Achieving the diversion and decarceration of young offenders in New Zealand.

• Author: Maxwell, Gabrielle

The diversion of young people from criminal proceedings and the decreased use of custody are key goals of the youth justice system introduced in the Children, Young Persons, and Their Families Act 1989. This paper uses data from studies of 1003 young people who had family group conferences in 1998 and 1794 young people dealt with by the police in 2000/01 to examine the extent to which these goals are being achieved. In addition, national statistics supplied by the Ministry of Justice are used to compare patterns of youth offending and responses to it from before the Act to 2001. The data show that young people are being diverted and custodial options are less common than before the Act. At the same time, more young people are being made accountable for their offending than in the past. Furthermore, the seriousness of offending has not increased. These findings indicate that even greater use could be made of diversionary options through the police and direct referrals for family group conferences without compromising the extent to which young people are made accountable. Such changes would decrease both the stigmatisation associated with criminal proceedings for young people and the costs of Youth Court proceedings. Savings could be used to provide more programmes for young offenders and better support for families.

INTRODUCTION

The goals of the Children, Young Persons and Their Families Act 1989 (the Act) focus on diverting young people from criminal proceedings and reducing the extent to which they are placed in residential institutions or given custodial sentences. This paper sets out to examine the extent to which this has been achieved in the years following the introduction of the 1989 legislation.

Diversion and decarceration in criminal justice processes have a range of meanings. The Act gives definition to these principles in the context of youth justice in New Zealand by de-emphasising the use of formal court proceedings. The first of the youth justice principles in the Act (s208(a)) states that "unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter". This implies that arrest and the laying of charges in the Youth Court should be avoided wherever possible. This section also has implications for the outcomes: in particular, it signifies that Youth Court orders should only be used when necessary and a conviction and transfer to the adult courts should be used even more sparingly.

Section 4(f) of the Act requires that children and young people be dealt with in ways that "give(s) them the opportunity to develop in responsible and socially beneficial ways". This has implications for the selection of responses to offending and the type of sanctions that are adopted. It shifts the emphasis from punitive and custodial responses to responses that keep the child or young person in the community. This is made even more explicit in the youth justice principles. Section 208(d) states that "a child or young person who commits an offence should be kept in the community so far that is practicable and consistent with the need to ensure the safety of the public". It also places an emphasis on rehabilitative and reintegrative responses provided within the community context. Section 208(f) states that "any sanction must take the form most likely to promote the development of the child or young person within his or her family, whanau, hapu or Iwi and must take the least restrictive form that is appropriate in the circumstances".

To determine the extent to which diversion and decarceration have been achieved in the new system, data have been analysed as part of a major study of the youth justice system to examine:

* the use of arrest: how often it occurs and to what extent it is followed by the laying of charges or not;

* the laying of charges in the Youth Court: in particular, how this is related to the seriousness of offending and to what extent it appears justified in order to achieve the desired outcomes;

* the use by the police of informal diversionary procedures and family group conference referrals;

* the use of Youth Court orders: the extent to which recommendations for orders relates to seriousness of offending and whether there is any evidence that informal sanctions could achieve similar results;

* the use of Supervision with Residence;

* the recording of a conviction and transfer to the District or High Court: the frequency with which this occurs in relation to the seriousness of the offending and the extent to which there is evidence that alternative options have been considered; and

* the use of penal custody.

Each of these is discussed in turn, but first the background to the Achieving Effective Outcomes study from which most of these data are drawn is briefly described. (1)

THE ACHIEVING EFFECTIVE OUTCOMES STUDY

The Achieving Effective Outcomes study was undertaken over the period 1999 to 2002.2 The primary goals of the research were to:

* determine the extent to which the goals of the Children Young Persons and their Families Act 1989 are being met;

* determine the extent to which the restorative aspects of the youth justice process are achieved; and to

* identify best practice in the youth justice system.

The research consists of two main studies built around a sample of 24 youth justice coordinators, who are responsible for convening family group conferences:

* The retrospective study collected data from files on 1,003 cases of young people who had a family group conference in 1998 and who had been eligible to appear in the adult courts for at least one year. Over half (520) of the young people involved were interviewed about what happened at the family group conference, their early life and subsequent events.

* The prospective study observed the practice in 2001/2002 of the coordinators who conducted conferences that were part of the retrospective study. This study obtained information on 115 cases, including first-hand observation of the family group conference and, wherever possible, obtained interviews close to the time of the conference with the young people, families and victims involved in each case.

In addition, data were supplied by the Ministry of Justice on the conviction records of 999 of the 1,003 cases in the retrospective sample. The Department of Child, Youth and Family Services (CYFS) supplied national data on 6,309 cases referred for youth justice family group conferences in 1998. The New Zealand Police and the Ministry of Justice also supplied relevant national data on offending and the outcomes of police and court decisions for the years prior to and since the Act. Other data have been drawn from a parallel study of police youth diversion (Maxwell, Robertson and Anderson 2002) sponsored by the New Zealand Police and the Ministry of Justice, which reports on police responses to 1,794 young people in 2000/01.

THE USE OF ARREST

The 1989 Act, in order to avoid both the unnecessary detention of young people and the use of the Youth Court, redefined the situations in which a young person could be arrested. The clear preference under the Act is to deal with young people less formally. Since the Act, there has been a considerable reduction in the arrest rate, from approximately one-third of those coming to the attention of the police prior to the Act, to 10-12% in the following years. This, at first sight, seems to confirm that practice has changed in line with the new provisions. However, 1990/91 data (Maxwell and Morris 1993) suggest that, despite the changes in the law and the reduction in the number being arrested, the reasons for arrest were, in practice, not dissimilar to those that emerged from a study conducted prior to the Act (Morris and Young 1987). The most common grounds for arrest were to prevent the young person's reoffending or to ensure the appearance of the young person in court, but it was apparent that these were being interpreted very broadly (and differently in different areas).

Data on the number of arrests of young people for 1987-2001 were supplied by the Ministry of Justice and are depicted in Figure 1.

[FIGURE 1 OMITTED]

The data in Figure 1 show that there has been a major decline in the number of arrests since the 1989 Act, from over 8,000 per annum to less than 2,000 per annum. However, in the years 1990 to 2001 there was a trend for the number of arrests to increase. Data on the numbers of young people offending are not available, but data on the number of offences committed by young people can be used as a proxy to provide a baseline for calculating the percentage of arrests in each of the years for which data are available. These calculations show that arrests occurred in only 5% of offences in 1990 but that they occurred in 12% of offences in 2001. This makes it clear that the rise in arrests cannot be accounted for by increases in offences, and data presented elsewhere in this paper indicate that there is no massive increase in more serious and violent offences that can account for this change. Rather, it appears that the changes are evidence of a more hard line being taken by front-line police officers in response to offending by young people. Table 1 compares reasons for arrests in 1990 and 2001.

The data on reasons for arrest show that there have been some changes over time. More of the arrests in 2001 were said to be to prevent further offending and proportionately fewer were said to be to ensure the appearance of the young person in court. These data are difficult to interpret, especially as the choice of reason does not necessarily relate to clear differences in the circumstances under which the young person was apprehended. It may mean little more than an increased preference for the most common category. There is certainly no obvious indication of differences in the nature of the offending patterns over...