Content area
Purpose - The youth justice system in England and Wales has been subjected to numerous transformations since 1997 under New Labour governments. Most approaches to the field during the period under review address the fine details of what is a politically and organisationally modernised domain. Even though this paper steps inside the system to observe some of its transformative developments, it aims to begin at the other end which enables a more rounded sociological approach to youth justice under New Labour to emerge which facilitates the production of a more detailed evaluation and understanding of the field. Design/methodology/approach - This other-end approach draws upon two main bodies of sociological theory, namely, Max Weber and Emile Durkheim, which are put to work to enrich the analysis. It should be made clear that the main concern is not to produce a blueprint for a new youth justice system, but rather to draw attention to some exploratory and explanatory tools to evaluate the period under New Labour from 1997 to 2010. Findings - Since 1997, the focus of the youth justice system has been placed upon individual and family responsibility, tougher on crime than its causes, and the creation of more efficient systems management. Furthermore, youth and criminal justice has been preoccupied with risk assessment and prediction. This has resulted in a system that is ambiguous in terms of what it is trying to achieve. Originality/value - The main concern is not to sketch a blueprint for the future, but rather to analyse features of youth justice to which these theoretical and sociological traditions of Weber and Durkheim are explored in order to explain the complex dynamics of youth justice make a substantive contribution by enlarging our critical understanding.
Introduction
Prior to New Labour coming to power in 1997, the Audit Commission Report in 1996 on Misspent Youth was highly critical of youth justice in England and Wales. It concluded:
The current system for dealing with youth crime is inefficient and expensive while little is being done to deal effectively with juvenile nuisance. The present arrangements are failing young people who are not being guided away from offending to constructive activities ([1] Audit Commission, 1996, p. 96).
Subsequently, New Labour's electoral success, in May 1997, responded to the Audit Commission with a promise to be "tough on crime, tough on the causes of crime" in No More Excuses ([40] Home Office, 1997a, p. 1). Accordingly, one of the first acts of New Labour was to modernise the youth justice field signalled by the Crime and Disorder Act 1998 which established the legislative groundwork for the Youth Justice Board and Youth Offending Teams (YOTs). The 1998 Act represented the precursor for a youth justice system which intervenes to tackle the known risk factors associated with youth offending including personal, family, social, educational and health factors, confronts young offenders with the consequences of their offending and assists them to develop a sense of personal responsibility while also reinforcing the responsibilities of parents.
A number of texts provide detailed overviews of youth justice since 1997 which incorporate legislative developments, sentences and sentencing, organisational and operational dynamics ([50] Newburn, 2007; [6] Burke, 2008; [75] Solomon and Garside, 2008; [49] Muncie, 2009; [43] Jamieson and Yates, 2009). By contrast this article begins at the other end by approaching the field more sociologically, primarily for analytical purposes. We suggest it is possible that bodies of social theory can be put to work to explore the youth justice field which complements sociological approaches to punishment ([22] Garland, 1990), probation and criminal justice ([66] Whitehead, 2010). Accordingly, Marxist theory would, as an example, locate the system within the politics and ideology of class conflict, and [20] Foucault (1977) the categories of power, normalisation, and the disciplinary gaze extended over recalcitrant youth. It will be made clear that attention has been directed towards a youth justice system which has become more authoritarian, punitive, but also managerial in tone ([6] Burke, 2008, p. 241; [43] Jamieson and Yates, 2009), accompanied by a decline in nuanced understandings of complex behavioural repertoires. These transformations lever open the space to introduce Weber's concept of verstehen which stands in marked contrast to the current orthodoxy of managing and predicting future risk. The contemporary field must also be situated within late-modern capitalism, or neoliberalism, with its narrow conceptualisations of individual and family responsibility. Therefore, verstehen has analytical possibilities when reflecting on the political, social, and economic context within which youth justice is located. It is also possible to call upon Durkheimian insights which draw attention towards expressive and symbolic features of youth justice, as well as related preoccupations with penal populism ([53] Pratt, 2007). Then again, and beyond bodies of social theory, one should not lose sight of help and support provided to young people in trouble by professionals working inside the system, notwithstanding modernising structural transformations imposed by policy makers.
A case can be made for engaging with all these bodies of social theory from Marx and Foucault, to Weber and Durkheim, either in isolation or in combination, to explore the complex dynamics of youth justice. Nevertheless, our main preoccupations, limitations of space, and the general economy of this article preclude such an extensive endeavour. As mentioned above, there would be merit in developing a Marxist critique as well as utilising Foucauldian concepts. However, we have deliberately restricted our scope to Weberian and Durkheimian insights because we think they facilitate our exploratory objectives. We are not overly concerned to sketch a blueprint for the future, even though we allude to some policy and practice implications below, but rather to analyse salient features of youth justice to which these two sociological traditions make a substantive contribution by enlarging our critical understanding.
Max Weber and verstehen
It is questionable whether Weber can stimulate critical analysis of the youth justice field, primarily because he did not engage in a systematic treatment of crime, delinquency, or punishment. A close scrutiny of, for example, Economy and Society ([64] Weber, 1922/1968) supports this claim. Nevertheless, selected Weberian themes are relevant when excavating developments within youth justice and criminal justice, specifically verstehen . Verstehen , a German word meaning human understanding, draws attention to human subjectivity including the inner states and motivations of individual human actors. Weber focused upon the unique individual rather than forms of knowledge "afforded by the physical sciences, which was abstract, general, and capable of being stated in the form of invariable natural laws" ([44] MacRae, 1987, p. 63). Therefore, the emerging discipline of sociology in its Germanic-Weberian form was concerned with interpretations of social action. Economy and Society draws attention to two types of understanding: direct observational and explanatory or interpretative. The former specifies what is happening; the latter with interpreting why an action is being performed. For [25] Giddens (1971, p. 148), it involves elucidating the motivational link between the observer observing the behaviour, and understanding what it means for the actor, which has implications for those directly involved in interpreting offending behaviours: from psychologists and psychiatrists, to probation officers and those working with young people in YOTs, particularly when writing reports which provide information to facilitate sentencing outcomes.
Arguably the distinctions elucidated in Weber surrounding verstehen are pertinent for appraising youth justice developments under New Labour. No More Excuses ([40] Home Office, 1997a) represented the precursor for a youth justice system which intervenes to tackle the known risk factors associated with youth offending, including personal, family, social, educational, and health factors. It also confronts young offenders with the consequences of their offending and encourages reparation to victims. During the last 13 years, attention has increasingly been diverted towards risk prediction and effective practice in both the youth justice and adult criminal justice fields. Therefore, the policy framework is keen to identify those deemed to be at risk, and then intervene early to solve problems associated with 110,000 high-risk families negatively classified in emotive political discourse as the underclass, dysfunctional, and marginalised ([24] Garside, 2009). Furthermore, credence has been awarded to computer-driven risk assessment tools within the youth and adult courts attracting some academic credibility which, in turn, facilitates political legitimacy ([18] Farrington, 2000), even though a disjuncture between academic research and government policies prevails concerning their predictive efficacy (they are not as epistemologically effective as one likes to presume).
The argument can be advanced that New Labour has extolled the virtues of a risk assessment approach which has in turn facilitated a classification system for effectively managing categories of harm and dangerousness. However, this politically imposed policy is more resonant of pseudo-scientific positivist natural science, than social science captured by Weber's verstehen . Additionally, preoccupations with risk are functionally continuous with procedural elements which have been in place for over 100 years. In other words, the system has been circumscribed by criminological positivism which has always concerned itself to study if not invent the "delinquent", observe, produce "knowledge", analyse then classify, with a view to transforming behaviour. Consequently, the practice implications for youth justice is that too much attention can be given to managing risks located in individuals and families (nearly always the poor and vulnerable rather than powerful), in addition to questionable predictions of future behaviours, rather than understanding the circumstances of behaviour. Reconfigurations within youth justice since 1997 explicate what has occurred rather than why; observational more than explanatory understanding; statistical quantification which locates young offenders on a risk scale to manage the present, rather than deeper understandings of motives within wider contexts of meaning. Furthermore, what the current system of youth justice does insufficiently, in our view, is to locate the behavioural repertoires of young people within a holistic socio-economic context. Arguably this lacuna constitutes a significant political, organisational, and moral failure that we attempt to rectify by returning initially to the Keynesian 1970s. Before doing so it should be made clear it is a failure precisely because the system is currently more preoccupied with managing than understanding.
Understanding the context of neoliberalism
The Keynesian project (the economic system associated with John Maynard Keynes) comprised an assemblage of state intervention, greater control of economic levers, full employment, mediating conflicts between capital and labour, welfare state inclusivity conducive to citizenship for all. During 1906-1914, then post-1945, the state intervened more expansively in social and economic matters to achieve the goal of a more cohesive society to counter periodic economic dislocations within capitalism, of which we are currently experiencing its latest manifestation ([32] Harvey, 2010). Moreover, the post-1945 period featured a penal system in the grip of a rehabilitative ethic for adults and juveniles ([23] Garland, 2001). This commitment to rehabilitation both in penal institutions and the community promoted the objective of bringing order and control to troublesome populations, a perennial challenge of capitalist economies ([11] Dumenil and Levy, 2004; [26] Glyn, 2006). Within the sphere of youth justice the 1960s stand out as the decade when rehabilitative welfare so nearly triumphed in what became the partially implemented Children and Young Persons Act 1969 ([61] Thorpe et al. , 1980). The 1969 Act gave primacy to the family and social circumstances of the deprived and underprivileged, it also aimed to reduce the criminalisation of young people and to increase the support and care available to them.
However, the Keynesian project was put under pressure by economic disturbances during the 1970s. By what is known as the crisis decade ([36] Hobsbawm, 1994) the post-war consensus was eroded as the latest capitalist crisis produced rising inflation, unemployment, accompanied by rising crime, concerns about the sustainability of welfare and efficacy of treatment and rehabilitation. This was the oil crisis decade, international rescue by the IMF, and industrial conflict blamed upon militant unions. It is within this fractured context the neoliberal state replaced Keynesianism "as a political project to re-establish the conditions for capital accumulation and to restore the power of economic elites" ([31] Harvey, 2005, p. 19) at the expense of social solidarity for all. The Thatcherite neo-right after 1979 utilised Hayek and Friedman to displace Keynes; lambasted the post-1945 social democratic consensus by confronting the unions and those they represented; launched attacks on a morality of social inclusiveness engendered by enervating welfare by elevating the robust notion of individual responsibility. Additionally, the dogma of privatisation, business efficiency mentalities, and competitive markets were extolled, thus creating economic conditions conducive for economic elites to prosper at the expense of the majority. This neoliberal compact may well have enhanced economic freedom conducive to the restoration of profitability but it was not neutral in terms of its social or behavioural effects illustrated, for example, by over three million people unemployed during the early 1980s ([5] Beynon et al. , 1994; [57] Saad-Filho and Johnston, 2005).
It is within these ideological and politico-cultural parameters, which constitute a neo-Darwinian landscape of the survival of the fittest that behavioural issues, such as crime and delinquency, are more likely to be blamed upon personal failings. Consequently, social dislocations attendant upon adverse economic and material conditions which provides the context of meaning and understanding for how people behave, including youth offending, are translated into individual weaknesses and lack of respect ([56] Rodger, 2008; [7] Cabinet Office, 2008). In other words, the aetiology of misbehaviours (tough on crime, tough on the causes of crime) becomes lodged in individual pathology rather than the resurgence of capitalism. Accordingly rather than the state responding to adverse economic and social conditions by forging assistance and protective policies ([62], [63] Wacquant, 2008, 2009), New Labour elongated the neoliberal agenda along with an instrumental law and order, authoritarian and penal response to problem populations with implications for children, young people, and families. We have drawn attention to this neoliberal context within the context of Weber's notion of verstehen , because they complement each other as we pursue a deeper understanding of youth justice developments over the last 13 years.
Youth justice developments: doli incapax , parenting orders and ASBOs
No More Excuses made several recommendations for improving the youth justice system ([40] Home Office, 1997a). One important feature was to modernise: "the archaic rule of doli incapax " which reflected a concern that "using criminal penalties to punish a child who does not appreciate the wrongfulness of his or her actions lacks moral justification" ([51] Penal Affairs Consortium, 1995, p. 5). According to the legal doctrine of doli incapax , children did not become fully criminally responsible for their actions unless the prosecution could prove, beyond all reasonable doubt, that when doing the act the child knew that what they were doing was seriously wrong as opposed to being merely mischievous or naughty. Under English law a child below the age of ten was considered doli incapax , a child between ten and 14 was presumed doli incapax as at this age children were considered incapable of identifying right from wrong, and therefore lacked the criminal intent necessary for prosecution. However, the New Labour government believed that this presumption doli incapax was "contrary to common sense" and "not in the interests of justice, or victims or of the young people themselves" ([40] Home Office, 1997a, p. 4.4). Following No More Excuses , Section 34 of the Crime and Disorder Act 1998 abolished the presumption of doli incapax . Thus, England and Wales now has a law:
[...] which holds that a person is completely irresponsible on the day before his tenth birthday and fully responsible as soon as the jelly and icecream have been cleared away the following day ([58] Smith, 1994, p. 427).
New Labour argued that criminal prosecution was in the child's best interest as it afforded the child the opportunity to be confronted with his criminality at an early age in order to reform him. By contrast contemporary scholars argue that the abolition of doli incapax reflects an erosion of the special consideration afforded to children and is "symbolic of the state's limited vision in understanding children, the nature of childhood or the true meaning of an appropriate criminal law response" ([4] Bandalli, 2000, p. 94). Bandalli stressed that the presumption of doli incapax operated in a protective manner "shielding the child from the damage that might otherwise be done by being absorbed into the criminal justice system" and that its removal makes "childhood irrelevant to criminalisation" ([3] Bandalli, 1998). Accordingly, England and Wales have tipped the balance towards criminalising and punishing what young people have done rather than understand why.
The Crime and Disorder Act 1998 also introduced the "parenting order" which enables the court to require the parent of every convicted young offender to attend parenting programmes and if necessary to control the future behaviour of the young person in a specified manner. Parenting programmes address experiences of parenting, communication and negotiation skills, parenting style and the importance of consistency, praise and rewards, and can include a residential element. Parents may also be required to apply control over their child, for example, attending school or avoid associating with particular individuals. The Anti-Social Behaviour Act 2003 empowers YOTs to apply to the courts for parenting orders where the YOT suspects that parents are not taking active steps to prevent the child's anti-social or criminal behaviour, and that this behaviour is likely to continue. Section 24 of the Police and Justice Act 2006 allows registered social landlords to apply for a parenting order where they have reason to believe that a child is engaged in anti-social behaviour. Accordingly, parents who have not committed any crime can receive a parenting order in response to their children who have not committed any crime ([38] Holt, 2008, p. 204). In 1997, the Home Office consultation paper Tackling Youth Crime first detailed the underlying principle of the parenting order, which was to make "parents who wilfully neglected their responsibilities answerable to the court" ([41] Home Office, 1997b, p. 32). This consultation paper was followed by No More Excuses ([40] Home Office, 1997a) which stated that government intended to make parents more responsible for their children's behaviour by making available sanctions for parents who evade their responsibilities. This attitude towards parents of young people who offend is also reflected in the Youth Crime Action Plan 2008 which warns that there will be sanctions for parents who do not take their responsibilities seriously in the form of non-negotiable support and more anti-social behaviour orders (ASBOs) accompanied by parenting orders ([35] HM Government, 2008, p. 10).
However, it has been argued that a neoliberal political economy has created disparate groups of "socially and psychologically dislocated" ([8] Coleman et al. , 2009). Additionally, it is within this macro-structural context that one should develop the analytical categories to evaluate the modernised politics of youth crime which has emphasised individual and family responsibility, the risks they pose, and the expansion of ASBOs. But state formations can be culpable through inflicting risks and imposing violence from above which damage vulnerable sections of the community ([62] Wacquant, 2008). Laws that penalise parents for their children's behaviour ignore the complex patterns and interrelated problems that such families invariably endure. These laws cast parents as "failures" and confront them with the prospect of financial penalties and potentially imprisonment. Parental responsibility laws also serve to fragment the approach both to tackling youth crime and supporting families in crisis. In 1997, the government stated in No More Excuses that "as they develop, children must bear an increasing responsibility for their actions, just as the responsibility of parents gradually declines" ([40] Home Office, 1997a). The government believed that to prevent offending and re-offending by young people, society must stop making excuses for youth crime. According to this view, children above the age of ten years are generally mature enough to be held accountable for their actions and the law should recognise this. Yet parental responsibility laws are built upon the idea that parents have caused their children to offend. Rather than parental responsibility decreasing when the child is held criminally responsible, both parent and child are held legally liable regardless of the actual or indeed presumed capacity of the child, and consequently there is no diminution in parental responsibility as the child gains responsibility ([37] Hollingsworth, 2007).
Restorative justice, final warnings and referral orders
By 1997 New Labour wanted to incorporate restorative principles and practices into youth justice to create a victim-centred system whilst also encouraging offenders to take responsibility for their actions and prevent future offending ([40] Home Office, 1997a). New Labour saw restorative justice as a vehicle for achieving its pledge to be tough on crime and its causes. The main thrust of restorative justice in the English youth justice system is to promote more effective ways of preventing offending by young people by undertaking early interventions that seek to address the known causes of their anti-social and offending behaviour. These efforts aim to make young people accountable by requiring them to undertake some reparation to the victim and/or the community, for example, writing letters of apology, attending restorative conferences, and undertaking practical reparative activity related to the offence ([42] Home Office, 2000, p. 55). This process offers victims a chance to speak about how they have been affected by what has happened and to get answers from the offender. For offenders it offers the opportunity to demonstrate responsibility, apologise for the harm caused, and to make amends.
Reparation is part of the pre-trial and the post-conviction stage in the English youth justice system. Section 65 of the Crime and Disorder Act 1998 provides that the police can respond to a young person's first offence with a final warning, depending on the seriousness of the offence. When a final warning is administered the police are required to refer the young person to the local YOT for "assessment" for suitability for an intervention programme. The YOT will draw up a detailed rehabilitation programme whose over-riding objective will be to prevent re-offending by addressing the causes of the young person's offending behaviour ([42] Home Office, 2000). The Youth Justice and Criminal Evidence Act 1999 introduced the referral order as a new primary sentencing disposal for ten- to 17-year olds pleading guilty and convicted for the first time. The referral order is the standard sentence imposed by the Youth Court for all first time offenders under the age of 18 years unless their offending is so serious that it warrants custody. The referral order allows the youth court to refer the convicted young offender to a youth offender panel (YOP) which includes lay members from the community and one member of a local YOT. The YOP provides a forum where the young offender, members of his family and, if appropriate, the victim can consider the circumstances surrounding the offence and the effect on the victim. The YOP then establishes a "programme of behaviour" with the young offender to address his offending behaviour which the child will be obliged to observe. The programme of behaviour can include: financial or other reparation to the victim; mediation with the victim; unpaid work or service in the community; attendance at school, educational establishment or work; participation in specified activities such as alcohol or drug treatment, counselling, courses addressing offending behaviour; or education or training.
The final warning and referral order are sanctions which combine notions of deterrence via formal procedures that make clear the consequences of further criminal activity, and reform, from the inclusion of a requirement for referral to the YOT for assessment and a "change" programme ([34] Hine, 2007). However, the final warning ignores the possible benefits of further warnings. This inflexibility has ensured that the police have lost their discretion to deal with cases informally and has resulted in the youth court being inundated with petty cases. This rigid approach risks undermining efforts to divert large numbers of young people from the youth justice system and risks prematurely launching children into the criminal justice system. In R v. Durham Constabulary and another ex parte R (FC) ([2005] UKHL 21) the House of Lords acknowledged the lack of flexibility in final warnings and felt that this was inconsistent with the objective of diverting children from the criminal justice system, and that it seriously risks offending against the principle that intervention must be proportionate both to the circumstances of the offence and the offender. Also final warnings remain on the Police National Computer for a period of five years and are cited in court hearings if a young person engages in subsequent offending. Compliance and non-compliance with a final warning programme are cited in YOT court reports ([17] Evans and Puech, 2001). Thus, engagement with a final warning programme can have a potentially detrimental effect on future sentencing options for the young person. Moreover, any young offender in court charged with an offence within two years of receiving a final warning is unable to be given a conditional discharge, unless the circumstances are exceptional. Instead the young person will receive a penalty, probably a referral order, thus progressing further down the road to a serious criminal conviction. It is evident that a considerable range of initiatives intended to discourage juvenile anti-social and offending behaviour have been introduced, together with a growing understanding of the parameters and requirements of appropriate provision to meet the individual and diverse needs of young people. However, in England and Wales, the restorative elements are peripheral to the work of the youth justice system. They are additions rather than defining components of a youth justice system that is committed to punishment and incarceration. In Scotland and New Zealand where the children's hearing system and family group conference have both succeeded, restorative justice arrangements are substitutes for court appearances and not additions to the system.
Therefore, if there is a choice between behaviour modification and social change; between tough on crime or socio-economic factors; between system development (parenting orders), dismantling other features (doli incapax ), and transforming a political economy that benefits some more than others; the former has been more politically attractive. Moreover, taking such a stance enables youth crime, and other bothersome behavioural repertoires, to be utilised as a symbolic source of unity in class-divided societies by casting a cloak of mystification over underlying problems ([76] Hall et al. , 1978). Nevertheless, it can be argued that the "problem" is not always youth delinquency per se but the indubitably complex political and socio-economic context confronting individuals and families which must figure in any analysis to enhance sociological understanding. Accordingly, [54] Reiner (2007, p. 164) reminds us that economic factors are associated with crime due to the "extent and impact of unemployment, poverty and inequality following the collapse of the post-war Keynesian, welfare state compromise, and the social tsunami of neoliberalism". Instead, though, we have witnessed the emergence of a toxic mélange of harsher policies directed towards vulnerable groups, and continue to live within an exceptional form of the state-deemed necessary to respond to the fall out from neoliberalism. Accordingly, changes to the functioning of the system, introducing new orders, and elevating punitive responses have been imposed without paying sufficient attention to understanding the wider context within which behaviours take place. This has done little to enhance the principle of Weberian verstehen , an essential requirement when working with and responding to children and young people in trouble.
Emile Durkheim: the expressivity of political and organisational reactions
If Weber did not directly address delinquency and punishment, [72] Durkheim (1893/1984) most certainly did in The Division of Labour in Society, "The two laws of penal evolution" ([73] Durkheim, 1899), and Moral Education ([74] Durkheim, 2002). According to Durkheim's sociological analysis, crime disturbs society's moral consciousness which elicits a punitive response characterised by passionate outrage, denunciation and vengeance. The function of punishment is less concerned to correct or deter the individual offender, as to promote social solidarity amongst the law abiding and to bolster the collective conscience. Therefore, Durkheim draws attention to the expressive and symbolic features of crime and punishment which make an insightful differentiation between penological effectiveness and political utility. Arguably, there is a Durkheimian resonance within contemporary youth justice requiring consideration which facilitates understanding.
Tough on crime and its aetiology became New Labour's adopted posture during the 1990s as part of its strategic repositioning to displace the Conservatives and seize power. By 2000 Prime Minister Blair is credited with endorsing tough measures on crime:
We should think now of an initiative, e.g. locking up street muggers; something tough with immediate bite which sends a message through the system; maybe the driving licence penalty for young offenders ([68] Windlesham, 2001, pp. 275-6).
This is the language of gesture politics, illustrated by sending a message through the system, which conveys a Durkheimian resonance. This approach is also evident in New Labour's more punitive approach to youth justice in which the welfare needs of young people who engage in anti-social and offending behaviour are marginalised. The marginalisation of welfare needs was reflected in No More Excuses which stated that:
[...] punishment is necessary to signal society's disapproval when any person including a young person breaks the law [...] Young people [...] should be in no doubt about the tough penalties they will face [...] ([40] Home Office, 1997a, p. 5.1).
Section 37 of the Crime and Disorder Act 1998 placed all those carrying out functions in the youth justice system under a statutory duty to have regard to the principal aim of preventing offending by children and young people. This act gives no direction to the courts or anyone else that the child's welfare should be of primary consideration. Consequently, the primary duty of those involved, including the police, is to prevent offending and not necessarily to promote the child's best interests. Section 9 of the Criminal Justice and Immigration Act 2008 has elevated the aim of preventing offending and re-offending to the principal consideration when sentencing young offenders. While the courts are required to have regard to the welfare of the young person at the point of sentence in accordance with Section 44 of the Children and Young Persons Act 1933, the 2008 Act says that welfare needs will not have equal status, nor will they override the primary aim of preventing offending. Welfare concerns are also ominously absent from the Youth Justice Board's "Strategic Objectives for 2008-2011" which are: to prevent offending and re-offending by children and young people under 18 years; to increase victim and public confidence; and to ensure safe and effective use of custody ([70] Youth Justice Board, 2008). Therefore, the primary aim of youth crime prevention signals a political preference for a punitive response to young people's behaviour ([45] Mason and Prior, 2008, p. 280; [48] Muncie, 2002; [52] Pitts, 2001; [59] Smith, 2006, pp. 97-8).
In No More Excuses New Labour stressed that it did not see any conflict between protecting the welfare of the young offender and preventing that individual from offending again because "preventing offending promotes the welfare of the individual young offender and protects the public" ([40] Home Office, 1997a, p. 2.2). However, this is not a view shared by the courts. In the case of R v. Inner London Crown Court, ex p N. and S. ([2001] 1 Cr. App. R. 343) Rose LJ examined Section 37 of the Crime and Disorder Act 1998 and stated that the need to impose a deterrent sentence may take priority over the provisions of Section 44(1) of the Children and Young Persons Act 1933 which requires the court to promote the welfare of individual offenders. Thus, despite the government's assurances in No More Excuses to protect the welfare of young people, Section 37 of the 1998 Act ignores the potentially corrosive impact of custodial life upon a young person's development ([60] Stone, 2001) and allows the youth court to impose a deterrent sentence with the aim of preventing young people from offending, but which does not necessarily promote their welfare. The welfare principle's main virtue is that it requires a decision made upon a child to be justified on the basis of the child's best interests. It would be inconsistent with the welfare principle to make a decision that is overtly justified by reference to the way the outcome benefited other interests ([15] Eekelaar, 2002). For [33] Hendrick (2002), the welfare principle represents the need to respond to youth offending by providing young people with the necessary tools to grow into more civilised and competent adults. This view recognises a lack of capacity in the child and a need for both the family and the state to take responsibility for children's needs ([19] Fionda, 2005, p. 21). [21] Franklin (2002) viewed the hysterical media reporting of the trial of Jon Venables and Robert Thompson for the murder of James Bulger in 1993 as a turning point which legitimised an increasingly authoritarian approach to youth offending. This authoritarian approach continued when New Labour came to power in 1997 by shifting the youth justice system away from its welfare role and emphasising the containment and control of young people instead ([21] Franklin, 2002).
This approach to young people has lead to the development of a youth justice system which criminalises children at an earlier age than most comparable countries, and has resulted in the charge that England and Wales is "the site of the most punitive youth justice system in Europe" ([28] Goldson and Muncie, 2006, p. ix). Since 1997, there has been a substantial increase in the custodial powers of the youth court and a loosening of the conditions which must be satisfied before custodial orders can be imposed on children. England and Wales lock up more young people than any other country in Western Europe. Large numbers of these young people sentenced to custody do not pose a serious risk to the community, and by leading to broken links with family, friends, education, work and leisure they may become a significantly greater danger upon their release ([29] Goldson and Peters, 2000). The practice of imprisoning children also appears to run counter to the aim of preventing offending. When a young person is in custody they are making no reparation to the victim or society. Child imprisonment makes little if any positive effect in preventing offending and associated patterns of reconviction with regard to children, following release from all forms of custodial institution, are exceptionally high ([27] Goldson, 2005, p. 82).
The current approach to using custody in the English youth justice system insufficiently addresses the underlying causes of offending, does not prevent offending and is prohibitively expensive. Expenditure on custody accounts for almost 70 percent of the Youth Justice Board's expenditure. The effect of this budget allocation is that youth crime prevention schemes devised by YOTs are being developed and implemented in a piecemeal fashion. As a result of lack of resources and over-reliance on short-term funding, effective procedures for the establishment of social programmes to provide necessary support for children at risk of engaging in offending behaviour and their families are not being adequately developed. There are clear grounds for investing heavily in prevention, for as a report on Young Offender Institutions put it: "if you select at random any inmate of a Young Offenders' Institution, you will almost certainly find a heartbreaking history of personal misery, professional neglect and lost opportunities" ([55] Rethinking Crime and Punishment and Children's Rights Alliance for England, 2002). The [2] Audit Commission (2004) calculated that if effective early intervention had been provided for just one in ten convicted young offenders, annual savings in excess of £100 million could have been made.
Youth justice and adult criminal justice systems are more than instrumental crime control mechanisms. If this was the sole criterion of effectiveness then custody would be abandoned forthwith for the majority because of its questionable efficacy to reduce re-offending. Arguably, therefore, the system serves other purposes, illustrated by the Durkheimian corpus and supported by [16] Erikson (1966). [71] Zedner (2004, p. 77) summarises Durkheim's position by saying that the function of punishment is less concerned to control crime than to be a vehicle for expressing outrage when a crime is committed, with a view to reaffirming the social value which has been transgressed. In other words, the subject of punishment is not primarily the individual offender, but rather the cogent message being expressively communicated throughout the whole social body in response to behaviours disturbing the collective conscience. Consequently, the youth justice system, print media, including occasional intemperate political pronouncements, combine to communicate critical messages by punishing those labelled delinquent. These messages often constitute passionate knee-jerk reactions, emotive responses, and media-fuelled rhetoric, which lack dispassionate analyses because the spirit of the age under New Labour demanded catchy headlines and quick fixes. This is the politics of power and acting out which exclaims look at what we are doing about youth crime, yet functions more at the level of political necessity than effective or efficient penal policy. It is within this Durkheimian sociological context that criminal and troublesome youths can be inadvertently sacrificed for the social good: blamed, isolated, and punished as contemporary folk devils, to maintain the bonds of social solidarity and community cohesion amongst the law abiding. This is not to suggest that we are dealing here with a deliberately engineered penal policy forged around the cabinet table, but rather this is the effect of emotive knee-jerk responses to the youth "problem" with the public audience in mind. Accordingly, youth offenders become expendable subjects and punishment utilised to bolster the law abiding through targeted expressions of outrage. But at what cost for the future cohesion and stability of the whole social body; at what cost for children and young people?
Conclusion: policy and practice implications
In 1997, the New Labour project was determined to do something about youth justice. Even though the complex links between crime and social-economic factors were acknowledged by establishing the Social Exclusion Unit, nevertheless the focus has been upon individual and family responsibility, tougher on crime than its causes, and more efficient systems management. Furthermore, youth and criminal justice have been preoccupied with positivistic risk assessment and prediction. New Labour's youth justice was increasingly characterised by a culture of punitive and authoritarian control which generates an atmosphere of hostility towards children and young people. As we recount the abolition of doli incapax , the low age of criminal responsibility and high custody rates, placed England and Wales out of step with most European jurisdictions. Consequently, the English youth justice system should urgently seek to learn from European neighbours that have higher ages of criminal responsibility and lower rates of offending. Additionally, the age of criminal responsibility should be reviewed with a view to raising it to the European norm of 14 years. Meanwhile the presumption of doli incapax should be re-established, and children who commit offences should be dealt with through a welfare-based approach.
The 1998 Act contains a range of dispositions such as the ASBO, the child safety order and child curfew, where there is no requirement for the commission of, or conviction for, a criminal offence. To clarify, an ASBO is a court order which prohibits a person who has engaged in anti-social behaviour from doing anything the order prescribes. It is a civil order requiring less proof than a criminal order, but breach constitutes a criminal offence. The child safety order is designed to protect children under ten by placing the child under the supervision of the responsible officer (either a social worker from a local authority social services department or a member of a YOT) and requires the child to comply with such requirements considered desirable to prevent any repetition of the kind of behaviour which led to the order being made in the first place. The child curfew scheme creates a ban on all children under the age of ten being in a public place within a specified area during specified hours. It would appear from these conditions that all of these orders can be made before any act of criminality has occurred. Arguably, this continues the nineteenth century criminological project of tiering and classification by the appliance of science, separating delinquent goats from law-abiding sheep, which casts a long positivistic shadow. Furthermore, Pratt insightfully comments that the "scientific" assessment of risk and accompanying panoply of risk scales, computer technology, and actuarialism, injects legitimacy into concepts of harm and dangerousness. But it also enables organisations, which have become more bureaucratic (another Weberian concern), to avoid the "moral consequences of their policies by relying on statistical computations rather than human judgements" ([53] Pratt, 2007, p. 134).
Therefore, if youth justice aspires to be efficient and effective which was demanded by the Audit Commission in 1996, then political decision makers and the Youth Justice Board must proceed beyond preoccupations with crime prevention, enhancing victim confidence, and custodial sentences, to develop more nuanced understandings of youth behaviour located within wider political, social, and economic parameters. Rather than refining organisational procedures to system manage the youth "problem"; collude with the erosion of doli incapax ; narrow the differences between children, young people, and adults; elevate punitive approaches at the expense of social welfare; locate risks within individuals and families but then demand responsibility, respect, and conformity regardless of material and social conditions; a measure of rebalancing is required. These itemised features may well have modernised and culturally transformed the youth justice field according to New Labour's vision. However, they lack a deeper sociological understanding which can be facilitated by Weber's preoccupation with those subjective meanings that "human actors attach to their actions" within specific social, cultural, and historical contexts ([9] Coser, 1977, p. 217); and Durkheim's insights into the way punishment functions less to correct, deter, or assist the individual than promote social solidarity amongst the law abiding.
If one is serious about responding effectively to the troublesome behaviours of children and young people, the next few years under the conservative-liberal coalition elected in May 2010 must avoid repeating 1997-2010. If history is allowed to repeat itself, this will continue a punitive politics of youth and adult criminal justice which constitutes an evidentially questionable penal policy. Accordingly, there must be less emphasis upon the youth justice system per se as the solution to youth offending, and more attention directed towards the kind of society in which we want children and young people to live. A transformation in political vision must be effected from short-term and supposedly immediate gains to long-term investment in the lives of children. Accordingly, the youth justice system should adopt a more welfare-orientated approach to tackling youth offending and develop an intervention strategy that is based on dealing with young people holistically after considering the factors underlying the offence. The restorative justice provisions need to become an alternative criminal justice response, rather than an addition which sits alongside ASBOs, parenting orders and detention and training orders. Programs that strengthen the family and foster healthy growth and development of children from prenatal care through adolescence should replace policies which seek to penalise and punish struggling children and families. One way of making this argument more compelling is to draw attention to the evidence which shows that countries that invest in universal welfare provisions tend to have the lowest levels of penal custody ([10] Downes and Hansen, 2006). Thus, investment in, and commitment to, protecting the welfare concerns of all young people, including young offenders, can be cost effective in the long term. In short what is urgently required is enhanced understanding of behaviours consistent with Weberian concerns; less business efficiency supported by computer technologies, but more insightful engagement with young people to facilitate recounting their life stories having regard to all relevant circumstances: individual, family, and political economy dynamics.
The prevailing context of state re-formation under the conservative-liberal government provides opportunities to influence the direction of youth justice policies and practices. In December 2010, a Green Paper was published which stated that "The purpose of the youth justice system is to prevent reoffending by children and young people between the ages of 10 and 17 years old, while safeguarding their welfare" ([47] Ministry of Justice, 2010, p. 67). This discussion document endorses restorative justice, but wants to use custody effectively rather than less. There is no commitment to reconsider previous changes to doli incapax , and YOTs are enjoined to improve their work with families through the greater use of parenting orders where there is a perceived lack of responsibility. Even though the principle of welfare is articulated, there is no analysis of the ways in which a neoliberal political economy deleteriously impacts upon the welfare and security of individuals, families, and communities.
Nevertheless, an opportunity is presented for YOTs to exercise greater flexibility which arguably offers the scope to re-think the production and efficacy of court reports. The documents prepared by staff within YOTs for magistrates and judges to facilitate the sentencing process have a critical function in promoting understanding, the meanings and motivations of behaviour, under neoliberal political, social, and economic conditions. Therefore, it may be suggested that by putting to work Weberian verstehen , as well as learning from the expressive and symbolic functions of crime and punishment within the state's youth justice system, resonant with the Durkheimian tradition, concerns articulated above can be addressed by the current government. This would be in the best interests of children, young people, and local communities by contributing to youth, criminal, and social justice.
Both authors wish to acknowledge the assistance of Professor Rob MacDonald who provided much valued commentary on an earlier draft of this text. However, opinions expressed herein, together, of course, with any errors remain the responsibility of the authors.
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Further Reading
1. Hagell, A. and Hazel, N. (2001), "Macro and micro patterns in the development of secure custodial institutions for serious and persistent young offenders in England and Wales", Youth Justice, Vol. 1 No. 1, pp. 3-16.
2. Home Office (1990), Crime, Justice and Protecting the Public, The Stationery Office, London.
3. Miller, J. (1991), Last One Over the Wall: The Massachusetts Experiment in Closing Reform School, Ohio University Press, Athens, OH.
4. Whitehead, P. and Statham, R. (2006), The History of Probation: Politics, Power and Cultural Change 1876-2005, Shaw & Sons, Crayford.
5. Wilkinson, R. and Pickett, K. (2009), The Spirit Level: Why More Equal Societies Almost Always Do Better, Allen Lane, London.
6. Youth Justice Board (2000), "Detention and training order - a better sentence for young offenders", Youth Justice Board News, June.
Philip Whitehead, School of Social Sciences and Law, Teesside University, Middlesbrough, UK
Raymond Arthur, School of Social Sciences and Law, Teesside University, Middlesbrough, UK
Copyright Emerald Group Publishing Limited 2011