Widely established in the research literature is that children and young people in juvenile detention in Australia and internationally have not had successful schooling experiences. Many of these children have poor levels of literacy and numeracy (Drinan, 2018; Morris, 2016; Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory, 2017). Low academic achievement is linked to higher rates of recidivism. Despite the equitable intentions and goals of public education, schooling reinforces inequalities among poor and disadvantaged students, students from Aboriginal and Torres Strait Islander backgrounds, American Indian, Latinx and African American backgrounds. Negative relationships with schools and teachers, contribute to further disengagement from school and classroom instruction—indicators of academic outcomes (Cashmore, 2011; Flores, 2016; Humes, 2015; Sarra, 2014). Ineffective instructional approaches further contribute to this disengagement. Yet, policymakers and educators continue to argue education as vital to reducing recidivism and improving attitudes and engagement with school and learning. Several answers might be to rethink policies around juvenile detention, teaching training and professional development focused on teaching and learning in juvenile detention centres. This rethink draws on national and international perspectives on juvenile detention, the professional and emotional labour of teachers who teach in juvenile justice systems and strategies to developing positive attitudes and engagement in learning, for example, mathematics learning. These perspectives are front and centre of this particular Point and Counterpoint.
By way of an introduction, there are several preliminary points worthy of noting.
Educating children as children who have made wrong decisions or who have chosen violence and crime, instead of as a Child, is not just. Laws that prosecute children are not merely imprecise tools designed to deter juvenile crime; they are largely ineffective because they do not recognise the natural developmental differences of children (Corriero, 2006; Drinan, 2018; Morris, 2016; Tanenhaus, 2011). As children, they are treated as adults, that is, their age is compressed; they are viewed as adults with all the stereotypes about their backgrounds and identities. When viewed as school students, they have intersecting complexities that are commonly associated with poverty, disadvantage, learning difficulties and intellectual disability (Morris, 2016). Using intersectionality allows for examining age compression, and how oppression intersects everyday lives in and outside of juvenile detention centres.
The terms child, minor, juvenile, young person, youth and children are used in this text to include persons under the age of eighteen (United Nations Human Rights, 1990, Rule 11a). Australia and the United States differ in terms of children’s rights. Australia is a signatory and has ratified all significant treaties that impact on children’s rights (Law Library of Congress, 2007; United Nations, 2021). The rights and protection of children are governed by both Federal and state and territory law. Under Australian law the age of majority is eighteen. In many areas of law, however, a person under the age of eighteen may make decisions or be deemed old enough to be legally responsible for their actions (Law Library of Congress, 2007). In relation to the criminal justice system in Australia, the starting point is children aged ten and above (ten is the age of criminal responsibility). The US has signed the Convention on the Rights of the Child (CRC) treaty, but is yet to ratify it, despite playing a pivotal role in the drafting of the CRC (Engman, 2015). This support did not translate into progress towards ratification because of concerns it would conflict with Federal and State laws. Nonetheless, the rights of children are governed by Federal and State laws in the US. The age of majority laws vary, with forty-seven states plus Washington DC setting this age at eighteen. In Alabama and Nebraska, the age of majority is nineteen and in Mississippi it is twenty-one. The age of criminality for children involved in the criminal justice system varies from state to state with a minimum age of six in North Carolina, whilst the minimum age in California is twelve (National Juvenile Detention Center, 2021). Increasingly, states have transferred more and younger children to the criminal courts for prosecution as adults, punishing children like adults, compressing their age and ignoring developmental differences, and disproportionally penalising Black youths (Feld, 2017; Tanenhaus, 2011).
The Convention on the Rights of the Child, re-draft of General Comment 10, General Comment 24 (United Nations Human Rights, 2007) recommends that all countries increase the minimum age of responsibility to at least fourteen years of age. There is increasing national and international evidence that juvenile detention is not an appropriate environment for younger children (National Juvenile Detention Center, 2021; Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory, 2017). The Australian Human Rights Commission (2020) recommends that all Australian Governments raise the minimum age of criminal responsibility to at least fourteen years. The consensus is that developments and neuroscientific evidence show that adolescent brains continue to mature beyond teenage years, and therefore recommends countries have a higher minimum age, for instance fifteen or sixteen years. That is not to say that a fourteen-year-old cannot know right from wrong, but how can they be held accountable for not exercising a level of maturity that they are not physically, emotionally or intellectually expected to possess?
Irrespective of age, recent work has focused on developmental factors or risk factors associated with offending and protective factors that are likely to prevent such behaviour. Both risk and protective factors are viewed within the categories of child factors, family factors, school context, life events and community and cultural factors (Australian Human Rights Commission, 2020; Feld, 2017; Homel et al. 2015). For example, children and young people engaged, achieving, and participating in school are less likely to commit offences, while children and young people disengaged from school and underachieving are more likely to offend. Young people who have high levels of educational achievement and success and high employment aspirations are less likely to commit offences. Young people strongly attached to their parents and have a strong sense of belonging are less likely to offend. Young people who have friendships with criminals are more likely to commit crimes (Cunneen et al., 2013).
Although there are dangers with making generalisations about children and juvenile justice, these intersecting factors have been found to be associated with children brought into the juvenile justice system (Australian Institute of Health & Welfare, 2020; Feld, 2017). Their involvement is also affected by the intersection of government policy developments in areas such as child protection, accommodation and housing assistance services, education, employment, family and community services, and health (Drinan, 2018). These developments need to be considered when looking at the offences of children. Globally, children deserve a system of justice that not only holds them accountable but also protects and nurtures those who can learn from their mistakes that may have been borne out of policy developments.
The challenge then, is to let children know that they matter (Love, 2019). Support them to discover their potential, their destiny and then nurture it, so that they achieve their possibilities. The juvenile justice process can play an important role in socialising children by viewing their transgressions as an opportunity to socialise and educate (Corriero, 2006; Tanenhaus, 2011). This, in turn, presupposes that education in juvenile justice systems have a fair opportunity to provide an education that exposes children to acceptable standards of education.
Education of children is compulsory in Australia and the US. Every child has “the right to all levels and forms of education of the State without discrimination. States shall, in conjunction with Indigenous peoples, take effective measures, in order for Indigenous individuals, particularly children, including those living outside their communities, to have access, when possible, to an education in their own culture and provided in their own language” (Articles 14 & 15, United Nations, 2007, pp. 13–14). Every child of compulsory school age has the right to education that prepares them for return to society and where appropriate instruction provides vocational or tertiary education training that is likely to prepare them for future employment.
The age between which children must be educated varies international and nationally across jurisdictions but is generally between the ages of five to sixteen. The United Nations Rules for the Protection of Juveniles Deprived of their Liberty (United Nations Human Rights, 1990, 2007) state that such education should be provided external to the detention facility in community schools wherever possible and, in any case, by qualified teachers through programmes integrated with the education system of the country so that, after release, children may transition back into their education without difficulty. Education and vocational training programs are provided in Australian Juvenile Detention Centres. All children must participate (Department of Youth Justice, 1992). Juvenile detention centres are required to provide specialist support and attention to children of foreign origin or with particular cultural or ethnic needs. Children who are illiterate or have cognitive or learning difficulties have the right to special education. In the US children in juvenile detention centres are entitled to education. The Department of Justice states that education is foundational to supporting children however, “there is no centralized oversight of education in detention facilities, the result is a lack of programming, and a lack of consequences for detention facilities that fail to educate inmates” (Drinan, 2018, p. 70).
For children entering the education system with a host of emotional, social and physical challenges, they face an uphill academic battle. Coupled with a limited range of emotional skills, children raised in poverty endure chronic stress which can inhibit their learning capacity (Drinan, 2018). Jensen (2009) explains:
Exposure to chronic or acute stress is hardwired into children’s developing brains, creating a devasting, cumulative effect. … Compared with a healthy neuron, a stressed neuron generates a weaker signal, handles less blood flow, processes less oxygen, and extends fewer cognitive branches to nearby cells. The prefrontal cortex and the hippocampus, crucial for learning, cognition, and working memory, are the areas of the brain most affected by cortisol, the so-called “stress hormone.” Experiments have demonstrated that exposure to chronic or acute stress actually shrinks neurons in the brain’s frontal lobes—an area that includes the prefrontal cortex and is responsible for such functions as making judgments, planning and regulating impulsivity…--and can modify and impair the hippocampus in ways that reduce learning capacity.
Children raised in poverty are especially subject to stressors that undermine learning, behaviour and performance (Jensen, 2009). Experiences of abuse and exploitation are likely to contribute to behavioural issues in school (Morris, 2016) The stress resulting from transience—frequent short-distance, poverty-related moves affect children’s ability to succeed in learning and engage in positive social interactions. Poverty can dramatically increase the likelihood of a child entering the juvenile justice system—even when controlling for other variables like race and ethnicity (Drinan, 2018). For children who live their young lives in poverty, are they children who have incarcerated parents, and who have witness violence in at home, and therefore are statistically more likely to end up in the juvenile justice system? Are they becoming adults before their time? Is crime a destiny for some children, particularly those who live in poverty?
How are children in juvenile detention persuaded to believe that they have the power to change the circumstances of their lives through the development of their talent? That it is still possible for them to realise their dreams of becoming a contributing member of society—that they matter. The relationship between the belief in the possibility of attaining one’s dreams and crime is inescapable. There is an inverse relationship between belief and hope, on the one hand, and crime and violence, on the other. As belief and hope diminish crime and violence increase. Despair in the lack of a future falls most heavily on juvenile populations of cities, rural and remote locations in Australia and in the US. It is expressed in such forms as “Gansta Rap” – the rage against oppression and police brutality (Corriero, 2006). These questions cannot be answered simply by resorting to the rhetoric of those that cry that today’s youth have an equal opportunity to succeed just as we did. It just is not that simple. The challenge presented by children requires a rejuvenation of spirit, a realistic and meaningful display of opportunity, and an absolute right to the best education possible in Australia and internationally so that these children are prepared to embrace opportunity when it is presented to them.
We all had to traverse childhood, adolescence, and schooling at times when we saw ourselves evolving in size, knowledge and appreciation for what was right and wrong. For children in juvenile detention centres, the journey has been much more difficult than for others. The provision of education for teaching these children invites different sets of motivations, attitudes, emotions and expectations on the part of teachers. A different approach that requires training teachers with how to teach in juvenile detention centres is needed to engage children who associate conventional schooling with failure and disappointment. Offering them creative and innovative ways to unlock their learning potential, to learn that they matter to themselves and their teachers may go some way to developing positive attitudes towards education and learning. The following papers from Canada, California and Australia expand this rethink, questioning juvenile justice, teacher training and emotional labour and the influence of peers on children’s attitudes to learning (mathematics) and, reporting on their own research developments.
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Ewing, B. Point: Rethinking education for children in juvenile detention centres. Curric Perspect 41, 227–230 (2021). https://doi.org/10.1007/s41297-021-00145-5
- Juvenile justice and detention
- Indigenous children