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Children in prison

The approach to juvenile lawbreakers in Russia and in England & Wales is more punitive than in other European countries. Why do we put young offenders behind bars?In this article Mary McAuley highlights some of the questions she has addressed in her new book ‘Children in Custody’.
Mary McAuley
28 May 2010

In Russia, where the age of criminal responsibility is 14 for serious and 16 for less serious crimes, far more children are detained than in the rest of Europe

Differences and similarities

A group of Russian prison governors is visiting a young offender institution in England. They are impressed by the surveillance technology, the equipment in the gym, surprised by the TV/video sets and posters in some of the ‘private’ cells, and shocked to hear of the suicides and re-offending rates. The cost of imprisoning a child (more than £100,000 p.a. in some institutions) staggers them. 

Their English counterparts, on a visit to Russia, driven to a juvenile colony far from a town, and hundreds of miles from the places where the children come from, find the distances unnerving. Sentences are long, no 2-monthers in a colony which it has perhaps taken 3 weeks to reach, in closed railway cars, sometimes with adult prisoners. The children live in barracks, sleeping in long rows. They wear uniforms. Activities, from school to sports, are highly regimented. Staff patrol 24 hours. Occasionally there may be a riot or incident of collective self-harming.

Yet, while the governors will notice the differences, they are very well aware of underlying similarities. A solid core of the children come from dysfunctional families, and from children’s homes; exclusion from school, use of drugs, and a history of abuse is common property, as are psychological and learning difficulties. While there are ‘good’ and ‘bad’ institutions, bullies exist among the prison staff as well as among the inmates. Prisons (and these are prisons, regardless of our finding new names for closed institutions where children are sent by a court) are violent places.

What is achieved by time behind bars?

Russian justice officials recognize that “a colony, both because of its organization and by definition cannot exercise an educational function. Time spent in a colony leads only to one outcome: it operates as a mechanism for reproducing juvenile crime.”  Why? Because, in the words of a young Russian offender, when someone is released he carries on “living by the rules, laws and practices which existed in prison, but he’s already out… He remembers all the stories he heard in prison: who stole and how someone stole, robbed, took a car. He plans how to avoid the mistakes the storyteller made, thinking that he won’t be caught. So prison isn’t a place for correcting or improving people, but a school for new crimes.” 

It is not just learning from others, or being traumatized by prison culture and rules. Time behind bars cuts a child off from the normal process of growing up, a child who is then released into an alien and unwelcoming environment. A progressive governor in England may recognize that the “majority of these kids will go out and reoffend for all sorts of reasons that we simply cannot address. So how can I argue that prison is right for them?”  Pertsova, then head of the federal department for juvenile colonies in Russia, argued in 2002  “the majority of them have nowhere to go, even those who have parents. No one is waiting for them at home, nor in the factories” and her words were repeated, almost word for word, by Frances Done, chair of the UK Youth Justice Board in Nowhere to Go on Channel 4 news in November 2009. 

So why, in Russia and England and Wales, do we continue to lock up vulnerable teenagers, to pursue policies that damage children, encourage crime, and are costly for society? Why, in both societies, is the response to youth offending so much more punitive than that of our European neighbours? It was not always so. In the early years of the last century Russian and English penal reformers, and then their governments, were at the forefront of reform: prison was no place for children. In Russia, Stalin reversed direction in the mid-thirties: adult courts for juveniles, long sentences, and prison colonies became part of the landscape. In England and Wales, the commitment to ending prison for under-16s was reaffirmed in 1969, but by the 1990s both Conservative and then Labour governments had changed tack: prison works.

Both countries are signatories to the United Nations or European conventions which specify that detention on remand and as a sentence should only be used in extreme cases, and that sentences should be short. The use of judicial proceedings should be discouraged but, where courts are necessary, they should be juvenile courts. Not surprisingly the UN Committee on the Rights of the Child in its Concluding Observations in 2005 was highly critical of the Russian government’s failure to introduce juvenile courts, or alternatives to custody and, in 2008, no less critical of the UK’s low age of criminal responsibility, continued use of adult courts, and high numbers in detention. The Scots have a more child-oriented system, and the Republic of Ireland has recently responded to European criticisms by raising its age of criminal responsibility and adopting alternative measures, but the English and Welsh legislators remain unmoved, while the Russian government drags its feet.

Crime rates

Could it be that in Russia, and in England and Wales, youth crime is much higher? No, there is no evidence of that. And youth crime in the UK has been declining since the mid-80s. In Russia there was a rapid rise in the early 90s, and a little upsurge following the financial crisis of 1998-99, but since then youth crime in Russia has followed the general European pattern of stability or decline. But violent crime? Yes, in Russia that has risen, and the English reader immediately thinks of the recent spate of knife crime and murders, involving teenagers. But that does not explain the policies, either in Russia or England, because violent offenders are a small minority of those behind bars. In England, between 1996-2006 the percentage of young prisoners sentenced for violent offences showed no increase, hovering around 14%.

In both countries the majority are there for theft, and many for stealing on a small scale. In the words of a girl in a Russian colony: “Many are imprisoned for a bucket of potatoes or a bicycle, or a jar of jam. And many girls who are behind bars lose contact with their close relatives, what can be worse than that? And afterwards – where can they go – back to stealing potatoes, and back behind bars. I don’t want to say that everyone is locked up for nothing. But there’s not many of the others. Some steal a couple of thousand rubles, and people who steal millions, carry on living contentedly.”  The English kids go in, and out, and back again. In 2007 nearly as many young offenders were receiving custodial sentences for breach of a license or order as for a violent offence.

Why do others do it differently?

So, how to explain such punitive policies, when our neighbours devise alternative ways of dealing with youthful law-breakers? Both Russia and England have active penal reform communities. Yet in neither country are the law makers willing to listen or to act.

Everywhere governments are primarily interested in crime by adults. They, after all, account for the great majority of crime. But should a criminal justice system designed with adults in mind, be used for children? Penal reformers have long argued that, in the majority of cases, it is too blunt an instrument  – most children grow out of crime – and the small percentage of persistent offenders remains immune to punitive sanctions. In line with such thinking, most European countries have set the age of criminal responsibility at 14, 15 or even higher. A child younger than this, picked up by the police, will be dealt with by social agencies, or community organizations. Practices vary from country to country, but the aim is one of diverting children away from the criminal justice system, of finding measures that do not brand them as ‘criminals’, and only using incarceration as a measure of last resort.

Where the age of criminal responsibility is low (10 in England), more 10-14 year-olds stand a chance of being brought before the courts and categorized as ‘criminals’. Age does play some part. Yet in Russia, where the age of criminal responsibility is 14 for serious, 16 for less serious crimes, far more children are detained than in the rest of Europe. Other factors clearly come in: the legislation on what constitutes ‘a crime’, the relationship between police, judges and social-welfare agencies, and the variety of sanctions employed.

Despite redrafting during the early 1990s, the Criminal Code and Code of Criminal Procedure still classify many relatively minor actions (such as theft) as serious or very serious offences.

Russian practice

Russia, with a continental law system, has a Criminal Code and a Code of Criminal Procedure. Despite redrafting during the early 1990s, the Codes still classify many relatively minor actions (such as theft) as serious or very serious offences. Repeat offences or group offences carry heavy penalties. Why? Because legislators are thinking in terms of adults (organized crime is serious), not in terms of kids who go around in a group, break into a kiosk or steal a car to go joy-riding. These are still ‘adult’ codes, and court procedure is designed with adults in mind. While later amendments have brought some improvement – encouraging judges only to use detention on remand in serious cases, and to apply compulsory educational measures – the absence of a probation service, effective social workers, or educational programmes encourages judges to respond, as before, to requests from police and prosecutors. Their life is made much easier if the child awaits trial in prison (which may last six months or longer). The police have neither the resources nor the inclination to monitor the actions of children on remand. Once before the judge, the child can really only expect a ‘conditional sentence’ (and re-offending will send him or her straight to custody) or a custodial sentence. Very hesitantly, community service, fines, and electronic bracelets are being added to the list of sanctions but these are primarily used for adults.

The active penal reform community is made up of several NGOs and a few, regrettably few, justice officials and academics. While the NGOs have different priorities (the introduction of juvenile courts, with social workers attached; the reorganization of the local authority’s juvenile commission, and local services; the introduction of restorative justice) they all favour ‘juvenile justice’ legislation. The introduction of juvenile courts has headed the agenda for the past ten years, and a draft even passed a first reading in the Duma in 2002. Yet the federal authorities, the Supreme Court, and the Prosecutor General’s Office have dragged their feet, and now the Orthodox Church is arguing that juvenile justice is an alien concept, promoted by foreign money, aimed at undermining Russian morality, the Russian family, and Russian society. Duma politicians seem poorly informed, and unenthusiastic. Medvedev could move the agenda forward, but is it worth his while to take on the conservative and entrenched justice ministries and legal establishment? 

England and Wales

If in Russia youngsters have received little attention from the legislators – which has left them victims of a harsh system designed primarily for adults - in England and Wales the Conservative and then Labour governments’ new approach to tackling crime has included punitive measures directed exclusively towards children. Politicians and some sections of the media have consciously made children a target. The Criminal Justice and Public Order Act of 1994 lowered the age for indeterminate sentences for grave crimes from 14 to 10 years, raised the maximum youth court sentence for 15-17 year olds from 12 to 24 months, and created a new Training Order to be served in a private jail for up to 24 months. This marked the start of a veritable bonanza of criminal justice acts. The Crime and Disorder Act of 1998 increased the chances of a youngster being sentenced. Police discretion to issue warnings or cautions was reduced, replaced by a reprimand and final warning – two strikes and you’re out; and a new ASBO (Anti-social behaviour order, a civil order), with the condition that its infringement automatically resulted in imprisonment, was introduced. Imprisonment for a civil offence! By 2007 nearly as many young offenders were receiving custodial sentences for breach of a licence or order as for a violent offence.

Ten-year olds and seventeen-year olds, first–time offenders and persistent offenders, serious offenders and ‘pranksters’: all, in the eyes of the government, could ‘too easily become tomorrow's hardened criminals’ and it was for the criminal justice system to sort them out. Between 1996 and 2006 magistrates and judges were offered an increasing and bewildering variety of sentencing options. Yet they continued to hand out custodial sentences in roughly the same proportions as before. Given that many more children were standing before them, substantially more were committed to detention, and 77% were re-offending within a year of release.

It is difficult to find excuses for a rich society, with highly skilled professional social workers, and a wealth of voluntary experience, treating its vulnerable children as criminals and incarcerating them. The penal reform community in the UK too has a long history. It includes high-ranking lawyers, judges, and professional experts, and has resources of which its Russian counterparts can only dream. Its views, widely implemented by other governments in Europe, must be known to the politicians in Westminster. Yet they continue to be singularly deaf. Swayed by a vocal media minority, politicians have come to believe that punitive policies win votes. New Labour, picking up the cue from its Conservative predecessor, convinced itself that tough policies towards youth are good for its image, and that informed debate is not needed. Politicians from all parties fan the public fears of crime, despite the falling crime figures.

Conclusion

While policy making traditionally allowed for expert input, under new Labour expert advice and research has been ignored in favour of a slicker, rapid response to old or new problems. Both policy style and the policies themselves could be reversed (the instruments for negotiation, and expert advice or criticism of government policy are still there). In 2008 came a cautious re-thinking. The Criminal Justice and Immigration Act reintroduced the idea of diverting low-level offences away from the courts via a Youth Conditional Caution. Nine of the different community sanctions or orders were grouped together under a Youth Rehabilitation Order. But there was no attempt to open up a debate or to challenge the populist punitiveness of the media. In Russia too the government is making no attempt to promote a debate over the issue of juvenile crime and how to respond to it, even though it has no populist media or marginal voters to contend with. The reasons may be different in the two countries, but in both the political leadership is abdicating responsibility towards its children. 

Author’s Note:  all the quotes are taken from ‘Children in Custody (Bloomsbury 2009).  I  have not used UK because Scotland has a separate justice system. Sometimes I refer to England and Wales, which is correct; sometimes I shorten it to England.

Mary McAuley (MA, D.Phil. Oxon.) is an Associate of the International Centre for Prison Studies, King's College, London. 


 

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