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DRAFT INTRODUCTION: do not cite
IMPROVING JUVENILE JUSTICE
- Working towards a more effective and more humane system -
Josine Junger-Tas
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The Best Interest of the Child:
Although children may 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.
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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. it 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 many of our 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. The aim of this report is to examine this
question 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 procedures and interventions of the juvenile justice system.
More specifically the report should answer four essential questions:
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II.
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What are actually the main policies in Europe in terms of the prevention of crime
and the treatment of young offenders?

Have there been in the last 15-20 years any specific trends in these policies?

What are the practical outcomes of the present policies, both concerning the
effective reduction of delinquency and the respect of children’s and juveniles’
procedural and individual rights?
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How can we improve the actual system? Do we have policies as well as evidence
based programmes to make both prevention and interventions more effective and
individual rights better respected?
This introduction first looks briefly at past trends in western society, raising the question
why and how a separate juvenile justice system came into being. The second section deals
with the actual situation of that system and the most recent law reforms which
characterize many countries in the western world. A puzzling question in this respect is
what might have caused these reforms. Finally, we will try to draw some preliminary
conclusions on the basis of the reports of a number of different juvenile justice systems.
These conclusions will shed more light on the issues at stake and point to the specific
subjects we want to deal with in more detail in this report.
Child Protection and Juvenile Delinquency
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
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children. People slowly recognized that a situation in which children continue 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 are 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 the court 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 education of children in Christian norms and values and
on training in discipline and useful labor 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 favor 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. A group of
people, 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 labor. The 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 increasingly separate world of children and adolescents, and the
creation of a public school system (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 children in need of
protection and 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. 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.
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 was supposed to act ‘in the best interest of the child’. The discretion was not limited
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to the juvenile judge but referred to all levels of the system: the (juvenile) police, the
public prosecutor and the court.
The interest of the individual child predominates, and not the offense that he 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 its practice some differences emerged already between the US and
particularly continental Europe. First, in the United States within 10 years of the Juvenile
Court Act, new legislation was enacted defining incorrigibility, growing up in idleness,
gambling, loitering, begging and running away as so-called ‘status-offenses’, 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
behaviors occurred also in Europe, but they were not defined as offenses. Second, most
continental countries did not have indeterminate sentences1 in their justice system. However,
in Europe as in the US, the child remained a powerless object in the hands of a paternalistic
and patronizing judge.
III
RECENT REFORMS
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,
emancipation movements touching 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. 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. At the
same time the ruling meant the disintegration of the 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
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Indeterminate (civil) sentences did exist for mentally disturbed offenders. Such sentences had to be regularly
reviewed by the director of the medical penitentiary.
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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.
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 of the offender, and this affected 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;
 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, the number of transfers to adult
court has increased in many countries;
So what we see during the 1980’s and the 1990’s in many western countries is the
development of a retributive system with a strong emphasis on punishment and a secondary
role for rehabilitation. This happened first in the United States.
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 increased adult sentencing, implicating
imprisonment. Accountability is increasingly translated by long term imprisonment. Between
1992 and 1997 all states–but three- , have changed 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 offenses and in twenty states such transfer was possible
for any offense. In nineteen of 47 states the minimum age for transfer is age 14, in six it is 13,
in two it is 12 and in Kansas and Vermont it is even 10 years. 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 behavior of minors. Some states have introduced
mandatory sentences for juveniles, which include long terms of imprisonment. Incarceration
of offenders and building prisons has taken an unprecedented scale, an example which has not
been followed by any other European country. 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;
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o To protect the public against criminal behavior;
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 offense
Although some or all of these objectives will 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 now 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 (Doob and
Sprott, 1999). It should be recognized that there was 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 had a much more
pronounced ‘welfare’ practice than Ontario, as expressed in the number of juveniles in pretrial detention and in custody. However, Canada as a whole had very high numbers of
juveniles locked up, which was mainly related to the absence of sufficient alternatives. 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 specified that a youth is
accountable for his actions and placed more emphasis on the offense than on the offender
(Trépanier, 1999). However, the age of criminal responsibility, which was age 12, was not
lowered, so that children younger that age 12 continued 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). 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, such as alternative sanctions keeping young people in
the community. The law also allows for different interpretations and practical applications,
which is important for the Provinces, and 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 behavior;
 To insure that young offenders experience significant consequences of their
delinquent act;
 To rehabilitate young offenders and to reintegrate them in the community;
The great 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 wishes
to strive for rehabilitation (Bala and Roberts, 2004).
Revision of Juvenile justice legislation takes also 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
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in the case of non-serious offenses 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. However, the
sentencing guidelines developed by the Court of Appeal as well as fixed minimum sentences
(‘three strikes and you’re out)’ are not applied to minors. 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
behavioral requirements. The English approach is more repressive than that of most other
European countries, but it seems to be more pragmatic than the American approach. 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:

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;
 Magistrates2 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;
The Audit Commission also noted a number of negative findings, the most important of which
are the following:
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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 offenses 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.
Up to this point we have mainly treated legal change and practice in Anglophone countries,
which is somewhat one-sided because there are clear differences between these countries and
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England has lay judges (Magistrates) which have only a basic knowledge of the law.
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other European states, in particular Southern Europe and East and Central Europe. The
protection tradition is much stronger in the latter than in the former.
France and Belgium constitute a special case because of their struggle with growing
repressive tendencies, while still having a thoroughly ‘welfare’ law. However, several more
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). Although under increasing
attack these principles are still uphold. On the other hand since 2002, children aged 10 to 13
may be placed in police detention for a maximum term of 24 hours, if they have (tried to)
commit(ted) a rather serious offense ( with a maximum of 5 years of prison). For a 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 neighborhood prosecuting offices, who deal rapidly, mostly by a conditional discharge,
with petty offenses 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 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 get a Community service order or 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. All
this is not very different from what happens in other countries with a more retributive law.
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 neighbor, 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 only 5 youth institutions.
A clear example of the Welfare tradition is apparent in the German legislation (Dünkel,
2004). Already in 1923 Germany created 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 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. Young
adults aged 18-20 may be sentenced according to the JJA, which occurs frequently.
Particularly interesting is the fact that 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
2000, as well as by Austria and Lithuania in 2001. This is all the more remarkable since it
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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 JJA in 2001, while sentencing under the adult Criminal law occurs in
general only for traffic offenses.
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.
Interestingly, a longitudinal victimization study (Schwind et al. 2001, cited by Dünkel, 2004)
in 1975, 1986 and 1998 has been able to show that in this period the reporting rate for simple
and serious assault has considerably increased (128%), reducing the dark number by half.
This meant that the increase in violent offenses from 1975 to 1998 was in fact only 24%.
Similar conclusions may be drawn for other European countries, showing also that the
increase in violence is mainly limited to assault and theft with violence (Junger-Tas, 1996;
Wittebrood & Junger, 1999). These research findings do suggest that the increase in juvenile
violent crime in Europe, while real, is not as worrying as some might think it is.
Diversion procedures in Germany, being also a strategy to control the workload of the court,
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 1825, while 11% is aged 14-18). Sentencing practices are not more severe in East- than in West
Germany, except for violent offenses where sanctions include more often on short term
detention. In terms of community sanctions Germany applies mainly Community service,
social training courses, mediation and different combinations with reparation, restitution and
the like.
In conclusion, Germany’s legislation represents a quite 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. The importance of this lies in particular on the impact
that this conception has had and still has on new legislation in East- and Central European
countries. In reviewing for example, juvenile justice legislation in the Czech Republic and in
Bosnia, one clearly notes the importance of Germany’s example along with that of
international Conventions, rules and regulations. For example, already in 1993 the Czech law
allowed conditional dismissals at the level of the prosecution, which 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 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 fierce opposition against 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.
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:
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The minimum age of criminal responsibility is raised from 7 to 10 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 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. There is not yet a professional
probation system 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) and the fact that immigration
from troubled regions such as ex-Yugoslavia and Albania is from a rather recent date.
And then we have the Nordic countries. They deserve a prominent place in this report because
they show an interesting mix of the philosophy of ‘just desert’ and the humane tradition for
which they have always been famous. Because of 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 so-called Welfare boards (social
agencies). On the other hand young people above 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 offense, 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 offense, a pure Welfare principle. Social interventions include practical
assistance for the family, family therapy and also –with the agreement of the parents- out-ofhome placement in a foster family or a home. Children and juveniles can be placed in secure
accommodation, mainly for observation. However, under age 15 this is very rare and
placement can not exceed a period of two months. Young people aged 15 to 18 usually do not
go to court, the dispositions being a fine or dropping the charges, possibly with specific
conditions, such as affine 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 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 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 the two years he has to follow intensive social, educational and employment
training programs. Sweden has strongly been influenced by the ‘just desert’ philosophy (Von
Hirsch, 1976). Although there were pressures to remove the system of supervision from the
social Welfare board to 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 offenses possible for a term
between 2 weeks and 4 years. However, the young offender should be transferred to an open
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institution as soon as possible. All in all the Swedish system is not very different from the
Danish one: separating 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.
I.
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 the shows a similar rise in the 1980s and 1990s (see chapter 2). 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, as far as the Netherlands are
concerned the considerable expansion of prisons and youth institutions started in the 1980s
when crime was already stabilizing. 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
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, and even judges, 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 pressure 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 economic, technological, and social
make up of Western society. Three phenomena seem to operate. These are changes in the
13
labour market due to technological innovations, the impact of globalization on the Welfare
state, and mass immigration.
First, an important factor is 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 of deprived households. 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 appeared at risk of collapse, it was
gradually dismantled in many, though not all, Western countries. Although economic growth
increased, there were 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 EspingAndersen, 2002, p.54). American research has shown that childhood poverty is strongly
related to less schooling, more drop-out, more criminal behaviour, more psycho-social
disturbances and becoming poor parents themselves (Danziger & Waldvogel, 2000; Duncan,
Brooks-Gunn et al., 1998). While these conditions contribute to the marginalisation and social
exclusion of deprived families with poor parenting skills, they create at the same time the
need for tighter control of unruly, undisciplined and delinquent children. 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, community
sanctions, local justice offices where prosecutors and police do justice at the local
neighbourhood level, intensive supervision programmes and, in particular, an increase in
institutionalization. For example, 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 continue to have 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 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
14
factory workers (Yinger 1994). 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
threaten social peace and social cohesion to an even higher degree, the deviant and the
criminal.
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.
IV. INTERNATIONAL STANDARDS
There is an important limitation in Europe3 to what European states can do in terms of general
penal legislation or the unrestrained introduction of innovations in Juvenile Penal law. Their
action is indeed limited by International recommendations, rules and conventions. The most
important legislation to which all 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-fledges 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
3
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;
15
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, proportionality
of the penalty to the act, taking into account mitigating circumstances, and the minimum age
for criminal responsibility. 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 be
considerably greater.
V.
CONCLUSION
At this stage of our proceedings and on the basis of the material that is available at this point,
there seem to be essentially two legal tendencies. The first is apparent in the United States and
in the ‘Anglo-Saxon’ tradition of North-western European countries. It is characterised by a
retributive, sometimes repressive, approach as well as by an interest in pragmatic, costeffective interventions. The second is far more ‘welfare’ oriented and although best
represented by the German approach we find a similar approach in many continental
European states. Some countries, such as Canada, occupy an intermediate position and seem
to be involved in a kind of shifting from the first to the second position, while maintaining
their characteristic pragmatic approach.
As a preliminary conclusion based on the review of some of the many 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.
A second conclusion that comes from reading the literature is that we should focus much
more on prevention than has been usual so far. There is ample 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).
On this basis the following issues will be treated in a systematic and comparative way in the
coming chapters:

A global overview of delinquency trends in Europe, in particular the question of an
increase in violence;

The question of age: do we have research based views on the age where children can be
hold responsible for their delinquent acts? To what extent are (penal) interventions for
young children justified; what can be said in this respect about parental responsibility?
16
To what extent can the notion of parental responsibility play a role in legal proceedings
and sentencing?

The prevention of delinquent behaviour: on what basis are preventive interventions
justified; do we dispose of- and can we propose to member states a number of tested,
evidence based programmes and interventions?

Diversion: what are the roles of the police and the prosecutor; to what extent is diversion
a substitute of simple dismissing cases or of official proceedings; Do we have any
empirical evidence of positive effects of diverting juveniles?

Sanctioning: what can be said about the available sanctioning options in terms of their
effectiveness in reducing recidivism as well as the observation of children’s rights;
In this respect the following sanctions should be reviewed:
 The fine
 Community sanctions, such as community service, or reparation/restitution to the
victim
 Restorative Justice
 Intensive supervision programmes
 Institutional placement
 Imprisonment (option for certain age categories, such as 16-18)
 Combination of sanctions (For example, combining CS with a fine, or custody with
intensive supervision)

Innovations: what innovations in juvenile justice interventions are available; to what
extent have they been tested and demonstrated effectiveness;

Conclusions and Recommendations for evidence based policy improvements, which do
respect children’s rights as well.

What innovations in juvenile justice interventions do we have and what do we know
about their scientific basis and effectiveness?
 Conclusions and Recommendations for evidence based policy improvements that
also assure the respect of children’s rights.
17
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