Will COVID-19 change our youth justice systems?

Before the COVID-19 pandemic took hold in Australia, more than half the number of children in custodial facilities were "on remand". This means they were unsentenced, awaiting the outcome of sentencing or other legal matters.

However, recently published figures show a significant decrease in the number of children, particularly Indigenous children, remanded in custody since March 2020. This suggests the high rates of pre-COVID custodial youth remand were not necessary, and supports existing calls for a critical re-examination of our youth and adult justice systems.

Why we should reduce youth remand

Locking up kids is harmful on multiple fronts, and reducing youth remand is important for several key reasons.

Firstly, it's well-known that even a short period of imprisonment can have lifelong, negative impacts on children. Concerns relating to the wellbeing of children in detention in Australia are regularly in the national spotlight. This is especially relevant for Aboriginal and Torres Strait Islander children, given their overrepresentation in the criminal justice system, and ongoing Aboriginal deaths in custody.

Secondly, it's a key principle of human rights legislation and the Australian legal system that youth detention should be minimised wherever possible. This is consistent with Australia’s status as a signatory nation to United Nations protocols, including the Convention on the Rights of the Child (1989), which direct that youth detention only be used as a last resort, and for the shortest possible period of time.

Read more: Celebrating children, but there's a lot of work still to do on their rights

For the child spending time in custody, the experience can be both traumatising and criminalising. The experience on remand is typically even more stressful, as it is characterised by uncertainty and instability as the remandee waits to know their legal fate and custodial release date.

The custodial environment, which can include unclothed "strip" searches, physical restraints, isolation, lockdowns and the use of constant surveillance, holds significant potential for traumatising or re-traumatising children.

This is particularly relevant for vulnerable groups, such as girls and young women, "crossover" children from child protection backgrounds, and Aboriginal and Torres Strait Islander children. Evidence indicates that younger, inexperienced or otherwise inherently vulnerable children can be victimised or negatively influenced by more experienced, sophisticated or "predatory" peers in custody.

Even short periods of incarceration are associated with increased rates of reoffending and criminogenic outcomes such as antisocial attitudes and beliefs, which in turn can compromise community safety.

A national study of youth bail and remand found further adverse outcomes relating to separation from family and community, and disruption to schooling and employment.

Young people from regional and remote areas are particularly disadvantaged this way, as they're often transported far from home to metropolitan youth remand facilities.

In custody, involvement in school or therapeutic programs is typically reserved for sentenced populations, and excludes those on remand. Finally, remanding children in custody is expensive – substantially more so than community-based options, such as supervised bail. These personal and societal costs become even more significant when considered in light of review findings that only a small proportion of young people remanded in custody are subsequently sentenced to a period of detention. This suggests that for many young people, alternatives to remand may be more appropriate.

Before COVID-19, youth remand was high, and increasing

Figures provided by the Australian Institute of Health and Welfare (2020) reveal that at the corresponding time last year, on an average night during April-June 2019, there were 949 young people (aged 10-17 years) in detention across Australia. Of these, two in three (or 63%) were on remand.

Importantly, key subgroups of vulnerable children are overrepresented in the remand population, including Indigenous children, girls and young women, and "crossover" children, who are involved in both the child protection and youth justice systems. For example, on a typical night between April-June 2019, approximately 600 young people were in unsentenced detention. Of these, more than half (or 55%) were Indigenous, and a higher proportion of females (78%) than males (62%) were on remand.

Read more: From care to custody: the tragic trajectory of crossover kids

Before COVID-19, both the rate and number of children being remanded nationally was growing. The Australian Institute of Health and Welfare looked at youth detention trends over four years (June 2015 to June 2019). They found that the number of children in unsentenced detention rose to a high of 619 in January-March 2019, from a low of 430 in July-September 2016.

Over the same period, the rate in unsentenced detention fluctuated, but rose slightly to 2.1 to 2.4 young people per 10,000, compared to 0.9-1.1 per 10,000 in sentenced detention. Aboriginal and Torres Strait Islander children made up a higher proportion of those on remand (52%-59% each quarter) than those in sentenced detention (45%-54%), and were represented in unsentenced detention at 18 to 24 times the non-Indigenous rate.

Youth remand since COVID-19

Since March, Australian governments have been taking decisive action to tackle the COVID-19 crisis, and a dramatic reduction in the number of people in custody has ensued. Recent data from the NSW Bureau of Crime Statistics and Research (BOCSAR) shows that between March 15 and May 10, the NSW prison population dropped by almost 11%. Notably, from March to June 2020, the number of young people in NSW detention aged 10 to 17 years fell by 27% – or 73 young people.

Figures released by Corrections Victoria show a similar trend emerging in Victoria, where the prison population has reduced by almost 13% between February and June 2020. However, in Victoria and across the country, data for youth detention rates is not readily available, except for in the AIHW reports, which are produced quarterly.

BOCSAR largely attributes the decrease in NSW to a reduction in the number of people on remand due to police laying fewer charges, courts and police making more favourable bail decisions, and permitting more people to wait for their court cases in the community. Indeed, the number of children in NSW custodial remand fell by about 20%, from 131 in March to 104 in June 2020.

Significantly, the BOCSAR figures show that the largest drop in the youth remand numbers has occurred for Indigenous young people. While the number of non-Indigenous youth remandees decreased by about 9% from March to June 2020, the number of Indigenous youth remandees decreased by 20% for the same period.

This begs the question – were the pre-COVID rates of youth remand really necessary, especially for Aboriginal and Torres Strait Islander children?

As the new Closing the Gap targets include reducing Indigenous imprisonment rates – specifically, a 30% reduction in Aboriginal youth detention – these new figures provide a potential pathway to achieving these goals through a reduction in the number of Indigenous children held on remand. Moreover, it seems clear that the public health risks posed by the COVID-19 pandemic have refined our interpretation of detention as a last resort, in relation to youth remand.

While unsentenced youth detention may continue at times to be required, the current reduction in the number of children held in custodial remand suggests we can do more to ensure that no child in Australia is unnecessarily deprived of their liberty.

This article was co-authored with Dr Emma Colvin, from Charles Sturt University's Centre for Law and Justice.

At the time of writing this article Shelley Turner was employed with Monash University.