Analysis & Future Directions
Summary of Findings
The neuroscientific, criminological and sociological literature summarized above strongly suggest dealing with emerging adults in the justice system as a distinct group from older adults.
Neuroscience supports the notion young adults may be less morally blameworthy or culpable due to their not-yet-fully-developed brains, with implications for charge assessment policies/practice and sentencing.
Relying on incarceration as the primary response to emerging adults’ criminal misconduct is counterproductive to the developmental tasks of this period, prevents successful transitions to adulthood, and makes it more, not less, likely that an individual will commit more crimes in the Future.
Lindell & goodjoint juvenile law centre 2020
More importantly, the current literature makes the case for distinct approaches to this population with respect to the legal process, administration of sentences, case management, rehabilitative programming, and social supports. Recognition of the emerging adult brain as still developing and malleable means approaches to this population should capitalize on opportunities to support healthy brain development and encourage desistance from future offending. Interventions which may further compromise healthy brain/cognitive development, such as segregation and other punitive approaches, should be avoided.
A distinct approach to young adults in the justice system, which recognizes and addresses developmental and rehabilitative needs, can and must also address accountability, public safety, and impact on victims of crime. As with the Youth Criminal Justice Act, it is possible to have a criminal justice approach to young adults which “…takes into account the interests of victims, fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration…”Footnote 49 The youth crime rate in Canada has been on a long downward trend for over two decades,Footnote 50 indicating the more rehabilitative and less punitive approach of the Youth Criminal Justice Act has not compromised public safety.
Moving Forward – Suggested Approaches
Following are approaches for consideration at each stage of the justice system. Proposals are based on the research literature, examples from other jurisdictions, initiatives currently underway in Canada, and discussions among and between government officials and community agency leaders. As with the environmental scan, this is not intended to be an exhaustive list; additional ideas/models will emerge from further discussion, including critical input from those with lived experience.
To ensure positive outcomes, potential changes to legislation, policy, and practice regarding young adults in the justice system must address risk factors and needs of this population and avoid measures which increase risk to reoffend. Special attention must also be given to ensuring legislative and policy/practice changes accommodate distinct needs of female, Indigenous, racialized, and non-binary young adults in the justice system. Initiatives must recognize the factors which lead members of these groups into conflict with the law, as well as program interventions which are responsive to their needs.
Investigation / Charge Assessment
Measures at this initial stage of the justice system should include enhanced procedural protections and recognition of potentially reduced moral blameworthiness / culpability, as well as options to avoid the long-term negative implications of a criminal record or conversion of a youth court record to the status of an adult criminal record. Options to consider:
- enhanced diversion options for young adults, including police and Crown warnings/cautions and referral to community-based programs;
- amendments to strengthen the legislative framework for diversion, with a presumption for the use of diversion/alternative measures for non-violent first-time young adult offenders;
- provisions for young adults to have a parent or other adult present when making a statement.
Bail / Pre-trial Detention
Measures at this stage should consider the negative impacts of detention, both in terms of the custodial environment as well as the potential loss of employment, housing, and other social supports which may protect against further offending. Options to consider:
- strengthen bail/pre-trial detention provisions of the Criminal Code to ensure young adults are not held in pre-trial detention, or made subject to release conditions, as a substitute for mental health or other social measures;
- provide case management supports to assist detained persons to secure housing and other supports to facilitate release pending trial.
Court / Trial Procedures & Sentencing
As with earlier points of contact, measures related to court proceedings involving young adults should consider potentially diminished cognitive functioning and reduced moral blameworthiness / culpability of young adults and the long-term negative implications of a criminal record or conversion of a youth court record to the status of an adult criminal record. Options to consider:
- enhanced availability of legal services to young adults to ensure adequate representation during bail, trial and sentencing hearings;
- sentencing guidelinesFootnote 51 specific to young adults, recognizing both the potential for reduced moral blameworthiness/culpability, as well as greater potential for rehabilitative programming to be successful given their stage of cognitive development;
- an emphasis on alternatives to custody with access to support/programming relevant to young adults;
- mitigated sentences, including conditional discharges, and enhanced early release options for young adults;
- for violation of youth justice court orders which occur after an individual’s 18th birthday, holding proceedings in youth court, and applying consequences and records provisions in accordance with the Youth Criminal Justice Act.
Correctional Services
Custodial options for, and community supervision of, young adults should be responsive in both approach and content. Custodial services should avoid the negative impacts of association with an older, more entrenched offender population, as well as more punitive disciplinary measures such as segregation, given the negative impact of social isolation on the developing brain. Programming for young adult offenders should include increased emphasis on education, life and job skills training, counselling, release planning and transitional support. Case management and community supervision of young adults should emphasize their greater need for guidance and support in accessing community-based treatment and services.
Custodial options to consider:
- specialized facilities or designated living units for young adults, including enhanced staffing levels and educational/rehabilitative programming, utilizing staff/service providers with specialized training/expertise in working with youth/young adults;
- restrictions on the use of segregation/separate confinement;
- assignment of community-based case managers to young adults in correctional facilities to assist with release planning and support transition to the community;
- restriction of existing legislative provisions which permit placement of 18- and 19-year-olds serving youth custody sentences in facilities for adults, and removal of mandatory/presumptive provisions for those serving youth custody sentences to be placed in facilities for adults at age 20;
- revision of provisions related to individuals subject to both youth and adult custody sentences to create a presumption for young adults to continue to serve custody sentences in youth facilities where appropriate;
- presumption for young adults who are subject to a youth custody sentence and an adult pre-trial detention warrant to be held in a youth facility;
- provisions for young adult offenders sentenced in the criminal court to serve their sentences in a youth facility where appropriate based on age, maturity level and/or cognitive development, provided doing so would not adversely affect younger residents of those facilities.
Options to consider for community supervision:
- community supervision of young adults provided by staff with smaller caseloads and training/expertise in working with youth and young adults, either through the creation of specialized probation officers for young adults or placement of young adults under the supervision of youth probation officers;
- enhanced community programming/support to young adults under community supervision, e.g. intensive support and supervision workers/community ‘navigators’ to assist with seeking and securing housing, financial supports, education/training opportunities, life skills development, etc.;
- enhanced educational and rehabilitative programming utilizing staff/service providers with specialized training/expertise in working with youth/young adults.
Additional Legislative Considerations
The literature on young adults in the justice system includes discussion of extending the age jurisdiction of youth justice legislation versus treating young adults as a discrete category.Footnote 52 The literature also debates benefits and drawbacks of dedicated young adult courts.Footnote 53 There are philosophical, practical and political considerations for each.
Based on the literature reviewed for this paper, and knowledge of the Canadian context, the author encourages an approach which recognizes young adults as a discrete population within the criminal justice system. This approach would be consistent with the notion of emerging adulthood as a developmental stage distinct from adolescence and adulthood. As well, some provisions of the Youth Criminal Justice Act such as notification to parents and separation from older adults during short periods of detention, may be less relevant to young adults.
Legislative options for consideration:
- create a definition of “young adult” in the Criminal Code, along with modified legislative provisions applicable to this age cohort addressing options set out above, including diversion, pre-trial detention, sentencing, release and records considerations;
- create a new definition of “young adult” and related provisions in the Youth Criminal Justice Act; and/or,
- create new legislation specific to young adults in the justice system.
The author cautions against establishing dedicated young adult courts. Such courts would only be practical in larger urban settings; those living in smaller/rural communities would not benefit, including many Indigenous young adults who live in geographically isolated areas. A better approach would be to identify the elements of a specialized court which would assist young adults (e.g. specialized training/expertise of court personnel, greater collaboration in planning and supervising sentences, improved access to relevant programs/services) and ensure these elements are applied to young adults in the justice system more broadly.
Additional Policy, Practice and Training Considerations
Opportunities to enhance the approach to young adults in the justice system are available pending and/or independent of substantive legislative change.
Educational resources and training for justice system personnel regarding adolescent brain development and emerging adulthood would increase awareness and benefit future policy and practice related to this age cohort.
Existing capacity in the youth justice system could be accessed to incrementally extend services to emerging adults, for example:
- amending Federal-Provincial-Territorial cost-sharing agreements for youth justice programs and services to support services for young adults;
- permitting continued voluntary access to federally-cost-shared youth justice programs and services post-sentence expiry, to provide continuity of services and reduce likelihood of young adults re-offending;
- allocating funds to develop client-specific rehabilitative and case management plans for young adults in custody and under community supervision;Footnote 54
- using excess capacity in youth custody facilities to house young adult offenders, facilitating access to educational and rehabilitative programming more developmentally relevant to young adults.
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