Psychology has a great deal to offer the law, but what exactly does this mean in regards to young offenders – Is there room for improvement?

Cillian Murphy

Now, …what will it be?!

Despite the consequences of public sector cuts, the attack on welfare and growing unemployment, crime rates have been steadily declining, a trend that has been discerning for the last fifteen years (Hancock & Raeside, 2009). Although there is a highly correlated systematic relationship between the marginalisation and deprivation of communities and the increased risk of violence and imprisonment for youth offenders, a myriad other factors compound these multivariate issues – with a vast degree of overlap – including territoriality, previous convictions, previous custodial sentencing and impulsivity and irrational decision making (Hancock & Raeside, 2009). Thus, youth offenders seem to become attracted to the metaphorical pitcher plant, and thus, become accustomed to the nectarous fast track benefits of criminal activities in a vast consumerist market – where wages are paying way below rising inflation rates (Bannister, 2012). This can create a despondent, circuitous and synonymity between incarceration and criminogenic tendencies (Copas, Marshall & Tarling, 1996). Thus, there is evidence that a major element in the increase in prison population is due to the failure to rehabilitate youth offenders and to plan for a seamless interaction back into a structured societal and familial algorithmic patternisation (Barry, 2013). Subsequently, this article will take a critical approach – using psychological theory – to gauge the current benefits and shortcomings of sentencing approaches in Scotland for youth offenders (Kearney, Kirkwood & MacFarlane, 2006). Also, it will look at the heuristic, moral, ethical and experiential methods that sentencers’ implement to create a narrative of the offender when sentencing them (Millie et al. 2009). Lastly, a critical review of the current universal multi agency approach and whether therapeutic jurisprudence can aide the desistence programme will offer some insight into any improvements that are needed to the current sentencing approaches which will, in turn, prevent individuals’ from falling into a never-ending cycle of crime (Lambie & Randell, 2011).

 

 

The prison populations in both England and Wales and Scotland have been steadily increasing since the early 1990’s to an unprecedented point, where – in both jurisdictions – there are more people imprisoned per head of the population (Hancock & Raeside, 2009). Furthermore, there are sixteen prisons in Scotland including; two private prisons, one female prison, and one Youth Offender Institution with a total of 7825 individuals’ currently being held in custody (Scottish Executive, 2013). More specifically, in Scotland there are 129 prisoners for every 100,000 members of the general population, which is proportionately high in comparison with much of Europe (e.g. Denmark’s rate is 63 per 100,000 compared to America’s staggering rate of 702 per 100,000) (Scottish Executive, 2013). Moreover, as well as the problem of overcrowded prisons – Scotland has one of the highest conviction rates in Europe (Scottish Executive, 2010). Thus, there are a myriad of problems that stem from the figures mentioned above which clearly imbue consternation that there are underlying issues (e.g. levels of recidivism, trends in recorded crime, sentencing decisions – the vicissitudinary increases in custodial sentences and the decreases in non-custodial sentences, and also changes in legislation [Hancock & Raeside 2009]) that should be looked into with a view of reformation to increase improvements (Reform, 2006). Nevertheless, the inclination of the Scottish prison population is in no means related to more offending or other criminogenic factors, as crime rates have been steadily falling from the mid 1990’s hitherto (McVie & McVae, 2004; Scottish Executive, 2010).

Consequently, psychologists can contribute to sentencing in a variety of ways, with the main areas being: researching sentencing decisions and providing advice for policy makers; and to provide individual input at different stages of the process to inform decisions such as; fitness to stand trial, diversion to treatment, indicating special provision required during trial, i.e. leading up to trial, individual risk assessment/psychological needs to inform specific sentence (James, Geert, Stams, Asscher, De Roo & van der Laan, 2013).

Focussing on youth offending, the Scottish Government have been urged by the Scottish Human Rights Commission (SHRC) to reconsider incorporation of United Nations Convention on the Rights of the Child (UNCRC) (Robertson, 2013). The Convention, which was ratified by the UK in 1991, has yet to be incorporated into any part of UK law and more pertinently; Scots law, which means there are no safeguards in place for the rights of the child (Robertson, 2013). Subsequently, the UNCRC will provide a range of civil, political, economic, cultural and social rights for children under the age of 18 (Robertson, 2013). Also, justice minister Kenny Macaskill has released a consultation arguing that there is a case on implementing a system of sentencing guidelines, which would be overseen by a Scottish Sentencing Council, and in theory – help with the current discrepancies in sentencing of juvenile offenders and adult offenders in general (The Carloway Report, 2012).

Subsequently, young offenders fall between the ages of eight and twenty-one (Arthur, 2004). Consequently, there are two different legal processes tailored towards young individuals’ charged with an offence (Arthur, 2004). Thus, youth offenders under the age of sixteen are most commonly referred to the Reporter to the Children’s Panel, whilst those over the age of sixteen are normally reported to the procurator fiscal, in which they will go through the adult justice system (Arthur, 2004). Circumstantially, and on a case-by-case basis, there are occasions when both legal processes will consider a young offender – and this is dependent on a compound of factors including, the age of the offender, the severity and nature of the offence and if the offender is supervised by a social worker (Lambie & Randell, 2011). The Children’s Hearing system focuses on the welfare and needs of the youth offender whereas, the adult system is focussed on the nature of the offence and implementing punitive measures to protect and have the public interest as a central tenet (Arthur, 2004).

The transitional and aspect between the two systems is no easy feat as they are extremely different (McAra & McVie, 2010). Thus, there are ethical issues in moving a youth offender from the Children’s Hearing System to the adult system due to the uncertainties surrounding maturation of sixteen and seventeen year old offenders. Therefore, due to variations, some youth offenders might not be ready to enter the adult system (Barry, 2011). Consequently, this is another moot point that is currently under review by the Scottish Executive with a view of increasing the age that a youth offender would become eligible for transmission into the adult system (Arthur, 2004). Ultimately, the impertinent aspect within each system is to meet the needs of society in terms of redeeming young offenders – albeit, using different methodologies – so that they can be integrated back into society in as seamless a way as possible, from destructive, to constructive individuals (Lambie & Randell, 2011). Consequently, there are various methods of integration, which are all pivotally down to individual differences’, which can include (but are not limited to), reintegration into mainstream education, resuming familial bonds and thus, bringing structure back into their lives, assistance in gaining employment, overcoming substance and alcohol abuse, and breaking established patterns of offending (McAra & McVie, 2010).

Nonetheless, figures from the Scottish Prisons Commision (2008) have noted that more that twenty percent of all youth offenders have been imprisoned before on an average of ten or more previous occasions. Also, it has been calculated that over half of youth offenders referred to the Children’s Hearings System because of offending behaviours will more likely end up with a criminal record by the age of twenty-two years, and are seven times more likely to end up with a custodial sentence in comparison to those who have not previously been involved with the Children’s Hearings system (McAra & McVie, 2010; Barry, 2011).

Subsequently, there are a number of factors that are increasing youth offender custodial sentences in Scotland (Barry, 2011). Some key factors are: earlier criminalisation of youth offenders; increasingly stricter sentencing; less non custodial sentencing and shorter prison sentences which offer little in the scope of rehabilitation (Barry, 2011). Consequently, there seems to be more of a focus on incarceration, and less of a motivation towards the intervention of youth offenders and this seems to be a result of the politicisation of youth crime in Scotland (Barry, 2010). Furthermore, the increase of custodial sentences doesn’t seem to offer any fundamentally interventional methodologies to facilitate reintegration into a societal sphere (Barry, 2011). Thus, short-term sentencing seems to be the frontrunner in exacerbating youth reoffending and this can be linked to mental health issues as a result of imprisonment and familial deprivation (Prison Reform Trust/SmartJustice 2008; Barry, 2011).

Consequently, Millie, Tombs & Hough, 2007) conducted a qualitative report highlighting possible influences in judges’ approaches and their decision-making processes when sentencing. Thusly, a number of factors that were raised, included the importance of constructing ‘the facts of the case’, gauging the offenders attitude in court, the type of offence that has been committed, judicial views about political and public opinion and there relevance to sentencing, pre-sentence reports and attitudes towards pleas mitigations, trial judges views about the Court of Appeal, and the extent to which judges were aware of their own sentencing practices (Millie et al. 2009). Furthermore, although there were similar views in certain aspects of the process of sentencing, there was no overall consensus that emerged from interviews (Millie et al. 2009). However, there was a frequency of patterns that emerged when judges were sentencing, relating to stages within a structured decision-making process which were said to be synergised with experience and intuition (Millie et al. 2009). This becomes quite clear in a judges summation of their process of sentencing:

“The process is structured, but the feeling you get from experience comes into it…” (Millie et al. 2009).

Conversely, there were a minority who argued that the process was less structured and based more on experience (e.g. ‘feel for the case’). Subsequently, this was related to experiential and empirical factors with decision-making based entirely on intuition (Millie et al. 2009).

Subsequently, whether sentencers’ use structured, intuitive or empirical methods based on experience (i.e. experts in their field), the decision making process was described as a value laden process (Millie et al. 2009). Furthermore, the decision-making process was often described as a narrative, with judges reflecting on the court process as complex array of human stories of the accused and those affected as well as focussing on the law (Millie et al. 2009). Thusly, sentencers’ explained the process of borderline decisions citing that it encompasses social and moral reasoning, as well as their expertise when implementing the law (Millie et al. 2009). Therefore, decisions were enfolded within a set of unambiguously ethical, subjective constructs, embracing humanistic and naturalistic signs of remorse, and assessing youth offenders capacities, intentions and proficiencies (Millie et al, 2009). Thus, authentic signs of remorse are a major playing factor in borderline cases with the attitude and demeanour of the youth offender having a massive impact on the overall sentencing decision. For example, one judge expressed that an offender would need to display attributes that they were sincerely remorseful:

“He’s blubbing away there and the only reason he’s blubbing away is that he’s sorry for himself; or look at him, he does actually realise that this has had a devastating effect on the victim” (Senior Judge, England and Wales).

Alarmingly, there are issues within the sentencing system for youth offenders that appear to facilitate and sustain a ‘cause and effect’ cycle and could be seen to be part of a wider dissenting societal discourse, created from political rhetoric and media sensationalisation – which could be devastatingly paramount to a youth offenders self-worth and motivation, in turn, becoming more despondent toward an unfair and cruel society – leading to a self- fulfilling prophecy (Watson, 2005). Subsequently, these sentencing issues relate to personal mitigations; the nature of the offence and the youth offender’s criminal history, which are the most influential factors in sentencers decision-making, especially in regards to custodial borderline cases (Millie et al. 2009). Moreover, other factors related to whether borderline cases leaned towards a custodial or non-custodial sentence included circumstantial elements such as: familial responsibilities ‘and’ support; forms of stability (e.g. stable relationship and concrete accommodation); and employability and training prospects (Millie et al. 2009).

More specifically, personal factors that facilitated sentencers decisions on custodial borderline cases included evidence of motivational factors that were related to address the problems that were causing offending and repeat offending behaviour (Millie et al. 2009). Thus, this included – but was not confined to – physical and mental health problems; violent and anger management issues; drug and substance abuse issues; demonstration of genuine remorse; the capacity to understand the overall consequences for all involved in the offence and co-operation with the court, for example, whether the youth offender makes a plea of guilty or not guilty (Millie et al. 2009; Merrall, Dhami & Bird, 2010). Contrastingly, factors that tipped a sentencers decision on a custodial borderline case towards a non-custodial sentence included: previous good behaviour; no prior conviction – which would make the offence seem out of character; how many prior convictions a youth offender has already accrued (Millie et al. 2009).

Other factors relevant to the increase in youth offenders incurring custodial sentencing and thus, adding to increased prison populations include large increases in the number of persons found guilty of drugs offences and also, reduced use of fines (Lambie & Randell, 2011). There is also the problem that youth offenders who receive community penalties (rather than fines) early in their criminal careers are more likely to breach and exhaust their alternative non-custodial sentencing alternatives to imprisonment more rapidly (Morgan, 2003; Millie et al. 2009). Consequently, sentencers should be aiming for proportionality (Millie et al, 2009). Thus, offences should be proportionate to the type of – and severity – of the crime perpetrated (Millie et al. 2009).

Subsequently, as well as sentencers having to apply social, moral and expert knowledge as well as differentiating in methodologies – from using loose structural applications, their intuition and experience – or even a mix of all these processes, they are also concerns and pressures emanating from political interference and populism; political rhetoric and media discourse can ultimately shape public opinion, as the more it is put out there, the more likely it is going to enter the sphere of fact and this can lead to further dangerous political trends to meet the needs of political party members constituents (Watson, 2005). Sentencers in Scotland have expressed fewer concerns about political interference compared to their counterparts south of the border (Millie et al. 2009). However, fewer certainly does not entail that these pressures are not built on the consciousness of judges. For example, in Millie et al’s (2009) study, despite mention of no interference from the senior judiciary – there was, however, mixed messages coming from the Scottish Executive (Millie et al. 2009). Thus, there was talk of sentencers experiencing mixed messages encompassing increasing number of offences on one end of the stick, compared to concerns about the increasing prison population and how it is too high (Millie et al. 2009). Subsequently, sentencers have voiced consternation about the effects that too much political interference can have on the impact of sentencing in parallel with constantly changing Governmental legislation (Millie et al. 2009).

Furthermore, many juveniles are tried as adults in the criminal justice system after a judicial transfer of youth offenders to the adult court. As a result, youth offenders become more susceptible to further sanctioned severity by criminal court proceedings (Jordan & Myers, 2011; Kupchik, Fagen, & Liberman, 2003). Thus, this can lead an increased prospect that a youth offender will be incarcerated (Myers, 2003). Moreover, youth incarceration is intended to decrease the incidence of criminogenic tendencies as well as recidivism, but there has been growing skepticism amongst the realm academia (Mendel, 2011). For example, Mendel (2011), found that between seventy and eighty percent of youth offenders who have been in a residential correction program are subsequently arrested within a three-year period. Further research has indicated that the incarceration of youth offenders may maintain and increase levels of anti-social behaviour and criminogenic activities and therefore, is generally an ineffective method in reducing recidivism (Gatti, Tremblay, & Vitaro, 2009; Lane et al., 2002).

Consequently, studying the effects of transferring juvenile offenders to the adult system suffers from inherent difficulties due the possible selection bias of higher-risk offenders being transferred. Fortunately, there have been a number of studies in the United States that have controlled selection bias that have established a null effect of transfer, thus; indicating that youth offenders transferred to the criminal justice system exhibit heightened levels of recidivism (Lanza-Kaduce, Lane, Bishop, & Frazier, 2005; Loughran et al., 2010; Myers, 2003). Therefore, findings like this lead to implications that the juvenile system has a more precipitous efficacy which is less detrimental than the adult system, and that juvenile offenders should be kept out of the adult system unless they are serious high-risk youth offenders (Myers, 2003).

Furthermore, as sentence time progresses, there is the problematic situation of youth offenders becoming enculturated, acclimatised and immersed within the criminal justice system, thus, becoming further detached from the prosocial nature of a naturalistic societal environment (Lambie & Landell, 2013). Therefore, the longer a juvenile offender serves their sentence, the more immersed in their instituationalised environment they become. Furthermore, there is a danger of limiting the opportunistic window for the youth offender to emerge from their submerged lifestyles that they have become so accustomed to. It is especially during that crucial period of maturation where one can “age-out” of their delinquent behaviour (Lambie & Landell, 2013). Furthermore, according to Elliot (1994), research has highlighted that almost a third of all young offenders will grow out of anti-social offending behaviour.

Also, in a study that gathered information on fourteen-to-eighteen year-old juvenile offenders seven years after their initial conviction reported a decrease in offending over time – and this included the more serious offenders (Lambie & Randell, 2013). Thus, only a small percentage of high-level juvenile offenders’ behaviours’ remained unchanged and more surprisingly, a large percentage of the most severe offenders reported dramatic reductions in their offending behaviour (Lambie & Randell, 2013). The results from these findings were a precursor to Mulvey’s (2010) ‘Pathways to Desistance’ study, which concluded that offenders – from low to high risk – will not necessarily continue offending and committing crimes (Lambie & Randell, 2013). Therefore, incarceration may indeed be detrimental in interfering with an offenders desire to gain a structural and reestablished prosocial familial lifestyle, which would limit the likelihood of positive outcomes (Lambie & Randell, 2013). Also, it has been reported many juvenile offenders feel like they have had their childhood and positive aspirations taken away from them (Lane et al. 2002). Thus, the results that stem from the pain and loss of positive aspirations during incarceration actually work in reverse and further increase resentment and hostility towards “the system” as a whole, which further fuels antisocial activity (Lane et al. 2002).

 

Subsequently, youth offenders who are sentenced repeatedly for repeat offences without the root cause of the problem(s) being addressed, have no option but to re-offend as they are trapped in a system that is created by political p\oint scoring and media discourse which in turn, shape peoples views about the punitive measures needed for youth offenders (McAra & McVie, 2007). Unfortunately, the debate on penal policy in Scotland and in Britain as a whole has been dominated by the fear that politicians have of the hang-’em-and-flog-’em brigade, enthusiastically supported by sections of the press, led by politically right leaning newspapers (Watson, 2005). For example Grayling’s recent announcement on ‘toughening up’ prison regimes is an example of this. It is time for a serious debate on penal policy and the way in which it can work to reduce reoffending, rather than just warehousing youth offenders who far too often emerge from prison to reoffend again (Wilson, 2005).

In marginalised low socio-economic areas, there are individuals’ who fall through the system never seem to have access to any services that could be beneficial to them in a country where the government are cutting public sector jobs and focussing on privatisation (Deuchar, 2012). A prison term serves to reduce the opportunities to lead a conventional life – with a legitimate income – and thereby contributes to marginalisation and social exclusion (Deuchar, 2012). Subsequently, if there was a better welfare system – a way to escape the lower echelons of society – individuals might not feel the need to cheat the law, commit robbery, act violently and steal from other people (Wilson, 2005). Subsequently, deprived areas are rife with truancy, behavioural problems, exclusion, suspension – all issues that demand extra attention which is unavailable in low socio-economic areas (Bailey & Marshall, 2004). Thus, it is not surprising that twenty-three percent of young offenders in custody have an IQ of less that seventy (Wilson, 2005). Criminogenic behaviours are likely to be manifestations of a society that has alienated its citizens (Clement, 2010). If people truly felt that they mattered and their actions would have an effect on society, then they would behave more compassionately and responsibly (Wacquant, 2008). Subsequently, young individuals’ experiencing maturation in the transition from child to adult and growing up on the guttural estates of municipalities, see their future life chances deeply undermined by the ever incurring lack of opportunities in: education; vocational prospects and psychological wellbeing (Clement, 2010). These individual’s need a sense of agency; a sense of hope for future endeavours, to see past the limitations of the political post structural barriers that have created these deindustrialised familial, traditional and blind alley cycles (Alexander, 2008).

More importantly, detailed sociological analyses on destructive marginality, the kind that creates an increasing minority of urban youth, is testament to the causes being deeply political, due to the abandonment by the state resulting is ghettoised constituencies (Wacquant, 2008). Furthermore, as Wacquant (2008) points out:

“this heralds the question of the new century, namely the desocialisation of wage labour” (Wacquant 2008a, pp. 224, 287)

Several European countries have penal policies that emphasise rehabilitation as opposed to punishment. Germany is an example of this as the justice system sees re-socialisation as a right of the offender; their real life chances of finding work, as this is deemed an integral and decisive element of the re-integration process (Morgenstern, Moritz & Greifswald, 2011). Also, in Germany there has been profound consideration about the detriments of having a criminal record on file as this can impede the process of re-integration into society, as it is problematic for offenders to acquire a job with a criminal record (Morgenstern, Moritz & Greifswald, 2011). Furthermore, this could even have negative consequences for the desistence process (Raynor & McIvor, 2007). Essentially the penal regimes in these countries are designed to ensure that prisoners are released with skills, attitudes and support that assist them in avoiding reoffending; their recidivism rates are very low compared with Scotland’s more punitive based penal system (Morgenstern, Moritz & Greifswald, 2011). The greater use of well funded community sentences that divert non-violent offenders away from prison, means that the prison population is much smaller than in Britain and hence more attention can be paid to reskilling and educating the inmates (Wacquant, 2008).

 

Due to expanding prison populations and the expenditure of unnecessary public funds, researchers have begun to question punitive outcomes are for young offenders and also the detrimental effects this can have as it is widely accepted that juveniles do not possess the same developmental level of psychological maturity as adults (Steinberg, Cauffman, Woolard, Graham, & Banich, 2009; Steinberg, Graham, O’Brien, Woolard, Cauffman, & Banich, 2009; Steinberg & Scott, 2003) and can have difficulty regulating their moods, impulses, and behaviors (Spear, 2000). Anatomical and functional changes in the brain occur throughout development and continue into early adulthood (Spear, 2000). Such changes involve self-regulation, reward processing, processing of social information, and the development of psychosocial maturity, involving risk perception, lowered levels of sensation seeking and impulsivity, resistance to peer influence, and anticipation of future consequences (Steinberg, 2009; Steinberg, Cauffman, et al., 2009 and Steinberg, Graham, et al., 2009).

Conversely, there has been more of a focus on non-custodial diversionary programmes, which centre on the rehabilitation and the personal changes of the juvenile and adult offenders, as opposed to punitive measures and social isolation (O’callaghan, Sonderegger & Klag, 2004). Subsequently, diversion programmes are all about preventative measures and risk awareness – with the main aim to prevent offenders entering the criminal justice system (O’callaghan, Sonderegger & Klag, 2004). Therefore, this involved a series of graduated treatment interventions that are tailored towards the personal circumstances of the offender and the seriousness and severity of the offense (Bailey & Marshall, 2004). Furthermore, psychologists are constantly researching the areas of custody diversion programmes and have offer suggestions provisional advice for policy makers in the areas of, drug courts, stalkers (i.e. national stalkers centre) and more of a emphasis on non-custodial sentencing, much to the beneficial aspects of rehabilitation (Spiranovic, Roberts, Indermaur, Warner, Gelb & Mackenzie, 2011). Also, there is research looking into gang diversion treatment, social learning theory, social cognition theory and motivational theory (i.e. cognitive dissonance), which have all highlighted positive results (Spiranovic, Roberts, Indermaur, Warner, Gelb & Mackenzie, 2011).

 

 

In addition, the holistic approach is one of the major strengths in the integrative diversionary and strategic programmes in changing youth offenders patterns of cognitive thinking incorporating education, communication skills, assertion training, anger management, self-esteem, building of healthy relationships, stress management and goal setting (O’callaghan, Sonderegger & Klag, 2004). Multi agency approaches that create overarching rehabilitative multi factorial diversion strategies can offer hope and positivity for future prospects (O’callaghan, Sonderegger & Klag, 2004). Moreover, rehabilitative drug offenders, will not only help at an individual level, but there will also be a reduction of crime in within the community (O’callaghan, Sonderegger & Klag, 2004). Thus, divisionary tactics offer a balance between maintaining the law at a micro and macro level, individually and community based (O’callaghan, Sonderegger & Klag, 2004).

 

Effectively managing diversionary programs, there has to be a synergistic, intersectorial approach coalescing different sectors including the police, the courts, corrective services, health-care departments, and treatment providers (O’callaghan, Sonderegger & Klag, 2004). Nevertheless, there appears to be an tendency for different working bodies to skew the equilibrium – both, in terms of the advantages and disadvantages of both; the effectiveness and difficulties that can arise within other programmes (Russell, 1997). Thus, this creates interchanges of unrealistically high expectations between what each of the independent sectors should achieve (Russell, 1997). Consequently, due to the invariant opinions and lack of agreement of what constitutes as satisfactory outcomes between the various groups creates discernment as to the lack of communication between them (Russell, 1997).

Subsequently, small Jail Sentences devoid risk assessment or psychological help for youth offenders when they are released from prison can be seen as problematic (McGuire, 2002). Moreover, due to the over population of prisons in Scotland there are budgetary constraints and therefore, lack of resources and staff (Barry, 2010). Thus, not much in the way of support for youth offenders who go into prison for short-term prison sentences and consequently, there is even less support when they are released from prison (Jordan & Myers, 2011). Supportive programmes are only available to offenders who are going to be incarcerated for a minimum of four years (Nilsson, 2003). Therefore, there should be risk assessments carried out on youth offenders which would address community protection and provide support workers with the information on the underlying problems of the youth offender that can be tackled and hopefully lead the pathway towards desistence (Birdgen, 2002). However, the preventative model of risk management should be cushioned with other social policies and agencies due to the fact that, although the offender may have a reduced risk of reoffending, they also re-integrate back into the community with lack of friends, weak job prospects and perhaps even lack of self-esteem and their identity (Hancock, 2006).

 

Empirical research from the past two decades has highlighted that recidivism in offenders can be reduced by means of rehabilitative methods and that contrary to public discourse – punishment and loss of liberty, is enough to actually increase recidivism (McGuire, 2002). Subsequently, loss of liberty can arise from models including; punishment, sanction for blameworthy behaviour; prevention, to prevent harm by use of restraint or deterrence; and protection; which insures the autonomous decision-making of the offender (Birdgen, 2002). However, the criminal justice system more focussed on punitive measures, as is testament to the constant increase of the prison population (Birdgen, 2002). Moreover, with continued research, and the low rates of recidivism in countries like Germany who have implemented progressive approaches specifying the importance of the need of the offender as well as public protection, there can be a lot to be learned from this kind of methodology as opposed to custodial sentencing (Morgenstern, Moritz & Greifswald, 2011).

Also, a relevance to the justice system is the implementation of Therapeutic Jurisprudence. Consequently, this takes into consideration the advantages of the legal system applying therapeutic usage and the disadvantages of executing minimal therapeutic – or even an anti-therapeutic demeanour. Ideally, the law should actively promote therapeutic objectives in regards to community protection with a balance between individual needs (Birdgen, 2002). Furthermore, if there were any psychological upset cause due to the progressive and systematic stages of the legal process, then the roles and behaviours of legal actors – specifically judges and lawyers would be expected to be of a therapeutic nature (Wexler, 1991).

Additionally, the benefits of using a more therapeutic approach in law and institutional realms have been shown to elicit the facilitation of a reciprocal environment (Gujonssen, 2011). Therapeutic Jurisprudence is defined as:

“ …the use of social science to study the extent to which a legal rule or practice promotes the psychological or physical wellbeing of the people it affects” (Slobogin, 1995).

Therefore, its goals are to promote wellbeing, enhance rights, and empower individuals’ – particularly vulnerable individuals’ – and give them more of a sense of agency; a sense of control and to make legal settings more confortable and less daunting and also to dispense a more ethical way of thinking within the role of law (Gornick, 2002) (Birdgen, 2002). Furthermore, following the principle of ‘responsivity’ specifies how the delivery of a treatment approach should be used; implementing structured cognitive-behavioural interventions to counterpart the idiosyncratic learning approaches of the offender (Birdgen, 2002). Fundamentally, moral, ethical, legal and normative (i.e. fiscal) concerns should be taken into consideration with professional discretion at the core, based on rationale (Birdgen, 2002). Furthermore, Gornick (2002) has denoted that in terms of appropriate staff-offender relationships and a linked motivation of offenders, there is an important construct of responsitivity that is overlooked – which is detrimental to the reciprocity of a dyadic dynamicity (Birdgen, 2002). Subsequently, from a psychological perspective a breakdown of autonomy, relatedness, and competence communicatively and dynamically can cause distress and result in psychological problems, social maladjustment, and therefore – offending behaviour (Ward, 2002).

In conclusion, overall crime figures are steadily declining and it is purely the sentencing factors that keep low-level offenders in a never-ending cycle of crime (Barry, 2013). A universal multi agency approach is needed with all individual integrating bodies robustly on the same page with better communication between them (McAra & McVie, 2007) Additionally, using therapeutic jurisprudence and a desistence programme that will continue when offenders – and even young offenders who are subject to short term sentences – leave prison (Barry, 2010). Also to help job with prospects, there are certain crimes that should expire after a certain time period on an individual’s personal disclosure (Lovegrove, 2009). Moreover, taking a look at German proposals, even making records available to certain governmental areas depending on the crime, the severity of the crime and the nature of the crime (Arndt & Greifswald, 2011). Companies have been exploiting the ‘Rehabilitation of Offenders Act 1974’ for years now, and young offenders trying to get a job in an ever competing market seems near to impossible and will also increase risk factors and rates of recidivism (Barry, 2010). Punitive zero-tolerance approaches are not the answer, as they can create more hostility against the system and they can further detach youth offenders from societal relations including friends and family (McAra & McVie, 2007). Thus, without any kind of structure the rates of reoffending seem a more likely prospect (Birdgen, 2002).

 

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