SUBMISSION BY NICRO ON THE CHILD JUSTICE BILL TO THE
PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT
PLEASE NOTE THAT NICRO WISHES TO
MAKE AN ORAL SUBMISSION AND ADDRESS THE PORTFOLIO COMMITTEE AT ANY PUBLIC
HEARINGS THAT MAY OCCUR AND ACCORDINGLY REQUESTS AN
1.
Introduction
Established in 1910, NICRO is the
only NGO providing comprehensive crime reduction and prevention
services throughout
NICRO is an acknowledged leader in
the field and can lay claim to a long and proud history of innovative,
impactful and excellent service delivery within the criminal justice sector. Examples of
these services include early probation service (1930’s), community service
orders (1980’s), diversion and the introduction of restorative justice to
NICRO has been providing Youth
Diversion services since 1992 and is currently the only Non Governmental
Organization that has established Diversion Services nationwide. On a yearly basis NICRO accommodates an
average of 10 000 children diverted from courts in formal programming. Recidivism rates of less than 10% over three
years by NICRO Diversion beneficiaries have been recorded during a 2002
study. NICRO is currently in the 3rd
year of a new study which, investigates
the short and long term impact of Diversion services on the psycho social
functioning and re-offending rates of children completing these
programmes. 1st and 2nd year preliminary results is providing conclusive evidence
that NICRO’s Diversion Programme effectively facilitates attitudinal and
behavioural changes for children included in Diversion services.
As a major role player in the
provision of services to the criminal justice system NICRO therefore welcomes
this opportunity to make a submission on the Child Justice Bill.
This submission deals specifically with Assessment
and Diversion as included in the Bill and include comparative statistics from NICRO
diversion practice over a period of 5 years.
NICRO would however like to add supportive comments to previous
submissions made by various Civil Society Organizations as related to Criminal
Capacity.
2.
Assessment
Kyle is 13 years old and was
brought in front of court with several
peers after they were arrested for vandalism. They had defaced road signs
and deliberately scratched and broken mirrors on vehicles. Kyle has had no
previous contact with the juvenile justice system. The school reports that
until this year his grades were average, but his work declined in recent
months. A urinalysis indicated that Kyle has not used any illegal substances
recently, but he and the other boys involved in the incident said they sniff
glue on occasion. Kyle's mother reported she and her husband divorced a year
ago, and, as a single mother, she has had increasing difficulties managing Kyle
and her other children. Kyle was released into the care of his mother while
attending a diversion programme
Jennifer is 17 years old and
was arrested for indecent assault. There is a record at a welfare
organization of involvement with the family because a relative sexually abused
Jennifer and a sister. During assessment by a NICRO social worker, Jennifer's
urine screen tested positive for THC. She reported that she began smoking
cigarettes, using drugs, and drinking alcohol around age 11. When her family
was contacted, they said Jennifer frequently runs away and had not been home
for several days. Although Jennifer is enrolled in school, she is often truant
and makes very poor grades. Jennifer has never been arrested before, but her
parents did arrange for her to spend 6 months in a private treatment center.
She claims her best friend is a 21-year-old male who is homeless and has a
record of drug-related offenses. Jennifer's parents felt it was not best for
her to return home. Jennifer was
released into the care of her parents, while attending a diversion programme.
Brad is 16 years old and was
arrested for armed robbery. He was with two other males, ages 14 and 15,
when they robbed a petrol station attendant at knifepoint. Brad was assessed
and diverted. Brad's urine screen tested positive for amphetamines. His records
indicate a lengthy list of difficult behavior, beginning at age 11. His first
arrest was at age 13, for shoplifting.
Brad quit school at age 15.
School reports also indicate frequent disciplinary problems, including
fights with other students and one incident in which he hit a teacher. His
mother has had recurring hospitalizations for a mental illness, and Brad has
been traveling between various family member at these times.
The characteristics and situations
of youth entering the juvenile justice system are quite diverse, as the first
three examples illustrate. Youth may enter the juvenile justice system as a
result of committing acts that are considered less serious or more serious
offenses, including property and violent crimes. Youth range in age from early
to late adolescence. Some have previous records of juvenile justice
involvement, while others do not. Many have problems with school, family, drugs
and alcohol, and/or peer relationships. At the same time, there are significant
challenges facing juvenile justice professionals who must protect the public,
effect changes in youth, and manage resources wisely. For these reasons the
element of assessment in deciding not only the best disposition for the case
but also the best intervention or action to address underlying factors
contributing to offending behaviour, restoration of victims and public safety are
of utmost importance. It is therefore that
NICRO welcomes a chapter dedicated to assessment that highlights the assessment
process as necessary to the administration of child justice and not just the
delivery of so to speak “welfare” services to individuals in conflict with the
law.
Clause
35 – Duty of Probation Officer to assess certain children
In contrast
to the 2002 version of the Child Justice Bill which provided for all children
to be assessed NICRO is
strongly opposed to the exclusion of certain children from assessment in the
2007 version of the Bill. The
Child Justice Bill is a piece of legislation that is suppose to ensure the
appropriate management of all children in conflict with the law, the equal
accessibility to services to services
addressing contributing factors to the criminal behaviour (best interest of the
child) and the enhancement of public safety.
Exclusion from assessment will definitely not serve the best interest of
the child, the community, the victim or the criminal justice system. If
empirically validated assessments of the risk and need areas of all children in
conflict with the law are not conducted courts and service delivery organizations
will be unable to reliably:
·
Judge what level of risk children in conflict
with the law currently pose to the public;
- Determine which
needs, when addressed, will reduce the likelihood of re-offense;
- Create intervention
plans and strategies that take into
consideration the whole range of
needs, risk areas, and levels of motivation; (whether as part of a
sentence or diversion)
- Measure mid- and post-intervention
improvements—and whether they are significant enough to warrant release from
probation or incarceration (if sentence) or withdrawal (if diversion)
- Decide which option would be
most beneficial to which child (to optimize distribution of agency time
and monetary resources);
- Evaluate which programs produced which kinds of intervention
effects on which kinds of children
For these reasons,
assessment is the foundation of Evidence-Based
Practices in child justice services.
In this regard Gottfredson (1987:10-11) states:
Decision-making applications in criminal justice can
be said to be of two kinds, namely, institution policy decisions and individual
decisions . . . . Planning problems often require estimates of outcomes of
criminal justice decisions, including predictions of the persons who, in a
given category, will have their probation or parole revoked, or who will not
commit crimes at a high rate after release from confinement, or who may
reasonably be expected to be paroled at first eligibility. Administrators may
require estimates of the incarceration rates . . . of various categories of
offenders. And in the long run they often require . . . estimates . . . [of
the] effects . . . of differential handling for purposes of treatment or
control.
Gottfredson further talks of individual decisions, especially those that
may involve an [child’s] confinement or determine the context of supervision
and/or interventions with that person.. Assessment addresses multiple levels of
decisionmaking, ranging from the individual child, to the program or agency,
and even to the wider jurisdictional level. Not only do assessment occur at
each level, but the way they are implemented and the results of the procedures
are often interwoven among the various components and tiers of the juvenile
justice system.
Palmer (1984) asserts that the purpose of justice system intervention
includes both socially centered and child-centered goals. The socially centered
goal is to modify a youth's behavior so it conforms to the law and therefore
promotes the protection of society. To do this, however, child-centered goals
must be achieved, resulting in modification of the child's behavior and a
better adjustment between the youth and his or her environment. Therefore, the
most appropriate fit between the child's risks and needs and treatment/intervention
resources must be achieved. Palmer emphasizes that assessment predict and
prescribe the needs and treatment approaches best suited for a youth.
Therefore a process of assessment for
all is essential for matching children’s risks and needs with the appropriate
type of services along a continuum of graduated sanctions varying from
prevention to aftercare. Two fundamental reasons for assessing all children and
not only some are asserted. They are (National Council on Crime and
Delinquency, 1997:4; Wiebush et al., 1995:174):
- Providing
greater validity, structure, and consistency to the assessment and decision-making
processes related to the disposition of the child’s case
- Allocating
limited system resources more efficiently by targeting the most
intensive/intrusive/restrictive interventions on the most serious,
violent, and chronic offenders.
In addition, as stated by
Gottfredson (1987), programming and policy decisions often depend on assessment
procedures. Resources are always limited, and assessment help channel children
into the least restrictive, least intrusive, and usually least expensive
program resources that reasonably can be expected to control and change their
behavior and protect the public. Within programs, children often need to be
divided into groups based on similarity of needs. Then, each group is provided
with similar services that can be expected, within reasonable limits, to
produce the desired outcome. Assessment also helps programs and jurisdictions
identify youth with greater and lesser potential for continued involvement in
the criminal justice system. Such information makes possible more effective
planning to prepare sufficient program resources for children. Finally, program
evaluation is connected to assessment. Once children are directed to the
appropriate programs and subgroups within programs, it is expected that the
socially centered and offender-centered goals will be achieved successfully.
Program outcomes can be measured for program evaluation, and if necessary,
program components can be adapted to more closely accomplish these goals
THEREFORE NICRO
SUBMITS THAT ALL CHILDREN WHO ARE ARRESTED, SUMMONSED OR WARNED BY POLICE
SHOULD BE ASSESSED, IRRESPECTIVE OF AGE OR OFFENCE.
INCLUDING A
CHILD IN ASSESSMENT PROCESSES DOES NOT AUTOMATICALLY MEANS THAT THE CHILD WILL
BE DIVERTED. ASSESSMENT IS A NECESSARY
PROCESS THAT IF APPLIED AND USED APPROPRIATELY WILL PROVIDE ASSISTANCE TO THE CRIMINAL
JUSTICE SYSTEM IN DECIDING THE
NICRO IS ACCUTELY AWARE OF THE
CHALLENGES THAT EXISTS AROUND RESOURCES IN
The assessment of children in
conflict with the law is indispensable to the decision-making process regarding
which children can be contained in the community and which children pose a
danger to themselves and society and how these children should be managed and
dealt with.
3. Criminal Capacity
In support
of the recommendations made in previous submissions related to the raising of
the age of criminal capacity to 12 years NICRO wishes to add the following:
NICRO acknowledge that the extreme violent nature of
crimes perpetrated in South African society is a big cause for concern about
public protection and the belief that there is no good reason to exercise
leniency with young offenders in the South African context. This view rejects
though the conventional wisdom behind child justice policy and legislation as a
means to create a separate system for dealing with children who commits crimes,
not a system that favors some children as children and other children as adults.
The legal system has long held that criminal
punishment should be based not only on the harm caused, but also on the
blameworthiness of the offender. How blameworthy a person is for a crime
depends on the circumstances of the crime and of the person committing it. Traditionally,
the courts have considered several categories of mitigating factors when determining
a defendant’s culpability. These include:
• Impaired decision-making capacity, usually due to
mental illness or disability(like brain damage)
• The circumstances of the crime—for example, whether
it was committed under duress,
• The individual’s personal character, which may
suggest a low risk of continuing crime.
Such factors don’t make a person exempt from
punishment—rather, they indicate that the punishment should be less than it
would be for others committing similar crimes, but under different circumstances.
Should developmental immaturity be added to the list
of mitigating factors? Should children in conflict with the law in general, be
treated different from adults? A major study by the Research Network on
Adolescent Development and Juvenile Justice now provides strong evidence that
the answer is yes.
The Basics
of the Human Brain
The human brain has been called the most
complex mass in the known universe. This is a well deserved reputation, for
this organ contains billions of connections among its parts and governs
countless actions, involuntary and voluntary, physical, mental and emotional. The
largest part of the brain is the frontal lobe. A small area of the
frontal lobe located behind the forehead, called the prefrontal cortex,
controls the brain’s most advanced functions. This part, often referred to as
the “CEO” of the body, provides humans with advanced cognition. It allows us to
prioritize thoughts, imagine, think in the abstract, anticipate consequences, plan,
and control impulses. Along with everything else in the body, the brain changes
significantly during adolescence. In the last five years, scientists, using new
technologies, have discovered that adolescent brains are far less developed
than previously believed.
Neuro scientist Jay Giedd (National Institute of
Mental Health) and neurologist Paul Thompson (
In conjunction with the development of the pre-frontal
cortex during adolescence, other studies show that throughout this period
adolescents use an alternative part of the brain in their thought processing:
the amygdala. This area of the brain is associated with emotional and instinctual
responses. Studies by Dr. Deborah
Yurgelun-Todd and colleagues at
It is clear therefore, that the normal adolescent
brain is far from mature or operating at full adult capacity. The physiological
structure of the adolescent brain is similar therefore to the manifestation of
mental disability within an adult brain.
These are not however the sole developments within the
adolescent brain. It has further been found that cable of nerves (the corpus
callosum) that connects the two sides of the brain appears to grow and change
significantly through adolescence. This cable of nerves is involved in
creativity and problem solving. The lack of a properly formed prefrontal cortex
and corpus callosum indicates an impairment of the rational decision and
thought making process instead placing heavy reliance upon the emotional and instinctual
response area (amygdala). The ability to regulate emotions is therefore
impaired and this can result in quite severe acts with little regard for the
consequences.
Brain trauma: exacerbation and physical effects.
The problems associated with adolescent brain
development are further exacerbated by trauma
and shocking experiences. It has been accepted for
some time that psychological consequences
arise from exposure to violence, abuse, neglect,
abandonment and other childhood trauma.
However now it has been found that these experiences
may cause physical changes in the brain
4. Diversion
The practice of Diversion has over
the past 15 years taken up a prominent role in the administration of child
justice in
NICRO
however, strongly objects to the exclusion of children from the possibility of
diversion based on their age and the type of offence they are charged with. Our objection is based on the fact that
diversion is not an automatic hand down to a child that has committed an offence,
but that inclusion is dependent on a combination of factors and not just one
factor such as age or type of offense.
Over the past 15 years trends that have emerged in diversion practice
included increased referrals of children that have been charged with more
serious crimes. Summarised crime type profile of children accommodated in
diversion for the period April 2003 to December 2007 is presented in table 1.
The following are evident from the profile:
- Over a five year period there has been a steady
increase in referrals of children whom have been charged with more violent
crimes to diversion programmes. Parralel
to this a decrease in property crimes is evident over the 5 year period.
Crimes against the person as
reflected in these profiles includes crimes such as murder, attempted murder,
culpable homicide, common assault, assault GBH, rape and robbery. Increased use
of diversion programmes to address issues related to these type of crimes shows
that diversion is not only suitable for children charged with less serious
offenses, but that diversion interventions works for children who has a high
level of “treatment readiness” and “treatment responsiveness” regardless of the
type of crime.
Table 1: Crime profile comparison
for children referred to diversion programmes for the period
April 2003 to December
2007
|
|
PERIOD |
||||||||
|
|
1st Year |
2nd Year |
3rd Year |
4th Year |
5th Year |
||||
|
TYPE OF
CRIME |
April 03 –Sept03 |
Oct 03-March 04 |
April04-Sept 04 |
Oct04-March05 |
April05-Sept05 |
Oct05-March 06 |
April 06- Sept06 |
Oct 06- March 07 |
April 07-Dec 07 |
|
Victimless |
21% |
13% |
12% |
10% |
11% |
9% |
14% |
17% |
20% |
|
Crime against the person (violent) |
15% |
19% |
24% |
30% |
29% |
32% |
31% |
34% |
33% |
|
Property crimes |
64% |
68% |
64% |
60% |
60% |
59% |
55% |
49% |
47% |
From Figure 2 below it can be noted
that the majority of children that have been in diversion programmes have
successfully completed the programmes.
Only an average of 1 – 3 % of children have not complied and were sent
back to court for continuation of trials.
Figure 2: Comparative profile of the
results of children referred for diversion programmes for
the period April 2004 –
December 2007
Of the total number of 60791
children accommodated in diversion programmes from April 2004 to December 2007
in NICRO only 2 464 (7%) children have had records of previously being diverted
for other criminal charges. Preliminary
results of a current study of a sample of 2400 children in diversion programmes
suggests that the success of diversion programmes at reducing offending
behaviour and heightening psycho-social functioning appears unrelated to the child’s offence
history.
Judging then from emerging research
results, amenability to treatment is the most practical basis on which to
decide upon the inclusion or exclusion from diversion and consequently
intervention, because it makes little sense to invest the rehabilitative
resources of the justice system in individuals who arel unlikely to
change. In practice, judgments about
amenability are made on an individualized basis with decision makers taking
into account a child’s current circumstances, psycho-social profile and
response to prior interventions if any. Therefore the age of the offender and
the type of crime, generally speaking is less important than his or her
particular history.
In addition an over
reliance on incarceration hinders the ability of communities to develop ways of
managing members' behavior to control and prevent crime. Children are viewed as
future resources in the community even
though they may, at times, cause harm or create fear. Removing them weakens the
family and community and may deprive the community of present or future
contributions from the children. Losing children from a community is somewhat
like having a tear or imperfection in woven fabric. More stress is placed on
the remaining members, and the whole community is weakened and depleted of some
of its resources. This is graphically depicted by the comparison shown in Figure
1 below.
Figure 1: Loss of youth
resources due to incarceration
THEREFORE
NICRO SUBMITS THAT THE POSSIBILITY FOR DIVERSION BE ALLOWED FOR ALL CHILDREN
REGARDLESS OF AGE OR OFFENCE.
NICRO
FURTHER OBJECTS TO THE ALLOCATION OF A MAXIMUM TIME PERIOD RELATED TO DIVERSION
OPTIONS. ALL CHILDREN DO NOT RESPOND THE
SAME TO BEHAVIOURAL INTERVENTION AND SOME CHILDREN WILL TAKE LONGER TO ACHIEVE
OUTHCOMES THAN OTHERS. STRATEGIES
EMPLOYED IN DIEVERSION PRACTICE AND INTERVETNION SHOULD MAINLY BE SHOR TERM
SOLUTION FOCUSSED THERAPIES WITH COGNITIVE BEHAVIOURAL ASPECTS ATTACHED TO IT. IT WOULD THEREFORE BE MORE BENEFICIAL IF THE
TIME PERIOD DEFINED IN THE BILL RATHER SPEAKS TO THE MINIMUM TIME PERIOD THAN
TO A MAXIMUM. NICRO THUS SUBMITS THAT
THE MIMIMUM TIME FRAME FOR LEVEL ONE DIVERSION OPTIONS SHOULD BE SET AT NO LESS
THAN 3 MONTHS AND LEVEL TWO DIVERSION OPTIONS AT NO LESS THAN SIX MONTHS. A PROVISION SHOULD BE INCLUDED THAT IF THE
CHILD DOES NOT ACHIEVE SET OUTHCOMES WITHIN THAT PERIOD OF TIME, THE ORDER CAN
BE R”RENEWED” AFTER THE COURT IS SATISFIED THAT THE CHILD NEEDS MORE TIME TO
ACHIEVE OUTCOMES.