The Howard Journal Vol35 No 4. Nov 95 ISSN 0265-5527, fib. 287-298

Lost in the Myths of Crime: The Use of Penal Custody for Male Juveniles, 1969 to 1993

DAVID GODFREY Graduate Student, Institute of Criminology, University of Cambridge

Abstract: This paper considers published material on the use ofpenal custo+ for male oflenders aged I4 to 16years in the period from implementation of thc Children and Young Persons Act until the Home Secretary’s 1993 announcement of a new provision of secure training orders. I t is shown that the decline ofresihtial care in the 1970s contributed to a dramatic increase in the use of penal custdy, despite growing m‘ticism of both the level o f incarceration and the institutional regimes provided. Thc ‘tough’ approach of tht incoming government in 1979 k shown to have led to a trend away f m m the use of detention centres, and subsequently to a more general dccarceration, both of which were entirely contray to expectations. The conclusion is oflered that a ?iberal’poliEy may be possible only what goventmcRcS are contdent in their own strength and have no need to dmomlrate iheh ctougIIRIsJ’.

Male juveniles are consistently more prone to recorded offending than other groups. Perhaps for this reason, they tend to be the focus of ‘moral panics’ about crime (to the potency of which Cohen (1973) drew attention), and ar t seen to exemplifl ‘change for the worse’ from a viewpoint of ‘nostalgia’ (Pearson 1983). Juvenile offenders are often characterised as needing intervention to prevent them becoming habitual criminals. Against this background, disproportionate resort to penal custody might be expected, and the incoming Conservative government in 1979 was expected to respond to a perceived increase in juvenile crime by further extending the use of penal custody. But in a profound and unexpected change of sentencing preferences the incarceration ofjuveniles declined in the 1980s’ despite the government’s ‘tough’ rhetoric. The importance of this development is that, as prison overcrowding again threatens the stability of the prison system, an understanding of the reasons for the reduction in the use of custody for juveniles in the 1980s might suggest lessons to apply elsewhere in the system. The announce- ment in March 1993 of ‘secure training orders’ for juvenile offenders, and the suggestion in 1995 of ‘boot camp’ penal institutions modelled on American military training, might suggest a renewed moral panic and a reversion to custodial sentencing preferences, lending urgency to the need to understand the changing policy and practice of the 1970s and 1980s.

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The Decline of Residential Care and the Growth of Penal Custody, 1969-1978

Muncie ( 1987) characterised the ten-year period after implementation of the 1969 Children and Young Persons Act as one of ambiguity and confusion, with continuing conflict between the ‘social welfare’ approach of the Act and the ‘judicial’ approach favoured by the incoming Conservative government in 1970. The 1968 White Paper Children in Trouble (Home Ofice 1968) and the 1969 Act had not envisaged a reduction in residential care provision for juvenile offenders, but intended to divert them from penal custody to a mixture of community and institutional care by social workers, reflecting the dominance of the ‘social welfare’ approach. Despite this intention, care orders, which had been a cornerstone of the 1969 Act, by 1982 had shrunk to only 3% of disposals made on juveniles (Burney 1985, p. 2) and the population of community homes with education (CH(E)s) fell from 7,500 in 1975 to 2,800 in 1984, with a reduction by halfin the numberofinstitutions (Nellis 1992, pp. 31-2).

The contraction of care orders and CH(E)s affected the penal sector: ‘Some local authorities ceased attempting to make provision for such difficult youngsters, because they were taking up a disproportionate amount of resources. This decision was made in the certain knowledge that it would increase the likelihood of such youngsters being sentenced to detention centre or borstal’ (Nellis 1992, p. 29). Because some key provisions of the Act were not implemented, its welfarist principles were applied in addition to the existing judicial structure, so that the criminal justice system in the 1970s and early 1980s extended its reach to deal with a higher proportion of juvenile offenders. This ‘net widening’ effect meant that those who were drawn into the ‘soft’ end of the criminal justice system (who would formerly have escaped ‘treatment’ altogether) were put at risk of subsequent penal custody because, as Cohen (1985) put it, ‘The most severe punishments go not just to the worst offenders in legalistic terms, but to those who foul up at their previous level’ (p. 55). Although the 1973 Powers of Criminal Courts Act intended to limit the use of custody to cases where a non-custodial sentence was inappropriate, it did not apply to detention centre or borstal sentences, and the incarceration of juveniles increased throughout the 1970s. In short, the juvenile justice system had become considerably more punitive, and: ‘The opposite to that intended by the 1969 Act had occurred - sentencing had become more penal than welfare-orientated - and, paradoxically, the Act was blamed for this’ (Morris and Giller 1987, pp. 98-9).

An ‘Experiment’ in Deterrence and an Attempt at Reformative Treatment: The Expansion of Detention Centres and Borstals,

1969-1981

Junior Detention Centres Pressure had developed throughout the 1960s for a complete overhaul of disposals for juveniles, with particular concern about the irrelevance of

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the junior detention centres’ brisk, physically demanding regimes to the needs of the disturbed youngsters who comprised the bulk of their population. From their inception in the late 1940s, detention centres had been the subject of criticism, and no credible evidence was ever adduced to show that they acted as an effective deterrent, whether in individual or general terms. They had originally gained acceptance by being presented as an experiment, but had become an established element of the juvenile justice system, despite manifest failure to achieve their expressed aims (Land 1975; Muncie 1990). ‘Put simply, this method of punishment was very efficient at producing fit young criminals, nothing more’ (Allen et al. 1993, p. 7). The 1974 report by the Advisory Council on the Penal System (1974) (The Younger Report) specifically rejected the detention centre ethos of deterrence through hard work, spartan conditions and physical demands; but its proposals were not implemented, possibly because their firm emphasis on the minimum use of custody failed to satistjr the widespread perception that juvenile crime was rising out of control. The junior detention centre system was expanded to satisfjr magistrates’ demand for a custodial alternative to the care order for 14 to 16 year olds, and the numbers sent to detention centres increased, as Table 1 shows, trebling over the period.

TABLE 1 Receptions of Male Juvenile Oflenders Sentenced to Detention Centre,

and Percentage Index Change (1969 = IOO), 1%%1981

Year Number of Male Juveniles Received

Detention Centre Index

Junior Senior Total Change

1969 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981

191 1 202 7 2032 2492 3048 3567 4223 4827 5089 5325 5269 5505 5715

12 14 22 21 14

122 155 63

139 203 189 278 253

1923 204 1 2054 2513 3062 3689 4378 4890 5228 5528 5458 5783 5968

100 106 107 131 159 192 228 254 272 287 284 30 1 310

(Source: Home Office (annually) Prison Statistics)

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Borstals Most detention centre sentences were imposed by magistrates, but borstal sentences (being longer) were the prerogative of the higher courts. Where the detention centres were avowedly deterrent, the borstals were purportedly reformative, but persistent efforts to demonstrate their effectiveness showed unconvincing results. Research, except where it was influenced by wishful thinking, generally failed to show that reformative effectiveness was reliably achieved by any custodial regime (Lipton et al. 1975; Brody 1976). The reconviction rate within two years of release from borstal was between 70% and 85% in the 1970s. Despite the purported concentration of reformative efforts in the borstal system, the pursuit of reformative effectiveness was largely illusory. Activities specifically aimed at the prevention of reoffending were limited - much more so than the reformative rhetoric suggested (Hood 1965; Godfrey 1986).

The appropriateness ofthe borstal approach was under growing scrutiny in the 1970s, and confidence in its efficacy was diminished. The official submission to the May Inquiry admitted that ‘there is no longer a belief that any particular style of regime is a cure for any particular kind of inmate’ (Home Ofice et al. 1979, p. 29), and Lowson (1975) found that trainees ‘saw borstal not as a training but as a punishment, and few thought of themselves as being helped except in minor ways’ (p. 155).

Despite these growing reservations, the number of borstal sentences increased as the higher courts used detention centres less and borstal sentences more. Detention centre sentences passed on juveniles in higher courts fell from 32% of disposals in 1965 to only 18% in 1977, whilst borstal sentences rose from 36% to 52% (Godfrey 1986, p. 5). I t seems that many juveniles, having previously been sent to a junior detention centre, were sentenced to borstal on reconviction largely because the custodial precedent had already been set (Godfrey 1991). The doubling of juvenile borstal receptions in ten years is illustrated in Table 2.

From the early 1970s onwards the penal institutions were under severe pressure of numbers.

A ‘Tough’ Approach, 1979-1982

There was an expectation, encouraged at the 1979 Conservative Party Conference, that the incoming government would act decisively to counter the perceived escalation in juvenile crime, which led to the ‘short sharp shock’ reversion of detention centre regimes to the original punitive model on an ‘experimental’ basis, but the late 1970s and early 1980s brought a rash of criticism in response to both the high rate of incarceration of juveniles and the reformative failure of custodial disposals (Jay 1977; Crow 1979; Howard League 1979; Bottoms 1979). In a greatly increased overall population in custody, those aged under 21 had contributed most, as short custodial sentences for adults had largely been replaced by non- custodial sentences (Baldock 1980). This was noted in the 1980 White

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TABLE 2 Receptions of Male Juvenile O f f d e r s Sentenced to Borstal,

and Percentage Index Change (1969 = I@) , 1969-1981

Year Number of Male Juveniles Index

Received in Borstals Change

1969 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981

771 88 1 963

1073 1158 1240 1499 1654 1703 1647 1509 1495 1505

100 114 125 139 150 161 194 214 22 1 213 196 194 195

(Source: Home Ofice (annually) Prison Statistics)

Paper Young Offenders (Home OAice 1980), which nevertheless proposed to retain junior detention centres. Non-custodial penalties were to be strengthened, but custodial institutions remained central in the govern- ment’s plans for dealing with juvenile crime, and this was deplored by commentators (Brown 1981; NACRO 1981a, 1981b).

Consistently with the ‘tough’ ideological approach of the White Paper, the 1982 Criminal Justice Act enabled magistrates, under new powers, to impose youth custody (replacing borstal) as well as detention centre sentences, and it seemed that the use of penal custody for juveniles would continue to increase. Under the previous arrangements, a quarter of committals from magistrates’ courts to the Crown Court with a recommendation for borstal were rejected, and a non-custodial sentence substituted by the higher court, but the 1982 Act withdrew this routine review of magistrates’ decisions, and the use of youth custody sentences increased. The number of care orders fell by 81% between 1974 and 1985 (from 7,100 to 1,350) while the use of custodial sentences increased by 11% (from 5,400 to 6,000) (Morris and Giller 1987, p. 128). I t seemed, a t that stage, that events were unfolding in a manner consistent with the government’s ideology, and this view was supported by the extension in 1984 of the ‘tough’ detention centre regime despite clear evidence of its irrelevance to both crime rates and reconviction rates (Thornton et al. 1984).

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The Beginning of Juvenile Decarceration, 1982-1987 The first signs of juvenile decarceration were apparent only in detention centre sentencing, which unexpectedly declined in the early 1980s. A Home Office report in 1985 found that overall receptions of male juveniles had fallen a little, but the distribution of sentences had markedly changed, with detention centre receptions down by 16% and youth custody receptions up by 41% (Home Office 1985, quoted by Morris and Giller 1987, p. 126) fuelling fears that whilst receptions might fall the juvenile population in custody might rise. The continuing development of this trend is shown in Table 3. Detention centre receptions in 1987 were less than half the 1982 number, whilst youth custody receptions rose sharply before falling to a little less than the 1982 level.

As far as the courts were concerned, detention centres appear to have become discredited, and this seems to signify a degree of receptiveness among magistrates which was not apparent in the 19709, when detention centres were subject to similar cogent criticism but were rapidly expanding, as we have seen. The disillusion with detention centres among magistrates was such that 27 (3.4%) of a sample of 789 youth custody sentences in 1987 were for four months and one day, thus just clearing the length limit for detention centre sentences (NACRO 1988, quoted in Allen 1991, p. 39), but many offenders who would formerly have gone to detention centres received non-custodial sentences, and so the trend towards decarceration began.

The incipient transformation of sentencing practice was unforeseen as late as the mid-1980s: ‘Not much hope of success has been suggested by

TABLE 3 Receptions of Male Juvenile 0 ffenders Sentenced to Detention Centre and

Youth Gusto& Centre (Borstal until IW), and Percentage Index Change (1982 = IOO), 1982-1987

Year Number of Male Juveniles Received

Detention Index Youth Index Index Centre Change Custody Change Total Change

1982 5573 100 1309 1983 4788 86 1692 1984 4447 80 1830 1985 3945 71 1612 1986 2843 51 1236 1987 2450 44 1239

(Source: Home Office (annually) Prison St~tlstics)

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~

100 6882 100 129 6480 94 140 6277 91 123 5557 81 94 4079 59 95 3689 54

the present findings . . . There is good cause to be pessimistic about the effects on sentencing of the provisions which are supposed to limit the justifications for custody’ (Burney 1985, pp. 89-90).

A Reductionist Policy, 1988-1993

The 1988 Green Paper Punishment, Custody and the Community adopted a reductionist approach, in marked contrast to the 1980 White Paper, asserting that ‘Even a short period of custody is quite likely to confirm them as criminals . . . They see themselves labelled as criminals and behave accordingly’ (Home Ofice 1988, cited in Howard League 1993, p. 25). The 1988 Criminal Justice Act dealt with the under-occupation of detention centres by combining them with the former youth custody centres into a generic system of young offender institutions, and the trend away from detention centres now began to be followed by a generally decarcerative tendency in sentencing. Supervision orders were increasingly used as a vehicle for intermediate treatment (IT) which provided various forms of activity for offenders . In 1983 the Department of Health and Social Security provided E 15 million, which created 3,400 IT places, and in 1989 73 of the original 93 projects continued to provide alternatives to custody (NACRO 1991, p. 34). The accelerated development of IT, and the campaign associated with it, captured the high intellectual and moral ground in the debate on the role of custody for juveniles, and supported the trend towards decarceration. A variety of factors seem to have contributed to this, including a drive from social workers for non-custodial disposals (Allen 1991; Rutherford 1992)’ but it remains unclear why success ensued in the unlikely setting of ‘the Thatcher years’. Whether the substantial decarceration of juveniles was accompanied by an increase in offending is contested. We may say, at least, that the emerging new policy produced no apparent explosion in juvenile offending.

By the late 1980s the number ofjuveniles in penal custody had fallen to the extent that its abolition had become a realistic possibility. The male juvenile population in penal custody on 30 June 1990 consisted of 15 fourteen year olds, 107 fifteen year olds and 238 sixteen year olds (Howard League 1993, p. 25). The total, 360, represents a remarkable contrast with the position ten years previously, when over 7,000 custodial sentences on boys had been passed. The Home Secretary’s announcement in March 1993 of ‘secure training orders’ for ‘a comparatively small number of school-age children [who] are responsible for a high proportion of crime’ (Hamad, 2 March 1993, 139-140) might presage a return to higher rates of juvenile incarceration, and was immediately deplored by commentators (Allen et al. 1993; Jones 1993; NACRO 1993a, 1993b; Penal Affairs Consortium 1993). This was followed in 1995 by talk of the introduction of ‘boot camps’ for young offenders, modelled on American military basic training, but redolent also of the discredited British ‘short sharp shock‘ detention centres. If these initiatives come to fruition, much of the progress of the 1980s will be in jeopardy.

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Conclusion This exploration of the growth of penal custody for juveniles in the 1970s, the unexpected reversal of the trend in the 1980s, and the threatened re- emergence of a more custodial policy since 1993 has illustrated a limitation of explanations derived from the theoretical work of Foucault (1977) and Cohen (1983, 1985). Whilst the ‘dispersal of discipline’ thesis offers an attractive post hoc explanation of the 1970s incarceration and, perhaps, of current renewed interest in custodial disposals, it can cast no light on the reasons for the 1980s decarceration. It remains unclear why the preference of practitioners for non-custodial sentences, which had manifestly failed to prevent a massive increase in penal custody in the 1970s, succeeded in starting a decarcerative trend in the unlikely setting of the 1980s.

It may be that the decarceration of juvenile offenders became possible only in the context of a particular mood among sentencers. A suitable framework of legislation might have been necessary, but it was clearly not a sufficient cause of the change: indeed, the 1982 Criminal Justice Act was widely seen as tending in the opposite direction. Academic and statistical evidence of the superior economy and effectiveness of non-custodial disposals might have been significant, but it was chronically prone to being ignored by sentencers. Willingness among the police to use formal cautions, and among social workers, probation officers and others to press for and implement non-custodial disposals might have been crucial, but it is doubtful whether it would have been tolerated to the same extent in a different atmosphere. An essential added ingredient might have been a mood among politicians, police, magistrates and judges that with a ‘strong’ government in office they could afford to be ‘liberal’ without inviting a catastrophic public reaction to the perceived escalation of juvenile crime. I t might be relevant here to recall that the decarceration of juveniles began in a period of bullish government attitudes towards, for example, the Falklands war, unemployment, the welfare state and the miners’ strike.

More recently, the government has been widely perceived as weak and vacillating, and this might explain its sudden change of attitude towards custodial sentences at the end of 1992 (Faulkner 1995, p. 14). Apparently, loss of self-confidence in the government was promptly followed by a renewed assertion of ‘tough’ attitudes to crime. This included reference to secure training orders and ‘boot camps’ for juveniles and young adults, but has also been manifested in ‘prison works’ rhetoric and ‘tough’ ministerial reactions to a series of (mostly synthetic) scandals about luxurious^ prison conditions. This change of mood might prove capable of reversing all the progress made in the 1980s towards ending the routine use of penal custody for young offenders. As King and Maguire (1994) put it: ‘A shift in public mood towards reduced tolerance of offending, reflected in marginal changes in the practice of individual sentencers, can be sufficient to set in motion an almost uncontrollable surge in prison numbers’ (p. 7). If the outcome is a renewal of custodial sentencing

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resources and preferences, incarcerated juveniles may be once more lost in the myths of crime.

For both juveniles and older prisoners, the Woolf agenda for action to achieve justice and humanity in prisons, and so reduce the risk of further riots, seems to have been abandoned in favour of ‘decent but austere’ regimes, but the possibility of progress is also threatened by the resumed pressure of overcrowding. Government policy on the use of imprisonment has been essentially unchanged since expressed by William Whitelaw in 1982: ‘We are determined to ensure that there will be room in the prison system for every person whom the judges and magistrates decide should go there, and we will continue to do whatever is necessary for that purpose’ (quoted in Rutherford 1984, pp. 56-7). This approach entirely overlooks the possibility that sentencers’ decisions may be influenced by the tone of political rhetoric, to the extent that no imaginable increase in penal capacity will be sufficient against a background of ‘tough’ talk. ‘By 1994, 19,500 places will have been added to the system since 1979 . . . Yet the hopes of the government that this expansion would see an end to overcrowding have not yet been fulfilled, and still look precarious’ (Morgan 1994, p. 890). The unprecedented prison building programme of the 1980s and early 1990s is already being supplemented, for example by the decision to build a further large prison on the site of the former open borstal at Lowdham Grange. American evidence seems to confirm that, in an intolerant political climate, the more prisons you build the more you fill them (Fitzgerald and Sim 1987, p. 10). After the Strangeways riot (1990) and the Woolf Report (1991) there was a reduction of several thousands in the incarcerated population. With new accommodation coming on stream, optimism prevailed and some establishments were scheduled for closure. The change of mood in late 1992 introduced a ‘talking up’ of custody generally, and 1993 brought a sharp rise in the population. Some of the establishments already closed were recommis- sioned; most of those scheduled for closure were reprieved; and the building programme resumed, including for the first time resort to private sector management in an effort to speed the building of new prisons. By early 1995, the prison population was higher than ever before, and now seems likely to continue rising, regardless of any change in recorded crime, largely in response to the new ‘tough’ mood. This concept of ‘mood’ is intangible and difficult, but it seems to be a potent factor. From this viewpoint, the decarceration ofjuveniles in the 1980s can be seen as a temporary phenomenon, possible only until the government felt a need once more to assert its ‘toughness’.

It is inconceivable that increased use of custody will impact significantly on perceptions of ‘the crime problem’ against a background of alarmist political rhetoric, but the government, having wedded itself to the ‘law and order’ slogan, might now see political advantage in a moral panic about crime. ‘A cynic might even wonder whether they don’t want a larger crime rate - the more the public fear, the stronger the “law ’n’ order” card’ (Sapsford 1995, personal communication). At the same time, perhaps because of a dawning awareness that ‘the crime problem’ will

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never be ‘solved’ by existing policies, there are signs of the government distancing itself from the recurrent crises in the criminal justice system (McLaughlin and Muncie 1994) whilst still pursuing the short-term political advantages of ‘tough‘ rhetoric. ‘Crime and criminal justice issues have become, for the first time in recent history, the stuff of party political conflict. Perhaps that is why both the nature of the problem and the attempted “solutions” are constantly fudged, in the knowledge that success in the war against crime is so unlikely that it is safer to leave plenty of room for policy “manoeuvres” ’ (Bottomley 1986, pp. 214-15).

As well as the unhelpful background of ‘tough’ political talk, judicial resistance will have to be overcome if progress towards a more sparing use of imprisonment is to be made, and this will be dificult because ‘Criminal justice policy is seen almost as a contradiction in terms by the judiciary, since it is defined as encroaching on their own preserve . . . Given the resistance of the judiciary on the one hand, and the policy framework vacuum on the other, it is hardly surprising that no very substantial attempt has been made to enunciate an overall criminal justice policy’ (Downes 1988, p. 201). Meanwhile, the absence of any credible policy framework leaves us vulnerable to continued confusion and vacillation, at the mercy of each political wind that blows.’

Note ’ The study on which this paper is based was part of an Open University course

sponsored by the Prison Service, to whom the author gives grateful acknow- ledgement.

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