We must raise the age of criminal responsibility, here is why

Raising the age of criminal responsibility will only succeed if we address existing arguments against making this change. The fact Australia is out of step with international human rights standards has failed to serve as a motivator. Australia has a long history of ignoring how its domestic policy compares against international human rights standards, particularly when it comes to locking up black kids. 

As an Indigenous psychologist who has dedicated decades to prevention efforts the core of my argument is that locking children up is ineffective as a crime prevention measure. In fact, the strongest predictor of future criminality is the ‘normalisation’ of criminality via an early prison sentence. We are effectively ensuring higher rates of crime and escalating incarceration rates by criminalising children before they have developed the capacity to fully understand the consequences of behaviours. 

So, the ‘tough on crime’ approach is having the reverse effect. 

I have personally seen no examples of children who have become better psychologically, mentally and in terms of contribution to society as a direct result of a prison sentence. 

Far from being ‘soft on crime’ or a ‘bleeding heart’ it is incumbent on all of us, to allow the best available evidence to direct us when issues this emotional are at play. What is being lost in this debate is that Raise The Age is not anti-victim; it is actually pro-victim. 

In fact, 45% of people released from prison have returned within two years.

So why does incarceration increase rather than decrease the odds of future criminality?

Its predominantly about the stage of development. First, children of this age do not fully understand consequences of behaviours in the same way as adults. They are rigid in their understanding of right and wrong and are driven by an external fear of punishment. So, if you criminalise children at that stage of development, you risk their moral reasoning ability stagnating at that level. What this means in a practical sense is they learn how to avoid punishment (e.g., by becoming better at evading law enforcement; or telling better lies) rather than developing a greater sense of moral reasoning based on an internal working model of right and wrong.

Second, attachment matters. Compromised attachment occurs when there is loss, disconnection from primary attachment figures. So, when children are imprisoned, they learn not to rely on close attachments for their emotional needs. We know also, that compromised attachment gets passed into future generations and into future relationships and partnerships. 

We are seeing this in practical action in which there are ‘generationally incarcerated’ cohorts of kids in every district, every region who make up the bulk of the crime statistics. These kids have often had a family member who has been imprisoned. We know that exposure to criminality, whilst not ensuring this pathway, certainly increases the odds of it, particularly given the virtual absence of early intervention and prevention programs.

Third, children thrive based on their worlds being predictable. That the love and support of primary attachments are there in a predictable and consistent way. Lose that at such a young age and the evidence shows it is almost impossible to recover from this loss. How a child makes meaning of this loss is tied in with their developmental stage. This occurs by either blaming others or internalising blame. Either way the results are that you develop in children the idea that you cannot rely on anyone to consistently love or support you. Or children develop a sense of ‘self-loathing’. These outcomes are consistent with the personality variables of those who have ‘nothing to lose’ and fail to fear anything anymore, including prison.

Fourth, we have long seen studies which indicate that between 80%-93% of kids who are incarcerated have trauma. Untreated childhood trauma has strong links with substance abuse and violence. We should not be criminalising children for what are often normal, trauma reactions. It is important that we also understand this trajectory and its links with future criminality and why assessing for, and treating trauma is so critical to prevention. 

Those with trauma tend to be more impulsive and are limited in their capacity to ‘self soothe’ or calm. We are already starting to see a lot of youth and most adult crimes are highly impulsive, or reactive to interpersonal conflict. 

So, placing traumatized children with other traumatised children creates an environment that ensures that heightened reactivity to others can become normalised.

Finally, a strange argument I have heard too often for locking kids up is that “kids feel safer in prison, than their own homes” – which you would think is exactly why we should NOT be putting kids in prison! 

But what is at the core of this argument and what we do not name enough is that Australia has a level of comfort with criminalising black kids who are victims of trauma. There is a view within Australia that black kids are ‘better off’ in prison that in their communities and homes. Its consistent with a phenomenon known as the racial empathy gap with many studies showing that less pain or empathy is felt for black people. This requires that we search deeply within our psyche. Fundamentally we need to ask ourselves when we lose our compassion for children who are being traumatised in their own homes. Well, in Australia our Government says we lose that compassion at 10.  

At 10, you don’t get a ’do over’ when you have parents who are limited in their capacity to care for you. I had parents who loved me. I always felt safe. I always had a meal on the table. That’s just luck. Until we have empathy for this reality, we will continue criminalising children for being born into circumstances over which they have no control. 

The ‘punishment should fit the crime’ argument– but what is the crime?

There is a strong mindset that the punishment ‘must fit the crime’ and I do empathise that this is sometimes from victims of crime. I’ve been around long enough to know that protagonists often cite the James Bulger case, as indicative of what 10 years old are capable of. This was an horrific case. No arguments here. But it was also an extraordinarily rare one. It should not be used to make the illogical leap that all 10 years olds are in prison for similar crimes. 

So, what are Aboriginal kids being incarcerated for? This should be a simple answer, but we are failing to gather clear, consistent national data on youth crime and the reasons (causes) of incarceration. Local police data is almost impossible to access and we do not break youth data down by Indigenous status. This has significant detrimental knock on effects.

First, Christian Porter when he was AG argued that there were serious crimes that required children be locked up. We really have little information on what percentage of crimes are at the serious end. It also makes it difficult to draw correlations between offending and crimes of circumstance and poverty, although we do know, that in NSW for example, up to 37% of youth crimes are the result of fare evasion.

The most critical outcomes are that it makes it difficult to determine trends in youth crime; develop programs specific to these needs; geomap youth crime hot spots; track local police responses, court outcomes and ensure program accountability.

We are then left to rely mostly on anecdotal evidence and horror stories, of which I have been a personal witness to, but which are too easily dismissed as not being representative of most kids who end up in prison. I witnessed daily realities of children stealing food because they are hungry and being imprisoned for it during my years as a welfare worker-so called “criminal activity” was all too often about survival.

Locking kids up costs, but we have a prevention allergy. 

The juvenile prison system costs Australia around $18 billion per year and approximately $400,000 a year to keep a child in prison. Justice reinvestment or prevention costs significantly less but we have a prison ‘love affair’ in this country.

Australia has the fifth most expensive prisons in the OECD; the seventh fastest prison spending growth rate; more police per capita. Yet around 80% of the corrective services budget is spent on prisons. 

Worse still, is that there are no data driven, evaluations which explain what works for whom, and why, by way of treatments specific to Aboriginal youth. I often wonder where the #ClosingTheGap is in all of this, with their target of reducing the rate of youth incarceration by 30% by 2030. This must surely begin with having clear measurable evidence of program impacts through focused early intervention and prevention initiatives. 

This gap assures that prison becomes the only option for high-risk kids.

Why race matters

Aboriginal kids are 24 times more likely to end up in jail than white kids. There were almost 600 children aged 10-13 years old in prison in 2018-19 with more than 65% Aboriginal children. 86% of kids are currently ‘on remand’ meaning they are locked up without being found guilty. For Indigenous kids, an average 71 days are spent in detention compared to 50 days for non-Indigenous kids. 

The argument on repeat is that Aboriginal kids are over-incarcerated because they commit more crimes. The evidence does not support this. It points more to the harshness in which Aboriginal kids are treated by the justice system and targeted by police, yet we do not want to acknowledge this reality or address it. Known as ‘over policing’ it is a global phenomenon impacting black people. 

We know race contributes significantly to higher incarceration and yet it continues to get a free pass as a driver. Whilst the statistics alone should see racism as a driver, the fact that the public has this view that black Australians are more predisposed to criminality is racism at its essence. Yet, like the lochness monster, we continue to deny its existence. 

The ‘why’ of this is historical; we are a country that likes to deny we are racist; so how do you shift such deep-seated denial. 

What should be done?

The first, essential part is to establish causal, data driven links between racism and juvenile justice outcomes in a similar way that they have in the US. 

Second, we need to focus on improving cultural competency in policing and the entire justice system but in a way that is measurable and trackable against reduction on youth crime rates. We undertook a significant project in SA focused on improving cultural competency in police using our unique psychometric tests of cultural competency. Our programs are the only ones in Australia that have demonstrated the ability to measurably improve cultural competencies.

Second, Geo mapping of youth crime data is critical to identify specific ‘hot spots’ in which to mobilise and test prevention efforts so that we can ensure programs are actually having a measurable impact. However, we need to clean up the data by having clear data collection frameworks. This requires that each state agrees to uniform data collection methods.  

Third, and critically we need to develop unique criminogenic assessments to determine early risk and firmly establish causal pathways to crime for Aboriginal kids. We currently use mainstream tools to predict this, which inflate risk on the basis of cultural difference. This limits any ability to determine causal pathways – or simply put, what predicts criminal behaviour in Indigenous people, and this compromises every ability we have to prevent youth crime. 

For example, if impulsivity is implicated via assessment, we can build in kids the skills to better manage high risk environments or events. Teaching distress tolerance skills to generationally at-risk cohorts of families as a crime prevention strategy and of course, address compromised attachment in parents and families. For those parents who cannot consistently provide love and safety for their children, this is mostly about their own compromised attachment. The need for these types of programs is beyond urgent. 

Finally, we need to relate at a human level to locking kids up at 10, so I will end with this: 

A child at 10:

• Loses 4 baby teeth a year 
• Knows the complete date
• Can name the months of the year in order
• Can read and understand a paragraph of complex sentences

• Has developed skills in addition, subtraction
• Has some  skills in multiplying and division, 

And, in Australia, can go to prison.