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Transcript
1
DRAFT INTRODUCTION
TRENDS IN INTERNATIONAL JUVENILE JUSTICE
Josine Junger-Tas
2
The Best Interest of the Child:
Although young people can be held responsible for their delinquent acts, all sanctions and
interventions should be focused on their rehabilitation and reintegration in society and
meet the specific needs which impede their growing up into responsible citizens.
3
CHAPTER I
I.
INTRODUCTION
The way in which children, who are victims of the conditions in which they are living and
children who have violated the law are approached, treated, rehabilitated, disciplined and
punished, is essentially a reflection of that society’s culture and value system. This is
expressed in its vision on children and youth and its views on how to socialize and educate
them. In the last decades of the 20th century this vision has undergone drastic change, which
led to considerable modifications of juvenile justice legislation both in North America and in
Europe.
Actually, the main trend in juvenile justice in a number of countries is tending towards an ever
more repressive, but not necessarily more effective, system. It is essentially this aspect that
worries most of those who are working in the field. The question is what national and local
authorities might do to reverse this seemingly inevitable trend, and in particular whether there
exist in our part of the world other more effective and more humane ways to prevent juvenile
delinquency and to deal with young offenders. In order to answer this question two reports are
prepared. The first one, which is the subject of the present publication, presents an overview
of the actual juvenile justice system and legislation in 17 European countries and two NorthAmerican ones: Canada and the United States. The reader will note that there are huge
differences among these countries in the way they have organised their juvenile justice
system. This is not only true with respect to formal organisation but also in terms of the
conception of what such a system should be, what policies are used to reach this goal and how
to approach young people. Moreover, the differences are not random, but there are specific
clusters of countries some of which are geographically close to each other
Writing about juveniles1, delinquency and the juvenile justice system I take over the
definitions of the Council of Europe, defining a juvenile as someone who is criminally
responsible but has not reached criminal majority. Of course it should be observed that age
limits clearly vary across countries. Delinquency refers to acts which are dealt with under
criminal law, although some countries do include antisocial or deviant behaviour in their
juvenile penal law. The juvenile justice system is a formal system that is part of a wide
approach to delinquency, including the police the prosecutor system, the probation system and
youth institutions, but also agencies such as health, education, social and welfare (Council of
Europe Rec(2000)20).
This chapter first looks briefly at why and how a separate juvenile justice system came into
being and what the general trend of that system actually is. In that respect I also examine the
question whether we need a Juvenile justice system at all: may be one criminal justice system
dealing with juveniles and adults alike is to be preferred. This section is followed by the most
recent law reforms which have been adopted in the countries represented in this book. A
puzzling question in this respect is what might have caused the reforms and some hypotheses
on that subject are presented. Finally, we will try to draw some preliminary conclusions on the
basis of the 19 reports on their juvenile justice systems. The conclusions point to important
issues at stake, which will be extensively treated in a second publication.
The aim of the latter report is to examine these issues and to come up with a number of
answers which might assist authorities to improve their juvenile justice system, and to
assemble a number of realistic, preferably tested innovations in juvenile justice procedures
and interventions.
1
The words juveniles, young people and children are all included in this definition
4
II.
A SEPARATE JUVENILE JUSTICE SYSTEM
Looking at the distant past we may state that it is not before the 16th and 17th century that there
is a growing consciousness of the community’s responsibility for deprived and delinquent
children. People slowly recognized that a situation in which children continued to be the
victims of economic and social misfortunes was not acceptable and that therefore more
attention had to be given to the conditions in which children were raised. Although according
to our present standards juveniles were punished in a barbaric way, with physical punishments
such as flogging and branding, documents from that period indicate that some courts took
account of the offender’s age and meted out more lenient punishment to young people than to
adults (Penders, 1980).
In the 18th and 19th century corporal punishment was increasingly seen as morally wrong and
as an ineffective educational measure. Much higher expectations were placed on
psychological interventions and on the education of children in Christian norms and values
and on training in discipline and useful labour in an institution. It was the time when
reformatories were created all over the western world (Rothman, 1971; Leonard, 1995).
Unfortunately, the consequence of the size and massiveness of the institutions, the emphasis
on discipline, the many punishments - using violence and isolation -, was that the central
rehabilitative aim disappeared in favour of the dominant goal to preserve law and order within
the institution. Despite the undoubtedly good intentions of reformers, the institutions
degenerated into youth prisons, characterized by constant overcrowding, large dormitories,
strict work schedules, rigid discipline and punishment, and very little real education.
Different reform movements were active in the second half of the 19th century. In the United
States, the Chicago progressive reformers, considered that to do something about deprivation
and delinquency one had to consider the urban environment and the community setting. They
campaigned for compulsory schooling and for the abolition of child labour. This reform
movement, which spread from the US to Canada and Europe was essentially the outcome of
two important developments. First, the urge to rescue children from the living conditions in an
increasingly urbanized and industrialized environment. And second, a different conception of
childhood, related to social and economic change, such as the decline of the power of the
father over his children, the creation of a public school system and the increasingly separate
world of children and adolescents (Stearns, 1975; Shorter, 1975).
In the light of the new views on children and adolescents, it was felt that the state should
intervene and take over the parental role (parens patriae) if parents abused their power or
neglected their children. Together with a firm belief in education and rehabilitation, the stage
was set for legislation on a separate jurisdiction for children, both in cases of children in need
of protection and with respect to juvenile delinquents.
One of the first countries to create a modern child protection system was Norway with a law
on the treatment of neglected children, enacted in 1896. The first Juvenile court was
established in Chicago by the Juvenile Court Act in 1899. The first juvenile justice legislation
in Canada is the Juvenile Delinquents Act of 1908, while Belgium, France and Switzerland
enacted new legislation in 1912. Not all countries adopted the American juvenile court model.
For example, although the first Dutch Children’s laws, which specified the conditions that
would justify state intervention to limit parental authority, date from 1901, the institution of
the juvenile judge and the supervision order as a civil protection measure were established
only in 1922. In France specialized juvenile court magistrates were established only after
World War II (Trépanier, 1999). In addition, as we know, the Scandinavian countries
developed their own essentially civil system of Welfare boards.
5
However, the characteristics of the juvenile jurisdiction, as it spread all over the western
world, whether in the framework of a separate juvenile court, a specialized juvenile judge or a
welfare board, are essentially similar.
 Large discretionary power of the juvenile judge, based on the notion of parens patriae,
who had to act ‘in the best interest of the child’. The discretion was not limited to the
juvenile judge but referred to all levels of the system: the (juvenile) police, the public
prosecutor and the court. The focus of Juvenile justice was the individual child and not the
offence that was committed.
 Much emphasis on treatment in stead of punishment. Later on this led to a broadly
supported extra-judicial diversionary practice, on the level of the police as well as on the
level of the public prosecutor, often in collaboration with social agencies.
 Considerable efforts are made to reduce the formal character of court procedures.
Hearings are not public and procedures are confidential to protect the juvenile’s privacy.
 Because of the emphasis on treatment, rehabilitation and protection, the need for legal
procedural rights, such as they existed for adults, was not felt.
The ideal was that of a juvenile judge who –as a medical doctor or a psychologist- would
make a diagnosis of the problems and needs of the child, and then take the measures or
impose the treatment adapted to those needs.
The separate juvenile justice system was undoubtedly based on humanitarian concerns. It does
symbolize increased consideration for the well-being of children as well as more respect for
their individual personality. It had its heyday in the 20th century and its philosophy remained
practically unchanged until the 1970’s. This is true for most of the western countries, but I
would argue that in practice some differences emerged already between the US and
particularly continental Europe. First, within 10 years of the Juvenile Court Act, the United
States new legislation was enacted defining incorrigibility, growing up in idleness, gambling,
loitering, begging and running away as so-called ‘status-offences’2, thus justifying the
intervention of the juvenile court. As a consequence many children were placed in large
institutions for indeterminate periods during the first half of the 20th century. Of course such
behaviours occurred also in Europe, but they were usually not defined as offences, although
they could lead to directing the child into the protection system. Second, most justice systems
in continental countries did not include indeterminate sentences3. However, in Europe as in
the US, the child remained a powerless object in the hands of a paternalistic and patronizing
judge.
III
CHANGES IN JUVENILE JUSTICE PHILOSOPHY
This system –also called the welfare system- persisted until about the 1970’s. However, as a
consequence of important social changes in western society since the end of World War II,
such as the increase in prosperity, higher levels of education, technological change, and
emancipation movements implicating women and youth, but also homosexuals, (mental)
patients or prison inmates, the system had become obsolete. People did no longer accept the
absolute authority of a paternalistic judge over the lives of children, nor did the adolescents
themselves. The first country to change was the US, through the landmark US Supreme
Court’s ruling in Re Gault (1967) granting juveniles due process rights, such as notice of the
charges, right to counsel, right to confrontation and cross-examination, and the privilege
against self-incrimination. At the same time the ruling meant the disintegration of the
Status offences are acts that are defined as punishable behaviour because of the child’s status as a minor.
Indeterminate (civil) sentences did exist for mentally disturbed offenders. Such sentences had to be regularly
reviewed by the director of the medical penitentiary.
2
3
6
essentially protective system, based on the principle of the delinquent being mainly a victim
of circumstances and his environment. Since more rights usually entail more obligations and
accountability, the juvenile justice system, by granting more rights to young people, also
reaffirmed young people’s responsibility for their own actions and rediscovered free will.
Disappointment with treatment results in general and with institutional treatment in particular
(Martinson, 1974) affected the confidence in therapeutic interventions and prepared the minds
for a renewed emphasis on retribution and punishment. Although the Supreme Court in the
Gault case did not challenge the existence of the juvenile court, it seems to me that this ruling
was the starting point for a gradual blurring of the distinctions between the criminal court and
the juvenile court.
These neo-classical retributive principles are best expressed by von Hirsch (1976) in ‘Doing
Justice: The Choice of Punishments’, the report of a Commission set up to reform the
American system of indeterminate sentences. The commission designed a system based on
three related principles. First, the principle of ‘just desert’, meaning that the convicted person
should receive the punishment he deserves for the crime he has committed. Second the
principle of proportionality, which says that the punishment should be directly proportional to
the seriousness of the crime. Third, the principle of equality, which states that like cases
should be treated alike. Although the aim of Von Hirsch and his colleagues was to achieve a
fairer and more just sentencing policy, the principle of equality in particular did mean that
judges could no longer take into consideration the personal (mitigating or aggravating)
circumstances for the offender, and this did affect their discretionary power.
Summarizing the main characteristics of the juvenile justice system as it is now established in
North-America and many European countries, the following elements seem to be of central
importance.
 The offender is again viewed as a rational being with a free will. Consequently he is
considered as fully and individually responsible for his actions;
 The focus is placed on the committed offence rather than on the offender;
 This implies increasing notions of culpability and guilt as well as more severe penal
intervention, at the expense of protection and treatment;
 The victim has gradually become the central figure in legal procedures, one of the
consequences being a renewed emphasis on restitution and reparation of harm done;
 By awarding due process rights to juveniles, judicial procedures have again become
considerably more formal than they used to be;
 Differences between the criminal justice system and the juvenile justice system have
been reduced. Since both systems are increasingly alike, this trend did increase the
number of transfers to adult court in a number of countries.
IV
DO WE NEED A SEPARATE JUVENILE JUSTICE SYSTEM?
In view of these fundamental changes in Juvenile justice orientations some criminologists
have stated that there is no need for a separate juvenile justice system. They plead for one
criminal justice system which processes all delinquents, be they young people or adults
(Feld, 1998a, 1998b; Bol 1991). Feld argues that young people are often treated worse in the
juvenile justice system than in the adult system, while Bol wants to abolish age limits because
she claims that from a development point of view it is impossible to determine at what age
children might be considered accountable for their acts. This opposition to the juvenile court
raises the question whether there are valid arguments for pleading for a juvenile justice
system that is separate from the adult criminal justice system.
As it is there are a number of National and International bodies which strongly emphasize the
need for differential treatment of children as compared to adults. For example, the Council of
7
Europe’s recommendation of 1987 says in its Preamble: ‘...Young people are developing
beings and in consequence all measures taken in their respect should have an educational
character’. The National Council of Juvenile and Family Court Judges in the US (1998) made
a very similar argument, saying that ‘Children are developmentally different from adults; they
are developing emotionally and cognitively; they are impressionable; and they have different
levels of understanding than adults’. These statements have of course important implications
for the treatment of juvenile offenders, indicating the need for a special system taking into
account the differences between children and adults, in particular their age and immaturity
(Howell, 2003, 148). On a more abstract level they suggests three principles that are central to
juvenile justice: diminished responsibility, proportionality and room to reform (Zimring,
1998, 75-83)
Diminished responsibility refers to the question whether children are less culpable then adults
for having offended. Children may lack sufficient cognitive abilities to realise what they are
exactly doing and in particular what might be the consequences of their acts. Of course the
older the juvenile the more he will be responsible for his acts, but even at age 14 and 16 he
might be incapable of grasping the full meaning of his actions (Scott, 2000).
Proportionality refers to the mitigation of punishment because of children’s lack of
development of social and cognitive capacities. Zimring argues that punishments meted out to
juveniles should be graduated in the sense that the older the child the more severe the
punishment.
Room to reform indicates the importance of the kind of punishments that is meted out,
considering what we want to achieve with punishment and what we would want to avoid. It
means that we should strive for penal interventions that promote rehabilitation and the
growth of young people into responsible citizens. The crucial importance of the latter
principle is illustrated by a comparison of young people treated within the Juvenile justice
system and those that are transferred to the adult system (Bishop et al. 1996), showing that in
terms of recidivism juveniles retained in the juvenile justice system did considerably better
than juveniles who were transferred to adult court. Nearly one third of the transferred group
was rearrested compared with 19% of the matched non-transferred group.
Finally, in terms of the purpose of the juvenile justice system the Council of Europe
(Rec.(2000) 20) summarises its principal aims as follows:
 To prevent offending and re-offending;
 To (re)socialise and (re)integrate offenders;
 To address the needs and interests of victims;
It should be observed that these aims do not mention deterrence, retribution or punishment.
On the contrary, because of the fact that the juvenile justice system recognises the immaturity
and the special needs of young people it is concerned in the first place with prevention, resocialisation and making juveniles aware of the feelings of victims. In this perspective the
juvenile court is guided by the ‘best interest of the child’. It is precisely this orientation which
makes the juvenile justice system fundamentally different from the adult criminal justice
system, which thinking is dominated by the principles of deterrence and retribution. Since our
purpose should be to foster the growth of children and young people into responsible citizens,
we must cherish this different system and not abandon it.
V.
RECENT TRENDS IN JUVENILE JUSTICE
However, what we have seen during the 1980’s and the 1990’s in a number of western
countries is the development of a system with a stronger emphasis on punishment and a
secondary role for rehabilitation. This happened first in the United States.
8
Far-reaching revisions of juvenile penal law took place in more than 90% of all states between
1992 and 1995 (Snyder and Sickmund, 1999). These referred to making it easier to transfer
juveniles to the adult criminal justice system and to impose adult sentencing, implicating
imprisonment. Accountability is increasingly translated by long term imprisonment. Between
1992 and 1997 all states–but three- , have changed their juvenile law, enlarging the possibility
to apply adult criminal law, offering judges more (adult) sanctioning options and allowing
investigation, prosecution and trial in juvenile cases to be a public affair. Automatic transfer
was required by law for some specific offences and in twenty states such transfer was possible
for any offence. In nineteen of 47 states the minimum age for transfer is age 14, in six it is 13.
Confidentiality of legal procedures as well as the juvenile’s privacy are no longer guaranteed
because of the objective to make the public witness the criminal behaviour of minors. Some
states have introduced mandatory sentences for juveniles, which include long terms of
imprisonment. In most of the states the main objectives of the juvenile justice system are
expressed in the following way:
o To make juveniles accountable for their acts;
o To introduce effective deterrence;
o To protect the public against criminal behaviour;
o To balance attention paid to the offender, the victim and the community
o To impose punishment that is proportional to the seriousness of the offence
Although some (or all) of these objectives may be shared by many countries, the absence of
any suggestion that young people should be rehabilitated and reintegrated in the community is
striking.
If one compares Canada to the United States there are a number of interesting differences,
both in the underlying philosophy and in practice. Canada has been confronted with two big
problems: one is that the juvenile court was overburdened with non-serious cases, and the
second was the much too frequent imposition of youth detention, mainly related to the
absence of sufficient alternatives (Doob and Sprott, 1999). It should be recognized that there
is considerable variation in the practical application of the law among Canadian Provinces,
which have great autonomy in the execution of the federal law. For example, the Province of
Québec has a more pronounced ‘welfare’ practice than Ontario, as expressed in the number of
juveniles in pre-trial detention and in custody. In 1998 the federal government decided to
replace the Young Offenders Act of 1982 by the new Youth Criminal Justice Act which came
into action in 1999. The law specifies that a youth is accountable for his actions and places
more emphasis on the offence than on the offender (Trépanier, 1999). However, despite
pressures to lower the age of criminal responsibility, which was age 12, this was not followed
by the legislators, so that children younger that age 12 continue to be dealt with by social
agencies and youth protection services. Moreover, Canada has never introduced sentencing
guidelines, neither in criminal law nor in juvenile penal law (Roberts, 1999). Also transfer to
adult criminal justice requires elaborate procedures and is restricted to a small group of
serious violent and sex-offenders, since practically all juvenile offenders can be sentenced
within the framework of the new law. Therefore it is expected that not many more young
people than was the case before (annually about 100) will be sentenced in the criminal court
(Doob and Sprott, 1999). Furthermore, the new law has created considerably more
possibilities to deal with cases informally and divert them from court, keeping young people
in the community. In this respect the Federal government has made available funds to
provincial authorities to develop initiatives in the field of juvenile justice, encouraging the
development of alternatives for custody. The law states the following objectives for juvenile
justice in Canada:
 To prevent crime by attacking the circumstances that lie at the basis of
delinquent behaviour;
9


To insure that young offenders experience significant consequences of their
delinquent act;
To rehabilitate young offenders and to reintegrate them in the community;
The difference with the United States is of course the fact that the Youth Criminal Justice Act
does not only state that a young person should be punished, but explicitly states as one of its
objectives to strive for rehabilitation (Bala and Roberts, 2004).
Revision of Juvenile justice legislation has also taken place in Europe. England has changed
the law in 1998 (Graham & Moore, 2004). The Crime and Disorder Act has abolished the socalled Doli Incapax principle, according to which a child under age 14 ‘is not capable of
doing evil things’ and states that children are accountable for their acts from the age of ten.
The law has created new preventive interventions for young children, such as the Child Safety
Order, Child Curfews, and the Parenting Order. The latter orders parents to attend a Parent
Training course and if parents do not attend they may be fined. The Police cautioning practice
in the case of non-serious offences was considered too ‘soft’ and was replaced by Final
Warnings. By this measure the discretionary power of the police was seriously curtailed, and
it considerably increased the number of prosecutions (Rutherford, 1999). The discretionary
power of the juvenile court was also reduced, since in a number of cases the court could no
longer use the option of the conditional dismissal. In addition, children aged 10 to 16 could be
placed in preventive detention and a new Detention and Training Order may be imposed on
all delinquents aged 15-17, as well as on ‘persistent delinquents’ aged 10 and 11. All this
makes the sentencing framework for young people similar to that for adults. Much was
expected from the multidisciplinary Youth Offending Teams which produce pre-sentence
reports and intervene at every stage of the process. Another innovation was that young first
offenders are referred to Youth Panels, which make a contract with the youth and his parents
specifying a number of behavioural requirements. The English approach is more repressive
than that of most other European countries, but it seems to be more pragmatic than that of the
United States. For example the English government has invested considerable funds in
preventive policies and it made great efforts to develop a consistent and gradual approach to
youth crime. This is illustrated among others by a report of the Audit commission of 2004,
noting the following positive points:





4
Young offenders are dealt with more quickly and juveniles receive more often
an intervention;
One third of offenders has to pay damages or has to work for the victim (a
Reparation Order)
Reconviction rates after a Reprimand or Final Warning are 7-10% lower than
predicted
Intensive Supervision and Surveillance Programmes (ISSP’s) have proven to
be a considerably more constructive and cheaper option for persistent
delinquents than a stay in an institution: 6 months ISSP costs £ 8.500, while 6
months detention costs £ 25.400;
Magistrates4 are very satisfied with the services they receive from the Young
Offender Teams, which make pre-sentence reports, appear at the trial where
they give information to the judge, execute ISSP’s and impose Alternative
sanctions;
England has lay judges (Magistrates) which have only a basic knowledge of the law, but they are assisted by
trained jurists
10
The Audit Commission also noted a number of negative findings, the most important of which
are the following:




Although youth crime has stabilized, the public knows very little about the
recent reforms and public confidence in the Juvenile Justice system is low;
There are still too many petty offences brought to Court;
Contact time of social workers in the system continues to be only one hour per
week;
Minority juvenile delinquents (especially blacks) are more often placed in pretrial detention and get more often a custodial sentence than white young
people.
A country which frequently looks at England and Wales for change of its own juvenile justice
system is The Netherlands. Policies have become more repressive and although alternative
sanctions are a preferred option for most juvenile judges, the capacity of judicial youth
institutions has grown exponentially and new establishments are built. Just as in England
more young people are sent to a closed institution, while increasing attention is placed on
´delinquent´ acts of children under the age of criminal responsibility (12 years). Since these
children are not criminally responsible they cannot be punished, but in this case the public
prosecutor proposes to the parents to deliver an (educative) intervention. Although parents
may refuse, most accept an intervention which has a definite ‘juvenile justice flavour’ (van
der Laan, 2004). The latest intervention introduced by law in England and as an experiment
in The Netherlands is the ASBO (Anti Social Behaviour Order). Behaviours that are no
criminal acts, such as nuisance behaviour, harassing or intimidation, excessive noise, rowdy
behaviour, graffiti, drunken behaviour and fouling the streets with litter may be punished by
prohibiting the young people entering defined areas, associating with certain people or going
near a house where they caused trouble. ASBOs are civil orders made in court and they are in
effect for a period of 2 years. However, breach of the order is a criminal offence and may lead
to placement in an institution. What this means is that acts that are no crimes may be punished
as crimes if the young person breaches the civil order during the period of 2 years. Moreover,
civil proceedings do not carry with them the same due process rights as penal proceedings.
Northern Ireland and the Republic of Ireland, also belong to this cluster of Anglo-Saxon
countries. However, they have introduced important innovations in their system. For example,
Ireland has changed its Children’s Act (1908) into the Children Act (2001). It is true that the
new law is slow to be implemented and that young people are still incarcerated in an
institution run by the Irish Prison Service. Moreover, the British example of Parent Orders is
followed. On the other hand the new law has introduced preventive and diversionary practices
as well as family conferences.
Northern Ireland has introduced a Youth Diversion Scheme in the form of restorative
cautioning. Participation of victims is found to have advantages over traditional cautioning.
The most interesting part of the new law is the introduction of restorative justice, implicating
statutory youth conferences for all juvenile offenders up to age 18. The law distinguishes
diversionary youth conferences and mandatory Court ordered youth conferences. The logical
consequence of the latter procedure is that conferences may impose a custodial sentence. The
requirement that a solicitor has only advisory capacity because he/she is supposed to fully
participate in the process seems to me rather problematic.
So far the impact of legal change and practice in what may be termed the Anglo-Saxon
countries has been real but it is limited. Indeed there are clear differences between these
11
countries and other European states, in particular Southern Europe and East and Central
Europe. As will be shown the protection tradition there is much stronger.
For example, France and Belgium, because of their struggle with growing repressive
tendencies, are still having a thoroughly ‘welfare’ law. It is true that several specific
retributive initiatives have been taken to deal with delinquent young people in both countries.
The French system is essentially dominated by the Ordonnance of February 2, 1945,
including the principles of a special jurisdiction for juveniles, diminished responsibility of
minors and priority of educational measures (Wyvekens, 2004). These principles are still
upheld although they are under increasing attack. For a very long time the juvenile judge, who
is competent in penal and civil cases, was the most powerful player in the game, the
prosecutor having little influence. This is now changing and a number of courts have
prosecutors who are specialized in juvenile matters. An interesting French initiative is the
neighbourhood prosecuting offices, who deal rapidly, mostly by a conditional discharge, with
petty offences committed by adults and minors. This practice, legalized in 1993, is similar to
several diversion procedures in other countries, since it includes reparation to the victim
and/or community service. Taking into account the principle of protection in French
legislation, the term ‘educative sanction’ appears only in 2002, when a new decree made it
possible to sanction children aged 10-13, who are not yet criminally responsible. Juveniles
aged 13-18 can be fined, receive a Community service order or may be placed in a closed
educative centre. They may also be placed under supervision, eventually including a term in
care for 6 or 12 months. Those aged 16-18 may be subjected to electronic monitoring, or be
imprisoned. Belgium had adopted a protection law in 1965, establishing criminal
responsibility at age 18 (Van Dijk, 2004). As a consequence the youth court cannot impose
any sanctions, but only educational measures. There have been several initiatives at the level
of the prosecutor to develop community based sanctions, which tend to express some
dissatisfaction with the law of 1965 and promote some more punitive goals. Belgium is one of
the few European countries to have developed the practice of Restorative Justice, although
unfortunately this is somewhat fragmented because of a lack of legislation. Like other
countries they apply Victim-Offender mediation and Community service. Transfer of 16-18
year olds to the adult court is possible. However, it should be observed that, contrary to its
northern neighbour, The Netherlands, Belgium has very few institutions and there is only one
federal correctional facility for boys aged 14-18. In Flanders the total capacity is 246, while
the French speaking part of the country has 5 rather small youth institutions.
A clear example of the Welfare tradition is apparent in the German legislation (Dünkel,
2004). In 1923 Germany created already the option of educational measures instead of
punishment and increased the age of criminal responsibility from age 12 to age 14. The
legislative reform of the Juvenile Justice Act (JJA) in1990 emphasized the importance of
diversion both at the level of the prosecutor and the juvenile judge, distinguishing four levels,
such as simple diversion and diversion combined with interventions of increasing seriousness,
such as educational measures or alternative sanctions. All formal sanctions are structured
according to the principle of minimum intervention, with juvenile imprisonment as a last
resort. Imprisonment includes a ‘short sharp shock’ detention of a maximum of 4 weeks
(Jugendarrest) and youth imprisonment for 14-17 year olds of 6 months to 5 years.
Interestingly, young adults aged 18-20 may be sentenced according to the JJA, which in fact
occurs frequently. For example, since 1953 all young adults (aged 18-21) are placed under the
jurisdiction of the juvenile court, a procedure that has been followed by Spain in 20005, as
well as by Austria and Lithuania in 2001. This is all the more remarkable since it goes counter
the tendency in many other countries to facilitate transfer to the adult criminal court of young
people aged 16-18. In fact 62% of young adults in West Germany were sentenced under the
5
However, this has later been suspended till 2007
12
JJA in 2001, while sentencing under the adult Criminal law occurred mainly for traffic
offences. Although in essence a welfare system Germany has introduced due process rights
for juveniles, similar to other countries. Also similar to other European countries is the fact
that juvenile delinquency has remained stable since 1990, while violence rates in East and
West Germany have grown closer because of a rise in West- and a decrease in East Germany.
Diversion procedures in Germany include 69% of all disposals. Short term detention has been
reduced from 11% to 5% in West Germany, unconditional youth imprisonment to 2%.
Moreover, about 70% of youth prison sentences are suspended, making prison to a real ‘last
resort’. Since 1990, however, youth prison rates have increased, not because of more severe
sentences but because of the increase of juveniles sentenced for assault and street robbery
(89% of the prison population is aged 18-25, while 11% is aged 14-18). Sentencing practices
are not more severe in East- than in West Germany, except for violent offences where
sanctions include more often short term detention. In terms of community sanctions Germany
applies community service, social training courses, mediation and different combinations with
reparation, restitution and the like. In conclusion, Germany’s legislation represents a clearly
different view of young people and of childhood than that of the more Anglo-Saxon countries
such as England and Wales and Canada, but also of The Netherlands.
As noted by the authors (Spinellis and Tsitsoura, 2004) the German legislation, as well as
procedures in Switzerland and Italy, have influenced the Greek law of 2003 –substituting the
earlier law of 1950-, introducing diversion and mediation and increasing non-custodial
measures. Greece has only two penal youth institutions where about 300 minors were housed
in 2004. Moreover, young adults up to age 21 are included in a Bill, introducing special ‘Care
Units for young people with particular problems, such as drug addicts and delinquents with
psychological or mental problems (as well as for children in need of protection). However, a
most interesting innovation is the creation of an ‘Ombudsman for Children’ who- among
other duties- has to defend and promote children’s rights.
The Spanish law of 2000 illustrates how in Continental Europe legislators are also grappling
with the problem of how to deal with increasing pressures for harsher measures in Juvenile
justice. Of course Spain is still suffering from ETA and other terrorist activities which might
explain some of the modification of the 2000 law, which is a clear welfare law with a great
emphasis on the ‘best interest of the child’. Similar to Canada the implementation of the law
is given to the provinces which have great autonomy in a ‘quasi federal state’ (Rechea
Alberola and Molina, 2004) The law itself gives large competences for dealing with
delinquents to the public prosecutor, while every province has a special Juvenile section,
including at least one specialised youth prosecutor. However, despite the introduction of
restorative justice principles, implementation is variable over provinces which may be related
to a lack of resources. Some provinces are collaborating with the Social services department
and services provided by NGO’s in order to be able to implement restorative justice
principles. Later modifications of the law were dominated by general deterrence principles
rather than the ‘best interest’ of the child, such as longer custody terms in the case of serious
offences. However, statistics on interventions in 2000-20003 show that the effect of these
modifications is not so great: although custody did increase, community measures also
increased.
One other example of a typical ‘Welfare approach’ is the Swiss Juvenile justice Bill of 2003,
which will have force of law in 2006 (Zermatten, 2004). Until that date juvenile law was part
of the Criminal law, but the new law changes this. The current law is explicitly based on
protection principles.
The minimum age of criminal responsibility is raised from 7 to 10 (despite pressures to raise
it to age 12 and criminal majority is fixed at age 18. The juvenile judge is competent both in
civil and in penal matters. On the other hand due process rights for juveniles are recognized
13
and have been adopted in procedural law, as is the case in most European countries. Custody,
which had a maximum term of 1 year, has been enlarged to 1 to 4 years for young people
aged 16 or over. However, the maximum of 4 years is reserved for serious violent offenders
who committed acts such as serious assault and robbery. It is a remarkable fact that the
country had until now only open institutions and that it has only recently made a start with
constructing several closed institutions. Although Switzerland supports alternative sanctions,
so far they have only introduced community service and mediation programs. A professional
probation system is still lacking because of a shortage of qualified social workers. The case of
Switzerland is interesting in that the country has tried to conciliate the protection system with
the due process model as well as with the social changes that have happened all over Europe
including Switzerland. Elements that may have played a role in this moderate approach are
the relatively small population size (7,5 million inhabitants), the strong informal social control
still exercised in the many small cities and villages, and the fact that immigration from
troubled regions such as ex-Yugoslavia and Albania is from a rather recent date.
In considering the Eastern European countries one may speculate that Germany’s welfare
legislation has had some impact on recent juvenile justice legislative change.
For example, In reviewing juvenile justice legislation in the Czech Republic and in Bosnia,
one may note this impact along with that of international Conventions, rules and regulations.
Indeed, in 1993 the Czech law made conditional dismissals possible at the level of the
prosecution, and this became one of the most frequent alternative disposals (Valkova, 2004).
More importantly, the new law which was adopted in 2003, established the age of criminal
responsibility at age 15 and criminal majority at age 18. The law explicitly emphasizes
diversion of criminal proceedings, educational and protective measures, and alternatives to
imprisonment, custody being considered as a real last resort. In Bosnia the criminal law
reform of 1992-2003 introduced due process rights, specified the role of the prosecutor as it is
known in other European countries, established criminal responsibility at age 14 and
introduced educational measures (Maljevic, 2004).
Looking at Poland, the biggest country among the new EU member states, the author states
that there has been opposition to the welfare type juvenile justice legislation, which dates
from 1982 (Stando-Kawecka, 2004). However, she concludes that the welfare oriented
principles of the Act have to a large extent remained unchanged. Poland has family courts
with the juvenile judge the most powerful figure in the system. There is a strict separation
between juvenile offenders and children in need of care and they cannot be placed in the same
institution. Transfer to a criminal court as well as adult sentencing is possible in the case of
very serious offences. Both police and prosecutors have limited competences, since the family
judge is competent at all stages of the proceedings and even conducts the preliminary inquiry
when a juvenile is referred to the court. The 1982 Act provides for a great number of
interventions ranging from a reprimand, supervision, placement in a foster family to a youth
educational centre and including some restorative measures (although these are still rarely
applied). The 1982 law was amended in 1995 as an answer to all those who found the
prevailing juvenile law ‘too soft’. However, both the amendment and the Penal code of 1997
introduced only limited changes, the most important of which are the lowering of the age limit
of criminal responsibility in very serious cases from age 16 to 15 and enlarging the possibility
of transferring juveniles to the criminal court (although reducing the penalties for juveniles).
Despite these legal changes, practice did not change very much: placement in an institution
continues to be rare, educative measures being the main dispositions of the family court, with
the reprimand and supervision by a probation officer and by parents being the most frequent
ones. Restorative justice practices, such as mediation, repairing damages done, apologising to
the victim and the like being seldom imposed.
14
And then there are the Nordic countries, including the Scandinavian states as well as
Scotland. They deserve a prominent place in this report because of their perseverance in
maintaining a particular welfare system even when more punitive measures are imposed.
Scotland is a case in point, since it is upholding a welfare model that was created in the
1960’s on the basis of the well known Kilbrandon report6. The Scottish Hearing system was
established in law in 1968 and is still going strong although important changes have modified
juvenile justice in the last decade. It is based on a focus on the offender instead of the offence
and does not separate children in need of protection and delinquent children. Children’s
panels, composed by lay people recruited from the local community were introduced. A
hearing includes the child, his/her parents, a social worker and the Reporter, but there is no
legal defence since that was considered unnecessary. When a case is reported to the Reporter,
the latter may ask for a social background report to the social work department and then
decides on how to proceed. If a panel meeting was convened the welfare of the child must be
the essential consideration, implying a reduction of risk of re-offending and an increase social
inclusion. Measures may include a warning, voluntary supervision from the local authorities,
compulsory supervision and placement in an educative establishment. However, in the 1990’s
a more punitive approach was gaining ground and the juvenile justice system was reviewed,
focussing heavily on both individual and parental responsibility. The hearing system was
more or less reduced to treating the ages 8 to 16, while a pilot was set up for a Youth court,
judging 16 -17 years old persistent offenders. In addition, Scotland has also introduced (the
British) Anti Social Behaviour Orders in order to ban ‘unruly’ behaviour. In practice,
however, the hearing system is still very much alive. All offenders aged 16 and 17 are
referred by the police to the Procurator fiscal (the prosecutor) who decides whether the case
should go to the Hearings system or to the Youth court, but most of the sanctions imposed by
the court are community based and only 7% results in custody. In addition, there has been a
greater emphasis on evidence based interventions. Scotland will not abolish the Hearings
system which made the country famous, and the authors conclude that ’the work with troubled
children and young people is more focused and constructive than before’ (Burman et al.
2004).
With respect to the Scandinavian countries there is an interesting mix of the philosophy of
‘just desert’ and the humane tradition for which they have always been known. Because of
7
their intensive collaboration, Denmark, Sweden, Norway and Finland have comparable legal
systems (Kyvsgaard, 2004). For example, there is no separate juvenile justice system and in
all of them the age of criminal responsibility is 15. Children under age 15 are dealt with by socalled Welfare boards (social agencies), while young people over age 15 are dealt with by a
criminal court just as adults. However, various sanctions and measures specially addressed to
offenders aged 15-17, result in a more lenient regime for this age group. When children under
age 15 are suspected of an offence, the police may detain them but they have to inform
immediately the Welfare board. It is up to the latter to decide what has to be done after an
assessment of what kind of assistance is needed. It is the child’s needs that dictate that
decision and not the seriousness of the offence, which is a pure Welfare principle. Social
interventions include practical assistance for the family, family therapy and also –with the
agreement of the parents- out-of-home placement in a foster family or a home. Children and
juveniles may be placed in secure accommodation, but this is mainly for observation.
However, under age 15 this is very rare and such placement can not exceed a period of two
months (Sarnecki and Estrada, 2004). Young people aged 15 to 18 usually do not go to court,
6
Recommendations made by a Committee chaired by Lord Kilbrandon
15
the dispositions being a fine or dropping the charges, sometimes with specific conditions,
such as a fine or substance abuse therapy. Various sanctions are available if they end up in
court, such as a ‘youth contract’ (since 1998), specifying a number of obligations of the youth
and his parents, probation and the most frequently used punishment, the day-fine. Alternative
sanctions, such as Community service or mediation are rare. Imprisonment is seldom used for
young offenders and judges must consider alternative ways of serving the sentence: the youth
may be sent to a hospital, in family care or to a specialized care institution or clinic. In 2001
Denmark introduced a new youth sanction, covering three phases in two years: first the youth
is placed in secure accommodation, followed by placement in an open institution. This may
take 1 ½ year. The last phase is spent in liberty which is restricted by supervision and after
care. During these two years the offender has to follow intensive social, educational and
employment training programs. Sweden has strongly been influenced by the ‘just desert’
philosophy (Von Hirsch, 1976). However, although there were pressures to remove the
responsibility for supervision from the social Welfare board and to place it on the court this
was not followed by the government (Janson, 2004). In stead, in 1997 the government
introduced a new sanction, ‘youth custody’ for offenders aged 15-17, which made secure
placement in the case of serious offences possible for a term between 2 weeks and 4 years.
However, the young offender should be transferred to an open institution as soon as possible.
All in all the Swedish system is not very different from the other Scandinavian ones: it
separates children under age 15, who are dealt with by social agencies, from those aged 15 to
18; young suspects (up to age 18) may only be arrested under very special circumstances and
imprisonment is rarely used.
VI.
WHY DID THE JUVENILE JUSTICE SYSTEM CHANGE: SOME
HYPOTHESES
Why has the juvenile justice system, in particular in the western European countries,
undergone such drastic changes away from the welfare model? One reason might be the belief
of many people that the increasingly harsher system is a consequence of the rise in crime. As
far as juvenile crime is concerned, there was a substantial rise between 1950 and 1980 in most
Western countries, but the bulk of it was non-serious property and petty crime. Furthermore,
there is no evidence that shows a similar rise in the 1980s and 1990s. On the whole juvenile
crime appears to be pretty stable since the last decade. Although there has been in many states
a rise in violent crime, the question whether the increase in violent crime is as high as
portrayed in police statistics or whether it is partly an artefact produced by defining more acts
than before as crimes, an increase in reporting violent acts by the public, more alert police
reaction to these complaints and better police registration due to the use of computers, is an
unresolved question. An additional hypothesis is that the general stability in juvenile crime is
the consequence of more severe sanctioning policies. Deterrence and incapacitation are
supposed to reduce crime. However, American research has long since shown that the
manipulation of penalties has little or no effect on crime rates (President’s Commission on
Law Enforcement and Administration of Justice 1967; Tonry 1995; Howell 1997). The two
factors tend to move independently from each other, and increases or decreases in crime have
little to do with criminal justice policies.
A different explanation is that the new faith in harsh punishments is a consequence of
increased mass media attention to serious, rare, and heavily dramatized crimes. This
phenomenon is as frequent in Europe as it is in the United States. As Tonry notes, “We know
that ordinary citizens base their opinions on what they know about crime from the mass media
and as a result that they regard heinous crimes and bizarre sentences as the norm. They
16
believe sentences are much softer than they are, and they believe crime rates are rising when
they are falling. As a result majorities nearly always report that judges’ sentences are too
lenient” (2001, p. 57). This distorts people’s views on crime in general and it supports the
assumption that the media contribute to create a climate of fear in which people believe that
crime is fast increasing and that deterrence and retribution are needed to maintain sufficient
social control. An additional problem is that politicians follow the media. They base their
political actions on what they see as the public’s feelings about the issues figuring in the
media. As a consequence they exercise pressure on prosecutors and judges to be firm and
pronounce more severe sentences. The latter are not insensitive to the pressures of public
opinion and tend also to support more repressive sentencing policies.
These explanations add to our understanding of the actual situation in criminal and juvenile
justice. However, as far as (western) Europe is concerned, some additional factors might be
taken into consideration.
My view is that the present trend of meting out more severe punishments to adults and
juveniles may be related to fundamental changes in the technological, economic, and social
make up of Western society. Three phenomena seem to have special importance. These are
changes in the labour market due to technological innovations, the impact of globalization on
the Welfare state, and mass immigration.
First, an important factor is technological change causing the gradual disappearance of
unskilled labour from the economy and the emergence of a strong service sector. The new
jobs require considerable training, flexibility, and adaptability to changing circumstances, and
high verbal, social, and communication skills. Increasing interdependence among people and
institutions requires a controlled environment, reliable and predictable interactions, and a
rejection of the use of violence. This is why modern society stresses strong control of
emotions, a more deliberate and rational approach to problems, and a strong emphasis on
internalized moral norms of behaviour. One result is high unemployment rates among those
who cannot meet these requirements, among which many young people living in deprived
neighbourhoods (Garland 2001, p.81). At the EU level 22% of to-days youths do not complete
any form of secondary education: this is 30% in Ireland, Italy, Spain and the UK, but is only
15% in the Nordic countries. In addition, 20% of the males were still unemployed 5 years
after having left school (OECD, 1999). Furthermore, to the extent that there is a discrepancy
between the behavioural requirements of post-industrial society and individual skills to meet
them, unemployed and marginalized young people may resort to deviant and delinquent
behaviour.
Second, western society has long been based on a market economy. However, after World
War II and until the end of the 1970s, negative effects on people’s lives were cushioned by an
elaborate welfare system that gave the state an important interventionist role. When, as a
consequence of several recessions, this balanced system was considerably overcharged, it was
gradually dismantled in many countries, though not in all to the same degree. Although
economic growth increased, it had also negative consequences. One consequence is growing
social and economic inequality and an increase in poverty, in particular among families with
children and lone mother families. Moreover, even when unemployment rates declined the
number of families without an income through work increased (European Commission, 1999).
Family unemployment has serious negative effects for children. A Danish study found that it
doubles the risks of family break up and of later unemployment of the children. It is highly
related to parental alcoholism, violence and incarceration (Christoffersen, 1996, cited by
Esping-Andersen, 2002, p.54). American research has shown that childhood poverty is
strongly related to less schooling, more drop-out, more criminal behaviour, more psychosocial disturbances and becoming poor parents themselves (Danziger & Waldvogel, 2000;
Duncan, Brooks-Gunn et al., 1998). While these conditions contribute to the marginalisation
17
and social exclusion of deprived families with poor parenting skills, they create at the same
time the need for tighter control on marginalised, unruly, undisciplined and delinquent young
people. One answer to social destabilisation may be an increasing reliance on the Criminal
and Juvenile justice system to restore a certain peace and order. This has led among others to
justice initiatives, such as replacing the practice of dismissing juvenile cases by diversion
programs, ASBOs, local justice offices where prosecutors and police do justice at the local
neighbourhood level, intensive supervision programmes and, in particular, an increase in
institutionalization. Social factors in producing crime are no longer seen as real, but emphasis
is placed on the individual, who has no self-control or lacks social control and who deserves
to be punished for his sinful acts (Garland, 2001, p.102). One of the consequences is that
countries that have an Anglo-Saxon tradition, such as the United Kingdom and the
Netherlands, have seen their detention rates skyrocketing. On the other hand the Scandinavian
countries, which have maintained a strong welfare tradition, still have very low custody rates.
Other countries have not as yet developed a full-fledged punitive justice and control model,
such as Germany and some of the Eastern European states.
Finally, mass immigration is a third important factor, both in North America and in Western
Europe. The United States and Canada have long been immigration countries. In the
nineteenth century, most immigrants came from Europe, but since 1950 about 18 million
immigrants, most of them of non-European origin, came to the United States. At the same
time, Europe received 15 million immigrants, many of whom were recruited as unskilled
factory workers (Yinger 1994). In fact immigration has never stopped, and there is a
continuous flow of Third World labourers and asylum seekers to the Western world. The
consequences are many. First, it is clear that they will affect the composition of the
population. In Holland’s big cities, the majority of children younger than fifteen belong to
ethnic minorities. Similar trends are apparent in other big European cities, such as Paris and
London. Second, changes in the labour market hit these groups particularly hard, with huge
unemployment rates as a result. Third, a growing number of segregated and deteriorated city
areas are emerging, housing an “underclass” population of mainly, though not exclusively,
immigrants (Eisner 1997).
These changes undermine society’s stability and social cohesion, producing widespread
feelings of insecurity and fear, which are projected on essentially two groups: a loosely
defined group of ethnic minorities, including refugees and foreign labourers, and those who
are considered to threaten social peace and social cohesion to an even higher degree,
marginalised, deviant and delinquent young people. .
Gurr (1981) argued that the social institutions that did educate and socialize these nonintegrated persons into behavioural conformity, adequate social functioning, and respect for
the prevailing value system in the 19th century, such as the education system , the big factories
and military conscription, are in decline or have disappeared. The only norm-enforcing
system that remains in full force and has the pretension to preserve social peace is the
criminal and juvenile justice system. That system is increasingly intervening in people’s lives,
not just by detaining people, but also by extending its operations and control in the
community. To the extent that social unrest, feelings of insecurity, and fear of the future
remain prevalent, people will continue to expect the criminal justice system to pacify society
and re-establish social cohesion. They will also continue to put pressures on the judiciary to
punish and to put away those who are seen as disturbing social peace.
VII.
INTERNATIONAL STANDARDS
18
There is an important limitation in Europe8 to what European states can do in terms of general
penal legislation or the unrestrained introduction of repressive innovations in Juvenile Penal
law. Their action is indeed limited by International recommendations, rules and conventions.
The most important legislation to which European laws are tested is the European Convention
on Human Rights and Fundamental Freedoms (ECHR), which has been adopted in 1950 by
the Council of Europe and which all members of the Council must have signed. The
Convention is enforced by the European Court in Strasbourg and it has considerable influence
on the national legislation of the member states who adopted the Convention. Expert
committees of the Council of Europe also prepare Recommendations for the member states.
One of the first on Juvenile justice was Recommendation no. R(87) 20 on ‘Social Reactions to
Juvenile Delinquency’, while in September 2003 the Recommendation
Rec. (2003) 20 was adopted by the Council of Europe, recommending the reduction of
institutionalization, greater use of evidence based interventions, greater involvement of
parents and recognition of victims interests.
A full-fledged Convention, which has increasing importance for Youth protection as well as
for Youth justice is the UN Convention on the Rights of the Child (CRC) which was adopted
in 1989 by the General Assembly and since then has been ratified by 191 countries.
Unfortunately this Convention cannot be enforced by an International Tribunal. There only
exists a UN Supervising Committee, which tests every 5 years the measures taken by
individual states to implement the Convention. In addition, five-yearly UN congresses have
adopted Standard Minimum Rules for the Administration of Juvenile Justice
( the Beijing rules) in 1985, and Rules for the Protection of Juveniles Deprived of their
Liberty ( the Havana rules) in 1990. . Both instruments were prepared by European lawyers.
The Beijing rules were originally designed and formulated by a committee chaired by
Professor Schüler-Springorum from the University of Munich. The Beijing rules include
formal criminal procedures around notions such as the well-being of juveniles, the minimum
age for criminal responsibility, proportionality of the penalty to the act, and taking into
account mitigating circumstances. The Havana rules are concerned with juveniles in
detention, specifying the reintegration of the juvenile as an objective, and his right to adequate
treatment and contacts with his family (Mijnarends 1999, 2001). Although it is expected that
the impact of the UN Convention on the Rights of the Child will increase over the coming
years, we feel that the unifying influence of the Court in Strasbourg on the legislative process
of member states, through its jurisdictional powers in the field of human rights and
jurisprudence, will probably be considerably greater.
V.
CONCLUSION
Overviewing the 19 national reports with respect to their general orientation considerable
differences can be noted. Indeed there seem to be essentially two juvenile justice clusters. The
first cluster includes the English speaking countries, with the exception of Scotland but
including The Netherlands. It is characterised by a retributive, sometimes repressive,
approach, placing a strong emphasis on the juvenile’s accountability, ‘just desert’ principles
and parental responsibility for their child’s behaviour. This does not mean that in these states
juvenile justice systems are completely similar. On the contrary there are differences in
emphasis on some aspects of the system between for example the United States and the
Republic of Ireland or Northern-Ireland. It is clear that the United States represents these
characteristics in its purest form. However, it is amazing to what degree England and also The
8
It should be observed that Canada does not share the views of the US in this respect: for example Canada did
sign the Convention of the Rights of the Child;
19
Netherlands have taken over both the rhetoric and a number of measures from the US, such as
growing institutionalisation of young people. The other countries which belong to this cluster,
such as Canada and The Netherlands –while subscribing to the general just desert
philosophy- have introduced, alongside institutional interventions, alternative sanctions,
restorative justice (Northern Ireland) and preventive and diversionary measures (Ireland).
On the other hand there is a second characteristic distinguishing these western countries from
the others and that is their pragmatism and strong emphasis on ‘what works’ principles and
evidence based interventions as well as on prevention. There is a great interest in better ways
to prevent crime and a conviction that we can and should make considerably more efforts to
reduce juvenile crime by preventive measures. For example, reading the research literature,
there is overwhelming empirical evidence showing that interventions at an early age are
considerably more effective than interventions in adolescence or adulthood (Tremblay and
Craig, 1995; Rutter,Giller & Hagell, 1998). Or as others have put it ‘…remedial policies for
adults are a poor (and costly) substitute for interventions in childhood’ (Heckman & Lochner,
2000; Esping-Andersen, 2002, p.49). Moreover, the Anglo-Saxon tradition implies a strong
empirical research tradition which is unfortunately absent in many continental European
countries. This means, among others, that the prevention of crime has become a specialist
discipline in Criminology, based on developing, implementing and evaluating interventions,
both preventive- as well as treatment programmes. As a consequence of these research efforts
most of new and innovative interventions that are applied in juvenile justice and preventive
programmes in Europe have originally been developed in the US and Canada. Since
considerable resources are invested in developing, testing and demonstrating their
effectiveness by sometimes long term effect evaluations, such programmes then find their
way to other countries.
The second cluster of countries mainly covering continental Europe is still very much
‘welfare’ oriented. This is perhaps best represented by the German approach of juveniles and
young adults, but one sees a similar approach in many continental European states. Western
European states, such as France and Belgium have also a strong welfare legal tradition,
although there are pressures to change this and create a more retributive system. It is clear that
some adaptations are made (France), but the essential protective system laid down in the
Ordonnance of 1945 is still adhered to and has a strong foothold in the country. In an
important study Whitman (2003) has shown that throughout history both France and Germany
have developed an essentially humane approach of criminal offenders based on respect and
rejecting practices of their degradation. It is interesting to note that we are finding the same
essentially humane approach in these two countries with respect to juveniles.
However, this approach is also characteristic for other continental countries, such as
Switzerland, Spain, and Greece, as well as the Eastern European states. What is striking about
the latter is that despite a huge rise in juvenile delinquency after 1998, when communism was
dismantled, their juvenile justice systems have not taken the harsh juvenile justice orientation
of the United States as an example. In reviewing their juvenile justice legislation adopting
diversionary measures and alternative sanctions, some of these countries may have undergone
western European influences, such as those coming from the Council of Europe, but the fact
remains that their welfare approach is clear.
A third cluster is formed by the Scandinavian countries and Scotland. The four Scandinavian
countries have very similar juvenile justice systems. Because of their relationships with
Anglo-Saxon states the ‘just desert’ philosophy gained in importance particularly in Sweden,
although we also see some ‘just desert’ innovations in Denmark for example. This means in
practice placing more emphasis on the offence than on the offender, as well as on the
responsibility of the juvenile for his actions and the proportionality principle. However,
despite these new accents in juvenile justice the countries have remained faithful to their
20
welfare boards, their restraint in punishment and institutionalisation and their emphasis on
treatment interventions. They are also receptive to ‘what works’ principles and evidence
based interventions and they are strongly relying on empirical research in guiding policy. A
similar story may be told about the Scottish Hearing system although the British influence is
strong as is clear from the introduction of parenting orders and ASBO’s. However, they are
proud of their own Hearing system and the changes that that have been introduced will be
limited and won’t destroy their essential welfare approach.
In sum as a preliminary conclusion based on the review of these 19 Juvenile justice systems, I
would suggest that it does seem important to try to conciliate the empirical ‘evidence based’
approach of the Anglo-Saxon states with the essentially humanistic juvenile justice tradition
of continental Europe. Both systems have negative and positive characteristics and our task –
as I see it- would be to propose a system that serves best the needs of children as well as the
requirements of post-modern society.
21
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