Does the “last chance” sentence work? Ten years of failures and successes under a juvenile intermediate sanction in Canada

Abstract

Deferred custody and supervision order, an intermediate sanction which came into effect in 2003, had never been the subject of a scientific study. In the absence of research data, judges would give the sentence without knowing the outcome. To fill this gap, this study presents the failure rates (technical violations, revocations and new-crime violations) and success rates of all young Quebecers who completed a deferred custody and supervision order between 1 June 2003 and 31 May 2012. As with studies that examined similar sentences elsewhere in the world, success rates are relatively low. Suggestions are made to limit failures associated with this type of juvenile intermediate sanctions.

Keywords

intermediate sanctions new-crime violations revocation technical violations Young offenders Youth Criminal Justice Act

Introduction

Over the last thirty years, juvenile justice systems have been considerably transformed in Europe and North America (Junger-Tas, 2008). For those with an “Anglo-Saxon orientation” (e.g. Canada, United States of America, United Kingdom), the last decades gave rise to systems “with growing emphasis on punishment and a secondary role for rehabilitation” (Junger-Tas, 2008: 511). Those systems rely more extensively on alternative sanctions in response to juvenile delinquency (Junger-Tas, 2008). Problems of language and labeling have made it difficult for researchers (and the public) to clearly define what is an alternative (intermediate sanction) because “they have often been described with reference to what they are not, rather than what they are: common examples are ‘non-custodial sanctions’ or ‘alternatives to prison’” (Robinson, 2016: 102). They could also be described as filling “the near vacuum of purposive and enforced punishments between imprisonment used excessively and probation used even more excessively” (Morris and Tonry, 1990: 3). What they have in common is they keep the offender in the community, they impose a series of conditions that restrict the offender’s liberty and they are enforced through varying degrees of supervision. Since alternative sanctions differ considerably from one country to another, they remain difficult to grasp. Furthermore, they attract so little attention from scientists that they are “in the shadows and out of the spotlight of punishment and society scholarship in the last 20 years” (Robinson, 2016: 102). One might suggest that this situation is caused by compelling data showing that the majority of intermediate sanctions “does not work” (Latessa et al., 2014: 85), but is this the case for all of them? And if so, is it not worth explaining why they do not work? Those are the background questions that led to this study. Before proceeding to the analysis of the “last chance” sentence we must better situate this intermediate sanction within the Canadian juvenile justice system.

The Canadian Youth Criminal Justice Act (YCJA) and the deferred custody and supervision order (DCSO)

Canada is a federation made up of three territories and 10 provinces, with a population of approximately 35.1 million people, of which 10% are adolescents (Allen and Superle, 2016). Canadian criminal laws are adopted by the federal Parliament and each province and territory is responsible for enforcing them. Criminal responsibility is set at 12 years old, but juvenile delinquents (up to 18 years old) are treated separately from adult offenders under the YCJA, which came into effect in 2003. Under the previous act, the Canadian youth crime rate had declined steadily after it plateaued in the late 1990s (Dauverne, 2013). Nonetheless, Canadian juvenile delinquents had the highest incarceration rate in Western countries (Her Majesty the Queen In Right of Canada, 2013), they received harsher sentences than would adults who committed similar offences (Roberts, 2003) and incarcerations were mostly for short periods of time and for minor offences (Doob and Sprott, 2005). It thus became imperative to find alternative solutions to sanction youth delinquency, hence the implementation of the YCJA.

This new act emphasizes the principles of accountability and proportionality in sentencing, “with rehabilitation subject to” proportionality considerations (Bala and Roberts, 2008: 51). According to Article 39 of the YCJA, custodial sentences can only be imposed if:

(a) the youth has committed a violent offence; (b) has not complied with previous non-custodial sentences; (c) has committed an indictable offence for which an adult is liable to a prison sentence of more than two years; or (d) it is an exceptional case where the youth has committed an indictable offence, where the aggravating circumstances surrounding the perpetration of it are such that the imposition of a sentence not involving custody would violate the principles and objectives of the YCJA.

In summary, the courts can only order incarceration when the youth has committed a serious offence or has breached the conditions of two previous community-based sentences (Sprott, 2012).¹

While significantly reducing the possibility of resorting to the incarceration of adolescents, the YCJA also provides an alternative sanction, the DCSO, which is more restrictive than probation. DCSO can be used when all required conditions for incarceration are not met. According to Article 42 (5) of the YCJA, the court can only order that sentence if: (a) the youth has been convicted of an offence other than a serious violent offence; and (b) the order respects the prioritary principle of rehabilitation and it is proportionate to the offence committed. That sentence is often imposed to a youth who would have normally been incarcerated, but made significant progress towards his rehabilitation between the time of the arrest and sentencing. The court grants him a “last chance” (Carrington et al., 2011: 307).

A DCSO has a maximum duration of six months and includes conditions to which the youth must comply. If he fails to do so he could be remanded into custody. Certain conditions are mandatory and automatically included in the order such as: (1) keeping the peace and being of good behavior;² (2) being under the supervision of the person appointed by the youth court; or (3) not owning or possessing firearms. The court may also include optional conditions in order to promote the social reintegration of the youth. Thus, it may require that the youth: (1) makes reasonable efforts to obtain and maintain employment; (2) continues his studies or other training programs deemed appropriate; (3) “compl[ies] with any other conditions set out in the order that the court considers appropriate, including conditions for securing the young person’s good conduct and for preventing the young person from repeating the offence or committing other offences” (art. 105 (3)).

When this study began, there were no data on the number and the nature of the conditions included in DCSO, but in principle “none of the imposed conditions are designed to be punitive, but are chosen with the purpose of social reinsertion of the youth” (Carrington et al., 2011: 317). Considering, however, that punitive conditions were quickly added to the equivalent conditional sentences in the adult system (F.-Dufour et al., 2009) and that some conditions have the sole objective to “teach a lesson” to young offenders (Sprott, 2012: 326), this study aims to assess whether those “punitive practices” are being used with youth under DCSO and to assess the effectiveness of this more intensive form of community supervision in terms of new-crime violations (NCV). NCV has limitations in the assessment of sentences for youth (Richards, 2011), but has the advantage of being systematically recorded in the criminal records of the vast majority of Western countries, facilitating comparisons. However, the lack of data on NCV among youths under a DCSO in Canada is surprising (Carrington et al., 2011). For the legal authorities, this information is of great importance, because judges find themselves in a situation where “to some extent, they sentence in the dark, not knowing the possible consequences of the imposition of those sentences” (Carrington et al., 2011: 321).

Existing literature on youth intermediate sanctions

Available data on the implementation of the YCJA shows a 60% decrease in the youth incarceration rate since 2003 (Juristat, 2015). Yet, there is only a small proportion of youth who “avoided” incarceration by getting a DCSO, since partial available statistics (Carrington et al., 2011) report 3000 to 5000 cases per year in Canada (Brennan, 2012).

In Quebec, youth represent about 8% of the population, but 12.5% of all presumed authors of criminal infractions (121,661) registered by police services in 2015 (Ministère de la sécurité publique du Québec, 2016). Between 2003 and 2012, a total of 43,096 youths were found guilty of an offence (Lafortune and Royer, 2015: 97). Only 1235 DCSOs were imposed in the province of Quebec.

Conditions

DCSO aims simultaneously to protect the public, to hold the youth accountable for his/her actions and to promote his/her rehabilitation. Accordingly, this type of intermediate sanction primarily uses two strategies:

(a) a rehabilitative approach based on counseling and access to programs and services designed to reduce the risk of new-crime violations and, (b) a supervision and control approach, which involves close monitoring of the conditions and, where applicable, the strict application of the consequences of violations³ (up to incarceration of the offender) to deter the commission of illegal acts and to reinforce the idea that they will be punished severely if necessary (Miller et al., 2015: 179).

Youths under DCSO must meet with their probation officer once a week and show progress regarding their rehabilitative project (e.g. going back to school, stop using drugs, finding a job, etc.) in order to stay in the community. Imposing conditions make it possible to both rehabilitate the youth (e.g. force him into treatment) and to ensure supervision. Even so-called rehabilitative conditions are accompanied by a coercive component, to the extent that non-compliance may result in the incarceration of the youth. Conditions refer to

behaviors that are generally not criminal offences (e.g. attending school, obeying a parent, observing curfews) [but] if a youth breaches one of the conditions s/he can be charged with ‘failing to comply with an order’ thus turning non-criminal behavior into criminal behavior. (Sprott and Sutherland, 2015: 62)

The main source of concern for this intermediate sanction regards the nature and implementation of the conditions attached to it (Dubberley et al., 2015).

Until recently, it was believed that an offender able to observe those conditions posed less risk for a NCV. Researchers had already raised some anomalies in the direction of this causal hypothesis (Dubberley et al., 2015; Petersilia, 1998; Petersilia and Turner, 1993), but recognition of the “back door sentencing” phenomenon (see Travis and Visher, 2005) came to identify the importance of dwelling on the actual effects of the conditions. Recent studies have found that only a quarter of adult probationers observe all of their conditions (Campbell, 2014; Gray et al., 2001; Hamilton and Campbell, 2013; Wodahl et al., 2011) and that there is no statistically significant link between respecting the conditions and (a lack of) NCV (Campbell, 2014; Cox et al., 2008). Intermediate sanctions for youth have rarely been the subject of research since the 1990s (Lane et al., 2005: 28; Lowe et al., 2008: 140). Hence, there is only partial data available on the subject. In England, the number of prison sentences imposed following a violation increased by 199% (combined adult and youth data) between 1992 and 1998 (Bateman, 2011). Between 2000 and 2004, the proportion of youth incarcerated as a result of a violation increased from 18 to 25% (Bateman, 2011). In Canada, there was a slight increase in youth incarceration following a violation. In 2005–2006, 17% of incarcerated adolescents (open or secure custody⁴) had violated their conditions⁵ (Milligan, 2008), while in 2011–2012, youths who committed offences against the administration of justice⁶ represented 20% of incarcerated youth (Dauverne, 2013). In Quebec, youths serving their sentences in the community must observe between five (for probationers) and nine conditions (for parolees) and violations represent 20% of all offences committed by youth (Lafortune and Royer, 2015). The proportion of those offences that result in the incarceration of the youth is unknown. However, a similar study conducted in the province of Ontario shows that the number of conditions imposed with a bail is not directly linked to the probability of being incarcerated, but is a good predictor of having to return to court (Sprott and Sutherland, 2015). Therefore, little is known about the relations between conditions, the return to court and the incarceration of youth.

NCV

When youth are randomly assigned to probation without supervision, regular probation, or intensive probation, there is no significant difference between the groups in terms of NCV (Austin et al., 1990; Barton and Butts, 1990; Minor and Elrod, 1990; Fagan and Reinarman, 1991; Feinberg, 1991; Sontheimer and Goodstein, 1993; Weibush, 1993 and Zhang, 1996, all cited in Lane et al., 2005: 28–29). The few recent studies that reassessed the effects of intermediate sanctions on NCV came to the same conclusion (Giblin, 2002; Lane et al., 2005; Latessa et al., 2014) and suggest that increasing supervision and control has no effect on youth NCV.

Intermediate sanctions are not intended for probationers, but for youth who would have otherwise been incarcerated. To measure the specific effects of the type of sentence on NCV, incarceration and intensive probation should be randomly assigned (i.e. a randomized controlled trial). Considering the ethical implications that such a design would entail, no such data were found in the literature. Despite the methodological limitations pertaining to the comparison of two non-equivalent groups, we observe that youths subject to sentences similar to DCSO present generally equal or lower NCV rates than incarcerated youth. Aside from Australia, where both NCV rates are similar (57% vs 58.2%), NCV rates for alternative sanctions oscillate between 27% and 65%, whereas NCV rates for incarcerated youth range from 70% to 80% in France, Scandinavia, and Great Britain (Axelsson, 2009; Ministry of Justice, April 2015; Payne, 2007; Razafindranovona, 2007; Victoria Department of Human Services, 2001). In summary, for methodological reasons, it is impossible to conclude that intermediate sanctions reduce NCV among probationers. Conversely, those sentences seem to be an interesting alternative to incarceration, since they are usually followed by an equal or slightly lower rate of NCV. They allow the youth to maintain social bonds without posing a greater threat to society.

The current study

The literature reviewed on intermediate sanctions does not indicate the “success” rate of those sanctions, which can be defined as the proportion of youth who serve their complete sentence without technical violations (TVs), revocation (being remanded into custody), or NCV. The number and nature of conditions imposed with an order are rarely considered to qualify “failures.” Researchers mainly resort to the simple dichotomous measure of NCV instead. This study aims to give a more nuanced picture of this intermediate sanction by answering the following questions: What is the most common type of failure among youth subject to a DCSO? Which variables best predict a TV? Which variables best predict revocation? And which variables best predict NCV?

Data and methods

The analyzed data come from informational data banks (IDB) for all youth centers (YC) in Quebec, as part of Lafortune and his collaborators’ research project (see Lafortune and Royer, 2015). Data pertaining to youths subjected to DCSO were extracted and analyzed. The study was based on the populational data of youths who began serving a DCSO at the earliest on 1 June 2003 or at the latest on 31 December 2011. The analyses are based on the observation period that begins with the beginning of the DCSO until 31 May 2012 or until they reach the age of majority (18) or die, whichever comes first (Lafortune and Royer, 2015). Considering the various data sources (all YCs in the province), the database required more than 300 hours of preparatory work, carried out between October 2013 and June 2015.

Population

Between 1 June 2003 and 31 December 2011, 1116 young Quebecers were sentenced to at least one DCSO. The majority (91%) received only one DCSO, while 123 youths were subjected to two or more DCSO (maximum of 4). In 2004, only 41 DCSO were given, while the highest number of orders in a given year (211) was in 2010. On average, 163 youths (92.4% male) are sentenced to a DCSO each year. The majority reach maturity while under DCSO (60.3%).

Dependent variables: Monitoring success or failure

The success of supervision is, by default, when no failure is reported in the file during the length of the DCSO and: in the year following its termination, or until the youth reaches majority or dies, whichever comes first. In this study, three types of failure are considered. (1) Non-criminal failures are TVs reported during the supervision that did not result in any changes to the DCSO (TV). This is a dichotomous variable coded yes (TV) or no (no TV) to any of the conditions imposed. (2) Criminal failures correspond to either: (a) violations that were punished by incarceration (secure or open custody) during supervision (revocation), and (b) NCVs that led to a finding of guilt and to a criminal penalty during supervision or in the year following it⁷ (NCV). Those two variables are dichotomous and coded yes or no.

Independent variables

To qualify the failures and successes, special attention was paid to demographic variables such as gender, age at the time of the DCSO (continuous), ethno cultural background,⁸ adult with whom the teen resides (two parents, father, mother, or other), and the child welfare history (yes if present in the file/no if there was no mention of it).

Gender was taken into account since girls on probation in the province of Ontario were more likely to breach than boys (Pulis, 2014), but boys out on bail returned to court more often for failing to comply with an order (Sprott and Sutherland, 2015). Age is another important variable since younger Ontarian probationers were either more likely to breach or “Probation Officers [were] more likely to report misbehavior and police more likely to respond to younger offenders” (Pulis, 2014: 226). The ethno cultural identity was considered since “there are disproportionate numbers of visible minority youth per capita in various parts of the criminal justice system” (Latimer, 2011: 40). Those variables were also considered because they are the ones most frequently associated with failures in similar studies (Giblin, 2002; Gray et al., 2001; Hamilton and Campbell, 2013). Finally, the last two variables were added, because the duration of delinquent activity is three times longer for youth who received services under the Youth Protection Act in the province of Quebec and their delinquency rate is higher than that of unreported youth (Lafortune and Royer, 2015). The variable “adult(s) who lives with the youth” was also added due to its importance on the persistence of or desistance from criminal behavior of adolescents (van Domburgh et al., 2009).

Significant attention was also paid to socio-legal variables as they reach the highest consensus in similar studies (Lafortune and Royer, 2015): criminal record (yes/no), previous incarceration in open or secure custody (yes/no), number of sentences received before DCSO (average), and the type of offence that led to the DCSO (against a person, against property, related to firearms, related to drugs, violation). Finally, the severity index for the previous crime and for the crime that led to the DCSO was added. The crime severity index (CSI) (Statistique Canada, April 2009) gives a relative weight to each of the offences (e.g. possession of cannabis = 7, robbery = 583, and murder = 7042), which makes it possible to distinguish the seriousness of the crimes committed by youths who succeed or fail the DCSO. As a youth could have committed more than one offence (average 3.43) that led to the DCSO, the CSI sum was calculated. The CSI sum varied between 7 and 6413, with an average of 461.67 per offence, which roughly corresponds to an aggravated assault (Table 1).

Table 1.

Socio-legal characteristics of youth subject to a DCSO between 1 June 2003 and 31 December 2011

Variable	n	%	N
Age at DCSO			1235 (orders)
13	1	0.08
14	22	1.78
15	90	7.29
16	182	14.74
17	325	26.32
18	428	34.66
19 and +	187	15.13
Race/ethnicity			1116 (youth)
Quebecer	991	80.2
Other	244	18.8
Gender			1116 (youth)
Boys	1031	92.4
Girls	85	7.6
Home situation			907 (209 violators)
Two parents	226	24.9
Mother	460	50.7
Father	145	16
Other	76	8.4
Child welfare history
Yes	688	61.6
Criminal record			1116 (youth)
Yes	666	59.7
Previous incarceration (open or secure custody)			1116 (youth)
Yes	179	16
Number of previous sentences			1116 (youth)
Average	2.84	n/a
Type of offence leading to the DCSO			1116 (youth)
Against a person	341	30.6
Against property	224	20.1
Firearms related	26	2.3
Drug related	102	9.1
Violations	347	31.1
Other infractions to the criminal code	76	6.8
Severity index for crime leading to the DCSO
Average	461.67	n/a

The conditions associated with the DCSO were carefully analyzed. The optional conditions (in addition to those required by law) were dichotomized according to their purpose: the rehabilitation of the young offender (e.g. obligation to participate in an anger management program) or the control of his behavior in order to prevent NCVs (e.g. prohibition to consume alcohol or drugs). Table 2 further details the nature of the conditions imposed. Approximately two-thirds (63%) of the conditions are prohibitions, while the others (37%) act as a support to the reintegration process. In total, 2577 optional conditions were imposed in 1235 DCSO. Of those 1235, 516 did not include any optional conditions. There are, on average, 4.7 optional conditions for the remaining orders, and the maximum optional condition for an order is 26.

Table 2.

Distribution of conditions to be respected

	Conditions	N	% of conditions
Prohibitions	Contact with known offenders, people who have a criminal record or who consume drugs/alcohol	666	25.8
	Consume alcohol/drugs	558	21.7
	Contact with the victim	188	7.3
	Frequent certain public places	174	6.8
	Contact with children under 12 years old	38	1.5
Subtotal of prohibitive conditions		1624	63
Rehabilitation	Find/keep a job or attend school	677	26.3
	Obligation to evaluate/treat drug/alcohol problems	168	6.5
	Obligation of psychosocial/psychiatric treatment	77	3.0
	Obligation to take prescribed medicine	31	1.2
Subtotal of rehabilitation conditions		953	37
Total		2577	100

Analyses conducted

Descriptive analyses were conducted to determine the failure rates of youth, taking into account the moment they reach majority (and are subsequently no longer counted). Binary logistic regressions were then conducted for each type of failure (TV, revocation, and NCV) to identify variables most often associated with each form of failure. Finally, Cox regression analyses (the proportional hazards regression model) were conducted to evaluate the effects of covariates on NCVs. This statistical tool makes it possible to better assess individual “survival” characteristics (i.e. to not have an NCV failure) without assuming a particular parametric distribution of the moment of failure (Chung et al., 1991). These analyses can therefore measure the relative weight of each independent variable in predicting the commission of an NCV.

Criteria validity analysis

The Cox model used is censored because respondents over 18 years old must be removed for the survival study of NCV. Collinearity of the variables was tested and did not pose a problem. The models have no missing data. The variable selection method was based on findings from the literature. Finally, it was not necessary to transform the variables into “dummies” for analysis (no log-linearity problem).

Results

Regarding the first study question, the types of failures are spread fairly evenly: 196 youths (57%) had at least one violation during their sentence, 204 (59%) committed a serious violation that resulted in being remanded into custody for at least part of their order (revocation), and 199 youths (58%) committed a new crime within the year following their DCSO. Those numbers are high considering they were calculated for the 344 youths that it was possible to track until 18 years of age. Since the types of failures are not mutually exclusive, their sum is well above 100%. It is important to note that only 17 youths experienced all three types of failures and that 138 others managed to serve their sentences without missteps. Overall, we can say that the success rate for youths subject to a DCSO who did not attain majority before the end of the observation period was 40%. The distribution of failures is illustrated in the following diagram.

When we compare the weight of all the variables, there is only the number of prohibitive conditions (odds ratio = 1.115) that can predict youth violations. Having several prohibitive conditions to respect is the only variable associated with violations, regardless of the socio-legal (number of previous offences, type of crime committed, and age at first offence) or socio-demographic (Quebecer or other, family situation, and history) profile. As for the rehabilitative conditions, they do not cause more failures, as indicated in Table 3. The overall model was statistically significant (p < 0.01) and correctly predicted 82.4% of violations.

Table 3.

Logistic regression predicting a technical violation.

	β	Sig.	OR	(95% CI)		−2 Log likelihood	R ²	Correct. classified (%)	N
Age at first offence	−.086	.167	.918	.812	1.037
No. of rehabilitation cond.	−.079	.435	.924	.759	1.126
No. prohibitive Cond.	.109	.017	1.115	1.020	1.219
No. offences	.019	.337	1.019	.980	1.060
Previous incarceration	−.127	.574	.881	.566	1.371	1017.86	.017	82.4	1116
Person crime	−.062	.781	.940	.609	1.452
Property crime	−.052	.804	.950	.632	1.428
Firearms crime	−.266	.239	.766	.492	1.193
Drug crime	.176	.296	1.192	.857	1.659
Violation crime	.297	.165	1.346	.885	2.048
Other crime	.116	.484	1.123	.811	1.555

Bold values indicate the relation between variables are significant.

A greater number of variables predicted revocation. Youths who committed a crime against a person (odds ratio = 2.135) or who are under a DCSO for violating a previous sentence (probation, DCSO, or other) are more likely to see their DCSO revoked (odds ratio = 2.741). Youths have most often committed at least one other violation before their DCSO is revoked in favor of an open or secure custody (odds ratio = 1.858). Thus, not all failures are due to a serious violation. Youths who committed a crime against a person or have a history of repeated failures are more likely to, once again, fail to comply with their DCSO. For them, the nature and number of conditions do not matter as indicated in Table 4. The overall model was significant (p < 0.01) and correctly predicted 81.7% of revocations.

Table 4.

Logistic regression predicting revocation

	β	Sig.	OR	(95% CI)		−2 Log likelihood	R ²	Correct. classified (%)	N
Age at first offence	−.053	.408	.949	.837	1.075
No. of rehabilitation cond.	−.122	.244	1.129	.920	1.386
No. prohibitive Cond.	−0.61	.219	.941	.855	1.037
No. offences	.003	.885	1.003	.952	1.046
Previous incarceration	−.156	.467	.856	.563	1.302	989.86	.062	81.7	1116
Person crime	.759	.005	2.135	1.260	3.619
Property crime	.020	.926	1.020	.668	1.558
Firearms crime	.320	.109	1.377	.931	2.038
Drug crime	.131	.441	1.140	.818	1.588
Violation crime	1.008	.000	2.741	1.687	4.455
Other crime	.343	.038	1.410	1.020	1.948
DCSO violation	.619	.001	1.858	1.277	2.704

Bold values indicate the relation between variables are significant.

The probability of NCVs in the year following the DCSO is relatively high. In fact, since youths aged 18 and over are no longer part of the survival measure,⁹ there are only 344 youths in the cohort who did not attain majority during this observation period. As 199 of them have reoffended, the probability of not failing during the year following the DCSO is about 40%, as shown in Figure 1.

Figure 1.

Survival curve of youth subjected to DCSO over a period of one year.

Cox survival analyses (Table 5) show that youths who have been previously incarcerated (open or secure custody) are twice as likely to reoffend (odds ratio = 2.139), while those who have been revoked (odds ratio = 1.426) or who committed their first offence earlier in life (odds ratio = 1.463) present approximately 60% higher risks than other youth in the cohort. As for violations, they do not affect that risk, nor does the number of previously committed offences. The nature of the offence committed or conditions imposed also does not influence the probability of failure or success.

Table 5.

Predictors of “new-crime violation” failure

	β	Sig.	OR	−2 Log likelihood	χ²	df	Sig	N
Age at first offence	−.380	.000	1.463
No. of rehabilitation cond.	−.062	.476	.940
No. prohibitive Cond.	−.008	.847	.992
No. offences	−.012	.529	.988
Previous incarceration	.760	.000	2.139	2131.39	46.593	14	.000	1116
Person crime	−.029	.901	.971
Property crime	.098	.659	1.103
Firearms crime	−.143	.417	.866
Drug crime	−.071	.631	.931
Violation crime	1.008	.000	2.741
Other crime	.057	.705	1.059
DCSO violation	.087	.797	1.091
Revocation of DCSO	.355	.020	1.426

Bold values indicate the relation between variables are significant.

The survival curve based on those indicators shows that having been revoked increases the risk of NCV (Figure 2). In fact, the curve is more irregular for youths who had their DCSO sentence revoked.

Figure 2.

Comparison of survival curbs for youth who have been revoked.

Socio-legal variables (CSI, previous sentences) and sociodemographic variables (type of custody and ethno cultural identity) did not influence any type of failure, which is why they are not presented in the tables.

Discussion

Intermediate sanctions allow for both a rehabilitative and a punitive approach through supervision and control (Miller et al., 2015). Although some scholars maintain that intermediate sanctions do not work (Latessa et al., 2014), scattered studies show they could lead to lesser recidivism rates than incarceration (Axelsson, 2009; Ministry of Justice, April 2015; Razafindranovona, 2007). To assess whether the DCSO works, this study aims: (a) to expand the intermediate sanctions literature by examining the successes and failures associated with a never before evaluated sentence—the DCSO; (b) to do so in treating more than just NCVs; (c) to incorporate in the analyses the number and nature of conditions, which are rarely examined (Sprott and Sutherland, 2015); (d) to consider variables that best predict each type of violation; and (e) to paint a broad image of the youths subject to DCSO in order to establish comparisons with similar sentences abroad. In light of recent changes observed in almost all juvenile systems in North America and Europe (Junger-Tas, 2008), a closer look at intermediate sanctions seems necessary since “a greater number of individuals are, at any more time, subject to non-carceral penalties than to penal confinement, and in many countries the range of non-carceral responses to offending has multiplied and diversified” (Robinson, 2016: 106). These aims were addressed by analyzing all DCSO orders served in the province of Quebec between 2003 and 2012. The predictors of successes or failures were examined using logistics and Cox regressions. The findings have several implications.

First, as observed since the YCJA came into effect, many youths find themselves under a DCSO for violating a previous sentence (31.1%). The number of optional conditions imposed with the sentence (average of 4.7) puts youths under DCSO in a situation where the failures associated with violation are relatively high since this number does not include the mandatory conditions.¹⁰ Youths under DCSO must comply with close to twelve different conditions, whereas Ontarians on probation and on bail have about eight conditions to observe (Latimer, 2011; Sprott and Sutherland, 2015).

Most often, prohibitive conditions seem to be associated with TVs. It is not surprising considering conditions of abstaining from drugs and alcohol and observing a curfew are more subject to breaches among Ontarian probationers (Latimer, 2011) and that conditions of house arrest, observing a curfew and prohibition to communicate are breached by young Ontarians on bail (Sprott and Sutherland, 2015). However, TVs are not a major cause of concern because there are no statistically significant links between TVs and NCVs. This is an important contribution of this research, since previous similar studies conducted in Canada (Latimer, 2011; Pulis, 2014; Sprott and Sutherland, 2015) were unable to link breaches to reoffending.

Note, however, that the database does not contain all data concerning TVs. In tracking records, it is not uncommon to see many violations that are not reported to authorities (Lafortune and Royer, 2015). This situation is not unique to Quebec; it was also seen in similar studies conducted in Canada (Latimer, 2011) and in the United States (Hamilton and Campbell, 2013).

According to Lane et al. (2005), this phenomenon depends on how youth workers perceive their roles: those who see themselves primarily as a control agent would tend to report a greater number of violations than those who perceive themselves as a rehabilitation officer. Breaches can also be used as a “bargaining tool” (Latimer, 2011: 108) since it takes about 91 days before a violation case can be disposed in youth court. Probation officers can encourage the youth to follow their conditions until then in the hopes that the charge will be withdrawn. It can also be used as a way of teaching the youth the negative consequences of his/her behavior. Latimer (2011) also emphasizes that probation officers are prone to charge a youth with failing to comply with an order if they feel a need to protect the youth from serious harm and, in doing so, to protect themselves in case the youth is truly harmed while s/he is missing. It would be interesting to conduct further research on the decision-making process of youth workers in the treatment of violations in order to provide a more accurate picture of the actual number of violations committed by youth under DCSO.

Our findings first suggest a careful use of the prohibitive conditions imposed on youth under DCSO. Due to the high number of unreported violations, one cannot exclude the possibility that rehabilitative conditions are not associated with violations only because they are not reported. As Latimer (2011: 217–218) shows, probation officers:

do not appear to directly provide much social work themselves [and] are reluctant to formally charge youth with a new offence for this violation type. In other words, the probation officers themselves may not necessarily view treatment as a crucial component of the probation sentence anymore.

This could also be true in regard to DSCO. It might also be worth refraining the use of rehabilitative conditions if, regardless, they are not met.

Another option would be to establish a sliding scale response to violations to avoid that a minor violation be punished with revocation (Hamilton and Campbell, 2013; Sprott, 2012). It is important to find alternatives to keep non-violent offenders in the community, since youth who do not comply with their sentence do not necessarily pose the greatest threat to the public, but could rather be coming from disadvantaged backgrounds (Dubberley et al., 2015). Pilot programs established within the framework of adult probation show that revocation rates for TVs can be significantly reduced when the probation officer has a smaller caseload, enabling him to contextualize the violation (Cox et al., 2008).

Violations become problematic if they lead to (partial) revocation of the DCSO, or a “backdoor” sentencing effect (Travis and Visher, 2005). Indeed, youths whose sentences are revoked present a greater risk of committing NCVs. Except for the youths who committed a crime against a person, youths with a “multiple violations” profile present the greatest odds of having their sentence revoked. Youths who found themselves under a DCSO for violating a previous sentence or who have committed at least one other violation during the current order are more at risk of having their DCSO revoked. No matter the conditions assigned to them, they seem unable to respect their order(s). In doing so, “youth court judges believe they have no other choice but to ‘ratchet up’ the seriousness of the sanction and impose custody” (Latimer, 2011: 22). However, from our data, it is impossible to know the reasons for those multiple violations (e.g. lack of motivation, inadequate supervision, etc.). A subsequent study should focus on “multi-violating” youths who, although they are not numerous in this study (n = 19), represent about one-fifth of adolescent prisoners (Dauverne, 2013; Milligan, 2008).

Another important finding is that NCV rates remain high among youths under DCSO. If a total of 199 NCV in the year following the sentence may seem encouraging, we must consider that the majority of the studied youths reach legal majority (18 years) during or shortly after their DCSO. Hence, the majority of youths at risk of NCV “fail” their order (199 of 344). This is the official measure of reoffending, which means “it is a measure of what criminal justice officials have deemed worth formally charging and taking to court” (Sprott and Sutherland, 2015: 63). Some argue this measure is therefore subject to bias (see Sprott and Sutherland, 2015). However, recent studies show a moderate to high concordance between official and self-reported measures (Dubow et al., 2014). Our finding is comparable with failure rates of youths under probation in Quebec. Their NCV rate is 56%, which is slightly inferior than that of incarcerated youth (62%). These results are therefore comparable to those observed elsewhere, namely that intensive supervision of young offenders has little or no impact on their NCV rate (Axelsson, 2009; Ministry of Justice, April 2015; Payne, 2007; Razafindranovona, 2007). Increased supervision and controls, whether through prohibitive or rehabilitative conditions, has no effect on youth NCV (Giblin, 2002; Lane et al., 2005). Not surprisingly, youths who had been previously incarcerated or had started their “criminal career” earlier had the greatest risk of committing a NCV. Given that they are twice as likely to commit an NCV, it becomes pertinent to ask to what extent the DCSO is the best measure to facilitate their rehabilitation.

Finally, just over 40% (n = 138) of youths under DCSO do not commit any violation nor a new crime in the year following the end of their sentence. This means 40% of youths successfully manage their DCSO. From the available data, it is difficult to identify the variables that contribute to their success. It is likely that some successes are due, at least in part, to the interventions of youth workers. A recent study shows that workers trained in social work and who use at least five prosocial modeling techniques get twice as many “successful” supervisions (no NCV after two years) than those who do not use those techniques (Trotter, 2012). As we do not have information on training or approaches used by youth workers responsible for supervision of DCSO, this is another avenue of research worth investigating.

Although significant care was taken to eliminate selection, methodological or analysis biases, it is not possible to conclude that it is solely the nature of the sentence that explains our findings. The biggest limitation of our study is the absence of a control group. If it had been possible to randomly assign a youth either to DCSO or to custody (secure or open) in order to assess the effect of each sentence, the methodological gains would not compensate for the potential detrimental effects of incarceration. Moreover, random assignment to any other form of community supervision is unnecessary since it is already known that there is no observable effect. It therefore appears to us to be impossible to correct this bias. Despite this limitation, it is important to remember that to our knowledge, there are no other available studies on DCSO.

In short, our work shows that intermediate sanctions do not appear to be adapted to youth who: (a) started committing crimes earlier at an earlier age; (b) experienced at least one incarceration beforehand; and (c) showed a repeated incapacity to comply with conditions ordered by the court. Those “persistent” offenders (van Domburgh et al., 2009) might require a more intensive rehabilitation program to meet their greater criminological needs (Drake et al., 2009; Lipsey, 2009).

Conclusion

Returning to our original questions and asking ourselves whether intermediate sanctions truly “don’t work” (Latessa et al., 2014: 85), and why they do not work, we are compelled to answer that it is because they are “set up to fail” as much as are youths under DCSO. Intermediate sanctions are a substitute to incarceration. Every day, roughly $600 are allocated for each Canadian youth in custody, while $15.43 a day is budgeted for youth in community supervision (Day et al., 2016: 20), which is way less than what is needed for the accompaniment they require. Youth under DCSO are also “set up to fail” if we consider that they have to follow twelve different conditions. The “purpose of social reinsertion” (Carrington et al., 2011: 317) is not clear (e.g. prohibition to be in contact with people who consume alcohol) for many conditions. Moreover, if probation officers see themselves as “brokers for community-based treatment rather than social workers or therapists” (Latimer, 2011: 127), these results are not surprising since meta-analysis clearly showed that supervision and control have no significant impact on youth recidivism, and that only educative, familial and supportive approaches bring significant changes in youth behavior (Drake et al., 2009: 170). A growing number of studies on “assisted desistance” show the importance of a strong bond between the probation officer and the youth under supervision in order to observe long-term changes in their offending pattern, hence, their desistance (Barry, 2013). Therefore, as long as structural changes are not implemented in the way intermediate sanctions are implemented in Canada and elsewhere, studies will continue to add compelling data showing that intermediate sanctions do not work (Latessa et al., 2014: 85), while in fact, they probably do not work because they are set up to fail. That being said, judges now know “the consequences of imposing this sentence” (Carrington et al., 2011: 321) and they should expect a number of failures comparable to those of probation and incarceration. However, if we take a more positive view, it can be argued that this sanction was successful with 40% of youth and for them, truly represented a “last chance.”

Footnotes

Acknowledgments

This work was supported by Fonds de recherche du Québec- Société et culture (172 976 to I.F.-D.).

Notes

Isabelle F.-Dufour is an associate professor in psychoeducation at Laval University in Quebec city. Her research interest include intermediate sanctions, desistance from crime, youth and young adult offending, and corrections.

Marie-Pierre Villeneuve is a PhD candidate in social work at Laval University in Quebec city. Her research interests include juvenile delinquency, desistance from crime and intermediate sanctions.

Denis Lafortune is a professor of criminology at the University of Montreal. His research interests include juvenile offenders, psychosocial factors associated with psychotropic medication, adolescent sexual offenders and repercussions of father’s detention on families.

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