The specific deterrent effect of custodial penalties on juvenile reoffending
D Weatherburn, S Vignaendra and A McGrath
Australian Institute of Criminology (AIC) Reports, Technical and Background Paper 33.
[5-0130] Executive summary
Only 10.3% of the 6,488 juveniles who appeared in the NSW Children’s Court in 2007 were given a control order, yet 48% of the budget of the NSW Department of Juvenile Justice is spent keeping juvenile offenders in custody. To date, however, only two Australian studies have examined the effect of custodial sentences on juvenile reoffending.
Kraus (1974) matched each of 350 juveniles given a non-custodial sanction against a comparable offender given a custodial sanction. Juveniles were matched on year of birth, category of offence, age at time of first offence, number of previous (proven) offences, type of previous proven offence and number of previous custodial sanctions. He found lower rates of reoffending among vehicle thieves who received a custodial penalty, but higher rates of offending for those receiving custodial penalties in each other category of offence.
Cain (1996) examined reconviction rates among a sample of 52,935 juveniles convicted in the NSW Children’s Court between 1986 and 1994. He found that juveniles given custodial sentences were more likely to reoffend than juveniles given non-custodial sentences, but the study included no controls for prior criminal record or Indigenous status.
The Kraus (1974) and Cain (1996) studies both have limitations. Kraus (1974) was not able to control for a wide range of other factors potentially relevant to penalty choice and risk of reoffending (eg school performance, level of parental supervision, race, socioeconomic status). His methods of analysis were also relatively unsophisticated by modern standards. Cain (1996) used more sophisticated analytical methods and a much larger sample than Kraus (1974) but was similarly restricted in the range of controls he was able to use.
This study seeks to build on the work carried out by Kraus (1974) and Cain (1996) by using more sophisticated methods of analysis than Kraus (1974) and a much wider range of controls than Cain (1996). The question addressed in the study is whether, other things being equal, juveniles who receive a custodial penalty are less likely to reoffend than juveniles who receive a non-custodial custodial penalty.
The data for the current study were obtained from a longitudinal cohort study of juvenile offenders. Two groups of offenders (152 given a detention sentence, 243 given a non-custodial sentence) were interviewed at length about their family life, school performance, association with delinquent peers and substance abuse. They were then followed up to determine what proportion in each group was reconvicted of a further offence. Cox regression was used to model time to reconviction.
The study found no significant difference between juveniles given a custodial penalty and those given a non-custodial penalty in the likelihood of reconviction.
On an average day in 2006–07, 941 young people were held in detention across Australia (AIHW 2008: 51). The costs associated with juvenile detention are very high. For example, although only 10.3% of the 6,488 juveniles who appeared in the NSW Children’s Court in 2007 were given a control order, 48% of the budget of the NSW Department of Juvenile Justice is spent keeping juvenile offenders in custody (NSW Department of Juvenile Justice, personal communication 2009).
Given the high cost of juvenile detention, one would expect to find a large body of Australian research examining its potential benefits. To date, however, little research has been conducted on the effect of custodial sentences on juvenile recidivism. It is known that more than two-thirds of the young people who receive a control order from the NSW Children’s Court are convicted of a further offence within two years of their custodial order. It is not known what their reconviction rate would have been had they not received a custodial penalty. This study addresses this issue.
Conventional economic theories of crime (eg Becker 1968) contend that offenders allocate their time to legitimate and illegitimate activities according to the expected returns (ie costs and benefits) from each. A number of sociologists, however, have argued that imprisonment actually increases the risk of reoffending. There are three main variants of this argument. The first contends that prison is criminogenic because it is an environment which reinforces deviant values and which is conducive to the acquisition of new criminal skills (Clemmer 1940; Sykes 1958). The second variant contends that prison is criminogenic because it stigmatises offenders (Becker 1963; Braithwaite 1988; Lemert 1951). The third contends that prison increases the risk of reoffending because it reduces the offender’s capacity (on release) to obtain income by legitimate means (Fagan & Freeman 1999).
The evidence on specific deterrence
There have been four major reviews of the evidence on deterrence over the last 10 years (Doob & Webster 2003; Nagin, Cullen & Jonson forthcoming; Villettaz, Killias & Zoder 2006) but only the Villettaz, Killias and Zoder (2006) and Nagin, Cullen and Jonson (forthcoming) reviews focus on specific deterrence.
Nagin, Cullen and Jonson (forthcoming) observed that most studies on the specific deterrent effects of custodial sanctions find these sanctions have a criminogenic effect. Nonetheless, given the many shortcomings among studies they reviewed, they concluded that “[t]he jury is still out on … [custody’s] effect on re-offending” (Nagin, Cullen & Jonson forthcoming: np). Villettaz, Killias and Zoder (2006) reviewed 27 studies published between 1961 and 2002 that on the Sherman et al (1997) scale would be considered to be very reliable (ie level 4 and above). Only two obtained evidence favourable to the specific deterrent effect of imprisonment. Ten of the remainder found no effect of imprisonment, four found mixed effects of imprisonment (some statistically non-significant, some favourable to the criminogenic hypothesis) and 11 found evidence uniformly supportive of the criminogenic effect of imprisonment. Five of the studies that found either no effect or a criminogenic effect were randomised controlled trials.
Only two Australian studies have looked at the specific deterrent effect of custodial penalties on juvenile reoffending. Kraus (1974) matched each of 350 juveniles given a non-custodial sanction against a comparable offender given a custodial sanction. Juveniles were matched on year of birth, category of offence, age at time of first offence, number of previous (proven) offences, type of previous proven offence and number of previous custodial sanctions. He found lower rates of reoffending among vehicle thieves who received a custodial penalty but higher rates of offending for those receiving custodial penalties in each other category of offence. Cain (1996) examined reconviction rates among a sample of 52,935 juveniles convicted in the NSW Children’s Court between 1986 and 1994. He found that juveniles given custodial sentences were more likely to reoffend than juveniles given non-custodial sentences, but the study included no controls for prior criminal record or Indigenous status.
The present study
The Kraus (1974) and Cain (1996) studies both have limitations. Kraus (1974) made a commendable effort to match juveniles receiving custodial and non-custodial sanctions, but was not able to control for a wide range of other factors potentially relevant to penalty choice and risk of reoffending (eg school performance, level of parental supervision, race, socioeconomic status). His methods of analysis were also relatively unsophisticated by modern standards. Cain (1996) used more sophisticated analytical methods and a much larger sample than Kraus (1974) but was similarly restricted in the range of controls he was able to use.
This study seeks to build on the work carried out by Kraus (1974) and Cain (1996) by using more sophisticated methods of analysis than Kraus (1974) and a much wider range of controls than Cain (1996). The question we seek to address is whether, other things being equal, juveniles who receive a custodial penalty are less likely to reoffend than juveniles who receive a non-custodial custodial penalty. The data for the current study were obtained from a longitudinal cohort study of juvenile offenders. A sample of juvenile offenders who received custodial and non-custodial sanctions were surveyed and then followed up to determine whether, after controlling for other factors likely to influence recidivism, juvenile offenders who received control (custody) orders reoffended more quickly than juvenile offenders who received non-custodial sentences.
The survey took the form of an interview using a written questionnaire comprising 95 closed-ended questions. The questionnaire was designed largely to test certain theories about the relationship between recidivism and juvenile reactions to the court process (McGrath 2009). As such, many of the questions included in the questionnaire are not of interest here. Some of the questions included in the questionnaire, however, are of interest because of their potential relevance as controls. The variables used in the present study are discussed in more detail below.
The interviews took place between 1 December 2004 and 30 June 2007 at children’s courts and juvenile justice centres in New South Wales. Most interviews took 15 to 20 minutes to complete. Very few interview participants declined to answer questions, despite being given the option to do so. The end of the follow-up period for the study was 1 January 2008; six months after the last study participant was interviewed.
Response rate and subject attrition
The names and dates of birth of study participants were matched with the NSW Bureau of Crime Statistics and Research reoffending database (ROD) to determine prior criminal history for each study participant and instances of post-index offence reoffending, if any. In ROD, prior criminal history in the form of prior children’s court sentences was obtained from the NSW Department of Juvenile Justice Children’s Court Information System until January 2006. For further information about ROD, see Hua and Fitzgerald (2006).
Two interviewers carried out the non-custodial interviews. The response rate for one interviewer was 71%. The response rate for the second interviewer was 70%. One interviewer carried out the custodial interviews. The response rate for the custodial group was 93%. Data attrition from various sources (eg duplicate interviews, record linkage problems) resulted in the exclusion of a number of cases. The final sample comprised 395 people—152 on custodial orders at the time of the interview and 243 people on non-custodial orders at the time of the interview.
The measure of reoffending used in the present study is free time to reoffend, defined as the time between the date of the index court appearance and the date of the next proven offence (ie the next offence proved at a court appearance after the index court appearance). The term ‘free’ is used in this context because in measuring the time to reconviction, any time spent in custody between the end of the index sentence and the first proven offence or end of the follow-up period has been subtracted. Information on the dependent variable was obtained from ROD.
In order to isolate the effect of penalty type on juvenile recidivism, factors associated with the choice of penalty that might also influence risk of reconviction need to be controlled for. There is, unfortunately, no consensus on what these factors are. The selection of controls in this study was guided partly by the meta-analysis conducted by Cottle, Leigh and Heilbrun (2001) and partly by exploratory analysis of the dataset used in this study. The list of factors examined in this study for potential inclusion in the multivariate analysis appears below in Table 1. The appendix shows each variable, along with the method of construction of each factor (where relevant) and the p-value from the bivariate log-rank tests conducted for time to reoffend.
Table 1 Factors examined for potential inclusion in the multivariate analysis
|Gender||Parental status (sole parent vs other)|
|Socioeconomic status||Level of parental supervision|
|Age||Association with delinquent peers|
|Age first contact with the law||School attendance|
|Prior criminal record||Substance abuse|
|Number of prior commitments to custody||Geographic mobility|
|Principal offence||Perceived certainty of arrest|
|Number of concurrent offences||Perceived stigmatisation|
|Whether a victim of abuse||Whether received a custodial sentence|
The analysis proceeded in two stages. In the first stage, bivariate (log-rank) tests were conducted to see which of the variables listed in Table 1 had an association with time to reconviction at p<0.25. The variables found to have a significant relationship with time to reconviction were then ranked in order of p-value from smallest to largest. In the second stage, a series of Cox regression models was constructed. In the first, time to reconviction was regressed against penalty type without controlling for any other factors (unadjusted relationship). In the second, control variables were added to the model one by one, commencing with the variable with the smallest p-value from stage one. The process continued until a control variable was reached that added nothing to the explanatory power of the model (ie its coefficient was not found to be statistically significant at p<0.05). That variable was then removed and the final model consisted of the custody variable and those variables found to make a significant independent contribution to time to reconviction.
Fifty-two percent of the sample had a proven offence subsequent to their index sentence during the follow-up period. The mean time to reconviction (for those who were reconvicted) was 163 days (median=110 days), with a standard deviation of 178 days. Tables 2 and 3 contain descriptive statistics for variables found to have a statistically significant relationship with time to reconviction at p<0.25.
Table 4 shows the results of the Cox regression analysis. Two models are shown. Model A gives the unadjusted effect of penalty type on time to reconviction. Model B gives the adjusted effect of penalty type on time to reconviction, after controlling for number of prior court appearances. Surprisingly, this was the only factor among those listed in Table 1 that remained significant when included in the multivariate analysis with a variable measuring type of penalty imposed.
Table 2 Descriptive statistics for bivariate predictors of time to reconviction (continuous variables)
Table 3 Descriptive statistics for bivariate predictors of time to reconviction (discrete variables)
|Whether on custodial or non-custodial order at time of interview|
|Age at first conviction|
|16 yrs and over||146||37.0|
|Age group (at index court appearance)|
|18 + yrs||73||18.5|
|Number of prior court appearances|
|1 or more||269||68.10|
|Number of prior proven offences|
|1 or more||231||58.5|
|Number of prior supervised orders|
|1 or more||160||40.5|
|Number of prior custodial episodes|
|1 or more||60||15.2|
|Number of concurrent offences|
|2 or more||257||65.0|
|Offence type (using ASOC descriptions)|
|Whether living with single parent|
|Do parents know where young person is when young person is away from home?|
|What would parent do if caught young person taking cannabis?|
|Do parents chop and change the rules?|
|Do parents know what the young person thinks and feels?|
|How often does young person hang out with friends who have been in trouble with the police?|
|How many of young person’s friends have shoplifted or stolen?|
|One or more||299||75.9|
|How many of young person’s friends have used illegal drugs?|
|One or more||290||73.8|
|How many of young person’s friends have been in trouble with the police?|
|One or more||363||92.1|
|How often have you been/were you suspended at school?|
|How often have you wagged/did you wag at school?|
|Alcohol consumption at last sitting|
|2–5 drinks over the maximum standard recommended amount per day||108||45.8|
|6 or more drinks over the maximum standard recommended amount per day||128||54.2|
|Frequency of alcohol consumption over the maximum standard amount per day in the 12 months prior to the interview|
|At least 1 day/week||157||39.9|
|2–3 days/month or less||237||60.1|
|Young person’s perception of their likelihood of being caught by the police if they commit crime in the future|
Table 4 Effect of custody on time to reconviction (unadjusted and adjusted estimates)
|Model||Variables||ß||SE||p-value||HR||95% HR CI|
|A (unadjusted)||Custody vs non-custody||0.55||0.15||<0.01||1.74||1.29||2.33|
|B (adjusted)||One or more prior court appearance vs none||0.61||0.16||<0.01||1.85||1.35||2.52|
|Custody vs non-custody||0.29||0.16||0.08||1.33||0.97||1.84|
Note: The column labeled ß shows the regression coefficient associated with each variable in each model. The column labeled “SE” shows the standard error associated with the regression coefficient. The column labeled “p-value” shows the probability of obtaining the observed value of ß by chance. p-values less than .05 indicate that the variable in question is exerting a significant effect on time to reoffend. The column labeled “HR” shows the hazard ratio associated with the variable. A hazard ratio of more than one indicates that the variable in question increases the instantaneous risk of reoffending. A hazard ratio of less than one indicates that the variable in question reduces the instantaneous risk of reoffending. The final columns show the 95 percent confidence interval around the estimated hazard ratio.
The first point to note is that the hazard ratio associated with the custody variable in Model A is 1.74, which indicates that, prior to the introduction of controls, juvenile offenders given a custodial sentence are 74% more likely to be reconvicted at any given time than those who receive a non-custodial penalty. When prior criminal record is introduced into the model (see Model B), juveniles given a custodial sanction remain more likely to be reconvicted, but the hazard ratio associated with the custody variable falls from 1.74 to 1.33 and is no longer statistically significant.
Figures 1 and 2 illustrate this effect. The X axis in each figure shows free time since the index court appearance. The Y axis shows the proportion of offenders in each group who have not yet been reconvicted of a further offence. Figure 1 shows the unadjusted difference in time to reconviction between the custody and non-custody groups. Figure 2 shows the adjusted difference. It can be seen from Figure 1 that, prior to controlling for previous court appearances, the survival (non-reconviction) rate in the custodial group is substantially lower than the survival rate in the non-custodial group throughout the follow up period. The same pattern appears in Figure 2, but the differences between the groups are obviously much smaller.
Figure 2. Figure 1: Proportion not reconvicted by free time (days) since index court appearance (Model A) Custodial sentence?
Figure 3. Figure 2: Proportion not reconvicted by free time (days) since index court appearance (Model B) Custodial sentence?
The results of this study suggest that, other things being equal, juveniles given custodial orders are no less likely to reoffend than juveniles given non-custodial orders. These results are inconsistent with the two previous Australian studies on specific deterrence, both of which found evidence that juveniles given custodial penalties are more likely to be reconvicted. The difference in findings is probably due to the fact that the present study more effectively controlled for prior criminal record.
The finding that prison exerts no specific deterrent effect is consistent with overseas evidence on the specific deterrent effect of custodial penalties reviewed earlier in this article. It is important to consider, however, that the long-term effects of custodial penalties might be quite different to their short-term effects. Fagan and Freeman (1999), for example, using data from a national panel study of 5,332 randomly selected youths, found that incarceration produced a significant negative effect on future employment prospects, even after adjusting for the simultaneous effects of race, human capital and intelligence. There have been no studies on the effect of juvenile detention on juvenile employment prospects in Australia, but Hunter and Borland (1999) examined the effect of an arrest record on Indigenous employment prospects using data from the 1994 National Aboriginal and Torres Strait Islander Survey. Controlling for age, years completed at high school, post-school qualifications, whether the respondent had difficulty speaking English, alcohol consumption and whether the respondent was a member of the “stolen generation”, they found that an arrest record reduced Indigenous employment for males and females by 18.3 and 13.1 percentage points, respectively (Hunter & Borland 1999). On this basis, Hunter and Borland (1999) estimated that differences in arrest rates for Indigenous and non-Indigenous Australians might explain about 15% of the difference in levels of employment between these two groups.
These adverse effects of imprisonment on employment outcomes and the absence of strong evidence that custodial penalties act as a specific deterrent for juvenile offending suggest that custodial penalties ought to be used very sparingly with juvenile offenders. Fortunately, a range of non-custodial programs now exist which, in the United States at least, have been shown to be very effective in reducing juvenile recidivism. In the United States, they have been found to be considerably less expensive than a custodial sentence (Aos, Miller & Drake 2006). Western Australia and New South Wales are currently trialing an intensive supervision program (ISP) known in the United States as multi-systemic therapy. The NSW Bureau of Crime Statistics and Research is currently evaluating the ISP. It will be interesting to see whether it proves as effective here as it has been in the United States (MacKenzie 2002).
Factors examined for potential inclusion in the multivariate analysis and their relationship with time to reconviction
|Variable/factor||Measure||Relationship with time to reconviction (dependent variable) p-value|
|Gender||Sex — Q36 of questionnaire||0.0763|
|Race||ATSI status Q37 of questionnaire||0.0002|
|Socioeconomic status||SEIFA Australian decile ranking||0.7577|
|Household crowding — compute Q66 and Q67 of questionnaire||0.8639|
|Age||Interview date minus DOB and regrouped into three groups: 10–15 yrs; 16–17 yrs; 18 yrs and over||0.2421|
|Age at first contact with the law||The age at time of first proven offence (either a prior offence or a reference offence) — from ROD regrouped into three groups: 10–13 yrs; 14–15 yrs; 16 yrs and over||0.0043|
|Prior criminal record||Number prior court appearances — grouped into “none” and “one or more” — from ROD||<0.0001|
|Number prior proven offences — grouped into “none” and “one or more” — from ROD||<0.0001|
|Number prior supervision orders — grouped into “none” and “one or more” — from ROD||<0.0001|
|Number of prior commitments||Number prior custodial episodes—grouped into “none” and “one or more” — from ROD||0.0010|
|Number of concurrent offences||Number concurrent offences (including principal offence) — grouped into “one” and “two or more” — from ROD||0.0208|
|Type of crime at index court appearance||Offence type, created from four digit Australian Standard Offence Classification (ASOC) descriptions of offences in ROD and grouped into three groups: violence; property and other||0.0644|
|Victim of abuse||Q57 from questionnaire — Do your parents punish you by slapping or hitting you? — grouped into “never” and “sometimes/often/always”||0.6460|
|Single parent||Compare options 1 (both parents) with options 2 and 3 (one parent) from Q43 of questionnaire — Who are you currently living with?||0.0903|
|Parenting||Do parents congratulate and encourage? (Q58) — grouped into “never” and “sometimes/often/always”||0.2601|
|Are parent(s) aware of what their child thinks and feels? (Q61) — regrouped into “never” and “sometimes/often/always”||0.1538|
|How close does young person feel to parents? (Q63) — regrouped into “not close at all” and “quite close/close/very close”||0.7784|
|When parents make up rules do they explain them to young person? (Q52) — regrouped into “never” and “sometimes/often/always”||0.7083|
|Does young person think that the rules that their parents make up are fair? (Q56) — regrouped into “never” and “sometimes/often/always”||0.5146|
|Does young person think that their parents chop and change the rules? (Q59) — regrouped into “never” and “sometimes/often/always”||0.1423|
|Do parents follow through on their rules? (Q60) — regrouped into “never” and “sometimes/often/always”||0.3275|
|Do parents nag young person about little things? (Q62) — regrouped into “never” and “sometimes/often/always”||0.3306|
|How well does young person get on with their mother? (Q46) — regrouped into “badly” and “okay/well/very well”||0.6740|
|How well does young person get on with their father? (Q47) —regrouped into ‘badly’ and ‘okay/well/very well’||0.4438|
|Does young person feel rejected by parents? (Q51) — regrouped into “never” and “sometimes/often/always”||0.6523|
|What would parents do if they found out young person had destroyed or damaged property on purpose? (Q53) — regrouped into “nothing” and “discuss seriously/scold not punish/punish”||0.6140|
|What would parents do if they found out young person was using cannabis? (Q54) — regrouped into “nothing” and “discuss seriously/scold not punish/punish”||<0.0001|
|What would parents do if they found out young person had taken something from a store? (Q55) — regrouped into “nothing” and “discuss seriously/scold not punish/punish”||0.8782|
|How well do parents get along? (Q45)—regrouped into “badly” and “okay/well/very well”||0.9970|
|Do parents argue or fight in front of young person? (Q48) — regrouped into “not at all” and “a bit/quite a bit/a lot”||0.9846|
|Supervision||Do parents know where young person is when young person is out of house? (Q49) — regrouped into “never” and “sometimes/often/always”||<0.0001|
|Do parents know who young person is with when young person is out of house? (Q50) — regrouped into “never” and “sometimes/often/always”||0.4740|
|Delinquent peers||How many of young person’s friends had been in trouble with the police? — regrouped into “one” and “more than one”||0.0499|
|How many of young person’s friends had shoplifted or stolen? — regrouped into “one” and “more than one”||0.1228|
|How many of young person’s friends had vandalised? — regrouped into “one” and “more than one”||0.3331|
|How many of young person’s friends had drunk alcohol under age? — regrouped into “one” and “more than one”||0.9624|
|How many of young person’s friends had used illegal drugs? — regrouped into “one” and “more than one”||0.2197|
|How often did young person hang out with friends who had been in trouble with the police? — “never” and “sometimes/often/all the time”||0.0068|
|Q72/78 of questionnaire — How often do/did you wag? — grouped into “never” and “sometimes/often/always”||0.0161|
|School attendance||Q73/79 of questionnaire — How often have you been/were you suspended? — grouped into “never” and “sometimes/often/always”||0.2177|
|Substance abuse||Monthly cigarette consumption — Q89 of questionnaire||0.7188|
|Yearly cigarette consumption — Q89 of questionnaire||0.2208|
|Monthly illicit drug consumption — Q90, Q91, Q92, Q93 of questionnaire||0.2237|
|Yearly illicit drug consumption — Q90, Q91, Q92, Q93 of questionnaire||0.0262|
|Have you ever injected drugs? — Q94 of questionnaire||0.4604|
|Alcohol consumption — Q85/87 of questionnaire — regrouped into “every day” and “less frequently than every day”||<0.0001|
|Alcohol consumption frequency — Q86/88 of questionnaire — regrouped into “at least one day/week” and “2–3 days/month or less”||<0.0001|
|Change of address||Q65 of questionnaire — How many times have you moved in your life?||0.7835|
|Q44 of questionnaire — How long have you lived in that situation? (in days and excluding “whole life”)||0.7708|
|Q44 of questionnaire — How long have you lived in that situation? (“whole life”)||0.2363|
|Certainty of arrest||Q2 of questionnaire — If you commit a crime in the future, how likely is it that you will be caught by the police?||0.0037|
|Court stigmatisation||Sum of Q22, Q23, Q24 Q25, Q28 and Q29 of questionnaire||0.5130|
|Custodial sentence||Identified in advance of interviews during sentencing at court (yes/no)||0.0003|
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