Often, custody is imposed when a judge believes that it could serve as a deterrent to the young offender, also known as specific deterrence, or to other young people (general deterrence), so that they will be less likely to commit the same act in the future. Under the JDA, deterrence was not a consideration of the youth court (Markwart, 1992) as the ?best interest’ of the delinquent was paramount. The YOA provided no single, primary goal for sentencing, and in the years after its enactment in 1984, many sentencing principles were introduced to the youth court, including deterrence. In the case of R. v. M. (J.J.), general deterrence was given validity as a sentencing principle. In the court’s decision, it was stated that:

There is reason to believe that Young Offenders Act dispositions can have an effective deterrent effect. The crimes committed by the young tend to be group activity...If the activity of the group is criminal then the disposition imposed on an individual member of the group should be such that it deters other members of the group. (R. v. M. (J.J.), cited in Doob, Marinos, & Varma, 1995, p. 60)

The judges, in their decision, cite sociological evidence of the prevalence of groups, or gangs, in youth crime and argue that sending one member of the group to custody will decrease likelihood that his friends will commit a similar act.

The problem with the Supreme Court’s logic in R. v. M. (J.J.) is that having knowledge of a sentence handed down to a friend or gang member is necessary, but not sufficient, for general deterrence to occur. In other words, to be deterred by a sentence imposed on a fellow young person, a youth must have knowledge of the disposition, but that does not mean that he or she will believe that the same penalty could be applied to him or her. As Doob, Marinos, and Varma (1995) point out, there is social-scientific evidence to show that as involvement in delinquency increases, perceptions of risk decrease. This finding suggests that general deterrence is less likely to be achieved with young people heavily involved in criminal activity. This may seem counter-intuitive at first glance. However, if we first consider that delinquents may engage in criminal acts daily and are arrested for those acts rarely, and second, that they are convicted and sent to custody at a lesser rate, we can see how a custodial sanction would not be an effective deterrent for many young offenders. The finding that involvement in delinquency is associated with a diminished sense of risk also implies that specific deterrence may not be accomplished by custodial sanctions. The youth who is sent to custody for a single offence, and who has committed numerous offences without being caught, will likely not believe that he is at risk for returning to custody if he commits a subsequent offence.

Not only is deterrence not effectively achieved by the youth court when imposing custody, the use of general deterrence, in particular, in youth sentencing is “antithetical to the due process origins and orientation of the YOA” (Anand, 1998a, p.339). This is because a more onerous sentence than is warranted by the crime itself could be imposed if a judge aimed to deter other youths from committing similar acts. Section 3.(1)(f) states that youths have a right to the least possible interference with their freedom, and the use of general deterrence in sentencing has the potential to violate this principle of the YOA. Youths are now incarcerated at a higher rate than adults (see Table 1) and clearly, the judicial acceptance of general and specific deterrence is partially responsible for the increased use of custodial sanctions by the youth court since the enactment of the YOA.

Back Table of Contents Next