Abstract
In 2014, Norway implemented a reform called ‘Youth supervision’ and ‘Youth sentencing’, inspired by restorative justice principles. This article presents the main content of this reform and considers experiences until today. The discussion looks at some challenges related to the reform: Will reduced imprisonment be the result? Do we see the contours of a panopticon society through this reform? Can young offenders be ‘trapped in help’, without necessary legal protection? Is there a danger of professional invasion, where diagnostic perspectives will dominate? These questions are discussed against international experiences on restorative justice reforms.
Keywords
Introduction
Norway has often been described as a frontrunner when it comes to criminal policy reforms. Together with its neighbouring countries, Norway is still one of the exemplars of ‘Scandinavian exceptionalism’ (Pratt, 2008) with respect to its responses to crime. 1 The number of prisoners is comparatively low, sentences are low (though there are important exceptions) and prison conditions are generally good. Elements of restorative justice (RJ) principles have long been in operation in Norway. As Winterdyk et al. (2016) summarise, Norway seems to be going against the intolerance and punitive trends in many countries. Accordingly, ‘it would appear timely if not imperative for juvenile justice and legal scholars to more closely examine the Norwegian model to see what lessons can be learned . . .’ (Winterdyk et al., 2016: 117).
In this article, we wish to respond to this call and to take a closer look at the reform of youth justice of 2014 (which is based on RJ principles). The imprisonment of young offenders in Norway has continuously decreased since 2002 (2017: 22 persons 15–17 years imprisoned). 2 This does not mean that offences committed by young people are overlooked. As we shall show, they are not. Below, we outline main elements of the youth justice reform. Based on data, from a 4.5 years follow-up study of the reform (Andrews and Eide, 2019; Eide et al., 2016) and available research on restorative justice reforms in different countries, we raise some further questions about the Norwegian reform. 3
The reforms of the juvenile sentence system in Norway
The 2014 reform expressed a clear message that young people aged 15 (the minimum age of criminal liability) to 18 years should not be imprisoned except for in cases of severe crimes such as homicide and grave sexual offences (Holmboe, 2018). 4 The reform includes two different ways of responding to crime: ‘youth sentence’ (ungdomsstraff) and ‘youth supervision’ (ungdomsoppfølging). In the case of ‘youth sentence’, applied for relatively serious crimes, the court decides the time frame for the execution period. This period can range from 6 months to 2 years, and in exceptional cases, 3 years. The court also decides on a subsidiary prison sentence, if conditions are broken. The ‘youth sentence’ is an alternative to an unconditional prison sentence and to the longest ‘community sentences’ (maximum 420 hours). ‘Youth supervision’, which is a milder sanction applied for less serious crimes, may be decided by the prosecuting authority or by a court. The duration time can be no longer than 1 year. However, it is a pre-condition that the offender gives his or her consent to the use of these reactions (Holmboe, 2017, 2018). For both cases, the reactions include three elements: a ‘youth offender-victim meeting’, called a ‘youth conference’; a ‘follow-up plan’; and a ‘follow-up team’ that should both help the offender and control that conditions agreed upon in the ‘follow-up plan’, are observed. Since these reactions build on the principle of restorative justice, the National Mediation Service is responsible for carrying out the sanction. A ‘youth coordinator’ organises and coordinates the follow-up regime.
The ‘follow-up plan’ shall be tailored to each individual, and may include activities such as counselling; participating in crime-reducing programmes (e.g. aggression-replacement training); community work; living in a certain place; everyday activity, that is, attending school, work or participating in job-seeking courses; avoiding drugs; accepting drug tests; staying at home at night; avoiding contact with certain persons, and meeting at certain intervals with the follow-up team. The offender is invited to participate in the design of his or her ‘follow-up plan’ (Andrews and Eide, 2019; Eide et al., 2016).
In the ‘youth conference’, the offender meets the victim if there is a victim and the victim wants to participate. Other representatives taking part may be members of the ‘follow-up team’, for example, the police, correctional services, the school, child-protection services, health services, parents or other relevant bodies. In the case of youth sentence, the convicted person, the convicted person’s guardian and representatives of the police and the Norwegian Correctional Services have to be present. The victim, the victim’s guardian and the counsel for defence have the right to participate. In the case of ‘youth supervision’, the convicted person and his or her guardian have to participate in the meeting. If necessary, the police might also be present in this meeting.
The bottom line for the reform could be summed up as a ‘tailor-made punishment’ without imprisonment (Ministry of Justice, 2005–2006). The broad political agreement 5 behind the reform might indicate that reason has triumphed over an assumed punitive attitude among the electorate. Criminologists have shown that the public sense of justice actually is less punitive than might be supposed. The propensities towards punitiveness diminish with increasing information and proximity to the parties involved (Balvig and et al, 2015; Olaussen, 2010). As long as victims’ interests and public safety are explicitly taken care of, rehabilitation and reintegration can come more into focus. In this regard, the 2014 reform (like so many reforms before) aims for a confrontation and rehabilitation in the same package.
One important intention behind the reform was to reduce imprisonment for young people. Avoiding imprisonment is not the same as avoiding punishment. The sanctions included in the 2014 reform are explicitly defined as punishment, particularly in cases of ‘youth sentence’ and the whole process starts out as a case within the criminal justice system (focusing on the deeds). A crime is committed, guilt must be pleaded and the delinquent must accept the sanctions that are imposed. Yet, the case then leaves the criminal justice system and the offender will avoid prison (if the conditions are complied with), and in cases where the offender otherwise would have been sentenced to prison.
As pointed to earlier, the use of imprisonment for people aged 15–18 years had already been continuously declining before 2014. During 2002–2013, Lid (2015) has documented a decreasing use of prison, fines and suspended sentences, and a significant increase in the use of waiver of prosecution. Accordingly, the Prisoners’ Interest Group in Norway (KROM, 2009) has expressed their worry that the reform could lead to offences previously dealt with a suspended withdrawal of a charge now being dealt with a more invasive response. These aspects are discussed in this article in addition to other potential (unattended) side-effects of this apparently rehabilitation-oriented reform.
Research questions and data
In this article, we ask to what extent the sanctions, known as ‘youth supervision’ and ‘youth sentence’, when operationalised, will function in ‘the child’s best interest’ (Convention on the Rights of the Child, UNCRC, Article 3). Is there a risk that this reform will increasingly focus on a classical ‘respect agenda’, creating a ‘culture of confession’ advanced by well-meaning professionals? Is this a classical ‘responsibility-making reform’, 6 where young offenders will run the risk of receiving even harsher reactions (in the name of ‘help’) than was the case before the reform?
Closely linked to these queries, we ask if this is a reform that pays due attention to the question of balance of power, legal protection, consent competency; in short, to justice. These questions give resonance to the broader international debate on restorative justice and the danger of dilution of legal justice.
The analysis is based on data drawn from a 4.5-year formative evaluation of the reform, initiated be the Ministry of Justice and Public Security. Results were published in 2016 (Eide et al., 2016) and in August of 2019 (Andrews and Eide, 2019). An essential part of the evaluation was an in-depth exploration of 20 cases from five different regions. This included multiple interviews over time with each defendant, interviews with victims, youth coordinators, participants of the follow-up team, mediators and representatives from the prosecuting authority, and observation of ‘youth offender-victim meetings’ (‘youth conference’) and regular meetings between the offender and his or her follow-up team.
Statistical figures were also drawn upon in the evaluation. From 1 July 2014 through to 31 December 2018, the Mediation Service received around 1700 cases nationwide, 200 with ‘youth sentence’ and 1500 with ‘youth supervision’. In total, 86 per cent of the cases were boys (Andrews and Eide, 2019). Out of the 1700 cases, a total of 800 (66 per cent) had completed the prescribed ‘follow-up period’. Around 20 per cent had committed new crime or had failed to meet the conditions agreed upon in the ‘youth action plan’, while 10 per cent had withdrawn their consent. Statistical figures also indicate that 30 per cent of the offenders who completed the set follow-up period in 2017 were sentenced again for criminal activity within 1 year.
Experiences from the reform
From an examination of the results presented by Andrews and Eide (2019) and Eide et al. (2016), the authors of this article have identified six analytical challenges, from which the research questions referred above were extracted for further discussion. These research questions are chosen because of their broader, international relevance for the general restorative justice debate.
Immediacy of response: According to the UN Convention on the Rights of the Child (UN, 2007: 16), ‘the time between the commission of the offence and the final response to this act should be as short as possible’. In Norway, the most recent figures indicate a time span of 190 days on average from crime is committed until the Mediation Service receives the case, and then another 67 days until the follow-up period begin 7 (Andrews and Eide, 2019: 54). This time span creates problems for the offender as well as for the victim. On the part of the offender, his or her problems may escalate and additional crime is often committed. The drug-related cases represent a special challenge: offenders with an extensive drug problem need immediate help. However, scarce resources and long waiting lists for getting professional help, leaves substance-abusing offenders in abeyance. Another challenge is due to victims seeming less likely to accept a restorative meeting if the time span between such a meeting and the committed crime is too long.
Performative restoration and instrumental follow-up: Restoration is a process that takes time, for the victim as well as for the offender. A single meeting between offender and victim at the initial phase of the follow-up regime, might potentially become tokenistic rather than a genuine act of regret and reconciliation 8 . In some cases, the offender indicates that he or she does not regret what they have done, and their motivation for meeting the victim is first and foremost to avoid prison, as expressed in the following comment: ‘the “youth conference” is just something I need to attend to – to avoid prison’ (Andrews and Eide, 2019: 91).
Changing a marginalised lifestyle is not about instrumental programming with quick-fix solutions. Some young people do not even know how to live a ‘normal’ life. In order to design a road map that will work well, both the ‘youth coordinator’ and the follow-up team need to know the individual youth well, which is often not the case. Overly vague support measures can also make it difficult to say if the offender really has complied normatively with the objectives (Andrews and Eide, 2019: 93).
Who is in power? Professional invasion? It is a well-known observation that young offenders often feel alienated in situations where the adult world, often populated by well-meaning professionals, take control and leave the young person disempowered. This is especially so when there is a constant threat of punitive reactions if proposed measures are rejected. Several of the mediators participating in the ‘youth conference’ commented that there are too many professionals present, and this creates a rigid, bureaucratic framework.
Some of the mediators commented that ‘a bunch of academics’ being present at the meetings ‘hindered an open dialogue or free expressions of feelings and reflections and admissions’ (Eide et al., 2016: 51). With so many people participating, it was regarded impossible to find informal solutions. One of the mediators expressed this condition in this way: For the youth there are even more adults expressing their opinions and having a point of view about their own cases. . . .. This is wrong in the youths’ eyes. And we [the mediators] become two new faces on the moral side . . . And we have to match four, five professionals who have responsibility in this case. (Eide et al., 2016: 50)
Another mediator was worried that the families involved ‘disappear among all the professionals’ (p. 52).
In the restorative justice literature, this phenomenon is known as ‘a roomful of adults’ syndrome (Haines, 1998, quoted in Daly, 2002: 9) 9 , as also expressed by Norwegian mediators above. A forum that was supposed to be an arena for the involved parties and their acquaintances has instead turned into a forum where these people can feel alienated. Eide et al. (2016: 98) comment on the invading characteristics of the youth reactions, where also the youth’s thoughts and feelings are being interrogated. This might be a glimpse of a diagnostic society with potentially stigmatising effects where the private becomes public in a new and more sinister way.
One offender brings this perspective to the forefront when saying that I would like to live a quiet life – not being followed. I would rather have a community sentence than being supervised for a full year. . .. I have to do everything they tell me to do; otherwise I shall end up in prison. (Eide et al., 2016: 26)
Other youth report being tired of all the conversations and of having too much intervention in their lives (Andrews and Eide, 2019). One of them commented in retrospect: ‘I could certainly have been given a community sentence. The advantage with that is that I would have had to do something. But now, it is mainly meetings, even though I am a practical guy’ (Eide et al., 2016: 27). The needs expressed by this youth point to practical activity rather than a ‘therapeutic’ regime with words of advice and admonitions that have probably been uttered for many years. A community sentence, however, includes specific activities for a prescribed number of hours.
Another challenge related to the theme of ‘who is in power’ concerns the demand for the offender’s ‘qualified consent’. This question touches upon challenges concerning the information as well as the understanding of information. In addition, there is a problem related to minority groups and adequate translation of both information and conversations during meetings.
Confusion of roles; contradictory rationalities
These data disclose the classical contradiction in combining help or care and control or sanctions within the same regime. Among members of the follow-up team, there seems to be some uncertainty concerning their expected role performance (Eide et al., 2016: 76 ff). Police officers are troubled about ending up as social workers and vice versa. This blurring of professional boundaries might even be confusing for the offenders.
Risk of excessiveness
Before the reform, the trend in Norway had been that young offenders received a waiver of prosecution (Lid, 2015). In the new regime, ‘youth supervision’ is a likely outcome. If the offender has given his or her consent to this particular sanction, there is no system of appeal once the follow-up regime has begun, and the power assigned to the ‘youth coordinator’ and the follow-up team is sweeping. With the threat of imprisonment ever present, in cases where the subsidiary sentence is a prison sentence, young people might feel coerced into accepting conditions they will later on find unduly strict.
Use of drugs as a non-existing problem for offenders
Using marijuana or hashish was not regarded a serious crime among offenders participating in Andrews and Eide’s (2019) study, and some of them did not admit that they had a drug problem that needed ‘treatment’. Prosecuting lawyers expressed the same experience: ‘these young people don’t think it is harmful, they don’t recognise they have any problems, and they cannot see they harm anybody else but themselves’ (Eide et al., 2016: 81).
Some of the topics mentioned earlier are recognisable in the general debate on experiences of RJ around the world, something we shall return to (see Cunneen and Goldson, 2015; Kilkelly, 2008; Lynch, 2010; Weitekamp and Kerner, 2002).
In the next section, we shall elaborate, from the presentation earlier, two main topics connected to the implementation of the reform: (a) does the Norwegian 2014-reform represent a step forward in improving the youth justice system in Norway (i.e. in the child’s best interest)? (b) is this a reform that pays due attention to legal and justice considerations?
Discussion
In ‘the child’s best interest’?
It is worth noting that juvenile delinquents in earlier periods often have experienced harsh realities in the name of moral education and treatment (Thuen, 2002); they became ‘victims of help’. When the old ‘Work School’ (borstal school) was established in 1951, the intentions were, like today, commendable: work training, education, professional and humane treatment of the ‘pupils’, close follow-up of each inmate, close contact with prisoners’ families, a system of ‘prison’ visitors and well-organised leave arrangements. The reality turned out differently, and the Work School soon became a total institution, lacking the resources needed to make it an alternative to prison. From the early 1970s, a reversal was set in motion: in Norway (like in other Scandinavian countries), youth prison/work schools were closed as expensive failures (Allen, 1993: 108).
The recent youth justice reform is presented as a reform focusing on the UN CRC principle of ‘the child’s best interest’. This has been uncontroversial, and therefore, the widely accepted starting point for discussion. However, when this common ground is coupled with the taken-for-granted ideology of ‘early intervention’, excessiveness and net-widening effects might easily be the result (Bazemore and McLeod, 2002; Goldson, 2015). This touch upon the more general ‘governance’ debate; that is, the political rationality where people are subjected to extensive administrative control over their lives. Eide et al.’s (2016) comments on the attempts to scrutinise and analyse ‘the youth’s thoughts and feelings’ (p. 98), indicate that the debate on the panopticon society (Foucault, 1977) should be observed.
Without generalising, we may recognise a risk of the youth justice reform turning into an excessively interventionist approach to crime prevention. Referring to the lessons of three-decade-long experience in the United States with juvenile diversion, Bazemore and McLeod (2002) conclude that, despite good intentions, ‘program directors needing clients no doubt solicited referrals from schools, police, parents, community members and neighbourhood groups and institutions that might otherwise have continued to respond to conflict and youth trouble and deviance informally’ (p. 150). Seppälä and Storgaard (2014) have analysed the development of the youth justice system in the Nordic countries and concluded (before the implementation of the 2014 reform) that ‘there is reason to keep an eye open for tendencies towards new forms of “forced aid”’, where considerations about proportionality may suffer. The 2014 reform gives the ‘youth coordinator’ or the ‘youth conference’ disproportional discretional latitude (Iversen, 2013), and gives professional helpers a strong voice when guiding young people out of crime. However, with so much unaccountable power institutionalised in RJ regimes (Braithwaite, n.d.) the ‘help-control’ history referred to above might repeat itself. When one of the Secretariat respondents in the Norwegian Mediation Service expressed that ‘we are running the risk of crushing people with help’ (Eide et al., 2016: 99), one should keep historical experiences in mind.
Furthermore, it is relevant to add that criminal-justice politics is a field that is volatile to public opinion. Where moral panics arise, which often happens in relation to spectacular crimes (Green, 2008; Hamai and Ellis, 2008), punitivism and net-widening processes can arise. In the case of drug offences (where Norway has adhered to a strict regime), overreactions can easily arise. With the existing pre-occupation with ‘early intervention’ thinking (Gillies et al., 2017; Goldson, 2000), this reform might open the door for transgressing borders for both what is beneficial and what is ethically acceptable.
Another aspect of the ‘panopticon perspective’ concerns a potential conflict between RJ principles (negotiations between equals) and a professional ‘correct’ strategy, where crime becomes a problem which can be delimited to one misguided person, and where the success of a rehabilitative approach is dependent on both professional competency and resources.
Christie’s (1977) classical Conflict as Property, asked a fundamental question: who should be the owner of disputes between citizens. While in the traditional system professional lawyers used to take conflicts away from the involved parties, Christie argued that the conflicts should be brought back to ‘the owners’ ( ‘give the loot back’, as he expressed it). Instead of transforming crime into a problem that experts must address, equals should deal with crime through deliberative consultation. In this perspective, crime is not primarily a problem fixed in respect of a certain person, but a conflict between civil citizens. As underlined by Johnstone and Van Ness (2007), the mediation meetings ‘are intended to be democratic experiences in which the people most affected by a problem decide among themselves how it should be dealt with’ (p. 9). However, what seems to have happened in the 2014 reform is that experts on ‘human relations’ (rather than lawyers) have entered the scene, and this has happened already at the stage of mediation. Andrews and Eide (2019) and Eide et al. (2016) inform that the ‘youth conference’ consists of professional actors and, according to some informants, this has made it more difficult to achieve a smooth process. Who is in power and who should be in power in the ‘youth conference’ are questions that need further elaboration. Despite the purportedly consensual setting, the young offender will easily find herself or himself in a precarious position, ‘where there is little to “bargain” with’, as expressed by Lynch (2010: 176). Instead, one can experience of facilitators cajoling apologies from children (Zernova, referred in Lynch, 2010: 174).
Turning to the follow-up phase, there are of course no ‘quick-fix’ solutions to the crime problem. In the same way as there are hundreds of roads into crime, there are as many roads out of it. Recommendations saturate the literature on desistance and crime prevention (e.g. Barry, 2010; Bjørgo, 2016; Pawson, 2006; Sherman et al., 2002; Stout et al., 2017) – varying from macro-oriented measures, through meso- to micro-based measures. In an era where notions such as ‘Nip offending in the bud’ are omnipresent, it is a risk that the main attention will be directed towards individually oriented measures based on the assumption that ‘something is wrong with Peter’. Since (some) social research tells us that cognitive behavioural treatment has a positive effect on even serious offenders, 10 why not try this strategy? If Peter has been a loser at school for many years, why not give him extra lessons at school? An alternative solution to this problem, of course, might be to let Peter leave an arena he cannot compete in and let him qualify himself through practical work. In that case, the frame of interpretation is structural or organisational rather than personal or attitudinal; it is about changing frameworks as much as changing people. Davies (2015) puts this succinctly when arguing that ‘when we put our faith in “behavioural” solutions, we withdraw it from democratic ones to an equal and opposite extent’ (p. 88). Of course, a systematic follow-up regime towards young delinquents is not synonymous with an invasion of treatment-oriented professions. However, the search for measures that can prove efficiency at the individual level is omnipresent in modern society. Debates on bullying, truancy, anxiety, depression, drug abuse, eating disorders and crime have all been characterised by a search for evidence-based knowledge that can give ‘scientific’ guidance as to ‘what to do with Peter’. Although much could, should and has been done to prevent crime, and what we do, of course, should be based on ‘best knowledge’, Wilkinson and Pickett (2010) have convincingly concluded that the classical social engineering approach to social prevention, treats social problems ‘as if they were separate from one another, each needing separate services and remedies’ (p. 26). These scholars point out how remedial teachers, educational psychologists, drug-rehabilitation units, psychiatric services, health-promotion experts and social workers have been paid to deal with a broad variety of problems. Unfortunately, the success rate has been limited. In Norway, Leonardsen (2012, 2015) came to the same conclusion, after having analysed 70 years of social prevention policy, and quite recently a well-known (Norwegian) psychiatrist has expressed the same perspective by saying that ‘we have approximately as much scientific documentation for different psychiatric methods as there is for homeopathy’ (Mjaaland, 2017). The claimed success of the broad variety of rehabilitative programmes is less evident than some will argue. 11
Justice, legal protection and consent competency
Crime and reactions to crime immediately invite a discussion of justice and human rights that goes beyond the application of the mechanical principle of equal treatment for equal cases. A serious reflection on this topic should enter the lifeworld of the involved parties (offenders as well as victims) and then challenge the relevant criteria for evaluation. As Kilkelly (2008) emphasises, ‘nothing is so strongly perceived by a child as unfairness and injustice’ (p. 54). This, in turn, invites a discussion on legal protection and how to abide by the UN Convention on the Rights of the Child (UNCRC). Moore and Mitchell (2011) have warned us that the ‘CRC implementation in Canada (and by inference in many other UN-member states) has been impeded by atomized, reductionist, myopic and disciplinary approaches to interpreting the principles and provisions of the treaty’ (p. 97).
If a sanction is to work efficiently, the involved parties have to recognise and accept it as being just (McLean and Wolfe, 2017). The concept of just deserts is not only an idea celebrated within a neo-conservative context: we all harbour feelings and opinions about what is fair, and we all think that transgressions (criminal or not) deserve some kind of disapproval. The difficult question is how the concept of fairness is operationalised. A prerequisite for reconciliation and acceptance is that the involved parties really experience the process as well as the outcome as being just and balanced. The 2014 reform is at risk of failing exactly on this point.
Within the ordinary criminal justice system, equal justice under law is the basic demand. In order to avoid excessiveness, a defence counsel is appointed to take care of the offender’s best interest. This arrangement is an open recognition that crime is defined not only as a (social) ‘problem’ but also as a ‘conflict’. There is thus a recognition that a decision must be made about (possibly) contradictory interests. There are specialised role prescriptions to safeguard fair trial and due process, and to safeguard that all relevant ‘factors’ are clarified. This is about what we – inspired by Fukuyama (1995) – define as the question regarding ‘radius of justice’: which ‘factors’ are relevant to bring in when deciding what kind of sanctions could be imposed.
At the nominal level, ‘offender’ and ‘victim’ represent clear-cut and reciprocal exclusionary concepts. As discussed by Cunneen and Goldson (2015: 143), this type of ‘abstraction from social reality is deeply problematic, however’. In ‘the real world’, the distinction between offender and victim is often blurred, as eloquently expressed by Khalil Gibran (1996: 23): ‘As a single leaf turns not yellow but with the silent knowledge of the whole tree, so the wrong-doer cannot do wrong without the hidden will of you all’. Youth who commit crime may also be victims of crime (Andrews and Eide, 2019; Eide et al., 2016). Thus, one could ask is the victim guilty and the offender a victim? In the ordinary criminal justice system, there are some specific demands concerning ‘subjective guilt’ before a person can be punished, and the counsel for defence is paid to find extenuating circumstances. This implies a systematic documentation of what might have triggered the crime, which, in turn, implies a search for (excusing or aggravating) causes behind the criminal action. The principle of contradiction, fundamental to the traditional judicial system, is established to safeguard an evaluation of the circumstances around the crime committed. Accordingly, the demand for contextualisation is basic in the process, and procedural steps are taken to safeguard fairness.
The question is how will the ‘radius of justice’ (i.e. the delimitation of relevant information) be taken care of in the 2014 reform? When Christie (1977) argued in favour of what he called a ‘lay-oriented court’, he wanted to widen the criteria for decisions of relevance, to widen the radius of justice. He wanted to use the reaction system as an arena for norm-clarification, where different narratives could be presented. This process should take place not within the criminal justice system, but within the field of mediation. The 2014 reform obviously invites a broad discussion between offender and victim within a mediation context, but this discussion takes place only after the criminal case is settled and the offender has accepted whatever may come. If the offender in retrospect regrets participating in the follow-up regime, she or he has the opportunity to withdraw his or her consent, but then the subsidiary sentence turns into effect. This might indicate serving time in prison (Holmboe, 2017, 2019).
This reform has shifted the principles of punishment into the mediation services. These services which earlier invited conflicting actors to meet with relevant lay people to settle disagreements, have now turned into executors of punishment where professional expertise (police, judges, social workers) have a strong say. Moreover, the Follow-up Team consists of different, often professional, members who cooperate to keep strict control during the sentencing period. Some of the youth experience powerlessness against this tightly knit web of cooperating adults. The result can be performative adjustment from the youth, or, as Eide et al. (2016) argue, that ‘these young people withdraw into themselves in such meetings, and drop the help they are offered’ (p. 79). If that happens, they are most likely not receptive for further support because they experience the system as unjust.
Norwegian scholars have expressed their worries that the Mediation Service has in an almost unnoticeable way become an integral part of the criminal justice system (Christie, 2014; Holmboe, 2016; Kristoffersen and Iversen, 2018). As long as the presence of competent and legal counsel is wanting, basic legal rights will be curtailed. As an alternative, Holmboe (2014) has proposed the clear distinction between the reconciliation or follow-up process (a case for the Mediation Service) and the punishment process (the criminal justice system). The present reform represents a controversial mix of punishment or control and help that might put the offender in a difficult situation. As experienced elsewhere, ‘there might be grounds for concern that the child receives the worst of both worlds: he gets neither protection [due process] accorded to adults nor the solicitous care and regenerative treatment postulated for children’ (US Supreme Court, referred by Gilissen and Magits, in Eliaerts and Dumortier, 2012: 207). The CRC provides for basic procedural protections for children in conflict with the law, but this reform does not seem to abide by these principles in a proper way.
Finally, the discussion on justice also concerns the question of consent competency. In the youth reactions, the young offender has to give his or her consent to the sanctions in question before the conditions of the ‘youth action plan’ is finally decided. However, it is (ideally) not enough to have the offender’s signature of approval on a sheet of paper. There also needs to be reassurances that the culprit knows both what she or he is really agreeing to and the extent to which she or he has the freedom to choose. Holmboe (2014) comments on this challenge in the following way: At the time of the consent the offender has no overview of the consequences, and at the time of approving the ‘youth action plan’ or changing conditions, the consequences of refusal are so far-reaching that he will rarely dare it. (p. 405)
Many of the offenders indicate that at the time they give their consent they have hardly any ideas about what the reactions involve. Often their main motivation for agreeing to the reaction is to avoid prison (Andrews and Eide, 2019; Eide et al., 2016). Both the content and the extension of the sanctions can be difficult to understand and to communicate to the young offenders. This problem is further complicated in a multicultural society in terms of translation into different languages. Furthermore, in many cases, the youth involved are still taking drugs when the consent is signed, or they sign under a feeling of strong pressure or find themselves within extremely stressful circumstances (Andrews and Eide, 2019).
Concluding remarks
In this article, we have focused on two challenges related to this reform:
There is a risk of excessiveness and ‘bulimic professions’ becoming too invasive. Present-day young people probably live more supervised lives than ever before. Whatever well-meaning intentions there are behind this reform, it might have some type of boomerang effect – at least for a few offenders. Being defined as a ‘troubled kid’ that needs help from caring professionals, might by some be felt as invasive. Other countries have experienced what Goldson (2015: 27) calls a ‘bloated and obese’ youth justice system that represents ‘an inevitable consequence of a policy obsession with early intervention that has endured for a decade’. Norway is a country where the rhetoric of early intervention has established itself in political documents as well as in professional connections (Leonardsen, 2015). Even though warnings against ‘diagnostic cultures’ have been promoted, it should be underlined that the essence of the youth justice reform is about correcting individuals (attitudes, mentalities, social and education or vocational skills), even though the meso level (e.g. family members) most likely will be included in the follow-up plans. The net result of the reform will not necessarily be in (all of the) children’s best interest.
Considerations about justice, lack of legal protection and consent competency. Sanctioning people demands legal justice guarantees. Helping people does not call for the same protection mechanisms. Being ‘trapped in help’ without the necessary legal protection has some historical reverberations that need to be kept in mind.
In one sense, one could argue that this reform represents a step in an abolitionist direction. The use of prison for young offenders has been reduced. If Matthews (2005) is right when arguing that ‘there has been a one-sided exaggerated focus on punitiveness in recent times’ (p. 175), Norway surely deserves criminological attention. There are important exceptions to the thesis that neo-liberal mentalities lead to adulteration, repenalisation and the expansion of youth custody (Muncie and Goldson, 2006). Norway confirms this to be the case.
However, the Norwegian government has also continuously underlined that due regard should be paid to societal interests, and that both types of reactions are defined as punishment. Accordingly, it would be misleading to describe the reform as an initiative that is ‘soft on crime’. Even the ‘Ombudsman for Children’ remarked in connection to the reform that ‘to gain legitimacy, it must be made clear that there is no easy way out. In my view, for many youngsters it will be far more challenging to receive a youth punishment than passively serving a prison sentence’ (Lindboe, 2014: 7). 12 In many countries, the criminal policy of diversion (dismissals by prosecutors and judges) has suffered from the stigmatic slogan of being ‘soft on crime’. The youth justice reform in 2014 tries (like many earlier reforms) to avoid this opprobrium by combining punishment and support within the same type of intervention. The criminal justice reform has tried to safeguard both deeds and needs; justice and welfare; responsibility for actions committed and for the situations in which actions are committed (Barry, 2011).
The reform is still in its infancy and experiences so far are continuously being evaluated. To what extent Norway still represents a model for other countries to examine (as Winterdyk et al., 2016, expressed it) depends on more than empirical data about ‘what works’. Youth justice politics is most of all about what values are given priority and about resources that can turn rhetoric into reality: a huge challenge, which is not dealt with in this article, locally based measures or long waiting lists (Andrews and Eide, 2019). Many studies of offending and desistance suggest that young people first of all need to belong, to be integrated and to achieve recognition during adolescence (Barry, 2015). To achieve these aims, the 2014 reform represents an important first step, but historical experiences teach us to be aware of a general lesson from implementation theory, namely that ‘the road to hell is often paved with good intentions’.
Footnotes
Funding
The author(s) received no financial support for the research, authorship and/or publication of this article.
