Kathryn Hollingsworth (Newcastle University)
This blog explores the impact and significance to child defendants of judicial communication of criminal sentences. This is a surprisingly and, in Cyrus Tata’s words, ‘shamefully’ under-examined area of research (Tata, 2020: 58). Thousands of children are sentenced in the criminal courts every year and for some (about five percent), the delivery of sentence marks a life-changing moment when they are removed from their families, schools, friends, and communities and placed instead in harmful institutions a long way from home (Youth Justice Board, 2023). And whilst in a temporal sense the sentencing hearing is only a moment in time, it is a communicative experience the memory of which can stay with children long into their future. Law, as well as research, pays little attention to children’s experiences of sentencing communication or to the purpose and duties on judges in relation to how they deliver sentences to children, rather than what sentences they deliver. My research seeks to address the knowledge gap by drawing on the views and experiences of justice-experienced children to identify what is important to them and why in relation to sentence communication. In particular, it points to the significance of what I call a ‘kinder justice’ approach to sentencing, highlighting the importance of care and recognition to children and the potentially powerful impact such an approach can have on children’s perceptions of the legitimacy of the criminal justice system.
Children’s communicative experiences and meaning-making during sentencing
Although there is research on what sentencers think of courtroom communication to children (Lowenstein, 2022), it is quite surprising – given the significance and impact of sentencing on this group of vulnerable defendants – that we know relatively little about how children themselves experience this process, how they make sense of the way that judges and magistrates communicate the sentence to them, or what is important to them and why. In order to address this knowledge gap, I conducted a qualitative study comprising of nine in-depth interviews with children and young people who had experienced the justice process when under the age of 18. The interviews lasted an average of 1 hour 26 minutes (not including breaks), and took place between late 2019 and mid 2022 (an extended period as they were interrupted by the covid-19 pandemic). Each interview consisted of two parts; first, an interview about the participant’s experiences of courtroom communication and in particular of sentencing; and second, their responses to three sets of sentencing remarks that reflected different judicial communicative styles or approaches to sentence delivery. Two key themes, developed using reflexive thematic analysis and bringing a children’s rights lens to the analysis, capture my interpretation of the data: Inside Out and Kinder Justice.
Inside Out
The first theme, ‘Inside Out’, describes my interpretation of children’s experiences and sense-making of communication in the courtroom, particularly during the sentencing process and sentence delivery. This theme explores the immense amount of emotional and mental communicative labour that children are engaged in when in court:
‘ . . I was so emotional. Like within my own mind, it didn’t look like it to the outside, but in my own head, there was so much going on, but it was like, I could hear what the judge was saying, but I couldn’t, like, I don’t know. It was just, uh, yeah, there was a lot going on at that time to me’. Trent
This ‘labour’ goes far beyond managing or navigating feelings of stress and anxiety related to the communicative processes and sentence outcome to include also: the children’s concern for their presentation to the court (including body language – ‘you need to make sure your head is clear. You’re not distracted. Because when a judge sees you being distracted, he’ll go “he’s not, he doesn’t care. He doesn’t really care”’ (Grace)); their attempts to read the room and ‘gauge the reaction of the judge to what you’re saying’ (Louis); emotional regulation (‘you can’t be angry at the judge’ (Trent)); concern for what their families’ are seeing and hearing (‘You .. you’re treated so . . .. just stand there, just do this, just state your name and, and your poor mum has to stand there and watch you just doing that’ (Andrew); and mentally preparing for bias by picking up relevant communicative cues (‘you’re also thinking, am I going to get, am I going to get a bias judge?’(Marcus). Inside Out also captures the sense that children are within the courtroom, indeed at its centre and inside the spotlight (‘everyone looking at me. It was just on me’ (Samuel)), but they are very much outside the participatory processes (‘I just didn’t really get it. I just like blanked out.’ (Samuel); ‘Like I’ve wanted to say something to the judge . . . I try to say, oh, excuse me, your honor. de de de da . .And then he’s like, I’m not talking to you, please be quiet or something like that’. (Nathan).
This theme therefore provides a counter-perspective to magistrates’ assumptions that some children, especially those accused of serious or persistent offending, are disengaged (Lowenstein, 2022); quite the opposite appears to be the case but the effect – exclusion from participation – is the same.
Kinder Justice
The second theme, ‘kinder justice’, is used toexplore what is important and why to children in relation to judicial communication in sentencing. I suggest that how sentences are delivered – and not just what sentences are delivered – matters deeply to those sentenced as children in three ways that coalesce around the concept of legitimacy. First, children value care in the communicative process: they want to see that the judge demonstrably takes care over the decision-making process (‘He’s actually done research himself. Like he’s actually like well like tried to like himself gone to people and said I want back some information. He done it himself personally’ (Joshua); cares about them andtheir past and their future (‘let them know that yes, although you made a mistake, there’s still a chance you can make yourself better. Like give them hope. Don’t give them the fear, give them hope’ (Marcus)); and expresses care for them (‘He read like he actually cared and you know, when he was reading you could see that he was understanding a bit more like I was saying before and stuff’ (Grace). In this way, children regard the process as legitimate where they experience kinder justice, where ‘kind’ is used in its adjective sense. This sub-theme resonates with the wider procedural justice literature but contributes to that research in two new ways because (i) it concerns a cohort (children) and context (the courtroom) that together have previously been absent from the research; and (ii) it provides a more nuanced and granular understanding of the components of procedural justice that can only be derived from (what remain relatively rare) qualitative studies. Specifically, children wanted to see the demonstrable communication of hope, kindness and authenticity, empathy, help/empowerment, and understanding.
Second, children regard the sentencing process as legitimate where the sentencing remarks reflect back to them their own perceptions of their ‘authentic’ self; the self that their family – their ‘kin’ – recognise; not the stigmatised criminal they feel portrayed as in court. Therefore, as well as wanting to be heard in court, it seems children also want to be seen; and where they feel seen, legitimacy is enhanced:
The thing that made me want to actually prove myself was the judge because I felt like he didn’t have to give me that chance. . . he’s understood me a little bit, you know, he’s got to know me better so . . .I just feel like it’s so important to have that level of trust with people. Even though I might not see this man again . . he gave me a chance already . .it allows you to be a better person”. Grace
Third, and most importantly, legitimacy for children hinges on acknowledgement of their status as child; they want to see that there is kinder justice – where ‘kinder’ is used as a noun (as in ‘kindergarten’) – through a demonstrable commitment to treating children (kinder) as a vulnerable group worthy of special treatment:
‘. . at the end of the day, you know, I am still a child and it’s like, when you, when I was in the [court] environment, whether I was a child or not didn’t matter. That’s honestly how I felt’. Trent
This can be communicated in sentencing through various means, for example through the use of ‘child-friendly’ language, through an articulation that children deserve second chances, and through directly telling the child they have special rights as a child. Where judges communicates to the child that they are seen as an individual and as a child then a form of recognitional justice is achieved.
Concluding comments: Communicating legitimacy through kinder justice
This research brings to the fore new understandings of children’s experiences of communication in sentencing and suggests that communication can shape perceptions of legitimacy for this particular group of vulnerable defendants. It develops the theme of ‘kinder justice’ to capture three elements of legitimacy for children that together highlight the centrality of care and recognition. It allows us to see the importance to vulnerable defendants in court not only clarity in communication, but also the central place that relational communication plays as well. This does not necessarily secure justice for children (how sentences are communicated does not, after all, change the social harms that contributed to their offending nor mitigate the harms that the sentence itself might inflict), but it goes someway towards showing child defendants, as well as others present in the courtroom, that they ‘matter’ (Billingham and Irwin-Rogers, 2022); something that the children in this study needed to hear.
Bibliography
Billingham, Luke and Irwin-Rogers, Keir (2022) Against Youth Violence: A Social Harm Perspective (Bristol University Press)
Lowenstein, Max, (2022) ‘Sentencing explanations provided via judicial remarks made within the English magistrates’ youth court: Towards a better global understanding’ 22(2) Youth Justice: An International Journal 189-205.
Tata, Cyrus (2020) Sentencing a Social Process: Rethinking Research and Policy (Palgrave)
Youth Justice Board (2023) Youth Justice Statistics: 2021-2022, available at Youth Justice Statistics: 2021 to 2022 (available at: https://www.gov.uk/government/statistics/youth-justice-statistics-2021-to-2022/youth-justice-statistics-2021-to-2022-accessible-version#sentencing-of-children. Last visited 31 October 2023)
Defending Vulnerability 