A Comparative Analysis of Youth Justice Systems in Spain and Australia

Youth justice systems worldwide grapple with the complex challenge of balancing accountability for wrongdoing with the developmental needs of young offenders. This comparative analysis delves into the distinct approaches taken by Spain and Australia in addressing youth crime, examining their models, practices, and underlying principles. By exploring the differences in costs, outcomes, and recent reforms, this report aims to provide a comprehensive understanding of the strengths and weaknesses of each system and draw key insights into effective youth justice policies.

Spanish Youth Justice System

Historical Context

The Spanish youth justice system has undergone a significant evolution throughout the 20th century. Emerging in the early 1900s, influenced by a wave of similar developments in Western Europe, the system initially adopted a tutelary approach grounded in positivism. This approach viewed young offenders as individuals in need of protection and reform, reflecting a shift away from purely punitive measures¹. However, the system's development was heavily shaped by the Franco dictatorship (1939-1975), which maintained a paternalistic and authoritarian model¹. Under this model, judges, acting as "good pater familias," had broad discretion to intervene in the lives of young people deemed to be in need of "correction," even in the absence of criminal offenses¹.

Following the enactment of the 1978 Constitution, a period of debate and reflection led to the establishment of juvenile courts within the judicial system in 1985¹. This marked a move towards a more formalized and rights-based approach to youth justice. The current legal framework is governed by Organic Law 5/2000, which came into effect in 2001. This law, while initially conceived as progressive and aligning with international standards, has been criticized for embracing a more repressive approach in response to concerns about youth crime¹. For example, the minimum age of criminal responsibility in Spain is 14, while the United States has no minimum age, exposing juveniles to harsher penalties².

Models and Practices

The Spanish youth justice system operates on the principle of individualized responses, with a strong emphasis on rehabilitation and reintegration¹. This is reflected in the characteristics of the responsibility model adopted by the system, which emphasizes accountability while prioritizing the young person's best interests and the goal of re-education³. By law, youth detention centers are run by the public sector or non-profit organizations, ensuring that resources are primarily directed towards the care and rehabilitation of young people⁴. Regional administrations have autonomy in placing children, typically within their own region, facilitating closer ties with families and communities⁴.

Sentences are individualized based on the offense and the young person's social, psychological, and educational needs⁴. The judiciary plays an active role in overseeing rehabilitation, communicating with detention centers and supervising programs⁴. Detention centers prioritize education and activity, with young people typically spending 30 hours per week in formal education and engaging in various activities such as sports, horticulture, and arts⁴.

Risk assessment tools, such as the Structured Assessment of Violence Risk in Youth (SAVRY) and the Youth Level of Service/Case Management Inventory (YLS/CMI), are used to assess the risk of recidivism and tailor interventions⁵. The YLS/CMI, in particular, has been shown to be a valid predictor of criminal recidivism in the Spanish context⁵. Studies using the YLS/CMI have identified four distinct risk profiles among young offenders: low-needs, antisocial/peers, psychosocial, and high-needs⁶. These profiles differ in terms of gender, age, type of offense, and juvenile justice measure, allowing for more targeted interventions⁶.

For minor crimes, penalties can include fines of up to €3,000 or community service orders of up to 30 days⁷. The new law on judicial costs in Spain also applies to youth justice cases, with flat fees ranging from €100 to €300 for civil proceedings and variable fees based on the amount claimed in legal proceedings⁸.

Restorative Justice

Spain has incorporated restorative justice principles into its youth justice system. Articles 19 and 51.3 of Organic Law 5/2000 provide for mediation and conciliation in both the trial phase and the implementation of measures⁹. Restorative justice programs aim to repair the harm caused by crime by involving the offender, the victim, and the community in the resolution process⁹. These programs promote accountability, empathy, and a sense of responsibility for one's actions¹⁰.

Costs

While comprehensive data on the overall costs of the Spanish youth justice system is limited, some insights can be gleaned from available sources. For instance, a study by Diagrama Foundation, a non-profit organization running youth detention centers in Spain, reported an annual cost of €70,000 per child¹⁰. This figure includes expenses related to education, rehabilitation programs, and staffing. Notably, the study highlighted that the Spanish system achieves cost savings by requiring fewer staff to maintain control due to its focus on positive relationships and rehabilitation¹⁰.

Outcomes

Evaluating the outcomes of the Spanish youth justice system requires consideration of recidivism rates and the effectiveness of rehabilitation programs. A 2019 study by Diagrama Foundation found that only 13.6% of youth released from their centers in the Murcia region reoffended within a 6-year period¹¹. This suggests that the system's emphasis on rehabilitation and reintegration may be contributing to positive outcomes. Notably, there have been no reported juvenile suicides in Diagrama's youth justice facilities in Spain¹².

Further research has examined the profile of serious reoffenders in Spain. These individuals often have a moderate level of recidivism risk that increases over time¹³. Crimes against property are the most frequent, and young people who begin their criminal trajectories with this type of crime tend to reoffend into adulthood¹³.

Recent Reforms

While Organic Law 5/2000 remains the primary legal framework, ongoing discussions and reforms address specific aspects of the youth justice system. These include:

• Raising the Minimum Age of Criminal Responsibility: While the current minimum age is 14, there have been calls to raise it to align with international standards⁴.
• Strengthening Restorative Justice Practices: Efforts are underway to expand the use of restorative justice approaches in various stages of the youth justice process, including training for justice professionals and the development of new models for conflict resolution¹⁴.
• Improving Detention Center Conditions: Recent reforms focus on enhancing the quality of education and rehabilitation programs in detention centers, with an emphasis on providing a supportive and therapeutic environment¹⁰.

Australian Youth Justice System

Historical Context

The Australian youth justice system has evolved from a welfare-oriented model in the mid-20th century to a more justice-oriented approach in recent decades¹⁵. This shift reflects a growing emphasis on accountability and punishment in response to community concerns about youth crime¹⁶. However, the system continues to incorporate elements of both models, with variations in legislation, policies, and practices across different states and territories¹⁵.

Research on the Australian youth justice system has covered a wide range of topics, including interagency cooperation, the impact of parental imprisonment, adverse childhood experiences, and the over-representation of Indigenous youth¹⁷. The Australian Institute of Criminology has funded various research projects on youth justice, exploring areas such as diversion programs, restorative justice, and the impact of detention¹⁸.

In Tasmania, there is a specific focus on addressing the over-representation of Aboriginal children and young people in the youth justice system¹⁹. This includes working in partnership with Tasmanian Aboriginal people to ensure that young people are safe and supported to live culturally-rich and thriving lives¹⁹.

Models and Practices

The Australian youth justice system operates under a dual model, incorporating elements of both welfare and justice approaches²⁰. This is reflected in the diverse range of interventions and programs available, including diversionary options, restorative justice conferences, and custodial sentences²¹.

Police play a crucial role in the youth justice system, with powers to investigate, arrest, and charge young offenders²². The National Youth Policing Model in Australia provides a framework for best practices in policing young people, emphasizing early intervention, diversion, and collaboration with other sectors²². Key principles of this model include targeting policing efforts, responding to alcohol and drug abuse, enforcing road rules, and collaborating with communities²².

Courts have the authority to determine guilt and impose sentences, which can include community-based orders, detention, or fines²³. In determining whether to impose a custodial sentence, courts consider factors such as the seriousness of the offense, the young person's history of offending, and the availability of non-custodial options²⁴. Youth justice agencies are responsible for supervising young people on legal orders, both in the community and in detention²⁵.

The Australian youth justice system recognizes the importance of addressing the developmental needs of young people²⁶. This includes providing age-appropriate services, considering their limited experience and maturity, and applying child safe standards to ensure their safety and well-being²⁶.

Restorative Justice

Restorative justice practices are increasingly used in the Australian youth justice system. Youth justice conferences, a form of restorative justice, bring together the young offender, the victim, and their families to discuss the offense and its impact²⁷. These conferences aim to repair harm, promote accountability, and develop a plan to prevent reoffending²⁷.

Restorative justice in Australia is defined as a process where all parties with a stake in a particular offense come together to resolve collectively how to deal with the aftermath of the offense and its consequences²⁸. It aims to repair the harm caused by crime, involve offenders, victims, and communities in the criminal justice process, and provide a constructive intervention for juvenile offenders²⁸.

Youth justice group conferencing programs exist in every Australian jurisdiction, including the ACT, Northern Territory, NSW, Queensland, South Australia, Tasmania, Victoria, and Western Australia²⁹. These programs can be used at various stages of the justice process, including diversion from court, sentencing support, post-sentence meetings, and pre-release planning²⁹.

Restorative justice practices can be applied in various ways, including victim-offender mediation, restorative justice conferences, talking circles, and restorative engagement³⁰. These practices are flexible and responsive to individual and community needs³⁰.

Costs

The cost of youth detention in Australia has been a subject of concern. In the 2023-24 financial year, the average daily cost per young person in detention was $2,827.47, with an annual cost exceeding $1 million³¹. This high cost raises questions about the effectiveness of detention in achieving desired outcomes. The cost of youth detention has almost doubled since 2014-15, when it was $544 million³².

In addition to detention costs, there are also expenses associated with community supervision. In 2021/22, the average cost per day for a young person to be supervised in the community in New South Wales was $293.15³³.

The estimated costs of various categories of juvenile crime in Australia, including car theft, household burglaries, vandalism, arson, and shoplifting, amount to a significant financial burden on the community³⁴.

Outcomes

Recidivism rates remain a key indicator of the effectiveness of the Australian youth justice system. Data from the Australian Institute of Health and Welfare shows that 41% of young people aged 10-17 who were under sentenced youth justice supervision between 2000-01 and 2021-22 returned to sentenced supervision before turning 18³⁵. This highlights the ongoing challenge of preventing reoffending.

Recidivism rates are higher among young people who have previously been on supervised orders and those who serve shorter sentences³⁶. Indigenous young people are also more likely to reoffend than their non-Indigenous peers³⁷.

Studies have shown that rehabilitation programs for young offenders can be effective in reducing recidivism rates³⁶. However, these programs are often underfunded and may not be accessible to all young people who need them³⁸.

Research has also examined the characteristics of alleged and proven offending among 10-13-year-olds in Australia³⁹. This age group is predominantly involved in non-violent offenses, and there are significant opportunities to improve early intervention and support programs for these children³⁹.

Recent Reforms

Recent reforms in the Australian youth justice system include:

• Raising the Age of Criminal Responsibility: Several states and territories are considering raising the age of criminal responsibility from 10 to 12 years, in line with international standards²⁵. The Australian Capital Territory has committed to raising the minimum age to 14²⁵. There are strong arguments for raising the age, including concerns about the cognitive development of young children and the potential for the justice system to exacerbate existing disadvantage⁴⁰. The Australian Medical Association (AMA) has also called for raising the age to 14 in all jurisdictions⁴¹.
• Expanding Diversion Programs: There is a growing focus on diverting young people from the formal justice system through programs that address underlying needs and promote rehabilitation⁴². Diversion programs can include warnings, youth justice conferences, community service, and support services⁴².
• Improving Detention Center Conditions: Reforms are underway to improve conditions in youth detention centers, with a focus on providing therapeutic care and addressing the over-representation of Indigenous young people⁴³. There are concerns about the punitive nature of youth justice systems in Australia and the use of practices such as solitary confinement⁴⁴.

Support Services for Young Offenders

In Australia, various organizations provide support services to young people in contact with the criminal justice system. The Shopfront Youth Legal Centre, for example, offers free legal services to homeless and disadvantaged young people aged 25 and under in Sydney⁴⁵. This service provides legal assistance, education, and social support to some of the most vulnerable young people in the community⁴⁵.

Challenges and Ethical Considerations in Research

Conducting research with young people released from youth justice detention in Australia presents unique challenges and ethical considerations⁴⁶. These include the need to ensure informed consent, protect confidentiality, and minimize any potential harm to participants⁴⁶. During a pandemic, there may be additional challenges related to access, safety, and the well-being of both researchers and participants⁴⁶.

Comparative Analysis

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Strengths and Weaknesses

Spain

Strengths:

• Focus on Rehabilitation: The emphasis on rehabilitation and reintegration is a key strength of the Spanish system. This approach aims to address the underlying causes of offending and provide young people with the support they need to lead law-abiding lives. For example, detention centers prioritize education and activity, with young people typically spending 30 hours per week in formal education⁴.
• Individualized Responses: The individualized approach to sentencing and case management ensures that interventions are tailored to the specific needs of each young person. This is reflected in the use of risk assessment tools like the SAVRY and YLS/CMI to assess individual needs and guide interventions⁵.
• Cost-Effectiveness: Evidence suggests that the Spanish system achieves cost savings through its focus on rehabilitation and positive relationships, requiring fewer staff to maintain control¹⁰.

Weaknesses:

• Repressive Tendencies: Despite the focus on rehabilitation, concerns remain about the potential for repressive practices within the system, particularly given the historical influence of the Franco dictatorship¹.
• Limited Data: More comprehensive data is needed to fully evaluate the effectiveness of the Spanish youth justice system, particularly in terms of long-term outcomes for young people.

Australia

Strengths:

• Diversity of Interventions: The dual model allows for a range of interventions and programs to be tailored to the specific needs of young offenders. This includes diversionary options, restorative justice conferences, and custodial sentences²¹.
• Restorative Justice Practices: The increasing use of restorative justice conferences provides opportunities for repairing harm and promoting accountability. These conferences bring together the young offender, the victim, and their families to discuss the offense and its impact²⁷.
• Community Involvement: The system recognizes the importance of involving families and communities in the rehabilitation process. This is reflected in the principles outlined by the Australian Youth Justice Administrators (AYJA), which emphasize community connections and the engagement of families²⁶.

Weaknesses:

• High Cost of Detention: The high cost of youth detention raises concerns about its effectiveness and sustainability. In the 2023-24 financial year, the annual cost of detaining one young person exceeded $1 million³¹.
• Recidivism Rates: Despite various interventions, recidivism rates remain a significant challenge. Data shows that 41% of young people under sentenced youth justice supervision return to supervision before turning 18³⁵.
• Over-Representation of Indigenous Youth: The over-representation of Indigenous young people in the justice system is a major concern that requires ongoing attention. This is compounded by the fact that Indigenous young people are more likely to reoffend than their non-Indigenous peers³⁷.
• Potential for Punitive Measures: The prioritization of punitive measures in youth justice can lead to detention becoming a default solution, potentially leading to harsher outcomes and increased recidivism³⁸.

Key Insights

This comparative analysis reveals several key insights into the differences and potential areas for improvement in the Spanish and Australian youth justice systems:

• Recidivism Rates: The significantly lower recidivism rates reported in the Spanish system compared to Australia raise important questions about the effectiveness of different approaches. The emphasis on rehabilitation and individualized responses in Spain may be a contributing factor to these lower rates¹¹.
• Minimum Age of Criminal Responsibility: Raising the minimum age of criminal responsibility is a key area for reform in both countries. Research suggests that children under 14 often lack the cognitive development to fully understand the consequences of their actions, and involving them in the justice system can increase the risk of reoffending⁴⁰.
• Culture and Community: Integrating cultural considerations into youth justice practices is crucial, particularly in the context of restorative justice and addressing the over-representation of Indigenous youth in Australia. Recognizing the importance of culture and community can contribute to more effective and equitable outcomes for young people¹⁹.
• Diversion Programs: Diversion programs offer a valuable alternative to formal justice system involvement. Expanding the availability and effectiveness of these programs can help to reduce recidivism and improve outcomes for young people⁴².
• Impact of Detention: Detention can have a significant negative impact on young people, including increased risk of mental health issues and reoffending. Exploring alternatives to detention, such as community-based programs and therapeutic interventions, is essential to minimize harm and promote rehabilitation⁴⁶.

Conclusion

The Spanish and Australian youth justice systems offer contrasting approaches to addressing youth crime. While Spain prioritizes rehabilitation and individualized responses, Australia adopts a dual model incorporating elements of both welfare and justice approaches. Both systems face challenges in terms of costs, outcomes, and ensuring the fair treatment of all young people. By learning from each other's strengths and weaknesses, both countries can strive to improve their youth justice systems and create a more just and effective approach to youth crime.

This comparative analysis highlights the need for ongoing research and reform in youth justice. Key areas for future research include evaluating the long-term impacts of different models, exploring the effectiveness of specific interventions, and examining the role of culture and community in promoting positive outcomes for young people. By prioritizing evidence-based practices, individualized responses, and a focus on rehabilitation, youth justice systems can better balance accountability with the developmental needs of young offenders and contribute to safer and healthier communities.

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