Department of Comparative Literature and
Folklore Studies,
Center for Law, Society & Justice
Ralph Grunewald, Ph.D., LL.M
Assistant Professor
grunewald@wisc.edu
Integrating Young
Adult Delinquents
The German Approach
1
Outline
• Comparative Caveats
• Foundations of the German Juvenile
Justice System
• Young Adults (YA) in the German
Juvenile Justice System
2
Part 1: Foundations of the German
Juvenile Justice System
• Roots and Development
• Framework
3
Roots
• January 1, 1908 First Juvenile Court
(Frankfurt/M.)
• 1922: Juvenile Welfare Act
• 1923: Juvenile Court Act (JCA)
• Three innovative pillars:
• Education instead of punishment
• More discretion for prosecutors (partly
abandoning principle of legality)
• Increasing age of responsibility from 1214
4
Framework of the JCA
5
Crime-Age Distribution
6
Scope of the German Juvenile
Justice System
14
Dependency/
Neglect
1666 CC
and/or
KJHG
18
Sole jurisdiction of Juvenile Court
and Law
24
21
Juvenile
Court and
either juv.
or adult law
Incarceration
in institutions
for juveniles
7
Actors
• “Youth Court Assistant “ (Social Worker)
• Prepares report
• Mandatory participation in trial
• Defense Counsel
• As soon as juvenile is in pre-trial
detention
• Judges and Prosecutors
• “Should have appropriate education and
training as well as experience in the
education and upbringing of youths.” (37
JCA)
9
Substantive Criminal Law and
the JCA
Same Crimes, different reaction
Section 242 Theft
(1) Whoever takes moveable
property not his own away from
another with the intent of
unlawfully appropriating the
property for himself or a third
person, shall be punished with
imprisonment for not more
than five years or a fine.
(2) An attempt shall be
punishable.
Juvenile Court Act (JCA)
• Different goals,
different
interventions
• Most due process
protections apply
10
Goals
• Main goal: “Erziehung” (Education)
• Mentioned throughout JCA but not
defined. It includes:
•
•
•
•
Education
Childrearing
Leading a life without crimes
Individualization of any
intervention/sanction
• Less (intervention) is more
11
Interventions of the JCA
Delinquent Act
Diversion: (informal sanctions, dismissal of the case)
Formal (court) sanctions
possibly in combination with conditions., §§ 45, 47 JGG
Principle of „subsidiarity“ (§ 5 II JGG): disciplinary measures and youth
imprisonment only if educational sanctions are not sufficient
Educational measures
§ 5 I JGG, § 9 JGG
Court directives
§ 10 JGG
•
•
•
•
•
•
•
•
Location
(Foster)family
Job training
Supervision
Restitution/VOM
Social Training
Traffic instruction
Etc.
combine
Welfare
measures
Imprisonment
§ 5 II JGG, 17 JGG
Disciplinary measures
§ 5 II JGG, § 13 JGG
Warning
Conditions
•
•
•
•
Restitution
Apology
Work
Placement
Payment to
non-profit
corp.
Detention
•
•
•
“Spare time”
(2 Max)
Short term
Long term
(1-4 Weeks)
Suspended
Sentence
Or
Probation
Sentence
(10yrs max)
12
13
Part 2: Young Adults (YA) in the
German Juvenile Justice System
• For all practical purposes, the inclusion
of Young Adults in the German Juvenile
Justice System is a given
14
History
• Young Adults were first included in the
JCA in 1953
• JCA acknowledged the situation of the
“fatherless generation”
• Law was kept unchanged because
legislature saw importance of
educative intervention in young
adults
15
Implications
• Original and exclusive jurisdiction of
Juvenile Court over Young Adults
• Juvenile Court applies either juvenile
or adult law but never “waives” cases
to adult court
16
Implications
• Even when adult law is applied, special
regulations pertain to
• Severity of sentence (10-15 years max.)
• Institutionalization
• Goal: “Normalization”
• Juvenile Correctional Facilities, until age
24, (114 JCA)
• Only 10% of incarcerated are juveniles
•
50% of all incarcerated with migration
background
17
When is a YA treated like a
juvenile?
18
105 JCA
Application of youth criminal law to young adults
(1) Where a young adult engages in misconduct punishable
under the provisions of general law, the judge shall apply
the provisions applicable to a youth (…) if:
• 1. the overall evaluation of the perpetrator’s personality in
the light of his environment demonstrates that at the time
of the act he was still equivalent to a youth in terms of his
moral and intellectual development, or
• 2. the type, circumstances and motives of the act indicate
that it constituted youth misconduct.
(2) (…)
(3) The maximum period of youth penalty applicable to
young adults shall be ten years. In the case of murder and
particularly high culpability the maximum sentence is 15
years.
19
Juvenile Personality
Overall evaluation of YA; delinquent shows features of
juvenile character
• Marburg Guidelines:
• Lack of
•
•
•
•
autonomous judgment
Ability to plan future/life
Emotion control
(…)
• Credulousness
• Adventure seeking
• Living in the moment
Example: 18 year old imports drugs, murder
20
Youth Misconduct
Derailment due to developmental forces
• Spontaneous, careless, anger motivated
behavior; overreacting (applies to both
misdemeanors and felonies)
• Pranks, “joyriding”, theft on a dare, graffiti
• Not limited to minor violations:
• 20-year-old killed his 3-months-old baby
because he couldn’t stand crying (BGHSt
NStZ 1986, 549)
• Violent battery (including attempted
homicide with knife) between two groups of
juveniles/young adults (BGH 1 StR 261/00)
21
Inclusion of YA in Juvenile Law;
percentage of convicted YA
22
Differences among States, 2010
23
Differences in inclusion of YA
according to different crimes, 2010
24
25
26
27
Explanations
• Street Crime = 70% of all violent crime
• These crimes are usually committed within
same age group (supported by data on
victimization)
• “Age-Typical Crimes” without serious
injuries
• Data do NOT support actual increase in
crime rate
• Dark figure studies
• Public more sensitive toward violence
• Increased willingness to report
28
Recidivism
• Informal reactions (Diversion) to
juvenile delinquency does not produce
higher recidivism rates
• Probation as effective as formal
sanctions
29
Diversion and Recidivism
3-Year Recidivism Study (Spiess 2012, 37)
30
Recidivism
31
A Comparative Study:
Bremen v. Denver
• The Effect of Juvenile Justice System
Processing on Subsequent Delinquent
and Criminal Behavior: A CrossNational Study
• Huizinga, Schumann, Ehret, Elliott
(2004)
32
“The Bremen models for young adulthood clearly indicated
that arrest has counterproductive impacts. Arrest was not
only positively related to subsequent increases in
delinquency but also inhibited its decline throughout this
period. “
In Denver, arrest contributed to the persistence of illegal
behavior. The tendency to commit offenses at a similar
level as before is much stronger for arrestees than for
delinquents who were not apprehended. Even the set of
models covering the age span 18 to 21 restricted to high
frequency offenders confirmed this result. At these ages,
arrest experiences in the past, rather than an additional
arrest in the prior year, significantly increased the
propensity to persist and inhibited tendencies to
decrease.”
33
Concluding remarks
• No evidence that treating YA as
juveniles has any negative effects
• Diversion and non-custodial
interventions for YA are very effective
• Cultural readiness for change
• Punitivity high in US
• Juvenile Justice promising area
• “Juveniles are different era” (Roper v.
Simmons, 2005)
34
Thank you!
35