Incarceration and Generation, Volume I: Multiple Faces of Confinement (Palgrave Studies in Prisons and Penology) 3030822648, 9783030822644

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PALGRAVE STUDIES IN PRISONS AND PENOLOGY

Incarceration and Generation, Volume I Multiple Faces of Confinement Edited by Sílvia Gomes Maria João Leote de Carvalho Vera Duarte

Palgrave Studies in Prisons and Penology

Series Editors Ben Crewe, Institute of Criminology, University of Cambridge, Cambridge, UK Yvonne Jewkes, Social & Policy Sciences, University of Bath, Bath, UK Thomas Ugelvik, Faculty of Law, University of Oslo, Oslo, Norway

This is a unique and innovative series, the first of its kind dedicated entirely to prison scholarship. At a historical point in which the prison population has reached an all-time high, the series seeks to analyse the form, nature and consequences of incarceration and related forms of punishment. Palgrave Studies in Prisons and Penology provides an important forum for burgeoning prison research across the world. Series Advisory Board: Anna Eriksson (Monash University), Andrew M. Jefferson (DIGNITY - Danish Institute Against Torture), Shadd Maruna (Rutgers University), Jonathon Simon (Berkeley Law, University of California) and Michael Welch (Rutgers University).

More information about this series at http://www.palgrave.com/gp/series/14596

Sílvia Gomes · Maria João Leote de Carvalho · Vera Duarte Editors

Incarceration and Generation, Volume I Multiple Faces of Confinement

Editors Sílvia Gomes Nottingham Trent University Nottingham, UK Vera Duarte University Institute of Maia—ISMAI Maia, Portugal

Maria João Leote de Carvalho CICS.NOVA - Interdisciplinary Centre of Social Sciences School of Social Sciences and Humanities Universidade NOVA de Lisboa (NOVA FCSH) Lisbon, Portugal

Palgrave Studies in Prisons and Penology ISBN 978-3-030-82264-4 ISBN 978-3-030-82265-1 https://doi.org/10.1007/978-3-030-82265-1

(eBook)

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover credit: Smartha/Alamy Stock Photo This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Acknowledgments

Writing a book in a time of pandemic has been an incredibly challenging process. The editors are forever indebted to all the authors for having accepted the challenge to contribute with their time and expertise to this book and for making different geographies more visible through this crossover of incarceration and generational studies. We would like to acknowledge Palgrave Macmillan for the support provided in making this book possible, particularly to Josie Taylor for the keen insights and for believing in this project since its beginning. We are grateful to Arun Kumar Anbalagan for the ongoing editorial support and technical editing. Our gratitude goes also to the reviewers of the first book proposal, whose detailed and constructive comments were essential to the final structure of the book in two volumes. A special word of thanks to Adriana Barreiros and Fran Seftel for their crucial role in the processes of language editing and proofreading. We would also like to thank the reviewers of the chapters for their efforts in providing significant insights to improve the content and quality of each text. We highly appreciate the double role performed by some of the authors by acting as referees.

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Acknowledgments

Maria João Leote de Carvalho would like to thank the FCT— Fundação para a Ciência e Tecnologia for financing her research through a postdoctoral research grant (Ref. SFRH/BPD/116119/2016), under Operational Human Capital Program (POCH) funds, co-financed by the European Social Fund (ESF) and the Ministry of Science, Technology and Higher Education (MCTES). A final and truly special word of appreciation to all the other authors who started with us on this journey and, regrettably, due to the circumstances related to the pandemic we are currently living in, were forced to abandon this project.

Praise for Incarceration and Generation, Volume I

“Long underdeveloped and overlooked, the intense generational effects and relations of incarceration take center stage in this two-volume tour de force. International, comprehensive, rigorous, and engaged, this contribution gives the study of punishment a vital framework from which to conceptualize a new form of generation studies in critical relation to an expanding penal landscape.” —Michelle Brown, University of Tennessee, USA “In the face of the pervasive use of detention as a form of management and control of a variety of populations, and given the persistent reality of penal and non-penal incarceration in the lives of many people over the years and across generations, this is a timely edited collection. Covering several jurisdictions and cultural contexts, and combining different disciplinary perspectives, the two volumes offer an illuminating angle to assess the impacts of incarceration by examining how it is lived in diverse life stages and how it becomes present in intergenerational and intragenerational relations.” —Manuela Ivone Cunha, Universidade do Minho, Portugal

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Praise for Incarceration and Generation, Volume I

“Incarceration impacts not only the individual, but also their families and society. Because incarceration rates are so high, it is vital to understand the impact of incarceration. This book presents a well-rounded perspective on the impact of incarceration on our society, from intergenerational transmission to the impact of criminalising migrants, in countries around the world, including Cameroon, Mexico, Brazil, and other countries in Latin America, Norway, Spain, Portugal, England, and Canada. It’s an excellent source for anyone interested in the impact of prisons in several ways, especially from a more international and multidisciplinary perspective.” —Sytske Besemer, expert on intergenerational transmission, currently a UX researcher for the integrity team at Facebook, UK “Incarceration and Generation is the result of a truly international and interdisciplinary cooperation, with a broad comparative scope, pluralist in methodology, and strongly motivated by the commitment of contributing to the effectiveness of human rights in situations of detention. It makes us rediscover the reality of imprisonment by inquiring its impact on that essential characteristic of humans as living beings: the fact that they grow and age. Scrutinizing the consequences of imprisonment on people at different moments through their lifespan, and on the relationship between different generations, this work enriches the scholarship about prisons, and, at the same time, takes part in a broader and indispensable reflection about the human condition nowadays.” —Pierre Guibentif, Maison des Sciences de l’Homme (MSH), Université Paris-Saclay, France “This volume presents original, rich and diverse perspectives on incarceration and its impacts on different life stages and the broader concept of generation. Combined, it is a fascinating account of a complex subject which will add significantly to the academic literature and to our wider understand of the phenomena involved.” —Ursula Kilkelly, University College Cork, School of Law, Ireland

Contents

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Incarceration and Generation: Mapping a Conceptual, Theoretical and Empirical Field of Research Sílvia Gomes, Maria João Leote de Carvalho, and Vera Duarte Generations of Penality: On Prison, Immigration Detention and Their Intersections Cristina Fernández-Bessa and José A. Brandariz Global Child and Youth Imprisonment: Histories, Human Rights Standards, Distributions, Impacts, Outcomes and Replacements Barry Goldson and Silvia Randazzo Unaccompanied Migrant Children: Reality and Perspective in Spain María Inmaculada Ruiz-Fincias

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Contents

European Justice Systems and a Developmental Approach to Young Adults’ Incarceration Kirti Zeijlmans, Take Sipma, and André M. van der Laan ‘Goldies’, ‘Birdies’ and ‘Oldies’: An Exploratory Analysis of Young Adults in Portuguese Prisons Maria João Leote de Carvalho, Cláudia Urbano, and Vera Duarte

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Adults in the Brazilian Prison System Fernando Salla, Luiz Cláudio Lourenço, and Marcos César Alvarez

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Gender, Incarceration and Reentry: An Analysis of the Barriers to Reentry of Male and Female Adult Prisoners in Portugal Sílvia Gomes and Dixie Rocker

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‘Same Content in New Bottles’ in the Immigration Detention System in Canada: Impacts on Young Adult and Adult Undocumented Migrants Ana Ballesteros-Pena

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10 The Consequences of Imprisoning Older Males in Prison in England and Wales Claire de Motte

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Index

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Notes on Contributors

Marcos César Alvarez holds a Bachelor in Social Sciences by the University of São Paulo, Brazil; a Master’s degree and Ph.D. in Sociology by University of São Paulo, Brazil; and post-doctorate at École des hautes études en sciences sociales, Paris, France. He is an Associate Professor of the Department of Sociology, University of São Paulo, Brazil, and the Coordinator of the Center for the Study of Violence (Núcleo de Estudos da Violência, NEV-USP). Author of several articles on topics such as social theory, violence, punishment, and social control. His most recent book: Bacharéis, criminologistas e juristas: saber jurídico e nova escola penal no Brasil (1889-1930), São Paulo: IBCCrim. Ana Ballesteros-Pena is a Marie Sklodowska-Curie Postdoctoral Research Fellow at the Centre for Criminology and Sociolegal Studies, University of Toronto (Canada) and the Faculty of Law, University of A Coruña (Spain). Her current research analyzes immigration detention systems in Canada and Spain, specifically focusing on the post-detention period and the alternatives to detention. Her Ph.D. (2017, University of Barcelona, Spain) examined female incarceration in the Spanish penitentiary system with a particular attention to gender equality policies

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and new prison programs. She is member of Border Criminologies international network and Associate Researcher to the research team on Rights, Policy and Justice, RG2: Citizenship, Work and Technology, CICS.NOVA, Faculty of Social Sciences and Humanities of the Universidade Nova de Lisboa (FCSH-UNOVA). She has published in Punishment and Society and Critical Criminology, among others. Her research interests are punishment and social control; gender, migration and border control; prisons and immigration detention. José A. Brandariz has a Ph.D. in law and is an Associate Professor of criminal law and criminology at the University of A Coruna, Spain. In addition, he is a former member of the executive board of the European Society of Criminology and an associate editor of the European Journal of Criminology. He has authored and edited some 20 books and 140 journal articles and book chapters. Especially in the last years, he has intensively published on managerial penality, the political economy of punishment, and migration control policies, namely those related to the deportation apparatus. His last books are The Political Economy of Punishment: An Introduction (in Spanish; Madrid, 2019), The Political Economy of Punishment: Visions, Debates, and Challenges (co-edited with Dario Melossi and Máximo Sozzo; London, 2017), and The Actuarial-Managerial Model of Penality (in Spanish; Madrid, 2016). Maria João Leote de Carvalho is a Researcher at the Interdisciplinary Centre of Social Sciences (CICS.NOVA), School of Social Sciences and Humanities, at the Universidade NOVA de Lisboa, Portugal. She holds a Ph.D. in Sociology (FCSH-UNL), and currently she is conducting Postdoctoral research on youth justice and young adult criminal law regime with the support of FCT (Ref. SFRH/BPD/116119/2016). She has been involved in research and teaching in the fields of sociology of deviance, crime and violence, and children and youth studies. She is Scientific Consultant at the Calouste Gulbenkian Foundation, Working Group on Child Poverty from the EAPN-Portugal, and member of the ChildFriendly Justice—European Network. In 2016, she was appointed as Counselor to the National Council of the National Commission for the Promotion of the Rights and Protection of Children and Young People, Portugal.

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Claire de Motte is a Lecturer in Criminology at Nottingham Trent University. Claire has over ten years’ experience conducting applied research with vulnerable populations in multiple settings, but her main expertise explores the lived experience of being older and elderly in prison. Over the last eight years, Claire has explored the quality of life and satisfaction of older males in prison, quantitatively comparing men in prison’s experience across different prison regimes in order to identify which regime is most suited to age-related needs, and qualitatively exploring the lived experience of older and elderly men in prison, interpreting their experiences via a range of analytical techniques. Vera Duarte holds a Ph.D. in Sociology by Universidade do Minho (2011) and is an Assistant Professor at University Institute of Maia (ISMAI, Portugal) and a Researcher at Interdisciplinary Centre of Social Sciences (CICS.NOVA, University of Minho, Portugal) and at the Research Unit in Criminology and Behavioral Sciences (UICCC/ISMAI, Portugal), where she was the director until 2020. She has been involved in teaching and research into the sociology of deviance and crime, juvenile, and gender delinquency. Cristina Fernández-Bessa is a Juan de la Cierva Senior Research Fellow at the Department of Public Law of the University of A Coruña (Spain) and member of the ECRIM research group. She holds a Ph.D. in Law and Political Sciences, specialization in Criminology and Sociology of Criminal Law from the University of Barcelona. Previously she was Assistant Professor of Criminology at the Open University of Catalonia, the University of Barcelona, and the Pompeu Fabra University, Catalonia, Spain. Her research is mainly focused on migration control, policing, prison and human rights, gender, and social movements. Her last book is Immigration Detention. An Introduction from A Penal Perspective (in Spanish; Madrid, 2021). Barry Goldson, Ph.D. FAcSS is Professor Emeritus at the Department of Sociology, Social Policy, and Criminology, School of Law and Social Justice, University of Liverpool, UK. He is also Visiting Professorial Research Fellow at the Faculty of Law, University of New South Wales, Sydney, Australia, Adjunct Professor of Criminology at the School of

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Justice, QUT, Brisbane, Australia and Honorary Professor at Liverpool Hope University, UK. He has researched and published extensively— particularly in the juvenile/youth justice fields—and his most recent books include Juvenile Justice in Europe: Past, Present and Future (2019, Routledge) and Youth Justice and Penality in Comparative Context (2021, Routledge). His current book is entitled Re-Imagining Juvenile Justice and it is scheduled to publish in 2022 by Routledge. He is widely networked across the international research community and he also has long-standing relations with a range of national and international governmental and non-governmental human rights and progressive penal reform organizations. He was a member of the Advisory Board that supported the United Nations Global Study on Children Deprived of Liberty. Sílvia Gomes is currently a Lecturer in Criminology at Nottingham Trent University (UK) and a Researcher at the Interdisciplinary Center of Social Sciences (CICS.NOVA, Portugal). She holds a Ph.D. in Sociology (2013). She is co-coordinating the Thematic Section on Sociology of Law and Justice of the Portuguese Sociological Association. Author of several books, book chapters, and papers in scientific journals, her main areas of research are focused on crime and media, prison studies, crime and ethnicity, social inequalities, intersectional approaches, and more recently on reentry, recidivism, and criminal desistance. Her recently co-edited books are Female Crime and Delinquency in Portugal: In and Out of the Criminal Justice System (2018, Palgrave) and Prisons, State and Violence (2019, Springer). Luiz Cláudio Lourenço holds a Bachelor in Social Sciences from the Federal University of São Carlos—UFSCAR (1997), Brazil; a Master in Social Sciences from the Federal University of São Carlos—UFSCAR (2000), Brazil; and a Doctor in Political Science from the Research Institute of Rio de Janeiro—IUPERJ (2007), Brazil. In 2009 he was admitted as adjunct professor in the Department of Sociology at the Federal University of Bahia—UFBA. In 2015 he completed his post-doctorate in Sociology at the University of São Paulo—USP, Brazil.

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Silvia Randazzo is an Independent Consultant and Ph.D. Researcher at KU Leuven University, Institute of Criminology, Belgium, with research about: “Clearing the Air About Diversion with Children in Conflict with the Law: A Systematic Scrutiny of Diversion in Action in Youth Justice Systems in Europe.” She has extensive experience as a researcher and project manager in the field of child justice. She worked at the European level, but also locally in Kenya and Italy, on youth justice, violence against children in the justice and care systems, on school bullying, and on migrant children. She contributed to the chapter on children in the administration of justice of the UN Global Study on Children Deprived of Liberty, as part of the core research and drafting team. In the last years working on European projects and being based in Brussels, she extended her wide network in the field, among practitioners, academics, and policymakers. Her publications include human rights violations in Kenyan detention facilities, on the living conditions of unaccompanied migrant children in the Italian reception system, and more recently on restorative justice with children in Europe. She is a member of the Editorial Committee of the European Forum for Restorative Justice. Dixie Rocker is a Doctoral Candidate at the College of Criminology and Criminal Justice at Florida State University and expects to complete her degree in the fall of 2021. Her research agenda is primarily centered around the gender differences in the attitudes, experiences, and responses to crime and the criminal justice system. Specifically, her research has examined sexual assault, gender identity, deterrence theory, and prisoner reentry. Her research involves both quantitative and qualitative methodologies and has been published in academic sources such as Deviant Behavior and the Encyclopedia of Research Methods and Statistical Techniques in Criminology and Criminal Justice. Her most recent research examines gender differences in the risk and protective factors of parenting during the reentry process. María Inmaculada Ruiz-Fincias has a Diploma in Social Education from the University of Salamanca (2006), Degree in Psychology from the Autonomous University of Madrid (2014), Spain, Degree in Criminology from the University of Valencia (2016), Master’s Degree in Criminology and Juvenile Crime at the University of Castilla-La-Mancha,

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Spain. Social educator specialized in working with adolescents in the juvenile justice system and children in the protection system. Intervention in the mental health system, with adolescents and adults. Family intervention with family units at risk of social exclusion. Psychologist specializing in prevention and intervention in addictions; in intervention in family violence; intervention with Unaccompanied Migrant Children (UMC) and Unaccompanied Migrant Youth (UMC); and clinical intervention (trauma, grief ) with immigrants at risk of exclusion, within a program belonging to Madrid’s public health system. Teacher from 2014 to 2015 at Camilo José Cela University in the Criminology and Security Department. Teacher from 2018 to 2019 at the International University of Valencia in Master’s Degrees related to Psychology and Teacher from 2020 to 2021 at Comillas University of Madrid in the Social Work and Sociology Department. In 2018 I developed a research and collaboration grant in Concepción (Chile), with the National Service of Minors and the Andrés Bello University, addressing the analysis of its system of protection and reform of minors. Fernando Salla is a Sociologist. He holds a Master’s degree and PhD in Sociology from the Faculty of Philosophy, Literature, and Human Sciences, University of São Paulo (USP). He is a Senior Researcher at the Center for the Study of Violence (Núcleo de Estudos da Violência, NEV), University of São Paulo (USP), and a Collaborative professor at the Penitentiary Administration School of São Paulo, on the subject History of the Prisons in São Paulo. His most relevant book: SALLA, Fernando (1999) As Prisões em São Paulo, 1822–1940. São Paulo, Annablume/FAPESP (English: The Prisons in São Paulo). Take Sipma, Ph.D. works as postdoctoral researcher at the Radboud University Nijmegen, Netherlands, where he obtained his Ph.D. in 2020. His main research interest is political extremism and radicalization. He formerly worked as scientific researcher at the Research and Documentation Centre (WODC), where he was involved in projects on adolescent criminal law and cybercrime victimization. Cláudia Urbano holds Ph.D. in Sociology by NOVA University of Lisbon. Graduated in Data Analysis for Social Sciences. Researcher and

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Project Coordinator at the Interdisciplinary Centre of Social Sciences (CICS.NOVA) at the NOVA School of Social Sciences and Humanities (NOVA FCSH), Portugal. Invited Assistant Professor in methodologies and public politics at NOVA FCSH. Her research interests are: public policies; social inequalities; education and higher education; risk behaviors; addictive behaviors and consumption of drugs, alcohol, and other substances; child protection system. Currently, she is Information Manager at the National Programs Department of SOS Children’s Villages Portugal. André M. van der Laan, Ph.D. is Senior Researcher at the Research and Documentation Centre (WODC) of the Ministry of Justice and Security in the Netherlands. He studied developmental psychology at the University of Leiden and finished his Ph.D. at the University of Groningen on the topic of “Defiance and Delinquency” in 2004. His research interests are in developmental and life-course criminology and crime policy evaluations and include juvenile and young adult crime, high frequency offenders, cybercrime, evaluation of sanctions, and (juvenile) crime trends. Kirti Zeijlmans, Ph.D. works as a Researcher at the Research and Documentation Centre (WODC) of the Dutch Ministry of Justice and Security. She finished her Ph.D. in 2019 at the Centre for Special Needs Education and Youth Care of the University of Groningen. Her key areas of interest are adolescent criminal law, cybercrime, and youth care.

List of Figures

Chapter 4 Fig. 1

Fig. 2

Arrivals of UMC in makeshift small boats and similar fragile vessels (Source Author’s own work based on data from the FGE Annual Reports [2015, 2020]) The MENA Registry (Notes * Includes accompanied minors in at-risk situations. ** In light of the massive arrivals of immigrants to the Canary Islands, humanitarian attention has been given priority over the registration of minors, and there are about 300 minors in the province of Las Palmas and another 300 in Tenerife (Source Author’s own work using data furnished by UCER – CEFRONT)

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Chapter 6 Fig. 1 Fig. 2 Fig. 3 Fig. 4 Fig. 5

Descriptive measures of the variables used Discrimination measures Projection of the crime profiles of young adult prisoners Descriptive measures by clusters Discrimination measures and contributions

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Chapter 9 Fig. 1

Fig. 2

People detained in Canada by year and type of facility (2012–2020) (Source Prepared by the author based on data published by CBSA. https://www.cbsa-asfc.gc.ca/securitysecurite/detent/stat-2019-2020-eng.html) People detained by age (2016–December 2020) (Source Prepared by the author based on data supplied by CBSA)

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List of Tables

Chapter 2 Table 1

Table 2 Table 3 Table 4

National criminal justice systems and immigration enforcement systems dealing with significant contingents of noncitizens Jurisdictions experiencing a remarkable decline in incarceration rates from the late 2000s to the late 2010s Comparing the scale of the prison system and the immigration enforcement system Immigration enforcement changes from the late 2000s to the late 2010s

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Chapter 3 Table 1 Table 2 Table 3

Africa—‘Juvenile’ imprisonment as a rate per 100,000 in 2017 Americas—‘Juvenile’ imprisonment as a rate per 100,000 in 2017 Asia—‘Juvenile’ imprisonment as a rate per 100,000 in 2017

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Table 4

Oceania—‘Juvenile’ imprisonment as a rate per 100,000 in 2017 Europe—‘Juvenile’ imprisonment as a rate per 100,000 in 2018

Table 5

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Chapter 4 Table 1

Historical development of number of minors between 14–17 years of age

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The developmental approaches towards young adults in European justice systems (filled in means that the approach is used in that country)

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Chapter 7 Table 1

Incarcerated population and rate per 100,000 inhabitants Brazil, 1988–2019

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Chapter 8 Table 1

Prisoners’ characterization

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Chapter 9 Table 1

People detained by gender (2016–December 2020)

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1 Incarceration and Generation: Mapping a Conceptual, Theoretical and Empirical Field of Research Sílvia Gomes, Maria João Leote de Carvalho, and Vera Duarte

Incarceration and Generation: Multiple Faces of Confinement is the first volume of a two-book series around the intersections between incarceration and generations. This volume explores the experiences, dynamics, S. Gomes (B) Nottingham Trent University, Nottingham, UK e-mail: [email protected] S. Gomes · M. J. L. de Carvalho · V. Duarte CICS.NOVA - Interdisciplinary Centre of Social Sciences, School of Social Sciences and Humanities, Universidade NOVA de Lisboa (NOVA FCSH), Lisbon, Portugal e-mail: [email protected] V. Duarte e-mail: [email protected] V. Duarte University Institute of Maia—ISMAI, Maia, Portugal © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 S. Gomes et al. (eds.), Incarceration and Generation, Volume I, Palgrave Studies in Prisons and Penology, https://doi.org/10.1007/978-3-030-82265-1_1

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cultures, interventions and impacts of incarceration in various generations: childhood, youth and emerging adulthood, adulthood and older age. Based on the different forms of incarceration of these various generations, the second volume, entitled Incarceration and Generation: Challenging Generational Relations, presents and debates key intergenerational and intragenerational relations issues within incarceration. Our main goal with these two volumes is to present different perspectives on the complex nature of the multiple intersections between incarceration and generation through a variety of chapters that cover different geographic, judicial and administrative contexts of incarceration, as well as different areas of research in law and social sciences. This makes it possible to identify, analyse and debate, from multiple angles, the social construction of the term ‘generation’ within the framework of different justice policies and prison practices. Without exhausting all the possible connections between incarceration and generation, the different perspectives brought to these volumes help substantiate the importance of acknowledging generation as a key concept in incarceration studies, encouraging academics to reflect on the relevance of considering this domain as a distinct field of research. Arguing that the scientific field needs to expand in order to face the renewed complexity of social issues in relation to the measures involving deprivation of liberty worldwide (Bosworth, 2017; Fassin, 2011, 2017), this book adopts a broader definition of incarceration. It includes all forms of the so-called ‘traditional’ coercive institutional confinement, such as prisons, jails and juvenile detention centres, and other forms of administrative and institutional imprisonment related to the control of emergent global migratory flows, such as immigration detention centres or reception centres. By doing so, incarceration is problematised and conceptualised by different areas of research, responding to and improving interdisciplinary challenges. In crime and criminal justice studies, an individual’s age is one of the most common predictors of differences in attitudes and behaviours (Farrington, 1986; Loeber & Farrington, 2014; Ulmer & Steffensmeier, 2014). Generations are traditionally one way of grouping age cohorts. However, if we consider many other studies across different social sciences, the concept of generation is usually employed in a polysemous manner: as a principle of kinship

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descent, as a cohort, as a life stage or as a historical period (Ketzer, 1983). The focus on generations has recently re-emerged in youth studies and age studies (Ferreira, 2020; France & Roberts, 2015; Woodman, 2017; Woodman & Wyn, 2014), but we consider that the term should be discussed in a broader manner, encompassing not only the variety of possible generations but also the various meanings of the concept. When we broaden the concept of incarceration and consider the diverse set of meanings that the concept of generation may have, the intersections between incarceration and generation(s) are immense. For instance, it becomes possible to discuss parent–child relationships and how they affect or are affected by incarceration experiences (see Poehlmann-Tynan & Pritzl, 2019; Robertson, 2007; Seymour, 1998); understand the dynamics of different generations in incarceration (Kuanliang et al., 2008); explore experiences of incarcerated people in different life stages, intergenerationally (Bhuller et al., 2018; Halsey & VelPalumbo, 2020) or intragenerationally; explore the transitions between different forms of incarceration and generations of incarceration for the same individual (e.g. the transition from juvenile to adult custodial institutions—Mallart, 2019); unveil the impact of public policies in a given historical period regarding the severity and extent of the confinement for entire generations (Moore & Elkavich, 2008; Western, 2006); and many other aspects. Within the scope of this first volume, the focus is on the experiences, dynamics, cultures, interventions and impacts of incarceration (in its different forms) in specific generations—childhood, youth and emerging adulthood, adulthood and older age. This chapter starts by presenting an overview of the expansion of the penal landscape and of the incarcerated generations. It does so by exploring the contextual and theoretical background that sustains the broadening of the concept of incarceration. Then, it discusses the conceptual delimitation of the key concepts in this volume—incarceration and generation. Finally, it shows how the intersections between these two concepts are being discussed theoretically and empirically, providing a brief state-of-the-art review of the existing literature, mainly in the social, criminal and legal studies, particularly with a focus on generations. This framework provides structure and guidance

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to the setting of the entire volume’s rationale, which is presented in the last section of the chapter.

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The Expansion of the Penal Landscape and the Incarcerated Generations

Incarcerating people is possibly as old as society itself (Sykes, 1958). However, it was only in the seventeenth century that incarceration emerged as one of the main instruments of the State in dealing with criminals. In the nineteenth century, it became the central modality of retributive justice (Fassin, 2017; Sykes, 1958). Presently, prison is considered so ‘natural’ and has such an outstanding presence that it is extremely difficult to imagine a society without it (Currie, 1998; Davis, 2003). In fact, deprivation of liberty1 appears in contemporary society as the most evident and most universal form of punishment (Fassin, 2017; Romão, 2015), a guarantee of a level of human security and social order in the strategic response to crime (Drake, 2012). As Angela Davis says: The prison has become a key ingredient of our common sense. It is there, all around us. We do not question whether it should exist. It has become so much a part of our lives that it requires a great feat of the imagination to envision life beyond the prison. (Davis, 2003, p. 19)

The Global Prison Trends2020 report shows that the prison population is increasing, being 20% higher today than it was in 2002; imprisonment is overused, and sentences are getting longer (PRI, 2020). In 2019, more than 10.5 million people, including men and women, adults and children, were placed in prisons worldwide (PRI, 2019). Just one year later, over 11 million people were incarcerated globally, the highest number reached so far (PRI, 2020). Despite imprisonment being overused, funding for penitentiary systems generally remains low. Low 1 Deprivation of liberty, according to Rule 11 (b) of the Havana Rules means “any form of detention or imprisonment or the placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority”.

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funding leads to poor detention conditions and a lack of access to basic needs, such as healthcare services (PRI, 2020). Additionally, high levels of prison overcrowding contribute to the increasing number of violent incidents in prisons globally, as do institutional impunity and a lack of transparency (PRI, 2020). In the same report, it is underlined that mass incarceration is growing in the world despite the decrease in crime (PRI, 2020). The penal expansion results not from an increase in crime, but from a punitive crime control policy (Fernández-Bessa & Brandariz, 2021, volume I; Garland, 2001, 2013; Goldson, 2019, 2013; Laird, 2021; Liefaard, 2017; Wacquant, 2000, 2009). Prison occupies a central place in crime control policy, even if studies strongly suggest that there is no link between the number of people in prison and the levels of crime. Due to its centrality, it has become a normal social destination for an increasing number of citizens (Crewe, 2009; Garland, 2013), especially for certain citizens who occupy the bottom of the social hierarchy (see Wacquant, 1999; Western, 2006). This is corroborated by recent data showing that the overwhelming majority of people in prison continue to come from disadvantaged backgrounds (PRI, 2020), which clearly illustrates the process of a selective justice. Additionally, people belonging to marginalised groups, such as foreign nationals, minorities and indigenous peoples, are disproportionately arrested and imprisoned and face greater risks of human rights violations at the hands of the authorities (PRI, 2020). Studies have been showing that immigrants and foreign nationals are overrepresented in the penal system (Gomes, 2014; Marshall, 1997; Tonry, 1994; Wacquant, 1999). Another way of ‘controlling’ foreign populations is through immigration detention centres. Immigration detention is ‘defined as the practice of confining individuals defined as non-citizens in order to achieve immigration-related aims’ (Bosworth and Turnbull, 2015b, p. 92), such as identification or removal (Turnbull, 2017). The governmentality of immigration has become a crucial issue in contemporary societies (Castles et al., 2014; Fassin, 2011), and widespread detention is used as a way of deterring asylum seekers and other migrants from entering receiving countries. For instance, during the summer of 2018, the US government detained thousands of migrant

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parents and their separated children pursuant to its zero-tolerance policy at the United States–Mexico border (Ryo, 2019). There are no known statistics for the total number of immigrants detained per year worldwide (ACNUR, 2019). However, Freedom For Immigrants,2 which mostly focuses on the United States, and the Global Detention Project3 (GDP) are currently making an effort to provide systematic data. As of March 2021, the GDP exposed that the United States was operating the world’s largest immigration detention system, having usually more than 50,000 non-citizens in detention every single day, even though detainee numbers fell considerably after the COVID19 pandemic. Freedom for Immigrants’ data, collected from thousands of intakes with people in immigration detention, show that most people in immigrant detention are between 26 and 35 years old. In 2016, the UK’s immigration detention system, one of the largest and most heavily scrutinised in Europe, counted 30,000 people detained, including asylum seekers, pregnant women and children. Scholars have been drawing attention to the many ways in which the lines between criminal enforcement and immigration control have blurred both in law (Bosworth & Kaufman, 2011; Bosworth & Turnbull, 2015a; Kalhan, 2010; Stumpf, 2006; Turnbull, 2017) and in media and public discourse (Jack et al., 2021—volume II; Kalhan, 2010). The powers unleashed by the integration of immigration and criminal law are painful and often feel deliberately punitive (Bosworth, 2017; Turnbull & Hasselberg, 2017). As Turnbull (2017, p. 8) explains, Detainees experience similar ‘mortification’ processes as inmates of other ‘total institutions’ (Goffman, 1961) and go through comparable ‘pains of imprisonment’ (Sykes, 1958)—what Bosworth (2014, p. 131) calls pains of detention—associated with the denial of liberty. They feel the punitiveness associated with forced separation from their families, friends, and

2

For detailed information about this project, follow the link https://www.fredomforimmigrants. org/. 3 For detailed information about this non-profit organization, which promotes the human rights of people who have been detained for reasons related to their non-citizen status, follow the link https://www.globaldetentionproject.org/.

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communities, poor or limited access to healthcare and legal representation, and degrading or demeaning treatment (Chacón, 2014). Although immigration detention centers serve administrative purposes, ‘they are regulated by a very disciplinary regime reminiscent of ordinary prisons’ (Gündo˘gdu, 2015, pp. 117–118).

Additionally, although the conditions of confinement vary from country to country (see Turnbull, 2017), like prisoners, many immigration detainees live in crowded conditions, often with poor hygiene and inadequate ventilation (Cheliotis, 2013), making them especially vulnerable to several diseases (Meyer et al., 2020). The use of detention for immigration purposes is a carceral trend that continues to increase across the world (Fassin, 2011) and is a phenomenon no longer limited to socalled Western countries or the Global North (Turnbull, 2017). This scenario led Fernández-Bessa and Brandariz (2021, volume I) to affirm that prisons together with immigration detention facilities are currently the most relevant sites of punitive confinement. Therefore, when considering incarcerated individuals, it is not possible to exclude immigration detention centres from the current penal landscape. Prisons and detention centres are crucial elements of the contemporary penal landscape, and the nature of the penal power of these institutions must be addressed (Bosworth & Turnbull, 2015). This new global culture of control (Garland, 2001, 2013) and power, based on a drift towards security that affects everyone in terms of the governance of States and international relations (Beck, 2007; Fassin, 2011), is increasingly present in the lives of children, young people, adults and elderly people. This means that individuals from all generations are being incarcerated and experiencing incarceration in different jurisdictions and carceral institutions around the world. Although all generations present specific needs and particularities, it is a fact that in a world on the move, with intense demographic changes and an increasing extension of life expectancy, the incarceration of the younger and the older generations brings new perspectives and challenges. Although Article 37 of the United Nations Convention on the Rights of the Child (UNCRC) (1989) states that a child should only be arrested and detained as a last resort, a growing body of research from different

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scientific areas has been confirming that children and young people are not detained as a measure of last resort (Goldson et al., 2021; Kilkelly, 2016; Laird, 2021; Liefaard, 2008, 2017; Nowak, 2019; PRI, 2020). The United Nations Global Study on Children Deprived of Liberty, coordinated by the Independent Expert, Prof. Manfred Nowak, estimated that at least 1,410,000 children were detained in the administration of justice, 410,000 children remained in pre-trial detention and prisons, 330,000 were held in immigration detention centres, 35,000 were deprived of liberty in the context of armed conflicts, 19,000 were living in prison with their caregivers and 1,500 were detained on grounds of national security (Nowak, 2019, p. 661). The report further estimated that, overall, roughly 1.5 million children are deprived of liberty per year on the basis of a judicial or administrative decision. But these are the official figures provided by the State entities; they do not cover all areas, institutions and situations. The number of children de facto deprived of liberty in public and private institutions could exceed 7 million per year (Nowak, 2019, pp. 659–660). Another relevant issue is the fact that prisons have 50% more women today than in 2000 (PRI, 2020). If this incarceration trend continues to grow in the upcoming decades, it will eventually affect the numbers of incarcerated children (see Linonge-Fontebo, 2021, volume II). On the other side of the generational spectrum, the data show that the number of older people in prison continues to rise in many countries (PRI, 2020). Globally, the actual numbers can be very diverse: In Japan, the number of prisoners aged 60 or older rose from seven per cent of the total prison population in 2008 to 19 per cent in 2016, and in Singapore, the number of prisoners over 60 doubled between 2012 and 2016. In the UK, the proportion of prisoners aged over 50 increased from seven per cent in 2002 to 16 per cent in March 2018 (PRI, 2020)

There is growing recognition of the fact that keeping older people in prison is not always necessary, appropriate or cost-effective (due to healthcare costs and the need for specialised equipment and staff— see De Motte, 2021, volume I). The management of older people in prison, including those with chronic or terminal illnesses (Chaiklin,

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1998; Faiver, 1998), also puts a major strain on prison staff, who are often not trained to deal with their complex needs or with the death of older people in prison (PRI, 2020).

2

Conceptually Delimiting Incarceration and Generation(s)

Considering the renewed complexity of social issues related to the measures involving deprivation of liberty worldwide, this book adopts a broader definition of incarceration. For this purpose, incarceration includes all forms of the so-called ‘traditional’ coercive institutional confinement, such as prisons, jails and juvenile detention centres, and other forms of administrative and institutional imprisonment related to the control of emergent migratory flows, such as immigration detention centres or reception centres. By doing so, incarceration is problematised and conceptualised by different areas of research, responding to interdisciplinary challenges. The discussion about incarceration can no longer be limited to prisons, as that would mean neglecting other important forms of deprivation of liberty. Zero-tolerance guidelines in the definition of public justice and security policies (Moore, 2013; Ryo, 2019) emerge and shape the everyday relationship between incarcerated individuals across generations and the State. As different generations can be held in confinement, we may observe different tendencies, dynamics and outcomes in these differential incarceration experiences. However, what constitutes a generation might be conceptually different depending on the field of study, the legal framework and/or the geographical context under consideration. Even within certain fields of study, the term generation can be polysemic. The topic of generations and generational differences is discussed in a wide variety of contexts (Devriese, 1989). Which leads us to ask: is there a polysemy of the word or rather a plurality of scientific constructions? Sociology pays less attention to the horizontal divisions (cohort, generation) within a society than to its vertical divisions (social class, gender) (Gilleard, 2004). In crime and criminal justice studies, an individual’s age is one of the most common predictors of differences in attitudes

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and behaviours. Generations are traditionally one way of grouping age cohorts. However, if we look at many other fields of study across social sciences, the concept of generation is usually employed in a polysemous manner. Kertzer (1983) proposed four categories to aggregate the concept: 1) generation as a principle of kinship descent—mostly used by anthropologists to encompass a set of kinship relations in a particular community, while demographers use it as a measure to identify the length of a generation; 2) generation as a cohort—used mostly in the work of the demographers to identify the succession of people moving through the age strata; 3) generation as a life stage—as used in relation to the opposition between younger and older generations, especially when trying to show a generational conflict; and 4) generation as a historical period—used more commonly in history, but also in life course criminology, in the sense that a generation can cover a wide range of cohorts, often linked to specific events (Kertzer, 1983, p. 126). Despite this extraordinary effort in compiling the different ways in which the concept of generation appears in social sciences literature, we can still identify relevant issues within these categories. For example, how does one determine the boundaries of ‘a common date of birth’ and when exactly does one cohort begin and another end? (Gilleard, 2004). Furthermore, although generation as a cohort allows researchers to employ an approach known as cohort analysis to track a group of people over the course of their lives, not all individuals will be exposed in the same way to the same events. If we cut an age group vertically in terms of gender, social class, race or ethnicity, the same events will necessarily be experienced differently (Galland, 2011; Stoker, 2014). Besides, there are fundamental differences across generations, not just regarding their racial and ethnic composition, but also how quickly they reach certain milestones, such as marriage, or their political and ideological orientation (Pew Research Center, 2015). Therefore, the way Mannheim (1952) defined generation is paramount to the understanding of the multiple layers that can still be associated to a specific generation. According to Mannheim (1952), generations are formed through two important elements. The first one is a common location in historical time, such that there are shared events and experiences. The birth year alone is insufficient to place a person in a

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specific generation; rather, the person needs to experience and participate in the defining events of that generation. The second one is an awareness of that historical location. Historical events will not affect people from different cultural backgrounds and social classes in the same way. Therefore, more than one generation unit might exist for a group located in a particular historical time, sharing certain events and experiences. For example, as Stocker (2014) illustrates, experiencing the Civil Rights movement would have had different consequences for African Americans and Whites, yielding two generation units within the cohort instead of a single generation. Another major contribution comes from Ryder (1965). Despite having a more neutral approach in comparison to Mannheim, as he defends that generational location is better represented through the more neutral construct ‘cohort’, he says that historical events occurring during particular life/development stages might be more influential. For example, historical events occurring during young adulthood are particularly influential, as young people are ‘old enough to participate directly in the movements impelled by change, but not old enough to have become committed to an occupation, a residence, a family of procreation or a way of life’ (Ryder, 1965, p. 848). This aspect is of major importance to the life course perspective, which greatly influenced the life course criminology approach (see Gomes et al., 2021, volume II). Building on his longitudinal studies of child and adult development, Elder (1974, 1985, 2001) formulated a life course perspective positing the process through which social and historical contexts, particularly during childhood and adolescence, affect the trajectory of an individual’s development through the lifespan. In other words, an individual’s childhood and adolescent experiences are particularly important in setting the stage for the subsequent developmental adult trajectory. He argued that ‘historical events and individual experience are connected through the family and the “linked” fates of its members’ (Elder, 1998, p. 3). For example, the model from Children of the Great Depression (Elder, 1974) clearly showed that family became a link between the macroscopic events of economic decline and the microworld of children (Elder, 2001). Furthermore, Elder (2001) affirms that.

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The early wave of life course studies (...) focused on the family context and the processes of lives—kinship ties, social transmission, intergenerational relations, the life cycle in which one generation reproduces another, and generational status. In the 1960s this family perspective was supplemented by studies of age and the life course, producing a framework that featured paradigmatic themes such as lives and times, the timing of lives, linked lives, and human agency. (2001, pp. 16–17)

This means that family—its structures and processes—is an important institution to consider in life course perspectives and to understand generations, but the way family is conceived and how it impacts an individual’s childhood suffered a transformation inside life course studies. As can be seen from this brief account, the way generation is conceptualised may vary, revealing multiple ways of measuring or signifying generations. Depending on the framework being used, these multiple meanings may operate simultaneously, which makes generation a powerful concept for understanding the social world, but a very slippery concept due to being difficult to define and apply (Bristow, 2016). For the purposes of this two-book series around the intersections between incarceration and generations, generations are defined neither in the narrow sense of cohort nor using the more individualised life course approach. We understand generation as a social construct and intend to include the plurality of possible meanings of this concept. Bearing this in mind, this first volume focuses mainly on the concept of generation as a life stage (see Kertzer, 1983), although authors might integrate other meanings in their individual chapters. The idea is to follow individuals through their life stages, starting with chapters on childhood and ending the volume with a chapter on the elderly. However, the first chapter will use the term generation as a historical period, as it is a chapter arguing and contextualising the existence of a generational transition in the penal field (see the first section of this chapter). The second volume (Gomes et al., 2021, volume II) includes chapters that focus on generation as a principle of kinship descent, particularly the chapters that explore issues of family and incarceration, as well as on generation as a cohort and as a historical period (see Kertzer, 1983, p. 126).

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13

Various Generations Incarcerated: Theoretical and Empirical Studies

Seeking to unveil the complexity of deprivation of liberty among its old and new forms targeting different generations, theoretical and empirical studies will now be discussed to show the multiple faces of incarceration. As mentioned before, this section follows individuals through their life stages, starting with childhood and youth incarceration and ending with older people incarceration.

3.1

Childhood

The social construction of modern childhood is a product of its separation from the world of adults, taking place alongside the increasing institutionalisation of children’s daily lives (Wyness, 2006). As a dual condition that combines biological and social categories that intersect political, social and moral aspects in a given society, childhood is a permanent component of the social structure that is constructed in different ways in different times (James & James, 2004). It is a collective social category that aggregates a plurality and diversity of conditions and ways of life, some of which are socially diametrically opposed, marked by origins of gender, culture, religion, social space of classes or geographic location, while others refer to the coexistence of social regularities among children (Almeida, 2006). This is a generation whose members have in common a position of dependence on other generations, especially adults; therefore, a lesser capacity of exercising the various forms of power. The weakening and dilution of informal social control and the increase of individual and collective expectations about the justice system are interrelated, and there is a greater demand for control and regulation of children’s lives. It is into the mechanisms of formal social control that functions until recently informally ensured in the communities are transposed (Carvalho, 2015; Fagan, 2010). Despite the strong geographic disparities and social inequalities, worldwide, children and

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young people are among the most vulnerable social groups at a higher risk of experiencing a measure of deprivation of liberty. In contemporary societies, it is not possible to discuss the concept of childhood without thinking of its legal definition, specifically within the framework of international law. The Convention on the Rights of the Child (UNCRC) approved by the United Nations in 1989 was the first international legally binding text to recognise all the fundamental rights of the child. It defined the term child as ‘every human being below the age of eighteen years, unless under the law applicable to the child, majority is attained earlier’ (Article 1). In relation to the diversity of cultural and social contexts, the terms child, children, young people and youth are often used interchangeably to refer to people below the age of eighteen years. Nevertheless, in different countries worldwide, at a certain age the child is removed from the scope of child justice and may be tried and sentenced as an adult (see Carvalho et al., 2021, volume I; Safranoff & Tiravassi, 2021, volume II; Zeijlmans et al., 2021, volume I). According to the UNCRC, children are and must be seen as social actors and not just as the passive subjects of social structures and processes. This means that all intervention in children’s lives must develop a new way of social and judicial thinking that sees children as independent subjects of procedural rights instead of adopting the traditional view of children as mere objects in need of assistance and charity (Fagan, 2010). However, when considering the imprisonment of children and young people, States continue to have serious difficulties in finding a balance between the notions of being a child or young person and becoming an adult, which are both intrinsic to the concept of childhood (Javeau, 2006; Uprichard, 2008). This discussion has to take into consideration the paradoxes shaping children’s lives in contemporary societies (Christiaens, 2015) as a result of intense social, demographic, technological and political changes in the last decades. Article 37 of the UNCRC (1989) is clear in advocating two key principles regarding the enforcement of measures involving deprivation of liberty: ‘no child shall be deprived of his or her liberty unlawfully or arbitrarily’ and the deprivation of liberty ‘shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest

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appropriate period of time’. It is also imperative to separate children deprived of liberty from adults, guaranteeing that every child is treated with humanity and respect in all situations and spaces and has access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent entity. The centrality of these principles is such that they are repeated and reaffirmed in a number of other international standards in this domain (see Foussard & Jung, 2021, volume II; Goldson & Randazzo, 2021, volume I). In spite of the international instruments that urge States to consider detention as a measure of last resort for children and young people (Goldson & Kilkelly, 2013), both researchers and professionals who work in the field of child and youth justice acknowledge that, in many parts of the world, measures involving deprivation of liberty applied to children and young people remain the norm rather than the exception (Bochenek, 2017; Laird, 2021; Liefaard, 2017, 2018, 2008; Nowak, 2019). Worldwide, a neoliberal vision tends to prevail in the administration of justice in relation to children, moving risk management away from the realm of the State and collective responsibility in different spheres of social action into that of individual responsibility (Wacquant, 2009). Children and young people’s inequalities in the access to structures of opportunities are frequently ignored, and a climate of economic rationalism in the management of child and youth imprisonment is exacerbated. Even in countries that have made efforts towards the establishment of child-specific legislation in the area of justice, child-friendly policies and specialised courts and procedures, the situation of child and youth imprisonment is contested, since in many cases measures involving deprivation of liberty are still widely used and spread, based on an ideal of child protection (Christiaens, 2015; PRI, 2020). This situation requires further discussion on the nature of the assessment process, instruments and procedures. It requires, in particular, a better understanding of how the law enforcement agencies involved from the outset in the intervention and further proceeding, including police and social workers, prosecutors, judges and justice/prison officers, examine in each individual case whether proper non-custodial solutions are available and should in fact be applied.

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In the past two decades, intense dramatisation and mediatisation of offending, particularly in Western societies, have boosted the problematisation of children and young people as members of dangerous generations, who pose higher risks to others (Dünkel, 2014; Galland, 2011; Goldson & Muncie, 2015; Moore, 2013). There tends to be a wider perception that they have become more aggressive and violent than ever, related to the idea that perpetrators always tend to be successful and that social control institutions are rarely effective. This perspective ultimately undermines the confidence of individuals in such institutions and erodes social cohesion, as expressed in a diversity of child incarceration contexts in present times (Bochenek, 2017; Cunneen et al., 2018; Farrall et al., 2016; Goldson et al., 2021). The UN Global Study on Children Deprived of Liberty presents a more in-depth portrait of the global situation concerning the multiple forms and expressions of child incarceration across the world, including of the views and perspectives of children deprived of liberty who were heard for this purpose (Nowak, 2019). As Nowak and Krishan (2020) pointed out: Children deprived of liberty remain an invisible and forgotten group in society notwithstanding the increasing evidence of these children being in fact victims of many further human rights violations. Childhood is when children develop their personality, their emotional relationships with others, their social and educational skills and their talents. The personal cost to these children is immeasurable in terms of the destructive impact on their physical and mental development, and on their ability to lead healthy and constructive lives in society. Many children may find themselves in a vicious cycle of different situations of deprivation of liberty throughout their childhood, which might start in an ‘orphanage’, followed by various institutions for educational supervision and drug rehabilitation until culminating in imprisonment and reoffending. Deprivation of liberty means deprivation of rights, agency, visibility, opportunities and love. Depriving children of their liberty is depriving them of their childhood. (Nowak & Krishan, 2020)

Children are being detained at increasingly younger ages and for longer periods of time (Nowak, 2019). Many children and young people keep

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being detained due to different social circumstances and without the possibility of ensuring the procedural guarantees due to them (Christiaens, 2015; Goldson et al., 2021; Liefaard, 2017; Nowak, 2019). Others comply with measures and sentences of indefinite duration, clearly in violation of international principles, either life imprisonment without the possibility of parole or other measures with a duration that is disproportionate to the acts committed or to the child or young person’s age or degree of development (Nowak, 2019). Still others are tried and convicted as if they were adults and are serving sentences in adult prisons. Increasingly, children and young people are deprived of their liberty due to social problems from which they should be protected by the State, as is the case of migrants fleeing armed conflicts or child soldiers; it is supposedly in the name of their protection that they end up being the target of segregation and isolation measures (Bochenek, 2017). A major concern is expressed regarding the systematic violation of children’s rights when incarcerated, particularly targeting the inhuman and degrading conditions of detention, an invisible reality that causes enormous suffering to the children and young people subjected to it (Nowak, 2019). The multiple dimensions of the harmful impacts of deprivation of liberty on the well-being, health and development of children are clearly identified and problematised in the UN Global Study (Nowak, 2019), which is in line with previous research. Not only is detention harmful to children, it does not prevent reoffending and is the most expensive way of dealing with children in conflict with the law (…). There is also compelling evidence to suggest that detaining young people makes them more, rather than less, likely to commit further offences. This is because children who enter the prison system are more likely to be damaged in the short term through the trauma of the experience, and in the long term will find it more difficult to return to school or obtain employment or vocational training, and are therefore more likely to be a burden on the economy and society at large, rather than being able to contribute to its advancement and healing in times of economic crisis. (PRI, 2012, p. 1)

What becomes clear is that the idea that justice can promote appropriate institutional environments that facilitate the rehabilitation of children

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and young people is easier said than done (Mackenzie, 2006). The harmful impacts on children could perdure over the individual life course and be reflected also in the following generational relations (Gomes et al., 2021, volume II). Detention, as a form of structural violence, deprives children of their childhood (Nowak, 2019). As a result, the Global Study urges all States to take urgent action to drastically reduce the ‘number of children held in places of detention and prevent deprivation of liberty before it occurs, including addressing the root causes and pathways leading to deprivation of liberty in a systematic and holistic manner’ (Nowak, 2019, p. 668). The imposition of limits to the right of liberty through childhood and youth in contemporary societies is far from being restricted to the classical juvenile institutions or prisons. As a result of the emergence of a myriad of forms, procedures and contexts specifically related to the phenomenon of global migrations, the situation has become more intricate and complex than ever (Klaassen et al., 2020). Forced child migration poses major challenges for contemporary societies, giving rise to significant social concern in relation to the increasing numbers of migrant children detained in many parts of the world (Castles et al., 2014). The number of those who attempt to escape from conflicts and wars at very young ages has grown significantly over the past years. Despite this being the case predominantly for boys, the number of girls in the same situation has been increasing with each passing year. The statistical dimension of the problem is not known exactly, as not all cases are officially reported and the contexts and ‘new institutions’ in which they occur are increasingly diverse (Liefaard, 2017). Often, such cases occur in situations that constitute a violation of many principles and rights recognised in the UNCRC, even in the condition of child soldiers or asylum seekers trying to escape from a conflict. In addition, many children disappear from the institutions and locations where they were placed, with EUROPOL estimating that, between 2014 and 2016 alone, more than 10,000 children in this situation in Europe have disappeared. This is a complex and growing problem in many parts of the world. The ‘triple vulnerability’ identified as a result of being a minor, a migrant and, in many cases, unaccompanied (Ruiz et al., 2019) ends up as a ‘triple risk’ of a higher probability of social exclusion after turning

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18 years old. The condition of these children as young, foreign and formerly under tutelage demands new approaches and a common action ground and steps at the national, regional and international levels, so that coherence and effectiveness in the assistance provided to them can be achieved (see Ruiz Fincias, 2021, volume I).

3.2

From Youth Transitions to Adulthood

The meaning of the term ‘youth’ varies in different societies around the world and is quite controversial. Worldwide, the extension of the time span of youth is a fact (see Carvalho et al., 2021—volume I; Zeijlmans et al., 2021—volume I). For statistical purposes, the United Nations defines the terms youth and young people interchangeably to mean ‘those persons between the ages of 15 and 24 as youth without prejudice to other definitions by Member States’ (UN, 1981). The age limits of a generation are always a social construction based on the perspectives of a society on specific social groups. Until recently, youth transitions to adulthood were defined on the basis of the young people’s increasing autonomy between late adolescence and the early years of adulthood, considering their separation from the family’s home and entry into the labour market. However, this understanding is now being challenged (Schmidt et al., 2020). The current lifestyles of youth give visibility to the new forms of transition to adult life, in which it is no longer possible to speak of a linear and synchronised path along the educational-professional and familial-marital axes as in previous generations (see Carvalho et al., 2021—volume I; Zeijlmans et al., 2021—volume I). Yet, these are strongly socially stratified processes, since socioeconomic origin is still a key determining factor in shaping the course and extension of the transition from youth to adulthood (Billari et al., 2019; Ferreira, 2017, 2019). The age at which, in the justice system, an individual becomes liable as an adult for acts of violation of the criminal law is a key issue in determining how deprivation of liberty is defined by justice. The extension of the time span of youth and the interrelated social changes in contemporary societies pose new and complex challenges to the traditional

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models of child justice system and criminal judicial systems, which are failing to provide the most appropriate responses to distinct age groups of children and young people (Cunneen et al., 2018; Farrington et al., 2012; Goldson & Muncie, 2015; Goldson, 2019; Schmidt et al., 2020; Wacquant, 2009). Many forms of deprivation of liberty in the transition period of youth are grounded in social or/and legal guidelines that consider young people as adults. This has resulted in a greater presence of young people in adult prisons or adult institutions. In addition to this, there is a growing body of research from social sciences, neurosciences, biomedicine and law focused on the tensions between sociological and legal insights on the concepts of youth and social control in relation to the impacts of neo-liberal governance models and the emergence of a ‘new punitiveness’ trend prompted by penal populism (Garland, 2001; Kilkelly, 2016; Liefaard, 2018; Pratt, 2007; Pruin & Dünkel, 2015; Wacquant, 2009). The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (General Assembly resolution 40/33 of 29 November 1985, the Beijing Rules) point out that ‘In those legal systems recognizing the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity’. (Rule 4). The age limits of criminal majority were never established internationally due to lack of consensus among the States, and the national legislator’s criterion prevails in its definition. Given the impossibility of defining an age that can encompass the cultural, historical and social diversity of all States, the UNCRC highlights the need for positive discrimination in the intervention of justice, leaving it to each country’s discretion to establish a minimum age limit, below which the young person is presumed not to have the capacity for guilt and to be considered and treated as an adult. Article 40, paragraph 3 of the UNCRC and Rule 4 of the Beijing Rules show that the principle of legality should be the basis for this process. The growing complexity of youth transitions in societies marked by profound sociodemographic changes has led to the scientific, political and pragmatic recognition of the fact that the binary categories of minors and adults may not, by themselves, be sufficient to determine the nature and practices of incarceration in specific age groups. The distinct social

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category of young adults (Farrington & Loeber, 2012; Webster et al., 2004), related to the life course stage of emerging adulthood (for those aged 18 to 25 in Western societies) (Arnett, 2000, 2015), with unique needs and challenges, has become a renewed object of attention for researchers and policymakers (see Zeijlmans et al., 2021, volume I). Some countries have already moved towards the adoption of legal provisions for these age groups, especially concerning the mitigation of sentences to avoid the enforcement of measures involving deprivation of liberty. Nonetheless, the overall scenario is one in which young people and adults serve sentences in the same facilities (see Carvalho et al., 2021—volume I). Consequently, most of the literature about prisons does not problematise the specific age of prisoners, aside from acknowledging that the prison population tends to be demographically young (Wacquant, 2000), unless the focus of the study is on clearly discussing a particular age group, such as young adults (Kolivoski & Shook, 2016; Kuanliang et al., 2008; Price, 2020) or the elderly (Aday, 1994, 2003; Codd, 2018, 2020; Maschi et al., 2013). By default, prison studies cover the life stage of adulthood of the incarcerated individuals. There is a whole body of literature that explores the change in the social organisation of prisons from within the prison itself, that is, by observing the internal dynamics of incarceration (see Cunha, 2008; Duarte & Gomes, 2017; Gomes, 2019; Granja, 2017; Jewkes et al., 2016; Liebling & Maruna, 2005; Petersilia & Tonry, 1999; Reeves, 2016) and/or collecting privileged information from staff and prisoners, with the latter case being more frequent than the former (Reeves, 2016). Researchers also try to capture the essence of what it is to be incarcerated (e.g. Bereswill, 2006, 2011; Cohen & Taylor, 1972; Crewe, 2009; Drake, 2012; Harvey, 2007; Jewkes, 2005a, 2005b; Johnson & Toch, 1982; Medlicott, 2011; Toch, 1992; Windzio, 2006; Zamble & Porporino, 1988), enhancing the reflection on how incarceration is felt and how people in prison interpret and negotiate prison obligations. Topics around the ‘pains of imprisonment’ and violence are very frequent (Bereswill, 2011; Clemmer, 1940; Crewe et al., 2017; Crewe, 2009, 2011; Fassin, 2017; Guia & Gomes, 2019; Haggerty & Bucerius, 2020; Johnson & Toch, 1982; Liebling & Maruna, 2005; Sykes, 1958; Warr, 2016). For example, Crewe (2009) reinforces the idea that incarceration

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entails ‘intrinsic pains’, deprivations and certain conditions that influence the culture and social organisation of the prison. Drake (2012, p. 74) shows that the suspension and the minimisation of the rights of prisoners create a deep sense of social exclusion; prisoners are left in a state of despair by the extreme incapacitation they experience as a result of relentless punishment. These studies lead to questioning the purposes and effects of incarceration (Johnson & Toch, 1982; Liebling & Maruna, 2005; Toch, 1975, 1977) on the life and well-being of prisoners. While the purposes and techniques of incarceration have changed significantly—and there have even been significant technological changes in daily prison life (Fassin, 2017)—their social outcomes are very little known. Taking the concept of pains of imprisonment to another analytical level, Liebling and Maruna (2005) questioned the long-term effects of incarceration for the individual. Instead of asking ‘What works?’ they ask ‘What hurts?’ (Liebling & Maruna, 2005). Feelings of fear, anxiety, humility, trauma, depression, injustice, powerlessness, violence and uncertainty are part of the experience of prison life; although they seem ‘hidden’, they reveal themselves everywhere in prison life and have immediate and long-term consequences (Liebling & Maruna, 2005). After all, whatever the purpose is, imprisonment is always an act of coercion, since detention is, by nature, non-voluntary (Moreira, 1994) and indelibly labels individuals (Cox, 2020). A discussion on the effects of incarceration cannot be restricted to the effects of the incarceration itself. It also entails exploring the specific conflicts that accompany the process of resocialisation after the end of the prison sentence. This means that the dynamics of criminal recidivism or desistance and the processes of social reintegration or prison re-entry are linked to the influence that incarceration has on these individuals. As Bereswill (2011) points out, it is important to recognise that the transition from prison to the outside world and the entire process of social reintegration are marked by the experiences of confinement and by the way in which these affected the individuals. Rodrigues (2002, p. 45), reinforcing this idea, mentions that prison does not only produce resocialisation effects; it also creates barriers and difficulties when prisoners return to their communities. Research on the re-entry process

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shows the barriers to re-entry experienced by ex-prisoners, including blocked achievements, diminished resources, disruptions in social ties and constraints to other opportunities necessary for the transition from prison to society (Gomes & Rocker, 2021, volume I; LeBel & Maruna, 2012; Mears & Cochran, 2015; Travis, 2005; Visher & Travis, 2003). Therefore, prisons present themselves as complex and conflicting organisms (Crewe, 2009) that impact the lives of staff and (young) adult prisoners (Moreira, 1994), irrespective of their purposes and the contexts and forms in which they emerge and are maintained. Assuming that other forms of incarceration beyond prisons, such as immigration detention centres, adopt the same carceral dynamics and purposes (Bosworth & Kaufman, 2011; Bosworth & Turnbull, 2015a; Kalhan, 2010; Stumpf, 2006; Turnbull, 2017), this means that we might be observing similar or reconfigured experiences and outcomes. For instance, Bosworth (2017) argues that foreigners serving time in immigration detention centres face additional administrative burdens and are subject to processes of differentiation and exclusion simply because of their citizenship.

3.3

Older Age

Currently, older prisoners make up a significant and growing minority within a penal estate (Codd, 2020; Davoren et al., 2015; Mann, 2012; PRI, 2020; Stevens et al., 2018). Most scholars agree that the increase in older populations in prison is not directly related to a sudden increase in the number of older people committing crimes (Aday, 2003). The widespread longer average life expectancy (Ginn, 2012) and the changes in sentencing practices and in granting parole contributed to this phenomenon, particularly through the continuous lengthening of sentences for major offences and the lengthening of sentences and sentences of imprisonment for minor offences (Silva, 2019). When older prisoners were not such a prevalent issue in the penal system, less research was being produced about this group (Adams & Vedder, 1961; Baier, 1961; Freedman, 1948). Literature would focus on theoretical paradigms of the criminal behaviour among the elderly

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(Keller & Vedder, 1968; Moberg, 1953; Whisken, 1968) and on the prevalence and type of crimes committed (Cullen et al., 1985; Forsyth & Gramling, 1988; Gewerth, 1988; Malinchak, 1980; Shichor & Kobrin, 1978). As the elderly became more visible in the penal system, a growing number of studies started to explore the issues associated with this particular group, coming from different fields of research, including psychiatry, psychology, medicine, health and gerontology, sociology, social work, social and penal policy, criminology, corrections and prison management (Aday, 1994, 2003; Baidawi et al., 2011; Fazel et al., 2001; Kim & Peterson, 2014; see also Claire de Motte, 2021, volume I). These are issues around the health and social care needs of older prisoners and the burden of the high costs of this particular care to the prison system (Aday & Maschi, 2019; Chaiklin, 1998; Faiver, 1998; Maschi et al., 2013; Skarupski et al., 2018; Stevens et al, 2018), the lived experiences of ageing in prison (Aday & Krabill, 2011; Aday & Wahidin, 2016; Aday, 2003; Avieli, 2021; Baidawi et al., 2016; Codd, 2018; Crawley & Sparks, 2006; Filinson, 2016; Smoyer et al., 2019; Sparkes & Day, 2016) and the challenges this new phenomenon poses to individuals and the State and the penal system (Abner, 2006; Aday, 1994, 2003). Despite most studies focusing on the challenges, hardships and pains of being incarcerated in old age, some authors have started to explore the possibilities of successful ageing experiences behind bars (Avieli, 2021; Lucas et al., 2018). This is very much controversial, as it has been suggested that prison life is incompatible with the promotion of successful ageing (Filinson, 2016). However, Avieli (2021) argues that ageing in prison cannot be perceived as a single, unified process, but as a personal and individual phenomenon, and that old age may facilitate positive changes in the lives of ageing offenders in prison. Usually, three groups of older prisoners are discussed in the literature—the ‘first time’ or ‘new elderly’, the career or chronic, and the ‘old timers’ (Aday, 2003; Goetting, 1983). The ‘first time’ are prisoners that serve a prison sentence for the first time albeit at a later stage in their life. They are usually incarcerated for crimes such as homicide, sexual offences, domestic violence, drug trafficking and alcohol-related crimes (Aday, 2003). In this group we might include another one, labelled as ‘short-term first’, to consider those who went to prison for the first time

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at a late stage in their life but with very short sentences (Goetting, 1983). The ‘careers’ are prisoners that have spent a considerable part of their lives in and out of prison, ultimately becoming elderly in prison (Aday, 2003). The ‘old timers’ include prisoners who, having a life sentence, grew old in prison (Goetting, 1983). While it is no longer appropriate to describe older prisoners as ‘invisible’ in penological research (Codd, 2018), it is quite curious to observe that there is no consensus in terms of what an ‘older’ or ‘elderly prisoner’ is (Barnes, 1999), and these terms are often used interchangeably (Kim & Peterson, 2014). The threshold adopted by different researchers ranges from 45 to over 70, which makes international comparisons very difficult (Codd, 2018, 2020). The definition of what constitutes an older prisoner is even more difficult, as it is closely linked to biological, psychological and social aspects of the prisoners (Aday & Krabill, 2011; Deaton et al., 2003; Vaughn & Collins, 2004; Watson et al., 2004). For instance, some authors have been arguing that prisoners may experience ‘accelerated ageing’, leading to an apparent 10-year differential between the overall health of prisoners and that of the general population (Aday & Krabill, 2011; Grant, 1999; Turner & Peacock, 2016; Wahidin, 2011). This means that prisoners are considered to be functionally older than their chronological age (Ginn, 2012).

4

Incarceration and Generation: An Overview of Volume I

This book assumes an epistemological, theoretical and methodological diversity, taking a multi-scale perspective by mobilising researchers from different universities and research centres representing various local geographies. In addition, some chapters go beyond a specific local context and provide an international overview of specific issues. The present volume explores the experiences, dynamics, cultures, interventions and impacts of incarceration in various generations: childhood, youth and emerging adulthood, adulthood and older age. It is structured in a way that makes it possible to follow the individuals through their life stages, starting with chapters on childhood and ending with chapters

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on the elderly in confinement. Although this is the conceptual orientation based on which the volume is structured, that does not preclude the authors from incorporating other meanings of generation in their own chapters. The expansion of the penal landscape in contemporary societies led Cristina Fernández-Bessa and José Ángel Brandariz (Chapter 2. Generations of penality: On prison, immigration detention and their intersections) to affirm that prisons together with immigration detention facilities are currently the most relevant sites of punitive confinement. In their work, they explore the multifaceted nexus linking prison and immigration detention across European jurisdictions, to claim that we are witnessing a ‘generational’ transition in the European penal field. Examining the ‘laboratory’ thesis and the ‘transcarceration’ thesis, the authors suggest that by creating a new confinement apparatus via immigration detention centres and adding it to the penal system, we might be observing not only an expansion of the penal landscape, but also a penal transition in which prison and immigration detention practices are increasingly interwoven. This trend is especially relevant within the global debate on children deprived of liberty. Based on previous work by Goldson (2015, 2020; Goldson et al., 2021), Barry Goldson and Silvia Randazzo (Chapter 3. Child and Youth Imprisonment: International scope, impacts, outcomes, and replacements) update on the rationale for fostering the debate on the abolition of measures involving deprivation of liberty regarding children. The critical analysis of this phenomenon presents the results of an integrated analysis of different international legal instruments, from a historical, human rights and children’s rights perspective, and the findings of relevant scientific research. The broader conceptual and theoretical framework supports the analysis of data collected from the United Nations Office on Drugs and Crime on the spatial variability in the distribution of child and youth imprisonment. The portrait thus obtained shows how international norms and standards fail to be enforced in a time of penal expansion, which has been marked by a significant growth in the diversity of forms and in the figures of child and youth imprisonment worldwide. Far from being a measure of last resort and for the shortest appropriate period of time, the sentence of imprisonment brings with it harmful and negative impacts that support

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the authors’ assertion in favour of a set of sharp arguments as to why child imprisonment should be replaced by alternative initiatives, in line with Foussard and Jung (2021, volume II). Despite the principles set out in the United Nations instruments and other international and regional guidelines concerning the need for States to avoid child imprisonment, the treatment that most unaccompanied migrant children receive when arriving in a new country starts with their placement in confinement, in most cases under administrative measures and almost indefinitely. The recent entry of hundreds of unaccompanied migrant minors, essentially male, in Ceuta, the Spanish enclave in North Africa (May 2021), renewed the visibility of this human mobility phenomenon that seems to affect—to a greater or lesser extent—many European jurisdictions. Over the last decade, Spain has become one of the principal gateways to Europe as the number of unaccompanied migrant minors has grown each year. This trend is the centre of the analysis presented by Maria Inmaculada Ruiz Fincias (Chapter 4. Unaccompanied Migrant Children: Reality and perspective in Spain), focused on the Spanish public policies and responses with regard to unaccompanied migrant minors, who are targeted by both State control efforts (border police and judicial authorities) and welfare schemes aimed at meeting their social needs. This valuable study is focused on the discussion of the needs of the children in relation to the current legal framework and existing protocols and resources in Spain. What started as an emerging phenomenon a few years ago has turned into a consolidated and wider social problem for the Spanish and European authorities. Since the transition from youth to adulthood constitutes a critical point in the evolution of an individual, as the author points out in relation to unaccompanied migrant minors, its impact is felt in all populational and social groups, gaining special meaning when it comes to thinking about the response to offenders during this stage of life. This theme is at the core of the debate presented in the two following chapters. Kirti Zeijlmans, Take Sipma and André van der Laan (Chapter 5. European justice systems and the distinct approach to young adults’ incarceration) focus their chapter on an emerging and significant area of research that explores the incarceration of young adults in European

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justice systems. The authors frame their analysis within a broad theoretical framework informed by contributions from psychology, criminology, neuroscience and sociology. Thus, this approach adds nuance and intersectoral value to an issue of growing interest both from a scientific and a social perspective. This chapter places the analysis of different approaches to the incarceration of young adults used in Europe within the discussion of developmental pathways for criminal behaviour that include individual and social factors. In doing so, it seeks to highlight the complexity and intersection of factors that serve as grounds for judicial measures aimed at the emerging generational category of young adulthood. Drawing on a cross-national comparison from an international study coordinated by the Research and Documentation Centre (WODC) of the Ministry of Justice and Security in the Netherlands, the authors provide updated information focused on the European context and deepen critical issues arising in the field and in scientific debate. Bringing together a more comprehensive analytical outline, the judicial frameworks of five countries—Austria, Germany, Portugal, the Netherlands and Sweden—are portrayed and compared in more depth. Deepening the discussion of the incarceration of young adults and focusing on one of the jurisdictions analysed by Zeijlmans, Spima and van der Laan, the following chapter presents a unique portrait of the profiles of young adults placed in Portuguese prisons. Maria João Leote de Carvalho, Cláudia Urbano and Vera Duarte (Chapter 6. ‘Goldies’, ‘Birdies’ and ‘Oldies’: An Exploratory Analysis of Young Adults in Portuguese Prisons) extend the debate concerning this field by presenting a study on the sociodemographic characteristics of young adults, the crimes they committed and their placement in different types of prisons in Portugal, which illustrates some of the major tensions arising in the penitentiary system that go beyond the Portuguese justice system (see Sallas et al., 2021, volume I; see also Linonge-Fontebo, 2021, volume II). Within the framework of the increasing international debate on how justice systems need to rethink the responses to young adults in light of the extension of the time span of youth in contemporary societies, the Portuguese jurisdiction deserves special attention given the continuous and significant decrease in the number of prison sentences applied to young adults

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over the past three decades. Major contradiction between law and practice are discussed by the authors, since young adults are often placed in adult prisons, due to the lack of specialised prisons in the country, and subjected to increasing harmful impacts to their present and future trajectories (see Ana Safranoff & Antonella Tiravassi, 2021, volume II). Although this generational group is approached differently in many countries, for a variety of reasons, the knowledge about its composition is limited. The added value of the three clusters identified in this chapter based on the analysis of the national prison statistics contributes to the understanding of the composition of the young adult prison population, helping to enhance policymaking and gear it towards more effective practices and different prevention strategies. From the singularities of the transition to adulthood, the following chapters of the volume move on to the specific approaches to the incarceration of adults. Fernando Salla, Luiz Lourenço and Marcos César Alvarez (Chapter 7. Adults in the Brazilian prison system) present and discuss an overview of the history of adult imprisonment in Brazil, highlighting the main social processes that have driven the rapid rise in incarceration rates in the country. The authors pay special attention to the discussion on the degradation of the living conditions of prisoners, the difficulties in implementing effective policies and the emergence of organised prisoner groups. The inclusion of the Brazilian perspective, focused on the world’s third-largest population of incarcerated adults, makes a relevant contribution to this book by giving visibility to discourses of various forms of deprivation of liberty in one of the most contested penitentiary systems from the Global South. Because ‘time in prison’ matters, Sílvia Gomes and Dixie Rocker (Chapter 8. Gender, Incarceration and Reentry: An analysis of the barriers to reentry of male and female adult prisoners in Portugal) offer us a challenging chapter aiming at a better understanding of gender differences in the way adult prisoners perceive the impact of incarceration on their re-entry process and on the expectations after release. Drawing on a theoretical review framework intersecting gender and incarceration, the authors reveal and discuss the singularities and convergences of men’s and women’s re-entry narratives based on the analysis of their own perspectives. Findings suggest how differences in prison facilities, criminal

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histories, social constructions of gender and the particular Portuguese social and judicial context influence the re-entry processes of prisoners. This chapter makes a unique contribution to the extant literature on prisoner re-entry, while advancing gender research supported on novel data on Portuguese prisoners of relevant interest to the international comparative approaches. Ana Ballesteros (Chapter 9. Analyzing new trends in immigration detention systems in Canada: impacts in adult undocumented migrants) explores the Canadian immigration detention system concerning the situation of young adult and adult undocumented migrants. The chapter presents relevant data for the discussion of detention systems globally, which goes further than the Canadian system, as well as provides a framework to inform the practices in this field (similarly to Maria Inmaculada Ruiz Fincias, 2021, Chapter 4). In this chapter, the author proposes to analyse the impact of a new framework, called National Immigration Detention Framework (NIDF), implemented in 2017, whose goal is to ‘create a better, fairer immigration detention system that supports the humane and dignified treatment of individuals while protecting public safety’. Critically, based on empirical evidence, Ballesteros argues that the changes introduced in the immigration detention system in Canada seek to legitimise the detention and supervision of those adults and young adults living in the country without legal status exacerbating racial and gendered biases. The author further argues immigration detention practices are reinforcing the shadow carceral state and creating an increasingly sophisticated and robust ‘autonomous detention machine’ while maintaining a high capacity of responsiveness and absorption of demands and critiques. Drawing on the reality of the elderly in prison, Claire de Motte (Chapter 10. The consequences of imprisoning older males in prison in England and Wales) presents an in-depth portrait of the UK’s penitentiary system, highlighting the realities regarding elderly prisoners. Discussing the meaning of ageing in prison, the author puts into perspective the points of view of the prisoners themselves and those of the health and correctional professionals that accompany them. On the basis of in-depth qualitative research addressing the specific situations and needs of older

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prisoners, this chapter makes a valuable contribution to a deeper understanding and debate on how the notion of prison and penal sanctions applied to this age group must be rethought, since living conditions in prison do not meet their needs. We hope that, taken together, the chapters in this volume will provide a greater understanding of the intersections of incarceration and generation, particularly the importance of considering various forms of incarceration, and of the differences and similarities between the various incarcerated generations. This volume does not exhaust all the possible topics that might be explored with regard to each of the generations in confinement, nor does it cover all forms of incarceration. However, it starts a dialogue and sets the stage for academics from both the Global North and the Global South to reflect on the possible advantages of considering this lens. Our ambition is that, in time, this two-book series will encourage academics to reflect on the relevance of considering this domain a distinct field of research, aggregating all the incredible work that is already being developed by scholars across disciplinary boundaries and promoting additional studies on the links between incarceration and generation. Acknowledgements The English revision was financed by national funds through the FCT—Foundation for Science and Technology, I.P., within the scope of the project «UIDB/04647/2020» of CICS.NOVA—Interdisciplinary Centre of Social Sciences of NOVA School of Social Sciences and Humanities. Carvalho acknowledges that her participation in this work was supported by the FCT—Foundation for Science and Technology (FCT), through an individual postdoctoral research grant (SFRH/BPD/116119/2016), under Operational Human Capital Program (POCH) funds, co-financed by the European Social Fund (ESF) and the Ministry of Science, Technology and Higher Education (MCTES).

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References Abner, C. (2006) Graying prisons. States face challenges of an aging inmate population. StateNews, 8–11. ACNUR. (2019) Global trends. Forced displacement in 2018. UNHCR— United Nations High Commissioner for Refugees. https://www.unhcr.org/ 5d08d7ee7.pdf Adams, M., & Vedder, C. (1961). Age and crime: Medical and sociologic characteristics of prisoners over 50. Geriatrics, 16 , 177–181. Aday, R. (1994). Aging in prison: A case study of new elderly offenders. International Journal of Offender Therapy and Comparative Criminology, 38(1), 79–91. Aday, R. (2003). Aging prisoners: Crisis in American corrections. Praeger Publishers. Aday, R., & Krabill, J. (2011) Women aging in prison: A neglected population in the correctional system. Aday, R., & Maschi, T. (2019). The challenge of managing aging prisoners. In D. L. Polaschek, A. Day, & C. Hollin (Eds.), The Wiley international handbook of correctional psychology (pp. 144–158). Wiley. Aday, R., & Wahidin, A. (2016). Older prisoners’ experiences of death, dying and grief behind bars. The Howard Journal of Crime and Justice, 55 (3), 312– 327. Almeida, A. N. (2006). La sociologie et la construction de l’enfance. Regards du côte de la famille. In R. Sirota (Ed.), Éléments pour une Sociologie de l’Enfance (pp. 115–123). Presses Universitaires. Arnett, J. (2000). Emerging adulthood: A theory of development from the late teens through the twenties. American Psychologist, 55 (5), 469–480. Arnett, J. (2015). Emerging adulthood: The winding road from the late teens through the twenties. Oxford University Press. Avieli, H. (2021). ‘A sense of purpose’: Older prisoners’ experiences of successful ageing behind bars. European Journal of Criminology. https://doi. org/10.1177/1477370821995142 Baidawi, S., Trotter, C., & Flynn, C. (2016). Prison experiences and psychological distress among older inmates. Journal of Gerontological Social Work, 59 (3), 252–270.

1 Incarceration and Generation …

33

Baidawi, S., Shelley, T., Trotter, C., Browning, C., Collier, P., O’Connor, D., & Sheehan, R. (2011). Older prisoners-A challenge for Australian corrections. Trends and Issues. Crime and Criminal Justice, Australian Institute for Criminology, Australian Government, 461, 421–440. Baier, G. (1961). The aged inmate. American Journal of Corrections, 23(4–6), 30–34. Barnes, L. (1999). Doing time quietly: A profile of older prisoners and their experiences of imprisonment in South Australia. University of Sydney. Beck, U. (2007). Power in the global age: A new global political economy. Polity. Bereswill, M. (2006). Inside-out: Resocialisation from prison as a biographical process. A longitudinal approach to the psychodynamics of imprisonment. Journal of Social Work Practice, 18(3), 115–336. Bhuller, M., Dahl, G., Løken, K., & Mogstad, M. (2018). International effect of incarceration (NBER Working Paper No. 24227). http://www.nber.org/ papers/w24227 Billari, F. C., Hiekel, N., & Liefbroer, A. C. (2019). The social stratification of choice in the transition to adulthood. European Sociological Review, 35 (5), 599–615. Bochenek, M. (2017). Children behind bars: The global overuse of detention of Children. Human Rights Watch. https://www.hrw.org/sites/default/files/ childrenindetention_0.pdf Bosworth, M. (2017). Immigration detention, punishment and the transformation of justice. Social & Legal Studies, 26. https://doi.org/10.1177/096 4663917747341 Bosworth, M. (2019). Immigration detention, punishment and the transformation of justice. Social & Legal Studies, 28(1), 81–99. https://doi.org/10. 1177/0964663917747341 Bosworth, M., & Turnbull S. (2015a). Immigration, detention, and the expansion of penal power in the United Kingdom. In K. Reiter & A. Koenig (Eds.), Extreme punishment. Palgrave studies in prisons and penology. Palgrave Macmillan. https://doi.org/10.1057/9781137441157_4 Bosworth, M., & Kaufman, E. (2011). Foreigners in a carceral age: Immigration and imprisonment in the United States. Stanford Law & Policy Review, 22, 429–454. Bosworth, M., & Turnbull, S. (2015b). Immigration detention, punishment, and the criminalization of migration. In S. Pickering & J. Ham (Eds), The Routledge handbook on crime and international migration (pp. 91–106). Routledge.

34

S. Gomes et al.

Bristow, J. (2016). Why study generations? In J. Bristow (ed.), The sociology of generations. New directions and challenges (pp. 1–17). London: Palgrave. Carvalho, M. J. L. (2015). Rehabilitating and educating for responsible autonomy: Two sides of a path to personal and social well-being. In R. Carneiro (Ed.), Youth, offense and well-being: Can science enlighten policy? (pp. 227–254).CEPCEPUCP. Castles, S., Haas, H., & Miller, M. (2014). The age of migration: International population movement in the modern world . Palgrave Macmillan. Chaiklin, H. (1998). The elderly disturbed prisoner. Clinical Gerontologist, 20 (1), 47–62. Cheliotis, L. K. (2013). Behind the veil of philoxenia: The politics of immigration detention in Greece. European Journal of Criminology, 10 (6), 725–745. Christiaens, J. (Ed.). (2015). It’s for your own good. Researching youth justice practices. VUB Press. Clemmer, D. (1940). The prison community. Christopher Publishing House. Codd, H. (2020). Prisons, older people, and age-friendly cities and communities: Towards an inclusive approach. International Journal of Environmental Research and Public Health, 17 (24), 9200. https://doi.org/10.3390/ijerph 17249200 Cood, H. (2020). Prisons, older people, and age-friendly cities and communities: Towards an inclusive approach. International Journal of Environmental Public Health, 17 (24). https://doi.org/10.3390/ijerph17249200 Codd, H. (2018). Ageing in prison. In S. Westwood (Ed.), Ageing, diversity and equality: Social justice perspectives. Routledge. https://doi.org/10.4324/ 9781315226835 Cohen, S., & Taylor, L. (1972). Psychological survival: The experience of longterm imprisonment. Penguin Books. Cox, A. (2020). The language of incarceration. Incarceration. https://doi.org/ 10.1177/2632666320940859 Crawley, E., & Sparks, R. (2006). Is there life after imprisonment? How elderly men talk about imprisonment and release. Criminology & Criminal Justice, 6 (1), 63–82. Crewe, B. (2011). Depth, weight, tightness: Revisiting the pains of imprisonment. Punishment & Society, 13(5), 509–529. Crewe, B., Hulley, S., & Wright, S. (2017). The gendered pains of life imprisonment. British Journal of Criminology, 57 (6), 1359–1378. Crewe, B. (2009). The prisoner society. Power, adaptation, and social life in an English prison. Oxford University Press.

1 Incarceration and Generation …

35

Cullen, F. T., Wozniak, J. F., & Frank, J. (1985). The rise of the elderly offender: Will a “new” criminal be invented? Crime and Social Justice, 15, 151–165. Cunha, M. I. (2008). Prisão e sociedade: Modalidades de uma conexão. In M. I. Cunha (Ed.), Aquém e além da prisão: cruzamentos e perspetivas (pp. 33– 78). 90º Graus Editora. Cunneen, C., Goldson, B., & Russell, S. (2018). Human rights and youth justice reform in England and Wales: A systemic analysis. Criminology and Criminal Justice, 18(4), 405–430. Currie, E. (1998). Crime and punishment in America. Henry Holt and Company. Davis, A. Y. (2003). Are prisons obsolete? Seven Stories Press. Davoren, M., Fitzpatrick, M., Caddow, F., Caddow, M., O’Neill, C., O’Neill, H., & Kennedy, H. G. (2015). Older men and older women remand prisoners: Mental illness, physical illness, offending patterns and needs. International Psychogeriatrics, 27 (5), 747–755. https://doi.org/10.1017/S10 41610214002348 Deaton, D., Aday, R., & Wahidin, A. (2003). The effect of health and penal harm on aging female prisoners’ views of dying in prison. Journal of Death and Dying, 60 (1), 51–70. Devriese, M. (1989). Approche sociologique de la génération. Vingtième Siècle, Revue D’histoire, 22, 11–16. https://doi.org/10.3406/xxs.1989.2123 Drake, D. (2012). Prisons. Palgrave Macmillan. Duarte, V., & Gomes, S. (Eds.). (2017). Espaços de Reclusão: questões teóricas, metodológicas e de investigação. Edições ISMAI. Dünkel, F. (2014). Juvenile Justice systems in Europe—Reform developments between justice, welfare and ‘new punitiveness.’ KriminlogijosStudijos, 1, 32– 76. Elder, G. H., Jr. (1974). Children of the great depression. University of Chicago Press. Elder, G. H., Jr. (1985). Perspectives on the life course. In G. Elder (Ed.), Life course dynamics: Trajectories and transitions, 1968–1980 (pp. 23–49). Cornell University Press. Elder, G. H., Jr. (1998). The life course as developmental theory. Child Development, 69 (1), 1–12. Elder, G. H., Jr. (2001). Time, human agency, and social change: Perspectives on the life course. In A. Piquero & P. Mazerolle (Eds.), Life course criminology—Contemporary and classic readings (pp. 3–20). Wadsworth Thomson Learning.

36

S. Gomes et al.

Fagan, J. (2010). The contradictions of juvenile crime & punishment. Daedalus, 139 (3), 43–61. Faiver, K. L. (1998). Health care management issues in corrections. American Correctional Association. Farrall, S., Goldson, B., Loader, I., & Dockley, A. (2016). Introduction: Reshaping the penal landscape. In S. Farrall, B. Goldson, I. Loader, & A. Dockley (Eds.), Justice and penal reform: Re-shaping the penal landscape. Routledge. Farrington, D. (1986). Age and crime. Crime and Justice, 7 , 189–250. Farrington, D. P., Loeber, R., & Howell, J. C. (2012). Young adult offenders: The need for more effective legislative options and justice processing. Criminology & Public Policy, 11(4), 729–750. Fassin, D. (2011). Policing borders, producing boundaries. The governmentality of immigration in dark times. Annual Review of Anthropology, 40, 213–226. https://doi.org/10.1146/annurev-anthro-081309-145847 Fassin, D. (2017). Prison worlds. An ethnography of the Carceral condition. Polity Press. Fazel, S., Hope, T., O’Donnell, I., Piper, M., & Jacoby, R. (2001). Health of elderly male prisoners: Worse than the general population, worse than younger prisoners. Age and Ageing, 30 (5), 403–407. Ferreira, V. S. (2017). Posfácio. Um olhar sobre os jovens como sujeitos de políticas e sociologias públicas. In D. H. Laranjeira & R. E. Barone (Eds.), Juventude e Trabalho. Desafios no mundo contemporâneo (pp. 385–388). EDUFBA. Ferreira, V. S. (2019). Jovens e gerações em tempos de crise: entre Portugal e o contexto global. In V. Colaço, I. Germano, L. Miranda, & J. P. Barros (Eds.), Juventudes em Movimento: Experiências (pp. 34–68). Expressão Gráfica Editora e Universidade Federal do Ceará. Ferreira, V. S. (Ed.). (2020). Special issue: Values, practices and discourses on generations. Youth Studies and Generations. https://doi.org/10.3390/boo ks978-3-03928-327-9 Filinson, R. (2016). A day in the life: How time is spent doing time among older inmates. Activities. Adaptation & Aging, 40 (2), 125–149. France, A., & Roberts, S. (2015). The problem of social generations: A critique of the new emerging orthodoxy in youth studies. Journal of Youth Studies, 18(2), 215–230. https://doi.org/10.1080/13676261.2014.944122 Freedman, H. (1948). Rehabilitation of the older prisoner. Journal of Clinical Psychopathology, 9, 226–232. Galland, O. (2011). Sociologie de la Jeunesse. Armand Colin.

1 Incarceration and Generation …

37

Garland, D. (2001). The culture of control. Crime and social order in contemporary society. University of Chicago Press. Garland, D. (2013). Penality and the penal state. Criminology, 51(3), 475–517. Gewerth, K. E. (1988). Elderly offenders: A review of previous research. In B. McCarthy & R. Langworthy (Eds.), Older offenders: Perspectives in criminology and criminal justice (pp. 14–31). Praeger. Gilleard, C. (2004). Cohorts and generations in the study of social change. Social Theory & Health, 2,. https://doi.org/10.1057/palgrave.sth.8700023 Ginn, S. (2012). Elderly prisoners. BMJ , 345. Goetting, A. (1983). The elderly in prison: Issues and perspectives. Journal of Research in Crime and Delinquency, 20, 291–309. Goldson, B. (2013). Unsafe, unjust and harmful to wider society: Grounds for raising the minimum age of criminal responsibility in England and Wales. Youth Justice: An International Journal, 13(2), 111–130. Goldson, B. (2015). The circular motions of penal politics and the pervasive irrationalities of child imprisonment. In B. Goldson & J. Muncie (Eds.), Youth crime and justice (2nd ed.). Sage. Goldson, B. (2019). Reading the present and mapping the future(s) of Juvenile justice in Europe: Complexities and challenges. In B. Goldson (Ed.), Juvenile justice in Europe: Past, present and future. Routledge. Goldson, B. (2020). Excavating youth justice reform: Historical mapping and speculative prospects. Howard Journal of Crime and Justice, 59 (3), 317–334. Goldson, B., & Kilkelly, U. (2013). International human rights standards and child imprisonment. International Journal of Children’s Rights, 21(2), 345. Goldson, B., & Muncie, J. (Eds.). (2015). Youth justice and crime. Sage. Goldson, B., Cunneen, C., Russell, S., Brown, D., Baldry, E., Schwartz, M., & Briggs, D. (2021). Youth justice and penality in comparative context. Routledge. Gomes, S. (2014). Caminhos para a Prisão. Editora Húmus. Gomes, S. (2019). As Vozes da Prisão - Práticas e Vivências de Reinserção Social Intramuros. Editora Húmus. Granja, R. (2017). Para cá e para lá dos muros: Negociar relações familiares durante a reclusão. Afrontamento. Grant, A. (1999). Elderly inmates: Issues for Australia. Trends & Issues in Crime and Criminal Justice. Australian Institute of Criminology. Guia, M., & Gomes, S. (Eds.). (2019). Prisons. Springer. https://doi.org/10. 1007/978-3-030-13077-0 Haggerty, K. D., & Bucerius, S. (2020). The proliferating pains of imprisonment. Incarceration. https://doi.org/10.1177/2632666320936432

38

S. Gomes et al.

Halsey, M., & Vel-Palumbo, M. (2020). Generations through prison—Experiences of intergenerational incarceration. Routledge. Harvey, J. (2007). Young men in prison: Surviving and adapting to life inside. Willan Publishing. James, A., & James, A. (2004). Constructing childhood . Palgrave Macmillan. Javeau, C. (2006). La problématisation de l’enfance, des enfants et de l’enfant dans la société dite «du risque». In R. Sirota (Ed.), Éléments pour une Sociologie de l’Enfance (pp. 297–306). Presses Universitaires. Jewkes, Y. (2005). Men behind bars: “Doing” masculinity as an adaptation to imprisonment. Men and Masculinities, 8(1), 44–63. Jewkes, Y. (2005). Loss, liminality and the life sentence: Managing identity through a disrupted lifecourse. In A. Liebling & S. Maruna (Eds.), The effects of imprisonment (pp. 366–388). Willan Publishing. Jewkes, Y., Bennett, J., & Crewe, B. (2016). Handbook on prisons. Routledge. Johnson, R., & Toch, H. (1982). The pains of imprisonment. Sage. Kalhan, A. (2010). Rethinking immigration detention. Columbia Law Review, 110, 42–58. Keller, O., & Vedder, C. (1968). Crimes that old persons commit. The Gerontologist, 8, 43–50. Kertzer, D. I. (1983). Generation as a sociological problem. Annual Review of Sociology, 9, 25–49. Kilkelly, U. (2016). Advancing the rights of young people in Juvenile justice: The impact of Juvenile Law Center. Temple Law Review, 88(4), 629–652. Kim, K. D., & Peterson, B. (2014). Aging behind bars: Trends and implications of graying prisoners in the federal prison system. Urban Institute. Klaassen M.A.K., Rap S.E., Rodrigues P.R. & Liefaard T. (eds) (2020) Safeguarding children’s rights in immigration law, Antwerp: Intersentia. Kolivoski, K. M., & Shook, J. J. (2016). Incarcerating Juveniles in adult prisons: Examining the relationship between age and prison behavior in transferred Juveniles. Criminal Justice and Behavior, 43(9), 1242–1259. https://doi.org/10.1177/0093854816631793 Kuanliang, A., Sorensen, J., & Cunningham, M. (2008). Juvenile inmates in an adult prison system—Rates of disciplinary misconduct and violence. Criminal Justice and Behavior, 35 (9), 1186–1201. https://doi.org/10.1177/009 3854808322744 Laird, R. (2021). Regional international Juvenile incarceration models as a blueprint for rehabilitative reform of Juvenile criminal justice systems in the United States. The Journal of Criminal Law and Criminology, 111(2): 571–603.

1 Incarceration and Generation …

39

LeBel, T., & Maruna, S. (2012). Life on the outside: Transitioning from prison to the community. In J. Petersilia & K. R. Reitz (Eds.), The Oxford handbook of sentencing and corrections. https://doi.org/10.1093/oxfordhb/978019973 0148.013.0027 Liebling, A., & Maruna, S. (2005). Introduction: The effects of imprisonment revisited. In A. Liebling & S. Maruna (Eds.), The effects of imprisonment (pp. 1–29). Willan Publishing. Liefaard, T. (2008). Deprivation of liberty of children in light of international human rights law and standards. School of Human Rights Research Series. Liefaard, T. (2017). Access to justice for children deprived of their liberty in center for human rights and humanitarian law. In P. Children (Ed.), Antitorture initiative (pp. 57–80). American University, Washington College of Law. Liefaard, T. (2018). Deprivation of liberty of children. In U. Kilkelly & T. Liefaard (Eds.), International human rights of children (pp. 321–357). Springer. Loeber, R., Farrington, D. P. (2014). Age-crime curve. In G. Bruinsma & D. Weisburd (Eds.), Encyclopedia of criminology and criminal justice. Springer. https://doi.org/10.1007/978-1-4614-5690-2_474 Lucas, H. M., Lozano, C. J., Valdez, L. P., Manzarate, R., Angelli, F., & Lumawag, J. (2018). A grounded theory of successful aging among select incarcerated older Filipino women. Archives of Gerontology and Geriatrics, 77 , 96–102. Mackenzie, D. L. (2006). What works in corrections: Reducing the criminal activities of offenders and delinquents. Cambridge University Press. Malinchak, A. A. (1980). Crime and gerontology. Prentice-Hall. Mallart, F. (2019). Findas linhas: circulações e confinamentos pelos subterrâneos de São Paulo (PhD dissertation). Faculdade de Filosofia, Letras e Ciências Humanas, São Paulo. https://doi.org/10.11606/T.8.2019.tde-301 02019-185218 Mann, N. (2012). Doing harder time? The experiences of an ageing male prison population in England and Wales. Ashgate Publishing. Mannheim, K. [1927] (1952). The problem of generations. In P. Kecskemeti (Ed.), Essays on the sociology of knowledge (pp. 276–320). Routledge and Kegan Paul. Marshall, I. (Ed.). (1997). Minorities, migrants, and crime: Diversity and similarity across Europe and the United States. Sage.

40

S. Gomes et al.

Maschi, T., Viola, D., & Sun, F. (2013). The high cost of the international aging prisoner crisis: Well-being as the common denominator for action. The Gerontologist, 53(4), 543–554. Mears, D., & Cochran, J. (2015). Prisoner reentry in the era of mass incarceration. Sage. Medlicott, D. (2011). Surviving the prison place: Narratives of suicidal prisoners. Ashgate. Meyer, J., Franco-Paredes, C., Parmar, P., Yasin, F., & Gartland, M. (2020). COVID-19 and the coming epidemic in US immigrations detention centres. Le Lancet. https://doi.org/10.1016/S1473-3099(20)30295-4 Moberg, D. (1953). Old age and crime. Journal of Criminal Law and Criminology, 43(6), 764–776. Moore, M. (2013). Save money, protect society and realise youth potential. Improving Youth Justice systems during a time of economic crisis. International Juvenile Justice Observatory. Moore, L. D., & Elkavich, A. (2008). Who’s using and who’s doing time: Incarceration, the war on drugs, and public health. American Journal of Public Health, 98(5), 782–786. https://doi.org/10.2105/AJPH.2007.126284 Moreira, J. (1994). Vidas Encarceradas: Estudo Sociológico de uma Prisão Masculina. Centro de Estudos Judiciários. Nowak, M. (2019). The United Nations global study on children deprived of liberty. United Nations. https://digitallibrary.un.org/record/3813850 Nowak, M., & Krishan, M. (2020). The UN global study on children deprived of liberty: The role of academia in ‘making the invisible and forgotten visible.’ Crime Prevention and Justice in, 2030, 231–249. https://doi.org/ 10.1007/978-3-030-56227-4_11 Petersilia, J., & Tonry, M. (1999). Prisons. University of Chicago Press. Pew Research Center. (2015). The whys and hows of generations research. https://www.pewresearch.org/politics/2015/09/03/the-whys-and-hows-ofgenerations-research/. Poehlmann-Tynan, J., & Pritzl, K. (2019). Parent–child visits when parents are incarcerated in Prison or Jail. In J. Eddy & J. Poehlmann-Tynan (Eds,), Handbook on children with incarcerated parents. Springer. https://doi.org/10. 1007/978-3-030-16707-3_10 Pratt, J. (2007). Penal populism. Routledge. PRI—Penal Reform International. (2019). Global Prison Trends 2019. Penal Reform International’s (PRI) and Thailand Institute of Justice (TIJ). https:// www.penalreform.org/resource/global-prison-trends-2019/

1 Incarceration and Generation …

41

PRI—Penal Reform International. (2020). Global Prison Trends 2020. Penal Reform International’s (PRI) and Thailand Institute of Justice (TIJ). https:// www.penalreform.org/resource/global-prison-trends-2020/ PRI—Penal Reform International and Interagency Panel on Juvenile Justice. (2012). Ten-point plan for fair and effective criminal justice for children. Penal Reform International. Price, J. (2020). The experience of young people transitioning between youth offending services to probation services. Probation Journal, 67 (3), 246–263. https://doi.org/10.1177/0264550520939166 Pruin, I., & Dünkel, F. (2015). Better in Europe? European responses to young adult offending. Barrow Cadbury Trust. Reeves, C. (Ed.). (2016). Experiencing imprisonment—Research on the experience of living and working in carceral institutions. Routledge. Robertson, O. (2007). The impact of parental imprisonment on children. Quaker United Nations Office. Rodrigues, A. M. (2002). Novo olhar sobre a questão penitenciária. Coimbra Editora. Romão, M. (2015). Prisão e Ciência Penitenciária em Portugal . Edições Almedina. Ruiz, A.C., Palma, M. O., y Vives, C. L. (2019). Jóvenes inmigrantes extutelados. El tránsito a la vida adulta de los menores extranjeros no acompañados en el caso español. Ehquidad. Revista Internacional de Políticas de Bienestar y Trabajo Social, 12, 31–52. https://doi.org/10.15257/ehquidad.2019.0009 Ryder, N. B. (1965). The cohort as a concept in the study of social change. American Sociological Review, 30, 843–861. Ryo, E. (2019). Understanding immigration detention: Causes, conditions, and consequences. Annual Review of Law and Social Science, 15, 97–115. Schmidt, E. P., Rap, S. E., & Liefaard, T. (2020). Young adults in the justice system: The interplay between scientific insights, legal reform and implementation in practice in the Netherlands. Youth Justice. https://doi.org/10. 1177/1473225419897316 Seymour, C. (1998). Children with parents in prison: Child welfare policy, program, and practice issues. Child Welfare LXXVII, 5, 469–493. Shichor, D., & Kobrin, S. (1978). Criminal behavior among the elderly. The Gerontologist, 18(2), 213–218. https://doi.org/10.1093/geront/18.2.213 Silva, R. A. (2019). Envelhecer e viver na prisão: as vivências prisionais de reclusos/as idoso/as (PhD dissertation). ICS, Universidade do Minho.

42

S. Gomes et al.

Skarupski, K. A., Gross, A., Schrack, J., Deal, J., & Eber, G. (2018). The health of America’s aging prison population. Epidemiologic Reviews, 40 (1), 157–165. Smoyer, A. B., Madera, J. E., & Blankenship, K. M. (2019). Older adults’ lived experience of incarceration. Journal of Offender Rehabilitation, 58(3), 220–239. Sparkes, A. C., & Day, J. (2016). Aging bodies and desistance from crime: Insights from the life stories of offenders. Journal of Aging Studies, 36 , 47– 58. Stevens, B. A., Shaw, R., Bewert, P., Salt, M., Alexander, R., & Gee, B. (2018). Systematic review of aged care interventions for older prisoners. Australasian Journal on Ageing, 37 (1), 34–42. Stoker, L. (2014). Reflections on the Study of Generations in Politics. The Forum, 12(3), 377–396. https://doi.org/10.1515/for-2014-5012. Stumpf, J. (2006). The crimmigration crisis: Immigrants, crime, and sovereign power. American University Law Review, 56 , 367–419. Sykes, G. (1958). The society of captives. Princeton University Press. Toch, H. (1975) Men in crisis: Human breakdowns in prison. Aldine. Toch, H. (1977). Living in prison: The ecology of survival . Free Press. Toch, H. (1992). Violent men: An inquiry into the psychology of violence. American Psychological Association. Tonry, M. (1994). Racial disproportion in US prisons. The British Journal of Criminology, 34, 97–115. Travis, J. (2005). But they all come back: Facing the challenges of prisoner reentry. Urban Institute Press. Turnbull, S. (2017). Immigration detention and punishment. Criminology and Criminal Justice. https://doi.org/10.1093/acrefore/9780190264079.013.231 Turnbull, S., & Hasselberg, I. (2017). From prison to detention: The carceral trajectories of foreign national prisoners in the United Kingdom. Punishment & Society, 19 (2), 135–154. Turner, M., & Peacock, M. (2016). Improving palliative care for prisoners: The ‘both sides of the fence’ study. Prison Service Journal, 224, 42–47. Ulmer, J. T., & Steffensmeier, D. J. (2014). The age and crime relationship: Social variation, social explanations. In K. Beaver, J. C. Barnes Brian, & B. Boutwell (Eds.), The nurture versus biosocial debate in criminology: On the origins of criminal behavior and criminality (pp. 377–396). Sage. https://doi. org/10.4135/9781483349114.n23 United Nations. (1981). Report to the general assembly on international youth year.

1 Incarceration and Generation …

43

United Nations. (1989). Convention on the rights of the child . http://www.oijj. org/en/docs/general/convention-on-the-rights-of-the-child Uprichard, E. (2008). Children as ‘being and becomings’: Children, childhood and temporality. Children & Society, 22, 303–313. https://doi.org/10.1111/ j.1099-0860.2007.00110.x Vaughn, M. S., & Collins, S. C. (2004). Medical malpractice in correctional facilities: State tort remedies for inappropriate and inadequate health care administered to prisoners. The Prison Journal, 84 (4), 505–534. Visher, C. A., & Travis, J. (2003). Transitions from prison to community: Understanding individual pathways. Annual Review of Sociology, 29, 89–113. Wacquant, L. (1999). ‘Suitable enemies’: Foreigners and immigrants in the prisons of Europe. Punishment & Society, 1(2), 215–223. Wacquant, L. (2000). As Prisões da Miséria. Celta Editora. Wacquant, L. (2009). Punishing the poor: The neoliberal governance of insecurity. Polity Press. Wahidin, A. (2011). Ageing behind bars with particular reference to older women prisoners in prison. Irish Probation Service, 8, 109–123. Warr, J. (2016). The prisoner: Inside and out. In Y. Jewkes, J. Bennett, & B. Crewe (Eds.), Handbook on prisons (pp. 586–604). Routledge. Watson, R., Stimpson, A., & Hostick, T. (2004). Prison health care: A review of the literature. International Journal of Nursing Studies, 41(2), 119–128. Webster, C., Simpson, D., MacDonald, R., Abbas, A., Cieslik, M., Shildrick, T., & Simpson, M. (2004). Poor transitions: Young adults and social exclusion. Policy Press. Western, B. (2006). Punishment and inequality in America. Russell Sage Foundation. Whisken, F. (1968). Delinquency and the aged. Journal of Geriatric Psychiatry, 1, 242–262. Windzio, M. (2006). Is there a deterrent effect of pains of imprisonment?: The impact of ‘social costs’ of first incarceration on the hazard rate of recidivism. Punishment & Society, 8(3), 341–364. Woodman, D. (2017). The sociology of generations and youth studies. In A. Furlong (Ed.), Routledge handbook of youth and young adulthood (pp. 20– 26). Routledge. Woodman, D., & Wyn, J. (2014) Youth and generation—Rethinking change and inequality in the lives of young people. Sage. Wyness, M. (2006). Childhood and society. Palgrave Macmillan. Zamble, E., & Porporino, F. J. (1988). Research in criminology. Coping, behavior, and adaptation in prison inmates. Springer-Verlag.

2 Generations of Penality: On Prison, Immigration Detention and Their Intersections Cristina Fernández-Bessa and José A. Brandariz

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Introduction: On Prison and Immigration Detention

Prisons and immigration detention facilities are currently the most relevant sites of punitive confinement. They are both crucial elements of the contemporary penal landscape, at least in global north countries and more precisely in Europe. However, salient differences separate these two custodial institutions. From a historical perspective, it is noteworthy that prisons are centuries-old penal devices, which began to have a continental reach in the late eighteenth century—if not before (Melossi & Both scholars have co-authored this chapter in its entirety. José A. Brandariz, though, has centred his efforts on drawing up sections 1 and 2. Cristina Fernández-Bessa, in turn, has led the elaboration of sections 3 and 4.

C. Fernández-Bessa (B) · J. A. Brandariz University of A Coruña, A Coruña, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 S. Gomes et al. (eds.), Incarceration and Generation, Volume I, Palgrave Studies in Prisons and Penology, https://doi.org/10.1007/978-3-030-82265-1_2

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Pavarini, 1977/2018; Rusche & Kirchheimer, 1939/2003). By contrast, immigration detention systems are a much more recent phenomenon. In fact, with very few exceptions like the Angel’s Island and Ellis Island facilities in the US (García Hernández, 2019; Silverman, 2010), global north jurisdictions did not have stable, far reaching immigration detention apparatuses only four decades ago (Bosworth & Turnbull, 2015; García Hernández, 2014; Leerkes & Broeders, 2010).1 The long consolidated status of penitentiary institutions has allowed them to have a global scope. Some tiny sovereign states aside, all countries have national prison systems (Walmsley, 2018). In stark contrast to this, immigration detention apparatuses are a much more localised phenomenon. Although this confinement practice is already cemented in global north jurisdictions and wealthy nations—from North America to Australasia—it still has a long way to go before actually being a global punitive device. Even middle income countries that are moderately affected by human mobility flows such as those of South America do not have proper national detention systems (Ceriani Cernadas, 2017; see also www.globaldetentionproject.org/regions-subregions/ame ricas; accessed 22 January 2021). These differences are further exacerbated as soon as legal and operational rationales are taken into account. Prisons are legally framed as a critical component of the institutional reaction to crime. Therefore, they are allegedly geared towards crime prevention purposes. Immigration detention facilities, in turn, have a less unambiguous character. They have garnered significant traction as crime prevention tools in many jurisdictions, for they have been increasingly used to confine sentenced foreign nationals and ultimately to tackle noncitizen offending (Bosworth, 2014, 2019; Campesi & Fabini, 2020; Fernández-Bessa, 2021; García Hernández, 2014). However, they do not formally have a criminal law nature (Di Molfetta & Brouwer, 2020; Turnbull, 2017; Zedner, 2016). Indeed, immigration detention sites are legally defined as instruments of human mobility management and border control. Consequently, they are administrative law institutions, which despite 1 Likewise, wide encompassing deportation practices are also a recent penal phenomenon (Anderson et al., 2013; Gibney, 2008).

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its striking diversity are largely aimed at preparing and enabling deportation operations (Aas, 2014; Cornelisse, 2010; Leerkes & Broeders, 2010). Evidently, this goal strips them of any rehabilitation purpose (Bosworth, 2012, 2019; Bosworth & Turnbull, 2015; Fernández-Bessa, 2021; Franko, 2020). Whilst prisons have long said to be prevailingly oriented towards reintegrating criminal offenders, immigration detention facilities do not aim to prepare detained noncitizens for re-entry, either in their country of residence or in their home country. Custodial conditions are an additional difference (Golash-Boza, 2015; Kaufman & Bosworth, 2013), although is far from evident that detention standards are globally better than prison standards. In fact, some scholars have claimed that living conditions in immigration detention are worse that in many prisons (Fernández-Bessa, 2021). Differences in terms of ‘pains of confinement’ are exacerbated in the few national cases allowing for unlimited detention (Griffiths, 2012; Leerkes & Kox, 2017; Turnbull & Hasselberg, 2017). In spite of all these conspicuous distinctions, prisons and immigration detention facilities are closely intertwined (Bosworth & Turnbull, 2015). A number of authors have convincingly claimed that immigration detention policies should be seriously considered in mapping out the current penal landscape (Barker, 2017; Bowling, 2013; García Hernández, 2014). More precisely, current explorations of state punitiveness ought to take into account detention and deportation practices, along with incarceration rates (Bosworth, 2017; Bosworth et al., 2018; Franko, 2020; Pickering et al., 2015). In elaborating these perspectives, the punishment and society literature has integrated immigration enforcement, and specifically immigration detention, within its descriptions of the carceral state (Beckett & Murakawa, 2012; see also Carvalho et al., 2020; Velloso, 2013). This chapter is aimed at exploring these links between imprisonment and immigration detention. In complementing the literature scrutinising their differences (see e.g. Bosworth, 2014; Leerkes & Broeders, 2010), this contribution delves into the sometimes underexplored connections between confinement practices targeting penal offenders and those targeting undesired noncitizens, by comparatively analysing immigration

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detention and prison in different European jurisdictions.2 Arguably, the nexus between these two state control sub-systems is more relevant today than ever before. What is more, this nexus might be signalling a ‘generational’ transition, in which the emergence of immigration enforcement practices such as immigration detention is significantly transforming the prison scenario. In examining this ‘generational’ hypothesis, this chapter proceeds as follows. Initially, it will scrutinise the so-called ‘laboratory’ thesis highlighting that the gradual consolidation of widespread immigration enforcement systems is notably shifting prison practices and the prison system itself, by ushering in new punitive rationales and novel ways of managing unwanted and criminalised populations. Subsequently, it will explore theoretical claims stressing that a burgeoning immigration enforcement apparatus is paving the way for the prison decline recently witnessed in many global north jurisdictions. Finally, the closing section addresses a number of conclusions on the actual configuration of the relationship between prison and immigration detention in contemporary Europe.

2

Immigration Detention as a Testing Ground for New Penal Rationales

The first dimension in which the increasing traction garnered by immigration enforcement devices, and more precisely immigration detention may be opening a sort of ‘generational’ transition in the penal field has to do with punitive rationales. A number of scholars have warned that immigration enforcement policies are being used to test novel penal arrangements that might be subsequently utilised in other criminal justice arenas. This thesis has been elaborated by Alessandro De Giorgi 2 Specifically, data have been largely retrieved from databases of the European Union (Eurostat), the Council of Europe (SPACE 1 report: http://www.wp.unil.ch/space/space-i/annualreports/; accessed 19 January 2021), the US Department of Homeland Security—hereinafter, DHS—(DHS. Immigration statistics:http://www.dhs.gov/immigration-statistics/enforc ement-actions; accessed 9 November 2020), the UNODC (UNODC. Prison data: http:// www.dataunodc.un.org/data/prison/persons%20held%20total; accessed 18 January 2021) and the Global Detention Project—hereinafter GDP—(http://www.globaldetentionproject.org/reg ions-subregions/europe; accessed 13 January 2021).

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(2006, p. 117; 2015, p. 14), but has been embraced by other law, criminology and philosophy scholars as well (Guild, 2009; Koulish, 2010; Mosconi, 2005; see also Agamben in Bauman, 2007). In this perspective, bordered penality (Aas., 2014; Franko., 2020) operates as a testing ground to rehearse new penal techniques, e.g. risk management schemes (Koulish, 2010). Still, the critical point here is referred to rights and rights-based penal arrangements. This ‘laboratory’ thesis claims that illiberal penal practices are being tested on noncitizen groups to enable its eventual deployment on rights-bearing citizens (De Giorgi, 2015). Thus, these contributions underline a pivotal aspect of crimmigration arrangements that has been widely stressed by the extant literature, that is, its legally deformalised, and consequently ‘asymmetrical’ nature (Legomsky, 2007). Being administrative law measures, deportation and immigration detention may be enforced without abiding by the various safeguards protecting the legal status of criminal law defendants and sentenced individuals (Bowling & Westenra, 2020; Eagly, 2010; García Hernández, 2013; Monclús, 2008). Since immigration enforcement tools began to spread across European jurisdictions in the 1990s and 2000s, there are already enough evidences to assess this ‘laboratory’ thesis. A growing border criminology literature seems to partly agree with this thesis in pointing out that the increasingly pivotal role played by noncitizen individuals in the penal field has led to the gradual consolidation of novel forms of criminal justice (Barker, 2017; Bosworth et al., 2018; Bowling & Westenra, 2020). Katja Franko (Aas, 2014, pp. 521, 529; Franko, 2020, pp. 18, 168–176) has tellingly described these innovative schemes as manifestations of ‘abnornal justice’. The quintessential traits of this new punitive model are related to penal goals. This border criminology perspective argues that, at least in certain European criminal justice systems, criminalised citizens are largely treated according to penal welfarism schemes aiming to ensure the reintegration of imprisoned offenders. Unlike these ‘privileged’ groups, criminalised noncitizen individuals are targeted by punitive practices that largely disregard prisoners’ rights and abandon rehabilitation efforts (Aas, 2014; Barker, 2017, 2018; Bosworth et al., 2018; Franko, 2020). Ultimately, this increasingly entrenched gap

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leads to implement penal arrangements that exclusively target noncitizen prison populations. One conspicuous instantiation of this trend is the apartheid-like alternative used in some European jurisdictions, which leads to create all-foreign prison facilities and prison wings, in which these noncitizen groups are treated according to specifically targeted measures (Kaufman, 2015; Pakes & Holt, 2017; Ugelvik, 2015; Ugelvik & Damsa, 2018). The main determinant of these abnormal justice practices is the preference given to mobility control interests over crime prevention purposes, that is, over regular punishment practices. This preference leads deportation measures to take centre stage in the legal reaction to crimes perpetrated by foreign nationals (Gundhus, 2020). More precisely, it conditions every step of criminal adjudication and sentencing procedures, and moulds the prison system itself (Eagly, 2010; García-España, 2018). Border criminology authors scrutinising abnormal justice models usually focus their analytical gaze on Northern European systems, unveiling the contours of what might be called the ‘Northern (penal) state’ (Aas, 2013; Barker, 2018; Franko, 2020). Evidently, the extent to which the development of specific criminalisation policies targeting noncitizens has given shape to novel, distinct criminal justice rationales varies from one jurisdiction to another. This phenomenon crucially depends on the resilience of long-standing penal welfarism schemes and penal rehabilitation goals. Therefore, it is unsurprising that outside Northern Europe the distinction of various penality models within the carceral state and national prison systems is not as straightforward and unambiguous as it is in the septentrional regions of the continent. In Southern Europe, for instance, penitentiary systems have long side-lined their former penal welfarism aspirations, in favour of punishmentoriented, exclusive prisons practices affecting both native prisoners and foreign national prisoners.3 What is more, in meridional EU jurisdictions enemy penology policies and abnormal forms of criminal justice have not prevailingly targeted noncitizen groups, but citizens involved in

3 In fact, two of the top five Council of Europe member states in terms of average length of imprisonment in 2018 were Southern European countries, i.e. Portugal (31.7 months) and Spain (20.6 months) (Source: Aebi & Tiago, 2020).

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old-fashioned criminal phenomena such as political violence and organised crime (Brandariz, 2018; Colmenero-Ferreiro & Brandariz, 2019), in contrast to what is occurring, e.g. in Norway (Franko, 2020). In any case, the ‘laboratory’ hypothesis cannot be confirmed in either ‘Northern state’ or ‘Southern state’ jurisdictions. Some decades after its emergence in the European penality landscape, immigration enforcement policies and immigration detention practices have not managed to functionally transform the penal field in its entirety. In Northern states they have configured a new bordered penality sub-field which is separated from that of regular, citizen-focused penality. In Southern states bordered penality is also gaining traction, but punitive arrangements have long left behind penal welfarism rationales for reasons unrelated to the increasingly significant part played by noncitizens within the criminal justice system. In Eastern European jurisdictions, in turn, the scale of immigration enforcement practices is largely not sizeable enough to have triggered a prominent shift. Having said that, a certain generational change is under way in the continental penal field, albeit with significant cross-national variations. As is illustrated by Table 1, foreign national prisoners accounted for more than 25% of the prison population in thirteen, mainly Western European Union (EU) and European Free Trade Agreement (hereinafter, EFTA) jurisdictions in 2019.4 In addition, noncitizens represented more than 25% of the arrested and cautioned individuals at least in eleven European jurisdictions in 2018. Concerning immigration enforcement measures, thirteen European countries detained more than 3,000 immigrants and asylum seekers per year (on average) over the last decade (see also Majcher et al., 2020a), thereby creating a wide encompassing confinement apparatus to be added to the prison system. Furthermore, thirteen EU and EFTA jurisdictions deported more than 3,000 noncitizens per year (on average) from 2010 to 2019. In sum, it is evident that the widespread criminalisation of noncitizen residents has significantly altered state control policies in Europe in the last few decades. Although this shift has not led to transform ordinary 4

This list also includes the Czech Republic, Finland, France, Iceland, the Netherlands, Portugal, and Slovenia when only the prison on remand population is considered (Source: Aebi & Tiago, 2020).

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Table 1 National criminal justice systems and immigration enforcement systems dealing with significant contingents of noncitizens Countries Countries detaining more deporting more Countries with Countries with than 3,000 than 3,000 more than 25% more than 25% noncitizens per noncitizens per of noncitizen of noncitizen year (on average, year (on average, prisoners in 2019 arrestees in 2018 2010–2019) 2010–2019) Austria, Belgium, Cyprus, Denmark, Germany, Greece, Italy, Liechtenstein, Luxembourg, Malta, Norway, Spain, Switzerland

Austria, Belgium, Denmark, Germany, Greece, Iceland, Italy, Liechtenstein, Luxembourg, Spain, Switzerland

Austria, Belgium, Bulgaria, France, Germany, Greece, Hungary, Italy, Norway, Spain, Sweden, Switzerland, the UK

Austria, Belgium, France, Germany, Greece, Hungary, Italy, Norway, the Netherlands, Poland, Spain, Sweden, the UK

Sources Aebi and Tiago (2020); Eurostat. Crime and criminal justice data (ec. europa.eu/eurostat/web/crime/data/database; accessed 13 January 2021); GDP; Eurostat. Asylum and managed migration data (ec.europa.eu/eurostat/web/asy lum-and-managed-migration/data/database; accessed 18 January 2021)

penality in line with border control rationales, it has had an impact of utmost importance on the criminal justice system, and more generally on public policies aimed at managing deviant and undesired populations. Currently, membership (i.e. citizenship) is a powerful discriminant profoundly conditioning any criminal justice decision, from policing activities to prison treatment, and including every sort of judicial ruling (Barker, 2013; Bosworth, 2017, 2019; Bosworth & Guild, 2008; GarcíaEspaña, 2018; Gundhus & Jansen, 2020). Moreover, the consolidation of a parallel state coercion apparatus to be added to the penal system has allowed criminal justice agencies and officers to take stock of a ‘double track’ scheme, in which troubling noncitizen populations can be channelled into the immigration enforcement system, circumventing traditional criminal justice procedures (Aliverti, 2020; Franko, 2020; Gundhus, 2020), in a manifestation of what David Sklansky (2012, p. 161) called ‘ad-hoc instrumentalism’. In Europe, this has finally created a ‘bifurcated’ penal field (Turnbull & Hasselberg, 2017; Ugelvik & Damsa, 2018; Weber, 2015), in which resources offered by two alternative state control sub-systems can be combined in various ways to

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coercively manage criminalised noncitizens. The ‘regular’ penal system is still the exclusive toolkit to be used in tackling crimes perpetrated by citizen offenders, by combining a variety of punishment, deterrence, and rehabilitation goals. By contrast, a wider array of legal measures is available to handle unwanted noncitizen groups, and they tend to be articulated with a view to enable the expeditious enforcement of a deportation order. At least in this sense, a ‘generational’ transition is at play in European penality. Concerning confinement institutions, European countries have cemented a second custodial system along the prison estate. Although the respective purposes and rationales of these two confinement apparatuses are still clearly differentiated, there are many links among them, which will be further explored in the concluding section. Before that, an additional thesis on the interaction between immigration enforcement and the prison field should be scrutinised. The extant literature has highlighted that the immigration enforcement system is shifting the contours of state punitiveness, by facilitating the prison downsizing witnessed in a wide number of global north jurisdictions in the last decade. This point is addressed in the coming section.

3

Immigration Enforcement and the Changing Contours of State Punitiveness

The ‘generational’ transition setting a nexus between immigration enforcement and the long-standing prison apparatus may be approached from an additional perspective. A fine-grained exploration of the current penal landscape should consider immigration enforcement practices together with more traditional punitive arrangements revolving around the prison system. The carceral state actually encompasses both state coercion arenas. Indeed, this bifurcated scheme, in which membership is a critical determinant of the state control resources utilised to manage troublemaking populations, may be opening a new ‘transitional’ scenario leading immigration control policies to supplement and even supersede

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regular penality practices. This new penal assemblage would be entirely reasonable. Since the ‘double-track’ system allows state control agencies to tap into various legal procedures to tackle unwanted noncitizen groups, it is understandable that they may choose to give preference to expeditious control instruments, i.e. immigration control resources. The end point of this punitive strategy might be a penal field in which border control practices take centre stage to the detriment of regular criminal adjudication and sentencing procedures. Some authors have already stressed that a similar transition may be under way in various jurisdictions. In scrutinising the prison downsizing that has affected a number of global north criminal justice systems since the late 2000s, several scholars have pointed their attention to mobility control policies, claiming that the increasing scope of immigration enforcement practices such as detention and deportation may be enabling that prison decline, in what may be called a ‘transcarceration’ thesis (De Giorgi, 2015; Platt, 2015; see also Cheliotis & Xenakis, 2020; Dünkel, 2017; Xenakis & Cheliotis, 2019). Additionally, in examining current penality in Scandinavia Vanessa Barker (2018, pp. 98–99) has argued that the burgeoning scale of bordered penality is challenging the pivotal role played by the prison system in these Nordic jurisdictions, not only in qualitative terms but also in quantitative terms. Consequently, Sweden might be seen as a pioneer national case in which immigration enforcement is actually overshadowing regular penal practices. This shift may be corroborated, e.g. by confirming that the immigration detention apparatus is currently confining more individuals than the prison system itself. In exploring the first claim, it should be recognised that the penal climate is apparently changing across many jurisdictions (Brown, 2018; Karstedt et al., 2019). As is shown in Table 2, Incarceration rates declined by more than 15% from 2008 to 2019 in a significant number of European criminal justice systems such as those of Bulgaria, Croatia, Cyprus, Estonia, Finland, Germany, Latvia, Luxembourg, the Netherlands, Romania, Spain, and Sweden. This prison downsizing has had an especially salient impact on countries formerly pertaining to the Soviet bloc, since incarceration rates dwindled by more than 25% in Belarus, Georgia, Kazakhstan, and Russia, and by more than 50% in Ukraine

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Table 2 Jurisdictions experiencing a remarkable decline in incarceration rates from the late 2000s to the late 2010s European Union

Eurasia

Bulgaria, Croatia, Cyprus, Estonia, Finland, Germany, Latvia, Luxembourg, the Netherlands, Romania, Spain, Sweden

Belarus, Georgia, Kazakhstan, Russia, Ukraine

Other OECD jurisdictions Chile, Israel, Japan, Mexico, USA

Sources Aebi and Tiago (2018, 2020); UNODC. Prison data; Bureau of Justice Statistics. Correctional populations; www.bjs.gov/index.cfm?ty=tp&tid=1; accessed 19 January 2021

from 2008 to 2018 (see also Dünkel, 2017; Slade, 2017). In addition, prison population rates plummeted by more than 20% in other OECD nations such as Chile (Wilenmann, 2020), Israel, Japan, and Mexico over the same eleven-year period. Arguably, the US prison system is the most well-known and revealing case of this prison decline, not least because it has been widely recognised as a quintessential manifestation of mass incarceration. Bringing to an end an ominous decades-long period featuring skyrocketing prison and noncustodial penal populations, the US incarceration rate dwindled by 15.0% from 2007 to 2018 (from 765 to 650 prisoners per 100,000 population). Against the backdrop of what Christopher Seeds (2017, p. 593) has named a ‘late mass incarceration scenario’, state prison population rates declined by more than 30% in eleven US states over the same period (see Brown, 2018; Karstedt et al., 2019; Platt, 2018). In short, custodial penality is reducing its scope in a significant number of countries and world regions. This new penal landscape invites to reflect upon the part played by an apparently expanding immigration enforcement system in enabling such a penal shift. The ‘transcarceration’ thesis appears to be promising with regard to the US case. In fact, both the annual number of deported noncitizens and especially that of immigration detainees significantly mounted from the mid-2000s to the early 2010s (by 53.9% from 2006 to 2013 and by 80.8% from 2006 to 2012, respectively; source: DHS. Immigration statistics) (Gottschalk, 2015; Kanstroom, 2012; Macías-Rojas, 2016). However, this upward

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trend changed course some years ago (Platt, 2018; see also Brandariz, 2021a). The number of deported individuals has not surpassed its 2013 peak so far, and that of detained noncitizens only overcome early 2010s levels in 2019 (source: DHS. Immigration statistics). European data provide further evidence to call into question the thesis according to which the expansion of bordered penality is driving the current prison downsizing. It has been already pointed out that the decline in the number of prisoners has particularly affected Eastern European nations, especially Baltic countries, i.e. Estonia, Latvia.5 Interestingly, Eastern EU jurisdictions have tiny immigration enforcement systems, with very few partial exceptions (e.g. Poland). In fact, not a single one of the six Eastern EU nations witnessing a conspicuous prison decline (i.e. Bulgaria, Croatia, Cyprus, Estonia, Latvia, and Romania) have enforced more than 3,000 deportations per year over the analysed twelve-year time lapse (2008–2019; source: Eurostat. Asylum and managed migration data). Certainly, in some of these jurisdictions such as Estonia and Latvia the number of enforced deportations has mounted in recent years, but it is still too small to have had a real impact on the prison field.6 The immigration detention system is also relatively tiny in these Eastern countries. The vast majority of these jurisdictions have a small immigration detention estate that confines less than 1,000 noncitizens per year (sources: GDP; Majcher et al., 2020c, 2020d, 2020e).7 The immigration enforcement scenario is markedly different in the Western and Northern European countries notably impacted by the recent prison downsizing. In almost all of them the average annual number of deportations enforced from 2008 to 2019 is actually considerable, that is, more than 25,000 in the case of Germany, more than 5 Both Estonia and Latvia have seen their incarceration rates dwindle by more than 30 per cent from 2008 to 2019 (Sources: Aebi & Tiago, 2018, 2020). 6 Estonia and Latvia have respectively averaged 475 and 1,173 deportations per year from 2008 to 2019 (Source: Eurostat. Asylum and managed migration data). 7 The only national exception is Bulgaria. The Bulgarian border control system apparently reacted to the so-called ‘migration crisis’ of the mid-2010s (Siegel & Nagy, 2018) by significantly expanding the scope of its immigration detention apparatus. Still, the number of detained noncitizens seems to have remarkably declined in the last few years (Sources: GDP; Majcher et al., 2020d).

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15,000 in that of Spain, around 10,000 in the Netherlands and Sweden, and more than 3,000 in Finland (source: Eurostat. Asylum and managed migration data).8 However, deportation changes in those countries seem to be unrelated to the prison system. In Sweden and especially in Spain the number of enforced deportations was noticeably higher in the early 2010s than in the last half of the previous decade.9 Finland and Germany have followed the opposite path.10 However, in both national cases the main force driving the relative expansion of the deportation system is the remarkable number of asylum seekers received in the mid-2010s (see European Parliament data; www.europarl.europa.eu/infographic/wel coming-europe/index_en.html#filter=2019; accessed 18 January 2021), a significant number of whom were eventually turned into irregular immigrants after having failed to obtain international protection. Immigration detention data further confirm that the prison system and the immigration enforcement apparatus have evolved in unrelated ways in these European jurisdictions. Although the aforementioned six Western and Northern EU states have all witnessed a significant prison downsizing since the late 2010s, their national immigration detention systems differ greatly. Spain has a relatively sizeable detention apparatus, which on average confined a bit more than 10,000 noncitizens per year from 2009 to 2018 (source: GDP; see also Majcher et al., 2020e). Germany, the Netherlands, and Sweden has mid-size immigration detention estates, which confined around 4,500 immigrants per year in the case of Germany and the Netherlands and some 3,400 per year in that of Sweden over the same period (Majcher et al., 2020f, 2020g). By 8 Luxembourg is the only exception in this regard, for reasons related to the relatively small size of both its resident population and its state control systems. Luxembourg averaged 445 enforced deportations per year from 2009 to 2019 (Source: Eurostat. Asylum and managed migration data). 9 The average number of deportations enforced per year in Sweden from 2008 to 2013 was 13,261, subsequently dwindling to 9,830 from 2014 to 2019. In the Spanish case the decline was even more marked, diminishing from 23,351 deportations annually enforced from 2008 to 2013 to 12,394 from 2014 to 2019 (Source: Eurostat. Asylum and managed migration data). 10 In Germany, on average 14,533 individuals were forcefully returned per year from 2008 to 2013, whilst that indicator soared to 43,436 deportations annually enforced from 2014 to 2019. Finland shows a less marked upward trend, from 2,337 deportations annually carried out in the first half of this period (2008–2013) to 3,890 in the second half (2014–2019) (Source: Eurostat. Asylum and managed migration data).

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contrast, in both Luxembourg and—more surprisingly—Finland immigration detention practices are hardly relevant, for neither of these two countries annually detained (on average) more than 700 noncitizens over the last decade (Majcher et al., 2020f, 2020g). What is more, whilst all these six countries share a common downward trend in their prison populations, immigration detention changes significantly differ from one country to the next. The number of immigration detainees was markedly on the rise in Luxembourg, and especially in Finland and Sweden from 2009 to 2018 (source: GDP; see also Majcher et al., 2020f, 2020g). By contrast, Germany, the Netherlands, and Spain witnessed a marked decline of both their prison populations and their immigration detention populations over the last decade (Majcher et al., 2020e, 2020g). In sum, these data confirm that immigration enforcement policies are not generally playing a significant part in enabling the current downward trend in the prison field. Changes in both segments of this bifurcated law enforcement system are largely unrelated. This conclusion lays the groundwork to explore the second aforementioned thesis, according to which an apparently burgeoning immigration enforcement system is outnumbering the prison field (Barker, 2018). That is not the case in the US, despite the unparalleled scale of its border control apparatus. As is illustrated in Table 3, in the US the average size of its prison population multiplies by six the average number of noncitizens deported per year and that of immigrants annually admitted into immigration detention facilities. In the EU, this gap is also evident, albeit narrower. In the framework of a constant decline, on average 617,546 individuals were annually imprisoned (stock) inside EU correctional facilities from 2009 to 2019,11 and 770,036 individuals were admitted per year in the EU prison estate (flow) from 2008 to 2018.12 By contrast, EU jurisdictions on average carried out 216,035 deportations per year from 2009 to 2018. As far as the immigration detention system is concerned, EU countries have annually confined around 160,000 noncitizens in recent years, slightly more than in the first half of the 2010s (see also Majcher 11

Stock data in 2017 and flow data in 2016 are missing in these SPACE I annual reports. These prison admission data are slightly underestimated because certain national data are missing in specific years. 12

2.221 million (2008–2018) 617,546 (2009–2019)

– 770,036 (2008–2018)

Prison admissions per year (average) 367,108 (2008–2018) 216,035 (2009–2018)

Deportations per year (average)

386,594 (2008–2018) ≈ 160,000 (2015–2019)

Immigration detention population (annual average)

Sources Bureau of Justice Statistics. Correctional populations; DHS. Immigration statistics; Council of Europe. SPACE I; Eurostat. Asylum and managed migration data; GDP

US EU

Prison population (annual average)

Table 3 Comparing the scale of the prison system and the immigration enforcement system

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et al., 2020a).13 Significantly, around two thirds of these immigration detainees are under custody in just three European countries, i.e. France, Greece, and the UK. Consequently, the prison system still remarkably outnumbers the immigration enforcement system, both in terms of immigration detention and deportation. Very few outlying cases differ from this pattern. Greece is the only EU country in which the number of admissions into immigration detention facilities has clearly surpassed that of prison entries in recent years (sources: Council of Europe. SPACE I; GDP; see also Cheliotis & Xenakis, 2020; Majcher et al., 2020e). In the aftermath of the so-called ‘migration crisis’, Bulgaria joined this list for some time in the mid- to late 2010s (Majcher et al., 2020d). In addition, a top EU country in terms of immigration detention such as France has had a number of immigration detainees that is slightly higher than the half of the number of prison admissions from 2014 to 2018 (sources: Council of Europe. SPACE I; GDP). In the rest of EU and EFTA nations prison entries grossly outnumber admissions into immigration detention facilities. Paradoxically, Sweden is no exception to this trend. However, it is certainly true that in Sweden the number of entries into detention facilities was roughly 50% of that of prison admissions in 2017 and 2018. Additionally, the annual number of deportations enforced in Sweden has surpassed that of prison admissions in the last few years (source: Eurostat. Asylum and managed migration data; Aebi & Tiago, 2018, 2020; see also Barker, 2018). Again, Greece is the only other European country in which deportations have been recently outnumbering prison admissions. These data show that the increasing consolidation of a bifurcated penality is giving shape to a diverse and heterogonous penal landscape. Prison systems are shrinking in many jurisdictions, but not in others. Exceptions to this prison decline do not only involve certain OECD countries such as Australia and Portugal (sources: Aebi & Tiago, 2020; UNODC. Prison data), but also wide continental areas such as South America (Iturralde, 2019; Sozzo, 2017, 2018). The immigration enforcement sub-field, in turn, is generally gaining momentum and amplifying 13

A more precise estimation is currently unfeasible, for GDP data do not provide information on a number of national immigration detention systems.

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its scope. However, the data presented above reveal that this rising trend is neither playing a vital role in facilitating prison downsizing nor is still overshadowing the prison system, which retains its role as centre of gravity of state coercion practices. In addition, the immigration enforcement apparatus is not expanding everywhere. Along many already mentioned national cases in which immigration enforcement policies are actually garnering traction, there are jurisdictions in which the opposite is true (Table 4). Considering only European cases, the available GDP data reveal that the number of immigration detainees has consistently risen in countries such as Bulgaria, Latvia, Luxembourg, and Sweden from 2009 to 2018 (Majcher et al., 2020c, 2020d, 2020f, 2020g). Still, immigration detention systems have conspicuously shrunk in Germany, Ireland, the Netherlands, Slovakia, and Spain since the late 2000s (Majcher et al., 2020e, 2020g, 2020g, 2020h, 2020i). Regarding forced repatriation activities, the number of enforced deportations has significantly escalated in a number of Eastern European countries, as well as in Finland, Germany, and Luxembourg from 2008 to 2019. By contrast, it has manifestly dwindled in Cyprus, Greece, Portugal, Spain, and the UK over the same period. Against the backdrop of this varied penal landscape, the gradual bifurcation of the penal field has actually given birth to a sort of transition, which could be metaphorically labelled as a ‘generational’ transition. The contours and texture of this transition, in which immigration detention Table 4 Immigration enforcement changes from the late 2000s to the late 2010s Immigration Immigration detention on the detention on the Deportation on Deportation on rise decline the rise the decline Bulgaria, Latvia, Luxembourg, Sweden

Germany, Ireland, the Netherlands, Slovakia, Spain

Estonia, Finland, Germany, Latvia, Lithuania, Luxembourg, Poland

Sources GDP; Eurostat. Asylum and managed migration data

Cyprus, Greece, Portugal, Spain, the UK

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is not superseding prison practices but is being interwoven with them in various ways, will be explored in the concluding section.

4

Transition, What Transition?

Any claim pointing out that a ‘generational’ transition is under way in the penal field risks being overstated and misleading. Various authors have insightfully warned against the so-called ‘criminologies of catastrophe’ that all too quickly single out new stages in penal evolution (Hutchinson, 2006; O’Malley, 2000; see also Zedner, 2002). In contrast to any epochal narrative, the state control apparatus should be understood as a field characterised by the agonistic coexistence of different actors, rationales, and agendas (Goodman et al., 2015, 2017). Nonetheless, the gradual development of a law enforcement subsystem focused on coercively managing unwanted noncitizen populations has actually brought about far reaching penology changes. In line with what has been pointed out in this chapter, there is no point in seeing emerging punitive arrangements as a new penal layer piling on and replacing former policies (Rubin, 2016). Yet, a perspective analysing state coercion apparatuses as autonomous and unrelated sub-systems that pursue different goals—i.e. crime prevention and border control—would be also deceiving. Bringing these reflections to the nexus between prison and immigration detention, it ought to be acknowledged that these custodial institutions are intensively—and arguably increasingly—interrelated. This conclusion is not by any means new. It is one of the lessons to be drawn from the already cemented crimmigration thesis (García Hernández, 2013, 2018; Stumpf, 2006, 2013, 2015). This theory convincingly argues that two formerly separated legal branches such as criminal law and immigration law are being fused together, giving birth to a new crimmigration legal order (Stumpf, 2006, 2020; see also Legomsky, 2007; Sklansky, 2012). In this framework, criminal law is being differentiated according to membership criteria and immigration law is being called to perform crime prevention tasks. Specifically, deportation orders are being turned into the prevailing legal resource to tackle crimes and anti-social

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behaviours carried out by noncitizens. This shift is having a significant impact on an immigration law enforcement field characterised by a socalled ‘deportation gap’ (Ellermann, 2009; Gibney, 2008; Rosenberger & Küffner, 2016) that is affecting almost all European nations, with very few exceptions.14 In line with what the US DHS decided in the early 2010s (see Morton, 2011), a variety of EU jurisdictions are treating deportations as scarce resources whose utilisation should be organised according to a hierarchy of priorities. This is leading crime-based deportations to take centre stage in many national migration enforcement systems (Brandariz, 2021b). These changes are notably altering the nature and functions of both the prison field and the immigration detention apparatus, as well as their mutual interactions. Prison facilities in many European nations operate as ad hoc immigration detention facilities, since they are also used to prepare deportations (Beckett & Murakawa, 2012; Bosworth, 2019; Kaufman, 2013, 2015). Conversely, the increasing preference given to crime-based deportations is adding crime prevention as one of the various tasks to be carried out by immigration detention (FernándezBessa, 2021). A confinement institution that has long targeted undocumented noncitizens is increasingly detaining foreign national offenders awaiting to be deported for crime-related reasons (Fernández-Bessa, 2021). This prison-to-immigration detention pipeline sometimes brings sentenced noncitizens into detention facilities after their prison time has been served. In other cases, they are targeted by early release schemes to be immediately funnelled into detention and deportation procedures. In some other times, state officials bypass criminal justice procedures altogether and rely on immigration law enforcement tools to manage suspected noncitizen offenders (Aliverti, 2020; Campesi & Fabini, 2020; Sklansky, 2012). This last scheme seems to be destined to gain momentum in the coming future, since criminal justice agencies are not only allowed to tap into a ‘double track’ system but are also somehow pressured to give preference to immigration enforcement instruments for efficiency reasons (Aas, 2014; Franko, 2020; Gundhus, 2020). 14

Eurostat data show that the only European jurisdictions enforcing the vast majority of issued deportation orders are the UK, Poland, and the three Baltic nations—for different reasons.

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The crimmigration changes we have been witnessing across Europe and elsewhere are not bringing more homogeneity to the immigration detention field. The Migreurop consortium has long documented the marked diversity of migration detention across the continent (Migreurop, 2017) and the GDP has significantly supplemented this effort in recent years (see www.globaldetentionproject.org/detention-cen tres/list-view; accessed 22 January 2021). Both groups have laid bare that the European immigration enforcement system keeps in custody different groups, from undocumented immigrants to asylum seekers with pending procedures, ‘failed’ asylum seekers and noncitizen offenders (Fernández-Bessa, 2021; Turnbull & Hasselberg, 2017), who are all awaiting an eventual, more or less distant and more or less feasible deportation. This heterogeneity is mirrored by the various types of detention facilities, which impose divergent levels of security (Leerkes & Broeders, 2010). Moreover, some facilities are specialised in ‘hosting’ recently arrived individuals (Majcher et al., 2020e), whilst others target asylum seekers and some others are geared towards preparing the apparently immediate deportation of undocumented residents. Detention time limits also vary widely, from 2 months in Portugal and Spain to unlimited time in Ireland and the UK (Majcher et al., 2020b). In addition, both GDP and Migreurop data show that immigration detention models vary greatly across jurisdictions, with Western European countries having more developed—and generally more varied—detention systems than Eastern EU nations. These systems also change across time, with new arrangements replacing former models, which is reflected by the abrupt upward and downward trends in detention practices in certain jurisdictions. Not so long ago, jailing noncitizens inside prison facilities for immigration enforcement purposes was a solution adopted by a number of EU countries (Bosworth, 2019; Campesi, 2013; van Kalmthout et al., 2007), which has become increasingly exceptional over time.

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Conclusion

The unstable and significantly diverse scenario scrutinised in this chapter precludes any one-dimensional characterisation of the European law enforcement landscape. Furthermore, it suggests that the nexus between prison and immigration detention is changing and can be expected to be further modified in the foreseeable future. At least to a certain extent, this changing and heterogeneous framework is intriguing. Immigration issues have been intensively Europeanised since the Treaty of Amsterdam came into force in 1999. From then on, the European Commission has been championing a wide array of harmonisation efforts aimed at setting common standards in the field of immigration detention across EU member states. Some initiatives have had evident consequences, such as the Return Directive (Directive 2008/115/EC of 16 December 2008). However, extra-legal factors such as the so-called ‘migration crisis’ of the mid-2010s (Majcher et al., 2020b, 2020j) are frequently the main drivers of immigration enforcement changes, which tend to be more reactive than proactive. Moreover, asylum, immigration management, and immigration enforcement are deeply political issues in which national interests rank high, making them partly impervious to supranational standardisation impulses. Therefore, the partial failure of harmonisation policies—which is especially evident in the field of asylum—should be seen as a direct consequence of the agonistic, multi-scalar governance of border policies across Europe (Brandariz & Fernández-Bessa, 2020; Laine, 2016; Moffette, 2018; Wonders, 2017). In short, the prison-immigration detention nexus is too fluid and multi-faceted to allow us making a number of lasting conclusions. However, this nexus is signalling a ‘generational’ transition in penality in many global north countries. Only three decades after the emergence of immigration detention in Western European nations, its continent-wide consolidation is a critical component of the bifurcated penality currently spreading across Europe. Given their vital importance in the political field, immigration control interests will mould criminalisation practices targeting noncitizens for years to come. In this framework, the changing combinations of the prison system and the immigration enforcement

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apparatus will be an arguably long-lived, pivotal element of the emerging field of bordered penality.

References Aas, K. F. (2013). The ordered and the bordered society: Migration control, citizenship, and the Northern Penal State. In K. F. Aas & M. Bosworth (Eds.), The borders of punishment: Migration, citizenship, and social exclusion (pp. 21–39). Oxford University Press. Aas, K. F. (2014). Bordered penality: Precarious membership and abnormal justice. Punishment & Society, 16 (5), 520–541. Aebi, M. F., & Tiago, M. M. (2018). SPACE I—2018—Council of Europe Annual Penal Statistics: Prison populations. Strasbourg: Council of Europe. Available from wp.unil.ch/space/files/2019/06/FinalReportSPAC EI2018_190611-1.pdf. Accessed 25 January 2020. Aebi, M. F., & Tiago, M. M. (2020). SPACE I—2019—Council of Europe Annual Penal Statistics: Prison populations. Strasbourg: Council of Europe. Available from wp.unil.ch/space/files/2020/04/200405_FinalR eport_SPACE_I_2019.pdf. Accessed 25 January 2020. Aliverti, A. (2020). Patrolling the ‘thin blue line’ in a world in motion: An exploration of the crime-migration nexus in UK policing. Theoretical Criminology, 24 (1), 8–27. Anderson, B., Gibney, M. J., & Paoletti, E. (2013). Introduction. In B. Anderson, M. J. Gibney, & E. Paoletti (Eds.), The social, political, and historical contours of deportation (pp. 1–7). Springer. Barker, V. (2013). Democracy and deportation: Why membership matters most. In K. F. Aas & M. Bosworth (Eds.), The borders of punishment: Migration, citizenship, and social exclusion (pp. 237–254). Oxford University Press. Barker, V. (2017). Penal Power at the border: Realigning state and nation. Theoretical Criminology, 21(4), 441–457. Barker, V. (2018). Nordic Nationalism and penal power: Walling the welfare state. Routledge. Bauman, Z. (2007). Archipelago of exceptions. Sovereignties of extraterritoriality. CCCB.

2 Generations of Penality …

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Beckett, K., & Murakawa, N. (2012). Mapping the shadow carceral state: Toward an institutionally capacious approach to punishment. Theoretical Criminology, 16 (2), 221–244. Bosworth, M. (2012). Subjectivity and identity in detention: Punishment and society in a global age. Theoretical Criminology, 16 (2), 123–140. Bosworth, M. (2014). Inside immigration detention. Oxford University Press. Bosworth, M. (2017). Border Criminology and the changing nature of penal power. In A. Liebling, S. Maruna, & L. McAra (Eds.), Oxford handbook of criminology (pp. 373–390). Oxford University Press. Bosworth, M. (2019). Immigration detention, punishment and the transformation of justice. Social and Legal Studies, 28(1), 81–99. Bosworth, M., Franko, K., & Pickering, S. (2018). Punishment, globalization and migration control: ‘Get them the hell out of here.’ Punishment & Society, 20 (1), 34–53. Bosworth, M., & Guild, M. (2008). Governing through migration control: Security and citizenship in Britain. The British Journal of Criminology, 48(6), 703–719. Bosworth, M., & Turnbull, S. (2015). Immigration detention, punishment and the criminalization of migration. In S. Pickering & J. Ham (Eds.), The Routledge handbook on crime and international migration (pp. 91–106). Routledge. Bowling, B. (2013). Epilogue: The borders of punishment: Towards a criminology of mobility. In K. F. Aas & M. Bosworth (Eds.), The borders of punishment: Migration, citizenship, and social exclusion (pp. 291–306). Oxford University Press. Bowling, B., & Westenra, S. (2020). ‘A really hostile environment’: Adiaphorization, global policing and the crimmigration control system. Theoretical Criminology, 24 (2), 163–183. Brandariz, J. A. (2018). An enduring sovereign mode of punishment: Postdictatorial penal policies in Spain. Punishment and Society, 20 (3), 308–328. Brandariz, J. A. (2021a). An expanded analytical gaze on penal power: Border criminology and punitiveness. International Journal for Crime, Justice and Social Democracy. Epub Ahead of Print 11 January 2021. Brandariz, J. A. (2021b). Crimmigration in Spain. In G. L. Gatta, V. Mitsilegas, & S. Zirulia (Eds.), Controlling immigration through criminal law: European and comparative perspectives on ‘crimmigration’ (pp. 119–139). Hart. Brandariz, J. A., & Fernández-Bessa, C. (2020). A changing and multi-scalar EU borderscape: The expansion of asylum and the normalisation of the

68

C. Fernández-Bessa and J. A. Brandariz

deportation of EU and EFTA citizens. International Journal for Crime, Justice and Social Democracy, 9 (3), 21–33. Brown, D. (2018). Mass incarceration. In P. Carlen & F. L. Ayres (Eds.), Alternative criminologies (pp. 364–385). Routledge. Campesi, G. (2013). La detenzione amministrativa degli stranieri. Carocci. Campesi, G., & Fabini, G. (2020). Immigration detention as social defence: Policing “dangerous mobility” in Italy. Theoretical Criminology, 24 (1), 50– 70. Carvalho, H., Chamberlen, A., & Lewis, R. (2020). Punitiveness beyond criminal justice: Punishable and punitive subjects in an era of prevention, anti-migration and austerity. The British Journal of Criminology, 60 (2), 265–284. Ceriani Cernadas, P. (2017). Immigration detention through the lens of international human rights: Lessons from South America (Global Detention Project Working Paper No. 23). Available from www.globaldetentionproject.org/ wp-content/uploads/2017/09/Ceriani-Cernadas-GDP-working-paper.pdf. Accessed 22 January 2021. Cheliotis, L. K., & Xenakis, S. (2020). What’s left? Political orientation, economic conditions and incarceration in Greece under Syriza-led government. European Journal of Criminology. Epub ahead of print 25 November 2020. Accessed 18 January 2021. Colmenero-Ferreiro, B., & Brandariz, J. A. (2019). Reinventing counterterrorism tactics and practices in the post-ETA Spanish criminal justice system. Studi Culturali XV, I (1), 43–67. Cornelisse, G. (2010). Immigration detention and the territoriality of universal rights. In N. De Genova & N. Peutz (Eds.), The deportation regime (pp. 101–122). Duke University Press. De Giorgi, A. (2006). Re-thinking the political economy of punishment. Ashgate. De Giorgi, A. (2015). Five theses on mass incarceration. Social Justice, 42(2), 5–30. Di Molfetta, E., & Brouwer, J. (2020). Unravelling the ‘crimmigration Knot’: Penal subjectivities, punishment and the censure machine. Criminology and Criminal Justice, 20 (3), 302–318. Dünkel, F. (2017). European penology: The rise and fall of prison population rates in Europe in times of migrant crises and terrorism. European Journal of Criminology, 14 (6), 629–653. Eagly, I. V. (2010). Prosecuting immigration. Northwestern University Law Review, 104 (4), 1281–1359.

2 Generations of Penality …

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Ellermann, A. (2009). States against migrants: Deportation in Germany and the United States. Cambridge University Press. Fernández-Bessa, C. (2021). Los centros de internamiento de extranjeros (CIE): Una introducción desde las ciencias penales. Iustel. Franko, K. (2020). The crimmigrant other: Migration and penal power. Routledge. García-España, E. (2018). El arraigo de presos extranjeros: Más allá de un criterio limitador de la expulsión. Migraciones, 44, 119–144. García Hernández, C. C. (2013). Creating crimmigration. Brigham Young University Law Review, 2013, 1457–1515. García Hernández, C. C. (2014). Immigration detention as punishment. UCLA Law Review, 61, 1346–1414. García Hernández, C. C. (2018). Deconstructing crimmigration. University of California Davis Law Review, 52, 197–253. García Hernández, C. C. (2019). Migrating to prison: America’s obsession with locking up immigrants. The New Press. Gibney, M. J. (2008). Asylum and the expansion of deportation in the United Kingdom. Government and Opposition, 43(2), 146–167. Golash-Boza, T. M. (2015). Deported: Immigrant policing, disposable labor, and global capitalism. New York University Press. Goodman, P., Page, J., & Phelps, M. (2015). The long struggle: An agonistic perspective on penal development. Theoretical Criminology, 19 (3), 315–335. Goodman, P., Page, J., & Phelps, M. (2017). Breaking the pendulum: The long struggle over criminal justice. Oxford University Press. Gottschalk, M. (2015). Caught. The prison state and the lockdown of American politics. Princeton University Press. Griffiths, M. (2012). Anonymous aliens? Questions of identification in the detention and deportation of failed asylum seekers. Population, Space and Place, 18(6), 715–727. Guild, E. (2009). Security and migration in the 21st century. Polity. Gundhus, H. O. I. (2020). Sorting out welfare: Crimmigration practices and abnormal justice in Norway. In R. Koulish & M. van der Woude (Eds.), Crimmigrant nations: Resurgent nationalism and the closing of borders (pp. 249–278). Fordham University Press. Gundhus, H. O. I., & Jansen, P. T. (2020). Pre-crime and policing of migrants: Anticipatory action meets management of concerns. Theoretical Criminology, 24 (1), 90–109.

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C. Fernández-Bessa and J. A. Brandariz

Hutchinson, S. (2006). Countering catastrophic criminology. Reform, punishment and the modern liberal compromise. Punishment & Society, 8(4), 443–467. Iturralde, M. (2019). Neoliberalism and its impact on Latin American crime control fields. Theoretical Criminology, 23(4), 471–490. Kanstroom, D. (2012). Aftermath: Deportation law and the new American diaspora. Oxford University Press. Karstedt, S., Bergin, T., & Koch, M. (2019). Critical junctures and conditions of change: Exploring the fall of prison populations in US states. Social & Legal Studies, 28(1), 58–80. Kaufman, E. (2013). Hubs and spokes: The transformation of the British prison. In K. F. Aas & M. Bosworth (Eds.), The borders of punishment: Migration, citizenship, and social exclusion (pp. 166–182). Oxford University Press. Kaufman, E. (2015). Punish and expel: Border control, nationalism, and the new purpose of the prison. Oxford University Press. Kaufman, E., & Bosworth, M. (2013). The prison and national identity: Citizenship, punishment and the sovereign state. In D. Scott (Ed.), Why Prison? (pp. 170–188). Cambridge University Press. Koulish, R. (2010). Immigration and American democracy. Routledge. Laine, J. P. (2016). The multiscalar production of borders. Geopolitics, 21(3), 465–482. Leerkes, A., & Broeders, D. (2010). A case of mixed motives? Formal and informal functions of administrative immigration detention. The British Journal of Criminology, 50 (5), 830–850. Leerkes, A., & Kox, M. (2017). Pressured into a preference to leave? A study of the “specific” deterrent effects and perceived legitimacy of immigration detention. Law & Society Review, 51(4), 895–929. Legomsky, S. H. (2007). The new path of immigration law: Asymmetric incorporation of criminal justice norms. Washington and Lee Law Review, 64 (2), 469–528. Macías-Rojas, P. (2016). From deportation to prison: The politics of immigration enforcement in post-civil rights America. New York University Press. Majcher, I., Flynn, M., & Grange, M. (2020a). Immigration detention in the European Union: In the shadow of the ‘crisis.’ Springer. Majcher, I., Flynn, M., & Grange, M. (2020b). Introduction: Harmonising, institutionalising, normalising: How the “crisis” became an opportunity for expanding immigration detention regimes. In I. Majcher, M. Flynn, & M.

2 Generations of Penality …

71

Grange (Eds.), Immigration detention in the European Union: In the shadow of the ‘crisis’ (pp. 1–13). Springer. Majcher, I., Flynn, M., & Grange, M. (2020c). Baltic countries. The Russian ‘crisis.’ In I. Majcher, M. Flynn, & M. Grange (Eds.), Immigration detention in the European Union: In the shadow of the ‘crisis’ (pp. 15–57). Springer. Majcher, I., Flynn, M., & Grange, M. (2020d). The Balkans: Building walls against ‘transit’ migration. In I. Majcher, M. Flynn, & M. Grange (Eds.), Immigration detention in the European Union: In the shadow of the ‘crisis’ (pp. 59–129). Springer. Majcher, I., Flynn, M., & Grange, M. (2020e). Southern Europe: Turning ‘reception’ into ‘detention.’ In I. Majcher, M. Flynn, & M. Grange (Eds.), Immigration detention in the European Union: In the shadow of the ‘crisis’ (pp. 255–345). Springer. Majcher, I., Flynn, M., & Grange, M. (2020f ). Nordic countries: An uneven response. In I. Majcher, M. Flynn, & M. Grange (Eds.), Immigration detention in the European Union: In the shadow of the ‘crisis’ (pp. 215–253). Springer. Majcher, I., Flynn, M., & Grange, M. (2020g). Western Europe: New restrictions, more detainees. In I. Majcher, M. Flynn, & M. Grange (Eds.), Immigration detention in the European Union: In the shadow of the ‘crisis’ (pp. 347–449). Springer. Majcher, I., Flynn, M., & Grange, M. (2020h). Central Europe: Declining arrivals, surging antagonism. In I. Majcher, M. Flynn, & M. Grange (Eds.), Immigration detention in the European Union: In the shadow of the ‘crisis’ (pp. 131–175). Springer. Majcher, I., Flynn, M., & Grange, M. (2020i). Ireland and the United Kingdom: Absence of safeguards? In I. Majcher, M. Flynn, & M. Grange (Eds.), Immigration detention in the European Union: In the shadow of the ‘crisis’ (pp. 177–213). Springer. Majcher, I., Flynn, M., & Grange, M. (2020j). Conclusion: Inside out: How the EU encouraged the growth of immigration detention beyond its borders as it consolidated detention regimes internally. In I. Majcher, M. Flynn, & M. Grange (Eds.), Immigration detention in the European Union: In the shadow of the ‘crisis’ (pp. 451–465). Springer. Melossi D and Pavarini M (1977/2018) The prison and the factory (40th Anniversary Edition): Origins of the penitentiary system. London: Palgrave Macmillan. Migreurop. (2017). Atlas of migration in Europe. New Internationalist.

72

C. Fernández-Bessa and J. A. Brandariz

Moffette, D. (2018). Governing irregular migration: Bordering culture, labour, and security in Spain. UBC Press. Monclús, M. (2008). La gestión penal de la inmigración. Del Puerto. Morton, J. (2011). Civil immigration enforcement: Priorities for the apprehension, detention, and removal of aliens. US Immigration and Customs Enforcement. Available from www.ice.gov/doclib/news/releases/2011/110 302washingtondc.pdf. Accessed 26 January 2021. Mosconi, G. (2005). Inmigración, seguridad y cárcel en Italia (en la perspectiva de la guerra global). In R. Bergalli, & I. Rivera Beiras (Eds.), Política criminal de la guerra (pp. 144–169). Anthropos. O’Malley, P. (2000). Criminologies of catastrophe? Understanding criminal justice on the edge of the new millennium. The Australian and New Zealand Journal of Criminology, 33(2), 153–167. Pakes, F., & Holt, K. (2017). Crimmigration and the prison: Comparing trends in prison policy and practice in England & Wales and Norway. European Journal of Criminology, 14 (1), 63–77. Pickering, S., Bosworth, M., & Franko, K. (2015). The criminology of mobility. In S. Pickering & J. Ham (Eds.), The Routledge handbook on crime and international migration (pp. 382–395). Routledge. Platt, T. (2015). Liberalism on trial. Social Justice, 42(2), 185–188. Platt, T. (2018). Beyond these walls: Rethinking crime and punishment in the United States. St. Martin’s Press. Rosenberger, S., & Küffner, C. (2016). After the deportation gap: Nonremoved persons and their pathways to social rights. In R. Hsu & C. Reinprecht (Eds.), Migration and integration: New models for mobility and coexistence (pp. 137–152). Vienna University Press. Rubin, A. T. (2016). Penal change as penal layering: A case study of protoprison adoption and capital punishment reduction, 1785–1822. Punishment & Society, 18(4), 420–441. Rusche, G., & Kirchheimer, O. (1939/2003). Punishment and social structure. Transaction. Seeds, C. (2017). Bifurcation nation: American penal policy in late mass incarceration. Punishment & Society, 19 (5), 590–610. Siegel, D., & Nagy, V. (Eds.). (2018). The migration crisis? Criminalization, security and survival . Eleven. Silverman, S. J. (2010). Immigration detention in America: A history of its expansion and a study of its significance (Centre on Migration, Policy and Society, Working Paper 80). University of Oxford. Available

2 Generations of Penality …

73

from www.compas.ox.ac.uk/wp-content/uploads/WP-2010-080-Silverman_ Immigration_Detention_America.pdf. Accessed 1 February 2021. Sklansky, D. A. (2012). Crime, immigration, and ad hoc instrumentalism. New Criminal Law Review, 15 (2), 157–223. Slade, G. (2017). ‘A return to gulags’? Explaining trend sin post-Soviet prison rates. In D. Melossi, M. Sozzo, & J. A. Brandariz-García (Eds.), The political economy of punishment: Visions, debates and challenges (pp. 185–204). Routledge. Sozzo, M. (2017). Postneoliberalism and penality in South America: By way of introduction. International Journal for Crime, Justice and Social Democracy, 6 (1), 133–145. Sozzo, M. (2018). Beyond the neoliberal penality thesis? Visions on the penal turn from the Global South. In K. Carrington, R. Hogg, J. Scott, & M. Sozzo (Eds.), The Palgrave handbook on criminology and the global south (pp. 658–685). Palgrave. Stumpf, J. (2006). The crimmigration crisis: Immigrants, crime, and sovereign power. American University Law Review, 56 (2), 367–419. Stumpf, J. (2013). The process is the punishment in crimmigration law. In K. F. Aas & M. Bosworth (Eds.), The borders of punishment: Migration, citizenship, and social exclusion (pp. 58–75). Oxford University Press. Stumpf, J. (2015). Crimmigration: Encountering the leviathan. In S. Pickering & J. Ham (Eds.), The Routledge handbook on crime and international migration (pp. 237–250). Routledge. Stumpf, J. (2020). The terrorism of everyday crime. In R. Koulish & M. van der Woude (Eds.), Crimmigrant nations: Resurgent nationalism and the closing of borders (pp. 89–115). Fordham University Press. Turnbull, S. (2017). Immigration detention and punishment. Oxford research encyclopaedia. Criminology and Criminal Justice, 1–24. Turnbull, S., & Hasselberg, I. (2017). From prison to detention: The carceral trajectories of foreign-national prisoners in the United Kingdom. Punishment & Society, 19 (2), 135–154. Ugelvik, T. (2015). The incarceration of foreigners in European prisons. In S. Pickering & J. Ham (Eds.), The Routledge handbook on crime and international migration (pp. 107–120). Routledge. Ugelvik, T., & Damsa, D. (2018). The pains of crimmigration imprisonment: Perspectives from a Norwegian all-foreign prison. The British Journal of Criminology, 58(5), 1025–1043. van Kalmthout, A., Hofstee-van der Meulen, F., & Dünkel, F. (2007). Comparative oveview, conclusions and recommendations. In A. M. van Kalmthout,

74

C. Fernández-Bessa and J. A. Brandariz

F. Hofstee-van der Meulen, & F. Dünkel (Eds.), Foreigners in European prisons: Volume I (pp. 7–88).Wolf Legal Publishers. Velloso, J. G. V. (2013). Beyond Criminocentric dogmatism: Mapping institutional forms of punishment in contemporary societies. Punishment & Society, 15 (2), 166–186. Walmsley, R. (2018). World prison population brief. 12th edition. Institute for Criminal Policy Research. Available from www.prisonstudies.org/sites/def ault/files/resources/downloads/wppl_12.pdf. Accessed 22 January 2021. Weber, L. (2015). Deciphering deportation practices across the Global North. In S. Pickering & J. Ham (Eds.), The Routledge handbook on crime and international migration (pp. 155–178). Routledge. Wilenmann, J. (2020). Neoliberal politics and state modernization in Chilean penal evolution. Punishment & Society, 22(3), 259–280. Wonders, N. A. (2017). Sitting on the fence—Spain’s delicate balance: Bordering, multiscalar challenges, and crimmigration. European Journal of Criminology, 14 (1), 7–26. Xenakis, S., & Cheliotis, L. K. (2019). Whither neoliberal penality? The past, present and future of imprisonment in the US. Punishment & Society, 21(2), 187–206. Zedner, L. (2002). Dangers of dystopias in penal theory. Oxford Journal of Legal Studies, 22(2), 341–366. Zedner, L. (2016). Penal subversions: When is a punishment not punishment, who decides and on what grounds? Theoretical Criminology, 20 (1), 3–20.

3 Global Child and Youth Imprisonment: Histories, Human Rights Standards, Distributions, Impacts, Outcomes and Replacements Barry Goldson and Silvia Randazzo

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Introduction

Child and youth imprisonment is one of the most contested and controversial practices in global criminal justice and this chapter aims to subject the phenomenon to critical analysis. The terms ‘child’, ‘children’, ‘young people’ and ‘youth’ are used interchangeably to refer to people below the age of eighteen years. We review the origins of ‘specialist’ penal institutions and the histories of child and youth imprisonment, the global and European human rights standards that frame the penal detention of children, the uneven spatial distributions of such practices and B. Goldson (B) University of Liverpool, Liverpool, UK e-mail: [email protected] S. Randazzo KU Leuven Institute of Criminology, Leuven, Belgium e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 S. Gomes et al. (eds.), Incarceration and Generation, Volume I, Palgrave Studies in Prisons and Penology, https://doi.org/10.1007/978-3-030-82265-1_3

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both the impacts and outcomes that derive from imprisonment. The chapter concludes by supporting the case for replacing global child and youth imprisonment with community-based interventions for children in conflict with the law.

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Histories

Inevitably, the establishment of discrete juvenile and youth justice systems and, more specifically, practices of child and youth imprisonment have emerged and developed in various forms and at different times in particular parts of the world. Broadly speaking, however, at the beginning of the nineteenth century the global norm was such that there was no specific legal category of ‘juvenile delinquent’ or ‘child/young offender’ and the practices of the criminal justice and penal systems did little, if anything, to discern between children and adults. Instead, children and young people were deemed to be fully culpable before the law and were exposed to precisely the same—often draconian—penalties as adults, including detention in adult prisons. As the nineteenth century unfolded, however, the belief that distinctive institutions for ‘juvenile delinquents’ should be created—to separate child and adult prisoners— gathered momentum in various parts of the world. By the end of the same century, therefore, exclusively child-focused legislation, together with a network of child-specific penal institutions had been established and specialist children’s/juvenile courts were also beginning to evolve. In other words, the legal and institutional architectures of recognisably modern juvenile and youth justice systems were taking shape. The value of engaging with historical sweeps (however broad-based they might be) is that they remind us, should we need reminding, that discrete practices of child and youth imprisonment cast their shadows over more than two centuries. During this time—and irrespective of their officially stated purpose and rationale (moral reclamation, ‘child saving’, rehabilitation, correction, punishment)—penal institutions around the world have typically swept up, and continue to sweep up, children and young people who are drawn from the most disadvantaged, distressed,

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damaged and structurally marginalised sections of their respective populations (within which children from racial and ethnic minorities are routinely over-represented). Furthermore, by systematically recording the failings, miseries, scandals, abuses and violations that are often produced and reproduced through penal regimes and operational practices—by omission or commission—histories of global child and youth imprisonment also unsettle the logics of progressive reform and, moreover, they question the very legitimacy and efficacy of such practices. On the other hand, of course, crude constructions of global universality are problematic, not least because they typically privilege understandings that are derived in the Global North, negate the historical (and contemporary) knowledge(s) and experiences of the Global South and, as such, adopt a ‘linear, panoramic and unifying standpoint in which space and geopolitical social difference are erased in the imperial narrative of time’ (Carrington et al., 2019, p. 4). We must, therefore, remain aware of the critical need to nuance universalising narratives by embracing and engaging with the complete scope of global social science knowledge(s) and by ‘southernising’ criminological analyses (Carrington et al., 2019; Connell, 2007). Whilst recognising this, we nonetheless contend that the vital lessons that might be drawn from histories of child and youth imprisonment—including the demographically skewed nature of penal populations and the inherently harmful impacts and failing outcomes of penal institutions—resonate globally.

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Human Rights Standards

Although it is extraordinarily difficult to retrieve and collate reliable and genuinely comparative international data (see below), the United Nations Global Study on Children Deprived of Liberty provides the ‘highly conservative estimate’ that at least 410,000 children are imprisoned around the world each year (Nowak, 2019, p. 249). A global framework of human rights standards ostensibly pertains to such young people. The formalisation of global human rights standards consolidated with the creation of the United Nations and the adoption of the Universal

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Declaration of Human Rights in 1948. It was not until 1989, however, when the United Nations Convention on the Rights of the Child (UNCRC) was adopted by the United Nations General Assembly—and 1990 when the Convention came into force—that a global human rights instrument focused exclusively and comprehensively on protecting and promoting a broad range of children’s interests (United Nations General Assembly, 1989). The UNCRC comprises 54 articles bringing together children’s economic, social, cultural, civil and political rights. General measures include a fundamental obligation on governments (referred to as ‘States Parties’) to develop and sustain a children’s human rights infrastructure within their jurisdictional spheres comprising, for example: the right to non-discrimination (Article 2); the primacy of the child’s best interests (Article 3); the right to life and maximum development (Article 6); and the right of children and young people to have their views given due weight in all matters affecting them (Article 12). The UNCRC also provides a range of ‘civil rights’ including: the child’s right to freedom of expression and association; the right to receive information; and the right to protection from all forms of violence, abuse, neglect and mistreatment. The Convention further provides for every child’s right to an adequate standard of living and the right to the best possible health care and educational services. More specifically for present purposes, the UNCRC has an important bearing on juvenile/youth justice law, policy and practice, be it direct or indirect by providing for: economic, social and cultural rights; civil and political rights; the elimination of all forms of discrimination; safeguards against torture and other cruel, inhuman or degrading treatment or punishment; protection from violence, abuse, neglect and mistreatment; a recognition of the ‘special status’ of childhood; ‘best interest’ principles; the right to life and maximum development; the right to be informed and the right to be heard. Indeed, key provisions of the UNCRC—together with a range of additional global and European human rights standards, treaties, rules, conventions and guidelines—relate more explicitly still to the practices of child and youth imprisonment.

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At the global level, three key instruments are especially important. First, the ‘United Nations Standard Minimum Rules for the Administration of Juvenile Justice’ (the ‘Beijing Rules’) were adopted by the United Nations General Assembly in 1985. The Rules provide guidance for the protection of children’s human rights in the development of separate and specialist juvenile/youth justice systems (United Nations General Assembly, 1985). Second, the United Nations Guidelines on the Prevention of Delinquency (the ‘Riyadh Guidelines’) were adopted by the United Nations General Assembly in 1990 and provide that ‘formal agencies of social control should only be utilized as a means of last resort’ (para. 5) and ‘no child or young person should be subjected to harsh or degrading correction or punishment measures at home, in schools or in any other institutions’ (para. 54) (United Nations General Assembly, 1990a). Third, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (the ‘Havana Rules’) were adopted by the United Nations General Assembly in 1990. The ‘Rules’ provide core principles including: deprivation of liberty should be a disposition of ‘last resort’ and used only ‘for the minimum necessary period’ and, in cases where children are deprived of their liberty, the principles, procedures and safeguards provided by international human rights law, standards, treaties, rules, guidelines and conventions must be seen to apply (United Nations General Assembly, 1990b). Similar provisions are contained within the UNCRC including: • In all actions concerning children… the best interests of the child shall be a primary consideration (Article 3) • No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment (Article 37a) • No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time (Article 37b) • Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner that takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults

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unless it is considered in the child’s best interest not to do so (Article 37c) • Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action (Article 37d) • States parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society (Article 40(1)). At the European level, the concept of ‘child friendly justice’ is pivotal and official guidelines reiterate provisions that are found within the United Nations instruments including: ‘any form of deprivation of liberty of children should be a measure of last resort and be for the shortest appropriate period of time’ (Council of Europe, 2010, section IV(A), para. 19). More recently, in elaborating the ‘European Union’s Strategy on the Rights of the Child’, the European Commission (2021, p. 14, original emphasis) has stated: … too many children are still deprived of their liberty because they are in conflict with the law... National authorities, including in the EU Member States, need to make available and increase the use of viable and effective non-custodial measures… and ensure that detention is used only as a last resort and for the shortest appropriate time.

Taken together, global and European human rights standards provide well-established foundations for promoting reform, formulating policies and developing practices to provide human-rights-compliant juvenile/youth justice systems, protecting and promoting the rights of young prisoners and, perhaps most important, limiting the application of child and youth imprisonment and replacing such practices with ‘viable and

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effective non-custodial measures’. There is, however, a vital caveat. As Fortin (2008, p. 60) has observed, the UNCRC (and related instruments) have ‘not been made part of domestic law’ in many countries. What this means in reality is that although—following ratification— nation states might be morally obliged to implement the provisions of global human rights standards they are not legally compelled to do so. In short, the standards ultimately ‘lack teeth’ (Fortin, 2008, p. 60) and ‘there are no sanctions imposed on states who fail to comply with the obligations to which they have agreed… [and] enforceability… remains so fragile and inconsistent’ (Stalford, 2012, p. 34). Ultimately, the ‘potentialities’ afforded by human rights instruments are undermined by a complex of implementational ‘limitations’ (Goldson & Kilkelly, 2013) and, as such, the prospect of providing global ‘child-friendly’ justice remains profoundly under-developed (Goldson & Muncie, 2012).

4

Distributions

Numerous commentators have drawn attention either to the unavailability or to the intrinsic inaccuracy of statistical records of child and youth imprisonment amounting to ‘a general lack of reliable comparative and longitudinal data’ (Dünkel, 2015, p. 42; see also Goldson, 2019). In many respects, data deficits and inaccuracies are themselves symptomatic of the implementational limitations to which we have just referred. Indeed, in many countries data is either non-existent or, at least, it is not made publicly available and this raises obvious, and enduring, concerns. The first ‘General Comment’ on juvenile justice issued by the United Nations Committee on the Rights of the Child in 2007, for example, reflected: … many States Parties still have a long way to go in achieving full compliance with CRC, e.g. in… the use of deprivation of liberty only as a measure of last resort… This may also explain why many States parties are providing only very limited statistical data on the treatment of children in conflict with the law. (United Nations Committee on the Rights of the Child, 2007: para. 1)

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When the same Committee issued a revised ‘General Comment’ more than a decade later, however, minimal progress had been made and it still felt obliged to: …urge States parties to systematically collect disaggregated data, including… the number of convicted children, the nature of the sanctions imposed on them and the number of children deprived of their liberty. (United Nations Committee on the Rights of the Child, 2019: para. 113)

But even when data-sets exist, problems of accurate comparability, interpretation and analysis are commonplace. For example, what is classified as ‘penal custody’ in one jurisdiction may not be in others meaning that ‘institutions that inherently replicate the placement and living conditions of criminal justice institutions (reformatories, pre-trial detention facilities, police stations), where children are placed by a judicial, administrative or other authority and from which they cannot leave at will’ are included in some jurisdictional counts and excluded from others (Baeva, 2014, p. 17). Further, Muncie (2021, p. 435) asserts: … it is not always clear whether the data are based on statistics of ‘stock’ (numbers on a given day) or ‘flow’ (numbers admitted during a calendar year). We are never quite sure whether ‘juvenile’ always refers to under18s or to under-21s. Custody data may be of total custodial populations or might only include those under sentence (omitting remands)… the lack of uniform definitions… of common measuring instruments and of common methodology makes comparisons between countries extremely hazardous.

Notwithstanding such impediments, perhaps the most reliable (or least unreliable) source of global data pertaining to the spatial distributions of child and youth imprisonment is provided by the United Nations Office on Drugs and Crime (UNODC). Such ‘data are collected from national authorities through the annual United Nations Crime Trends Survey (UN-CTS) [and] all data are sent to UN Member States for review and validation’ (United Nations Office on Drugs and Crime, 2021, n.p). But even the veracity of the UNODC data is compromised

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by substantial omissions and, for 2017—the fullest most recent statistics available for ‘juvenile’ prisoners—only 131 of the 193 UN Member States are included in the database, of which just 52 countries (clustered within 5 ‘regions’) actually returned the required data: 4 in Africa, 8 in the Americas, 8 in Asia, 31 in Europe and 1 in Oceania (ibid.). In other words, the UNODC is only able to provide data pertaining to child and youth imprisonment for 27% (52 of 193) of United Nations Member States or, to put it another way, no data is publicly available for 73% (141 of 193) of Member States. Although the quantity of the available data is severely limited, UNODC statistics relating to ‘juvenile’ prisoners are presented as a rate per 100,000 and, in this way, rates of child and youth imprisonment—as distinct from simple counts—provide the best quality statistical material for the purposes of comparative distributional analysis. By reviewing the data for the ‘regions’ of Africa, the Americas, Asia and Oceania significant inter-regional and intra-regional differences become evident (see Tables 1, 2, 3, and 4). For Europe—although there are also significant omissions in the available statistical material—more recent and more complete data-sets made available by Eurostat (the statistical office of the European Union) also reveal tangible distributional variations between countries/jurisdictions (see Table 5). Such spatial variability in the distribution of child and youth imprisonment suggests that the ‘best interest’ and ‘last resort’ provisions of global and European human rights standards are unevenly applied, with juvenile/youth justice systems in some countries/jurisdictions being Table 1 Africa—‘Juvenile’ imprisonment as a rate per 100,000 in 2017 United Nations Designated ‘Region’—Africa Country/Jurisdiction

Rate of ‘juvenile’ prisoners per 100,000

Benin Cameroon Kenya Morocco

2.54 7.49 2.59 9.32

Source Data derived from United Nations Office on Drugs and Crime (2021)

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Table 2 Americas—‘Juvenile’ imprisonment as a rate per 100,000 in 2017 United Nations Designated ‘Region’—Americas Country/Jurisdiction

Rate of ‘juvenile’ prisoners per 100,000

Chile Costa Rica Ecuador Grenada Jamaica Mexico Paraguay Puerto Rico

29.92 18.61 11.50 0.00 23.45 4.03 11.78 25.52

Source Data derived from United Nations Office on Drugs and Crime (2021)

Table 3 Asia—‘Juvenile’ imprisonment as a rate per 100,000 in 2017 United Nations Designated ‘Region’—Asia Country/Jurisdiction

Rate of ‘juvenile’ prisoners per 100,000

Armenia Azerbaijan Indonesia Kazakhstan Korea Macao Mongolia Philippines

0.57 0.00 4.08 1.64 4.27 2.11 3.86 5.33

Source Data derived from United Nations Office on Drugs and Crime (2021)

Table 4 Oceania—‘Juvenile’ imprisonment as a rate per 100,000 in 2017 United Nations Designated ‘Region’—Oceania Country/Jurisdiction

Rate of ‘juvenile’ prisoners per 100,000

Australia

16.40

Source Data derived from United Nations Office on Drugs and Crime (2021)

significantly less (or more) likely than others to resort to penal detention. Indeed, whilst remaining mindful of the problems pertaining to the validity and reliability of the United Nations and the European

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Table 5 Europe—‘Juvenile’ imprisonment as a rate per 100,000 in 2018 Europe Country/Jurisdiction

Rate of ‘juvenile’ prisoners per 100,000

Albania Austria Bulgaria Croatia Cyprus Czechia Denmark England and Wales Estonia Finland France Greece Hungary Iceland Italy Kosovo Latvia Lichtenstein Lithuania Luxembourg Montenegro Netherlands Poland Portugal Romania Serbia Slovakia Slovenia Spain Sweden Switzerland Turkey

3.33 8.41 2.26 6.14 9.49 3.23 1.03 5.12 5.55 8.53 5.24 1.28 11.72 0.00 15.05 7.88 9.76 0.00 10.34 0.00 2.92 11.96 26.96 18.80 7.50 18.49 8.24 7.37 8.38 1.13 1.84 13.05

Source Eurostat

Commission data, it illustrates disparities ranging from relatively low rates ( per 100,000) in Chile 29.92, Costa Rica (18.61), Jamaica (23.45) and Puerto Rico (25.52) in the Americas; Australia (16.4) in Oceania; and Italy (15.05), Poland (26.96), Portugal (18.80) and Serbia (18.49) in Europe. A consistent message deriving from a number of international studies is that differentiated national/jurisdictional distributions of child and youth imprisonment are not satisfactorily explained by any singular reference to differences in the gravity (seriousness) and/or to the incidence (extent) of recorded youth crime (Goldson et al., 2021). Indeed, such studies echo an ‘axiom’ of the wider sociological literature—‘punishment and penal measures are, to a considerable degree, independent of crime’ and: … the sociological insight… is that neither individual crimes nor aggregate crime rates determine the nature or extent of penal measures. It is not ‘crime’ that dictates… penal sentences… but the ways in which crime is socially perceived and problematised and the political and administrative decisions to which these perceptions give rise. (Garland, 2013, p. 486)

If it can be said, therefore, that spatially differentiated patterns of child and youth imprisonment (signalling compliance with, or violation of, global and European human rights standards) do not simply mirror national/jurisdictional variations in (recorded) youth crime, then we are obliged to look elsewhere for explanation. This presents profound and complex challenges. Variable distributions of child and youth imprisonment are contextually embedded in myriad historical traditions, cultural sensibilities, social norms, economic conditions and political imperatives. Cavadino et al., (2013, p. 80), for example, argue that ‘it is possible to relate some important characteristics of a country’s political economy – and in particular its welfare system – to the severity of its penal practices’ (see also Winterdyk, 2002; Lacey, 2011). Such reasoning goes some way towards explaining variable national/jurisdictional distributions of child

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and youth imprisonment, but it is also limited in at least three ways. First, as Garland (2013, p. 492) observes: … even these more sophisticated studies leave us with something of a black box… [t]hey point to structural biases and institutional dispositions but not to empirical processes and actors’ choices. At the end of the analysis, we still need to learn more about how social forces are translated into penal outcomes, not least because nations that are classed together in the same ‘variety of capitalism’ or ‘welfare regime’ category, sometimes exhibit very different levels of punishment.

Second, Carrington et al., (2019, p. 101) challenge the extent to which forms of theorising and empirical studies that derive from the ‘advanced’ (rich) nations of the Global North can legitimately be applied elsewhere in the world. They fundamentally problematise the ‘hegemonic habits of thought and intellectual practices’ that ‘infer that theory generalised from North Atlantic experiences provides a universal framework of analysis, with penality in the Global South relegated to serving as merely a testing ground for Northern theory’ (ibid., pp. 99–100). Third, the more-orless exclusive focus on the national/jurisdictional-level as the preferred unit of comparative analysis is increasingly being questioned alongside a developing recognition that distributional differences in child and youth imprisonment within nation-states can, in certain circumstances, be as great, if not greater, than variability between national jurisdictions (Goldson & Briggs, 2021; Goldson et al., 2021). It is beyond the reach of this chapter to attempt to resolve the conceptual, theoretical and empirical challenges that comparative analysis presents (for fuller discussions see Goldson, 2019; Goldson et al., 2021). Suffice to note that the manifestly uneven spatial distributions of child and youth imprisonment—both between and within national/jurisdictional borders—serve to undermine the very concept of ‘justice’ and, in cases where conspicuously high rates prevail, they violate core provisions of global and European human rights standards.

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Impacts

Irrespective of striking inconsistencies in the spatial distributions of child and youth imprisonment around the world, the disfigured demographics and biographies of young prisoners remain absolutely consistent (over both time and space). Indeed, whenever and wherever we might care to look, young prisoners (as stated earlier) are typically drawn from the most disadvantaged sections of their respective populations and, as such, they represent a profoundly vulnerable group. Furthermore, the low level of social value routinely afforded to such children (often deemed to be ‘undeserving’ and/or ‘unwanted’), renders them particularly prone to systematic maltreatment and the international research literature is replete with evidence of the harmful impacts of penal detention and imprisonment. Two United Nations ‘global studies’ comprise particularly pertinent points of reference. In February 2003, Paulo Sergio Pinheiro was appointed, at Assistant Secretary-General level, to direct ‘The United Nations SecretaryGeneral’s Study on Violence Against Children’. The principal objective of the Study was to investigate all forms of violence against the world’s children and to analyse the impacts of such phenomena. The Study was undertaken in collaboration with the Office of the High Commissioner for Human Rights (OHCHR), the United Nations Children’s Emergency Fund (UNICEF) and the World Health Organisation (WHO). Informed by extensive consultations with government departments, international human rights agencies, civil society organisations, research institutions and children and young people themselves, the published report comprises the most comprehensive and detailed analysis of its type in history and it draws particular attention to the violations of young prisoners: … the institutional treatment of children regarded as being anti-social or criminal is… more physically and psychologically punitive than that of other groups or in other environments. All the prejudices and discriminations attached to unwanted… children are reinforced where the child is seen as a social nuisance, or worse. (Pinheiro, 2006, pp. 190–191)

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Children deprived of their liberty and placed in detention are at extreme risk of violence… Violent practices are found in both industrialised and developing countries. (ibid., pp. 196–197)

In October 2016, Manfred Nowak was similarly appointed to direct an equally wide-ranging but more sharply focused inquiry: ‘The United Nations Global Study on Children Deprived of Liberty’. As with the earlier ‘Study on Violence’, this Study also included the OHCHR, UNICEF and the WHO together with an extended strategic partnership involving the United Nations Office of Drugs and Crime (UNODC), the United Nations Refugee Agency (UNHCR), the United Nations Committee on the Rights of the Child (CRC), the International Organisation for Migration (IOM) and the United Nations SecretaryGeneral’s Special Representatives for Children and Armed Conflict and for Violence Against Children. Nowak’s report represents the most ambitious analysis of the treatment of detained children ever published and he reflects: Despite strong recommendations for follow-up in the 2006 ‘UN Study on Violence Against Children’, violence, corporal punishment, excessive restraint measures and indefinite solitary confinement continue to be widespread at various stages of deprivation of liberty in the administration of justice. (Nowak, 2019, p. 335)

Nowak further elaborates: … in reality systems are dysfunctional, leading to a huge gap between the provisions of law and their implementation in practice. The dominant perception of children in conflict with the law disregards their status as children… Research clearly indicates that deprivation of liberty has severe and potentially permanent negative impacts on the wellbeing of children… Conditions in detention are unacceptably poor in the great majority of countries. Such conditions – including overcrowding; lack of separation between children and adults, girls and boys; systemic invasion of privacy; lack of psychological support for the child, including contact with his/her family and the outside world; insufficient access to and quality of education, health care, recreational and cultural activities

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while in detention – may amount to cruel and inhuman treatment. (ibid., pp. 334–335)

Of course, the report of the ‘Global Study’ explicitly recognises that ‘the regimes under which children are deprived of liberty vary greatly worldwide’ (ibid., p. 269). But this should not be taken to imply that the treatment of child prisoners in the rich and ‘advanced’ countries of the world is necessarily more progressive than that experienced by their counterparts in poorer ‘developing’ nations. Indeed, the conditions endured by young prisoners in many of the richest nations/jurisdictions impose deeply problematic negative impacts. To illustrate this point we focus briefly on two ‘advanced’ democratic jurisdictions at opposite sides of the world, England and Wales in the UK and Australia where, over time, the evidence persistently points to penal conditions that give rise to serious human rights violations and impose corrosive impacts on young prisoners including: solitary confinement and segregation; excessive force and intimidation; the use of mechanical restraints; assaults and physical abuse; overcrowding; the failure to separate child and adult prisoners; high levels of self-harm; severely stretched mental health facilities; strip searching; poor visiting facilities; inadequate quantity and quality of food; under-resourced education facilities; lack of programmes and recreational facilities; substandard case management and poorly trained custodial staff (Goldson et al., 2021). For present purposes, we place our emphasis on the particularly egregious abuses of child and young prisoners that involve violence by staff and the use of isolation, segregation and solitary confinement. In July 2016, the Australian Broadcasting Corporation (ABC) Four Corners television documentary programme exposed routine excessive force, tear-gassing and ‘hooding’ of child prisoners at the Northern Territory’s Don Dale and Alice Springs Youth Detention Centres (MeldrumHanna, 2016). In particular, the footage showed Dylan Voller, a 13-yearold Indigenous boy forcibly stripped naked, placed in a ‘suicide gown’ and left alone in a cell. He was also strapped to a restraint chair with a ‘spit hood’ placed over his head for almost two hours. Such practices are not aberrations and the use of force by staff in child and youth detention facilities—often euphemistically described as ‘restraint’—has also

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been exposed by inquiries in other Australian States including Western Australia (Office of the Inspector of Custodial Services Western Australia, 2013), Tasmania (Harker, 2015) and Queensland (Amnesty International, 2016). Meanwhile, in England and Wales the Chief Inspector of Prisons has reported similar forms of maltreatment: … the most concerning findings during the year emerged from our inspections of the custodial estate for children and young people… The outcome of those inspections has been very troubling… I felt compelled to bring to the attention of ministers my serious concern about our findings… we had reached the conclusion that there was not a single establishment that we inspected in England and Wales in which it was safe to hold children and young people… The fact that we had reached a position where we could not judge any institution to be sufficiently safe was bad enough, but the speed of decline has been staggering… [and needs] to be understood and addressed as a matter of urgency. (HM Chief Inspector of Prisons, 2017, p. 9)

Indeed, not unlike Australia the use of force by staff on child prisoners in England and Wales has attracted persistent critical attention from various authoritative sources including the United Nations Committee on the Rights of the Child (2002, 2008, 2016). Following its latest monitoring visit, the Committee raised explicit concern about: … the increased use of restraint… against children in custodial settings in England and Wales… and the use of physical restraint on children to maintain good order and discipline in young offenders’ institutions and of pain-inducing techniques… [and] urge[d] the State party to… abolish all methods of restraint against children for disciplinary purposes… and ban the use of any technique designed to inflict pain on children (United Nations Committee on the Rights of the Child, 2016: paras 39(b), 39(c) and 40(b)).

Similar consternation, including the application of ‘pain compliance’, has also been repeatedly raised by the House of Lords House of Commons (Parliamentary) Joint Committee on Human Rights (2003, 2009, 2015). Notwithstanding such concerns, however, the most recent data reveal

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that the use of force by staff on child prisoners (now officially designated as ‘Restrictive Physical Interventions’): increased by 19% in the last year, to around 7,500 incidents [and] the number of self-harm incidents has increased by 35%, to around 2,500. For both measures, this is the highest number of incidents in the last five years. (Ministry of Justice & Youth Justice Board, 2021, p. 2)

It is also evident that young prisoners are routinely exposed to segregation and held in de facto solitary confinement in Australia and in England and Wales. In Australia, such practices have been identified in the States of New South Wales, Victoria, Northern Territory and Western Australia (Cunneen et al., 2016). In New South Wales, Victoria and Western Australia it has been reported that for extended periods, children have been locked in their cells for 23 hours a day and handcuffed during the one-hour exercise periods (Farrell, 2017; New South Wales Ombudsman, 2016). In Western Australia a similar regime was maintained for several weeks (Maley & Begley, 2016). In England and Wales, the segregation and solitary confinement of child prisoners have also been exposed in various inquiries and reports (Cunneen et al., 2018). The Children’s Commissioner for England (2018, p. 1) has reported that: The number of episodes of segregation in youth custody in England and Wales has increased in the past 4 years, even as the overall number of children detained has fallen. The average length of periods of [segregation] has doubled, from 8 to 16 days, with seven out of ten episodes of segregation in Young Offender Institutions lasting over a week. The number of episodes of segregation in STCs has also risen and is now (on a pro-rata basis) approximately 33 times higher.

Similarly, in December 2020 following an ‘assurance visit’ to Rainsbrook Secure Training Centre (STC)—a privately-managed facility holding up to 76 child prisoners—a Government Chief Inspector wrote to the Secretary of State for Justice setting out grounds for activating the ‘urgent notification’ (UN) process:

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The concerns that the joint inspectorates found at this visit are serious… an assurance visit to Rainsbrook STC was carried out by Ofsted, Her Majesty’s Inspectorate of Prisons (HMIP) and the Care Quality Commission (CQC)… An urgent meeting was convened… on 5 November 2020, where the inspectorates received assurances that immediate actions would be taken to address the concerns… A further joint monitoring visit was carried out on 10 December 2020 to assess the actions taken… to ensure the safety and wellbeing of children… children independently told inspectors that they had been locked into their [cells] for up to 14days and only allowed out each day for up to 30 minutes for fresh air… children’s daily experiences are bleak. They continue to receive a spartan regime. They receive little encouragement to get up in the mornings and there are very few determined efforts by staff to engage meaningfully with children… The centre acknowledge that one boy was placed on an ‘incorrect management plan’… [and] between 26 November 2020 and 10 December 2020 this child had a total of four hours out of his [cell]… We have decided to invoke the UN process because of the continued poor care experienced by children, the lack of leadership… and lack of oversight of practice by local and national leaders… This provides little confidence in the centre’s capacity to improve the care, wellbeing and safety of children. (Spielman, 2020, pp. 1–3)

As stated, child prisoners are a profoundly vulnerable group of young people who routinely endure acute adversity in the infrastructure of their everyday lives. During periods of imprisonment such children are removed from their families and support networks—however inadequate they might be—and are exposed to a range of institutionalised and systemic practices that impose harm and compound their vulnerabilities. By reviewing the use of force by staff on child prisoners, together with the practices of segregation and solitary confinement—in two of the world’s richest and most ‘advanced’ democracies—we have seen how such interventions transmit corrosive impacts. If we broaden our analytical gaze by returning to the global context, perhaps the most negative impacts of child and youth imprisonment are found in countries/jurisdictions where especially lengthy prison sentences—including life imprisonment—apply:

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International human rights standards universally condemn life imprisonment without parole for children, and now the United States is the only State which continues to sentence children to this form of extreme sentencing… Nonetheless, 73 States retain life imprisonment as a penalty for offences committed while under the age of 18 and a further 49 permit sentences of 15 years or longer and 90 for 10 years or longer… This… serves to highlight the prevalence and the plurality of laws permitting life imprisonment for children, laws that potentially condemn children to die in prison. (CRIN, 2015, p. 5)

In sum, the global practices of child and youth imprisonment impose profoundly detrimental impacts on some of the world’s most distressed, damaged and disadvantaged children. As such, the same practices pose deeply searching questions of the human condition and, Paulo Sergio Pinheiro reflects: For most of us, it is inconceivable that adults can be implicated actively in such barbarity to children – yet thousands are every day, in governments and parliaments, in courts and in the administration of these punishments. It makes a mockery of the international and regional human rights systems that such gross violations should continue. (cited in Goldson & Kilkelly, 2013, p. 369)

6

Outcomes

Child and youth imprisonment levies a substantial burden on the public purse. In the USA, for example, the Justice Policy Institute (2020, p. 1) notes: In 2020… 40 states and Washington, D.C. report spending at least $100,000 annually per confined child, with some states spending more than $500,000 per youth per year. The average state cost for the secure confinement of a young person is now $588 per day, or $214,620 per year, a 44 percent increase from 2014.

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In exchange for investing anything between $100,000 and more than half-a-million dollars per year for imprisoning every individual child, the public might expect a positive return in terms of community safety and public protection. Not so, however, as each of the Global Studies referred to above report: In the USA, virtually every study examining recidivism among children sentenced to juvenile detention facilities has found that at least 50–70%... are re-arrested within one or two years after their release. (Pinheiro, 2006, p. 200) Findings from the Global Study document… the ineffectiveness of detention as an instrument for enhancing longer-term public safety of communities… Placing a child in detention as a measure of crime prevention, crime reduction and/or community safety is largely ineffective and even counterproductive. (Nowak, 2019, pp. 250 and 334)

Indeed, both the short-term and the medium-longer term outcomes following periods of child and youth imprisonment are overwhelmingly poor. In analysing a wide-range of research studies regarding ‘reoffending and recidivism’, ‘educational attainment’, ‘employment and wage attainment’ and ‘health outcomes’, for example, the Justice Policy Institute (2020, pp. 9–11) concludes: Rates of reoffending, or recidivism, are the most frequently used metric to track the effectiveness of incarceration… Conclusively, a youth has a much better chance of avoiding future criminal justice involvement if they are supervised within the community… Incarceration severely limits a young person’s ability to advance academically… confinement negatively impacts educational attainment… it follows that individuals who have been unable to complete high school will struggle to find jobs that offer competitive wages… youth incarceration significantly reduces wages and weeks worked per year at age 40… Incarceration during adolescence… is independently associated with worse physical and mental health later in adulthood… Not only do confined youth have worse future health outcomes… [they] have higher risk health profiles in comparison to the general adolescent population. Depression is 1.5 times

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more prevalent and anxiety two to three times more common among this population.

If we consider the deleterious impacts of child and youth imprisonment alongside its spectacularly failing outcomes we might recall Foucault’s (1977/1991, p. 232) incisive observation that prison is ‘dangerous when it is not useless’.

7

Replacements

We opened this chapter by reflecting upon the global histories of child and youth imprisonment and noted that the knowledge that has accumulated since the inception of ‘specialist’ penal institutions for young people serves to unsettle the logics of progressive reform and question the very legitimacy and efficacy of such practices. As Miller (1991, p. 18) so astutely puts it: Reformers come and reformers go. State institutions carry on. Nothing in their history suggests that they can sustain reform, no matter what money, staff, and programs are pumped into them. The same crises that have plagued them for 150 years intrude today. Though the casts may change, the players go on producing failure.

As we have also seen, neither can we necessarily rely on global and European human rights standards to moderate the abuses and excesses encountered by young prisoners or to limit the extent of child and youth imprisonment. The very fact that human rights standards permit the penal detention of children—in the knowledge that it routinely imposes seriously harmful negative impacts—and simply attempt to limit the gravity of such impacts is anomalous. Indeed, in many countries of the world ‘reform talk’ emphasises the efforts that are being made towards developing ‘child-friendly’ juvenile/youth justice policies, practices, procedures and more ‘humane’ penal institutions and operational regimes but:

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… the concept of ‘safer custody’ or the ‘caring prison’ is, in essence, an oxymoron. There is little or no evidence to imply that the innumerable policies, practices and procedures designed to provide safe environments for children in penal custody have succeeded. (Goldson & Coles, 2005, p. 61)

Ultimately, irrespective of reform efforts and no matter how the practices of penal detention are dressed-up in human rights ‘talk’, to punish a child by way of imprisonment ultimately amounts to the deliberate imposition of ‘organised hurt’ (Hentig, 1937). Politicians, policy-makers and courts of law are not obliged to imprison children. Rather, they choose to do so. Moreover, they exercise such choice in the knowledge that child and youth imprisonment not only imposes profoundly harmful impacts but it also fails to provide positive outcomes when measured in terms of crime prevention and community safety. In the face of this, ‘The United Nations Global Study on Children Deprived of Liberty’ recommends that each country of the world needs to: Develop and implement a national strategy aimed at replacing the detention of children in penal facilities with non-custodial solutions based upon broad consultation with experts, civil society and children themselves. (Nowak, 2019, p. 336)

On the basis of compelling evidence, we endorse this recommendation and argue that the global juvenile/youth justice policy, practice and research communities should collaborate to develop determined strategies to replace child and youth imprisonment. Of course, we appreciate both the political and the practical challenges involved in realising this objective, but such challenges provide no reason for shirking responsibility. Moreover, the uneven distributions of child and youth imprisonment that we considered above indicate that it is possible, as is evident in identifiable countries, to manage juvenile/youth justice systems with minimal recourse to penal detention. Even in the USA, traditionally one of the most punitive sites in the world, the ‘Juvenile Detention Alternatives Initiative’ (JDAI)—a nationwide effort of local and state juvenile

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justice system to eliminate unnecessary and inappropriate use of child and youth imprisonment—has produced positive results: [The] JDAI has grown to become the most widely replicated juvenile justice reform initiative in the United States… The results provide evidence that JDAI sites have achieved significant reductions in both juvenile incarceration and juvenile crime; and in most sites, those reductions have been sustained or deepened over time… Across the 164 JDAI sites that reported in 2016, there were more than 3,800 fewer youth in detention on an average day in 2016 than before those sites undertook JDAI - a reduction of 43 percent. That means that over the course of a year, sites use about 1.4 million fewer days of juvenile detention than they used prior to JDAI. There were roughly 93,000 fewer admissions per year to juvenile detention facilities in JDAI sites - a decrease of 49 percent - compared with pre-JDAI levels. (Annie E. Casey Foundation, 2017, pp. 1–3)

Such initiatives comprise practical and symbolic beacons that signify the possibilities for replacing child and youth imprisonment and providing genuine justice for the world’s children.

References Amnesty International. (2016). Heads held high: Keeping Queensland kids out of detention, strong in culture and community. Amnesty International. Annie E. Casey Foundation. (2017). Juvenile detention alternatives initiative: Insights from the annual results reports. Annie E. Casey Foundation. Baeva, S. (Ed.). (2014). Children Deprived of Liberty in Central and Eastern Europe: Between Legacy and Reform. Bulgarian Helsinki Committee. Carrington, K., Hogg, R., Scott, J., Sozzo, M., & Walters, R. (2019). Southern criminology. Routledge. Cavadino, M., Dignan, J., & Mair, G. (2013). The penal system: An introduction (5th ed.). Sage.

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Children’s Commissioner for England. (2018). A report on the use of segregation in youth custody in England . Office of the Children’s Commissioner for England. Connell, R. (2007). Southern theory: Social science and the global dynamics of knowledge. Polity. Council of Europe. (2010). Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice (Adopted by the Committee of Ministers on 17 November 2010 at the 1098th meeting of the Ministers’ Deputies). Council of Europe. CRIN. (2015). Inhuman sentencing: Life imprisonment of children around the world . Child Rights International Network. Cunneen, C., Goldson, B., & Russell, S. (2016). Juvenile justice, young people and human rights in Australia. Current Issues in Criminal Justice, 28(2), 173– 188. Cunneen, C., Goldson, B., & Russell, S. (2018). Human rights and youth justice reform in England and Wales: A systemic analysis. Criminology and Criminal Justice, 18(4), 405–430. Dünkel, F. (2015). Juvenile justice and crime policy in Europe. In F. Zimring, M. Langer, & D. S. Tannenhaus (Eds.), Juvenile justice in global perspective. New York University Press. European Commission. (2021). Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: EU strategy on the rights of the child , COM(2021) 142 final, 24.03.2021. Brussels: European Commission. Farrell, P. (2017). Teenager waited hours for treatment after being injured by guards, documents say. The Guardian, 14 February. Fortin, J. (2008). Children as rights holders: Awareness and skepticism. In A. Invernizzi & J. Williams (Eds.), Children and citizenship. Sage. Foucault, M. (1977/1991). Discipline and punish: The birth of the prison. Penguin Books. Garland, D. (2013). Penality and the penal state. Criminology, 51(3), 475–517. Goldson, B. (2019). Reading the present and mapping the future(s) of juvenile justice in Europe: Complexities and challenges. In B. Goldson (Ed.), Juvenile justice in Europe: Past, present and future. Routledge. Goldson, B., & Briggs, D. (2021). Making youth justice: Local penal cultures and differential outcomes: Lessons and prospects for policy and practice. Howard League for Penal Reform. Accessed April 30, 2021 and available at: https:// howardleague.org/publications/making-youth-justice/

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Goldson, B., & Coles, D. (2005). In the care of the state? Child deaths in penal custody in England and Wales. INQUEST. Goldson, B., Cunneen, C., Russell, S., Brown, D., Baldry, E., Schwartz, M., & Briggs, D. (2021). Youth justice and penality in comparative context. Routledge. Goldson, B., & Kilkelly, U. (2013). International human rights standards and child imprisonment: Potentialities and limitations. International Journal of Children’s Rights, 21(2), 345–371. Goldson, B., & Muncie, J. (2012). Towards a global ‘child friendly’ juvenile justice? International Journal of Law, Crime and Justice, 40 (1), 47–64. Harker, H. (2015). Independent Review of Ashley Youth Detention Centre, Tasmania. Metis Management Consulting. von Hentig, H. (1937). Punishment: Its origins, purpose and psychology. Hodge. HM Chief Inspector of Prisons. (2017). HM Chief Inspector of Prisons for England and Wales annual report 2016–17 . Her Majesty’s Inspectorate of Prisons. House of Lords House of Commons Joint Committee on Human Rights. (2003). The UN Convention on the Rights of the Child (Tenth Report of Session 2002-03). London: Her Majesty’s Stationary Office. House of Lords House of Commons Joint Committee on Human Rights. (2009). Children’s rights (Twenty-fifth Report of Session 2008-09). London: The Stationery Office. House of Lords House of Commons Joint Committee on Human Rights. (2015). The UK’s compliance with the UN Convention on the Rights of the Child: Eighth report of session 2014–15. The Stationery Office. Justice Policy Institute. (2020). Sticker shock 2020: The cost of youth incarceration. Justice Policy Institute. Lacey, N. (2011). Why globalisation doesn’t spell convergence: Models of institutional variation and the comparative political economy of punishment. In A. Crawford (Ed.), International and comparative criminal justice and urban governance. Cambridge University Press. Maley, J., & Begley, P. (2016, October 27). Teens kept in cells for 23 hours a day. Sydney Morning Herald . Meldrum-Hanna, C. (2016, July 25). Australia’s Shame. ABC Four Corners. Accessed April 30, 2021 and available at: http://www.abc.net.au/4corners/ australias-shame-promo/7649462 Miller, J. (1991). Last one over the wall : The Massachusetts experiment in closing reform schools. Ohio State University Press.

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Ministry of Justice and Youth Justice Board. (2021). Youth justice statistics 2019/20, England and Wales. Ministry of Justice. Muncie, J. (2021). Youth and crime (5th ed.). Sage. New South Wales Ombudsman. (2016). Annual report 2015–16 . Office of the NSW Ombudsman. Nowak, M. (2019). The United Nations Global Study on Children Deprived of Liberty. United Nations. Office of the Inspector of Custodial Services Western Australia. (2013). Postincident management review paper. Office of the Inspector of Custodial Services. Pinheiro, P. S. (2006). World report on violence against children. United Nations. Stalford, H. (2012). Children and the European Union: Rights, welfare and accountability. Hart Publishing. Spielman, A. (2020). Letter from Amanda Spielman to the Secretary of State for Justice about Rainsbrook Secure Training Centre. Ofsted. Accessed April 30, 2021 and available at: https://www.gov.uk/government/publications/let ter-from-amanda-spielman-to-the-secretary-of-state-for-justice-about-rainsb rook-secure-training-centre United Nations Committee on the Rights of the Child. (2002). Thirty-first session: Consideration of Reports Submitted by States Parties under Article 44 of the Convention -Concluding observations: United Kingdom of Great Britain and Northern Ireland . Geneva: United Nations. United Nations Committee on the Rights of the Child. (2007, January 15– February 2). General comment no. 10: Children’s Rights in Juvenile Justice (Forty-fourth session). Geneva: Office of the High Commissioner for Human Rights. United Nations Committee on the Rights of the Child. (2008). Forty-ninth session: Consideration of Reports Submitted by States Parties Under Article 44 of the Convention -Concluding observations: United Kingdom of Great Britain and Northern Ireland . Geneva: United Nations. United Nations Committee on the Rights of the Child. (2016). Committee on the rights of the Child Concluding observations on the fifth periodic report of the United Kingdom and Northern Ireland . Geneva: United Nations. United Nations Committee on the Rights of the Child. (2019, September 18). General comment No. 24 on children’s rights in the child justice system. Geneva: Office of the High Commissioner for Human Rights. United Nations General Assembly. (1985). United Nations Standard Minimum Rules for the Administration of Juvenile Justice. New York: United Nations.

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United Nations General Assembly. (1989). United Nations Convention on the Rights of the Child . United Nations. United Nations General Assembly. (1990a). United Nations Guidelines for the Prevention of Juvenile Delinquency. New York: United Nations. United Nations General Assembly. (1990). United Nations Rules for the Protection of Juveniles Deprived of their Liberty. United Nations. United Nations Office on Drugs and Crime. (2021). DATAUNODC: Persons held in prisons. New York: UNODC. Accessed April 30, 2021 and available at: https://dataunodc.un.org/data/Prison/Persons%20held%20in%20prison Winterdyk, J. A. (2002). Introduction. In J. A. Winterdyk (Ed.), Juvenile justice systems: International perspectives (2nd ed.). Canadian Scholars’ Press.

4 Unaccompanied Migrant Children: Reality and Perspective in Spain María Inmaculada Ruiz-Fincias

1

Introduction

The present chapter undertakes a comprehensive analysis of the Unaccompanied Migrant Children (UMC) situation that focuses on the Spanish experience. In particular, it explores what happens to those minors when they reach legal age and become Unaccompanied Migrant Youth (UMY). We begin with an overview of the relevant legal background in Spain, and also provide a breakdown of the characteristics of these children and minors. Later, we review the current social assistance policies, while paying special attention to residential treatment and complementary support programs that facilitate social adaptation. Thorough references are also made to the applicable laws involved. Finally, we provide examples of some good practices that are currently used with the UMC and M. I. Ruiz-Fincias (B) Universidad Camilo José Cela, Madrid, Spain e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 S. Gomes et al. (eds.), Incarceration and Generation, Volume I, Palgrave Studies in Prisons and Penology, https://doi.org/10.1007/978-3-030-82265-1_4

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UMY, and offer specific proposals for the improvement of the present system.

2

From an Emerging Phenomenon to a Consolidated Situation in Spain: A Look at the Recent Past

Migratory movements in Spain have wavered between positioning the country as either a receptor of migrant population or as a steppingstone for those migrants’ journeys to third countries. These variations have been due to various migratory movements and are the result of the current historical, political and social forces affecting our planet. In addition, the various Spanish territories affected by these migratory movements have also been undergoing change. Owing to Spain’s geographical situation, its Southern coasts as well as the Canary Islands with their proximity to the African continent, make for a natural ‘entry gate’ to Europe for many migrants from North Africa and sub-Saharan Africa. Thus, Spain acts as Europe’s Southern border, in many cases as a country of destination, while in others as a transit territory for those migrants who arrive at its shores. For those Unaccompanied Migrant Children (UMC) in particular, the journey is especially singular and stressful.

2.1

Evolution of Migration in Spain

According to Spain’s National Statistics Institute (in Spanish, INE), the increase in Spain’s immigrant population in the last few years is an irrefutable fact. In January 2002 immigrants made up 4.23% of the general population; however, by January 2020 that figure had almost tripled, reaching 11.06% (INE, 2020a). Initially, Spain was a receiving country for men and women from Latin America parallelling the European migrations that have steadily continued. The so-called ‘crisis of the dugout canoes’ in 2005 and 2006 opened new access routes to Spain

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for African populations. Later, along with the economic crisis suffered in Spain in 2008, immigration slowed down and even underwent years of recession. The migratory movement was inverted, and even showed negative numbers until the second semester of 2015, when Spain regained its position as a population receiving country (INE, 2020b). According to the data gathered by the INE, historically, immigrants have come to Spain first from other European countries, followed by Latin Americans, and lastly by Africans (INE, 2020a). Importantly, it must be considered that not all residents in Spain are reflected in the data if their status is irregular and if they lack connections with the various public administrations. Due to their circumstances, the irregular legal situation of these individuals makes it difficult to develop a reliable precise statistical count.

2.2

Arrivals of UMC: A Growing Trend

In the case of minors, the trend of arrivals and presence in Spain has been similar to that of adults. But there has been a significant change in the last few years, with the arrival of the UMC, known in Spain as Unaccompanied Boys, Girls and Adolescent Migrants (NNAMNA, acronym in Spanish) or Unaccompanied Foreign Minors (MENA, acronym in Spanish), who come mainly from the Maghreb and sub-Saharan countries (Spanish Network for Immigration and Refugee Assistance, 2019), demanding immediate attention. In its annual reports, the Spanish Attorney General’s Office (FGE in Spanish) does not reflect the data of all migrant minors, but it does compile and publish information on the phenomenon of those UMC who arrive at the Spanish coasts in rafts or homemade fragile vessels. The FGE reports show an exponential rise in arrivals, especially since 2013, and reaching its statistical peak in 2018 (FGE, 2020). Figure 1 shows that in 2018 there were 7,026 unaccompanied foreign minors who arrived by sea, which corresponds to a 199.61% increase with respect to 2017, and a 4,318.87% increase regarding similar arrivals in 2013. Those minors are primarily males (96.9%), and come from Morocco (61.89%), followed by the Republic of Guinea (14.10%), Mali

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Fig. 1 Arrivals of UMC in makeshift small boats and similar fragile vessels (Source Author’s own work based on data from the FGE Annual Reports [2015, 2020])

(8.15%), and Algeria (5.6%). The rest come from the Ivory Coast, Gambia, India, Bangladesh and Saudi Arabia (FGE, 2019). Similar tendencies are shown by data from the Spanish National Police’s MENA Registry (RMENA, acronym in Spanish), managed by the Central Repatriation Unit (UCER, acronym in Spanish) of the CEFRONT (Central Border Unit, acronym in Spanish). Their task is to register the total number of unaccompanied children and adolescents, who as such are in a vulnerable situation (Fig. 2). Both tables above show the similarity in the increase since 2013. The highest increase took place in 2018, when the totals doubled from the prior year. In order to remain focused on our analysis, according to the INE data, as of 1st January 2020, in Spain there were 8,232,927 minors aged between 0 and 17 years of age, with foreigners making up 11.11% of that total. If we look only at the UMC, despite the increase in their arrivals in Spain in the last few years, as of 1st January 2020 that group represented only 0.15% of minors under 18 years of age in the country. As of 1st of January 2020, when we focus on the 14 to 17-year-old segment on record in Spain since 2012, specifying whether these young

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Fig. 2 The MENA Registry (Notes * Includes accompanied minors in at-risk situations. ** In light of the massive arrivals of immigrants to the Canary Islands, humanitarian attention has been given priority over the registration of minors, and there are about 300 minors in the province of Las Palmas and another 300 in Tenerife (Source Author’s own work using data furnished by UCER – CEFRONT)

people possess Spanish nationality or not, we find the following statistics (INE, 2020a) (Table 1): As can be observed, foreign minors make up 9.09% of all minors between 14 to 17 years of age. Currently, we do not have percentage data for the UMC in this age segment who are under tutelage.

3

Characteristics Specific to Unaccompanied Migrant Children and Adolescents (UMC)

Notwithstanding the fact that we are dealing with children and adolescents who share general characteristics with other members of their same age group, we should not forget that because of their previous life experiences, as well to those encountered in their migratory trajectory and their

1,768,089 17,813 1,944,902

1,732,824 161,050 1,893,874

2019 1,698,498 151,276 1,849,774

2018 1,658,320 150,170 1,808,490

2017 1,618,891 154,849 1,773,740

2016 1,584.238 164,233 1,748,471

2015

1,542.966 179,392 1,722,358

2014

Source Author’s own work using data from the Spanish National Statistics Institute (INE, 2020a)

Spanish Foreigners Total

2020

Table 1 Historical development of number of minors between 14–17 years of age 1,513,792 195,451 1,709,243

2013

1,506,921 203,595 1,710,516

2012

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uncertain future, this particular group presents specific characteristics that must be taken into account.

3.1

Unaccompanied Migrant Children (UMC)

We can find many definitions and their corresponding acronyms for these migrant minors. Unfortunately, in many cases these definitions have been tainted with discriminatory innuendo and nuances. The Spanish Secretary of State for Security (hereinafter SES), through its 1/2017 directive (dated 24 April) updates the ‘Protocol for Action Steps when dealing with minors’ and defines that term in Sect. 8.2.2. as follows: It is understood that a unaccompanied foreign minor (MENA, acronym in Spanish) refers to a person under 18 years of age and a national of a foreign state that falls outside the application of the European Union regime, who arrives legally or otherwise in Spanish territory without being accompanied by a responsible adult, and manifests a risk to his personal integrity; as well as referring to any foreign minor that is found to be in such situation once in Spain. (p. 29)

The above definition is also applied to the present term used to refer to those unaccompanied migrant boys, girls and adolescents, or NNAMNA (acronym in Spanish). The term ‘foreigner’ has been eliminated from this acronym in order to be aligned with the terminology used by the Committee for Children’s Rights when referencing minors. Moreover, this new terminology eliminates the requirement of a ‘risk of vulnerability’ or lack of protection under Article 189 of Spanish Royal Decree 557/2011 dated 20 April (hereinafter referred to as REX), which meant an additional restriction regarding the European Union Directive 2011/95/UE dated 13 December 2011. In the last few years, the nuances in the terms utilized have changed in an effort to avoid stigmatizing these minors (Romo, 2020). At present, the preferred term used—although others have continued to be utilized—is that of unaccompanied migrant children and adolescents. That is the term used by the Spanish Ministry for Social Rights

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and Agenda 2030, as well as the ‘Integral Plan of Attention for the NNAMNA’. These complications in terminology are not found in the international literature, where UMC is the accepted term, and does not include any discriminatory nuances due to gender or national origin.

3.2

Social Perception and the Latest Research on the UMC

In its 2003 Annual Report, the Spanish Attorney General (FGE) was already pointing to the fact that ‘the phenomenon of the unaccompanied foreign minors is a worrisome matter that calls for special attention and shows a quantitative increase year after year which generates serious difficulties for those institutions in charge of offering protection to those minors’ (p. 612). As a result, efforts by the social and intervention entities began to specialize the assistance given and provide a more adequate response to the needs of the UMC (González, 2010). However, the integration objectives have not always been reached, either because of deficiencies in the system or individual difficulties faced in the ensuing interventions. This situation, combined with the increase mentioned in the quantitative representation levels among foreigner populations, results in a wider presence of the migration phenomenon in the mass media, along with the accompanying difficulties it presents for Spain as a receiving country (Albalat, 2019; Calvo, 2019; Martín, 2020; Medina, 2020; Zuloaga, 2020). In addition, in the specific case of the migrant children, the treatment and focus given by the news media highlight maladaptive and antisocial behaviors while at the same time emphasizing the violence committed in the crimes involved. They cite police unions for being knowledgeable of those situations while at the same time denouncing them (Santos, 2020). Likewise, they admit that even though the protagonists are not only children or young people, the news headlines often place the spotlight on them. These UMC, along with their Spanish counterparts, are all in need of a support system for the protection of children. In their role as victimizers, they most likely have the opportunity to commit crimes. However,

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because of a certain type of political discourse, the treatment and publication of news by the mass media, as well as the information that is occasionally distributed through social media, often places the focus on immigrants first, and Spanish minors second when viewing their role as delinquents (Aierbe, 2002; Checa & Arjona, 2011; Espinar & Ruiz, 2010; García-Castro & Barrantes, 2016). Thus, their needs as unaccompanied minors are pushed aside, to be assisted only in the public support systems for children and adolescents, which highlight their condition as ‘foreigners’ (Flores, 2018; López-Lajusticia, 2018). In the last few years various studies approach the migratory phenomenon as a variable related to juvenile delinquency (Checa & Arjona, 2011; Fernández-Pacheco, 2018; García-España, 2016; GómezFraguela et al., 2009; Sobral et al., 2010; Sobral, Gómez-Fraguela, et al., 2012; Sobral, Villar, et al., 2012). However, there is not much research and literature with regards to the existing general perception of these UMC. One of the most recent research studies combines first-hand information and the opinions of some professional groups involved in the assistance process to minors. These are Spaniards or immigrants who either fall within the scope of the juvenile justice system or that of the attention provided in the protective system for children and adolescents. More specific information was requested of the law enforcement agencies and workers involved in direct intervention with such minors, and the results showed serious differences in the perception of that reality despite the close proximity to the phenomenon for some of those groups. This situation can be potentially risky for providing adequate assistance to these UMC (Ruiz-Fincias, 2020). No research has thoroughly combined the public policies and action steps taken with regards to the UMC, neither during their pre-adult stage, nor when they reach legal age and are left out of the protective system of the corresponding regional governments. Bravo and SantosGonzález (2017) do approach the reality of the intervention models with the UMC in various regions in Spain, comparing it with European studies, but do not offer a complete picture of the situation. It is Epelde (2017), Moreno and Fernández (2019), Nicolae (2019), Ruiz et al. (2019) or Vinaixa (2019) who explore the emancipation phenomenon as well as its difficulties, and find commonalities and flaws in the system.

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García-España (2016) reveals that the intervention with these minors is neither always adequate nor preserves their ‘best interest’. Instead, that best interest is to be found in the various opportunities available to youngsters once they reach legal age, regardless of their origin or their migratory plans. That is, when they find they are left out of the system and its protection. As the article’s title states, when they break laws, they go ‘from protected immigrant minors to incarcerated young foreigners’. This also affects how the phenomenon is perceived.

3.3

Predominant Characteristics of the UMC

In 2012 Moreno Vázquez (cited in García-España, 2016) indicates that there are two main UMC profiles: those who come from structured families that reside in rural areas and have no crime-related problems in their countries of origin, and then those who arrive with a background of delinquency and/or consumption of toxic substances, have families with problems or dysfunctional situations, and primarily reside in urban areas. Today we cannot consider those profiles as being accurate because of the wide range of individual situations that we find in the UMC who arrive in Spain. Within what is considered UMC, perhaps it would be useful to distinguish those who belong to a first or second generation. In both categories, they demonstrate differentiating characteristics in their behavior and risk factors related to their role in delinquency or social inequalities, whether as victims or victimizers (Fernández-Pacheco, 2018; FernándezPacheco et al., 2018). In the case of the UMC in Spain, we currently find that some of them could fit in the ‘second generation’ category. They have arrived in the company of adults who have later returned to their countries of origin, leaving the children behind to fend for themselves and to depend on the public administrations for protection and care. At present, determining who belongs to what group in Spain becomes a complex effort, and although we have administrative records to classify them as RMENA, whenever we come across a group of youngsters in our streets we are hard-pressed to differentiate their generation, age, and in many cases even their origin. We must add that the RMENA registers

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all foreign minors found to be in a vulnerable situation, regardless of whether or not they arrived accompanied by an adult. That could include minors who are what we understand to be ‘second generation’. At any rate, the RMENA provides statistics and objective data only for each UMC, but does not delve into internal or individual aspects. The common denominator we find in all cases is the absence of responsible adults who can fulfill their roles in providing guidance, education, care and emotional attachment. Generally speaking, as has been pointed out in the previous section, we are dealing with males arriving from the African continent, and in particular the Maghreb. There are other less representative countries of origin, and in the case of females we find that that they are girls or adolescents who migrate in the context of sexual exploitation, either as direct victims or simply fleeing from those situations. As far back as 2008, the annual reports of the Spanish Attorney General (FGE) have pointed out that such children have characteristic problems with integration that place them in a vulnerable situation. The reports also mention legislative difficulties and problems with the law, compounded by the many protection systems offered by the different regional governments in their response to the needs of these UMC. It is Navarro-Pérez and Pastor-Seller (2016) who find that the youngsters show limited autonomy in resolving problems, coupled with a high degree of impulsiveness. They further conclude that being able to count on a social support network and a stable affective environment during adolescence from families or other adults such as those afforded by a custodial system would act as a protective factor. There are various studies from the Santiago de Compostela University that investigate the influence of personal characteristics of immigrant minors and the onset of antisocial behaviors. In their research, Sobral et al. (2010) cite Berry (1997) and Collazos et al. (2008) who observe the influence that a ‘separation’ strategy of acculturation and its resulting stress could have in the context of antisocial behaviors or lack of adaptation to the minors’ new environment. Cutrín et al. (2015) conclude that the predominant risk factors in such adaptative scenarios are the absence of parental supervision and the pressure of antisocial peers. In this case, these factors are clearly present in the case of the UMC.

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Social and Political Response to the UMC

We have reviewed the evolution of this phenomenon and characterized some current aspects that are evident. In doing so, we must point out its framework, the legislative actions, intervention by law enforcement, and the psychological and social elements that affect these minors and youngsters in Spain.

4.1

The International Scope: Legislation and Intervention Matters

This chapter intends to show what is happening in Spain regarding our current migratory situation. However, the phenomenon is not exclusively Spanish, so we must look at what is also occurring at both European and international levels. Our subject matter is in a constant state of flux, and present in legislative as well as intervention stages. As a result, we shall not be able to take a deeper and more exhaustive look. Instead, we shall briefly discuss the European and international state of affairs in the field. Across the globe, migration movements flow toward areas with greater resources. In Europe, countries closest to developing areas, like Greece or Italy, receive a large part of the migratory flow. Of course, there are some UMC who will continue their journey toward even more prosperous countries like Germany or France (Menjibar & Perreira, 2019). Although there are similarities among countries in the case of the UMC phenomenon, we find in the legislative arena quite different migration policies, depending on which country we select. Over the years, Europe has proposed modifications in its policies to move toward a more efficient, humanitarian and safe implementation (Consejo de la Unión Europea, 2021). That is why there has been a search for answers to the crisis, especially since the one in 2015. Despite that, the political and legislative responses to the UMC phenomenon by some countries have not always been new, coherent or adequate. Many changes, even drastic ones, have not gone beyond reestablishing ‘past orders’ and give no specific answers to this new phenomenon (Lundstedt, 2020). In other instances, it is the venue where legal decisions are taken

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(the courts, governmental agencies, etc.) that has generated inequalities in the assistance and future of the UMC (Blue et al., 2020). In Spain, those inequalities are found in the processes of determining the minors’ age or the validation of their identity documents. In the United States, the situation is different owing to the multiple and complex operational and legislative layers that fail to guarantee an appropriate response to the UMC. Moreover, that country has yet to ratify the ‘Convention on the Rights of Children’. Furthermore, American policies contrast with the Spanish model in spite of the fact that in both countries the regional governments (autonomic regions or states) have control over the UMC. While in Spain national laws take precedence over the regional ones, in the United States it is the opposite. That means that there are as many differences there as there are states. As far as arrivals in Spain are concerned, we hardly see cases of minors being ‘separated’ from their families. The only exception is during a short period to allow for the minimum time necessary in establishing identity and clearing doubts. In the rest of Europe the practice of separation is also uncommon. On the contrary, in the United States, we do find multiple cases of this phenomenon. When the adults are screened separately for possible repatriation, their children are sometimes left behind in the care of social agencies. While it is true that Spain does not habitually repatriate the UMC, there is a small number that decide to return with their families when this is considered to be in their best interest. On the other hand, the number of deported UMC in the United States is much higher because of the intensive application of immigration laws at the various federal, state and local levels (Amuedo-Dorantes & Puttitanun, 2018). Likewise, at the administrative level, the policies to obtain regularization are diverse. There are initiatives like the Deferred Action for Childhood Arrivals (DACA) at the federal level. Thus, in no case is the regularization of the UMC in the States comparable to that established in various European countries, including Spain. These differences in policies and laws also influence the organization of the assistance centers. When policies are not adapted to a concrete reality, massive arrivals catch the involved officials off guard and impede a smoothrunning system (Roschelle et al., 2018). Along with that situation, there

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are ambiguous or contradictory social intervention practices that have a far-reaching effect on the lives of the UMC (Lems et al., 2020). The European Union, through a pronouncement of the European Economic and Social Committee (hereinafter, CESE) concerning ‘The protection of unaccompanied migrant children’, makes a number of observations and recommendations to help unify the steps of action taken. In particular, their first recommendations are as follows: 1.1. The European Economic and Social Committee (CESE) recommends once again that the principle of «the minor’s best interest» shall have priority over the rest of national or international norms. 1.2. The CESE urges the European Union (UE) to develop a coherent and harmonized approach for the protection of unaccompanied foreign minors (MENA) in Europe (p. 24). In these specific recommendations, as well as the rest of the document, there is a call to provide adequate treatment for the UMC, and to have their needs looked after in an individualized manner. There are many international studies that defend what the CESE sets forth as providing an adequate response. The specific needs in the health, legal and cultural spheres (Clements et al., 2020; Radjack et al., 2020; Statz & Heidbrink, 2019), and the training and improvement of the treatment teams and entities (Crea et al., 2018) are deemed to be basic, and are equally found in those needs encountered in Spain. Moreover, just as with the difficulties facing the UMY, in the case of the American UMC who have been re-integrated into a family system or who have gained outright emancipation following the end of their protective system (Cardoso et al., 2019), the conclusion is that we must offer better follow-up and continue providing support. These same needs are found in Spain, and it is in this specific context that these proposals for improvements are made.

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Current Legislation in Spain: A Brief Description

Owing to the UMC’s special characteristics, the applicable norms which are supposed to provide protection are not only diverse, but also touch on different aspects, such as the protection afforded to guarantee the rights of children (reflected in various international, European, Spanish national and regional laws). They also include the legislation applied to foreigners in general by the Spanish government. On one hand, the protection of children and adolescents comes under the application of the current international legislation. Those elements that are mandatory at the national level have been ratified and adopted along with the regulatory response that each regional government must take into consideration when adopting an adequate response to such phenomena. On the other hand, the laws affecting foreigners fall exclusively under national jurisdiction, and are applied throughout Spain, regardless of regional differences, and no exceptions have been made. At present, laws guaranteeing the protection of minors, which would include the UMC, are applied in Spain by means of the following: a. Those originating at the international and European level and adapted to the Spanish national level: • The Declaration of the Rights of Children, dated 20 November 1959. • The United Nations Convention on the Rights of Children, dated 20 November 1989, and ratified by Spain on 30 November 1990. • The European Charter on the Rights of Children, passed by the European Parliament on 8 June 1992. • Various accords and resolutions regarding the UMC adopted by the European Council in the last few years. b. Specific to the national scope, and applicable throughout the Spanish territory: • The Spanish Constitution of 1978.

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• Spanish law 21/1987, dated 11 November, reforming the Civil Code. • Organic Law 1/1996, dated 15 January, the Legal Protection of Minors. • Organic Law 8/2015, dated 22 July, modifying the Protective System for Children and Adolescents. • Spanish law 26/2015, dated 28 July, modifying the Children and Adolescents Protective System. • Organic Law 5/2000, dated 12 January, regulating the Criminal Responsibility of Minors. c. Regional Scope: • Various statutes of autonomic governments and/or legislations and norms of an autonomic nature for each of the 17 regions and 2 autonomic cities. Generally speaking, the primary objective of the above legislation is to care and watch over the ‘minors’ best interest’ in all aspects. This legislation protects their rights and determines the resources and actions necessary for their integrated protection. With respect to the current legislation on foreigners that at the national level affects all UMC residing in Spain, we find the following laws to be applicable: • Organic Law 2/2009, dated 11 December, reforming Organic Law 4/2000, dated 11 January, regarding the rights and freedoms of foreigners in Spain and their social integration (and subsequent updates to this date). • Royal Decree 557/2011, dated 20 April, which approves the regulation of Organic Law 4/2000, regarding the rights and freedoms of foreigners in Spain and their social integration (and successive updates to this date). It should be pointed out that a public referendum was held on 28 January 2021 regarding a specific reform that would allow UMC and UMY easier access to the job market. It is expected that later on this year, and after considering the public’s input, a proposal

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would be made to modify the Royal Decree. That, in turn will go through the Spanish parliamentary process. • Instruction 1/2020 dated 6 March from the Spanish Secretary of State for Migrations (SEM, in Spanish) which permits foreign minors of legal working age to be employed. • Instructions and information notes from the Spanish Attorney General’s Office and other specific instructions regarding the legislative treatment of the UMY (i.e., Instruction 6/2004 dated 26 November, concerning the legal treatment of unaccompanied foreign migrant minors) In general, the above legislation establish the requirements that foreigners must meet in order to access the rights granted by Spain to ensure equality. Their provisos detail which requirements must be met to obtain legal residence and/or work permits as well as to renew these. In addition, they also include the procedures to be applied when a citizen is expelled from Spanish territory. We should point out that SEM Instruction 1/2020 opened new possibilities because of the opportunities given to the UCM for their incorporation into the job market as long as they reached the Spanish legal working age of 16. Later on in this chapter, we shall discuss the importance that this instruction has had in both UCM and UMY processes, as well as a proposal for the legislative modification mentioned above, with the pending approval of the Royal Decree. In addition, because of the multiple aspects that this phenomenon presents, legislation has been passed which involve various ministries (Justice, Interior, Work and Social Security, Health, Social Services and Equality, Foreign Affairs and Cooperation, as well as the State Attorney General’s Office) in order to provide an integrated response to the UMC phenomenon: 1. Framework protocol regarding specific actions applied to unaccompanied foreign minors, passed by resolution dated 13 October 2014 from the Under Secretary of the Ministry of the Presidency.

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The aim of this protocol is to coordinate the intervention of all institutions and administrations involved (locating and identifying the minor, determining its real age, handing over to the public service agencies for the protection and documentation of minors, etc.). This ensures compliance with the regulatory stipulations in Article 190.2 of Spanish Organic Law (LO) 4/2000, dated 11 January, regarding the rights and freedoms of foreigners in Spain and their social integration. Furthermore, the LO intends to specify all possible situations that the Spanish State could face in a UMC case. The law covers controversial matters such as the various procedures involved in determining age in questionable cases, the specific approach to be used when dealing with the trafficking of persons, protocols governing the repatriation to their countries of origin, as well as protection procedures and the management of documentation. This amalgamation of laws poses difficulties in its application. There are occasional confrontations among the various agencies, which in the case of the UMC means that until we find legislation that protects them as minors, quite often those minors are placed in vulnerable situations when they are simply treated as ‘foreigners’ (Flores, 2018). In her work, this author points out that several reports reflect this confusing reality (UNICEF, The Spanish Ombudsman (‘Defensor del Pueblo’), Save the Children España or NGOs specialized in the UMC situation). Those reports confirm that ‘the condition of foreigner takes precedence over the minor’s age’, and also question the adequate functioning of the protective system for minors.

4.3

Law Enforcement Actions: Unified at the National Level

To ensure a unified response by all law enforcement agents, there is a legislative framework that deals with the particular situations encountered by the UMC. This is regulated by means of the specific sections in the ‘Framework protocol concerning certain police actions with the

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MENA’, passed as a resolution on 13 October 2014, and also by Instruction of the Secretary of State for Security 1/2017, dated 24 April, by which the ‘Protocol for police action regarding minors’ is updated. There are other complementary instructions from the SES that can be applied in these cases, such as Instruction 6/2016, dated 15 June, as well as ‘regarding the actions by the Spanish law enforcement agencies in their fight against the trafficking of persons and the co-operation with organizations and entities with proven experience in providing assistance to the victims’. Those establish the general and specific action steps that must be carried out by law enforcement agents when dealing with minors, and take into account the reality of the UMC. In the case of the Framework Protocol, the whole document focuses on providing specific answers to the needs of the UMC in order to uphold their rights once they are located. It is stipulated that the action steps to be taken—administrative, legal and law enforcement—during the various phases which the UMC go through from the moment that minor sets foot on Spanish territory (Cabedo, 2010), cited in Ruiz et al., 2019) are four-fold: 1. Intervention (when the minor is located, identified and registered in the system); 2. Investigation (analysis of the particular biological, social and psychological circumstances of the individual UMC); 3. Decision (looking out for the minor’s ‘best interest’ in the case of repatriations carried out by the UCER unit of CEFRONT, as well as in the tutelage decrees on the part of the Spanish State), and 4. Execution (where the effective protection of the rights take place). In Sect. 8.2 of the Protocol for Police Action with Minors, there is a reference to the specific attention to be given to the UMC, which fits within the regulatory norm on foreigners (LO 4/2000). That section sets out step-by-step on how to proceed from the time the UMC is first processed to an investigation in order to rule out situations of the trafficking of persons. This also entails being registered with the RMENA and assigning a provisional Foreign Identity Number (NIE

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in Spanish). In addition, it establishes the method for informing the relevant public prosecutors about all the steps taken in order to determine the best means of protecting that UMC. Those measures can include tutelage and providing a legal guardian in a center or other designated place or handling the administrative procedures for repatriations should that be deemed to be the best way of safeguarding the minor’s ‘best interest’. In addition, it establishes guidelines on how to proceed with those cases that require an effective determination of the minor’s real age. Furthermore, as a specific technical instrument, we have the RMENA, formerly known as the ‘Registry of foreign minors in vulnerable situations’, created per Article 60.2 of the regulation for the execution of Organic Law 4/2000, dated 11 January, concerning the rights and freedoms of foreigners in Spain and their social integration, and approved by Royal Decree 864/2001, dated 20 July, that was subsequently designated as the ‘Registry of unaccompanied foreign minors’ in Article 111 of the Regulation of Organic Law 4/2000 (approved by Royal Decree 2393/2004, dated 30 December, and repealed by the current REX). The fact that the REX is a more technical tool has permitted the detection of flaws in its application, and remedial steps have been proposed. At present, the aim of the RMENA is to identify and locate each minor in a manifestly vulnerable situation as a result of being without a responsible adult or similar figure to ensure the delivery of vital and integrated care. As such, the registry includes data related to the identity and whereabouts of each minor, so that his ‘best interest’ can be looked after. It is not, as such, a registry of a criminal scope, but rather one of a civil nature.

4.4

Psychological and Social Steps and Intervention Actions: As Many Realities as There Are Regions

As we shall discuss later in this chapter, the integrated assistance of minors—and also that of the UMC—is transferred to the regional governments, who regulate and legislate the steps to be implemented.

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Said actions must be focused on the rights of the UMC, while respecting the precepts of LO 1/1996, as well as the rest of the national and international regulations concerning protective matters. To accomplish that goal, regional governments must develop individualized plans for each UMC, generally based on ‘actions oriented to the protection and integration, and designed to create equality of opportunities’ (Consejería de Políticas Sociales y Familia de la Comunidad de Madrid, 2018, p. 78). The policy of assistance to children is a competency transferred from the national government to the regional governments (and autonomous cities of Ceuta and Melilla). In their web pages we can view the assistance plans for the UCM, whether managed by public or private entities. There we can find assistance systems that quite often have nothing to do with each other. The UCM and UMY are treated completely different as far as support, assistance resources and care of their needs. Each regional government establishes its own method of addressing the needs according to the way their protective system is organized. Some have systems of intervention for the UMC that parallel the ones for Spanish children and adolescents in vulnerable situations. Others have mixed intervention circuits. And in a third regional group there is only a standardized system that simultaneously helps all children and adolescents in such vulnerable situations, regardless of their origin (Bravo & Santos-González, 2017). The common denominator is that in all regional systems and cases the UMC are treated from a perspective of primary concern for the protection of their rights. Even if they had lived ‘like adults’ prior to migrating from their countries, once they arrive in Spain the system treats them like children who require protection. Sometimes that treatment frustrates their migratory expectations of finding immediate work, as well as causes a clash with their cultural values and mores. Such is the case when children at an early age become autonomous and take on tasks that in Spain are reserved for adults. At present, those practices and action steps are being reviewed, with the hope that they can be improved and adapted in the draft of the ‘Integral Plan of Attention for the NNAMNA’ which should be forthcoming soon.

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18 Years and One day Old: Young Unaccompanied Foreign Migrants (UMY). A Special Situation, Vulnerabilities and Social-Political Response

Once the general situation of the UMC has been reviewed, we must now focus the analysis on the reality they face upon reaching legal age. Dealing with this matter is more complex because the existing social policies do not have a special category to address this matter clearly and adequately.

5.1

A Review of Present Spanish Legislation on This Subject

In the case of the UMY, we find there is no specific legislation that provides legal coverage, leaving them with the national norms that affect all Spanish citizens. Moreover, due to their condition as foreigners, they are subject to the above-mentioned laws that are specifically written to address adult migrants. Upon reaching legal age, which also means the end of the administrative tutelage, the UMY cease to be minors that need protection of their rights. But they are also in need of complete legislation that will guarantee their transition to adults with full rights. If they do not possess their Residence Permit to demonstrate their regularized status they will fall into the category of ‘irregular immigrants’, with all the added difficulties existing at all levels, especially in the legal, psychological and social context. As already mentioned, the Ministry of Inclusion, Social Security and Migrations forwarded a proposal at the end of January 2021 for a citizen review to sound out the possibilities of modifying and giving the REX more flexibility in providing access to administrative regularization and the assistance given to these young people. This was done not only to provide a specific response adapted to the subject of work permits, but also to reduce the vulnerability that many youths encounter after they

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reach a legal age. Some proposals have been considered and will be handled as a Royal Decree by the Spanish parliament.

5.2

How is the Youngster Prepared to Meet This Reality?

The protective system, regardless of the region it is found or whichever collective it addresses—whether migrant or national—envisions some itinerary stages to help prepare youngsters for autonomous living. Those stages involve on-the-job or pre-employment training programs, integration into the job market, psychological and social support, economic management and/or social assistance, training in life skills, etc. These programs come into play once the NNA reaches 16 years of age. From that age on, minors in the protective system cannot be returned to their families of origin either because those family bonds have deteriorated, or because it is not feasible to protect their rights. Therefore, an individual autonomous plan must be put in place prior to their upcoming legal age. Those candidates show more maturity than in the earlier stages, and the 16-year-old threshold is what allows them to access the job market as long as they have the consent of their legal tutors. In the case of the UMC, the possibility of accessing employment has materialized following the approval by the SEM of Instruction 1/2020. The Instruction provides access to the job market and was unequivocally regulated for those immigrant minors who were old enough to work. Instruction 1/2020 also allows them to request economic resources for their subsistence after having reached legal age. In addition, it also facilitates attaining the proper administrative documentation for a Residence and Work Permit. That is, provided the work contract meets the conditions required by the REX to grant the same conditions (minimum duration of one year, working on a full-time basis and having a salary equal to or higher than the government’s current inter-professional minimum salary). Despite the above assurances, the UMC migration does not generally involve the very young, although the average age is now dropping for those who arrive in Spain without any adult models (CAPV, 2008).

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Thus, the arrival of the UMC adolescents who are nearing legal age creates a complicated situation for them when it comes to developing an autonomous itinerary. The reasons are many: At age 16, they do not have the necessary minimum legal documents (such as tutelage and residence permit, which also includes permission to work), nor sufficient mastery of the Spanish language to become properly integrated in the pre-employment or job-training level. Finally, they also lack the social network, skills and qualifications that will let them find and hold a decent job. Given these circumstances, any attempt to prepare the UMC to live an independent life upon their reaching the majority of age presupposes an investment of time, effort and resources that quite often are not consolidated due to a lack of continuity beyond the legal age. The autonomous programs that begin at age 16 comprise two differentiated stages that run consecutively. The first, for 16- to 18-year olds, is implemented in the residential centers of the protective system for youth who have not reached legal age. Then there is a second, continuity stage, designed for 18- to 21-year olds, who have been able to build upon the initial stage of the work program and develop their autonomy prior to emancipation. The second part of the autonomy program takes place in the residential centers whose objective is to provide a transitional space for eventual emancipation. These centers go by different names according to the region to which they belong. But all have the objective of providing transitory housing to prepare for independent living, where the MUY can consolidate progress in their life-project. This network of living resources that provides support at the onset of legal age is notably less common than the legally mandated ones that exist to respond to the underage minors. In fact, many of these residential schemes are completely run by social entities or NGOs, which do not depend on the public administrations. But even if we were to combine the public and private space available, we still could not begin to cover the needs for all emancipations that are produced every year when those adolescents come of legal age. As such, there are many youngsters who on the day of their 18th birthday are left without the chance of accessing the network. That is because there are no available vacancies and/or because of the stringent requirements that are deemed indispensable for them

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to continue their autonomous project (i.e., administrative regulations). That is why it can be said that, as far as the protective resources are concerned, the intervention carried out with the UMC is in many cases only a ‘band aid’ cure that works during their childhood in covering some basic needs (food, housing, etc.) but that ceases to be effective once the protection of the Spanish State is no longer mandatory.

5.3

Difficulties that Arise

Ruiz et al. (2019) had already pointed out the ‘triple vulnerability’ in the case of UMC as a result of being minors, migrants and unaccompanied. This vulnerability becomes a ‘triple risk’ of social exclusion once the majority of age is reached, due to their condition as young, foreign and formerly under tutelage. During their stay in the care of protective services, the UMC face multiple difficulties that, unless addressed before their 18th birthday, may well limit their life plan beyond their legal age. From the beginning, we must point out that the protective services do not envision autonomous plans for an adult life from an adequate assessment of the needs of the UMC (both perceived and real). Rather, a tabula rasa is often applied, and the intervention is not individualized to obtain maximum results (Fuentes, 2014; Ruiz et al., 2019). It used to be that almost all UMC arriving in Spain did so with the goal of improving their life and work conditions. However, now the migratory project is not as clear: It takes place at an earlier age, perhaps due to the flight from violent situations or life-threatening risks in the country of origin. In those cases, it is vital to work with these UMC in order to adapt them to the realistic opportunities found in their foster country (CAPV, 2008; Ruiz et al., 2019). Another serious problem comes from the REX and other laws like Organic Law (LO) 1/1996, which give basic consideration to making available an official identity card and related documentation that will place these UMC as legal citizens with full rights, thus effectively protecting their ‘best interests’. The delays in the execution of this tutelage by the public administration creates a scenario allowing the UMC who are close to their legal age when they enter Spanish territory to forfeit the tutelage once they reach legal age. According to the

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Framework Protocol, the public administration has a three-month deadline from the declaration of vulnerability to dictate an administrative resolution recognizing tutelage for the children. Following that, the rest of the steps would be taken to provide the children with the necessary legal documents. According to the Framework Protocol, without the mandated tutoring the Residence Permit must be granted within 9 months from the time the UMC is handed over to the legal authorities. Certainly, there are many potential handicaps that arise and delay the children’s documentation process. For the UMC to be given a Residence Permit, it is absolutely necessary for that UMC to provide some legal identification from his country of origin, or at least some sort of official document to verify his identity. Unfortunately, many of these UMC arrive without such accreditation documents. This in turn causes further delays due to the lengthy administrative processes of the consulates of their respective countries. Not having these residency or residency/work permits limits the access to official or pre-employment job training, and as such to later employment. This situation is exacerbated by the difficulties already inherent due to their young age, and even by the current high unemployment situation in the host country. Because of the high unemployment rate in Spain, other better-trained Spanish youth have also been unable to access their first job when they reach the age of 18. Thus, the inadequate training and lack of support place those foreign minors in a clearly unfavorable position, especially so when there are deficiencies in the acculturation process and a poor mastery of the language (Vinaixa, 2019). This dearth of work opportunities prevents the UCM from having any security and guarantees because they do not have sufficient economic resources. Furthermore, the absence of such guarantees is a barrier to maintaining the legal status obtained when they were minors—if that is the case—thus turning them into migrant adults in an irregular situation (Senovilla, 2007). In addition, the lack of stability in staying within the administrative legal space by means of the Residency Permit also bars them from requesting and receiving social benefits that are established to favor social absorption at the national, regional or local levels. But even if those benefits can be accessed, they become hard to maintain since

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the document renewals require a minimum income that clearly surpasses those under the existing benefits. We must add that the undocumented situation presents them with barriers that make their social participation difficult (Tezanos, 2009). These barriers impede the guaranteed access to the health care system, the ability to open and maintain a bank account to deposit their social benefit allowances—if they are even received—or deriving their income from working in a depressed economy. Along with all these documents and economic challenges, there is also a lack of a social and family network that can provide material and emotional support (Avery & Freundichlinch, 2009; Mendes, 2009; Ruiz et al., 2019). Concerning material support, we find that if they cannot access a network that provides for the continuity of an autonomous program, they lack even those basic resources associated with the homeless population. This mechanism is not prepared to service the needs of the UMY, and also supposes the access of a vulnerable collective to a circuit of social exclusion, which can only turn into a dead-end street (Moreno & Fernández, 2019). Together, all those factors can generate greater social, psychological and cultural adaptation challenges, and aggravate situations of disadvantage, racism and xenophobia (Cea D’Ancona, 2015). We could summarize, as UNICEF (2009) already has, that once the UMY leave the protective circuit, they become ‘invisible’ for the system. Their life history and migratory experiences place them in a vulnerable situation in terms of drug consumption, as a result of a dearth of affective bonds and the difficulties involved in their psychological and social capacity to adapt. That is coupled with the internal perception of failure in their migratory projects (Markez & Pastor, 2010), with drug consumption becoming a ‘symptom’ as well of a way of evading the malaise created by the situations experienced.

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A Specific Look at the Residential Assistance System for the UMC and UMY

We have already mentioned that there is as much variety in the attention provided to the UCM and UMY as there are regions in Spain. The existence of a network and assistance is only mandatory in the case of the UMC resulting from the legislative requirement to protect their ‘best interest’ as minors. However, in the case of the UMY that attention involves fewer protocols, is more diffused and much more limited. Obviously, for the creation and proper functioning of those assistance networks, not only the migratory pressure upon each region, but also the available budgetary allocations demand more attention and resources. Yet, those are not uniform throughout the Spanish territory.

6.1

Types of Assistance and Their Management

When the responsibility of protecting the UMC by the national government is transferred to the regional governments, they are charged with safeguarding the rights of the UCM. At the same time, at the political level they are also made responsible and required to act to avoid the socalled ‘pull’ or ‘attraction effect’ (Gimeno, 2013). However, that is not the case when we refer to the UMY, given the scarce mandatory legal obligation.

6.1.1 Exclusive, Mixed or Normalized Assistance Bravo and Santos-González (2017) find different assistance models, resources and programs in those regions studied in their research on the UMC. They point out three models of intervention: an exclusive assistance network for the UMC; a mixed network in which there are resources for UMC and for the national population, and finally a circuit within the official network which provides assistance to the UMC without having to segregate them in any circumstance.

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The circuits are organized in either Intake or First Reception Centers or Urgency Centers, where the UCM first enter to have their needs immediately evaluated and covered. Afterwards, there is a subsequent referral made to a more stable center once the degree of vulnerability and appropriate tutelage is determined. There are also mechanisms for the ongoing assistance of non-urgent cases, where integrated, long-range intervention is attempted. Evidence shows that in the intake or first-reception centers, those specific resources for the UMC which provide good structure and support for their integration (i.e., teaching basic knowledge of the Spanish language, adjusting expectations and projects, etc.) work better because they entail a social support network which prioritizes close reference contact points. However, when they lack an educational project and accompanying support, those centers tend to become ghettos that harbor a high percentage of behaviors that encourage conflict. The non-urgent circuit seems to be better managed and adapted to the needs of the UMC when those centers are mixed, since the blend favors integration. In the assistance given to the UMY we find that there are few exclusive resources available, and the youth are assisted in normalized centers only if there is available room for them to be admitted. Furthermore, the long-range assistance could take place in specific centers that meet certain concrete needs such as behavioral problems, difficulties in psychological and social adaptation or addictions. These centers may be exclusive or normalized, and there are differences according to the particular region analyzed.

6.1.2 Public vs. Private Management The network is made up of public and privately managed assistance centers, which vary somewhat depending on the region where they are located. Moreover, longitudinal assistance may be provided in specific centers to meet some concrete needs such as behavioral problems, difficulties with psychological and social adaption, or addictions. The network is made up of public and private assistance centers, depending on the region where they are located. Such centers may also be exclusive or standardized, and must reconvert and readapt their workload to attend

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to the migrants. To a greater or lesser degree, there are less exclusive public centers, which attend to both national and foreign clients. In the case of the public resources, the integrated management (personnel, facilities, intervention project, etc.) depends on the public administration. In many cases, these are centers that have responded to the needs of Spanish national children and must be reconverted and re-adapt their work to assist the migrant children. There are far fewer public exclusive centers than the normalized ones, where both nationals and foreigners are served. With the substantial increase in arrivals, the opening of new centers has not always been managed directly by the public administration, hence the creation of a private circuit of exclusive centers or of a mixed-assistance nature. In order to set minimum operational guidelines while achieving certain uniformity regardless of the managing entities, ‘framework agreements’ have been created to regulate the minimum services to be offered, as well as the projects’ technical and financial conditions to be implemented (Dirección General de Familias, Infancia y Natalidad de la Comunidad de Madrid, 2020). These private centers are supported through contracts between the public administration and social entities and NGOs. The facilities themselves may be ceded by the regional governments, and there is also the possibility that the facilities may be owned by the entities whose projects are awarded. The professionals, the rest of the physical resources and the educational projects are the responsibility of the private social entity, which is then periodically inspected by the administration to ensure compliance with the standards included in the contract and the applicable ‘framework agreement’. In the case of the attention centers for the UMY, the availability of space is scarce and generally non-exclusive and shared with other nonforeign youth. In those cases, once the youth has reached the legal age, the assistance provided by social entities that have not entered into a direct contract with the administration is more prolific. Some of these resources rely on small public subsidies and as a result can be audited and supervised to ensure the quality of their services. Nevertheless, as these projects are focused on the attention to adults, the NGOs and social entities can create exclusively private programs,

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since they are not subject to any kind of accord or framework agreement such as the one that regulates the assistance given to the UMC or the continuity programs that lead to the emancipation of their charges. Occasionally, these are integrated assistance programs; however, in others economic support is provided to cover only the basic room and board needs, but without offering intervention or accompaniment programs.

6.2

Professionals Engaged in Direct Attention

6.2.1 Who Are the Intervening Professionals? There are various actors from the legal, law enforcement and intervention spheres who come into contact with the UMC and UMY. Within the legal protection afforded to minors, we find, among others, specialized teams who work in the juvenile courts. These are made up of judges, prosecuting attorneys, lawyers, and technical teams (psychologists, social workers and educators), as well as interpreters to facilitate communication. Together, they are charged with determining the UMCs’ risk or vulnerability level, and along with the regional government’s technical staff, can arrive at the most appropriate measures to retain the best interests of the children. Similarly, at the law enforcement level (local and national police and civil guard), we find teams specialized in attending to minors, not exclusively for migrants, but to provide specialized attention to minors in general. In the case of migrant minors, both CEFRONT and UCER units intervene, specifically in those cases involving repatriations. And finally, in the intervention process there are multidisciplinary teams that specialize in the attention to minors. The makeup of these teams varies according to the function of the particular center (large residence, shared apartment, a specific center, etc.) or whether it is oriented to minors or youngsters, as well as the regional government involved. According to the ‘framework agreements’, we find that an indispensable requisite for all centers entails the need for professionals trained in social intervention. The majority of these are educators, social integration staff and social workers. By the same token, there are also intercultural mediators that facilitate communication.

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In the specialized centers we also find psychologists and other health professionals, as well as private security staff whose function is to maintain an orderly environment. In addition, privately-run centers may incorporate additional staff with better-suited backgrounds, resulting in higher evaluation points and an advantage over other entities. In such cases, we are taking about teachers, intervention assistants, psychologists, health workers or just an increase in the number of professionals already included in the ‘framework agreement’, with the idea of improving the staff-client ratios. These teams are usually understaffed and offer unattractive work conditions, which create a high turnover among the professionals, with the ensuing collateral instability in the execution of the project and little fostering of positive relations with the children (CAPV, 2008). As far as the assistance programs for the UMY, the teams are even smaller and hardly provide continuing attention, but rather offer a temporary service. They attempt to offer assistance from general regional professionals to meet their needs, with the difficulties that the special characteristics of these youth entail.

6.2.2 Tools for Evaluation and Intervention In spite of the importance of this phenomenon, the regional and national governments still do not use specific, standardized evaluation tools to measure the needs and facilitate and orient the assistance given to these migrants. In an attempt to structure their work, the teams use some of the tools that are already utilized for the national population, which are neither validated nor adapted culturally so that the data they provide may be useful for the intervention plan.

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Specific Attention Programs: Some Examples of Good Practices

6.3.1 Programs of Accompaniment and Mentoring Some cities in the Spanish Basque Country have promoted the ‘Izeba Project ’ (Basque word that translates into ‘tío’ or ‘uncle’ in Spanish). This program encourages autonomous families—on a voluntary basis—to take on the role of facilitating agents in the social integration of the UMC (Epelde, 2017). Despite being a program aimed at minors, the relationships made are usually maintained even once the minor reaches the age of 18. Izeba supplies instrumental, emotional and informational support and has demonstrated very positive results, because it focuses specifically on the social and cultural integration of these unaccompanied minors, and does so in various environments. Furthermore, it facilitates the creation of wider and more heterogeneous networks, which make the social support greater and the integration simpler.

6.3.2 Work Insertion Programs One of the greatest challenges for these UMC and UMY is access to a job market with contracts that offer sufficient guarantees to facilitate their emancipation while allowing them to maintain a legal residence. In Madrid there are two programs, which, without providing specific assistance to migrants, do give integrated support for this collective through their work supply program, and have achieved remarkable results. For the UMC there is the JUNCO Program (Cooperativa Opción 3), and for the UMY the Tránsito Program (Fundación ISOS). Both support personalized employment training programs, act as intermediaries with businesses and help with the administrative bureaucracy for foreigners, such as the modification of residency permits to include the possibility of work.

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6.3.3 Attention Programs Specifically Designed to Address Cultural Diversity in the Mental Health Field Bravo and Santos-González (2017) had already found that the UMC reject specialized psychological assistance, the rejection being influenced by cultural factors that stigmatize mental health issues. The minors’ life and migratory history places them in a vulnerable situation as far as drug use is concerned because of a lack of affective bonds, but also due to the psychological and social adaptation challenges. In addition, there is their own perception of having failed in their migratory project (Markez & Pastor, 2010). Thus, drug consumption is a ‘symptom’ and a way of evading the upsetting situations they have encountered. In order to address these particular challenges, and because the assistance from a trans-cultural perspective is still outside the general healthcare intervention, there have been specific programs created. ‘Asociación DUAL’ manages the Psychiatric Evaluation and Psychotherapeutic Follow-up for the UMC that are offered by the Madrid regional government’s Protective Service. That program started in January 2020, and brings together a specialized team of psychiatrists, psychologists and cultural mediators in the health care system. The programs have been attending to the personalized needs of the UMC, as outpatients who present with mental health or drug addiction issues. Adherence to long-term treatment and interventions has been high, which has also facilitated the processes of their optimum psychological and social adjustment.

7

Conclusions and Proposals for the Improvement of the Present Flaws in the System

As we have indicated so far, it is an undeniable fact that the current system of attention to the needs of the UMC and UMY manifests clear deficiencies in various aspects. That leads us to conclude that the Spanish system does not function adequately, neither at the legislative nor at the

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intervention level. Both levels have encountered similar difficulties that exist at the international level. Given the global nature of this phenomenon, it would be useful to establish a common ground of action steps at the international and European levels, so as to develop coherence in the assistance for the UMC and UMY. Unifying laws and action steps can best do this. However, because of the complexity and challenges involved in making global proposals, we shall limit improvement suggestions to Spain. Improving such assistance, in addition to having positive repercussions for the betterment of the integration process, would also minimize the ensuing stigma and the social perception that they are a homogenous collective as well as a particularly conflictive one (CAPV, 2008; Ruiz-Fincias, 2020). In the following sections we suggest a few basic action steps that are deemed necessary to start changing the system and adapting it to our existing reality.

7.1

Legislative Steps

There are various laws that address the needs of these groups; however, many studies have found that there are significant differences in their application to our existing reality; in particular, there are difficulties when dealing with key matters such as the accurate determination the youth’s true age, or the delay in issuing the UMC with legal papers (Bravo & Santos-Gonzalez, 2017). Despite specific protocols regarding the accurate determination of age whose action steps are included in the Framework Protocol (2014) that is similar to those used throughout Europe, as well as other documents concerning good practices such as the one promoted by the Institutes of Legal Medicine in Spain (Garamendi et al., 2011) we still find tremendous failures arising from the lack of unquestionable legal documentation that can accurately determine a minor’s proper age. As a result, these minors are subject to physical tests that are clearly insufficient. These tests are based on standardized tables designed for Western subjects, and other individual cultural, psychological or social factors are not taken into account (García, 2017).

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In addition, and despite being specialized for the minors’ needs, the legal assistance given to the UMC and UMY does not factor in the intercultural perspective. As a result, we must count on specific attention staff to protect their rights, and not only in matters of repatriation, as has been done up to now (Flores, 2018), but also to adapt the current procedures to the ‘Child-friendly Justice’ concept that is increasingly being used nowadays. Laws must be adapted to avoid the violation of rights due to economic or national origin issues. We must allow the opportunity of accessing residence and work permits through more flexible criteria that will facilitate integration. These are ones that will not require constant institutional backing for economic status (i.e., requiring unrealistic income levels) or work requiring contracts with strong-arm conditions that in many cases are even unattainable for Spanish youngsters or adults. It would also be beneficial for our present welfare system to consider the elimination of administrative barriers for the access to health care, and educational, socioeconomic and welfare benefit systems, creating conditions of equality and fairness. With the above proposed steps, the capacity to foster autonomy and the chances for success in the emancipation process would also increase.

7.2

Resources Aimed at the Attention Issues: Increasing the Existing Ones

Those resources dedicated to direct assistance in all aspects must be reinforced, and different initiatives adapted to meet the present reality.

7.2.1 Types of Residential Centers In Spain, the child protective system and its associated housing resources, as well as those included in the emancipation plans, have grown hastily to give coverage to an immediate problem, often without fully considering if that is the best path to ensure the sought-after integration. It is clear that whether in the public or private sphere, the available housing offer is patently insufficient to answer the basic needs of these

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UMC and UMY. As such, it would be of paramount importance to increase the housing capacity of the assistance circuit before and after the clients reach legal age. This is necessary to provide successful long-term treatment, and to guarantee continuity. Moreover, it is equally important to do so with public support, even when those centers are run by private entities. By the same token, it would be appropriate to consider expanding those intervention models that are demonstrating the best integration results (Bravo & Santos-González, 2017). We should focus on the first contact in specialized centers and the long-term work in mixed centers that favor psychological and social adjustment.

7.2.2 The On-Going Training of Teams and Increase in Professional Staff As a result of the growth in numbers, places of origin and available intervention needs, it is possible to find both minors and youngsters being lumped together, so it would be desirable to maintain a constant effort to professionalize and train the teams, and to make this an intercultural process. In addition, we must reduce the client-staff ratios to provide more personalized attention, improve the profiles of the professionals assisting those clients to include new roles such as those of psychologists, criminologists or others, and to improve work conditions so as to bring stability to the staff and avoid turnover. All these conditions would allow intervention teams to develop in an integrated and coherent manner during the whole process. Moreover, other professional profiles in specific assistance should be included, such as psychologists or criminologists as this would help intervention projects to develop in a more integrated and coherent manner throughout the whole process. It would also be useful for the ‘framework agreements’ that establish minimums to be more ambitious and take into account the end-objective and specific needs to be covered by those interventions in favor of the UMC and UMY.

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7.2.3 Programs of Individualized Intervention At present and in many cases, the system’s various centers treat the UMC as if they were children, disregarding the fact that in their home countries they are often considered adults (Ruiz et al., 2019). Furthermore, they treat the UMY as if they were full adults without allowing them the time or adequate preparation to make the necessary transition. Providing attention is not enough to show good faith; in addition, it is essential to adapt such attention to the realities and the weak aspects that must be addressed. Moreover, we must carry out a specific evaluation for each unique case based on a real needs analysis (Fuentes, 2014; Ruiz et al., 2019) It is also important to evaluate expectations to align them with the available resources, without forgetting to apply the everimportant intercultural perspective (Bravo & Santos-González, 2017). In 2011, Newbigging and Thomas had already advocated the creation of programs that include the UMC and UMY in an integrated manner, with safe and appropriate housing, educational and leisure-time activities, while safeguarding their emotional welfare. To achieve that goal, it is important to expand specialized programs in all aspects (educational, health care, work-related, mental health, etc.) that can be adapted to the specific action steps in those intervention cases, thus ensuring individualized care.

7.3

Long-Term Attention Programs After Reaching the Legal Age

The scarcity of space and continuity of projects make for a situation of vulnerability that is multiplied once they reach legal age, and the work in the 16–18 year-old age group developed during their stay in the protective system is not really worth much in terms of the real integration of these UMC once they reach adulthood. Development of adequate autonomy plans and proper preparation for emancipation and adult life, provision of material, economic and personal support, and facilitating the coordination between the various

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system players, would provide the much-needed means to achieve the aim of full and adequate integration of these youths.

References Aierbe, P. (2002). Inmigrantes delincuentes, una creación mediática. Mugak, 19, 15–23. Albalat, J. G. (18 de septiembre de 2019). La fiscalía alerta del incremento de la tensión en el CIE de Barcelona. Elperiodico.com. https://www.elperiodico. com/es/sociedad/20190918/memoria-fiscalia-centro-de-internamiento-ext ranjeros-barcelona-7640395 Amuedo-Dorantes, C., & y Puttitanun, T. (2018). Undocumented youth in limbo: The impact of America’s immigration enforcement policy on juvenile deportations. Population Journal Economics, 31(2), 597–626. https://doi.org/ 10.1007/s00148-017-0666-8 Asamblea General de Naciones Unidas. (1959). Declaración de los Derechos del Niño (Resolución 1386 (XIV), de 20 de noviembre). https://www.bienestar yproteccioninfantil.es/imagenes/tablaContenidos03SubSec/CDN_1959_N R014578.pdf Asamblea General de Naciones Unidas. (1989). Convención sobre los Derechos del Niño (Resolución 44/25, de 20 de noviembre). https://www.ohchr.org/ SP/ProfessionalInterest/Pages/CRC.aspx Avery, R., & Freundich, M. (2009). You´re all grown up: Termination of foster care support at age 18. Journal of Adolescence, 32(2), 247–257. https://doi. org/10.1016/j.adolescence.2008.03.009 Blue, S. A., Hartsell, A., Torres, R., & Flynn, P. (2020). The uneven geography of asylum and humanitarian relief: place-based precarity for Central American migrant youth in the United States judicial system. Journal of Ethnic and Migration Studies, 46 (2), 1–20. https://doi.org/10.1080/136 9183X.2020.1732588 Bravo, A., & Santos-González, I. (2017). Menores extranjeros no acompañados en España: necesidades y modelos de intervención. Psychosocial Intervention, 26, 55–62. https://doi.org/10.1016/j.psi.2015.12.001 Calvo, J. R. (30 de agosto de 2019). 153 migrantes saltaron la valla de Ceuta y dejaron 11 guardias heridos. Cambio16.com. https://www.cambio16.com/ 153-migrantes-saltaron-la-valla-de-ceuta-y-dejaron-11-guardias-heridos/

142

M. I. Ruiz-Fincias

Cardoso, J. B., Brabeck, K., Stinchcomb, D., Heidbrink, L., Acosta-Price, O., Gil-García, O. F., Crea, T. M., & Zayas, L. H. (2019). Integration of unaccompanied migrant youth in the United States: A call for research. Journal of Ethnic and Migration Studies, 46 (2), 273–292. https://doi.org/10.1080/ 1369183X.2017.1404261 Cea D’ancona, M. A. (2015). Los efectos de la crisis económica en la modulación y evolución de la opinión pública española ante la inmigración. Migraciones, 37, 29–52. https://doi.org/10.14422/mig.i37.y2015.002 Checa, J. C., & Arjona, Á. (2011). Españoles ante la inmigración: el papel de los medios de comunicación. Revista Científica de Educomunicación, 19 (37), 141–149. http://dx.doi.org/10.3916/C37-2011-03-06 Clements, K. A., Baird, D., & Campbell, R. (2020). “It’s hard to explain”: Service providers’ perspectives on unaccompanied minors’ needs based on minors’ forms of immigration relief. Journal of International Migration and Integration, 21(2), 633–648. https://doi.org/10.1007/s12134-019-00668-x Comunidad Autónoma del País Vasco – CAPV. (2008). Memoria Socioeconómica 2008. https://www.cesegab.com/es-es/Publicaciones/Memoria-Soc ioecon%C3%B3mica Consejería de Políticas Sociales y Familia de la Comunidad de Madrid. (2018). Dirección General de Servicios Sociales e Integración Social. Plan de Inmigración de la Comunidad de Madrid 2019–2021. https://www.com unidad.madrid/transparencia/sites/default/files/plan/document/plan_de_i nmigracion_2019-2021.pdf Consejería de Políticas Sociales, Familias, Igualdad y Natalidad. (2020). Acuerdo Marco de acogimiento residencial en hogares de menores de 0 a 18 años atendidos, con cargo a la Dirección General de Infancia, Familias y Natalidad . http://www.madrid.org/cs/Satellite?c=CM_ConvocaPrestac_ FA&cid=1354844154095&definicion=Contratos+Publicos&language=es& op2=PCON&pagename=PortalContratacion%2FPage%2FPCON_contra tosPublicos&tipoServicio=CM_ConvocaPrestac_FA Consejo de la Unión Europea. (2021). Política de migración de la UE . https:// www.consilium.europa.eu/es/policies/migratory-pressures/ Constitución Española. (1978). Boletín Oficial del Estado, núm. 311, de 29 de diciembre de 1978, páginas 29313 a 29424. https://www.boe.es/buscar/doc. php?id=BOE-A-1978-31229 Crea, T. M., Lopez, A., Hasson, R. G., Evans, K., Palleschi, C., & Underwood, D. (2018). Unaccompanied immigrant children in long term foster care: Identifying needs and best practices from a child welfare perspective.

4 Unaccompanied Migrant Children …

143

Children and Youth Services Review, 92, 56–64. https://doi.org/10.1016/j.chi ldyouth.2017.12.017 Cutrín, O., Gómez-Fraguela, J. A., & Luengo, M. A. (2015). Peer-group mediation in the relationship between family an juvenile antisocial behavior. The European Journal of Psychology Applied to Legal Context, 7, 59–65. https:// doi.org/10.1016/j.ejpal.2014.11.005 Dictamen del Comité Económico y Social Europeo sobre «La protección de los menores migrantes no acompañados en Europa». Diario Oficial de la Unión Europea, núm. 429, de 11 de diciembre de 2020, páginas 24 a 29. https://eur-lex.europa.eu/legal-content/ES/TXT/PDF/?uri=CELEX:520 20IE2281&from=EN#:~:text=Un%20menor%20extranjero%20no%20a compa%C3%B1ado,la%20pr%C3%A1ctica%20vigente%20en%20el Epelde, M. (2017). Nuevas estrategias para la integración social de los jóvenes migrantes no acompañados. Revista Sobre La Infancia y La Adolescencia, 13, 57–85. https://doi.org/10.4995/reinad.2017.6546 Espinar, E., & Ruiz, R. (2010). El crimen en los programas informativos de la TV española. Cuadernos de información, 26, 65–76. https://doi.org/10. 7764/cdi.26.12 Fernández-Pacheco, G. (2018). Jóvenes de origen inmigrante en España y delincuencia: ¿Criminalización o realidad? Anuario de Justicia de Menores, 18, 15–38. https://dialnet.unirioja.es/servlet/articulo?codigo=7144466 Fernández-Pacheco, G., Torres, M., Mendes, S., & Marques, P. (2018). ¿Son los jóvenes de origen migrante más propensos a la delincuencia que los jóvenes portugueses? Revista Electrónica de Ciencia Penal y Criminología (en línea), 20–26, 1–18. http://criminet.ugr.es/recpc/20/recpc20-26.pdf ISSN 1695– 0194 Fiscalía General del Estado (FGE). (2003). Memoria 2003. https://www.fiscal. es/documentaci%C3%B3n Fiscalía General del Estado (FGE). (2015). Memoria 2015. https://www.fiscal. es/documentaci%C3%B3n Fiscalía General del Estado (FGE). (2019). Memoria 2019. https://www.fiscal. es/documentaci%C3%B3n Fiscalía General del Estado (FGE). (2020). Memoria 2020. https://www.fiscal. es/memorias/memoria2020/Inicio.html Flores González, B. (2018). La protección jurídica de los menores inmigrantes no acompañados en España. Revista de Derecho Civil, V (2), 321–362. http:// nreg.es/ojs/index.php/RDC

144

M. I. Ruiz-Fincias

Fuentes, R. (2014). Menores Extranjeros No Acompañados (MENA). Azarbe. Revista Internacional de Trabajo Social y Bienestar, 3, 105–111. https://rev istas.um.es/azarbe/article/view/198431/161701 Garamendi, P. M., Banón, R., Pujol, A., Aguado, F. F., Landa, M. I., Prieto, J. L., et al. (2011). Recomendaciones sobre métodos de estimación forense de la edad delos menores extranjeros no acompañados. Documento de Consenso de Buenas Prácticas entre los Institutos de Medicina Legal de España. Revista Española De Medicina Legal, 37 , 22–29. https://doi.org/10. 1016/S0377-4732(11)70057-8 García, T. (2017). El procedimiento para la determinación de la edad de los extranjeros no acompañados. Bases para un nuevo modelo [Tesis Doctoral]. Instituto Universitario de Estudios sobre Migraciones – Universidad de Comillas. https://repositorio.comillas.edu/xmlui/handle/11531/26598 García-Castro, J. D., & Barrantes, B. (2016). Percepción y miedo al crimen: Revisión de artículos en español 2004–2014. Reflexiones, 95 (1), 87–100. https://www.redalyc.org/articulo.oa?id=72949516005 García-España, E. (2016). De menores inmigrantes en protección a jóvenes extranjeros en prisión. InDret: revista para el análisis del derecho, 3, 27 págs. https://www.raco.cat/index.php/InDret/article/view/314413/404527 Gimeno, C. (2013). Menores que migran solos y sistemas de protección a la infancia. Zerbitzuan, 53, 109–122. http://dx.doi.org/10.5569/1134-7147. 53.08 Gómez-Fraguela, J. A., Sobral, J., Luengo, M.A., Romero, E., & Villar, P. (2009). El mito del inmigrante delincuente. Boletín Criminológico, 112. https://doi.org/10.24310/Boletin-criminologico.2009.v15i0.8741 González, A. (2010). Evolución del papel de las entidades de acción social y del educador social en la atención de los Menores Migrantes no Acompañados. Educación Social. Revista de Intervención Socioeducativa (en línea), 45, 166– 183. https://www.raco.cat/index.php/EducacioSocial/article/view/208604 Instituto Nacional de Estadística (INE). (2020a). Población residente por fecha, sexo, grupo de edad y nacionalidad (agrupación de países) [Fichero de datos]. https://www.ine.es/jaxiT3/Tabla.htm?t=9689 Instituto Nacional de Estadística (INE). (2020b). Estadísticas de migraciones. Flujo de inmigración procedente del extranjero por año, país de origen y nacionalidad (española/extranjera). https://www.ine.es/jaxiT3/Tabla.htm?t= 24295 Instrucción de la Fiscalía General del Estado 6/2004, de 26 de noviembre, sobre tratamiento jurídico de los menores extranjeros inmigrantes no acompañados. Gobierno de España. Ministerio del Interior. Fiscalía General del

4 Unaccompanied Migrant Children …

145

Estado. Boletín Oficial del Estado, FIS-I-2004–00006. https://www.boe.es/ buscar/doc.php?coleccion=fiscalia&id=FIS-I-2004-00006 Instrucción de la Secretaría de Estado de Migraciones 1/2020, de 6 de marzo, por la que se habilita a trabajar a menores extranjeros en edad laboral. Gobierno de España. Ministerio de Inclusión, Seguridad Social y Migraciones. Secretaría de Estado de Migraciones. https://extranjeros.inclusion.gob.es/ ficheros/normativa/nacional/instrucciones_sgie/documentos/2020/report_ final_200305_Instruccion_MENAS.pdf Instrucción de la Secretaria de Estado de Seguridad 6/2016, de 15 de junio, sobre actuaciones de las Fuerzas y Cuerpos de Seguridad del Estado en la lucha contra la trata de seres humanos y en la colaboración con las organizaciones y entidades con experiencia acreditada en la asistencia a las víctimas. Gobierno de España. Ministerio del Interior. Secretaría de Estado de Seguridad . http://www.adoratrius.cat/wp-content/uploads/2016/ 06/I-SES-6-2016-sobre-actuaciones-FCS-en-lucha-contra-TSH.pdf Instrucción de la Secretaría de Estado de Seguridad 1/2017, de 24 de abril, por la que se actualiza el “Protocolo de Actuación Policial con Menores”. Gobierno de España. Ministerio del Interior. Secretaría de Estado de Seguridad. http://www.sipepol.es/wp-content/uploads/2017/05/ 1234-PROTOCOLO-ACTUACION-POLICIAL-CON-MENORES.pdf Lems, A., Oester, K., & Strasser, S. (2020). Children of the crisis: Ethnographic perspectives on unaccompanied refugee youth in and en route to Europe. Journal of Ethnic and Migration Studies, 46 (2), 315–335. https://doi.org/10. 1080/1369183X.2019.1584697 Ley 21/1987, de 11 de noviembre, por la que se modifican determinados artículos del Código Civil y de la Ley de Enjuiciamiento Civil en materia de adopción. Boletín Oficial del Estado, núm. 275, de 17 de noviembre de 1987, páginas 34158 a 34162. https://www.boe.es/buscar/doc.php?id= BOE-A-1987-25627 Ley Orgánica 1/1996, de 15 de enero, de Protección Jurídica del Menor, de modificación parcial del Código Civil y de la Ley de Enjuiciamiento Civil. Boletín Oficial del Estado, núm. 15, de 17 de enero de 1996, páginas 1225 a 1238. https://www.boe.es/buscar/doc.php?id=BOE-A-1996-1069 Ley Orgánica 5/2000, de 12 de enero, reguladora de la responsabilidad penal de los menores. Boletín Oficial del Estado, núm. 11, de 13 de enero de 2000, páginas 1422 a 1441. https://www.boe.es/buscar/doc.php?id=BOEA-2000-641 Ley Orgánica 2/2009, de 11 de diciembre, de reforma de la Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en

146

M. I. Ruiz-Fincias

España y su integración social. Boletín Oficial del Estado, núm. 299, de 12 de diciembre de 2009, páginas 104986 a 105031. https://www.boe.es/bus car/doc.php?id=BOE-A-2009-19949 Ley Orgánica 8/2015, de 22 de julio, de modificación del sistema de protección a la infancia y a la adolescencia. Boletín Oficial del Estado, núm. 175, de 23 de julio de 2015, páginas 61871 a 61889. https://www.boe.es/buscar/doc. php?id=BOE-A-2015-8222 Ley 26/2015, de 28 de julio, de modificación del sistema de protección a la infancia y a la adolescencia. Boletín Oficial del Estado, núm. 180, de 29 de julio de 2015, páginas 64544 a 64613. https://www.boe.es/buscar/doc.php? id=BOE-A-2015-8470 López-Lajusticia, G. (2018). La construcción de la identidad. Menores Extranjeros No Acompañados, en contextos de protección. RES, Revista de Educación Social, 27, 71–92. https://eduso.net/res/wp-content/uploads/ 2020/06/construciden_res_27.pdf Lundstedt, A. (2020). State of control: Unknown migrant children. International Migration, 58(6), 123–138. https://doi.org/10.1111/imig.12670 Markez, I., & Pastor, F. (2010). Menores Extranjeros No Acompañados (MENA), un colectivo especialmente vulnerable ante las drogas. Zerbitzuan, 48, 71–85. https://dialnet.unirioja.es/servlet/articulo?codigo=3419593 Martín, C. (2 de julio de 2020). Un altercado en el CETI obliga a la intervención policial de madrugada. Ceutatv.com. http://ceutatv.com/art/24678/unaltercado-en-el-ceti-obliga-a-la-intervencion-policial-de-madrugada Medina, A. (2 de agosto de 2020). Llegan dos centenares de inmigrantes en pateras a las costas españolas. ElMundo.es. https://www.elmundo.es/espana/ 2020/08/02/5f26a6cb21efa057408b4586.html Mendes, P. (2009). Young people transitioning from state out- of- home care. Jumping hoops to access employment. Australian Institute of Family Studies, 83, 32–38. https://doi.org/10.1111/j.1365-2206.2010.00749x Menjivar, C., & Perreira, K. M. (2019). Undocumented and unaccompanied: Children of migration in the European Union and the United States. Journal of Ethnic and Migration Studies, 45 (2), 197–217. https://doi.org/10.1080/ 1369183X.2017.1404255 Moreno, G., & Fernández, I. (2019). Sinhogarismo y jóvenes extranjeros en Bilbao: la atención en un contexto de desbordamiento múltiple y secuencial de los recursos. Zerbitzuan, 70, 61–70. https://doi.org/10.5569/1134-7147. 70.04 Navarro-Pérez, J. J., & Pastor-Seller, E. (2016). Factores dinámicos en el comportamiento de delincuentes juveniles con perfil de ajuste social. Un

4 Unaccompanied Migrant Children …

147

estudio de reincidencia. Psychosocial Intervention, 26, 19–27. http://dx.doi. org/10.1016/j.psi.2016.08.001 Newbigging, K., & Thomas, N. (2011). Good practice in social care for refugee andasylum-seeking children. Child Abuse Review, 20, 374–390. https://doi. org/10.1002/car.1178 Nicolae, G. (2019). Predicción afectiva en el proceso migratorio de menores y jóvenes extranjeros no acompañados en acogida y emancipación [Tesis Doctoral] Universidad del País Vasco. https://addi.ehu.es/handle/10810/33243 Parlamento Europeo (1992). Carta Europea de los Derechos del Niño. Boletín de las Comunidades Europeas, 241, C, 0067-0073. https://www.caib.es/sac microfront/archivopub.do?ctrl=MCRST97ZI36262&id=36262 Radjack, R., Touhami, F., El Husseini, M., Bernichi, A., Mouchenik, Y., Minassian, S., & Rose-Moro, M. (2020). Les mineurs non accompagnés : des destins individuels qui interrogent le politique. Sante Mentale Au Quebec, 45 (2), 97–113. https://doi.org/10.7202/1075390ar Real Decreto 557/2011, de 20 de abril, por el que se aprueba el Reglamento de la Ley Orgánica 4/2000, sobre derechos y libertades de los extranjeros en España y su integración social, tras su reforma por Ley Orgánica 2/2009. Boletín Oficial del Estado, núm. 103, de 30/04/2011. https://www.boe.es/ buscar/act.php?id=BOE-A-2011-7703 Red Española de Inmigración y Ayuda al Refugiado. (2019). Informe Preliminar sobre los Menores No Acompañados en la Comunidad de Madrid . Recuperado de: file:///C:/Users/Administradora/Downloads/Informe%20 Menores%20Migrantes%202019%20(1).pdf Resolución de 13 de octubre de 2014, de la Subsecretaría, por la que se publica el Acuerdo para la aprobación del Protocolo Marco sobre determinadas actuaciones en relación con los Menores Extranjeros No Acompañados. Boletín Oficial del Estado, núm. 251, de 16/10/2014. https://www.boe.es/ buscar/act.php?id=BOE-A-2014-10515 Romo, J. (9 de enero de 2020). Javier Huete: “El término ‘MENA’ no es adecuado porque se utiliza de forma despectiva”. Elpueblodeceuta.es. https://elpueblodeceuta.es/art/44151/javier-huete-el-termino-mena-no-esadecuado-porque-se-utiliza-de-forma-despectiva Roschelle, A. R., Greaney, E., Allan, T., & Porras, L. (2018). Treacherous crossings, precarious arrivals: Responses to the influx of unaccompanied minors in the Hudson Valley. Children and Youth Services Review, 92, 65–76. https:// doi.org/10.1016/j.childyouth.2018.03.050 Ruiz, A. C., Palma, M. O., & Vives, C. L. (2019). Jóvenes inmigrantes extutelados. El tránsito a la vida adulta de los menores extranjeros no acompañados

148

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en el caso español. Ehquidad. Revista Internacional de Políticas de Bienestar y Trabajo Social, 12, 31–52. https://doi.org/10.15257/ehquidad.2019.0009 Ruiz-Fincias, M. I. (2020). Análisis de las opiniones de Población General, Fuerzas y Cuerpos de Seguridad y Personal de Intervención Directa con Menores respecto a la delincuencia juvenil nativa y extranjera: una primera aproximación [Trabajo Fin de Máster no publicado]. Universidad de Castilla-La Mancha. Santos, A. (23 de junio de 2020). Menas, a la cabeza de delitos dentro de la Casa de Campo: al menos 45 atracos y 30 detenciones. ABC.es. https://www.abc.es/espana/madrid/abci-menas-cabeza-delitos-dentro-casacampo-menos-45-atracos-y-30-detenciones-202006230106_noticia.html? ref=https:%2F%2Fwww.google.com%2F. Senovilla, D. (2007). Situación y tratamiento de los menores extranjeros no acompañados en Europa. Un estudio comparado de 6 países: Alemania, Bélgica, España, Francia, Italia y Reino Unido. Observatorio Internacional de Justicia Juvenil. https://www.ikuspegi.eus/documentos/documentos_e xternos/2007_Oijj_SITUACION_Y_TRATAMIENTO_DE_LOS_MEN ORES_EXTRANJEROS_NO_ACOMPANADOS_EN_EUROPA.pdf Sobral, J., Gómez-Fraguela, J. A., Luengo, M. A., Romero, E., & Villar, P. (2010). Adolescentes latinoamericanos, aculturación y conducta antisocial. Psicothema, 22(3), 410–415. http://www.psicothema.com/pdf/3745.pdf Sobral, J., Gómez-Fraguela, J. A., Romero, E., Luengo, M. A., & Villar, P. (2012). Riesgo y protección de desviación social en adolescentes inmigrantes: Personalidad, familia y aculturación. Anales de Psicología, 28(3), 664–674. https://doi.org/10.6018/analesps.28.3.155961 Sobral, J., Villar, P., Gómez-Fraguela, J. A., Romero, E., & Luengo, M. A. (2012). Interactive effects of personality and separation as acculturation style on adolescent antisocial behaviour. International Journal of Clinical and Health Psychology, 13, 25–31. https://doi.org/10.1016/S1697-2600(13)700 04-8 Statz, M., & Heidbrink, L. (2019). A better, “best interests”: Immigration policy in a comparative context. Law & Policy, 41(4), 365–386. https:// doi.org/10.1111/lapo.12135 Tezanos, E. (2009). Juventud y exclusión social: Décimo Foro sobre Tendencias Sociales. Sistema. Unicef. (2009). Ni ilegales ni invisibles. Realidad jurídica y social de los Menores Extranjeros en España. Informe 2009. https://www.unicef.es/sites/unicef.es/ files/informe_infancia_inmigrante_UNICEF_CGAE_2009.pdf

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Vinaixa, M. (2019). La mayoría de edad: un mal sueño para los menores extranjeros no acompañados. Cuadernos de Derecho Trasnacional, 1(11), 571–602. https://doi.org/10.20318/cdt.2019.4633 Zuloaga, J. M. (15 de agosto de 2020). Los yihadistas tratan de entrar en España a bordo de pateras. LaRazon.es. https://www.larazon.es/espana/202 00815/ru5mvxug2jf5xprqrsoj2yw2iy.html

5 European Justice Systems and a Developmental Approach to Young Adults’ Incarceration Kirti Zeijlmans, Take Sipma, and André M. van der Laan

1

Introduction

Sanctions and measures are most effective when in tune with the nature of the group of offenders, according to the Risk-Need-Responsivity model (Bonta & Andrews, 2007). As young adults show ongoing neurological, psychological and social development (Blakemore & Robbins, 2012; Cohen et al., 2016), it can be argued that the most current K. Zeijlmans (B) · A. M. van der Laan Research and Documentation Centre (WODC), The Hague, The Netherlands e-mail: [email protected] A. M. van der Laan e-mail: [email protected] T. Sipma Department of Political Science, Radboud University, Nijmegen, The Netherlands e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 S. Gomes et al. (eds.), Incarceration and Generation, Volume I, Palgrave Studies in Prisons and Penology, https://doi.org/10.1007/978-3-030-82265-1_5

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justice systems do not do justice to the specific needs of young adults. The transition between juvenile justice systems and their adult counterparts are often abrupt, with the age of 18 set as the arbitrary boundary in most countries (Hazel, 2008). Considering the overrepresentation of young adults in the justice system, a phenomenon widely known as the age-crime curve (Farrington, 1986; Loeber & Farrington, 2014), this population is worth considering in more depth. The age group of adolescents and young adults might provide the best opportunities for the prevention of recidivism and to intervene in criminal careers (Rocque et al., 2015). Due to their immaturity, young adults could require a more developmental approach, similar to juveniles, to assist them in desisting their criminal behaviour by focusing on their specific needs (Blonigen, 2010; Rocque et al., 2015). Over the years, more and more countries have adopted a more developmental approach to young adults in their criminal justice system by providing exemptions for this age group compared to older adults. This chapter focuses on young adults’ incarceration, specifically regarding the special provisions available for young adults. Insights into the differences between countries in their approaches towards young adults can stimulate ideas for policy changes and inspire a continued dialogue into the needs of young adult offenders. When talking about young adults, we generally refer to young people between approximately 18 to 25 years old; however, each country defines the boundaries of young adulthood differently, as will be discussed later on in this chapter. In this chapter, we explore what characterizes the age group ‘young adults’ and compare the general approaches used by European countries to sentence young adult offenders, including the age boundaries of young adulthood from a policy perspective. Five countries are presented in more detail to illustrate the different approaches towards young adults’ incarceration.

2

Features of Young Adulthood

Young offenders account for a disproportionate amount of crimes. The age-crime curve, wherein criminal behaviour peaks around late adolescence and the early twenties and declines thereafter, has been a recurrent

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phenomenon in crime behaviour internationally. Several explanations for this relationship between age and crime have been presented over the years, focusing on biological, psychological and sociological elements characterizing the group of adolescents and young adults (Blonigen, 2010; Rocque et al., 2015). In this section, two main developments in the lives of young adults are discussed as they provide an insight into the challenges and changes accompanying this age group: social challenges associated with becoming an adult and neurological developments during young adulthood.

2.1

Social Challenges to Becoming an Adult

Throughout history, becoming an adult has been associated with significant changes in living conditions, such as attaining financial selfsufficiency and the education-to-work transition (Arnett, 2000; Settersten Jr. et al., 2015). These social and psychological markers for adulthood have become less standardized and more individualized in the last era. Overall, the transition to adulthood is taking longer than previously, with a significant proportion of young adults reaching the traditional markers to adulthood, such as marriage, a stable job and children, in their mid- to late-twenties (Côté & Bynner, 2008). Arnett (Arnett, 2000, 2007) proposed using the term emerging adulthood for the developmental stage occurring between 18 to 25 whom, due to societal changes, no longer settled into marriage and a stable job. According to this theory, ‘emerging adulthood’ encompasses identity exploration, instability, selffocus, feeling in-between adolescence and adulthood plus an optimistic sense of possibilities (Arnett, 2000). On the other hand, seeing emerging adulthood as a developmental stage has been critiqued due to the danger of viewing the transition period as voluntary and necessary (Côté, 2014). The prolongation of the transition to adulthood can also be seen as resulting from the more challenging position of young adults in today’s society (Côté & Bynner, 2008). Overall, the challenges posed in young adulthood, such as attaining financial self-sufficiency and the education-to-work transition, has shown to lead to diverse tracks for different societal groups (Mitchell & Syed,

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2015; Vosylis, 2018). For some young adults, the unattainable or undesirable traditional markers of adulthood can leave them feeling ‘lost in transition’ (Silva, 2012). Not only is the transition to adulthood characterized by a different rate of transitioning for non-college students (Mitchell & Syed, 2015) or people from a minority ethnic background (Syed & Mitchell, 2013), some young adults can be seen as stalled in their transitioning (Vosylis, 2018). Young adults that were seen as ‘stalled’ displayed lower identity commitment, frequent rule-breaking behaviour, more anxiety/depression and low satisfaction with life (Vosylis, 2018). The delayed of cultural markers for adulthood can leave some young adults with a sense of self-blame for their failure to meet cultural norms (Côté, 2014). On the other hand, assuming adult social roles leads to desistance during the early years of adulthood (Hill et al., 2016).

2.2

Neurological Changes in Young Adults

Similar to the social markers discussed in the previous section, young adults also show individual differences regarding their neurobehavioral development (Braams et al., 2015; Cauffman & Steinberg, 2000; Prior et al., 2011). Overall, their development is still ongoing with research suggesting that their development continues even after 25 years of age (Blakemore & Robbins, 2012; Cauffman & Steinberg, 2000; Cohen et al., 2016; Crone & Elzinga, 2015; Crone & Güro˘glu, 2013). Evidence from neuroscientific studies on brain maturation shows that the brain’s frontal lobes continue to develop in young adulthood (Bonnie & Scott, 2013; Cohen et al., 2016). This part of the brain is responsible for impulse control, the ability to plan and organize behaviour and the understanding of social norms and morals. Overall, young adults show diminished control when faced with negative emotional cues of a potential threat in the environment, which affects their ability to make socially responsible decisions (Cauffman & Steinberg, 2000). Individual differences are found regarding various aspects of psychosocial maturity, i.e. responsibility, perspective and temperance (Cauffman & Steinberg, 2000), moral reasoning abilities (Prior et al., 2011) and their tendency for risk-taking behaviour (Braams et al., 2015).

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Specific Approaches for Young Adults in Criminal Justice

As young adults are still transitioning to adulthood, there are countries that allow exemptions for young adults in their criminal justice system (see e.g. Dünkel & Pruin, 2012; Matthews et al., 2018; Pruin & Dünkel, 2015; Prior et al., 2011; Zeijlmans et al., 2019). Two assumptions are at the core of these approaches. The first is that young adults can benefit more from a focus on parenting, education or rehabilitation than from a solely retributive approach. The immature development of young adults is at the core of their offending and a developmental approach can facilitate their desisting from a criminal career (Van der Laan et al., 2019). This is in line with the Risk-Need-Responsivity model, wherein sanctions are most effective when in tune with the nature of the group of offenders (Bonta & Andrews, 2007). The second assumption underlying the exemptions for young adults is the thought that, due to their psychosocial immaturity, they are less culpable for their criminal actions (Farrington et al., 2012). Therefore, they deserve less punishment compared to adults, who should have a better self-control and are more likely to consider long-term consequences of their behaviour. These two assumptions stimulate countries to consider adapting their justice system to the age group of young adults; however, countries differ as to how they decided to adapt their justice system. In the next section, the differences in dealing with young adults are explored, focusing more specifically on the incarceration of young adults from Section 3.2 onwards. First, however, it is important to note that a comparison can be made between countries in the type of exemptions made for young adults, but these exemptions cannot be translated into a comparison on the severity of the punishments offered to the young adults in general as the adult justice system between countries also show considerable differences in the use and duration of prison sentences.

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Differences Between Countries in Dealing with Young Adults

Countries differ in their approaches for prosecuting, trying and sanctioning young adult offenders. However, countries also have their differences in the definition of young adults. In Europe, the most commonly used age to indicate whether someone is no longer a juvenile in the eyes of the criminal law is 18. There are two exceptions to this minimum age. Both Scotland and Portugal transfer adolescents of 16 years and older to the adult criminal justice system, while regarding them as fully responsible for their criminal behaviour (Audit Dünkel, 2015; Scotland, 2001, 2002; Zeijlmans et al., 2019). However, for the age range between 16 and 21 years old, there are exemptions in sentencing possible. The maximum age to which exemptions are introduced for young adults is by most countries set at 21, with the possibility for exemptions stopping at the 21st birthday, similar to Scotland and Portugal. Two countries, Russia and Bulgaria, have set the maximum age slightly lower at 20, whereas the Netherlands, Bosnia Herzegovina, Malta and Swiss have a higher maximum age, ranging from 22 to 25 years old (Dünkel & Pruin, 2012; Hazel, 2008; Zeijlmans et al., 2019). An important distinction is whether the considered age is the age at the time of the offence, as is common in most countries including, for example, Germany and the Netherlands, or if the age at the time of the trial also is taken into account, which happens in, for example, Serbia or Slovenia (Pruin & Dünkel, 2015). Furthermore, the age of a young adult at the time of their incarceration can also affect decisions in the execution of the sentence. In some countries, a juvenile sentence for incarceration can be executed in an adult facility when the young adult surpassed a certain age, as is the case in Germany, Estonia and Scotland (Burman & McVie, 2016; Matthews et al., 2018; Zeijlmans et al., 2019). This shows that the group eligible for exemptions in the criminal justice system is diverse, but generally reflects the age range of young adults. Several classifications of developmental approaches towards young adults can be distinguished. Dünkel and Pruin (Dünkel & Pruin, 2012; Pruin & Dünkel, 2015) differentiate between three ways of dealing with young adults in the criminal justice system. First, there are countries that

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enable young adults to profit from the juvenile justice system, either all young adults or only when certain legal conditions are in place. This can entail that young adults benefit from the same legal procedures as juveniles or that they can be sanctioned more similar to juveniles compared to their older adult counterparts. The second type of dealing with young adults is the so-called ‘mitigation’ for young adults, wherein distinct procedures or lower sentencing guidelines are available for young adults within the adult justice system. Third, are countries with no developmental approach to young adults; they are subject to the same legal procedures and sanctions as older adults. Zeijlmans et al. (2019) find similar ways in which countries from the Council of Europe deal with young adults; however, they nuance the image of a clear classification of three distinct types of approaches towards young adults. Some countries classify as both the first and the second category of the Dünkel and Pruin classification. An example is Croatia. Young adults in Croatia can be sentenced with a juvenile sanction if the circumstances of the offence justify an educational or rehabilitative measure (Farrington et al., 2012; Hazel, 2008; Matthews et al., 2018; Prior et al., 2011). This classifies Croatia in the first category of Dünkel and Pruin, as it enables young adults to profit from the juvenile justice system (Dünkel & Pruin, 2012; Pruin & Dünkel, 2015). However, the Croatian justice system also provides the ability to mitigate sentences for young adults in the adult justice system based on their young age (Matthews et al., 2018), which classifies as the second category of Dünkel and Pruin (Dünkel & Pruin, 2012; Pruin & Dünkel, 2015). Thus, although the three categories of Dünkel and Pruin provide a useful insight into the mechanisms for providing a tailored approach to young adults in the criminal justice system, it cannot be used as a classification method. Zeijlmans et al. (2019) describe four ways of dealing with young adults differently: procedural exemptions, different sentences, sentence mitigation and separate detention placements. These four categories are based on a research study collecting information on the countries of the Council of Europe by conducting a literature review and contacting persons from the countries to complement the information from the literature. Due to this research method, information was gathered on

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the approach towards young adults in 47 of the 51 countries (counting England, Wales, Scotland and North-Ireland as separate entities, due to their individual justice systems). These four categories have a different impact on the incarceration of young adults. An overview of the developmental approaches for young adults used by European countries can be found in Table 1. The first category, procedural exemptions, applies to the judicial process surrounding the prosecution, trial and sanctioning of young adults, wherein young adults are not in all manners treated similarly as older adults and can still benefit from procedures from the juvenile justice system. The procedural exemptions do not directly impact the incarceration of young adults, as they apply mostly to the judicial process and do not impact directly the sanctioning of young adults. The second category, different sentences, generally means that young adults can use sentences normally reserved for juveniles. These sentences can be considered as an alternative to (short-term) prison sentences. Sentence mitigation implies that young adults can or should be sentenced with lower sentences compared to older adults, including less time in confinement. Sentences can be similar to juveniles in duration or fall in between juveniles and the regular sentence guidelines for older adults. And finally, separate detention placements relate to the execution of a custodial sentence, which, for example, can be executed in a juvenile detention centre or a ward separated from older prisoners. The last three categories of allowing exemptions for young adults compared to older adults have consequences for the incarceration of young adults and will be examined in more detail in the next sections.

3.2

Young Adults’ Incarceration and Different Sentences

Young adults in 16 countries of the Council of Europe have the possibility to benefit from sanctions and measures that are not available to older adults (Zeijlmans et al., 2019). This can be used as an alternative for a prison sentence, allowing young adults to be sanctioned in a more developmentally oriented way. In six of the 16 countries, for example the

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Table 1 The developmental approaches towards young adults in European justice systems (filled in means that the approach is used in that country) Country

Procedural

Different

Sentence

Separate placement

exemptions

sentences

mitigation

Austria

Yes

No

Yes

Yes

Bosnia

No

No

Yes

No

Bulgaria

No

No

Yes

Yes

Croatia

Yes

Yes

Yes

Yes

Cyprus

No

No

Yes

Yes

Czech Republic

No

Yes

Yes

No

detention

Herzegovina

Denmark

No

No

Yes

Yes

England

No

Yes

Yes

Yes

Estonia

No

No

No

Yes

Finland

Yes

Yes

Yes

Yes

France

No

No

No

Yes

Germany

Yes

Yes

Yes

Yes

Greece

No

No

Yes

Yes

Hungary

No

No

Yes

No

Italy

No

No

Yes

Yes

Lithuania

No

Yes

No

No

Malta

No

No

Yes

Yes

Moldavia

No

No

Yes

No

Montenegro

No

Yes

Yes

No

Netherlands

Yes

Yes

No

No

North Ireland

No

No

No

Yes

North Macedonia

No

Yes

No

No

Poland

No

Yes

Yes

Yes

Portugal

No

Yes

Yes

Yes

Russia

No

Yes

Yes

No

Scotland

No

No

Yes

Yes Yes

Serbia

Yes

Yes

No

Slovakia

No

No

Yes

Yes

Slovenia

No

Yes

No

No

(continued)

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Table 1 (continued) Spain

No

No

No

Yes

Sweden

Yes

Yes

Yes

Yes

Swiss

No

No

Yes

Yes

Turkey

No

No

Yes

Yes

Wales

No

Yes

Yes

Yes

Netherlands, Germany and Croatia, a system exists where young adults can benefit from the full range of measures and sanctions from the juvenile justice system (Matthews et al., 2018; Pruin & Dünkel, 2015; Van der Laan et al., 2019). Upon meeting certain criteria related to the development of the person committing the crime and/or the characteristics of the crime, the young adult will be considered as a juvenile for sanctioning purposes. These criteria often relate to the immaturity of the young person, by either assessing the developmental stage of the offender or the juvenile nature of the committed crime. In some countries, there is an exception made towards young adults wherein the maximum duration of a freedom depriving sanction in the juvenile justice system is increased for young adults (Albrecht, 2004; Pruin & Dünkel, 2015). Other countries do not offer the full spectrum of juvenile sanctions as a possibility when sanctioning young adults, but do have one or a few exemptions allowing young adults to benefit from alternatives to (shortterm) incarceration, such as house-arrest with electronic monitoring in Portugal (Dünkel, 2014), youth service in Sweden (Lappi-Seppälä, 2011) and an attendance centre order in England and Wales (Dünkel & Pruin, 2012).

3.3

Young Adults’ Incarceration and Sentence Mitigation

Young adults can also be treated differently from adults in the duration of their prison sentence. The possibility to mitigate or alter the prison sentence of young adults is offered in 25 countries (Zeijlmans et al., 2019), as can be seen in Table 1. This can either be that certain longterm prison sentences cannot be administered to young adults (e.g. no

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life imprisonment in Bulgaria; Zeijlmans et al., 2019), or that young adults sentences are converted to a lower duration compared to older adults. Finland sentences young adults to a maximum of two-thirds of the prison sentence of older adults (Abrams et al., 2018); Germany has lower minimum and maximum sentences for young adults (Dünkel & Pruin, 2012); and Sweden works with a reduction for youth (Transition to Adulthood Alliance, 2009b). However, there are also countries in which the law only provides the ability to mitigate sentences for young adults, but the decision to lower the sentence is the consideration of the court judge. Lastly, there are countries wherein the duration of the incarceration of young adults is (also) mitigated by allowing young adults to be more susceptible for parole or early release for imprisonment, as is the case in Denmark, Finland and Austria for example (Abrams et al., 2018; Pruin & Dünkel, 2015). The provision to mitigate prison sentences for young adults can apply in general for young adults, or can only be targeted to a specific group of young adults depending on characteristics of the committed crime. Examples of a more targeted group of sentence mitigation is Italy, where a prison sentence can be changed into a fine or a suspended sentence for young adults when the adult justice system dictates a maximum sentence of two and a half years of imprisonment (Zeijlmans et al., 2019). In this case, the condition for sentence mitigation for young adults is the seriousness of the crime. In Scotland, the mitigation is applied even more specific, as the sentence mitigation only applies to one type of crime: possession or supplying illegal firearms (Transition to Adulthood Alliance, 2010). Adults would receive a minimum sentence of five years, whereas for young adults a minimum of three years is required. However, in most countries where sentence mitigation is possible, it is applied to all young adults or, at least, all young adults can qualify for sentence mitigation, in which case the decision to mitigate a sentence is made by the court judge (Zeijlmans et al., 2019).

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Young Adults’ Incarceration in Separate Detention Placements

For young adults, 24 countries of the Council of Europe have added the possibility of serving a prison sentence in separately from older adults when sentenced to prison in the adult justice system (Zeijlmans et al., 2019). This separate placement can be either a juvenile detention centre, a specialized prison or a separate wing for young adults in a regular prison. The maximum age for this separate incarceration for young adults often not only considers the age of committing the crime, but also the age of the young adult upon execution of the prison sentence. This can create a situation wherein a young adult who committed a crime at an age for which a separate placement is possible, is committed immediately to a regular prison due to an older age at the time of the trial. Furthermore, after a certain age, young adults in some countries have to transition from a separate facility or juvenile prison to the normal prison system. Countries in which this transfer is implemented are, for example, Austria, Croatia, Serbia and Turkey (Burman & McVie, 2016; Pruin & Dünkel, 2015; Vuˇci´cevi´c, 2017; Zeijlmans et al., 2019). In certain countries, for example Poland and Spain, the judicial regulations require separate placements for young adults (Fernández Molina et al., 2016; Sta´ndo-Kawecka, 2016). Other countries allow the court judge to choose whether a young adult qualifies for a separate placement, such as England, Finland and Austria (Abrams et al., 2018; Bruckmüller, 2016; Pruin & Dünkel, 2015; Storgaard, 2004). In Malta, for example, a separate placement is used only when young adults are seen as vulnerable (Zeijlmans et al., 2019). The intention behind separate placements for young adults is often to safeguard young adults or provide better opportunities to focus on their education and developments. England and Wales, for example, separate young adults under 21 to prevent them from being influenced by older detainees and to provide education and training (Ashworth, 2005, Transition to Adulthood Alliance, 2009b). However, practice does not always work as intended. In England and Wales, the circumstances of the Youth Detention Centres for young adults are often comparable to the regular prisons (Allen, 2008). Another example is Bulgaria, where legislation says

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that young adults should be treated with special care within the prison system, not necessarily in a separate placement. Yet, as the law is vague, young adults are often treated similarly as older adults (Zeijlmans et al., 2019).

4

Incarceration in Five Focus Countries in More Depth

In the following section, the approach of five countries will be explored in more detail. These countries were included in the multiple case study from Zeijlmans et al. (2019), conducted in the first half of 2019, in which researchers from those countries were approached to gain more in-depth information regarding their justice system. For each country, questions were asked to a minimum of three researchers, whereby the third researcher was used to verify the interpretation of the information from the other two researchers. In the text below, the information comes from the Dutch research report of Zeijlmans et al. (2019) and additional literature sources are mentioned when applicable. The five countries discussed in more detail are Austria, Germany, The Netherlands, Portugal and Sweden. These countries were chosen based on the research aim of the original report from Zeijlmans et al. (2019). As their research was funded by the Dutch Ministry of Justice and Safety, the Netherlands was their starting point. The other countries were based on a most-similar and most-different method. Considering the differences in the exemptions made regarding the incarceration of young adults, these five countries are worth considering in more detail for this chapter as well. Germany and Sweden provide exemptions in all four categories of Table 1, presented in paragraph 3.1. Portugal does not provide procedural exemptions, Austria does not offer different sanctioning and the Netherlands does not offer mitigation or separate detention placements. This results in an overview with different examples for all categories of exemptions represented, but also every exemption has remained unused by at least one country, allowing for a broad illustration of the specific approaches that can be used regarding the incarceration of young adults. Each country’s description starts with a general introduction into the

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history and background of their approach to young adults. Subsequently, the three categories described in the previous sections are used to describe their decisions related to the incarceration of young adults.

4.1

Austria

Since 2001, the Austrian justice system changed its approach towards young adults, which has had its implications for the incarceration of young adults (Dünkel, 2016; Loeber et al., 2012). That year, the age of the majority dropped from 19 to 18 years old and the question arose how to deal with young adults that could not benefit from the juvenile justice system. As limited compensation for this move, the government decided to implement exemptions for young adults (Pruin & Dünkel, 2015). The Austrian legislation recognized that the relatively high crime levels at this age could be temporary, due to problems connected to their entrance into the adult world (Bruckmüller, 2016; Zeijlmans et al., 2019). The rationale behind the distinct approach towards young adults is more focused on resocialization and education than Austrian adult law and has primarily the goal to prevent recidivism (Zeijlmans et al., 2019). All exemptions related to the incarceration of young adults–which will be discussed below–are applicable for young adults under the age of 21 at the time of the offence or at the time of a certain procedural act (Farrington et al., 2012; Killias et al., 2012). The approach applies to all young adults and has to be used for all types of offences (Zeijlmans et al., 2019).

4.1.1 Different Sentences in Austria Even though the sentencing process of young adults in Austria is more similar to juveniles than to adults, for example young adults also appear in a juvenile court (Bruckmüller, 2016), they cannot be sanctioned according to the juvenile justice system. Besides mitigation of sentences (discussed below), there are no different sentences or alternatives to incarceration that can specifically be administered to young adults compared to older adults. However, the court, when imposing the sentence or

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authorizing certain diversion procedures has to forecast the likelihood of the offender committing other crimes. Similarly, during the enforcement phase possible detrimental effects of the incarceration of a young adult together with juveniles have to be ascertained.

4.1.2 Sentence Mitigation in Austria Austrian young adults do not receive sanctioning according to juvenile law, but being a young adult is a mitigating factor in sentencing following adult law (Bruckmüller, 2016; Farrington et al., 2012; Killias et al., 2012; Pruin & Dünkel, 2015). There are also lower maximum sentences for young adults than for adults. The maximum sentence is 15 years, and a life sentence is not possible. The minimum sentence for young adults depends on the type of offence. Offences for which the adult law provides imprisonment of 10 to 20 years or life sentences are punishable with 1 to 15 years. For offences that are punishable with 10 to 20 years according to adult law, young adults can be punished with 6 months to 15 years. There is no minimum sentence for other types of offences. Next to mitigation for imposed sentences, there are also stricter preconditions for ordering pre-trial detention and custodial remands compared to adults (Pruin & Dünkel, 2015). Pre-trial detention can be ordered only if its negative effects on the development of the young adult’s personality and the latter’s living are not out of proportion with the seriousness of the crime and the possible punishment (Zeijlmans et al., 2019). Furthermore, commencement of a sentence can be postponed when certain preconditions are met, for example in order not to impede the completion of education or vocational training and the less strict conditions for early parole of young adults (Pruin & Dünkel, 2015).

4.1.3 Separate Detention Placement in Austria Young adults serve their sentences separated from adults in adult prisons, or are placed in youth prisons. Whereas all other characteristics of the distinct approach only apply for young adults younger than 21, the age

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limit for placement in detention is higher. If it can be taken for granted that there will be no negative or other detrimental effects on juvenile convicts, persons who are not yet 22 years of age may begin to serve their sentence in the juvenile penal system. If a convict is already in the juvenile penal system, he may remain there under the aforementioned preconditions until he turns 24. If the person in question has to remain in detention beyond that age, he may remain in the juvenile system if the forecast remainder of the sentence does not exceed 1 year, or if the transfer to the adult system would entail substantial setbacks for the young prisoner (Bruckmüller, 2016). In any case, a person aged 27 or more cannot remain in a juvenile detention centre (Zeijlmans et al., 2019). The court in charge of ordering the enforcement of the sentence decides if an adult convicted person has to serve their sentence in the juvenile penal system or not. Whether a convicted young adult has to keep serving their sentence in the juvenile penal system is up to the prison’s director (only if the incarcerations ends before their 22nd birthday) or the Federal Ministry of Justice (Zeijlmans et al., 2019).

4.2

Germany

Already since 1953, § 105 of the Juvenile Justice Act (JGG) was implemented in Germany, causing some young adults to benefit from the more lenient juvenile justice system (Albrecht, 2004; Pruin & Dünkel, 2015). Historically, these rules were introduced as, in the years after the Second World War, there was the impression that some young adults showed developmental delays due to the absence of a father who died in the war (Zeijlmans et al., 2019). However, over the years, the jurisdiction of the Supreme Court and the Federal Constitutional Court continued and increased the use of this developmental approach to young adults in general due to their immaturity on certain life aspects (Albrecht, 2004).

4.2.1 Different Sentences in Germany Young adults under the age of 21 are always seen by the juvenile courts and most juvenile procedures apply to them as well (Farrington et al.,

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2012; Loeber et al., 2012; Pruin & Dünkel, 2015; Rap, 2013; Transition to Adulthood Alliance, 2010). However, similar to Austria, this does not imply that sentencing is imposed according to the juvenile justice system. While in Austria, the sanctions for juveniles are not available for young adults, in Germany the young adults are sentenced according to the juvenile justice system if certain conditions are met. Sanctions from the juvenile justice system can be applied when young adults are under 21 at the time of the offence and the young adult in his moral and psychological development was like a juvenile at the time of the offence, or the motives and the circumstances of the offence are similar to those of a typical juvenile crime (Dünkel & Pruin, 2012; Pruin & Dünkel, 2015; Transition to Adulthood Alliance, 2010). As there is a major distinction between the juvenile justice system and the criminal law as applicable to adults, this transition allows more room for individualized sentencing (Prior et al., 2011; Pruin & Dünkel, 2015; Rap, 2013). Whereas the juvenile justice system is educational-oriented and enables a judge to choose educational and restorative measures as alternatives for incarceration, such as community service orders or victim–offender mediation, the German Criminal Law for adults offers little room for developmentally-oriented sentencing and provides only for fines, suspended sentences (probation), and unconditional imprisonment (Dünkel & Pruin, 2012). The impact of the transition for young adults to the juvenile sentencing framework impacts the application of incarceration as well as the duration. Sentences in juvenile criminal law are, in general, shorter than for adults, as the formal sentencing framework from the general justice system does not apply (Pruin & Dünkel, 2015). The only regulations in relation to the incarceration of juveniles and young adults sentenced in the juvenile justice system is that imprisonment for juveniles should last at least 6 months, as a shorter detention is expected to have more negative effects due to stigmatization than positive educational outcomes (Hazel, 2008; Persson, 2017). A short-term placement of maximum of four weeks is an alternative placement in a closed institution, which does not appear on the juveniles criminal record (Hazel, 2008). Overall, juvenile criminal law allows that sanctions can be tailored according to the educational needs of each individual offender. Furthermore, the procedural regulations of the juvenile law provide greater

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possibilities for diversionary measures, which allow youth to stay out of the formal justice system (Farrington et al., 2012; Killias et al., 2012). With regards to the maximum punishments applicable to young adults in the juvenile justice system, young adults are able to get a higher maximum punishment compared to juveniles under 18 years old. The maximum for young adults is 10 years, instead of five years as is the case for juveniles (Dünkel & Heinz, 2016; Persson, 2017; Pruin & Dünkel, 2015). Since 2012, a sentence with a maximum of 15 years is possible in extreme cases when the maximum of 10 years is considered inappropriate, for example in severely aggravated murder cases (Dünkel & Heinz, 2016; Pruin & Dünkel, 2015).

4.2.2 Sentence Mitigation in Germany When sentencing a young adult according to the adult justice system, there are also distinct exemptions for young adults, for which no criteria need to be met. For all young adults under 21, life imprisonment is prohibited (Dünkel & Pruin, 2012; Pruin & Dünkel, 2015). Similar to young adults sentenced according to the juvenile justice system, the maximum prison sentence is 15 years. Furthermore, all young adults can receive mitigated sentences. In general, the rule that prohibits life imprisonment is often considered to be a more general guideline that young adults should receive mitigated sentences compared to older adults (Pruin & Dünkel, 2015).

4.2.3 Separate Detention Placement in Germany The execution of the sentences is conducted according to the sentencing system chosen by the court judge. The one exception is that young adults can be sent to a special youth prison or a separate living group in a regular prison, even when sentenced according to the adult criminal law (Lösel, 2012; Pruin & Dünkel, 2015).

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The Netherlands

The first law for the age group of young adults in the Netherlands appeared in 1965, allowing the application of juvenile law for young adults over the age of 18 at the time of the offence, but before the 21st birthday (Barendregt & Van der Laan, 2018). Although implemented, this option was rarely used in practice (Van der Laan & Goudriaan, 2016). Based on scientific evidence on brain maturation and the agecrime curve, the debate surrounding young adults was rekindled and legislative changes to increase the maximum age for a developmental approach in the justice system were implemented in 2014 (Schleim, 2020; Van der Laan et al., 2019). This legislation became known as Adolescent Criminal Law (ACL) or ‘Adolescentenstrafrecht’ in Dutch. The aim of ACL for young adults is the flexible use of sanctions from both systems.

4.3.1 Different Sentences in The Netherlands In the Netherlands, adult criminal law remains the principal justice system for young adults. However, if specific conditions are met, young adults aged 18 up to and including 22 years old at the time of the crime can be sentenced with juvenile sanctions. Whether or not young adults are sentenced with a juvenile sanction depends on the ‘personality of the offender’ and the ‘context in which the crime is committed’ (Van der Laan et al., 2019). In cases involving young adults, it is the Public Prosecutor that can decide to initiate a juvenile law trajectory instead of ordering an adult law sanction (Barendregt et al., 2018; Van der Laan et al., 2016). When the juvenile law trajectory is started, at the prosecutor’s request, forensic reports are prepared by forensic behaviour experts from the Probation Service and, in some cases, the services of forensic psychiatrists and psychologists. In their reports, the questions are addressed whether the young adult would benefit from a juvenile sanction, or whether adult sanctions are more suitable (Barendregt et al., 2018; Van der Laan et al., 2016). Although a judge takes the final decision on whether or not a juvenile sanction will be imposed on the

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young adult, this judgement depends on the preselection made during the pre-trial phase (Barendregt et al., 2018). Young adults transferred to the juvenile justice system can receive more educational options compared to the adult justice system (Matthews et al., 2018). For the incarceration of young adults, the decision to transfer a young adult to the juvenile justice system can have a significant impact on the sentence duration and the location of the sentence. The maximum prison sentence in the juvenile justice system is two years as opposed to the possibility of a life-long sentence in the adult justice system (Schmidt et al., 2020). Furthermore, a custodial sentence under adult criminal law should be served in a prison for adult offenders. The introduction of the adolescent criminal law makes it possible to send a young adult to a juvenile correctional facility (Van der Laan et al., 2019).

4.3.2 Sentence Mitigation in The Netherlands When a young adult is sanctioned in the regular adult justice system, there are no provisions in place to specifically mitigate their sentences.

4.3.3 Separate Detention Placements in The Netherlands Currently, there are not separate facilities or wings for young adults in the Netherlands when sanctioned according to the adult justice system. There used to be a special regime for young adults in the regular prison system, introduced in 2002, whereby young adults up to 25 years old stayed in separate wings of the prison system (Verwers & Bogaerts, 2005). This was introduced to protect young adults from a damaging prison system and offer them a more protected environment and intensive guidance. However, this practice was changed and annulled a few years later. Young adults can now only be transferred to a juvenile facility, when they are sentenced according to the juvenile justice system.

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Portugal

In Portugal, the age of criminal majority is 16 years (Basto-Pereira et al., 2018; Dünkel, 2014, 2015). All children under the age of 16 years who commit offences do not fall under the adult criminal law. For young adults, a Young Adult’s Special Penal Regime (YASPP) was defined to be applied to those aged 16 to 21 years old at the time of the offence (Young Adult’s Special Penal Regime (YASPP); Dünkel, 2014, 2015; Justiça, 1982). This criminal regime is based on the need to establish formal control actions that are better suited to deal with crimes at these ages, avoiding the stigmatization and prejudices that a prison sentence implies (Zeijlmans et al., 2019). There are no separate procedural approaches for young adults. YASPP is applied in the regular Criminal Courts, within the Penal Code enforcement. However, when the accused is a young adult between 16 and 21 years old, the judge needs to justify whether or not the YASPP is applied (Zeijlmans et al., 2019). The grounds for the decision must be stated by the judge, under penalty of annulment for failure to pronounce the judgement.

4.4.1 Different Sentences in Portugal The focus of the YASPP is to enforce alternatives to prison sentences that could promote, in a more efficient way, the young adult’s social rehabilitation and prevent recidivism (Justiça, 1982). For the application of alternative corrective measures, it should be determined that, taken into consideration the circumstances of the case and the personality of the offender, the sentence of imprisonment of up to 2 years is neither necessary nor convenient for the social reintegration of the young adult (Justiça, 1982). Instead of the short prison sentence, corrective measures may be imposed, which could entail an admonition, the imposition of certain obligations, a fine, or detention in a detention centre (Justiça, 1982). Crimes for which the punishment in the adult criminal law would be more than a two-year imprisonment cannot be settled with a corrective measure. A prison sentence up to 2 years must be enforced at the

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young adult’s home within the ‘regime of stay in residence’, which is in some cases associated with electronic monitoring (Dünkel, 2014, 2015).

4.4.2 Sentence Mitigation in Portugal Based on the recognition of the potentially high criminogenic effect of prison sentences and the social and personal vulnerabilities affecting the transition stage from youth to adulthood, the YASPP main goal was to avoid the enforcement of liberty-depriving sanctions to youths by providing for the special mitigation of prison sentences (Zeijlmans et al., 2019). For this reason, the law allows for and promotes reduced sentences for young adults (Justiça, 1982). However, mitigating the duration of the sentence for young adults is not mandatory and a judge decides on its application.

4.4.3 Separate Detention Placement in Portugal When imprisonment is enforced, young adults should be placed separately from adult offenders in specialized facilities or separate wings of the general prison facilities (Justiça, 1982). However, since specialized detention centres were never built and young adults continue to serve their prison sentences in adult prisons, except for Leiria prison, the conclusion can be drawn that the YASPP has never been fully implemented (Zeijlmans et al., 2019). The next chapter in this book will provide a brief portrait of the population of young adults in the Portuguese Prisons.

4.5

Sweden

Overall, the Swedish justice system can be considered mild and has a comparatively high degree of flexibility in the application of ‘rehabilitative’ sanctions and measures (Pruin & Dünkel, 2015). The justice system is strongly influenced by the requirements of proportionality and equivalence (Zeijlmans et al., 2019). In short, this means that the penalty should be proportionate to the seriousness of the offence and equally serious offences should be punished equally hard (Persson, 2017). This

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special treatment of young adult offenders (i.e. aged 18 to 20 years old) is not the result of one general reform, but has developed gradually over time (Janson, 2004). During the large reform of the rules of sentencing in 1989, a provision was introduced that stated that if a person committed a crime before attaining the age of 21, special consideration shall be given to his or her youth in determining the punishment (Persson, 2017). This provision is still in force. Most characteristics of the approach to young adults are applicable to all juveniles and young adults under the age of 21 at the time of the offence.

4.5.1 Different Sentences in Sweden In Sweden, there is no separate juvenile justice system (Lappi-Seppälä, 2015). Instead, juveniles aged 15 and older, the age of criminal responsibility, are part of the adult justice system (Doob & Tonry, 2004; Ministery of Justice, 1999). However, when it comes to sentencing the age group 18–20-year-olds at the time of the offence, the justice system provides limitations in the use of imprisonment as there are several sanctions and procedures that are only applicable to juveniles and/or young adults (Lappi-Seppälä, 2015). Special reasons are required for choosing imprisonment as a sanction (Persson, 2017; Doob & Tonry, 2004; Ministery of Justice, 1999). There are preventive reasons behind the special treatment of young offender, such as the negative effects of imprisonment, the risk of labelling, stigmatization and recidivism (Prior et al., 2011).

4.5.2 Sentence Mitigation in Sweden The Swedish justice system treats an offence committed by a young person as less serious, as the culpability of young offenders is less pronounced and they are more prone to seek sensation and taking risks than older individuals. Therefore, a punishment of lesser severity is deserved (Persson, 2017; Ministery of Justice, 1999), which implies a reduction of the sentence in cases of imprisonment. The maximum

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sentence is 14 years for young offenders below the age of 21 (Transition to Adulthood Alliance, 2009a, 2010).

4.5.3 Separate Detention Placements in Sweden There are special departments for young offenders up to age 25 (Dünkel, 2016).

5

Discussion and Conclusion

This chapter described how young adults can be seen as an age group deserving special attention in the criminal justice system. Due to the age-crime curve and the underlying social challenges and neurological changes of young adulthood, a developmental approach in dealing with young adults could prove more beneficial to prevent recidivism than incarceration for punitive reasons alone (Bonta & Andrews, 2007; Monahan et al., 2015). As this chapter showed, many European countries offer some alternatives to imprisonment for young adults or attempt to make their stay in prison shorter or more focused on rehabilitation compared to older adults (see also Matthews et al., 2018; Pruin & Dünkel, 2015; Zeijlmans et al., 2019). However, the precise approach for young adults differs between countries, as is portrayed by presenting five countries. Looking at the five countries from a theoretical viewpoint inspires a dialogue into possible ways to approach the incarceration of young adults; however, there are also some critical remarks to be made when considering the alignment between the justice systems and the characteristics of young adults, as will be introduced in this discussion paragraph. A major part of all developmental approaches to young adults is the age range to which certain exemptions can be applied. The most used age range is 18 years up to the 21st birthday (Pruin & Dünkel, 2015). Exceptions have been shown in this chapter, such as Portugal where the age of criminal majority is set at 16 (Basto-Pereira et al., 2018) and the Netherlands, which allows a more developmental approach for young adults

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under 23 years old (Van der Laan et al., 2019). While these developmental approaches are, theoretically, better suited than a strict arbitrary boundary at the 18th birthday, they continue to be limited by arbitrary age boundaries. As research shows that young adults continue to develop until even after 25 years old (Blakemore & Robbins, 2012; Cauffman & Steinberg, 2000; Cohen et al., 2016; Crone & Elzinga, 2015; Crone & Güro˘glu, 2013) and show considerable variation between individuals (Braams et al., 2015; Cauffman & Steinberg, 2000; Prior et al., 2011), the justice systems remain rigid in their ability to offer a more developmental approach to all young adults who might benefit (Schleim, 2020). Another major difference between the discussed countries, is how many young adults are allowed to benefit from the exemptions made available for them. Despite neurological studies proving that young adults continue to develop during their early adulthood years (Blakemore & Robbins, 2012; Cauffman & Steinberg, 2000; Cohen et al., 2016; Crone & Elzinga, 2015; Crone & Güro˘glu, 2013), a developmental approach for young adults is not provided for everyone in the presented countries. Often, the decision whether to mitigate a sentence or offer an alternative to imprisonment requires a decision on the supposed maturity of the young adults. Whereas Germany applies a developmental approach for all young adults, as they are all seen by a juvenile judge and there are lower maximum prison sentences installed (Albrecht, 2004; Dünkel & Heinz, 2016), the Netherlands is an example wherein the application of juvenile sanctions for young adults is set conditionally. As a consequence, only a certain percentage of young adults receive a developmental approach (Barendregt & Van der Laan, 2018; Schmidt et al., 2020). The same is true for Portugal, where the application of mitigating circumstances or an alternative to incarceration is decided by the court (Zeijlmans et al., 2019). Due to these individual assessments, not all young adults can benefit from exemptions, which can lead to individual differences and inequalities in sentencing decisions. Finally, despite the theoretical benefits of dealing with young adults, the benefits of a developmental approach have not been thoroughly assessed in practice. Due to a lack of empirical studies into the results of these approaches, it is hard to judge empirically which approach is

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most valuable. More studies into the efficiency and effectiveness of these approaches on the lives of young adults are needed to assess whether these approaches are indeed beneficial for their reintegration into society. Furthermore, the practical and empirical assessment is important to take into account when viewing these different approaches, as the ideas behind these exemptions for young adults are not always implemented correctly into daily practice (Zeijlmans et al., 2019). In conclusion, there have been some positive changes in the approach towards young adults over the years, with more and more countries making exemptions for young adults in their justice systems to avoid the negative impact of incarceration. However, more empirical and internationally comparable results are needed to assess which young adults benefit most from certain sentencing decisions and how justice systems can continue to improve their approaches.

References Abrams, L. S., Jordan, S. P., & Montero, L. A. (2018). What is a juvenile? A cross-national comparison of youth justice systems. Youth Justice, 18(2), 111–130. Albrecht, H.-J. (2004). Youth justice in Germany. Crime and Justice, 31, 443– 493. Allen, R. (2008). Lost in transition: Three years on. http://www.prisonstudies. org/sites/default/files/resources/downloads/lost_in_transition-3_years_onfinal.pdf. Arnett, J. J. (2000). Emerging adulthood: A theory of development from the late teens through the twenties. American Psychologist, 55 (5), 469–480. Arnett, J. J. (2007). Emerging adulthood: What is it, and what is it good for? Child Development Perspectives, 1(2), 68–73. Ashworth, A. (2005). Sentencing and criminal justice. Cambridge University Press. Audit Scotland. (2001). Youth justice in Scotland: A baseline report. https://www. audit-scotland.gov.uk/report/youth-justice-in-scotland-a-baseline-report. Audit Scotland. (2002). Dealing with offending by young people. https://www. audit-scotland.gov.uk/docs/central/2002/nr_021204_youth_justice.pdf.

5 European Justice Systems and a Developmental …

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Barendregt, C. S., Beerthuizen, M. G. C. J., & Van der Laan, A. M. (2018). De toepassing van het jeugdstrafrecht bij jongvolwassenen in de praktijk: Een procesevaluatie van het adolescentenstrafrecht. Den Haag: WODC. Cahier 2018–14. Barendregt, C. S., & Van der Laan, A. M. (2018). Neuroscientific insights and the Dutch adolescent criminal law: A brief report. Journal of Criminal Justice, 65 (3). Basto-Pereira, M., Ribeiro, S., & Maia, Â. (2018). Needs and achievements of the juvenile justice system: Insights from two empirical studies with Portuguese young adults. International Journal of Offender Therapy and Comparative Criminology, 62(7), 1787–1805. Blakemore, S.-J., & Robbins, T. W. (2012). Decision-making in the adolescent brain. Nature Neuroscience, 15 (9), 1184–1191. Blonigen, D. M. (2010). Explaining the relationship between age and crime: Contributions from the developmental literature on personality. Clinical Psychology Review, 30 (1), 89–100. Bonnie, R. J., & Scott, E. S. (2013). The teenage brain: Adolescent brain research and the law. Current Directions in Psychological Science, 22(2), 158– 161. Bonta, J., & Andrews, D. A. (2007). Risk-need-responsivity model for offender assessment and rehabilitation. Rehabilitation, 6 (1), 1–22. Braams, B. R., Van Duijvenvoorde, A. C., Peper, J. S., & Crone, E. A. (2015). Longitudinal changes in adolescent risk-taking: A comprehensive study of neural responses to rewards, pubertal development, and risk-taking behavior. Journal of Neuroscience, 35 (18), 7226–7238. Bruckmüller, K. (2016). Austria. In S. H. Decker & N. Marteache (Eds.), International handbook of juvenile justice (pp. 219–238). Springer. Burman, M., & McVie, S. (2016). Scotland. In S. H. Decker & N. Marteache (Eds.), International handbook of juvenile justice (pp. 371–394). Springer. Cauffman, E., & Steinberg, L. (2000). (Im)maturity of judgment in adolescence: Why adolescents may be less culpable than adults. Behavioral Sciences & the Law, 18(6), 741–760. Cohen, A. O., Breiner, K., Steinberg, L., Bonnie, R. J., Scott, E. S., TaylorThompson, K., Rudolph, M. D., Chein, J., Richeson, J. A., Heller, A. S., Silverman, M. R., Dellarco, D. V., Fair, D. A., Galván, A., & Casey, B. J. (2016). When is an adolescent an adult? Assessing cognitive control in emotional and nonemotional contexts. Psychological Science, 27 (4), 549– 562.

178

K. Zeijlmans et al.

Côté, J. E. (2014). The dangerous myth of emerging adulthood: An evidencebased critique of a flawed developmental theory. Applied Developmental Science, 18(4), 177–188. Côté, J. E., & Bynner, J. M. (2008). Changes in the transition to adulthood in the UK and Canada: The role of structure and agency in emerging adulthood. Journal of Youth Studies, 11(3), 251–268. Crone, E. A., & Elzinga, B. (2015). Changing brains: How longitudinal fMRI studies can inform us about cognitive and social-affective growth trajectories. Wires Cognitive Science, 6 , 53–63. Crone, E. A., & Güro˘glu, B. (2013). Development of emotion and social reasoning in adolescence. In K. N. Ochsner & S. Kosslyn (Eds.), The Oxford handbook of cognitive neuroscience (p. 122). Oxford University Press. Doob, A. N., & Tonry, M. (2004). Varieties of youth justice. Crime and Justice, 31, 1–20. Dünkel, F. (2014). Juvenile justice systems in Europe–reform developments between justice, welfare and ‘new punitiveness.’ Criminological Studies, 1, 31–76. Dünkel, F. (2015). Juvenile justice and crime policy in Europe. In F. E. Zimring, M. Langer, & D. S. Tanenhaus (Eds.), Juvenile justice in global perspective (pp. 9–62). New York University Press. Dünkel, F. (2016). Juvenile justice and human rights: European perspectives. In H. Kury, S. Redo, & E. Shea (Eds.), Women and children as victims and offenders: Background, prevention, reintegration. Suggestions for succeeding generations (pp. 681–719). Switzerland: Spinger. Dünkel, F., & Heinz, W. (2016). Germany. In S. H. Decker & N. Marteache (Eds.), International handbook of juvenile justice (pp. 305–326). Springer. Dünkel, F., & Pruin, I. (2012). Young adult offenders in juvenile and criminal justice systems in Europe. In F. Lösel, A. E. Bottoms, & D. P. Farrington (Eds.), Young adult offenders: Lost in transition? (pp. 11–38). Routledge. Farrington, D. P. (1986). Age and crime. Crime and Justice, 7 , 189–250. Farrington, D. P., Loeber, R., & Howell, J. C. (2012). Young adult offenders: The need for more effective legislative options and justice processing. Criminology & Public Policy, 11(4), 729–750. Fernández Molina, E., Bernuz Beneitez, M. J., & Bartolomé Gutiérrez, R. (2016). Spain. In S. H. Decker & N. Marteache (Eds.), International handbook of juvenile justice (pp. 421–444). Springer. Hazel, N. (2008). Cross-national comparison of youth justice. https://dera.ioe.ac. uk/7996/1/Cross_national_final.pdf.

5 European Justice Systems and a Developmental …

179

Hill, J. M., Blokland, A. A. J., & van der Geest, V. R. (2016). Desisting from crime in emerging adulthood: Adult roles and the maturity gap. Journal of Research in Crime and Delinquency, 53(4), 506–535. Janson, C.-G. (2004). Youth justice in Sweden. Crime and Justice, 31, 391–441. Justiça, M. d. (1982). Decreto-Lei n.º 401/82 [Decree-Law no. 401/82]. The Swedish Penal Code (translation). Killias, M., Redondo, S., & Sarnecki, J. (2012). European perspectives. In R. Loeber & D. P. Farrington (Eds.), From juvenile delinquency to adult crime: Criminal careers, justice policy, and prevention (pp. 278–314). Oxford University Press. Lappi-Seppälä, T. (2011). Nordic youth justice. Crime and Justice, 40 (1), 199– 264. Lappi-Seppälä, T. (2015). Juvenile justice without a juvenile court: A note on Scandinavian exceptionalism. In F. E. Zimring, M. Langer, & D. S. Tanenhaus (Eds.), Juvenile justice in global perspective (pp. 63–118). New York University Press. Loeber, R., & Farrington, D. P. (2014). Age-crime curve. Encyclopedia of criminology and criminal justice, 12–18. Loeber, R., Farrington, D. P., Howell, J. C., & Hoeve, M. (2012). Overview, conclusions, and key recommendations. In R. Loeber & D. P. Farrington (Eds.), From juvenile delinquency to adult crime: Criminal careers, justice policy, and prevention (pp. 315–384). Oxford University Press. Lösel, F. (2012). What works in correctional treatment and rehabilitation for young adults? In F. Lösel, A. Bottoms, & D. P. Farrington (Eds.), Young adult offenders: Lost in transition? (pp. 74–112). Routledge. Matthews, S., Schiraldi, V., & Chester, L. (2018). Youth justice in Europe: Experience of Germany, The Netherlands, and Croatia in providing developmentally appropriate responses to emerging adults in the criminal justice system. Justice Evaluation Journal, 1(1), 59–81. Ministery of Justice. (1999). The Swedish Penal Code (translation). https:// www.regeringen.se/49bb67/contentassets/72026f30527d40189d74aca6690 a35d0/the-swedish-penal-code. Mitchell, L. L., & Syed, M. (2015). Does college matter for emerging adulthood? Comparing developmental trajectories of educational groups. Journal of Youth and Adolescence, 44 (11), 2012–2027. Monahan, K., Steinberg, L., & Piquero, A. R. (2015). Juvenile justice policy and practice: A developmental perspective. Crime and Justice, 44 (1), 577– 619.

180

K. Zeijlmans et al.

Persson, M. (2017). Caught in the middle? Young offenders in the Swedish and German criminal justice systems. Dissertation, Lund University, [Online]. http://lup.lub.lu.se/search/ws/files/24642632/e_spik_caught_in_ the_middle.pdf. Prior, D., Farrow, K., Hughes, N., Kelly, G., Manders, G., White, S., & Wilkinson, B. (2011). Maturity, young adults and criminal justice: A literature review. https://www.t2a.org.uk/wp-content/uploads/2011/09/BirminghamUniversity-Maturity-final-literature-review-report.pdf. Pruin, I., & Dünkel, F. (2015). Better in Europe? European responses to young adult offending. https://www.t2a.org.uk/wp-content/uploads/2016/02/T2A_ Better-in-Europe.pdf. Rap, S. E. (2013). The participation of juvenile defendants in the youth court. A comparative study of juvenile justice procedures in Europe. Dissertation, Utrecht University, [Online]. https://dspace.library.uu.nl/handle/1874/ 287562. Rocque, M., Posick, C., & Hoyle, J. (2015). Age and crime. The Encyclopedia of Crime & Punishment, 1–8. Schleim, S. (2020). Real Neurolaw in the Netherlands: The role of the developing brain in the new adolescent criminal law. Frontiers in Psychology, 11, 1762–1762. Schmidt, E. P., Rap, S. E., & Liefaard, T. (2020). Young adults in the justice system: The interplay between scientific insights, legal reform and implementation in practice in The Netherlands. Youth Justice. Settersten Jr, R. A., Ottusch, T. M., & Schneider, B. (2015). Becoming adult: Meanings of markers to adulthood. Emerging Trends in the Social and Behavioral Sciences, 1–16. Silva, J. M. (2012). Constructing adulthood in an age of uncertainty. American Sociological Review, 77 (4), 505–522. Sta´ndo-Kawecka, B. (2016). Poland. In S. H. Decker & N. Marteache (Eds.), International handbook of juvenile justice (pp. 345–370). Springer. Storgaard, A. (2004). Juvenile justice in Scandinavia. Journal of Scandinavian Studies in Criminology and Crime Prevention, 5 (2), 188–204. Syed, M., & Mitchell, L. L. (2013). Race, ethnicity, and emerging adulthood: Retrospect and prospects. Emerging Adulthood, 1(2), 83–95. Transition to Adulthood Alliance. (2009a). A new start: Young adults in the criminal justice system. The need for a distinct and radically different approach to young adults in the criminal justice system; an approach that is proportionate to their maturity and responsive to their specific needs. London: Transition

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to Adulthood Alliance. https://www.barrowcadbury.org.uk/wp-content/upl oads/2011/01/T2A-A-New-Start-Young-Adults-in-the-Criminal-Justice-Sys tem-2009.pdf. Transition to Adulthood Alliance. (2009b). Young adult manifesto: The need for a distinct and radically different approach to young adults in the criminal justice system; an approach that is proportionate to their maturity and responsive to their specific needs. London: Transition to Adulthood Alliance. https://www. t2a.org.uk/wp-content/uploads/2011/09/T2A-Young_Adult_Manifesto.pdf. Transition to Adulthood Alliance. (2010). Young adults and criminal justice: International norms and practices. London: Transition to Adulthood Alliance. https://www.t2a.org.uk/wp-content/uploads/2011/09/T2A-Intern ational-Norms-and-Practices.pdf. Van der Laan, A. M., Barendregt, C. S., Beerthuizen, M. G. C. J., & Beijersbergen, K. A. (2016). Adolescentenstrafrecht: Beleidstheoriereconstructie en eerste empirische bevindingen. Den Haag: Boom criminologie. Van der Laan, A. M., Beerthuizen, M. G. C. J., & Barendregt, C. S. (2019). Juvenile sanctions for young adults in the Netherlands: A developmental perspective. European Journal of Criminology. Van der Laan, A. M., & Goudriaan, H. (2016). Monitor jeugdcriminaliteit: Ontwikkelingen in de jeugdcriminaliteit 1997 tot 2015. Den Haag: WODC. Cahier 2016–1. Verwers, C., & Bogaerts, S. (2005). Strafrechtelijke aanpak van jongvolwassenen (18–24 jaar): Een verkenning. Den Haag: WODC. Cahier 2005–11. Vosylis, R. (2018). Linking holistic pathways to adult roles with resolution of tasks and features of emerging adulthood: A person-oriented approach. Emerging Adulthood, 9 (1), 35–52. Vuˇci´cevi´c, M. (2017). Social reaction to Juvenile crime. Facta Universitatis— Law and Politics, 15 (4), 361–373. Zeijlmans, K., Sipma, T., & van der Laan, A. (2019). De aparte bejegening van jongvolwassen daders in het (jeugd) strafrecht. Den Haag: WODC. Cahier 2019–14.

6 ‘Goldies’, ‘Birdies’ and ‘Oldies’: An Exploratory Analysis of Young Adults in Portuguese Prisons Maria João Leote de Carvalho, Cláudia Urbano, and Vera Duarte

1

Introduction

Worldwide, the so-called young adults tend to be overrepresented in the criminal justice systems (Matthews et al., 2018; Myers, 2003; Pruin & Dünkel, 2015; Prior et al., 2011; Schmidt et al., 2020; Scott et al., 2016; M. J. L. de Carvalho (B) · C. Urbano · V. Duarte CICS.NOVA - Interdisciplinary Centre of Social Sciences, School of Social Sciences and Humanities, Universidade NOVA de Lisboa (NOVA FCSH), Lisbon, Portugal e-mail: [email protected] C. Urbano e-mail: [email protected] V. Duarte e-mail: [email protected] V. Duarte University Institute of Maia—ISMAI, Maia, Portugal © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 S. Gomes et al. (eds.), Incarceration and Generation, Volume I, Palgrave Studies in Prisons and Penology, https://doi.org/10.1007/978-3-030-82265-1_6

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Zeijlmans et al., 2019). In particular, young adults tend to be present in significant and disproportionate numbers among the prison population in many countries (Allen, 2016; Dünkel & Pruin, 2012; Gupta-Kagan, 2018). However, this does not seem to be the case of Portugal, a country with one of the lowest crime rates in the European Union and one of the highest adult incarceration rates, though not of imprisonment of young adults (Basto-Pereira et al., 2018; Carvalho, 2020; Gersão, 2019; Gomes et al., 2018). The diachronic analysis of the official data on convictions in the Portuguese courts from 1993 to 2018 (Carvalho, 2020) reveals an increase in the mitigation of sentences for young adults over the years, the grounds for which are the principles of a special criminal law regime established for this generational group in the 1980s. Despite the variations in the evolution of young adult crime rates, there has been a continuous and significant decrease in the number of prison sentences applied to young adults. Due to this singular situation, Portugal is a thought-provoking case that deserves special attention. Drawing on the age limits imposed by the Portuguese criminal law, in this text the term young adults refers to the 16- to 21-year-olds to whom a prison sentence could be applied. Portugal follows a strict approach in the conceptualisation of a young adult, considering the age at the time of the offence, as is the case in many other European countries (Pruin & Dünkel, 2015). It does not establish any provisions regarding the age at the time of the trial. As shown in the recent study of Zeijlmans et al. (2019, and presented in Chapter 5), the Portuguese jurisdiction recognises the social and personal vulnerabilities that affect the stage of transition from youth to adulthood, providing for the special mitigation of the prison sentence for 16- to 21-year-olds. As a result of the Criminal Code Reform of 1982, a special criminal law regime was established within the adult justice system setting up distinct procedures and lower sentencing guidelines that could be applied to young adults, depending on the judge’s assessment. The goal is to avoid the enforcement of a prison sentence at these ages and ensure, when necessary, that it is enforced in specialised prison facilities in line with international guidelines (Antunes, 2008; Carvalho, 2020; Dünkel & Pruin, 2012; Figueroa, 2008; Gersão, 2019; Gomes

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et al., 2018; Rodrigues & Fonseca, 2010; Santos, 2010; Silva et al., 2020). However, complex issues emerge in this field requiring more in-depth discussion. A major constraint is that the specialised detention centres for young adults established in this special regime have never been built. As a result, even with lower figures of young adult incarceration, there is still a significant contradiction between law and practice, as most of these young adults serve their prison sentences in adult prisons and the system can hardly separate them from adults. Additionally, the distinction between the age of civil majority (18 years) and the age of criminal majority (16 years) in the country raises strong concerns. 16- and 17-year-olds sentenced to a measure involving deprivation of liberty are placed in adult prisons in clear violation of international guidelines and standards, as regularly expressed by the Portuguese Ombudsman and by various United Nations Committees in their concluding observations on the national periodic reports1 . This situation is a result of the lack of specialised prison facilities for young adults. This means that, despite the provisions of the special criminal law regime, a significant part of the 16- to 20-year-olds who are convicted have to serve their sentences in regular adult prisons. Thus, the enforcement of prison sentences applied to young adults in Portugal poses serious challenges, as literature suggests that incarceration of young adults with older adults increases their previous personal and social vulnerabilities and has a detrimental impact on their development (Farrington et al., 2012; Goldson, 2013; Webster et al., 2004). Within this framework, as part of a broader project – YO&JUST. Youth Offending in the Juvenile and Criminal Justice Systems in Portugal, funded by the Foundation for Science and Technology (FCT, Ref. SFRH/BPD/116119/2016) – the aim of the study presented in this chapter is to contribute towards a better understanding of the sociolegal profiles of the young adults placed in the Portuguese prisons. A comprehensive analytical approach incorporating contributions from sociology, criminology, psychology and neurosciences adds intersectoral value and 1 Available at: https://www.ohchr.org/en/countries/enacaregion/pages/ptindex.aspx. UN Committee on the Rights of the Child: Concluding observations (2019) CRC/C/PRT/CO/5-6. UN Human Rights Committee: Concluding observations (2020) CCPR/C/PRT/CO/5.

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acts as a framework for the performance of a multivariate analysis of the available statistical data from the prison services. The data used for this analysis relate to the years of 2015, when new procedures for data processing in the justice system were introduced, and 2018, the most recent year for which data are available. The goal is to analyse the composition of the young adult prison population by examining whether there is a link between the sociodemographic characteristics of young adults and the crimes they committed and their placement in differentiated types of prison. Our research questions are: (i) what is the distribution of the young adult prison population by age, gender, nationality, educational background and geographical location of residence?; (ii) what types of crimes are more associated with a prison sentence and how do they relate to the legal status, the sentence length and the prison establishment in which the young adult is placed? A unique sociolegal portrait is drawn, aiming to contribute to the advancement of knowledge through the recognition of the diversity of crime profiles among the emerging generational category of adulthood. This group is approached differently in many countries, for a variety of reasons, and the knowledge about its composition is still limited. Thus, providing evidence that will contribute to a better understanding of the young adult prison population is crucial for more effective prevention policies and justice practices.

2

In Search of an Age: The Reason for Treating Young Adults Differently

One of the most controversial topics in the field of criminal justice confronts the classical intricate interplay between law, age and youth at the core of modern justice systems: at what age should one be considered sufficiently capable (‘mature’) to be held responsible as an adult under the substantive criminal law? Worldwide, the extension of the time span of youth is a fact (Galland, 2011). Autonomy is a distinctive developmental task of youth; however, a paradox exists at present: ‘one grows earlier, but emancipates later’ (Pappámikail, 2010, p. 398). In recent years, a growing body of research

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evidence from different scientific areas covering social sciences, humanities, health and neurosciences has supported the recognition of deep individual and social changes in the transition to adulthood in contemporary societies (Arnett, 2001, 2015; Cavalli, 1997; Galland, 2011; Pais, 2009). Complex vulnerabilities and diverse specific needs have been identified in this stage of the life course, mainly associated with psychological, biological and neurological maturation and with an impact on brain development and on the acquisition of emotional and social skills, among other factors (Arnett, 2001; Farrington et al., 2012; Moffitt et al., 2002). All these changes influence individual development and social behaviour. Research shows that it is no longer possible to speak of a linear transition founded on a synchronised combination of the key milestones bridging youth to adulthood – school completion, entry into the labour force and economic independence, and independent family formation, all of which come later in an individual’s life when compared to previous generations (Arnett, 2015; Galland, 2011; Massoglia & Uggen, 2010; Singly, 2005; Sousa, 2004). Aggregated in a triad of interrelated processes, youth autonomy, independence and liberty currently gain new meanings that overlap multiple layers of social action (Pappámikail, 2010). There is an extension of the social condition of being young in Western societies, based on intense social, technological and economic changes (Carvalho, 2020). In Portugal, the investment in long extended education courses, mostly associated with a dependence on the family without the concomitant presence in the labour market, unlike in other countries (Andrade, 2010; Ferreira, 2019; Pais, 2009; Vieira, 2016), has implications for how young people are mainly perceived as ‘non-productive elements’ (Cavalli, 1997). However, these are strongly socially stratified processes, as socioeconomic origin is still a key determining factor in shaping the course and extension of youth transition to adulthood (Billari et al., 2019; Salvatore, 2017). Additionally, the latest findings in scientific fields, such as biomedicine and neuroscience, provide evidence of the extension of the brain’s development period as cognitive emotional skills continue to develop into the mid-20s, and even beyond (Shen, 2013; Steinberg, 2017). Since children and young people are not raised in a vacuum (Noble, 2017),

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the social context in which they live significantly works for or against their biopsychosocial development (Maroney, 2011; Moffitt et al., 2002; Perry, 2004). There is now a deeper understanding of how children’s experiences of adversity alter brain development and could affect the functioning of the neurocognitive systems and their present and future relationships (Duncan & Magnuson, 2012). Evidence shows that the stress of living in deprived social conditions and impoverished linguistic environments, growing up with regular exposure to trauma and violence, are some of the key factors affecting a young person’s brain development (Brito & Noble, 2014; Noble et al., 2015; Steinberg, 2017). The longterm consequences can include a wide range of issues, from mental health and physical health problems to relational, educational and employment difficulties or even a greater probability of involvement in crime (Laub & Sampson, 2006; Sweeten et al., 2013). This perspective has serious implications for the administration of justice, as evidence suggests that adolescence and the early years of adulthood are a crucial time as well as complex periods of growth and opportunities to intervene in criminal careers aiming at the prevention of recidivism (Basto-Pereira & Maia, 2017; Farrington et al, 2017; Silva et al., 2020; Sweeten et al., 2013; Van der Laan et al., 2019). The distinct social category and life-course stage of young adulthood (Farrington et al., 2012; Webster et al., 2004) or emerging adulthood (Arnett, 2001, 2015), which is associated with unique needs in relation to developmental tasks through youth transitions (Loeber et al., 2013; Massoglia & Uggen, 2010; Salvatore, 2017), is not consensual across the world. Its age limits and definition depend on contextual factors varying from one national jurisdiction to another. In the field of justice, the distinction between childhood, youth and adulthood results in the construction of categories for the classification of individuals on the basis of age for criminal purposes. As age progresses and the sociolegal constructs of ‘children in conflict with the law’, ‘young adult’ and ‘adult’ are operationalised, an increasing responsibility and competence of the individual to answer before justice for his/her actions, in close relation with the appreciation of his/her rights, is drawn (Cheng & Leung, 2018; Stone, 2014). Legal ages are social constructs, regulating

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life in society by establishing a set of rules relating to prohibitions and rights that are accessed at a certain time in the life cycle. Rather than referring strictly to an idea of personal maturity, which is not uniform and does not develop equally for all (Sweeten et al., 2013), what is at stake is the way in which they incorporate and reflect the historical, cultural and economic configurations that frame the processes of youth transitions and emancipation in a society at a given moment of evolution. Legal ages constitute imperatives in the exercise of formal social control in the relationship between the citizen and the State. They function as symbolic markers, which guide the biopsychosocial development processes, from which the expectations that individuals and social groups have and manage in relation to what constitutes the norm for a certain stage of life.

3

Criminal Practices of Young Adults

Despite the differences in age limits across different criminal jurisdictions, literature shows that criminal offences are disproportionately committed by youth. Though young people are not responsible for the majority of the recorded criminal offences in absolute terms, the prevalence of offending tends to increase from late childhood and reach a peak in the teenage years, from 15 to 19, declining in the early 20s as individuals mature into adulthood (Farrington, 1986, 1998; Loeber, et al., 2013; Loeber & Farrington, 2014; Moffitt et al., 2002; Piquero et al., 2012; Ulmer & Steffensmeier, 2014). Among both male and female children, serious, violent and chronic delinquent behaviour is a predictor of adult criminality (Johansson & Kempf-Leonard, 2009). In many jurisdictions, young adults tend to have the highest rates of criminal offending of any age group (Pruin & Dünkel, 2015; Dünkel, 2015; T2A, 2009, 2010; Fagan & Western, 2005). The progression by age also depends on the nature of the criminal offence, but this global trend is mainly related to the specific features of the young person’s development and his/her immaturity and need for social recognition (Barry, 2006). Research also shows that there is a diversity of criminal profiles and categories of young offenders (Loeber et al, 2013). Some types of

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offending (minor theft, motor vehicle theft, uttering threats) tend to peak in the early years of adolescence and decline faster, while others (assault, drug-related offences, criminal code traffic violations, disturbing the peace) tend to peak later in young adulthood (Allen, 2016; Dayan et al., 2010). It is a fact that most of the registered offences perpetrated by juveniles and young adults are less serious offences in comparison with those of older age groups. For decades, young adults, whose definition varies by jurisdiction, have been a forgotten social group in sociological research on justice policies. There has been greater interest in dealing with individuals under the age of 18 than with those from 18 to 24 (Pruin & Dünkel, 2015; Zeijlmans et al., 2019). However, recent research has presented relevant evidence that should not be disregarded. First, young adult offenders bear more similarities to juveniles than to older adults regarding offending patterns, maturation and life circumstances (Farrington, 1986; Laub & Sampson, 2006; Loeber et al, 2013). Literature shows how they are more susceptible to being involved in certain types of crimes, usually more associated with risk-taking behaviour and youth lifestyles, rather than others (Dayan et al., 2010, Petras et al., 2010; Fagan & Western, 2005). Young adults tend to be overrepresented in drug offences and the ‘other’ criminal code offences focused on disturbing the peace or specific crimes, such as driving while drunk (Allen, 2016). More violent or serious offending tends to occur following a period of lower-level practices, which is more associated with late adolescence and early adulthood. Also, gun-carrying has the highest persistence from adolescence into adulthood (ages 18–25). This is due to the specific nature of the developmental stage these young people are living in, which is more impulsive and less mature. The same conclusion was reached in the study by Bright et al. (2014) on young women in prison, which suggests that risk factors for adult female criminality are very similar to the risks identified in the literature for female juvenile delinquency. According to Cernkovich et al. (2008), the majority of incarcerated delinquent girls continued with their criminal activity into adulthood, with poverty and victimisation as common adult experiences. In general, juvenile court-involved youth are believed

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to experience a more difficult transition to adulthood than others, mostly as a result of their problematic backgrounds. Second, complex disadvantaged paths are the most common among the young adults incarcerated in adult prisons worldwide, which puts them in an extremely vulnerable situation. Lack of family support, previous experience within child protection systems, low educational qualifications and socioeconomic status, high rates of mental health issues, in many cases associated with a history of family violence, are some of the social disadvantages usually associated with young adult prison populations (Bright et al., 2014; Matos, 2008). This is not exclusive to this generational group but acquires more relevance as young adulthood is, from a developmental perspective, a key stage to revert a potential emerging serious criminal trajectory (Farrington, 1998, Farrington et al., 2017). One of the social vulnerabilities is belonging to an ethnic minority. In prison populations across Western societies, foreigners, non-Western immigrants, ethnic groups and people of colour are overrepresented (Wacquant, 2000). According to Gomes (2018), foreign men and women are overrepresented in Portuguese prisons (17.0% of the total of male prisoners and 26.6% of the total of female prisoners). The intersection of different forms of power and social vulnerabilities based on class, gender, nationality and ethnicity has to be taken into account in crime and justice system studies (Fussell & Furstenberg, 2005; Potter, 2015). Although this is not unique to the situation of young adults, Loeber et al. (2013) prove that there is broad agreement on ‘the importance of race/ethnicity in the transition from adolescence to early adulthood. For example, studies show that African-American males show an earlier and higher peak in the age-crime curve than either African-American females or Caucasian males and females’ (p.10). Furthermore, they also show that race/ethnicity differences in offending might be explained by race/ethnicity differences in risk factors (Piquero & Brame, 2008). Third, there is little evidence to justify the application of regulations, procedures and legislation to young adults different from those applied to a young person under 18 (Zeijlmans et al., 2019; Goldson, 2013, 2019; Matthews et al., 2018; Farrington et al., 2017; Hayek, 2016; Pruin & Dünkel, 2015). As a result, an increasing number of interrelated human

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rights standards, treaties, conventions and rules, adopted by the United Nations and European authorities, call for the development and effective implementation of more flexible sanctions and alternative justice systems to young adults (Kilkelly, 2016). Studies show that criminal sanctions applied to young adults are not as flexible as those enforced by juvenile justice and young adults are convicted to more severe sanctions and longer liberty-depriving/prison sentences (Kupchik, 2006; Pruin & Dünkel, 2015; Rodrigues & Fonseca, 2010). In countries with waiver mechanisms, young offenders/children in conflict with the law who are transferred to adult courts tend to receive more severe sentences and have higher recidivism rates than those in juvenile courts (Dünkel, 2015; Richards, 2011; Kurlychek & Johnson, 2004). Several studies show that there is a high probability of sentencing young adults to longer sentences to put them out of action during the peak crime years, when recidivism rates tend to be higher compared to those of older adults (Farrington et al., 2017; Gupta-Kagan, 2018; Myers, 2003; Steinberg, 2017; Shen, 2013; T2A, 2009). In sum, researchers emphasise that young adults are a generational group with specific developmental needs different from those of younger and older cohorts. Compared with younger children, they are under less parental supervision and tend to be cognitively more developed and less impulsive, but more likely to commit serious offences (Allen, 2016; Farrington et al., 2017; Pirius, 2019; Steinberg, 2017). On the other hand, when compared to older adults, there is what has been called a maturity gap (Galambos et al., 2003): an inability to resist external pressures or control, such as those from peers, while being able to understand the risks involved in certain behaviours. Overall, they present an increased susceptibility to responding inappropriately to risk-taking situations, which could lead to engagement in criminal offending and subsequent involvement with the justice system (Pirius, 2019).

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The Incarceration of Young Adults in Portugal

The modern Portuguese Criminal Code, established by the 1982 Reform, defines a prison sentence as a measure of last resort, which should be focused on the social reintegration of the offender. The maximum length of such a sentence is 20 years, but its duration could be extended to 25 years for certain crimes against humanity, serious terrorist crimes or in the case of concurrence of crimes. Life sentences were abolished in the 19th century, and sentences of undetermined duration cannot be applied, except in the case of offenders with severe mental illness. The extradition to countries where the maximum punishment is higher than in Portugal is not allowed (Gomes et al., 2018). Despite this humanistic perspective, different sources on the Portuguese prison system confirm a gradual increase in the number of prisoners from the 1980s to 2018 (Gomes et al., 2018). Statistics from the Council of Europe reveal that, in 2015, Portugal had a total prison population rate of 137.5 per 100,000 inhabitants, which placed the country as one of the most punitive in comparison to the other European countries (Aebi et al., 2016). Despite the slight decline registered from 2016 to 2018, this rate remained high, with 134 prisoners and 126 prisoners per 100,000 inhabitants, respectively (World Prison Brief, 2018). These figures are compounded by the fact that there is a tendency towards a decrease in general and violent crime rates (MAI, 2018), which raises the need to understand the different profiles of individuals serving a prison sentence. The vast majority of the Portuguese prison population is male, over 21 years old and of Portuguese nationality. There is also the need for better infrastructural conditions, given the overcrowding of Portuguese prisons: in 2017, they were at 107% of their capacity (12,591 beds available for 13,463 prisoners) (Gomes et al., 2018). The prison population is distributed among 49 Prison Establishments (EP), which consist of one or more units and can be male only, female only or mixed. They may also be differentiated according to various factors, such as security requirements and available programmes, among others.

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The rate of entry into prisons in Portugal is relatively low when compared to the European average; but, at the same time, the country also has a very low rate of release of individuals when compared to the European average (Aebi et al., 2016). This means that, although fewer individuals enter Portuguese prisons, they tend to stay for longer periods compared to those in other European jurisdictions, as prison sentences tend to be longer than 3 years and up to 20 years: 19.3% of sentences are between 3 and 5 years, 36.4% of sentences between 5 and 10 years and 15.3% of sentences between 10 and 20 years (Gomes et al., 2018). The higher incidence of sentences from 3 to 5 years contrasts with what is seen in most European countries, where individuals are more often sentenced to less than 3 years in prison. As a result, Portugal is the third European country with the longest prison sentence rate, three times higher than the European average (31.3 months versus 10.9 months in Europe) (Aebi et al., 2016). In what concerns the legal status of prisoners at the time of entry into prison, two categories are considered. One relates to those who are in pre-trial detention and the other to those entering as convicted prisoners. It is important to highlight that, while in other European jurisdictions pre-trial prisoners are held in separate establishments for that purpose, in Portugal they are held in common prisons while awaiting trial, not always in separate wings for this purpose. One of the most relevant features of the Portuguese system is that the evolution of the prison population aged 16 to 21 shows a different trend from the one observed for the general prison population. For this group, according to the official data, there has been a constant decrease in the number of individuals between 2000 and 2018, from 813 to 176 individuals, respectively. The minimum age of criminal responsibility (MACR) in Portugal is 16 years (Basto-Pereira et al., 2018; Gomes et al., 2018; Rodrigues & Fonseca, 2010), which is also the minimum age for criminal majority, even though the age of civil majority is set at 18 years (Article 122 of the Civil Code)2 (Carvalho, 2017, 2020; Gersão, 2019). Below the age 2 Introduced by Decree-Law no. 496/77, of 25 November 1977, which brought the Civil Code into line with the principles of the 1976 Constitution of the Portuguese Republic, approved after the Revolution on 25 April 1974. Until then, the age of civil majority was 21.

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of 16, it is not possible to sentence children in criminal terms: they can be subject only to the enforcement of protective measures or educational guardianship measures. After turning 16, the criminal law is applied and they are regarded and tried as adults (Article 19 of the Criminal Code), despite still being considered children – as defined by the United Nations Convention on the Rights of the Child (CRC) (Article 1), ratified by Portugal in 1990. To mitigate this situation, an individual aged 16 to 21 can be subjected to the special criminal law regime for young adults (Decree-Law no. 401/82, of 23 September). This criminal law regime is based on the need to establish a criminal law approach better suited to deal with crimes at these ages. Thus, young adulthood is defined in this legal diploma as a generational category of its own, involving a stage of the life course corresponding to a phase of social latency that makes crime an ephemeral and transient phenomenon. The law is clear in recognising that young adults are distinct from adults, as they are more vulnerable to peer pressure and to being involved in risk-taking behaviour, seeking social recognition, and are less likely to consider the immediate and future consequences of their actions. This meets the guidelines established by a growing body of legal documents produced by the United Nations and by European entities calling for a reframing of criminal systems towards a more effective and flexible justice approach to young adults (Pruin & Dunkel, 2015). Despite these principles, the special criminal law regime is not mandatory. Therefore, judges are required to decide whether to apply the mitigation rules to each young adult and have to justify the decision they make, including when they choose not to apply it (Pereira, 2005). This assessment is not dependent on a request from the public prosecutor or from the accused. It constitutes an inherent part of the proceedings, even in cases where there is insufficient evidence. However, this special regime cannot be fully enforced because the necessary conditions for it have never been created (Rodrigues & Fonseca, 2010). A major constraint is that the specialised detention centres for young adults established in this special regime have never been built. Therefore, young adults serve their prison sentences in adult prisons and the system can hardly separate them from adults. There is no true distinction between their sentences and those applied to adults, since

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there is only one dedicated young adult prison in the whole Portuguese system, just for male offenders. Since 1946, in Leiria, the only existing specialised prison, known as the ‘Prison School’, has been specifically focused on receiving male prisoners under the age of 21, who can stay there until the age of 25. Thus, many young adults are sent to a regular adult prison and potentially subjected to the criminogenic and other negative influences from older prisoners (cf. Howell et al., 2013). Another significant limitation arises from the fact that the country does not have a specific prison unit for young adult female prisoners either. As a result, all the girls convicted for offences committed within these age limits are placed in regular prisons rather than separated from older women. Girls and women offenders represent a small minority in correctional systems worldwide (Salvatore & Markowitz, 2014; Kruttschnitt, 2013; Chesney-Lind, 1997). However, it is known that they are more involved in crime than prison statistics show (Gomes & Duarte, 2018; Piquero et al., 2005). This trend may be related to a set of structural dimensions – social, political, economic, cultural – that relegate the categories of gender and crime to secondary status, having repercussions on the way offences perpetrated by females are detected and dealt with. Empirical studies within this scope have indicated that females end up having different paths in crime and in the justice system from those of males in the same situation, mainly because of the gendered conditions of their lives. For example, incarcerated girls and young women have much greater odds of having several mental health diagnoses (e.g. depression, self-injury, separation anxiety and disruptive disorders) and greater rates of physical, sexual and emotional abuse than boys, and they are more affected by reproductive and sexual differences, which make them more vulnerable to prostitution and early unwanted pregnancy and motherhood (Alder & Worral, 2004; Belknap & Holsinger, 2006; Gomes & Duarte, 2018; Holsinger, 2000; Wong et al., 2010; Zahn et al., 2009). Furthermore, the literature points out that males and females respond differently to the intervention and treatment programmes to which they are subjected, although many of the needs unique to females are not formally assessed or treated (Covington & Bloom, 2006; Gomes & Duarte, 2018; Holsinger et al., 1999; Salisbury et al., 2009; Zahn

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et al., 2009). In this way, the management of the prison systems tend to devaluate the importance of providing specialised units and programmes according to gender. According to Bright et al. (2011, 2014), much less is known about girls entering adulthood following juvenile court involvement. In the Portuguese context, with the exception of the study of Raquel Matos (Matos, 2008), research work on young women in prison is still scarce. In sum, it becomes clear that a constraint of the Portuguese criminal jurisdiction is that the young adult population placed in regular prison with adults goes further beyond the sole group of 16- and 17-year-olds, in clear contradiction with the guidelines of the special criminal law regime and international standards, which justifies the analysis presented in this chapter.

5

Population

The target population under analysis is the universe of young adults, aged 16 to 20, who were held in a prison, as pre-trial detainees or serving a prison sentence after being convicted in criminal proceedings at the end of the trial stage in the Portuguese 1st instance courts, by 31st December 2015 (n = 229, 53.8%) and 2018 (n = 197, 46.2%). In the total of the 426 prisoners, 413 are male (96.9%) and 13 are female (3.1%). More than half are 20-years-old (51.2%) and more than a quarter are 19-years-old (26.8%). The 18-year-old group represents 16.7%. Those under the age of civil majority are the least represented: 4.5% are 17-years-old, and 16-year-olds have a residual value (0.9%). One in every five young adults in prison is a foreigner, mainly from the former Portuguese colonies. Brazil (n = 25, 5.9%) and the Portuguesespeaking African countries of Cape Verde (n = 23, 5.4%), Guinea (n = 12, 2.8%) and Angola (n = 9, 2.1%) are the most represented. Among those who are Portuguese, most of them were born in one of the two metropolitan areas in the country, Lisbon and Oporto. First, in the capital, Lisbon (41.3%), followed at a large distance by the Oporto region (7.7%). The third most represented region is Setúbal (5.9%), also

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in the Lisbon Metropolitan Area. There is also a relevant presence of young adults born in the Atlantic archipelago of Azores (3.1%). When comparing the place of birth with the place of residence at the time of the young adult’s entry into prison, the Lisbon county increases its relevance (+10.3%), since more than half of the young adults live there (51.6%). Oporto (8.5%) and Setúbal (8.2%) remain in very distant second and third places, but also show higher values when compared to the ones associated to the place of birth (+1.4% and 2.4%, respectively). This reflects the trajectories of mobility of a part of these young people within the national territory, as they are attracted to live in the major national cities. Three counties have the same statistical representation (3.1%): Azores, with a value that matches the value of those born in Aveiro and Viseu, in the Centre region of the country (coast and inland, respectively). It is also noteworthy that 3.3% of these young adults came from abroad and do not have formal residence in Portugal. Nearly half of this population has low educational qualifications, suggesting academic failure and school absenteeism at young ages. Moreover, it is relevant that 4.2% of these young adults are illiterate, not having even concluded primary school. Most young people had only completed ISCED level 2 (45.3%), or even lower, as 31.9% had only completed ISCED level 1. In addition, the representation of those studying in higher education is residual (0.7%). ISCED level 3 is represented among 10.1% of this population. The three courts in the Lisbon Metropolitan Area are the most represented, corresponding to almost two thirds of the total number of proceedings concerning young adults (62.7%): Lisbon North (7.5%), Lisbon (24.2%) and Lisbon West (31.0%). The courts in the regions of the North (12.9%) and Centre (10.5%) of Portugal show almost similar values. The courts of the Atlantic islands of Madeira and Azores represent 4.2%, while the ones in the South of Portugal are represented in 9.2% of the cases. Concerning the legal status of the prisoners there is a balance between those who are in pre-trial detention (50.2%) and those who have already been convicted to a prison sentence (49.8%). In the latter group, the most common sentence length ranges from 3 to 6 years (36.4%), followed by a group with longer sentences, between 6 and 9 years

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(31.8%). Lower sentences are less represented: 2.9% are up to 6 months, 2.1% from 6 months to 1 year and 18% range from 1 to 3 years. Even if their numbers are very reduced, special attention should be paid to those in relation to whom the longest sentences have been enforced: 2.5% received sentences from 12 to 15 years, 1.7% from 15 to 20 years and 0.8% from 20 to 25 years. Crimes against patrimony are the most represented among this population (68.8%), followed at a large distance by crimes against persons (31.0%) and drug-related offences (12.2%). More than half of these young adults were involved in the two most prevalent crimes against patrimony: robbery (54.0%) and aggravated theft (19.0%). Around 6.1% are identified as being involved in the illegal use of weapons and ammunition. Other categories of crime are less represented: crimes against life in society (4.7%), road traffic crimes (4.5%) and crimes against the State (3.1%). Four in every ten young adults are identified as being involved in more than one type of crime. About 20.4% are involved in two types of crime, 11.0% in three types, 3.1% in four types and 2.8% in five or more types. The most common association is of those involved in parallel in crimes against patrimony and crimes against persons. Most of these young adults are placed in prisons that are not specialised for young people (60.8%). Around 43% are placed in regular high complexity establishments and 17.8% are placed in average complexity establishments across the country. Slightly more than one third (38.2%) are placed in the only existent specialised prison for young adults in Portugal (high complexity establishment), located in Leiria (Centre region). Overall, 55.4% of this population is displaced, i.e., placed in a prison outside the county of residence.

6

Profiles of Young Adults in Portuguese Prisons

The main goal of this study is to analyse the composition of the young adult prison population in Portugal. To this end, given the serious limitations of the official data – only a very reduced number of variables

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are available, precisely the ones used in this study – the option was to perform a cluster analysis to identify profiles of young adults according to the types and combinations of crimes they committed. Crime is a key component in determining the prison sentence that will be applied. The mitigation of sentences by the courts depends first of all on the nature of the crime, before other individual or legal issues can be considered. Therefore, the findings will provide relevant insights to support the analysis of data related to criminal proceedings to be collected and analysed in the next stage of the YO&JUST project. As an exploratory analysis that aims to identify structures within the data and uses a more descriptive approach based on possible groups of young adults and the crimes they committed, cluster analysis seems to be the best option at this stage. In a cluster analysis, the individuals are sorted on the basis of their similarity, by maximising the dissimilarity between clusters and minimising the dissimilarity within them. Using this strategy, we can assess whether there are combined types of crimes and how these can be related to different young adult profiles, which is done by identifying homogenous groups of cases. Due to its exploratory nature, cluster analysis does not make any distinction between dependent and independent variables.

6.1

Measures and Identification of Profiles

The descriptive analysis of the 426 cases allowed us to have a more complete reading of the reality and to find some clues about possible factors or trends of aggregation of crimes in cases where there are multiple punishable practices by the same prisoner. For the definition of the profiles, we considered the variables and categories presented in Fig. 1. The results point to three patterns of young adult prisoners organised in two dimensions (see also Annex 1). According to the analysis, the first refers to a ‘personal dimension’, as crimes against persons, crimes against patrimony and drug-related offences are more represented. The second concerns types of crimes related to life in society, crimes against the State

6 ‘Goldies’, ‘Birdies’ and ‘Oldies’: An Exploratory Analysis …

Variables Crime against patrimony

Categories

%

Yes

68.8

No

31.2

Crime against persons

Yes

31.0

No

69.0

Crime against life in society

Yes

4.7

No

95.3

Crime against the State

Road traffic crime

Crime related to weapons and ammunition

Drug-related offences

201

Yes

3.1

No

96.9

Yes

4.5

No

95.5

Yes

5.9

No

94.1

Yes

12.2

No

87.8

Fig. 1 Descriptive measures of the variables used

or violations of road traffic norms, and therefore is called an ‘institutional dimension’ (Fig. 2). In Fig. 3, the projection of the crime profiles of young adult prisoners shows that crimes against patrimony are opposite to crimes against persons or related to drugs in dimension 1; in the second dimension, crimes against the State, crimes against life in society or violations of the Road Traffic Code are interconnected and opposite to all other types of crime. Gender and age, as supplementary variables, have a low contribution and are placed in the centre of the plot. The young adults were classified into three groups through a cluster analysis. Firstly, we analysed the descriptive measures of the variables that contributed to the definition of profiles by cluster (Fig. 3), in order to describe and name them. Other variables may differentiate the profiles besides the type of crimes and sociodemographic characteristics. Using context variables, we can better explore the three profiles: all socio-context variables except

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Fig. 2 Discrimination measures

nationality are significantly related to the profiles, as are crime variables (Fig. 4).

7

Results

Through cluster analysis, this population was classified into three groups: ‘Goldies’, ‘Birdies’ and ‘Oldies’. ‘Goldies’: Cluster 1 is the second most represented with 30.7% of the cases. Although it includes all ages, there is a predominance of older prisoners. More than eight in ten are 20 and 19 years old. Male individuals dominate, but female young adults have here their highest representation, far distant from their values in the other two profiles. Almost a quarter of these individuals have a foreign nationality, the highest value among the three profiles. This is also the group with the

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Fig. 3 Projection of the crime profiles of young adult prisoners

highest percentage of young adults with higher qualifications (ISCED 3–5), corresponding to almost a fifth of the cluster. Even if all the educational qualifications are present, ISCED 2 is the most prevalent, possibly as a result of trajectories marked by the leaving of academic studies after the end of compulsory school. Regarding the criminal practices at the basis of the entry into prison, this is by far the cluster most engaged in crimes against persons, drugrelated offences or possession of weapons and ammunition. It is close to cluster 2 in what concerns the number of types of crime. In both clusters, young adults have committed/are accused of illicit actions that fall under just one of the broader categories of crime. Almost two thirds of the proceedings in this cluster are conducted in courts located in the Lisbon Metropolitan Area. The courts in the capital, Lisbon, present the highest value among the three profiles.

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Cluster 1

Cluster 2

Cluster 3

‘Goldies’

‘Birdies’

‘Oldies’

(n=131)

(n=255)

(n=40)

SOCIODEMOGRAPHIC CHARACTERISTICS AND CONTEXT VARIABLES Sex Male

91.6

99.6

97.5

Female

8.4

0.4

2.5

16

0.8

1.2

0.0

17

2.3

6.3

0.0

18

13.0

20.0

7.5

19

32.8

25.5

15.0

20

51.1

47.1

77.5

Portuguese

75.6

77.6

85.0

Foreign

24.4

22.4

15.0 20.0

Age

Nationality

Educational qualifications ISCED 0-1 (1-4)

13.1

8.0

ISCED 1 (5-6)

29.2

32.8

40.0

ISCED 2

40.0

50.4

3.75

ISCED 3-5

17.7

8.8

2.5

Displaced

64.1

53.3

40.0

Not displaced

35.9

46.7

60.0

Displaced from home region***

CRIME AND SENTENCING PROCEDURE Region / county of the court* Azores

3.8

5.1

0.0

North

13.0

12.5

15.0

Centre

11,5

9.8

17.5

Lisbon

35.1

19.6

17.5

Lisbon North

4.6

8.2

12.5

Lisbon West

22.1

36.9

22.5

South

9.9

7.8

15.0

Fig. 4 Descriptive measures by clusters

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Type of crime Against Patrimony

Yes

10.7

100.0

60.0

No

89.3

0.0

40.0

Against Persons

Yes

60.3

18.8

12.5

No

39.7

81.2

87.5

Against Life in Society

Yes

2.3

0.0

42.5

No

97.7

100.0

57.5

Against the State Road Traffic

Yes

0.0

0.0

32.5

No

100.0

100.0

67.5

Yes

0.0

0.0

47.5

No

100.0

100.0

52.5

Weapons and Ammunition

Yes

13.7

2.4

5.0

No

86.3

97.6

95.0

Drug-related offences

Yes

38.5

0.0

5.0

No

61.8

100.0

95.0

Number of types of crimes *** 1

71.0

64.7

22.5

2

17.6

19.2

37.5

3 or more

11.5

16.1

40.0

Legal status* Pre-trial

51.9

36.9

52.5

Convicted

48.1

63.1

47.5

1 year or less

0.0

3.6

7.5

1-3 years 3-6 years

5.3 16.8

12.9 24.3

7.5 7.5

Sentence length ***

More than 6 years

23.7

21,2

25.0

Not applied

52.7

38,1

52.5

Specialised young adult prison

38.2

40.8

32.5

High complexity prison

40.5

44.7

40.0

Average complexity prison

21.4

14.5

27.5

Type of prison

***p