What is penal welfarism? Garland’s theory.

Keywords: correctionalist viewpoint, structural response to crime, due process, proportionate punishment

What is penal welfarism? Evaluate the impact it has had on juvenile justice reform in the UK from the beginning of the twentieth century to the present.

In order to evaluate the impact of penal welfarism upon juvenile justice reform, the concept will be defined with reference to Garland (2001). The contributing societal factors to the emergence of penal welfarism in juvenile justice reform will then be assessed. The practical and legal achievements of penal welfarism in the juvenile justice system will be identified. Challenges to penal welfarism will be outlined, with particular reference to alternate conceptions of youth justice and criminality. The demise of the penal welfarism approach will be assessed, with specific reference to the motivating societal factors and comparison between the Welsh, English and Scottish juvenile justice systems.

Penal welfarism as defined by Garland (2001) as a structural response to crime that is composed of two ideological standpoints. Due process and proportionate punishment, with their inherent liberal ideologies, ensure that all the rights of the juvenile offender are respected. The punishment is fitting to the crime and the circumstances of the juvenile offender. Rehabilitation and offender welfare are approached from a correctionalist viewpoint. This entails that the punishment served by the offender maintains a focus upon the rehabilitation of the offender, as does the approach of professionals who work with the offender during the punishment period. In short, penal welfarism suggests that rehabilitation will be most effective if the offender is provided with positive motivation while in the care of the penal reform system. The logic behind the practice is that if the offender is provided with the opportunity to progress in the penal institution, they will wish to continue to do so when released back into society.

The notion of penal welfarism is derived from applying the practicalities of the welfarism ideology to the penal system. The welfarism concept asserts that policy requires evaluation in terms of its consequences (Kaplow & Shavell, 2002). This assessment is most frequently made using a utilitarian approach, i.e. the usefulness of the approach in question. The logical application of this concept to the penal system dictates that policy regarding offender treatment should be assessed in terms of offender rehabilitation, i.e. the offender will not repeatedly offend upon release and as a result society will be safer. The focus is upon the usefulness of the punishment, i.e. its resulting benefit to society and improvement of personal conditions. Therefore penal welfarism maintains a focus on respecting the rights of the individual and maintaining a rehabilitative approach as this is deemed to be the most beneficial approach for both the offender and for society.

The formation and application of penal welfarism to juvenile justice reform is interrelated with the emergence of a welfare state at the turn of the 20th century (Garland, 2002). The welfare state was implemented by the Liberal government in order to meet demands to negate social insecurity while protecting free trade and a capitalist economy (Daunton, 2007). The emergence of free trade had resulted in increased unemployment and harsher social conditions for those at the lower end of the pay spectrum. However, free trade and capitalism were deemed as models that required protection. Therefore pensions, health services and other such welfare services were centralized and nationalized to ensure that these individuals would be protected in the capitalist state. Garland (2002) identifies these welfare systems as being rooted in ideologies of protection and integration, so that even the most disadvantaged members of society are protected by the welfare state. Out of this ideology was born penal welfarism for juvenile justice. As these social and economical reforms based taxation upon the basis of the individual workers rather than according to the class system (Leonard, 2003), each member of society was treated upon the basis of individual circumstance, in theory dispelling the class system. Therefore, within the penal system for juvenile justice, individualism arose where the rights and rehabilitation of each offender was considered.

The main legal and practical development in respect to penal welfarism was the separation of individuals under the age of 21 from adults in the justice system. In light of the requirement to individualize and respect the rights of each juvenile offender, juvenile courts were officially established by the Children Act 1908 (Goldson & Muncie, 2008). In addition to this, corrective Borstals were created for juveniles under the age of 21. Individuals could be sentenced to a period in such an institution for between one and three years. It was considered that these institutions were to focus on rehabilitation of the juvenile, and the training of the juvenile to be re-integrated with society upon their release (Muncie, 2006). The role of the juvenile justice system was further defined by the Children and Young Persons Act 1933 (Ikin, 1933). This Act entailed the reorganization of reform schools so that they provided education to offenders; and training so that they may find employment upon completion of their sentence. Furthermore capital punishment for any offender below the age of 18 was abolished by the Act. Issues of anonymity were also covered (Ikin, 1933). The media were and are able to report the name of an adult offender if it was deemed to serve public interests. However, the identity of juvenile offenders was protected by the law.

The penal welfarism approach to juvenile justice was criticized on both economical and ideological grounds. Economically, this system, and the welfare system in general, was criticized as being born out of fear of free trade and the emergence of corporations as the dominant financial players in society (Platt, 2002). Increased spending on the welfare system and individualist taxation were contributing factors to this. Ideologically, the concept has been challenged with reference to the societal conception of crime reformation and with reference to the individual in the system. In terms of the latter, it is the goal of reformation that is problematic. For example, Hudson (2002) outlines institutional sexism that was apparent in the penal welfarism definitions of rehabilitation. Discrepancies in the social moral code that must be adhered to by males and females highlighted unfairness in the treatment of females in this system. While rehabilitation of the male juvenile offender focused on the criminal act, female rehabilitation focused much more strongly on personal and sexual behaviour within society. In terms of societal conceptions of crime, it has been argued that viewing the juvenile as on a linear path through deviance (diversion) may be more effective in terms of negating re-offending (Austin & Krisberg, 2002). Furthermore, re-defining what is considered a criminal act, for example, the redefinition of drug use as a social as opposed to a criminal problem; may result in a more effective approach to the problem in comparison to penal welfarism (Austin & Krisberg, 2002).

After a period of a Labour government working to enhance the ideology of care for the juvenile offender in the 1960s; the penal welfarism approach began to decline when the Conservatives came to power in the 1970 General Election (Smith, 2007). It was considered that the judicial and welfare aspects had become disjointed, and the focus began to grow upon the judicial proceedings of the system. This is evident by the significant increase in the number of juveniles receiving custodial sentences in the 1970s (Rutter & Giller, 1983). The ideology increasingly narrowed onto punishment and control (Geisthorpe & Morris, 2002) throughout the 1980s, especially in England and Wales. The issue of juvenile crime was focused onto the victims, with the criminals perpetrated as depraved (Jones, 1994). Echoes of this can be seen in present day society where hooded teenagers are feared by adult society (for an example of this see MacLean, 2008). Importantly, the Criminal Justice Act 1991 brought in a separation of systems, one to deal with juveniles requiring judicial attention, and one for those in need of welfare provision (Geisthorpe & Morris, 2002). While England and Wales fully segregated these two systems, Scottish practices of juvenile justice policies maintained a higher level of communication between the two approaches. However, societal moral panics regarding serious youth crime and repeat offending has created a concern that juvenile offenders are not aware of the impact of their actions (Jones, 1994). This could possibly be related to the breakdown of community. These concerns have paved the way for a juvenile justice ideology that is based upon restorative justice as set out by the Youth Justice and Criminal Evidence Act 1999 (Geisthorpe & Morris, 2002).

Penal welfarism refers to a system that presents positive motivations for juvenile offenders to develop while in the penal system. The concept arose with the birth of the welfare state. Penal welfarism resulted in the segregation of juveniles from adults in the judicial process, the eradication of capital punishment for juveniles and anonymity of juvenile offenders from the media. As a concept, it was challenged for the welfare state’s impact upon free trade. It was also challenged by its characterisation of the juvenile offender; diversion and decriminalisation were offered as alternate ideologies. The concept demised with the segregation of welfare and judicial proceedings for adolescents. Societal factors for this include a fear of the juvenile offender. This has led to a focus on restorative justice which is implemented in juvenile reform today.

References

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Daunton, M. (2007). Wealth and Welfare: An Economic and Social History of Britain 1851-1951). Oxford: Oxford University Press.

Garland, D. (2001). The Culture of Control: Crime and Social Order in Contemporary Society. Chicago: University of Chicago Press.

Garland, D. (2002). Penal strategies in a welfare state. In J. Muncie, G., Hughes & E. McLaughlin (Eds.), Youth Justice: Critical Readings, London: Sage Publications Ltd.

Geisthorpe, L., & Morris, A. (2002). Restorative Youth Justice: the last vestiges of welfare? In J. Muncie, G., Hughes & E. McLaughlin (Eds.), Youth Justice: Critical Readings, London: Sage Publications Ltd.

Goldson, B., & Muncie, J. (2008). Youth Crime and Juvenile Justice. London: Sage Publications Ltd.

Hudson, A. (2002). ‘Troublesome girls’: Towards alternative definitions and policies. In J. Muncie, G., Hughes & E. McLaughlin (Eds.), Youth Justice: Critical Readings, London: Sage Publications Ltd.

Ikin, A.E. (1933). Children and Young Persons Act, 1933: Being the Text of the Statute together with Explanatory Notes. London: Sir I. Pitman and Sons.

Jones, M. (1994). Images and reality: Juvenile crime, youth violence and public policy. London: National Council on Crime and Delinquency.

Kaplow, L., & Shavell, S. (2002). Fairness versus Welfare.Cambridge, MA: Harvard University Press.

Leonard, M. (2003). Promoting Welfare? Government Information Policy and Social Citizenship. Bristol: Policy Press.

MacLean, D. (2008). New hoodies are a yob’s dream. The Shields Gazette, 9^th August.

Muncie, J. (2006). From Borstal to YOI. In Y. Jewkes & H. Johnston (Eds.) Prison Readings. Devon: Willan Publishing.

Platt, A. (2002). The triumph of benevolence: the origins of the juvenile system in the United States. In J. Muncie, G., Hughes & E. McLaughlin (Eds.), Youth Justice: Critical Readings, London: Sage Publications Ltd.

Rutter, M., & Giller, H. (1983). Juvenile Delinquency: Trends and Perspectives. New York: Guilford Publications.

Smith, R. (2007). Youth Justice: Ideas, Policy, Practice. Devon: Willan Publishing.