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Q&A with Shelley Casey, UNICEF Child Protection Specialist: New Tactics for Juvenile Offenders

© UNICEF/Indonesia

Challenging the traditional lock-them-up tactic for punishing juvenile offenders

Throughout the region, the perceived rise in the number of children committing criminal offences has sharply raised public concern. Although most of these children commit only minor, petty crimes, the tendency is to lock them up – as a punishment and as an education or rehabilitation measure.

However, global studies increasingly emphasize that deprivation of liberty is rarely an effective way to promote a child’s rehabilitation and prevent repeat offenders.

Consultations conducted in 2005 as part of the UN Secretary-General’s Global Study on Violence Against Children revealed that children in the region are subject to illegal arrests, beatings, intimidation and forced confessions at the hands of police and other officials. Too often, these children find themselves detained together with adults, in over-crowded and unhygienic police holding cells and detention centres, where they are vulnerable to violence and abuse. Many directors and staff of custodial facilities believe that most of the children in those places should not be there and agree that conditions of detention are inappropriate. By international standards, children must, at minimum, be kept in a separate cell from adult detainees. But with limited resources and prison overcrowding, this is often not feasible.

This situation is an unacceptable violation of children’s basic rights.

Shelley Casey, Child Protection Specialist for the East Asia and Pacific region, discusses what UNICEF is doing to address the problem by promoting diversion and alternatives to detention for children in conflict with the law.

Q: What has been the UNICEF response?

A: UNICEF’s main entry point for protecting the rights of children in conflict with the law has been tackling over-reliance on detention and formal criminal justice responses. We do this by promoting diversion and alternatives to detention, particularly for children who commit minor and non-violent crimes.

By ‘diversion’ I mean promoting alternative ways of responding to juvenile offending without processing the child through the formal criminal justice system. Ideally, children should be diverted away from the formal system by the police at the first point of contact, though it can also happen later by discretion of prosecutors and judges. But diversion is promoted for use only where the child admits responsibility for the crime and agrees to the informal resolution; children who maintain their innocence have a right to have the issue decided through a full and fair trial.

Diversion generally involves referring the child to a government or NGO diversion programme or to some form of community-based decision-making process (mediation or family group conferencing). Depending on the particular case, a diversion outcome might involve a formal apology to the victim, making amends through restitution (in cash or in kind), performance of some community service work, participation in a life skills programme or being paired with a peer mentor or adult role model.

The advantage of diversion is that it gives children a second chance to re-assess their behaviour – without acquiring a criminal record. It imposes immediate consequences for offending behaviour and allows children to take responsibility for their actions by making good on the harm caused to the victim or the community. Also, by reducing the number of children being processed through the formal system, diversion lessens the caseloads of police, prosecutors, courts and prisons, allowing resources to be better spent on more serious cases. 

For children who commit a serious crime and are processed through the formal criminal justice system, UNICEF also promotes alternatives to keeping them in police holding cells, detention centres and prisons. This means looking at more creative ways to monitor and supervise children so they don’t have to be held in a detention centre pending a trial. It also means developing a broader range of community-based sentencing options as an alternative to prison sentences. This might include supervision orders; community service work; referral to life skills, education or vocational training programmes; or a period under the supervision and support of a probation officer.

See an example of juvenile justice reform in Papua New Guinea.


Q: What is restorative justice and how does it relate to diversion?

A: Many of the diversion programmes that UNICEF supports involve a ‘restorative justice’ component. Community-based mediation and family group conferencing are generally considered ‘restorative’ processes. This is one – but not the only – way that children can be diverted away from the formal criminal justice system.

Restorative justice is a way of viewing crime that focuses on repairing harm rather than simply punishing offenders. Crimes are viewed as acts against a person or community, not against the state. So emphasis is put on community involvement in responding to and reducing crime rather than leaving the problem of crime to the government alone. Restorative processes generally bring together the victim, offender, family members and community representatives to discuss the offence and decide collectively what should be done to restore relationships and repair the harm caused. This process of being confronted by the victim and hearing first hand about the consequences of their actions can be a very powerful experience for children. 

Q: Where is that approach being used in this region?

A: Many countries in the region have started to introduce restorative justice approaches, particularly community mediation and family group conferencing.  For example, significant progress has been made in Indonesia, Lao PDR, Papua New Guinea, Philippines, Thailand and some Pacific Island countries. In general, restorative approaches tend to work better in countries with a history of community dispute resolution and where the legal systems are flexible enough to allow informal resolution of minor crimes.  

See an example of a community and family group conferencing from Thailand.


 Q: What crimes does diversion address?

A: Diversion is generally considered the primary option for first-time offenders and for children who commit minor or non-violent offences – which is the bulk of juvenile offending in the region. This includes all property-related crimes, such as theft and vandalism, as well as public disorder and, in some cases, minor assaults.  Even children committing offences for the second or third time should be considered for diversion, particularly if the crime is not too serious.

The objective is to catch these children early on in a potentially evolving criminal career and deal with them in a more constructive way to stop any pattern of offending behaviour. As I mentioned, international studies show that children who become persistent offenders started young and started with minor crimes. Whether they continued on that path depended largely on how they were dealt with early on in their first offending experiences.

© UNICEF/Philippines

Q: Diversion and alternatives to detention are considered soft approaches. How effective are they?

A: While there hasn’t been a lot of research in this region, global studies have shown that the further a child progresses into the formal criminal justice system, the more likely s/he is to re-offend. And incarceration – detaining children – actually increases the chances that they will commit more crimes after they are released. Some studies have show that the rate of recidivism (re-offending) is higher for children who have been in detention than children who have benefited from community-based alternatives. In one community-based project in Thailand, for example, recidivism rates have dropped to less than 4%, compared to the national average of 12-18%.

For a review of global research on this issue, see Kaye L McLaren, Tough is not Enough. Getting Smart about Youth Crime: A review of research on what works to reduce offending by young people, New Zealand Ministry of Youth Affairs, 2000 at
http://www.myd.govt.nz/Publications/Justice/toughisnotenough-gettingsmartabout.aspx

That is why UNICEF places such a priority on de-institutionalizing children in conflict with the law. Detention separates them from family and communities at a crucial stage in adolescent development when they should be learning basic social skills and social responsibility. Instead of learning through interaction with positive adult and peer role models, they are basically socialized within a criminal environment. If you place child of 14 in a cell with a group of other offending 16- to 18-year-olds, the lessons he is going to learn are likely not the ones you want him to pick up.

Then there is social stigma and other difficulties with reintegration once the children are released.  In most countries, children have limited access to education, vocational training or skills development in institutions, even the ones considered ‘model’. They also have limited opportunity to develop the basic social skills need to be self-reliant, to integrate into a community and to inter-act with people of the opposite sex appropriately. These are basic socialization skills that you don’t get growing up in an artificial, institutional environment. 

So the key is to keep children out of that environment, catch them early on and either divert them to a more restorative process for resolving the offence or to programmes and services that support them to address the factors contributing to their offending behaviour. Many children who commit crimes have significant problems within the family: abuse, violence, neglect, alcoholism, drug use – all these things we know contribute to offending behaviour. Ideally, we want to identify those factors and address them through community-based programmes. This is a challenge in this region because government investment in social workers and probation services is generally quite weak. In the short term, we rely a lot on NGO partners, but ultimately governments need to shift investment away from institutions to the types of community-based programmes we know to be more effective.

See an example of Child Justice Committees in the Philippines.

Q: What have been obstacles to promoting diversion and alternatives to detention? What’s been the response of governments?

A: Diversion is a new concept in this region, so we’ve done a lot of advocacy work familiarizing stakeholders with the concept and gaining broader acceptance within government and communities for what is perceived as a ‘soft option’. This can be a hard sell, particularly in communities suffering from high levels of crime and juvenile crime. Presenting them with something that we know works but seems to be going light on the child offenders has been a bit of a challenge.

We also struggle with the general perception that reform schools and rehabilitation centres are good for juvenile offenders because they will go away and learn a skill or trade and come out productive members of society. So it’s been a challenge to start from the perspective that institutions are not the best option.

In some countries, the legal framework also presents difficulties. Some countries, most notably the Philippines, have introduced new juvenile justice legislation that formally recognizes diversion and promotes alternatives to detention. In others, such as PNG and Thailand, the legal system is flexible enough to allow diversion and more creative use of sentencing options to be introduced even though the laws haven’t been formally amended yet. However, some countries have much more rigid legal systems where you can’t introduce diversion or alternatives to detention without having a clear law permitting it.  UNICEF does support reforms to juvenile justice legislation to formalize diversion and alternatives to detention, but law reform can be a long process.

Q: In terms of institutionalizing children, is there much effort on developing better jails?

A: Globally, while UNICEF does sometimes support improvements to basic conditions for children in detention, our main focus is on developing alternatives to imprisonment – not improving prison conditions. The principle behind that approach is that the more you do to improve conditions in institutions, the more likely judges see them as a good option. We would rather invest our limited resources in strengthening community-based options so that police, prosecutors and judges have viable alternatives to imprisonment, which should always be the last resort.

By diverting most of the young people out of the institutions, annual budget needs should reduce significantly, giving the authorities resources to make improvements to the conditions of detention for the few who must remain.

Q: You use ‘him’ and ‘he’ in talking of juvenile offenders; how many are indeed female?

A: Throughout the world, the majority of children in conflict with the law are in fact boys. The unfortunate result is that juvenile justice programmes tend to be designed largely for boys, neglecting the special needs of girls. UNICEF is cognizant of this fact and aims to ensure that diversion and other juvenile justice programmes are designed to meet the needs of both boys and girls.

 

 

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