The inter-national and national levels of analysis

When we shift our analytical gaze from the global, supranational and transnational to the inter-national and national levels of analysis, two signifiers of differentiated youth penality become immediately apparent. First, significant cross-jurisdictional variability in the minimum age of criminal responsibility (the entry point at the ‘front end’ of youth justice systems). Second, substantial national divergences in rates of penal detention (at the ‘back end’ of the same systems).

The United Nations Global Study on Children Deprived of Liberty notes:

Age limits within criminal justice systems determine criminal responsibility, set minimum ages for detention, define access to certain services [and the] disciplinary sanctions children may face. Almost all countries have set a minimum age of criminal responsibility (MACK), indicating the lowest age at which children can be charged with a criminal offence and processed within the criminal justice system [but] in this regard, States maintain a wide range of minimum ages.

(United Nations 2019: 278, emphasis added)

Indeed, a review of the precise point in the lifecourse when selected nation states impute criminal responsibility illustrates the ‘wide range of minimum ages’: for example, in Bahrain, Lebanon, Myanmar, Nigeria and Singapore the MACK is seven; in Botswana, Indonesia, Iran, the Solomon Islands and Zambia it is eight; in Bangladesh, Belize, Ethiopia, Iraq and Oman it is nine; in Australia, England and Wales, Pakistan, South Africa and Thailand it is ten; in Barbados and Japan it is 11; in Afghanistan, Brazil, Canada, Gambia and Turkey it is 12; in Algeria, Congo, France, Nicaragua and Uzbekistan it is 13; in Albania, Chile, Denmark, Mongolia and Rwanda it is 14; in Czech Republic, Iceland, Philippines, Poland and Sweden it is 15; and in Angola, Guinea-Bissau, Luxembourg, Mozambique and Timor-Leste it is 16 (United Nations 2019: 280).

Such inter-national variation at the ‘front end’ of youth justice systems inevitably gives rise to differentiated forms of justice, fluctuating patterns of criminalisation, contrasting youth justice populations (both by size and by demographic composition) and disparate penal practices between discrete national jurisdictions. Similar discordance also obtains at the ‘back end’ of the same systems where there is significant inter-national variability in national-level rates of child/youth imprisonment (United Nations 2019). Recognising such international and national difference - what Nelken (2017: 421) has termed ‘comparison by juxtaposition’ - helps us to further comprehend the limitations of global, supranational and transnational narratives.

In order to finesse comparative analysis and to offset the conceptual limitations of totalising - global - narratives, notable comparativists have sought to draw on inter-disciplinary scholarship. By building on the earlier work of Lash and Urry (1987; 1994) and Esping-Andersen (1990), for example, Cavadino, Dignan and Mair (2013: 80) contend that ‘it is possible to relate some important characteristics of a country’s political economy - and in particular its welfare system - to the severity of its penal practices’. Moreover, they establish a typology of political-economic formations and concomitant welfare regimes - ‘ne-oliberal’, ‘conservative corporatist’, ‘social democratic corporatist’ and ‘oriental corporatist’ - and argue that such regimes exhibit different rates ofimprisonment

(the ‘neoliberal’ being the most punitive and the ‘oriental corporatist’ being the least punitive). Lacey (2008; 2011) adopts a similar comparative approach and - by drawing on the ‘varieties of capitalism’ literature - she argues that nation states with ‘coordinated market economies’ tend to be less punitive than those with ‘liberal market economies’. Equally and more specifically, Winterdyk (2002) constructs a typological framework comprising what he terms ‘crime control’, ‘justice’, ‘modified justice’, ‘corporatist’, ‘welfare’ and ‘participatory’ regimes, in order to account for inter-national variations in youth justice practices. Refining the analysis in such ways, might take us closer to comprehending the finer-grained complexities of comparative youth justice and penality but, as Garland (2013: 492, emphasis added) observes:

... even these more sophisticated studies leave us with something of a black box... |t|hey point to structural biases and institutional dispositions but not to empirical processes and actors’ choices. At the end of the analysis, we still need to learn more about how social forces are translated into penal outcomes, not least because nations that are classed together in the same ‘variety of capitalism’ or ‘welfare regime’ category sometimes exhibit very different levels of punishment.

Indeed, if focusing on the inter-national and national levels of analysis goes some way towards ameliorating - if not completely correcting - the conceptual shortfalls of global sweeps, it does little by way of illuminating the translational processes that produce the ‘very different levels of punishment’ to which Garland refers. Moreover, the complex and differentiated nature of such processes not only create variable levels of punishment between nation states (whether or not they are bracketed within the same political-economic and/or welfare regime), but the same processes can just as readily produce similar variability within nation states - at intra-national, sub-national, regional and local levels (Goldson and Muncie 2006; Goldson 2019). In this way, Newburn et al. (2018: 569) contend:

political-institutional analyses of differences in penal trends have themselves focused too much on the nation state as the unit of analysis, and consequently underplay important ‘sub-state’ dynamics in the shaping of local variations in penal policy and practice.

To put it another way, just as the global, supranational and transnational narratives fail to take account of finer-grained inter-national differences, specificities and particularities, fixing the analytical gaze at the national level also risks concealing, or at least obfuscating, intra-national, sub-national, regional and/or local differences in the operationalisation of youth justice and penality (perhaps most evident in sentencing disparities). Once it is recognised, therefore, that variations within national borders may be as great, or even greater, than some differences

across and between them, then taking the national (let alone the global, supranational and/or transnational) as the principal unit of comparative analysis becomes questionable (Muncie 2005; Goldson and Muncie 2006; Muncie and Goldson 2006).

The intra-national, sub-national, regional and local levels of analysis

Comprehending the translational processes through which social forces, political-economic formations, youth justice statutes and national policies are ‘converted’ into specific penal outcomes and particular practices, comprise vital analytical components of the comparative project. Even highly centralised state agencies and national bodies are - at least in part - power-dependent on sub-national, regional and local bodies through which they aim to govern and with whom they need to negotiate (Hughes 2007; Goldson and Hughes 2010; Edwards 2016).

The significance of looking beyond an exclusively state-centred and/or national-level analysis of youth justice and penality, therefore, is not to deny the power that supranational/transnational bodies (including the United Nations), alongside national government agencies (including Government Ministries), bring to bear on the more localised manifestations of youth justice and penality, but rather to recognise the inter-relational and, ultimately, mutually dependent nature of power that underpins the translation, implementation and operationalisation of both supranational/transnational trends and national laws and policies at sub-national, regional and local levels.

Comprehending the significance of sub-national, regional and local contexts for the purposes of analysing comparative youth justice and penality, therefore, necessitates taking account of the political and professional agency of managers and practitioners, key individuals, the complex ‘partnerships’ that they coordinate and the operationalisation of professional discretion. As Christiaens (2015: 11) observes ‘no model [of youth justice] remains completely pure’ in its translation, implementation and practical application:

this is why it is important to grasp and understand the complexity of doing youth justice... dig[ging] into the way the police, social workers, magistrates and the courts are not only involved in youth justice practices, but also embody what youth justice, on a daily basis, does and is... [its] daily practices... although hierarchy, power and authority are clearly at play... justice practices cannot be understood as merely top down interventionism. Involved professionals but also non-professionals have their own interests and perspectives when engaging in the dynamics of youth justice procedures.

(Ibid: 12, original emphases)

Ultimately, it is only by adopting a sub-national, regional, local or ‘area studies’ (Nelken 2017: 428) approach, that we might understand how national youth justice laws and policies (not to mention supranational/transnational trends) are ‘visioned and reworked (or made to work) by those “on the ground’” (Muncie 2015: 383). Crucially important to such understanding are the complex and myriad ways in which inter-personal and inter-agency interactions, organisational processes and institutional practices operate; including how top-down national policies are necessarily mediated and filtered ‘from below’. It is by unravelling the complex dialectical relations and reciprocal exchanges between the global, supranational and transnational, the inter-national and national and the sub-national, regional and local levels - including both ‘top-down’ and ‘bottom-up’ translations - that we might conceptualise comparative youth justice and penality in such a way to avoid the analytical errors of what Edwards et al. (2013: 152) term ‘false universality’ and ‘false particularity’. We shall examine different forms of conceptualisation (theoretical and empirical) later, but first we turn our attention towards reviewing selected quantitative indicators of differentiated youth justice and penality at sub-national levels in Australia and in England and Wales.

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