Nº 23 | May 2018 | Latin America Justicia · First publication May 2014 Edition N°19. Banlieues - Suburbs of Rage: an Latin American perspective. by Carlos Landeo First publication

Nº 23 | May 2018 | Latin America

Phot

o: ©

Tdh

Justiciapara CrecerSpecialized Magazine in Restorative Juvenile Justice in Latin America and Caribbean

World CongressSpecial Edition

15 Years of Restorative Juvenile Justice in Latin America

on Justice for Children 2018

2 / Justicia para Crecer

ContentEditorialTowards better justice for adolescents in conflict with the law: The contributions of Justicia para Crecer in Latin America and around the worldby Véronique Henry Restorative justice: The conceptby Howard ZehrFirst publication April 2011-March 2012 Edition N°18

Punitive populism in Latin America:Why has it become so widespread? What are the alternatives? by Ernesto Rodríguez First publication May 2014 Edition N°19

Banlieues - Suburbs of Rage: an Latin American perspective by Carlos LandeoFirst publication April-June 2006 Edition N°2

Latin America’s Dilemma: Neoretributionism or Rehabilitation? by Atilio Álvarez First publication February 2006 Edition N°1 Why do we need a specialized Juvenile Police?by Chris GravesonFirst publication June-September 2007 Edition N°7

Recover and Supervise:Diversion, an effective instrument for recovering adolescents in conflict with the criminal lawby Renate WinterFirst publication April-June 2006 Edition N°2

Mediation, Victims and the Right to Reparation by Tony PetersFirst publication July-September 2006 Edition N°3

Mediation and the CourtsThe Active Role of Magistrates in Implementing Criminal Mediation in Swiss Law by Michel LachatFirst publication October-December 2009 Edition N°15

What is Mediation?by Jean Zermatten First publication July-September 2006 Edition N°3

Mandatory sentencing, less recidivism by Sebastian RochéFirst publication December 2015 Edition N°20

3

5

10

16

20

22

32

36

40

46

54

Nº 23 | May 2018

Review on Restorative Juvenile Justice published by Terre des hommes Foundation.

Executive committee:Véronique Henry, Kristen Hope, Marc Luna

Editorial committee:Oscar Vásquez, Antonio Varón, Gladys Montero, Juan Pablo Sánchez, Víctor Herrero, Renato Pedrosa, Fara Jean-Baptiste.

Editorial secretary:Christelle Antonetti, Marie Dupret, Edgar García.

Experts:Atilio Álvarez, Alejandro Cussianovich, Ernesto Rodríguez, Jean Zermatten, Leoberto Brancher, Antoine Lissorgues.

Collaborators of this edition:Atilio Álvarez, Chris Graverson, Michel Lachat, Carlos Landeo, Tony Peters, Sebastian Roché, Ernesto Rodríguez, Renate Winter, Howard Zehr, Jean Zermatten.

Photography:Eitan Abramovich, Drawlio Joca, Christian Poveda, Odile Meylan, C. Renaudat, Sandro Mahler, Mélanie Rouiller, Gloria Pardo.

Impression/printing:UNESCO

Conception and layout: Romy Kanashiro & Omar Gavilano

E-mail: [email protected]

Web:www.tdh.ch

Special edition elaborated for the World Congress on Justice for children, Paris, May 2018

The reproduction of the contents is authorised by quoting the source.

Justiciapara Crecer

This publication is a part of the intervention in Restorative Juvenile Justice of Terre des hommes Foundation in Brazil, Colombia, Ecuador, Haiti, Honduras, Nicaragua, Panama, Paraguay and Peru.

In several articles the term “minor” is used for the country legislation to which the article refers. Tdh respects this legal term although it adds that it prefers speaking of “ teenager in conflict with the law “. This is a magazine that invites to the plural dialog of ideas, for what not necessarily Tdh share all the opinions of the authors. The opinion of the columnists and our readers is valuable and your contributions are welcomed. Write to us at the email: [email protected]

Present published articles are translated from Spanish respecting the words of the author

Justicia Para Crecer/ Justice to Grow

Justicia para Crecer / 3

Editorial

The contributions of Justicia para Crecer in Latin America and around the world

Towards better justicefor adolescentsin conflict with the law

he first edition of Justicia Para Crecer1 was launched in Peru in 2005 by Terre des hommes Foun-dation and the Peruvian organi-

zation Encuentros Casa de la Juventud, as part of the Restorative Juvenile Justice pilot project. Twenty-two editions and 13 years later, we remain committed to promoting

1 « Justice to grow »

exchange and sharing of good practices, in Latin America but also elsewhere. In recent years, we have been actors and witnesses of undeniable and significant progress in this regard. Amongst a number of countries that merit mention, Peru is a clear example of the transformation of the juvenile justice system, where the restorative approach is currently applied

at national level by justice operators and specialized technical teams, against the backdrop of legislation that has clearly adopted this approach. The journal Justicia Para Crecer has made a significant contribu-tion to the promotion and dissemination of restorative juvenile justice in Latin America.

On the occasion of the World Congress on Justice for Children, organized in Paris in

TPh

oto:

© Td

h / Ei

tan A

bram

ovich


Editorial

May 2018 by Terre des hommes Founda-tion (Tdh), the International Association of Youth Magistrates and the Family (AIMJF) and Penal Reform International (PRI) with Child Rights International Network (CRIN), Defense for Children International (DCI), the Institute of Judicial Training of Belgium (IGO-IFJ) and the Information for All Program of UNESCO, we decided to publish a compilation of the best articles to disseminate widely and share with actors from around the world. Indeed, against the current global context, in which populist and extremist tendencies risk provoking stigmatization, division and violence, we seek, now more than ever, to promote and strengthen juvenile justice systems that empower, prevent, repair and reintegrate. Since the entry into force of the Convention on the Rights of the Child twenty-eight years ago, the vast majority of States around the world have made legislative reforms that make it possible to move from a tutelary system to a justice system in line with the Articles 37 and 40 of the Convention and with the international in-struments proclaimed in recent decades. As the Final Declaration of the World Congress

on Juvenile Justice (Geneva, 2015) points out, the main challenge is the effective implementation of existing international standards in the field of the administration of juvenile justice, which implies a mobili-zation resources and the capacity of state justice systems to implement comprehen-sive public policies that uphold the best interests of the child, while addressing children’s development, integrity and right to participation.

Tdh works with juvenile justice systems in 23 countries in different parts of the world. Such a wide variety of contexts, in which multiple legal systems, including customary, religious and indigenous systems co-exist, exhibit more or less restorative practices. It is, therefore, important to continue to exchange, innovate, promote better laws and best practices, investigate and col-lect scientific data to stimulate positive change. Despite considerable progress, many challenges remain. There is still a long way to go to decrease the use of use of pretrial detention and increase the use of non-custodial measures and alternatives to detention, so that deprivation of liberty actually becomes a measure of last resort

and used for the least possible time. More-over, more needs to be done to ensure that conditions of detention respect the dignity of adolescents, so that they have access to a specialized justice system that respects their rights. Finally, the restorative approach should be used more widely, in the interests of adolescents, of those affected by their actions, and of society in general. It is important to mention the difficult task of choosing the «best articles» from over than 200 articles spanning twenty-two editions of the journal, articles which demonstrate a diversity of authors and practitioners from around the world, reflecting a richness of experience. Unfortunately, in this edition we have not been able to showcase a wider range of articles, but we invite you to consult them in their entirety online (in Spanish). This compilation is an invitation to continue to debate, reflect, exchange and mobilise around forms of justice that are more re-spectful of the rights of adolescents at risk or in conflict with the law, with a view to promoting peace and social harmony.

Phot

o: ©

Tdh /

Eita

n Abr

amov

ich


Howard ZehrSociologist. Professor of Restorative Justice at the Mennonite University of Harrisonburg (Virginia, USA). Author of The Little Book of Restorative Justice, and Changing Lenses: A New Focus for Crime and Justice

Restorative Juvenile Justice

Phot

o: ©

Tdh

“There is a revolution taking place in crim-inal justice. A peaceful, grass-roots but really revolutionary movement is changing the very nature of our work”. These are the opening words of a publication by the National Institute of Corrections. The author of Characterizing the combined

The author, considered to be one of the pioneers of Restorative Justice, wrote this article in 1997, the essential details of which, in contrast to retributionism, remain so valid that it must now be republished for our readers.

community and restorative justice move-ments, Eduardo Barajas, Jr., a NIC pro-gramme specialist, notes that change is going beyond the majority of reforms that have been made throughout the history of criminal justice: “What is happening now

is more than innovative, it is completely new […] a change of paradigm”.

Restorative justice is being considered at the highest levels. But is this just a passing novelty in a field known for its many flirtations with the new?

RestorativeThe conceptjustice:


Phot

o: ©

Tdh /

Chr

istia

n Pov

eda


The restorative justice movement has come a long way since bail supervisor Mark Yantzi and his partner Dave Worth took two frightened offenders to the homes of their victims in Elmira, Ontar-io, in 1974. Who could have imagined, when we began our version of mediation between victim and offender in Elkhart, Indiana, that years later we would be in the vanguard of a movement with the potential to revolutionise justice?

The interest seen today in the United States is the product of several decades of innovation and experimentation at community and state level. It is not just North America that is interested in re-storative justice. In Europe, for example Germany, Finland and the United King-dom, many reconciliation programmes involving victims and offenders have been developed. Restorative justice in New Zealand concentrates on family group meetings, and this approach is currently the basis of the country’s entire juvenile justice system. This was then adopted in Australia and now here, in North America, family or “community” group meetings are attracting a great deal of attention.

As we can see from Barajas’ observations, restorative justice does not mean simply adding a few new programmes or reform-ing old ones, rather, restorative justice involves changing the way we think about offences and justice. The problem of past efforts at reform –so often fruitless– is that we have not dared to look at problems and solutions from a new perspective.

The concept of restorative justice can be framed in different ways. However at a consultation meeting with specialists in restorative justice and rehabilitation sponsored by the NIC Academy, that there were two basic ideas: restorative justice focuses on damage and encour-ages involvement of an extensive set of interested parties. As can be seen, much of restorative justice derives from these two concepts.

First of all, restorative justice considers an offence as an act of damage to people and communities. Our legal system, centred on laws and regulations, frequency loses sight of this reality, that offences are essentially damaging; consequently the victims in most cases are a secondary concern of the justice system. However a damage-based approach makes the needs and roles of the victims the central concern. Restorative justice begins, then, with a concern for the victims and how to meet their needs and as far as possible to repair the damage done, both in concrete and symbolic terms.

Concentrating on damage also implies emphasising holding the offender to ac-count –in a concrete and not an abstract manner. Too often we think of holding an offender to account as a punishment, pain inflicted as a result of the pain he has caused to others. This has very little to do with real accountability. The justice process also does very little to encourage offenders to understand the consequenc-es of their actions or to empathise with their victims; on the contrary, the accu-satorial system requires offenders to be concerned about themselves. They are not encouraged to recognise their respon-sibility and are given no opportunity to


Phot

o: ©

Tdh

/ Gl

oria

Par

do

reflect on their responsibility in concrete terms. The “neutralisation strategies”, stereotypes and rationalisation used by offenders to distance themselves from their victims are never questioned. Thus, the alienation from society felt by many offenders is exacerbated by the legal process and life in prison. If the offence is considered essentially as damage, accountability implies encour-aging an understanding of this damage and the consequences of one’s individual behaviour. Furthermore, it means taking responsibility for correcting matters as far as possible, both materially and sym-bolically. As our forebears knew perfectly well, errors create obligations; assuming responsibility for these obligations is the start of a genuine process of holding to account.

The principle of involvement suggests that those principally affected by the offence –victims, offenders, members of the com-munity– should be given significant roles in the justice process. They need to be given information and to become involved in the judicial decision making process in each case. Sometimes this may mean a dialogue between these parties, such as during mediation between the victim and

«Restorative justice involves changing the way we think about offences and justice. The problem of past efforts at reform –so often fruitless– is that we have not dared to look at problems and solutions from a new perspective».

Retributive justice

Table 1

The offenceis a violation of the law, with the state as the victim.

The aim of justice is to establish who is guilty (blame) and to impose a painful sentence (punishment).

The process of justice is a conflict between adversaries in which the offender confronts the rules of the state, intentions exceed results and one side wins while the other loses.

Restorative justice

The offenceis a violation or damage inflicted on people and relationships.

The aim of justiceis to identify obligations in order to satisfy needs and promote healing.

The process of justiceinvolves the victims, the offenders and the community in an effort to identify obligations and solutions, maximising the exchange of information (dialogue and mutual agreement) between them.

the offender, or in a family group meeting to reach a decision on what should be done. At other times it may involve a di-rect exchange or the use of substitutes. In every case, involvement implies including

a wider circle of people, which does not occur in the traditional justice process.

At the risk of excessive simplification, restorative justice and the usual approach



of traditional justice (which for brevity we may call retributive justice) can be summarised as follows (see table 1):

Restorative justice at its simplest: an offence is a violation committed against the person. Such violations always create obligations. Justice should involve the victims, the offenders and members of the community in a search to identify needs and obligations, so that matters can be corrected as far as possible.

“Restorative justice” is a term that intui-tively chimes with many people, and that is the source of both its strengths and its weaknesses. Many professionals, as well as the public in general, feel frustrated with the way justice is usually applied and are immediately attracted to the idea of restoration. “Restorative justice” suggests a restorative approach based on the individual and on common sense. For many of us this reflects the values we grew up with. As a result, the term has been adopted and used widely in many contexts.

But what do we want to say when we use it? Is it to be used simply as a new name and way of justifying the same old programmes and aims? There are many programmes, such as community service, that may be compatible with restorative justice if they are redesigned to comply fully with restorative principles. Will we make the effort needed to redo the anal-ysis, or will we merely give a new name to what we already have?

We are already seeing programmes that are not really based on restorative justice, but nevertheless operated under that name, and when they fail may give restorative justice a bad name.

Restorative justice will simply be one more item on a large list of passing trends unless we think carefully about its principles and interrelations. This means paying attention to values. The following “indicators of restorative justice” may be used as a check list (see table 2):

None of this means that there is any “pure” form of restorative or retributive justice. Rather, justice may be seen as a

We are working towards restorative justice when...

1. ...we concentrate on the damage caused by criminal conduct more than on the laws that have been broken.

2. ...we are equally concerned about and committed to victims and offenders and both are involved in the process of justice.

3. ...we are working towards the restoration and empowerment of the victims and responding to their needs as they see them.

4. ...we support offenders at the same time as we encourage them to understand, accept and carry out their obligations.

5. ...we recognise that although the obligations may be difficult for offenders, their purpose is not to cause damage and they must be achievable.

6. ...we provide opportunities for dialogue, either direct or indirect, between victims and offenders as the case may be.

7. ...we involve and empower the affected community through the process of justice and increase its capacity to recognise and respond to the community origins of the delinquency.

8. ...we encourage collaboration and reintegration instead of coercion and iso-lation.

9. ...we pay attention to the unforeseen consequences of our actions and pro-grammes.

10. ...we show respect to all parties, including victims, offenders and colleagues in the justice sector.

-Harry Mika and Howard Zehr

continuum between two “ideal types”. At one extreme is our western legal system, which has substantial strengths, such as the promotion of human rights. However it also has important weaknesses. Crim-inal justice tends to be punitive, conflic-tive, impersonal and centred on the state. This provides an incentive to negate any responsibility and empathy on the part of offenders, leaving the victims in the cold and ignoring their needs. Instead of

Table 2

«Restorative justice focuses on damage and encourages

involvement of an extensive set of interested parties».

Indicators of restorative justice



discouraging their criminal behaviour, it usually encourages it. It exacerbates wounds instead of healing them.

At the other extreme we find the restor-ative alternative. The needs and rights of victims are central, not peripheral. Offenders are encouraged to understand the damage they have caused and to take responsibility for it. This approach encourages dialogue, whether direct or indirect, and communities play an import-ant role. Restorative justice assumes that

Table 4

RETRIBUTIVE JUSTICE RESTORATIVE JUSTICE

Problem

Defined in a limited and abstract manner as an infringement of the law.

Defined in a relational manner as damage to a person.

Only the legal variables are relevant The general context is relevant

The State as victim Individuals as victims

Actors

The State (active) and the offender (passive) The victim and the offender principally, together with the community and the State

Process

Contentious, authoritarian, technical and impersonal

Participatory, maximising information, dialogue and mutual agreement

Focused on blame and guilt Focused on needs and obligations

Encourages “neutralising strategies” Encourages empathy and responsibility

Results

Pain, suffering Correction of things identified as needs and obligations; healing, solutions to problems

The damage caused by the offender is balanced by damage applied to the offender

The damage caused by the offender is balanced by doing good.

Aimed at the past Aimed at the future

Table 3Retributive Justice

What laws have been infringed?

Who infringed them?

What do they deserve?

Restorative Justice

Who has been damaged by this event?

What are their needs?

What are the obligations and who should assume them?

justice can and must promote healing, at individual and social levels.

Criminal justice is usually not purely retributive. However we will find it diffi-cult to achieve a justice system that is ful-ly restorative. One realistic aim however is to progress as far as we can, and this will vary with each programme and each case, towards a process that puts victims and offenders and their needs and roles at the centre of our search for a justice system that heals.

«First of all, restorative justice considers an offence as an act of damage to people and communities. Our legal system, centred on laws and regulations, frequently loses sight of this reality».

* Article originally published in the magazine Corrections Today (United States, 1997).

Phot

o: ©

Tdh



PunitiveLatin America:

he failure the punitive populism is abundantly clear at several levels and the crisis in the prison systems is just one of them. This has been documented and analysed very systematically, at least over the past ten

to twenty years. One only needs to remember the contributions by Michel Foucault in “Discipline and Punish”, John Prat in “Punishment and Civilization” and David Garland in “The Culture of Control”, among the most outstanding, to conclude that from the beginning, prisons have failed in their aim of rehabilitation and have barely managed to “isolate” those “undesirables” in the eyes of the dominant sectors of our societies. But, in recent years the problem has become much worse, particularly in view of the war on drugs, the creation of new crimes and a generalised increase in sentences as a response to the demand for “tougher treatment” from the majority of the population in almost all of our countries. Thus, the prison system is collaps-ing completely: prisons hold three to four times the number of

detainees, many in pre-trial detention, that they were designed for. This has resulted in the deterioration of daily prison life and systematic violation of human rights.

What, exactly, does the term “punitive populism” refer to? It designates not legal or criminological categories, but about a decidedly political concept. In fact, it refers to the direction tak-en by our party political system, basically through its executive and legislative powers, in response to demands for tougher measures against crime from a public heavily influenced by the mass media. This is most visible, for example, in Central America, where various political parties and coalitions have won elections by promising to be “tough on crime” and even “super tough” and uncritically adopting the “zero tolerance” model of Mayor Giuliani in New York, which was really no more than an effective publicity strategy. Evaluations of the zero tolerance policy have shown that juvenile violence in the United

Why has it become so widespread? What are the alternatives?

It is in fact, a question of the direction taken by our party political system, basically through its executive and legislative powers, in response to demands for tougher measures against crime

from a public heavily influenced by the mass media. This is most visible, for example, in Central America, where various political parties and coalitions have won elections by promising to be

“tough on crime” and even “super tough” and uncritically adopting the “zero tolerance” model.

populism in

Ernesto RodríguezUruguayan sociologist. Director of the Latin-American Center on Youth (CELAJU). Youth policies expert and governmental adviser on youth policies in different countries of Latin America

T



Phot

o: ©

Tdh

/ Dr

awlio

Joc

a

States fell in the nineties in those states where abortion had been decriminalised some 10 to 15 years previously, and not as a result of zero tolerance. In Central America, this toughness on crime took the form of draft laws (such as the anti-gang laws that penalise membership of a gang whether or not any crime has been committed), that were passed with not the slightest consideration of what their consequences would be in practice. But were these laws passed in the expectation that they would be effectively implemented? Definitely not. The aim was to show concern for the subject even though the measures would not really be enforced; but the problem is much deeper than political irresponsibility and is certainly linked to profound structural dynamics that ought to be rigorously analysed.

As Loic Waquant proposed in “Punishing the Poor”, we are up against a central component of the neoliberal model, better known for privatisations, deregulation of markets and

shrinking of the state but which also functions “punitively” as a mechanism for controlling the inevitable social unrest caused by sectors who lose out as a result of these economic, social and political strategies. In this approach, the punitive concept included in criminal policy in advanced societies is not limited solely to “crime and punishment”. In fact, it is about the establishment of a new government dominated by social uncertainty and containment of urban unrest provoked by eco-nomic deregulation and the conversion of welfare policies into a springboard to underemployment. Within this liberal-paternalist apparatus, the police and prisons have returned to their original mission: to force people and rebel territories to conform to the emerging economic and moral order.

This approach enables analysis of the immense prison system of the United States: where the punitive model evidently originated, built on the ruins of the charitable state and black



ghettos, it now dominates the majority of advanced countries and a good many of those in the so-called “developing world” (included many in Latin America), in which the prison population has multiplied exponentially even though there has been no parallel increase -even a minor one- in offences. Wacquant shows how a new government of social insecurity has been created, which combines restrictive workfare with expanded prisonfare, at the same time as neoliberals encouraged eco-nomic deregulation and a reduction in social assistance during the last decades of the 20th Century. In doing so, the author has made three great breaks with the consensus: (i) regard-ing crime and punishment; (ii) regarding the renewal of links between social policies and criminal policies; and (iii) he has overcome the traditional opposition between the materialistic and symbolic approaches.

With regard to the first of these breaks, Wacquant adopts Bour-dieu’s approach to the State, assuming that the latter is not a monolithic construct at the service of the ruling classes, but a space in which rival forces vie for the definition and distribu-tion of public assets. If that is true, prisons are not simply the

response of the all-powerful state to those committing offences; the punitive model is a control strategy for marginalised and “dangerous” sectors of society (whether or not they commit relevant offences). As far as the second “break”, Wacquant says that neoliberalism is much more than promoting the market and a reaffirmation of the prerogatives of capital; in fact “it is a multinational political project aimed at rebuilding the nexus between the market, the state and citizens from above”, which leads to four logical propositions: (1) Economic deregulation (the best-known facet); (2) decentralisation, retraction and re-composition of the welfare state; (3) the cultural approach of individual responsibility (over and above any collective logic); and (4) an expansive, intrusive and proactive criminal apparatus “that penetrates the lowest regions of the social and physical space to contain unrest and confusion generated by widespread social insecurity and deepening inequality, in order to extend discipline and supervision to the marginal factions of the industrial proletariat”. As for the third “break”, Wacquant claims (in contrast to other interpretive approaches) that “the invasive, expansive and expensive criminal state is not an aberration but one of the ingredients of neoliberalism”.

Phot

o: ©

Tdh

/ Dr

awlio

Joc

a



“Neoliberalism” -he adds- “does not reduce government, but creates a Centaur State: liberal above and paternalist below, which shows radically different faces to the two extremes of the social hierarchy: one that is pretty and attentive to the upper and middle classes, and a dark and fearsome face to the lower classes”. Undoubtedly, says Wacquant, “the misery of social programmes in the United States and the splendour of its prisons at the turn of the century are two sides of the same coin”. And of course, he draws the corresponding con-clusions: “the criminalisation of poverty divides citizens along class lines, curtailing the civic confidence of the lower classes and increasing the degradation of republican candidates. The establishment of the new government of social insecurity shows in the end that neoliberalism corrodes democracy”.

However, Wacquant is not content just to demonstrate and document the situation in North America. He also shows how the “North American model” is implemented by the majority of European governments, emphasising that this was not just by right-wing governments, but -in many cases- by social democrat and left-of-centre governments as well (including in the United States, above all during the Clinton administration).

But how can we address this situation? The author claims that “opposition to the criminalisation of poverty and its con-sequences implies a battle on three fronts”: (i) avoiding the arbitrary restriction of the term “security” to the field of crime, with no reference to society; (ii) proposing social, sanitary or educational alternatives and showing how these can help to attack the roots of the problem; and (iii) forging relationships between activists and researchers operating -individually- in

criminal and social work, when quite clearly they should be working together.

“The most effective means for reducing the prison population -says the author emphatically- is and in future decades will continue to be, the promotion of social and economic rights”, and this is a recommendation that we in Latin America should take to heart, given the desperate state of our prisons (the direct result of “punitive populism” that has increased pen-alties and created enormous prison overcrowding), which has been repeatedly denounced by human rights organisations such as, recently, the WOLA1 and the Transnational Institute in Washington. A report issued a couple of years ago entitled “Sistemas Sobrecargados: Leyes de Drogas y Cárceles en América Latina” (System Overload: Drug Laws and Prisons in Latin America) includes a comparative analysis of the current situation in 8 countries (Argentina, Bolivia, Brazil, Colombia, Ecuador, Mexico, Peru and Uruguay) and shows that the existing (extremely harsh) legislation does not distinguish between lev-els of involvement in the drugs trade, but treats small vendors, mules and large-scale drug traffickers in the same way; neither does it distinguish between violent and non-violent crime. As if that were not enough, it specifically excludes the possibility of alternative punishments to custody. Result: our prisons are full of inmates imprisoned for minor offences given disproportion-ately high sentences, and so “the might of the law falls upon a specific section of the population, people with little education, few resources, who are unemployed or working in the informal economy”. And mainly young people to boot.

But this is only one aspect of the problem. If we return to the widest and most systemic perspective of the analysis, Waquant’s approach shows that in reality three very different processes are confused as a matter of course in our countries: conflict, violence and crime. This is no innocent confusion. In fact it is the process that enables everything to be targeted under the pretext of combating crime, with tools and strategies which may (or may not) be appropriate in this particular field, but which are definitely not appropriate for addressing social and political conflicts and the very different facets of violence present in our societies. From this point of view, the permanent harassment of institutions working to defend human rights, disproportionate repression of trade union or rural protests and the deliberate disappearance of student and community leaders, which practices are becoming more and more com-mon in several of our countries (Colombia, Honduras, Mexico, Paraguay …), cannot be classified simply as “excesses“: they are, in reality, central components of the punitive strategies we are analysing.

1 Washington Office on Latin America

«En Centroamérica, todos los análisis coinciden en destacar

que la inseguridad es abrumadora y que hay que invertir más

recursos en dicho marco, pero no se dice que el gasto público en

seguridad actualmente supera a todo el gasto social (incluidas la

educación, la salud y la seguridad social). ¿De qué estamos

hablando?»



How can this type of political, social and cultural perversity be overcome? By using strategies that simultaneously have an impact on the different aspects of the problem, rationalising established crimes, reducing sentences, giving priority to the construction of non-violent conflict resolution strategies and giving priority to alternatives to custodial sentences (conditional liberty, restorative justice, etc.) proportional to the seriousness of the offences in question. It is crucial to simply apply the in-ternationally-accepted criterion that prison should be a measure of last resort and that, when used, it should concentrate on rehabilitation, for which it should resolutely limit the role of the police and expand the role of educators, promoters, psychologists, social workers and other professionals who can contribute to the task.

In parallel, and in line with the basic principles of integra-tion, much work is to be done on expanding methods of social integration, particularly for young people, who make up three quarters of the adult prison population in all of our countries and are obviously the central victims of the dev-astating effects of “juvenile justice”; a trope that is also going through an acute crisis from which it will never recover within the framework of punitive populism. A particularly relevant sector in this framework is that of young people who have been excluded from education and the labour market. They are classified as “NEET2” but that appears to mean that they neither study nor work because they don’t want to, whereas in fact these are people excluded from two key areas of our society. The matter is to some extent in the public eye, but the “NEETS” are not yet the object of public policy, much less the subject of it.

To reverse this situation, it will be necessary to question var-ious assumptions that significantly distort our understanding of the subject. On the one hand, we must question the logic of our education systems, which are tailored to young peo-ple integrated into society, but which fail to respond to the demands of those who are excluded. Nothing relevant can be achieved if we do not try to understand -to a greater and better extent- the youth and school cultures that conflict daily in our schools. Furthermore and in a complementary fashion, we must avoid the simplistic explanations about the causes of juvenile unemployment that lead to incorrect solutions. Such

2 Not in Education, Employment or Training

is the case, for example, with first employment programmes based on tax exemptions for employers who hire young people, which have failed spectacularly in the recent past (in Colombia and Mexico, for example).

But the subject is much wider than merely education and employment. It implies, in fact, an extensive set of variables relating to identity and at autonomy, two things that are central to all young people and that public policy ought to

facilitate and support. For that reason, it is essential to have more and better spaces for youth socialisation and participation. All evaluations carried out in recent times indicate that the best strat-egy to that end is that which is facilitated through open schools, an experience that should be generalised and consolidated over the next few years as the central axis of preventive strategies and social inclusion.

There is no doubt that we will be unable to progress significantly if we do not make changes to the distribution of resources invested in public

policy. ‘El Panorama Social de América Latina’ and other pub-lications by The United Nations Economic Commission for Latin America and the Caribbean (ECLAC), show –regularly- that even in countries with a high level of social spending, the majority of resources are directed to adults and the elderly, with only a small proportion going to children, adolescents and young people: These groups have to rely fundamentally on private spending - that is, their families: whilst in the OECD countries public resources are spent on a ratio of 50:50, in Latin America 80 % of public funds are spent on adults and the remaining 20 % on the new generations. This is a very relevant fact. At present in Central America, all analyses agree that insecurity is paramount and more money should be invested in this prob-lem, but they do not say that public spending on security now exceeds all social spending (including education, health and social security). What are we referring to here? During his visit to El Salvador a couple of years ago, President Obama made 200 million dollars available to Central American countries for the prevention of violence, and this is, without a doubt, the best possible investment to reduce insecurity and strengthen democracy and public safety.

«Nuestras cárceles están llenas de presos condenados por

ofensas menores, cumpliendo penas desproporcionadamente

altas, por lo que ‘El peso de la ley recae sobre una parte específica

de la población, personas de poca educación, pocos recursos,

desempleados o con trabajos informales’. Mayoritariamente

jóvenes, por cierto».



But how can this radical shift in public policy be brought about? Certainly, nothing can be done overnight, but the policy direction must be clearly established and in this regard we must work systematically to accumulate reforms that will enable progress to be made with the different priorities in this field. We must invest more in education, but at the same time we have to ques-tion teaching approaches and practices to prevent additional spending from merely increasing salaries, though that too is important. More must be invested in conditional transfer pro-grammes, with increasing emphasis on families with adolescent children and young adults (and not just children), with “con-ditions” included based on training and entry into the labour force. Large-scale public tenders should include conditions by which private companies give preference to hiring young people and women, while simultaneously applying similar approaches to many other spheres of public policy. At the same time, we must curtail the stigmatising practices used daily by the mass media to show young people as “good for nothing” and “guilty” until proven innocent, while substantially improving communi-cation between young people and the police, given that 3 out of 4 young people interviewed say that the police force is an institution you have to be wary of and not one you can go to for protection. Our societies are racked by many paradoxes, but this is by far the most important. Complementary to this line of

argument, we will have to make big improvements in the way civil society reacts, for example women’s movements, which logically have concentrated on femicide and other aberrant situations, but which should also remember that the NEETS are predominantly young women (two out of three) isolated in their homes, bombarded by trashy television programmes.

Is that possible? Of course it is! What is lacking is the political will, and in countries with fragmented political systems this is only possible with solid political agreements that transcend mere government posturing. But technical skills and relevant strategies are also lacking. The “how” to do it is as important -or more so- than the “what” to do. But why should we invest more and more wisely in young people? Why, simply to bring social justice to a sector that is particularly affected by social exclusion and the worst stigmatisations in our society. But also, and fundamentally, because from a demographic point of view we are raising the largest young generation in history (fewer children are being born than in the past and we do not have the number of elderly that we had in mid-century) and because young people are more and better prepared than adults to face the two main characteristics of the 21st Century: the primacy of knowledge and continual change. Is there anything missing?

Phot

o: ©

Tdh

/ Od

ile M

eyla

nRestorative Juvenile Justice


Phot

o: ©

Tdh

/ Sa

ndro

Mah

ler



n the 27th of October 2005, 15-year-old Bouna Traoré and Ziad Benna, aged 17, adolescents living in Clichy-

sous-Bois, a rambling peripheral suburb or banlieue of Paris, were found dead, electrocuted in an electricity sub-station where they had apparently fled from the police. A third adolescent who was with them, 17-year-old Muhttin Altun, survived but was badly injured. Days later the police said that they were not specifi-cally chasing the dead boys. However the groups of young people protesting that night in the suburb sparked three weeks of spontaneous and nihilistic fury that set the Parisian banlieue alight, as well as those in other French cities and even Belgium - evidence of the dangerous fissures created by socio-economic and cultural marginalisation in the heart of this highly developed society.

In the night of 29th October, hundreds of young people wearing T-shirts bearing the motto “dead for no reason” held a

silent vigil in the suburb, but this was exceptional. Confrontations between the police and numerous groups of young people coordinating their actions by mobile phone and internet erupted in nine districts in the Paris suburb of Seine-Saint-Denis, leaving spectacular and unprecedented destruction in their wake. The demonstrators attacked and set fire to offices, public buildings, po-lice stations, businesses, innumerable communal services including rubbish containers, but above all vehicles. Almost immediately these became a yardstick for measuring suburban violence: 15 cars de-stroyed on the first night of the protests, thirty on the second, 60 cars burned out on 1st November.

Only then did Prime Minister Dominique de Villepin decide to meet the parents of the dead teenagers and promise to inves-tigate the circumstances of their death. Having sent hundreds of riot officers to the suburb, the police announced that same day that the situation had been

brought under control. Nevertheless, the following day the violence spread un-abated to Seine-et-Marne, Val-d’Oise and Hauts-de-Seine, multiplying the damage exponentially with 315 vehicles burned out on the night of 2nd November, 400 on 4th November and 750 the following night. The confrontational style of the Minister of the Interior, Nicolás Sarkozy, who called the rioters “racaille” -scum or rabble- only added fuel to the fire.

The government realised that it was facing a situation that demanded extreme care and prudence; it consequently moderated its approach, recognising in part the need for urgent action to address people’s prob-lems, particularly those of young people in the poor and decrepit suburbs, and announced a plan of action for sensitive urban areas. Later on, President Jacques Chirac would speak of the need to address the disturbances firmly and with justice. This, however, came too late to stop the wave of violence, which reached its height on the nights of 6th and 7th November

At the end of 2005, France was shaken by an unprecedented wave of youth and adolescent violence, a testimony to a serious social crisis incubated by marginalization in a prosperous society.

Banlieues,Suburbs ofA Latin American perspective

Rage:Carlos LandeoLawyer and Peruvian journalist


O


when, among much other damage, 1,290 and 1,408 vehicles respectively were destroyed, with the disorder spreading to other cities such as Dijon, Nice and Cannes and the departments of Bouches-du-Rhône, Cote-d’Or and Seine-Maritime, among others. The police union pleaded for help from the army in what it called a civil war.

On 7th November, the mayor of Raincy de-clared a curfew for minors under 15 years of age. The next day, President Chirac held a cabinet meeting and declared a state of emergency, as well as resurrecting a law dating from 1955, during the war in Alge-ria, permitting local authorities to impose curfews when they thought it necessary. Immediately after the state of emergency took effect, a curfew for those under 16 was declared in the cities of Orleans and Amiens. On 9th November, minister Sar-kozy announced the immediate expulsion of foreigners involved in the riots.

After this, the violence began to wane, but outbreaks continued until the end of November. Even so, between 400 and 600 cars were destroyed every day between the 9th and 12th of November, and it was only on the 17th that vehicle fires fell to less than 100. This was when the violence reached its widest extent, af-fecting many other cities including Lyon, Strasbourg, Bordeaux, Lille and Toulouse. On 7th November, Brussels, capital of neighbouring Belgium and other Belgian cities witnessed disturbances and acts of violence similar in form and content to those affecting the French banlieues.

Dozens of people were injured during these weeks, including rioters, police and innocent citizens. Some lost their lives. The police made hundreds of arrests.

The banlieue or desperation

The deaths of those adolescents in the electricity substation heightened tension that had existed for a long time in the suburbs. Many demonstrators justified their acts of violence by frustration at

these, 12,000 were attacks by students on teachers. Teachers unions call this problem “serious” and “immediate” and are currently taking strike action to force the authorities to restore order. It has been confirmed that most of this aggression takes place in the department of Seine-Saint-Denis, where the disturbances of 2005 started. In the neighbouring depart-ment of Hauts-de-Seine to the east of Paris, minister Sarkozy declared, at the beginning of March 2006, that he was willing to deploy police in schools either “in uniform or civilian clothes”, as well as to introduce metal detectors. Sarkozy attributes tension in schools to “a lack of respect in general”.

Another very serious problem is poor housing. The grim and impersonal char-

unemployment, abandonment and police harassment, saying that they were sick of living in ghettos. A large number of dem-onstrators were the children of Muslim immigrants from North Africa who had arrived in an earlier time of industrial expansion. This enabled some to point to the alleged ethnic-religious nature of the disturbances and even to describe them as part of an alleged global war or conflict of civilisations between the West and the Islamic world, ignoring the reality of life in the banlieues without benefits or citizenship.

And indeed, suburban life in large industri-al cities, especially the Parisian banlieues is an endless and sterile grind. Average unemployment in France is 9.6%, but youth unemployment (those under 25) is 23% or nearly one in four. In the banlieues, however, there are areas where 50% of the labour force have no jobs, causing widespread demoralisation. Many fam-ilies consist of unemployed parents and children who do not go to school. Many years ago, President Chirac recognised that the most serious cause of urban vi-olence was long-term unemployment (le développement d’un chômage de longue durée). Nevertheless, the government did very little to end this situation.

Truancy among suburban adolescents is a problem. It is calculated that nearly 60,000 suburban children finish secondary school each year with no qualifications or diploma that would enable them to get a job. Many leave school before finishing it. One teacher says: “it is no exaggeration to say that there is nothing for young people in the banlieues. They wander the streets all night, join gangs with all the dangers that implies, especially for the youngest, with violence and petty crime ever present. On the other hand, school is neither attractive nor interesting; schools in the suburbs are second class, simply reproducing failure and marginality.”

Violence in suburban schools is a growing problem. In 2005 more than 80,000 violent incidents took place in French schools; of



Foto

: © T

dh

acter of large estates now overcrowded with the poor, immigrants and their fam-ilies, and especially the cheap apartment buildings known as HLM (habitations à loyer modéré), provide a poor quality of life and are recognised by many as cradles of violence. Urban reform pro-grammes have been very limited and have failed to improve the essentially inhuman configuration of these sink estates that make up the banlieues.

But the fundamental problem of the suburbs cannot be resolved in isolation by architecture, teaching or employment programmes: it is that complex social problem of marginality, made all the worse by being ignored for decades. The young people who set vehicles alight and also their own neighbourhoods, are

a relatively educated generation with expectations, who have seen their path to integration closed to them and therefore despise the lives they live. They know that in many cases their Islamic heritage means that they are not even considered French citizens despite having been born in the country.

But it is very clear that marginalisation is not a problem affecting only the children of immigrants. French cinema has often described the drama of marginalisation affecting young people, particularly those who failed to finish school and have no jobs. Particularly hard and intense is the vision of reality seen in “The Dreamlife of Angels” (La vie rêvée des anges, directed by Erick Zonca), about the vicissitudes of the two working girls in Lille.

With little work experience and con-demned to take informal and badly-paid jobs, they are the system’s drop-outs who failed to take advantage of available opportunities -if, indeed, any existed. One will be destroyed by the Darwinian struggle for survival, the other will keep going for the moment, with no guarantee of what will happen to her afterwards.

Today a tense atmosphere pervades the apparent calm of the banlieues and many are asking when the next explosion of violence will happen. French society must address this problem and show solidarity with the marginalised, for its own benefit and to make good on that ideal of a nation of free and equal citizens, of dignity and opportunities, with which France stirred the world’s imagination two centuries ago.

Phot

o: ©

Tdh

/ C.

Ren

auda

t



Latin America's Dilemma:Neoretributionism

Atilio ÁlvarezChildren’s Ombudsman for the Republic of Argentina

Faced with the crisis of the concept of tutelage in Latin American Juvenile Justice, not only are there alternatives for progress in line with the Convention on the Rights of the Child, but also new forms of the old

retributive justice. The author describes this process.

or Rehabilitation

Phot

o: ©

Tdh /

Mél

anie

Rou

iller



bilitation model based on the Beijing Rules and other instruments of juvenile justice.

Neoretributionism, even in its mitigated forms, is a retrograde step as it represents a return to early criminalisation with a low age of criminal responsibility, the creation of special prisons for adolescents and concentrates on judicial reforms – organisation of the courts - rather than on treatment. The model perverts the text of article 5, paragraph 5 of the Pact of San José, which calls for specialist courts to process juveniles.

The other option, superior to both the tutelary and retributionist models, is to continue applying a model of restorative justice or rehabilitation. In this concept, the minimum age for criminalisa-tion and criminal responsibility is not low – following the Beijing Rules – and the system judges the adolescent’s responsibility for his actions and towards the victim rather than to the State as the representative of society and dispenser of justice.

The restorative view takes into account the capacity of a child to realise the consequences of his actions to society, as well as the need to repair the damage done to both victim and perpetrator and their respective family and social groups.

Renewed instruments of juvenile justice such as, inter alia, remis-sion, mediation, a plurality of alternative measures, reparation, community work, suspension of trial, supervised treatments, are part of the restorative model.

An accurate reading of the Beijing Rules, on which the Convention on the Rights of the Child is based, will enable Latin America to move beyond both the tutelary and neoretributionist models that have been imposed from outside, and to replace them with modern forms of restorative justice.

he end of the 20th Century saw, throughout Latin America, the elimination of the formerly dominant concept of state tutelage that had been a distinctive characteristic of the region since the early years of

the century. Now outdated, eclipsed by new guarantees and internally weakened by its many contradictions, the paternalist concept gave way to the concept of justice, ever more inclined to be applied to cases involving greater violence and younger perpetrators. The deterioration of social conditions in the region from the 1980’s onwards was accompanied by a worrying increase in crime, including juvenile crime, a corresponding clamour for “tough action” and early criminalisation of adolescents.

Thus, alongside the Convention on the Rights of the Child, there arose a trend towards reform of legislation concerning ado-lescents in conflict with the law that did not express any true progress and that, in general, has lowered the age of criminal responsiblity. It is necessary, therefore, to evaluate the impact of these modifications, some of which have been in force for a decade, but above all to examine critically the large gap between theoretical proposals and daily life.

The retributionist model of the 19th Century, which sought to criminalise children, was succeeded by a titular model, which aimed to remove children from the criminal justice system for preventive reasons but in practice was arbitrary, lacked guarantees and aggravated inequality by leaving children helpless.

When this model was seized by crisis, two alternatives arose: the neoretributionist model, which tends to predominate in Latin America as the result of a new dominant dialogue, and the reha-

T



Introduction

Police organizations around the world have specialized bodies to respond to a wide variety of complex situations they need to face. The need for a specialized and armed police force to deal with violent or armed criminals and incidents is accepted. Examples of some of these specialized groups are:

•The protection of official officers who require a high level of security provided by specially trained personal protec-tion officers, specialized drivers and armoured cars.

•Drug-related crime investigators who must deal with the production, smug-gling and distribution of drugs.

•The police that inspect crime scenes to find forensic evidence.

•Armed response teams that cover the backs of police who are on the front line when faced with dangerous situations.

The police have a duty to protect the vulnerable, so it is only logical that there should be a specialised police within the police force to deal with the children1 with whom they come into contact. The police come into contact with children who may be victims of abuse or neglect, who live as street children or who are or have been exploited by adults. While they may not have committed a crime, they are at risk of committing a crime; therefore, a specialized police response is required.

1 For the purposes of this article, the terms minor, child or children include any human being less than 18 years of age, which is consistent with the definition of a child as specified in Article 1 of the Convention on the Rights of the Child. The police usually refer to adolescents as ‘juvenile’ or ‘youth’, but if they are under the age of 18, the International Standards recognize them as children.

In this article I will discuss the need for a specialised police force to be able to do something for children who have com-mitted offences and how the specialised police can work with them effectively without having to refer them to a court of law. In doing so, I will describe what New Zealand’s specialized juvenile police officers do to deal with juvenile offenders.

In my international work I have been able to observe and experience that the police do not feel confident when dealing with children and minors, and in most cases their response is one of the following:

•There is nothing is to be done, as s/he is simply a child or minor,

•The child or minor should be treated as if he or she were an adult.

A successful experience of a police specialised in children and young people, whose lessons can be usefully adapted to our reality.

need a specializedWhy do weJuvenile Police

Inspector Chris Graveson Head of the Youth Aid Office of the New Zealand Police

The New Zealand experience



Both responses are inappropriate, as both will have negative consequences. If noth-ing is done, the child will believe that the behaviour is acceptable because there are no consequences. Handling a juvenile of-fender’s case with an adult response may lead to the child becoming a much more seasoned offender, since that will lead him/her to associate with adult offenders.

The Convention on the Rights of the Child

The police, wherever they may be in the world, have an obligation to respect the rights of children and their families under the Convention on the Rights of the Child, which sets minimum standards binding on the member states to which police forces belong. This Convention sets out rules over

which the police have some influence or responsibility.

When police have to deal with cases involving the administration of juvenile justice2, the minor involved in the situ-ation can range from a very young baby who has been abused or neglected to a young person who will soon turn 18 and become an adult. Regardless of their age and circumstances, both are children as per the definition of the Convention on the Rights of the Child.

When those who are under 18 years of age are in conflict with the law3, the of-

2 “Juvenile justice” the international term used in relation to children who are victims, witnesses or offenders.

3 “Conflict with the law” is the international term used to describe children/young people who break the law.

fence may be a minor or the most serious offence.

International standards for children in conflict with the law

There are a number of international stan-dards that apply to children in conflict with the law and set minimum standards for police officers. I have no doubt that in order for the police to comply with these standards, it is necessary to have a specialised juvenile police force; besides, having a specialised juvenile police force generates benefits for the police, the com-munity and, above all, for the children and their families, as the latter should prevent them from breaking the law again.

The Convention on the Rights of the Child has a number of articles, but article 40

Phot

o: ©

Tdh



refers specifically to children in conflict with the law, although it should be read in conjunction with Article 37(b), which states that measures of imprisonment and detention should be used as a measure of last resort.

Extracts from article 40 of the Convention

The Convention provides minimum stan-dards for children in conflict with the law, some of which can be summarized as follows:

•States Parties shall take into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.

•States Parties shall seek to promote the establishment of laws, procedures, au-thorities and institutions specifically ap-

plicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:

•Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceed-ings, providing that human rights and legal safeguards are fully respected.

•Children are dealt with in a manner appropriate to their wellbeing and pro-portionate both to their circumstances and the offence.

When the police in a state party face cases of children in conflict with the law, they have a responsibility to reintegrate or maintain them in the community so that they can become positive members of our society. The Convention seeks to have laws, procedures, authorities and institutions specifically applicable to chil-dren alleged as, accused of, or recognized

as having infringed the penal law. I believe that as part of these “procedures” there is a need for a specialised juvenile police force to deal with the relevant laws and authorities to which police is part of.

The Convention seeks to address the problem of children in conflict with the law without having to resort to legal pro-ceedings and this is known as diversion. Diversion can take many forms, from a warning from the police officer attending the case to a restorative justice conference attended by the victim. For the process of diversion to be effective, it is essential that there be a specialised juvenile police force, as we will see from the New Zea-land experience.

The specialized juvenile police allows the offender’s case to be dealt with at a level commensurate with the seriousness of the offence and allows the child’s family,

Phot

o: ©

Tdh



the community and, in many instances, the victim to provide input. Children in conflict with the law should be kept away from court proceedings, as far as possible. A specialized juvenile police understands the philosophy and benefits of this.

The Beijing Rules

This is the name given to the United Nations Standard Minimum Rules for the Administration of Juvenile Justice4, which set out in detail what the desired minimum standards are. The Convention on the Rights of the Child includes many issues involving children, while the Beijing Rules are specific to juvenile justice. Bei-jing Rules 10.3 and 12 specifically address the police and the need for a specialized youth police force:

10.3 Contacts between the law enforce-ment agencies and a juvenile offender shall be managed in such a way as to respect the legal status of the juvenile, promote the well-being of the juvenile and avoid harm to her or him, with due regard to the circumstances of the case.

12. Specialization within the Police

12.1 In order to best fulfil their functions, police officers who frequently or exclusive-ly deal with juveniles or who are primarily engaged in the prevention of juvenile crime shall be specially instructed and trained. In large cities, special police units should be established for that purpose.

Some of the other standards are summa-rized below:

•Further the well-being of the juvenile and her or his family.

•Improve and sustain the competence of personnel involved in the services (juvenile police).

•An offence committed by a juvenile shall be dealt with in a manner which is different from an adult.

4 The Beijing Rules were adopted in November 1985.

•Appropriate scope for discretion shall be allowed at all levels of juvenile justice administration5.

•Dealing with juvenile offenders without resorting to formal trial and discretion shall be allowed at all stages of pro-ceedings6.

Now that we are aware of international standards, I will show how they can be applied to the law and in a police opera-tional environment that achieves positive results for all involved, but this success will not happen without a specialized juvenile police.

Juvenile Justice in New Zealand

The Juvenile Justice System in New Zea-land has received international recognition for its Family Group Conference process (hereinafter referred to as ‘FGC’). Compar-isons have been made between the FGC process and the Restorative Justice model; however, in the development and introduc-tion of the FGC process in New Zealand, no explicit reference was made to the term “Restorative Justice”. The FGC had its origins in the way indigenous Maori7 approached justice and problem-solving, which involved bringing the victim and offender together with their respective families and community (whanau8, hapu9 and iwi10) to resolve the conflict and put things in order. This approach is charac-teristic of traditional indigenous methods of conflict resolution and restoration of social order. The theoretical concept of “restorative justice” was later developed to describe a practice that already existed. Then, when the FGC process was intro-duced, the practice had developed before the philosophy behind it.

5 This allows specialized juvenile police to evaluate options other than a court of law.

6 The discretion for diversion can be used at any time and the specialized juvenile police are in a good position to facilitate this process.

7 Maori is the indigenous population of New Zealand.8 Whanau is the Maori word for family.9 Hapu is the Maori word for extended family.10 Iwi is a Maori tribe.

One of the main reasons for the devel-opment of a juvenile justice model in New Zealand was to respond in a more appropriate, inclusive and relevant way to address the problem of a highly dispro-portionate level of offences committed by Maori children. In so doing, the model that was developed in response is also more appropriate, relevant and inclusive for all child offenders.

The FGC and Restorative Justice processes have been the subject of investigations and discussions due to the involvement of the police, the offender, the victim and families in the decision-making process. While issues related to the FGC process have been well documented, very little attention has been paid to other successful interventions available and widely used to handle cases of offences committed by children and juveniles.

The Family Group Conferences process is only one part of the New Zealand juvenile justice process, not the whole process, and those who have commented on it have lost sight of this. For me, the most significant part of the juvenile justice process in New Zealand is the number of children and youngsters whose cases have been dealt with through alternative action or what is more commonly known as diversion.

Background

Prior to the enactment of the Children, Young Persons and their Families Act (hereinafter referred to as the ‘Act’) on 1 November 1989, many cases of children and young persons were handled informal-ly, although there was no legal authority to permit such handling. The justification for this informal action is presented under the broad concept of Police Discretion, which derives from a principle of customary law.

Fortunately, we have moved on from this type of intervention, and now the police are able to handle the case of a minor



offender without having to involve him or her in formal justice processes.

The purpose of this law when handling offender cases is:Make sure that when a child or youngster commits an offence:

(i) They take responsibility, and they are encouraged to accept responsibility for their conduct; and

(ii) They are treated in a manner that recognizes their needs and gives them the opportunity to develop in a responsible, beneficial and socially acceptable manner11.

Levels of intervention

The four levels of intervention that might be applied are:

1. Warning: Usually given by the case of-ficer, followed by a letter from the Child Support Officer confirming the warning;

2. Alternative Action: This is a diversion plan carried out by the Child Support Officer;

3. Family Group Conferences: For offences that cannot be handled by means of a warning or alternative action; and,

4. Juvenile Court: The juvenile has been ar-rested and taken to court or the offence cannot be handled through Family Group Conferences.

Child Support Officers

In 1957 the New Zealand Police initiated a pilot project called the Juvenile Crime Prevention Section, which liaised with the Office of Child Welfare, then a division of the Department or Ministry of Education. A report on this pilot project was prepared the following year and it was noted that:

“This experiment has proven to be useful beyond our expectations, so we believe that it is justified to gradually expand the service to other major centres.”

11 Section 4(f) of the Law.

The report also highlighted the following three points, which 50 years later remain the basis of the New Zealand police re-sponse to children and young offenders:•The section confines its activities to

preventive measures and takes no part in the detection and prosecution of offenders.

•Preventive work is particularly important if it allows children to respect the law voluntarily, rather than waiting for court sanctions.

•The mishandling of a child’s first appear-ance in court may have lasting effects

on the child’s future. This could even determine whether he will eventually become a law-abiding citizen or a po-tential repeat offender.

Over the years, these three principles have been incorporated into various internation-al standards.

The Juvenile Crime Prevention Section later became known as Child Welfare and the police officers working in this area are now known as Child Welfare Officers.

Phot

o: ©

Tdh



As stated in the 1958 report, Child Welfare Officers do not investigate offences but get involved in cases once the offences have been investigated and make a decision on how these offences should be addressed. They also represent the police in the FGC process and in the Juvenile Court because of their experience and the information they can provide to help achieve an ap-propriate outcome.

Before a police officer can apply to be-come a Child Welfare Officer, he or she must have a minimum of two years of

front-line experience, but virtually all have significantly more experience than this and many have worked in other areas of the police force.

Once a Child Welfare Officer is selected, he or she must take a two-week intro-ductory course covering aspects of the law including juvenile justice, care and protection. The course also covers the practical application of these provisions, working with communities and other issues relating to children and youngsters.

Because of the very nature of their work, Child Welfare Officers encounter welfare issues and refer these concerns to the appropriate agencies. In exceptional cir-cumstances the Child Welfare Officer may file an application with the Family Court, if the child or minor is in need of care and protection.

Alternative action

The authority of the police to give warnings or deal with the juvenile offender by means of a warning or alternative action comes from the following principle of juvenile justice:

Unless the public interest requires other-wise, no criminal proceedings should be instituted against a child or youngster if there is an alternative means of dealing with the problem12.

This provision of the law is unique in that it places a clear emphasis on not engaging in criminal proceedings where such discretion is normally subject to a number of requirements in the law. It is from this section that the term alternative action is derived.

The police should consider whether it is appropriate to give a warning or apply diversion, given the seriousness of the offence and the nature and number of previous offences committed13.

Some of the factors that the Child Welfare Officer would consider when considering alternative actions are:

•The circumstances of the offence.•That the offender accepts having offend-

ed.•The offender’s attitude.•The number and seriousness of any

previous offences.

12 Section 208(a) of the Law.13 Section 209 of the Law.



•How the previous offences were dealt with and how the offender responded to them.

•The victim’s attitude.•The response of the offender’s family to

the offence.

When predicting the consequences of a reported offence, it is best to predict, based on the seriousness of the offence, the offences previously recorded, wheth-er the offender is being referred for more than one offence, and the offender’s age14.

Family involvement

The law places great emphasis on whanau (which, in a general sense, is the Maori word for family) and hapu (which means extended family); this is why it is called the Children, Young Persons and their Families Act. The distinctive feature and philosophy of the law is to empower families, on the basis that they know their children better and must take responsibility for them.

The role of the whanau is so important that the law has general principles both in terms of care, protection and justice for minors that the police must take into account:

•The principle indicating that, as far as possible, the family of a child or youngster, his or her whanau, hapu, iwi and family group should be involved in making the decisions affecting that child or youngster, and therefore that, as far as possible, consideration should be given to the views of that family, whanau, hapu, iwi and family group15.

•The principle indicating that, as far as possible, the relationship between a child or youngster and his or her family, whanau, hapu, iwi, and family group should be maintained and strength-ened16.

14 Final Report on Diversion form the Juvenile Police, 2002.15 Section 5(a) of the Law.16 Section 5(b) of the Law.

•The principle indicating that support should be sought from: (i) The parents or guardians or other persons being in charge of the care of a child or young-ster; and (ii) The child or youngster him or herself, for the exercise or proposed exercise, in relation to that child or youngster, of any power conferred by or under this Act17.

The police, in dealing with children and juveniles who have committed offences, should give due consideration to the principles of Juvenile Justice, involving the family in the treatment of the offence committed by their children18. It should be noted that this also applies to the FGC process and in the Court.

•The principle indicating that any mea-sure to address the offence committed by a child or minor should be designed to: (i) strengthen the family, whanau, hapu, iwi, and the family group of the child or youngster involved; and (ii) pro-mote the capacity of families, whanau, hapu, iwi and family groups to develop their own means of dealing with the offence committed by their children and youngsters19.

Victims

The law, and those who work with it, place great emphasis on the involvement of victims20 in decision-making throughout the juvenile justice process.

The principle indicating that any measure to deal with the offence committed by a child or youngster should give due con-sideration to the interests of any of the victims of the offence21.

17 Section 5(e) of the Law.18 The term ‘child’ used in the context of a family and/or parents

applies to a child or youngster.19 Section 208(c) of the law.20 The law defines a victim as a person who, through an offence

committed against him, suffers physical or emotional harm or loss of or damage to his or her property; and in cases where the offence results in death, the term includes members of the immediate family of the deceased person.

21 Section 208(g) of the Law.

If this principle is kept in mind, this is why the Child Welfare Officer contacts the vic-tim: to be able to have an understanding of what the problems are and what the victim would consider to be an appropriate out-come. Victims are grateful to be allowed to participate in decision-making and often contribute with good plans or elements of the plan themselves.

Alternative action process

Having taken these objectives and princi-ples into consideration, the Child Welfare Officer, upon receipt of the file, shall evaluate the following:

1. Is the child or minor responsible for the offence committed.



2. What is the victim’s point of view.3. Can the family deal with the offence

committed?4. Is there an alternative means of dealing

with the offence other than criminal prosecution?

Children and youngster will sometimes commit crimes as part of their growing up process. Most of those who break the law will develop into responsible adults and make a significant contribution to society. Most child offenders come from good families with caring parents or caregivers, with few additional significant adverse factors in their lives.

Front-line police officers have the authority to warn children and youngster regarding

the offence committed, but this is usually a conditional warning until the case is processed by a Child Welfare Officer.

Once the file is received, the Child Wel-fare Officer will first establish whether the child or youngster has a record that has drawn the attention of the police. This record does not necessarily have to be an offence, it may be a notification for truancy, running away from home, or even being a victim.

If there is no convincing evidence as to initiate criminal proceedings, the Child Welfare Officer will then contact the victim to obtain her views on how the offender should be treated. Where the offence

involves damage or loss of property, all vic-tims seek redress for the damage or loss.

Parents are then contacted to determine how they would like the issue to be ad-dressed and what they believe should be done. It is best to let the family suggest how they would like the problem to be resolved and then inform them of the victim’s perspective, so that they have an opportunity to deal with the offence committed by their child.

Parents will also be asked about their child’s progress at school, his or her behaviour at home, and any possible rea-sons for the offence. These are just some general questions that parents are asked

Phot

o: ©

Tdh



to try to find out what is going on in the life of the child or juvenile.

Sometimes, the offence is a final con-sequence of other risky behaviours that occur in your children’s lives. Once the Child Welfare Officer is informed of these problems, a meeting will be arranged which may take the form of a visit to the Child Welfare Officer’s home or a meeting at the police station to discuss these problems.

In almost half of the cases, the Child Attendance Officers made these visits, and in 8% of the cases they visited the school22.

Alternative family-initiated action

This type of response to an offence com-mitted by a child or youngster is rare, if ever, and occurs once the police have become aware of the incident and have informed the parents, but before the Child Welfare Officer is involved. It is invariably the offender’s parents who approach the victim to establish what happened and to reach agreement on how to resolve the matter. There are instances in which, while the offence may not have had victims, such as in cases of drug use or inappropriate driving, the family still creates and imple-ments a plan.

These interventions are largely structured in the same way as an alternative action plan. When the Child Welfare Officer con-tacts the family and is informed of what the family has implemented, unless there are exceptional reasons, the plan initiated by the family will be the alternative action plan of the police.

Alternative Action Plan

Creating a good intervention plan for an offender is essential, regardless of the level of infringement that has occurred. The plan should include the following basic issues, but other issues should

22 Final Diversion Report of the Juvenile Police 2002

also be covered depending on the offence committed, the problems of the victims, the circumstances of the offenders, the family circumstances. This is not a com-prehensive list. The essence of a good ac-tion plan is that it should be developed in a way that addresses all the issues, and that it should be both easy to implement and easy to understand.

Issues to be covered in the plan:

•Who the offender is (with full contact details).

•Who the parents are (full contact de-tails).

•The infraction they admit to having committed.

•Full details of the victims of the offence.•What has been agreed upon?•If compensation is to be paid, what the

amount is, how payments will be made and when they will be made?

•If community work is agreed, how many hours of work will be performed: it will be a total number of hours for a given date, or it will be a minimum of a certain number of hours per week?

The action taken may include various interventions depending on the offence and other circumstances. The alternative action plan takes into account the victim’s views and needs. You could talk to other relevant people and then have a meeting with the child and family to come up with an appropriate plan for the offence, for example a letter of apology or community service.

Research on the use of the Warnings and the alternative action process

Child Welfare Officers believe that 80% of offences are dealt with through warnings and alternative action.

The Crime and Justice Research Centre at the University of Victoria at Wellington was commissioned to investigate police decisions regarding offences committed by children and juveniles.

1. Results

•Almost half of the cases in the sample were dealt with by means of warnings; one-third by alternative action.

•One in four cases was transferred to an FGC process and/or charges were filed in a juvenile court.

2. Implications of the differences between the offenders

•The girls were less likely to drawn the attention of the police, although they also committed fewer and less serious offences. The most common offence for them is shoplifting.

3. Ethnic aspects

•The comparison between the Maori and the Pakeha shows that the former were more likely to appear in the sample and more often had a history of previous offence.

•The Maori sample was more likely to include younger girls and offenders.

•The pattern of offences and consequenc-es was similar between the Maori and the Pakeha.

•There was no evidence of a different or more severe response in the case of Maori.

4. Differences in results by area

The main finding was that there was considerable variability in both practice and results, which cannot be explained by differences in the profile of offenders or differences in the severity of the various types of offences. Possible explanations

Documents

Nº 23 | May 2018 | Latin America Justicia · First publication May 2014 Edition N°19. Banlieues - Suburbs of Rage: an Latin American perspective. by Carlos Landeo First publication