1. Responding to Juvenile Crime in Canada By Andrew Carvajal Nov 21 st 2007

2. Why Little Jim and Big John belong in separate cells

3.  Common law conception of “incapacity to do wrong”  Child under seven deemed incapable of possessing criminal mind  Could be extended to children up to the age of 13 but rebutted if child had sufficient mental capacity  Reasonable person  Discernment  Youths are limited in other ways  Vote, marry, consent to sex, drink, smoke, jury duty

4.  Anna Leslie (1996): 2 concepts of social control ideology in legal regulation of youth  ‘Doing good' (inclusion)  rehabilitation as the primary aim of punishment ▪ Integration, tolerance, incorporation to the community  ‘Doing justice' (exclusion)  fairness, openness, and safety from abuse ▪ Stigmatization – delinquent label ▪ Segregation from community

5. (Doob et al. 1998)

6.  Life-course persistent criminals are rare (Moffit 1993)  Most common type is the adolescence-limited type  Depends on interaction with others at this time of life  Individual is trapped in a maturity gap  Crime is relational and a product of turning points in life (Sampson and Laub1993)  Stops when contingencies shift ▪ Maturity gap is overcome and commitments costs to society increase ▪ Informal social bonds in adulthood take priority

7.  If young criminals “fixed” by time, then why punishment?  Crime-age curve peaks in late teens, when public opinion and judges are more willing to impose harsher sentences on youths  Some may already be at the age where they can be tried as adults  Ignoring that criminality will decrease, they will be in prison when they are no longer at risk of engaging in criminal activities

9.  Crime as matter of social definition (Schur 1971)  Results from the labelling of a person as such  “The person becomes the thing he is described as being” (Tannenbaum, 1938)  Initial delinquent acts are relatively harmless instances of primary deviance  BUT, as children go through the criminal process, secondary labelling leads to a self-concept and attitude that fits the label (Matsueda 1992; Schur 1971)  A socialization process that is virtually irreversible  Crime then becomes a self-fulfilling prophecy

10.  Most youths will commit delinquent acts but only a few will be labelled criminals (Becker 1963)  This will limit their future opportunities  The individual is segregated form mainstream society (Becker 1963)  Studies find that prior delinquency largely influences future delinquency (Matsueda 1992)  Criminality changes as the definitions of crime change (Schur 1971)  Importance of agents of social control and powerful economic and political groups behind it

11. A historical account

12.  Colonial influence of French and English law  Most common source of juvenile delinquency was the fur trade  Mostly urban boys who suffered parental neglect  Children generally expected to accept difficulties of life and often treated the same as criminal adults  Youth sentencing was met with mixed feelings and arbitrariness  Combining harsh punishments and some justice tempered with mercy  Usually those under 7 not punished regardless of crime, and those under 14 spared of most severe punishments

13.  Influence of the Enlightenment  Behaviour is influenced by social structure and people’s behaviour can be rehabilitated  Greater attention to the welfare of children  Movement to separate adult and juvenile offenders  Offer education and religious services instead  Act respecting Arrest, Trial and Imprisonment of Youthful Offenders (1894)  Separation of young and old offenders at arrest, trial, custody  Trials of young persons under 16 to take place without publicity  1982 Criminal Code  S.9 : No one under 7 could be convicted of an offence  S.10: Convictions of children under 14 only when competent to know the nature and consequences of their conduct

14.  First major legislation to establish a separate system for criminal youths  Doctrine of parens patriae  State intervenes as "kindly parent“ when family could not provide for the needs of its children  “Every juvenile delinquent shall be treated, not as a criminal, but as a misdirected and misguided child”  Established separate juvenile courts in all cases involving children  Juveniles over 14 charged with an indictable offence (such as treason or murder) would face ordinary court

15.  Maintained distinction in the treatment of juvenile and adult crime  But ended the paternalistic approach of the JDA, awarding same legal rights to juveniles and adults, like right to counsel and appeal  Raised minimum age of prosecution to 12 and the a maximum age for some criminals to be tried as youth offenders to 17  Although it allowed transfers to adult court in certain situations, its intent was that most cases be tried in youth court

16.  Many individuals thought that the YOA was too lenient on young offenders  80.6% of Canadians felt that youth court sentences were not severe enough (Barber and Doob 2004)  More than 4/5 respondents identified “increasing sentences for violent youth” as the number one criminal justice priority (Tufts and Roberts 2002)  Between 1991 and 1996 Statistics Canada reported that violent crime by young offenders had increased by 16.1 percent

17.  Others criticized the overuse of incarceration on young offenders  Parliament could only encourage provincial governments to adopts alternative measures to custody  Too little use of alternative punishments and too many substantial disparities in sentencing  Amongst most frequent offences, except for robbery, youthful offenders were likely to receive a longer custody than their adult counterparts (Statistics Canada, 2000)  In 1997, Canada had the highest rate of youth custody in the Western world (including the US), incarcerating juvenile offenders at four times the rate for adults (Bala 2004)  In 1999, approximately 3 out of 5 youths in custody at any given time, where there on pre-trial detention and not for a trial imposed custody

18. (Doob & Sprott 2006: 226)

19.  Sold by the Government as a “tough” response to youth crime, but is it?  The Act’s preamble proposes:  A more selective use of the formal justice system in the treatment of young offenders ▪ Toughen the response to grave violent offenders ▪ Reduce over-reliance on incarceration for non-violent youth ▪ Greater use of extra-judicial measures and increasing youth reintegration into the community after custody  Pay greater attention to the victims of youth crime  It further calls attention to the role of the community in addressing the needs of young people

20.  Unlike previous acts, the YCJA explicitly states the purpose, principles and factors to be considered in sentencing young persons  A sentence must be fair and proportionate (ss. 3 & 38)  No more transfers to adult court, but a youth may receive an adult sentence if over 14 and convicted of an offence punishable by more than 2 years in jail ▪ The identity may also become publicly disclosed  Pre-trial detention was further limited, and assumed to not be necessary unless if the offense, if convicted, would warrant custody

21.  Amongst alterative measures to custody are the following:  Encourage police warnings and cautions  Pre-court referrals to community programs  Deferred custody and community supervision  Judicial reprimand  Interestingly the objective of deterrence has been left out of the Act

22. Where are we heading?

23.  Incarcerations  The imposition of adult sentences under the new act for violent offenders seems to defy the age-crime curve  Less reliance on custody for minor offenders looks promising in this respect  Less pre-trial detention may lead to less labelling and less interaction with more serious criminal offenders  Proportionality and the idea that a sentence is appropriate for the time needed for treatment to occur ▪ Compatible with the conception that crime changes over time ▪ But, are youths reformed or do they simply stop committing crime once they become older?

24.  Generally speaking it seems that the YCJA has led to substantial reduction in incarceration of young offenders  Since less reliance in custody for lesser crimes, there are less short-custodial sentences (Bala 2004)  Comprehensive statistics on the new law and number of youths in court and custody does not yet exist

25. (Doob & Sprott 2006: 231)

26.  Doob (2000) - if people who feel sentencing is too lenient knows:  Cost to maintain a 17 year old in prison can be 6000 dollars/month  Most people in custody are released in less than three months  Unlike prison sentences, community service and fines are supposed to be carried out in full  There is the possibility of group conferences as restorative approaches with the victims  Their support for incarceration declines

27.  Lawmakers and law enforcers reacting to people’s comments that sentencing is too lenient may be reacting to people with mistaken assumptions  Alternative sanctions should be made more salient amongst the public discourse  Doob (2000): less attention to “too soft” or “too harsh” and more towards what is intelligent and fair

28.  In 1998–1999 Aboriginal youth were heavily overrepresented in detention centres  While they account for only 5 % of the total youth population, Aboriginal youth made up to 24% of total admissions to custody  In Manitoba and Saskatchewan 75% of youth sentenced to custody were Aboriginal (Statistics Canada)  Those who are most often labelled deviant are at the margin of society (Becker)  Less access to good attorneys, knowledge of their rights and being able to negotiate a non-guilty plea  Less capable of obtain psychiatric or other means of help that keep them away from receding

29.  Greater use of extra-judicial measures can lead to less labelling and its impact on crime  Publishing the identity of violent youth offenders can jeopardize their future  Less opportunities to integrate to adult and community life once out of custody, because of the criminal label