Policy Papers


Historical myth-making in juvenile justice policy

Abigail Wills |

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Executive Summary

  • Public debate about juvenile justice is characterised by two contradictory myths: that the past was a golden age of law and order, and that the treatment of juvenile criminals is more enlightened today.
  • These myths are not only based on historical ignorance but also involve a misplaced belief in our own uniqueness.
  • However, they have been used by the government to justify a punitive stance towards juvenile criminals which in many ways is more severe than at any point since the 1850s.
  • Lack of careful attention to real historical precedents has led not only to excessive criminalisation but also to political complacency about current poor standards of care.
  • Prevention of abusive conditions within custodial institutions requires active intervention by government, not simply issuing 'codes of practice'. Meanwhile, the increasing privatisation of custodial provision runs counter to this need
  • The government needs to confront the contradictions in its own and in public perceptions of juvenile crime. It vilifies juvenile criminals as 'louts' while also claiming that the juvenile justice system needs to help young offenders. These two positions are incompatible.
  • More than a century of research and experimentation has shown conclusively that resource-intensive, personalised, rehabilitative approaches are more successful in creating law-abiding adults than retributive, brutalising and impersonal ones.

Introduction

The misbehaviour of teenagers is an issue of enormous concern in Britain today: it strikes at the heart of society's fears about the decline of family and community cohesion in the modern world. As a result, politicians of all parties have made juvenile justice the centrepiece of their visions for national renewal. Yet it is arguable that this concern - and its political exploitation - is premised on myth: on a set of stories about juvenile crime past and present which bear no relation to its historical reality.

This is particularly problematic because in recent years, such stories have shored up an overwhelming consensus in favour of a punitive approach towards young offenders. Between 1993, when John Major famously argued that society should 'condemn a little more and understand a little less', and 2004, when Tony Blair pledged to end what he described as the '1960s liberal social consensus on law and order', Britain's use of child custody more than doubled. Imprisonment rates are now the highest in Europe and among the highest in the world. In recent months, the Youth Justice Board has warned that the system is near to 'meltdown' due to lack of space; its chairman Rod Morgan resigned in protest in January of this year. Lord Carlile QC, speaking about his 2006 inquiry into the treatment of children in custody, has argued that 'our current approach to youth justice fails children and fails society.'

This article will highlight two particular 'stories' about how juvenile offending and its treatment have changed over time. The first sees society undergoing an inexorable decline towards lawlessness, whereas the second contrasts the barbarism of the past to the scientific enlightenment of the present. The role of these two narratives in shaping juvenile justice policy is rarely explicitly acknowledged. This may well be because they are mutually contradictory. They are also misleading simplifications. They involve a misplaced sense of the uniqueness of our current difficulties, and are based on ignorance of historical context. A number of problematic consequences flow from this: recent years have seen a complacency about the severity of the problems within our system of child custody, and a lack of imagination in how to solve them. There is a confusion of aims at the heart of the juvenile justice system. Without a greater appreciation of how juvenile crime was understood and tackled in the past, there is little hope of solving some of the intractable difficulties faced by current policy approaches to youth criminality.

Two stories

One of the most entrenched beliefs about juvenile crime today is that the stable and law-abiding society of past decades is steadily degenerating into lawlessness and amorality. A textbook example of this is a letter to a local paper in October 2005 which argued that:

people nationally are sick of kids making their life hell ...It never happened in the 1950s; it wouldn't be tolerated, bearing in mind we had corporal and capital punishment, Borstals, Approved Schools, plus a real police force with a free hand on crime (W.J. Warren, Plymouth Evening Herald, 2005).

In this story, these effective strategies were abandoned during the permissive 1960s, leading to '40 years of liberal social policies which have pandered to the yob culture'(Western Morning News, 2005).

On the left, such ideas are widely disparaged as the product of reactionary right-wing nostalgia - a harking back to the imaginary 'peaceable kingdom' of the 1950s. However, more liberal worldviews are not immune from rose-tinted visions of the past. Here, the tendency is to see current problems with youth crime as a consequence of the Thatcherite individualism which destroyed the social cohesiveness and solidarity of the early decades of the welfare state. In 2006, the left-leaning Institute for Public Policy Research (IPPR) published a report entitled Freedom's Orphans, suggesting that rising consumerism and social inequality since the 1970s have been responsible for producing a generation of children who are 'not learning how to behave ... as they should.' Such ideas are accompanied by an acknowledgement that social fears about youth crime are not new - but alongside this often goes the belief that criminality in the past was somehow more benign than today, and that previous concerns about it were therefore unjustified. In contrast, modern fears are deemed entirely rational and evidence-based. In response to the IPPR report, the journalist Finlay MacDonald, for example, acknowledged that 'each generation tends to freak out a little about the one coming up', but went on to argue that 'this time I'm less inclined to dismiss the brutal headlines ... as just another media concoction.' The idea that society is undergoing some sort of inexorable moral decline holds enormous power.

Government rhetoric has exploited this sentiment, invoking a nebulous 'golden age' of peace and harmony in order to justify new criminal justice policies - while simultaneously denying that this is what they are doing. When launching the 'Respect' agenda against anti-social behaviour in early 2005, for example, Tony Blair stressed that he did not believe in 'restarting the search for the golden age. We are not looking to go back to anything.' Yet he also argued, with no apparent sense of irony, that in the 1930s of his father's childhood, 'people behaved more respectfully to one another and people are trying to get back to that.' More recently, he has shifted this arcadia forward a generation, arguing that:

when I was growing up in the North-east of England, anti-social behaviour wasn't a concept in people's minds. That's not to say that people weren't doing bad things - they were. It was just it was a completely different order of problems that we had to deal with.

The perception that society is dealing with an unprecedented problem has justified radical solutions, including overturning the principle of the presumption of innocence and 'moving the focus [of the justice system] away from the offender, and towards the needs of victims and witnesses.'

The second story about juvenile crime which holds widespread popular and political currency is seemingly diametrically opposed to the first. It involves a belief in the 'enlightened modernity' of our current age in comparison to the barbarism of the past. The Approved Schools and Borstals of the 1950s and 1960s are routinely represented in the popular imagination as 'Dickensian' institutions, inflicting 'degrading treatment and brutal punishments' (Northern Echo, 2003), and based on 'the harsh regime of Victorian reformatories' (Daily Telegraph, 2005). The implication is that such treatment would not be tolerated in the more civilised climate of today. This image of a dark and uncivilised past is contrasted to a belief that modern day practice, if not perfect, is at least inspired by a humane and scientific rationality. Politicians and professionals dealing with juvenile justice are particularly prone to presenting their practice in this light. The Youth Justice Board, which oversees custodial provision for children and young people, argues that its role is to oversee the implementation of 'effective practice' informed by the 'latest research findings'. System failure, by implication, is blamed on the persistence of outmoded ideas and structures. A highly critical inspection report for Portland Young Offender Institution in 1999, for example, noted that staff were 'in a time warp as far as the appropriate treatment of young prisoners and children [is] concerned.' This in turn provides further justification for the need for radical change in order to 'meet the needs of modern society'. Hazel Blears, the Home Office minister in 2003, was typical of this triumphalist rhetoric when she hailed the Youth Justice Board for 'its pioneering work in implementing the most comprehensive shake-up of youth justice for a generation.'

Problems

With the condescension of posterity, we are unwilling to believe that society in past decades tackled problems of equal magnitude, and spoke about crime in similar languages to those of today. The belief that youth misbehaviour is a symptom of catastrophic societal decline has a particularly long-established pedigree, as the historian Geoffrey Pearson has shown. Indeed, the 'deferential' 1950s of popular and political memory were a time of particular panic about juvenile crime. As The Times noted in 1952, 'there has been a decline in the disciplinary forces governing a child. Obedience and respect for the law have decreased.' As today, such fears were accompanied by a sense that past eras were more respectful, and past criminality more benign. In 1953, the president of the Approved Schools Association looked nostalgically back to his earlier charges, noting that:

many of our boys and girls of thirty or more years ago ... knew the feel of empty stomachs... When they arrived in an Approved School with a good bed, good food and even a minimum of recreational equipment, ... they quickly developed a feeling of satisfaction and security.

In contrast, he felt that the affluence of the 1950s had produced a wholly 'different type of boy and girl.' Politicians and the public of the era were convinced, as we are now, that as a result of trends in modern society, youth crime had become a new and unprecedented threat.

The belief in modern rationality as distinct from the barbarity of the past has a similarly lengthy history. The Approved Schools and Borstals now maligned as 'Dickensian' institutions were, in their day, proclaimed as modern replacements for the earlier, more brutal regimes of the Reformatory and Industrial Schools. Today's language of 'evidence-based' innovations in custodial regimes mirrors earlier discussions about the need for practice to be based on the latest knowledge about child psychology. The pioneering headmaster of the Aycliffe Approved School, John Gittins, declared in 1952 that his institution was 'a kind of crucible in which one is carrying out an experiment using ingredients in a concentrated form.' The enlistment of 'scientific' certainties in validating practice is far from a new phenomenon: for at least a century each new generation has proclaimed itself to be at the dawn of a new, more enlightened age of juvenile justice. Politicians have consistently placed themselves at the vanguard of such progressivism, trumpeting their radically innovative policy transformations. Hazel Blears was but one in a long line; she followed in the steps of Alan Brown MP, who in 1961 was reported to have argued that 'more progress had been made in the past twelve months to halt the ever-increasing incidence of juvenile delinquency than had been achieved in the past half-century.'

In reality, both the golden age and the barbarous past are delusions. It is notable here that both of Tony Blair's examples of 'respectful' communities of the past were roundly denounced by those who had experienced them. A neighbour of Blair's father noted that:

Govan [in the 1930s] was a terrible place to live. Poverty and misery were widespread and it was a violent place as well... You had lads hanging about street corners with no work and nothing to do. They got up to as much trouble then as the young people do now...' (Sunday Times, 2006).

A correspondent in The Independent likewise contrasted Blair's claim that anti-social behaviour was unknown in the 1950s with his memory of 'gangs of "teddy boys" with razor blades and bicycle chains fighting in the centre of town on Friday night' (2007). The assumption that we live in a more violent and disrespectful society than in the past is a highly tenuous one.

In the same way, faith in modernity has not prevented the periodic eruption of scandals about the ill-treatment of children within the juvenile justice system - either in the past or today. In 1910, allegations of torture at the Akbar Reformatory School led to widespread national outrage. In 1947, boys at the Standon Farm Approved School attempted the revenge murder of their headmaster, and in 1959, alleged ill-treatment at the Carlton Approved School led to a mass uprising by boys. In 1967, allegations of excessive corporal punishment at Court Lees Approved School made national headlines. More recently, a number of further scandals have made headlines, notably at Feltham and Portland Young Offender Institutions in 1999. In 2005, the Carlile Inquiry was set up to investigate the case of Gareth Myatt, a fifteen year-old who died while being restrained by staff at Rainsbrook Secure Training Centre. The report of the inquiry noted that permitted restraint techniques include 'forcing the child's thumb downwards towards the palm of its hand [and] pushing upwards against the septum of the child's nose.' In one institution, they found that 'children would be kept for up to 14 days in a bleak and dilapidated cell with only an old and rusty metal frame bed for company.' The report concluded that 'the ways that children are treated in penal custody ... would, in any other circumstance, trigger a child protection investigation and could even result in criminal charges.' The findings of the Carlile Report suggest that public and political faith in the 'enlightened', evidence-based nature of our modern child custody system is deeply deluded.

Indeed, in many ways, an informed overview of how the juvenile justice system has developed historically suggests that of all governments over the past two centuries, our current administration has one of the least convincing claims to 'enlightened modernity' in its dealings with juvenile criminals. It justifies its policy programme by arguing the need for a 'reversal' of a '1960s socio-liberal consensus' - by which it appears to mean a consensus that youth crime was the result of deprivation rather than personal responsibility. In reality, although the 1960s did see a particularly strong policy focus on 'welfare' ideals, the principle of the diminished responsibility of the young as compared to adults goes back a great deal further. As early as the seventeenth century, common law operated under the presumption that children aged between 10 and 14 were 'doli incapax' - incapable of telling right from wrong - unless proven otherwise. In 1854, the Reformatory and Industrial Schools Act established the principle that children and young people receiving custodial sentences should be held in dedicated facilities. These ideas were strengthened by the legislation that followed over the later-nineteenth and twentieth centuries. Most notably, the 1908 Children Act established separate juvenile courts for under-17s; the 1933 Children and Young Persons Act established that the primary duty of these courts was to 'have regard for the welfare of the child or young person'. Such legislation went alongside increasing government oversight and control of what in the nineteenth century began as a largely independent, philanthropically-funded system of institutions for young offenders. Under Home Office control, institutions could be - and were - summarily closed down if evidence of substantial abuse emerged.

In reality, it is the punitive stance of the past fifteen years that is historically unusual. This period has seen the dismantling of long-standing welfare provisions, alongside the increasing privatisation of the custodial system. The centuries-old principle of 'doli incapax' was abolished by the 1998 Crime and Disorder Act. Juvenile courts' 80-year-old duty to consider the welfare of their charges is now subordinate to the need to 'protect society' first and foremost. Separate custodial provision for children and young people, which has been a cornerstone of the juvenile justice system since the mid-nineteenth century, has in recent decades been undermined to the extent that in 1998, the Home Office concluded that there existed 'no definable juvenile secure estate.' Although steps have been taken in recent years to remedy this situation, the proportion of juveniles being held in prison conditions remains at one of its highest points in almost a century: an overwhelming majority of children and young people receiving custodial sentences are sent to 'Young Offender Institutions' run by the prison service, with only a tiny minority ending up in more welfare-orientated 'Local Authority Secure Units'. This contrasts sharply to the situation from the 1930s to the late 1960s, when the vast majority of juvenile 'custodial' sentences were to Approved Schools, which for all their failings were open institutions with an explicitly educational ethos and no link to the prison system. Even during the 1980s, the emphasis of the Thatcher government was on diversion from custody, which led to falling levels of child imprisonment. In many respects, the punitive outlook of the current government is more extreme than at any point since the 1850s, when separate provision for juvenile offenders first began.

The policy consequences of ignorance

Public and political beliefs about juvenile crime are therefore bedeviled by a combination of nostalgia, vainglory and ignorance; these serve to back up a stance towards young offenders which is unprecedently punitive. This situation has particularly detrimental consequences.

Firstly, the combination of punitiveness and self-satisfied confidence in the 'modernity' of the system has led to political complacency about the severity of problems in the youth-custody system. The Carlile Report, unlike similar reports in the past, did not prompt government to promise increased resources in order to improve facilities within custodial institutions. Rather, it issued a new 'code of practice on behaviour management.' As suggested above, allegations of brutality and incompetence within institutions for young offenders are not a new phenomenon. It is rather the absence of any apparent political will to tackle the situation which is novel. Past scandals, such as that at the Carlton Approved School in 1959, led at the very least to public inquiries, political contrition, and a stated commitment to improving conditions for young offenders. Today, political talk about 'rebalancing' of the justice system in favour of victims has put an end to such concern about the incarceration of vulnerable young people. The recent outcry about overcrowding in youth jails led the chief executive of Barnardo's to argue that 'in the sort of numbers the Youth Justice Board are having to lock up at the moment, [custody] is almost always a destructive experience'. Yet in response, the Home Office made no comment about poor custodial conditions, arguing that 'we remain unapologetic about the need to tackle anti-social behaviour by anyone, regardless of their age.' This political assertion that there is no substantive difference between youth and adult criminality is one which would have been unthinkable for most of the twentieth century.

In this context, initiatives by the Youth Justice Board, charged with overseeing the custodial system for juveniles, have been unsurprisingly unadventurous. In 2005, it made the commitment to reduce the population of children and young people in custody by 10%, through the provision of more community punishments and committals to non-secure establishments. Notwithstanding the fact that this goal now looks unachievable, it is in any case hardly the 'challenging' and radical feat that the Youth Justice Board claims it to be. There is no suggestion that a reduction in youth custody levels will be accompanied by an increase in resources to provide a more rehabilitative, welfare-orientated environment within Young Offender Institutions. As the Youth Justice Board itself noted in 2005: 'with the level of custody as it is at present, and with current resource constraints, it is unavoidable that the majority of children and young people in custody will continue to be cared for by the prison service.' A lack of historical awareness means that current solutions become 'normalised': alternatives cease to be conceivable. However, we should be under no illusions that our current system is the result of anything but an active political choice. As noted earlier, past governments made very different assessments, notably about the inappropriateness of closed, prison-like conditions for juveniles. The custodial focus of juvenile justice in modern Britain is not only one of the most extreme in the world - it is also in significant respects unprecedented historically.

Conclusions

This focus will not change until the government confronts the contradictions in both its own and in public perceptions of juvenile crime. At present, the system is paralysed by a confusion of aims, as the government attempts to pander to contradictory facets of public opinion. It vilifies juvenile criminals as 'louts' and 'yobs', proclaiming a return to an imaginary pre-1960s punitive utopia. On the other hand, it seeks to maintain a sense of self-satisfied humanitarianism, suggesting that the juvenile justice system needs to help young offenders be 'healthy, stay safe, enjoy and achieve, make a positive contribution and achieve economic well-being.' In practice, these two commitments are incompatible, because 'louts', unlike vulnerable and damaged children, have no obvious claim on government funds. There are no easy solutions to this tension, but an end to the justification of policy choices through historical myth-making would be an excellent start.

The government might then begin to modify juvenile justice in light of the following principles. Youth crime is not a historically unique portent of the collapse of civilisation; neither are welfare-based approaches to the problem an historical anomaly. More than a century of research and experimentation have shown conclusively that resource-intensive, personalised, rehabilitative approaches are more successful in creating law-abiding adults than retributive, brutalising and impersonal ones. History also suggests that the prevention of abusive conditions within custodial institutions requires active disciplinary intervention by government, not simply the issuing of 'codes of practice'. The increasing privatisation of custodial provision runs counter to this need. In 1997, the Labour government presented a paper to parliament entitled No More Excuses: a new approach to tackling youth crime in England and Wales. No more excuses, indeed: more knowledge, commitment and resources are urgently needed. Unfortunately, the recent transfer of responsibility for youth justice to the new 'Ministry of Justice' appears to entrench the essentially punitive outlook of the current system. It is to be hoped at least that Gordon Brown's possession of a PhD in History will make the next Labour administration more sensitive to the historical dimensions of the problem.

There was a news release [pdf file,KB ] about this paper on 4 July 2007.


Further Reading


  • Alex Carlile, The Carlile Inquiry. An independent inquiry by Lord Carlile of Berriew QC into physical restraint, solitary confinement and forcible strip searching of children in prisons, secure training centres and local authority secure children's homes (London: Howard League for Penal Reform, 2006).
  • Loraine Gelsthorpe and Allison Morris, 'Juvenile justice 1945-1992' in Mike Maguire (ed.) The Oxford Handbook of Criminology (Oxford: Clarendon Press, 1994), pp.949-993.
  • Edward Gibbens, Administration of punishment at Court Lees Approved School: report of inquiry (London: HMSO, 1967).
  • Barry Goldson, Vulnerable Inside: children in secure and penal settings (London: The Children's Society, 2002).
  • Deena Haydon and Phil Scraton, '"Condemn a Little More, Understand a Little Less": the political context and rights' implications of the domestic and European rulings in the Venables-Thompson case', Journal of Law and Society 27:3 (2000), pp. 416-448.
  • Julia Margo and Mike Dixon, Freedom's Orphans: raising youth in a changing world (London: IPPR, 2006).
  • Spencer Millham, Roger Bullock and Paul Cherrett, After Grace, Teeth: a comparative study of the residential experience of boys in Approved Schools (London: Human Context Books, 1975).
  • Geoffrey Pearson, Hooligan: a history of respectable fears (London: Macmillan, 1983).

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