Governance and injustice

Youth justice and penality comprises an organisational and institutional bedrock for the governance of identifiable groups of children, normally drawn from the most damaged, distressed and disadvantaged families, neighbourhoods and communities in their respective jurisdictions. Not all, and not only, such young people ‘offend’ but, wherever and whenever we might care to look, the children who are typically found in police stations, court houses, community-based offence-focused programmes and custodial institutions — the ‘usual suspects’ - are the very young people who are systematically marginalised, excluded, isolated and violated in the infrastructure of everyday life. Moreover, children swept up by youth justice systems are not only adjudicated to have offended the criminal law, they are often also deemed to offend adult sensibilities. But, of course, the processes of selecting, criminalising and punishing such young people - the operational mechanisms of governance - are not evenly applied. Indeed, youth ‘justice’ and penality is not only framed within wider contexts of social injustice it also implicated, as we have argued, in producing, reproducing and compounding such injustice.

We have reviewed the impacts of multiple forms of injustice that bear down on particular groups of children and young people including: Aboriginal and Torres Strait Islander and black and minority ethnic children and young people; girls and young women; children and young people known to social welfare and child protection agencies; children and young people with mental health disorders and/or cognitive/neuro-disabilities and children and young people living at the acute ends of social and economic adversity and exclusion. An understanding of the significance of social class is pivotal (White and Cunneen 2015), and there is increasing awareness of the ways in which children’s sexuality can also shape their experience of youth justice and penality (Ball et al. 2016). Indeed, such structural relations overlap and intersect in cumulative and compounding ways that ultimately amount to the criminalisation of social need. Further, we have interrogated the manner in which the very children and young people in greatest need of the protections and benefits conferred by international human rights standards are often those whose rights are most severely compromised, if not flagrantly violated. The injustices visited upon two particular groupings of children and young people have been examined especially closely: first, Aboriginal and Torres Strait Islander children (in Australia) and black and minority ethnic young people (in England and Wales) who, taken together, are exposed to deeply embedded and arguably worsening forms of racialisation and racism; second, children and young people with mental health disorders and/or cognitive/ neuro-disabilities, who have conventionally been largely overlooked in youth justice research.

Notwithstanding their distinctive histories framed by specific colonial and postcolonial contexts, the racialised over-representation of Aboriginal and Torres Strait Islander children and black and minority ethnic young people is a conspicuous, persistent and, as stated above, arguably worsening feature of youth justice systems in Australia and in England and Wales. The experiences of settler colonialism in Australia included the brutal dispossession of Aboriginal and Torres Strait Islander peoples and the youth justice system is implicated - both historically and contemporaneously - in maintaining modes of colonial ordering that continue to subjugate Aboriginal and Torres Strait Islander children and young people. In England and Wales, the structural contexts that give rise to the over-representation of black and minority ethnic children and young people in contemporary youth justice systems ultimately derive from various historical conditions, including the long-term effects of slavery and the deeply problematic hostile responses to many immigrants from former colonies in Africa, Asia and the Caribbean. If racialised over-representation is principally expressed through the strikingly disproportionate criminalisation and imprisonment of Aboriginal and Torres Strait Islander children in Australia, it is also the case that young people from Arabic, African and Pacific Islander backgrounds are also significantly over-represented in the realms of youth justice and penality. Similarly, in England and Wales where it is mainly African-Caribbean children who are persistently and consistently over-represented throughout the youth justice system, other identifiable minority ethnic groups are also disproportionately criminalised and punished. And in both Australia and in England and Wales, young people from Muslim communities are increasingly being targeted and drawn into youth justice systems.

Disproportionate criminalisation ensues from a range of police powers and policing practices that are differentially applied through racialised contexts, including ‘move-on’, ‘stop and search’, arrest and ultimately detention in police cells. Further, the proliferation of hybrid civil/criminal interventions - for example, curfews, zonal banning/exclusion orders, anti-social behaviour orders and anti-consorting laws - together with other civil injunctions, routinely produce disproportionately negative outcomes for racialised children and young people. Moreover, at the ‘back-end’ of youth justice systems, Aboriginal and

Torres Strait Islander children and black and minority ethnic young people are persistently and substantially over-represented in penal custody.

Indeed, it is at the sharpest end of youth justice and penality - custodial detention - where racialised injustice is arguably at its most virulent. In Australia, it is at this juncture where our previous discussion regarding the significance of sub-national contexts becomes especially pertinent. Aboriginal and Torres Strait Islander children and young people are over-represented in penal detention in every State and Territory but in some discrete States and Territories such disproportionality assumes exceptionally striking forms. In Queensland, for example, Aboriginal and Torres Strait Islander children are locked-up at 32 times the rate of non-Indigenous young people, in South Australia 36 times and in Western Australia 38 times. Furthermore, at a sub-State and/or sub-Territory level the child’s precise domiciliary/familial location is critical. Aboriginal and Torres Strait Islander children are significantly more likely than non-Indigenous young people to live in ‘outer regional’, ‘remote’ or ‘very remote’ areas where the prospects of being remanded and/or sentenced to penal detention are especially high.

In England and Wales, the general downsizing of child-prisoner populations that have been witnessed in the post-2008 period have not applied evenly. For example, between April 2015 and February 2020, the number of child prisoners described as ‘White’ reduced by 35 per cent (from 642 to 418), whereas the corresponding reduction for young prisoners described as ‘BAME (Asian, Black, Mixed and Other)’ amounted to less than 5 per cent (441-419). To put this another way, in April 2015 the proportion of the total child prisoner population described as ‘BAME (Asian, Black, Mixed and Other)’ stood at 41 per cent, but by February 2020 it had risen to just over 50 per cent (Her Majesty’s Prison and Probation Service 2002b). In sum, overall reductions in child-prisoner numbers -otherwise welcome - have paradoxically served to compound and intensify the disproportionate presence of black and minority ethnic children and young people in penal institutions.

We principally conceptualise the injustices that children and young people with mental health disorders and/or cognitive/neuro-disabilities experience and endure by reference to critical disability criminology, a theoretical orientation that shifts the analytical focus from individualised constructions of impairment to the systemic disabling effects of youth justice and penality. In particular, our analysis of policing, court processes, bail adjudications and custodial detention, illuminates and elaborates the operationalisation of such disabling effects.

More broadly, we argue that systemic injustices derive from, and are compounded by, the interactions and intersections of youth justice with other institutional processes, especially education and public care. Ultimately, we conclude that the systems through which children and young people with mental health disorders and/or cognitive/neuro-disabilities are processed in Australia and in England and Wales are fundamentally broken.

Moreover, and not unlike our analysis of racialisation, there is some evidence that the over-representation of children with mental health disorders and/ or cognitive/neuro-disabilities (including young people with complex support needs) is worsening. The contemporary development and application of diversionary and decarcerative measures, that have produced a welcome reduction in the size of youth justice populations, have not benefitted children and young people with mental health disorders and/or cognitive/neuro-disabilities in the same way as others. It follows that as youth justice populations shrink, the proportion of such young people within them expands, not dissimilar to Aboriginal and Torres Strait Islander children and black and minority ethnic young people. Accordingly, the constituencies of children and young people engaged within the realms of youth justice and penality in Australia and in England and Wales become more skewed, the disproportionate presence of those with the greatest needs - an increasingly residualised cohort - is increasingly conspicuous and the modes of governance to which they are exposed are more deeply pitted with injustice.

Representations and effects

In exploring public representations of ‘young offenders’, together with the effects that such representations can manufacture and impose, we have principally aimed to move beyond some of the more settled criminological and sociological readings - that are conventionally underpinned by related notions of demoni-sation, folk-devilling, moral panic, crime/deviance amplification, politicisation and reactionary populism - and to reflect upon, and consider, other possibilities. This is not to argue that such readings are redundant. In fact, we recognise the abiding presence of what we term law and order common sense and the imag-inaries that underpin it: constructions of ‘soaring crime rates’, ‘it’s worse than ever’ narratives; ‘soft on crime’ complaints; demands for more police and greater police powers; calls for tougher penalties and harsher sentences; an insistence that victims should be able to obtain redress, if not revenge, through the courts; all of which are played, and replayed, through familiar ‘the trouble with kids today’ narratives (Muncie 1984). We also understand the ways in which apocalyptic portrayals of‘out of control’ children and young people - variously described as ‘hooligans’, ‘louts’, ‘thugs’, ‘yobs’, ‘chavs’, ‘hoodies’, ‘ferals’, ‘gangsters’ and even ‘oxygen thieves’ - can produce political reactions and knee-jerk policy and practice responses.

But in keeping with our interest in the temporal and spatial dimensions of comparative research, our core contention is that public representations of‘young offenders’, together with their purchase and effects (on policy and practice), are contingent. By examining a series of selected case studies, we have shown that in some instances and at specific junctures distinct cases produce negative reactions and policy responses (‘regressive effects’). At other times and places, the impacts of very similar cases are rendered more-or-less impotent (‘neutral effects’), whilst on other occasions particular forms of public representation draw attention to the treatment of ‘young offenders’ in ways that can produce positive reforms

(‘progressive effects’). In this way, an awareness of the political conditions within which public representations are framed is vital to understanding the differential effects that they might impose. Fundamentally, we argue that there is no single paradigmatic reading or narrative framing in relation to the impacts and effects of public representations in the youth justice and penality sphere. Rather, what we deduce from different forms of public representation and from the varied effects to which they give rise, is a range of conflicting, varied and contradictory narrative framings, approaches and themes that challenge and inconvenience uni-dimensional accounts. We also acknowledge the rapid proliferation, increasing diversity and extended reach of social media platforms that are serving to introduce a spectrum of new dynamics into the field of public representations in ways previously unknown. At the present time, it is not conclusively apparent where such interventions will lead and precisely what effects they will impose but, as time unfolds, this too will require further research, rigorous analysis and nuanced forms of theorisation.

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