Abstract
While there is no lack of literature exploring how the youth justice system should deal with children who come into conflict with the law, very few specifically focus on discussing the appropriate responses towards children who commit serious crimes such as homicide, serious violence offences and rape. Intending to address this gap in the literature, this edited book brings together experts from different jurisdictions to explore the principles, evidence and global practice relating to children who commit serious offences.
This book approaches the issues with an explicit focus on children’s rights. As the editors make clear in the introduction, the book’s theoretical framework is anchored on the UN Convention on the Rights of the Child (‘CRC’) (1989), with the contributors asked to reflect on how the justice systems could better comply with international standards including the CRC. The main contribution of the book is thus to provide insight into how different jurisdictions could promote more ‘child rights-compliant responses’ (p. 6) towards children who commit serious offences. For example, concerns are expressed about the undesirable practice of transferring children out of youth justice systems based on the seriousness of offences in jurisdictions such as Australia, Ireland and India. Disparity in sentencing, which disproportionately impacts vulnerable children, is also found as a serious barrier to children’s rights that requires attention.
Part I (Chapters 2 and 3) of the book explores the relevant children’s rights principles. In Chapter 2, Kilkelly and Liefaard introduce the principles as stated in the CRC, including that diversion measures should be promoted and that children should only be imprisoned as a last resort and for the shortest appropriate time. It is suggested that children’s rights should be prioritised regardless of the criminal offences that children have committed. In Chapter 3, Fornes explores how the traditional sentencing principles of ‘rehabilitation, retributivism, deterrence, and incapacitation’ (p. 27) should be balanced in sentencing children. It is concluded that rehabilitation and proportionality should be the central principles in sentencing children.
It is definitely agreeable that a more lenient approach should apply to children who have offended, as required by the CRC. However, the CRC Committee’s (2019) General Comment No.24 (para. 76) also recognises that apart from accounting for the child’s best interests and personal circumstances, responses to child offending could also be proportionate to ‘the circumstances and gravity of the offence . . . including considerations of the need for public safety and sanctions’. On the one hand, unduly harsh punishment driven by penal populism must be disapproved and children’s best interests must be taken into account. On the other hand, the need for public protection and sanctions at a level that commensurate with the seriousness of criminal offences and the (albeit lesser) culpability of children who commit serious offences also appear to be legitimate sentencing considerations in line with the CRC. To better highlight the challenges in responding specifically to child serious offending, perhaps the book could have placed more focus on discussing whether and how the competing tensions could be balanced.
Part II (Chapters 4–7) of the book analyses the empirical evidence relating to children who commit serious offences. Through reviewing academic literature, in Chapter 4, Reil and Lambie demonstrate that most children who offend have experienced maltreatment or traumatic events in childhood. In Chapter 5, Schmidt and Skelton show that various developmental factors render children less culpable and more receptive to rehabilitative change. In Chapter 6, Asscher and Creemers’ inquiry into Dutch official data shows conflicting results as to whether longer-term imprisonment increases or reduces recidivism of children who commit serious offences, presenting the need for further research. In Chapter 7, van den Brink, Forde, Burghout and Beljaars discuss the evidence that ‘extra-legal factors’ (p. 82) such as race and gender may unjustifiably affect sentencing outcomes.
Based on the evidence presented in the book, it is interesting to reflect on how the evidence that many child ‘offenders’ are also themselves ‘victims’ and that children are developmentally immature could translate into actual sentencing practices. As the practices of different jurisdictions vary, it would be valuable to look at the desirability of youth justice systems to provide a specific percentage of sentencing discount for children who commit serious offences, and whether there should be a cap for the maximum length that they could serve in prison. The book highlights that further empirical studies on the effectiveness of different youth sentencing approaches would be much welcome, as they may be helpful in reducing the recidivism of children who commit serious offences and eliminating unjustified sentencing disparity.
Part III (Chapters 8–16) provides global perspectives on how different youth justice systems deal with children who commit serious offences. This part of the book is particularly valuable in showing the huge divergence in the youth justice philosophies among different jurisdictions, partly owing to their unique historical and cultural background. For example, in Chapter 11, Sowatey and Pinkrah explain the indigenous judicial practice in Ghana, which usually does not incarcerate children who offend. As an illustration, among the Bimoba ethnic group, children who commit murder will be immediately sent away from the community to protect the their safety. Aiming to restore relationships and unite the community, a delegation from traditional leaders will facilitate discussion between the perpetrator’s and the victim’s family. The child ‘offender’ will then be given a new identity and will no longer be regarded as the same person. In sharp contrast, in Chapter 13, Abachi shows the shocking fact that in Iran, children who commit serious offences such as murder and rape might possibly be sentenced to ‘death penalty, amputation of limbs, and flogging’ (p. 165).
While the book has done a successful job of explaining the practices of different jurisdictions and what can be done to further advance children’s rights, my view is that more could be written to explore the competing tensions in dealing with children who commit serious offences. A few questions, perhaps from a relatively less lenient perspective, come to mind. Although the CRC Committee (2019) recognises that promoting indigenous justice systems will benefit indigenous children, is the practice of non-incarceration (e.g. in Ghana) adequate to promote children’s rehabilitation (and, perhaps more controversially, the objectives of public protection and sanctions as suggested by the CRC Committee’s (2019) General Comment) when they commit very serious offences such as murder? Or are the approaches in Northwestern Europe, South Africa and the United States (see Chapters 14–16) unduly harsh for imposing 10+ years’ imprisonment on children who commit serious crimes? Other questions, such as the justification and effectiveness of imposing life imprisonment as a last resort and the compatibility between respect for religious penal practice (as in the case of Iran) and protection of children’s rights, invite further reflections.
Perhaps for the reason that the harm caused by serious crimes such as murder is much graver than ‘ordinary’ crimes, policymakers and the courts ‘continue to pursue punitive responses’ (p. 212) in practice. This could be seen in England and Wales’ legislation, where despite an individualistic approach is recognised as the general youth sentencing principle, children who commit murder are still subjected to life imprisonment with a minimum term of 12 years’ imprisonment as the usual starting point (Sentencing Act 2020, Schedule 21). If there is any hope to promote a more child rights-compliant response globally, it might be valuable to address (and potentially offer counter-argument to) such ‘punitive’ voices, or offer empirical evidence on how the current approaches adopted by jurisdictions are failing. Indeed, the book makes valuable contributions on the principles and measures to better safeguard children’s rights in youth justice systems. One critique, however, might be that there is less discussion on the complexities of how these rights interact with political and legal actors’ (sometimes legitimate) policy or justice considerations in response to child serious offending, such as public protection and sanctions. That being said, the book is well-written, rich in content and has successfully laid the groundwork in the area of child serious offending for future research. The book has great value for academics and policymakers who wish to understand different jurisdictions’ policies and practices regarding children who committed serious offences, as well as the operation of their youth justice systems.