disabling effects of youth justice; the dynamic interactions between individuals, institutions and systems that lead to disadvantaged and marginalised children and young people (with mental health disorders, cognitive/neuro-disabilities and/or related complex needs) being disproportionately funnelled into, around, and often back into, youth justice systems (Baldry 2014; Baldry et al. 2018). Of course, any analysis of this phenomenon must also take account of the ways in which it intersects with other dimensions of structural disadvantage and, in turn, the manner in which children and young people with mental health disorders, cognitive/neuro-disabilities and/or related complex needs are similarly overrepresented within other disadvantaged populations - including children suspended and/or excluded from school and young people in public care7 - who are also prone to disproportionately high levels of criminalisation and youth justice intervention.
