(Onati International Series in Law and Society) Eric L. Jensen, Jorgen Jepsen - Juvenile Law Violators, Human Rights, and The Development of New Juvenile Justice Systems - Hart Publishing (2006)

JUVENILE LAW VIOLATORS, HUMAN
RIGHTS, AND THE DEVELOPMENT OF NEW

JUVENILE JUSTICE SYSTEMS
This volume brings together the work of scholars and practitioners special-
izing in juvenile justice from the USA and Europe alongside scholars from
Africa and Asia who are working on human rights issues in developing
countries or countries in transition. The book presents two types of papers:
descriptive and analytical academic papers on entire systems of juvenile jus-
tice or aspects of those systems (eg aftercare, restorative justice, etc.), and
papers which deal with efforts to promote reform through international
activity (PRI, DCI, DIHR) and through efforts to utilize modern theory in
national reforms in developing countries (Malawi and Nepal) or in coun-
tries experiencing current or recent political and systemic changes or devel-
opments (South Africa, Germany, Serbia and Poland). The volume is also
intended to throw light on recent trends in juvenile crime in various coun-
tries, the relationship between actual developments and popular and polit-
ical perceptions, and reactions to such developments (including efforts to
find alternatives to the incarceration of young offenders). A streak of new
moralism is clearly discernible as a counteracting force against more
humane reform efforts. The volume discusses developments within the
actual parameters of juvenile offending, public and political demands for
security and public intervention, and measures to provide interventions
which are at the same time compatible with international human rights
instruments.
Oñati International Series in Law and Society
A SERIES PUBLISHED FOR THE OÑATI INSTITUTE

FOR THE SOCIOLOGY OF LAW
General Editors
William LF Felstiner Johannes Feest
Board of General Editors
Rosemary Hunter, Griffiths University, Australia

Carlos Lugo, Hostos Law School, Puerto Rico
David Nelken, Macerata University, Italy
Jacek Kurczewski, Warsaw University, Poland
Marie Claire Foblets, Leuven University, Belgium
Roderick Macdonald, McGill University, Canada
Titles in this Series
Social Dynamics of Crime and Control: New Theories for a World in

Transition edited by Susannah Karstedt and Kai Bussmann
Criminal Policy in Transition edited by Andrew Rutherford and Penny

Green
Making Law for Families edited by Mavis Maclean
Poverty and the Law edited by Peter Robson and Asbjørn Kjønstad
Adapting Legal Cultures edited by Johannes Feest and David Nelken
Rethinking Law Society and Governance: Foucault’s Bequest edited by

Gary Wickham and George Pavlich
Rules and Networks edited by Richard Appelbaum, Bill Felstiner and

Volkmar Gessner
Women in the World’s Legal Professions edited by Ulrike Schultz and

Gisela Shaw
After National Democracy: Rights, Law and Power in America and the
New Europe edited by Lars Trägårdh
Healing the Wounds edited by Marie-Claire Foblets and Trutz von Trotha
Imaginary Boundaries of Justice edited by Ronnie Lippens
Family Law and Family Values edited by Mavis Maclean
Contemporary Issues in the Semiotics of Law edited by Anne Wagner,

Tracey Summerfield and Farid Benavides Vanegas
The Geography of Law: Landscape, Identity and Regulation edited by Bill

Taylor
Luhmann on Law and Politics edited by Michael King and Chris Thornhill
Theory and Method in Socio-Legal Research edited by Reza Banakar and

Max Travers
Precarious Work, Women, and the New Economy: The Challenge to Legal
Norms edited by Judy Fudge and Rosemary Owens
Juvenile Law Violators, Human
Rights, and the Development of
New Juvenile Justice Systems
Edited by
Eric L Jensen
and
Jørgen Jepsen
OXFORD AND PORTLAND, OREGON

2006
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Foreword
on behalf of
The Danish Institute for Human Rights
The present report on the international workshop entitled Juvenile Law

Violators, Human Rights, and the Development of New Juvenile Justice
Systems represents a joint effort in the field of comparative law and sociol-
ogy between the International Institute for the Sociology of Law (IISL),
Oñati, Spain, the Danish Institute for Human Rights (DIHR) and a number
of legal and sociological scholars within the field of juvenile justice.
The DIHR is involved in a programme of support to a number of devel-
oping countries in this field and renders this support in the light of interna-
tional conventions, of which the Convention on the Rights of the Child
(CRC) is a major instrument for reform. The CRC is relevant not only for
developing countries, but certainly also for most countries in the West, not
least in Europe.
Support and advocacy for reform requires a solid knowledge base. For
this reason, the research basis which the workshop and the present volume
represent is an indispensable means for development. The DIHR appreci-
ates that its own experience and work in the provision of assistance to
developing countries can benefit from the fruits of the work of scholars con-
tributing to the combination of theory, policy and practical work. The ulti-
mate test of theory is in its application. And the furthering of human rights
can only be effective if it is based upon equal measures of knowledge,
reform and compassion. This, in my opinion, is needed more in relation to
juvenile justice than to most other fields. The future of our societies is
dependent upon the way we treat our young generations. This can only be
acceptable if it is based upon a solid foundation of human rights.
I therefore take the opportunity to express my sincere thanks to the IISL
and the other contributors to the conference and to this book.
Morten Kjaerum, Director, DIHR

Copenhagen, June 2004
Acknowledgements
A project of the scope of the international conference held at the
International Institute for the Sociology of Law and this resulting book
requires the energies and ideas of many people. First and foremost we
would like to thank all the conference participants for a lively, congenial
and stimulating experience in Oñati.
We thank the International Institute for the Sociology of Law for provid-
ing excellent facilities for the conference and for generous financial support,
and the wonderful staff with whom we worked. It was a pleasure working
with Professor Dr. Manuel Calvo Garcia, former Scientific Director, on-site
in Oñati. We would like especially to thank Malen Gordoa Mendizabal for
her superb assistance in all phases of planning the conference, for the exe-
cution of the conference, and for her unflagging attention to detail.
The Danish Institute for Human Rights (previously known as the Danish
Centre for Human Rights) was an important supporter of this conference.
We thank Charlotte Flindt Pedersen for her efforts in this regard. In addi-
tion, DIHR hosted the editors during March 2004 and provided an excel-
lent environment for editing many of the chapter drafts. We also thank
Johnny Juhl Sørensen for his support of this project and for his enthusiasm
for linking the present book to the Durban volume.
The School of Law at Aarhus University, where Dr. Jensen was on a
Fulbright Lecturer/Research Scholar appointment during the spring of
2002, provided important support services during the application process.
Dr. Jensen would like to thank the University of Idaho for providing finan-
cial support for the conference and for a sabbatical leave during the spring
of 2004 to work on the book.
Thanks also to Dr. Troy Armstrong for financial support of the confer-
ence from the Center for Delinquency and Crime Policy Studies, California
State University, Sacramento.
We would like to thank Ian Jensen, Sarah Eilers and Paul Dalton for their
assistance in proof reading sections of the manuscript.
Finally, thanks go to the staff of the International Juvenile Justice
Observatory for sharing their website information service with us at the
conference in Oñati (http://www.oijj.org).
The editors
Preface
The present publication emerges as the product of a conference held in
Oñati, Spain, at the International Institute for the Sociology of Law in June
2003. The editors of this volume organised the conference based on their
experiences and interests in the juvenile justice field. Dr. Eric L. Jensen is
Professor of Sociology at the University of Idaho. Jørgen Jepsen is Associate
Professor Emeritus of Criminology at the University of Aarhus, Denmark,
and has worked for several years as a consultant to the Danish Institute of
Human Rights (DIHR) on juvenile justice reform in Africa, Nepal and other
non-Western countries. The idea behind the conference was to bring
together scholars and practitioners specialising in juvenile justice from the
U.S.A., Western Europe and Poland with colleagues from African countries,
Serbia and Nepal working on human rights issues in developing countries
or countries in transition.
The Danish Institute for Human Rights was one of the contributing
organisations to the conference at Oñati. The DIHR provides human rights
support to a number of developing countries in Africa and Asia, as well as
to countries in the former Eastern Bloc. In addition to three staff members
from DIHR, Penal Reform International (PRI) was represented by its
African section manager, and Defence for Children International (DCI) was
represented by a consultant on juvenile justice. Two of the developing
nations, Malawi and Nepal, were involved in the Juvenile Justice Program
of DIHR. Thus, organisations working with human rights were represented
at the conference.
The idea behind the conference was to bring together the two groups—
academics and practitioners in the human rights field—for the mutual
exchange of knowledge and ideas and to discuss how such knowledge could
be applied in promoting developments in juvenile justice. Discussions about
the application of international human rights instruments, most notably the
Convention on the Rights of the Child (CRC), formed an important part of
this exchange and this topic was dealt with in several of the papers presented.
It might be said that the conference was a workshop for the applied sociol-
ogy of law.
It should also be noted that participation in this process was part of an
effort by the DIHR to further developments in juvenile justice in a number
of its partner countries in Africa and Nepal. Later in the year (November
2003) a workshop on juvenile justice and diversion was held in Durban,
South Africa, arranged in co-operation between DIHR, colleagues in the
field of juvenile justice reform in South Africa (again a mix of academics
xii Preface
and practitioners) and participants from partner countries, including

Malawi, Tanzania, Uganda and Nepal (see J.J. Sørensen and J. Jepsen
(2005) Juvenile Justice in Transition: Bringing the Convention on the
Rights of the Child to Work in Africa and Nepal (Copenhagen, Danish
Institute for Human Rights)). The idea was to utilize some of the materials
from the Oñati conference on a more practical level in connection with
efforts to promote the use of diversion of juveniles from the adult criminal
justice system. DIHR therefore saw the two conferences as mutually com-
plementary, pushing further to put academic knowledge, international
instruments and collected experience to work in this process of reform of
laws and practices. The ideas of an increased use of diversion and the devel-
opment of restorative justice as important parts of this process comprised
an agenda that tied the representatives of diverse legal systems together.
The content of the present volume reflects this combination of ideas and
goals. The book is a combination of two types of papers. Some are tradi-
tional academic papers which present whole systems of juvenile justice in a
combination of description and analysis or certain parts thereof (e.g. after-
care, restorative justice, etc.). These topics were seen as important back-
ground material for the development of new juvenile justice systems. The
other papers deal with efforts to promote reform through international
activity (PRI, DCI, DIHR), and through efforts to utilize modern theory in
national reforms in developing countries (Malawi and Nepal) or in coun-
tries experiencing current or recent political and systemic changes or devel-
opments (South Africa, Germany, Serbia and Poland).
The present volume is also intended to throw light on recent trends in
juvenile crime in various countries, the relationship between actual devel-
opments and popular and political perceptions, and reactions to such devel-
opments, including efforts to locate effective alternatives to the incarceration
of young offenders. At the same time as the search for such alternatives is
being intensified through international exchange and experimentation, the
amelioration of harsh measures against juvenile law violators is often coun-
tered by political and public cries for security and demonstrative public
intervention against misbehavior. A streak of new moralism is clearly dis-
cernible as a counteracting force against more humane reform efforts. The
volume (like the conference) is intended to throw light on the developments,
in the countries represented at the conference, relating to three elements: the
actual parameters of juvenile offending, public and political demands for
security and public intervention, and measures to provide such interven-
tions as best concord with the humanistic concerns expressed by the CRC
and other international Human Rights instruments.
This volume is therefore a mixture of papers with different content and
styles, but with the common aims outlined above. The discussions at the
seminar were fruitful in furthering mutual gains of knowledge and insights,
and some of this is reflected in the revision of some of the papers after the
Preface xiii
conference. It was not intended that the papers should use a common tem-
plate. Rather the general ideas behind the conference were outlined for the
presenters and different reactions to these came to the fore. It is therefore
diversity that characterizes the present volume. This diversity demonstrates
that the aims described require such a combination of contributions.
Ultimately, it is hoped that the volume will be useful to both academics and
practitioners and that the latter group will recognize that the sociology of
law is more than an academic discipline: it can be an active force in pro-
moting human rights and juvenile justice reform.
Jørgen Jepsen and Eric L. Jensen

July 2005
Contents
Morten Kjaerum: Foreword on behalf of the
Danish Institute for Human Rights .........................................................vii
Acknowledgements ...................................................................................ix
Preface .....................................................................................................xi
Contributors ..........................................................................................xvii
1. Eric L Jensen and Jørgen Jepsen: Introduction ....................................1
Section One: The Practicality of Human Rights-Based

Juvenile Justice Systems for Diverse Nations ...........................................13
2. Bruce Abramson: Juvenile Justice: The ‘Unwanted Child’:

Why the potential of the Convention on the Rights of the
Child is not being realized, and what we can do about it..................15
3. Charlotte Flindt Pedersen: Support for the Implementation
of Humane Responses to Children in Conflict with the
Law in DIHR Partner Countries .......................................................39
4. Adam Stapleton: Regional Co-operation and the Spread
of New Ideas and Practices ...............................................................51
5. Ann Skelton: The South African Child Justice Bill:
Transition as Opportunity .................................................................65
Section Two: Juvenile Justice Systems......................................................81
6. Eric L Jensen: An Historical Overview of the

American Juvenile Justice System ......................................................83
7. José Luis de la Cuesta: The New Spanish Penal
System on Delinquency......................................................................99
8. Frieder Dünkel: Juvenile Justice in Germany ...................................115
9. Krzysztof Krajewski: The Juvenile Justice System in Poland............155
10. Jerzy Sarnecki: Responses to Juvenile Crime:
The Swedish System ........................................................................187
11. Jørgen Jepsen: Juvenile Justice in Denmark:
From Social Welfare to Repression..................................................213
xvi Contents
12. Kishor Silwal: Juvenile Justice in Nepal: An Overview....................263
Section Three: Learning from the Experiences of Diverse Models .........281
13. Lola Vallés: The Role of the Police within the

Spanish Juvenile Justice System: The Results
of Legal Reform in Catalonia..........................................................283
14. Troy L Armstrong: Achieving Positive Results with Serious
Juvenile Offenders in a Reintegrative Framework:
Strategies Essential for Rehabilitative Effectiveness
with the Intensive Aftercare Program (IAP) Model .........................293
15. Barbara Mendenhall and James Dumesnil: Exploring
Traditional Cultural Mechanisms of Conflict Resolution
in American Indian Communities....................................................341
16. Desmond Kaunda: The Juvenile Justice Forums
of Malawi: A Case Study of the Lilongwe
Juvenile Justice Forum.....................................................................373
17. Ivana Stevanovic: Combining Juvenile Justice with
Family Law Reform in Serbia..........................................................391
18. Barry C Feld: The Inherent Tension of Social Welfare
and Criminal Social Control: Policy Lessons from the
American Juvenile Court Experience ...............................................407
19. Eric L Jensen and Jørgen Jepsen: Conclusions: Themes,
Trends, and Challenges....................................................................443
Index .....................................................................................................461
Contributors
Bruce Abramson, Consultant, Defence for Children International, Geneva,
Switzerland.
Troy L Armstong, Professor Emeritus, California State University,
Sacramento, California, U.S.A.
José Luis de la Cuesta, Professor of Criminal Law and Director of the
Basque Institute of Criminology, University of the Basque Country, San
Sebastian, Spain.
James Dumesnil, California State Director, National Association of
Forensics Counselors, Mather, California, U.S.A.
Frieder Dünkel, Professor of Criminal Law and Criminology, University of
Greifswald, Germany.
Barry C Feld, Centennial Professor of Law, University of Minnesota,
Minneapolis, Minnesota, U.S.A.
Eric L Jensen, Professor of Sociology, University of Idaho, Moscow, Idaho,
U.S.A.
Jørgen Jepsen, Senior Consultant, The Danish Institute for Human Rights,
Associate Professor Emeritus (Criminology), University of Aarhus,
Denmark.
Desmond Kaunda, Capacity Development Manager, Malawi Human
Rights Resource Centre, Lilongwe, Malawi.
Krzysztof Krajewski, Professor of Criminology, Department of
Criminology, Jagiellonian Univeristy, Krakow, Poland.
Barbara Mendenhall, Research Analyst, Mincucci Associates, Sacramento,
California, U.S.A.
Charlotte Flindt Pedersen, Project Manager, Danish Institute for Human
Rights, Copenhagen, Denmark.
Jerzy Sarnecki, Professor of Criminology and Chair, Department of
Criminology, Stockholm University, Stockholm, Sweden.
Kishor Silwal, Director, Center for Legal Research and Resource
Developments, Kathmandu School of Law, Kathmandu, Nepal.
xviii Contributors
Ann Skelton, Director, Litigation Project, Centre for Child Law, University
of Pretoria, Pretoria, South Africa.
Adam Stapleton, Regional Director, Penal Reform International, Lilongwe,
Malawi.
Ivana Stevanovic, Researcher, Yugoslavia Child Rights Centre, Belgrade,
The Republic of Serbia and Montenegro.
Lola Vallés, Researcher, The Police Academy of Catalonia, Barcelona,
Spain.
1
Introduction
ERIC L JENSEN AND JØRGEN JEPSEN
T
HE CHAPTERS IN this book are organised around the themes of the
Oñati conference. One of the major objectives of the conference was
to bring together experts in juvenile justice from nations at various
stages of development or transition, thus allowing for comparison of rather
diverse legal and social systems. We were seeking an exchange of research
findings and cross-cultural comparisons of the societal and political con-
texts from which juvenile justice systems emerge and evolve. In pursuit of
this objective, the authors described the juvenile justice systems in their
nations and several authors discussed the extent and parameters of juvenile
law violation in their countries. These descriptions then opened up discus-
sion of a critical issue: are current reactions and proposals within these
nations’ juvenile justice systems in line with the empirical reality of changes
in youth law violation? This discussion emerged as a frequent theme in the
conference contributions. We will return to this theme in the concluding
chapter.
Another important objective of the conference was to consider the mutual
application of system models and research findings across the juvenile justice
systems or emerging juvenile justice systems in the nations represented. That
is, what can we learn from each other? In addition, we encouraged the partic-
ipants to explore the practical application of the various juvenile justice mod-
els under different social and cultural conditions. For example, a developing
nation which to date has primarily used the adult criminal justice system to
respond to juvenile delinquency may consider the ideas and philosophies of
the Anglo-American juvenile court system, the Scandinavian welfare board
system, or the proposals for a combined juvenile justice and family court sys-
tem in Serbia for potential adoption. Conversely, traditional modes of conflict
resolution in developing nations (e.g. mediation and restorative justice) are
currently being implemented in several Western societies, in part inspired by
examples from New Zealand, South Africa and other African countries (see
Braithwaite 2002). This exchange of ideas and experiences with examples of
attempts at practical implementation of various models of juvenile justice
broadened the horizons of all the participants in the conference.
2 Eric L Jensen and Jørgen Jepsen
MODELS OF JUVENILE JUSTICE
The juvenile justice system was created in Western nations—the U.S.A.,

Britain, and Australia—around the turn of the twentieth century (see Platt
1977, Cunneen and White 1995). These new separate systems of justice for
children and youth were based on the legal doctrine of parens patriae. That
is, the state is the ultimate guardian of children. The state was empowered
to exert its authority over that of the parents when the best interests of the
child demand state intervention (see the chapters by Jensen and Dünkel).
Similar developments took place at this time in the Scandinavian countries,
with the elimination of adult criminal court jurisdiction for juvenile offend-
ers and the creation of municipal welfare boards instead of juvenile courts.
The original juvenile courts were based on a social welfare model (also
referred to as a child welfare model). That is, the court was intended to
guide and assist children, not punish them. The juvenile court was seen as
a quasi-social welfare institution which dispensed assistance to children in
trouble. Since the juvenile court was perceived as helping youth and not
punishing them, no due process requirements were included in the early
American legislation (see Jensen’s chapter in this volume).
Over time the pendulum has gradually swung in many Western nations
toward a social control model (also referred to as the correction/repression
model and the ‘get tough’ movement) (see Bernard 1992, Feld 1999). This
shift to a social control model is documented in the chapters on the
American experience, Spain (with the possible exclusion of Catalonia),
South Africa, and Denmark.
The age of criminal responsibility varies considerably by nation (see
Table 1.1). In most Western nations the maximum age under the jurisdic-
tion of the juvenile court is 16–18 years. In the Scandinavian countries the
minimum age of criminal responsibility is 15 years, with provisions for
compulsory measures by the social welfare authorities below that age, and
overlapping jurisdiction of criminal courts and social welfare boards for
persons aged 15–17 years.
A unique feature of the original American juvenile court model was the
creation of ‘status offenses’. These are behaviors which are defined as a vio-
lation of law only for children or youth. Common examples of status
offenses in the U.S.A. are: running away from home, being beyond the con-
trol of one’s parents or guardians, violation of curfew, and unexcused
absences from school. These behaviors were included in the early American
juvenile court legislation because it was believed that they were signs of
future criminality. Thus, this version of the social welfare model suggested
that offending youth should be assisted by the juvenile court early in their
lives before they proceed on a projected path of more serious adult offenses.
The Scandinavian welfare board model was based on the same tenets, but
without status offenses.
Introduction 3
Table 1.1: The Age of Criminal Responsibility in Europe
Country Diminished criminal Criminal responsibility Legal

responsibility (juvenile (adult criminal law can/ majority
criminal law) must be applied)
Austria 14 18/21 18
Belgium 16**/18 16/18 18
Belarus 14***/16 14/16 18
Bulgaria 14 18 18
Croatia 14/16* 18/21 18
Czech Republic 15 18 18
Denmark 15 15/18 18
England/Wales 10/12/15* 18 18
Estonia 14 18 18
Finland**** 15 15/18 18
France 13 18 18
Germany 14 18/21 18
Greece 13 18/21 18
Hungary 14 18 18
Ireland 7/15* 18 18
Italy 14 18/21 18
Latvia 14 18 18
Lithuania 14***/16 14/16 18
Macedonia 14***/16 14/16 18
Moldova 14***/16 14/16 18
Netherlands 12 18/21 18
Norway**** 15 18 18
Poland 13***** 15/17/18 18
Portugal 16 16/21 18
Romania 16/18 16/18/21 18
Russia 14***/16 14/16 18
Scotland 8/16 16/21 18
Slovakia 15 18 18
Slovenia 14***/16 18 18
Spain 14 18/21 18
Sweden**** 15 15/18 18
Switzerland 7/15* 15/18 18
Turkey 11 15 18
Ukraine 14***/16 14/16 18
Former Yugoslavia 14/16* 18/21 18
* criminal majority concerning juvenile detention (youth imprisonment etc.)

** only for road offences
*** only for serious offences
**** only mitigation of sentencing without a separate juvenile justice act
***** no criminal responsibility strictu sensu, but application of the Juvenile (Welfare) Law
Source: Dünkel 2003, 135.
As illustrated by the examples cited above, nations working to revise a

juvenile justice system or to create one anew have several models to either
adopt or use as templates. Increasingly Western nations have moved toward
a social control model. As the chapters by Jensen, Feld, Jepsen and Skelton
note, this move is fraught with problems. On the other hand, more tradi-
tional social welfare-based models continue in Poland, Germany and
Sweden despite recent demands for more repressive policies, particularly
against violent young offenders.
THE CONVENTION ON THE RIGHTS OF THE CHILD AND

RELATED INTERNATIONAL INSTRUMENTS
The Convention on the Rights of the Child (CRC) was enacted by the
United Nations in 1989 and has been signed by all but two nations in the
world (the U.S.A. and Somalia). The CRC is used as the major framework
by the Danish Institute for Human Rights and other organizations, includ-
ing UNICEF and Penal Reform International, in assisting nations to
develop humane, human rights-based juvenile justice systems.
The conditions in prisons and remand facilities in many developing
nations are so poor and inhumane that they violate basic human rights
standards when seen from any point of view. Because of this, many
developing nations are currently trying to keep juveniles from being
detained in jail while awaiting trial and from being sent to institutions
for adult offenders. These facilities often subject young offenders to
much hardship and humiliation, such as physical, sexual and psychological
abuse.
In recent years a number of nations and international organizations
have supported developing nations in designing juvenile justice systems
that exempt young offenders from these hardships and divert them into
non-institutional forms of intervention (see also the ‘Tokyo Rules’ on non-
institutional measures and the other instruments mentioned below). Even
in cases where such systems of diversion are badly needed, recommended
by international instruments and supported by foreign donors and
national progressives, they are often met with opposition from the public,
repressive legal systems, and system representatives such as judges, pros-
ecutors and the police.
The basic principles of the CRC (and the related international instru-
ments) as they apply to juvenile justice systems are as follows (United
Nations 2000, 275–300):
• the best interests of the child should be the primary consideration;

• states parties shall take all appropriate measures to protect the child
from all forms of physical or mental violence, injury or abuse, neglect
Introduction 5
or negligent treatment, maltreatment, or exploitation, including

sexual abuse;
• no child should be subjected to torture or other cruel, inhuman or
degrading treatment or punishment;
• neither capital punishment nor life imprisonment without possibility of
release shall be imposed for offenses committed by persons below
eighteen years of age;
• the arrest, detention, or imprisonment of a child shall be in conformity
with the law and shall be used only as a measure of last resort and for
the shortest appropriate period of time;
• every child deprived of liberty shall be separated from adults unless it
is considered in the child’s best interests not to do so;
• every child deprived of his or her liberty shall have the right to prompt
access to legal and other appropriate assistance, as well as the right to
challenge the legality of the deprivation of his or her liberty;
• the right to be presumed innocent until proven guilty according to law;
• the right to be informed promptly and directly of the charges against
him or her;
• the right to have legal or other appropriate assistance in the prepara-
tion and presentation of his or her defense;
• the right not to be compelled to give testimony or to confess guilt;
• the right to have examined adverse witnesses and to obtain the partic-
ipation and examination of witnesses on his or her behalf;
• if considered to have infringed the penal law, to have this decision and
any measures imposed in consequence thereof reviewed by a higher
competent, independent and impartial authority or judicial body;
• the right to have his or her privacy fully respected at all stages of the
proceedings;
• the establishment of a minimum age below which children shall be
presumed not to have the capacity to infringe on the penal law; and
• a variety of dispositions shall be available to ensure that children
are dealt with in a manner appropriate to their well-being and propor-
tionate both to their circumstances and their offense.
Several other international instruments set out and reinforce these human
rights guidelines for establishing and maintaining juvenile justice systems.
These instruments are: the U.N. Standard Minimum Rules for the
Administration of Juvenile Justice 1985 (the Beijing Rules), U.N. Guidelines
for the Prevention of Juvenile Delinquency 1990 (the Riyadh Guidelines),
U.N. Rules for the Protection of Juveniles Deprived of their Liberty 1990
(Havana Rules), U.N. Standard Minimum Rules for Alternative Penal
Measures 1990 (the Tokyo Rules), and the European Rules on Social
Sanctions and Measures 1992.
PLAN OF THE BOOK
Our basic goal in organizing the Oñati conference was to provide infor-
mation for the participants to review and subsequently to allow us
to consider which models or portions of other nations’ juvenile justice
systems may be the most effective and applicable to our societies. We
were thus offering a variety of options from which the convened experts
could choose. Our intention was to facilitate productive policy choices,
but not dictate to any nation’s representatives what path they should
follow.
The book is divided into three sections, based on our objectives for the
conference. Section One contains papers dealing with the practicality of
human rights-based juvenile justice models for diverse social and cultural
conditions. Section Two of the book contains chapters that provide infor-
mation for the comparison of the juvenile justice systems of various nations.
Section Three contains chapters that focus on what can be learned about
both productive and negative elements of juvenile justice systems from the
nations represented.
The papers in Section One are authored by Abramson, Flindt Pedersen,
Stapleton, and Skelton. These authors represent international or national
organizations directly involved in providing consultation, support and
inspiration to developing countries.
The first paper, by Bruce Abramson, deals with the framework for juve-
nile justice issues set out by the CRC. Mr. Abramson has worked as a con-
sultant to Defense for Children International (DCI) on projects which
attempt to implement the CRC via the Committee on Child Rights. In this
chapter he describes the system of reporting under the CRC, and the advan-
tages and problems of this procedure as a means of promoting children’s
rights.
The chapter by Charlotte Flindt Pedersen, formerly the Project Manager
of the Juvenile Justice project at DIHR, analyzes the experience of the
Institute in providing assistance to developing countries. She has worked
on juvenile justice projects in Africa and Serbia. She has also been on fact-
finding missions for UNICEF to study juvenile justice in Kazakhstan and
Uzbekistan.
Ms. Flindt Pedersen discusses the needs to utilize research and monitor-
ing to provide a knowledge base for reform and development, and to locate
partners and stakeholders in the co-operating nations in order to achieve
changes in policies and programs. Her experience attests to the need for a
respect for cultural differences in the nations involved. In addition, she
notes that developed nations can learn from the co-operating developing
nations, particularly in the case of the current trend toward diversion and
restorative justice in developing countries.
Introduction 7
In his chapter, Adam Stapleton discusses regional co-operation.

Mr. Stapleton is director of the African Office of Penal Reform
International (PRI) in Lilongwe, Malawi. PRI has a program of assistance
for nations around the world to improve conditions in prisons and juvenile
justice systems (recall that in many developing nations children are detained
in adult prisons). In connection with its work on juvenile justice in Uganda,
PRI has developed and promoted ten ‘principles of juvenile justice’ which
form the backbone of PRI’s support of regional development efforts in sev-
eral developing nations. International assistance for Africa has expanded
considerably in recent years. A number of donor countries and organiza-
tions have created, developed, or supported programs in juvenile justice. To
some extent this assistance has taken the form of sending selected local offi-
cials to Europe to learn about developments in the field. But it has been the
experience of PRI—and DIHR—that bringing relevant stakeholders
together within the same region may be as effective as importing advice and
models from Europe. This chapter discusses the conditions necessary for
such regional co-operation to become effective and sustainable, and pro-
vides insights into overcoming obstacles to these goals.
Ann Skelton writes on the situation in South Africa. For several years the
South African Law (Reform) Commission has worked on a juvenile justice
bill which many considered to be a potential model for developed nations,
particularly given its emphasis on restorative justice. The bill has been
through a number of revisions and has not been passed by the South African
Parliament. The revisions have mostly been in a conservative direction, influ-
enced by a moral panic surrounding juvenile crime. The progressive propos-
als regarding diversion and restorative justice have been attenuated due to
pressures from politicians and public opinion for increased formal social
controls. In the period of transition in South Africa—which Skelton sees as
presenting opportunity for reform—the process which the bill on juvenile
justice has been through exemplifies the difficulties presented by moral pan-
ics, and the media and political reification of these.
The chapters in Section Two of the book are authored by Jensen (U.S.A.),
de la Cuesta (Spain), Dünkel (Germany), Krajewski (Poland), Sarnecki
(Sweden), Jepsen (Denmark), and Silwal (Nepal).
Eric L. Jensen describes the history of the juvenile court in the U.S.A.,
tracing its roots to the late 1800s and what has been called the child savers
movement. The view of juveniles as immature individuals in need of time
and support to mature, and to pass through difficult periods of life adjust-
ment without being marginalized were the basis of the first juvenile courts
in the U.S.A. These ideals are similar to those underlying the CRC and the
current movement to create diversion programs in developing nations. The
chapter then discusses the contemporary movement toward a crime control
model in the U.S.A. Recent positive contributions to juvenile justice
research and practice are also reviewed.
Spain has revised its juvenile justice system in recent years. The chapter
by José Luis de la Cuesta provides an historical account of these develop-
ments, which in some ways are reminiscent of the developments in
Scandinavia. Spain had experienced, to a limited extent, changes in its leg-
islation after the Franco years, but it was not until 2000 that a major act
on juvenile justice was passed. This act increased the procedural safeguards
for juveniles, and provided new options for reactions—some with the goal
of social control and some more welfare-oriented. A number of these
changes have been slow to come to fruition, however, due to a lack of fund-
ing from the autonomous regions.
The chapter by Frieder Dünkel charts the developments in juvenile offenses
and justice reactions to them in Germany. With the advent of reunification,
Germany presents a case study of two systems of juvenile justice coming
together—at least in theory. The former East German system—which was
characterized by a relatively low level of juvenile crime—has gradually
approached the West German system but has so far avoided its more repres-
sive characteristics. In general, the contemporary system in the German
Federal Republic is characterized by a social welfare approach. It has devel-
oped a traditional system of probation and parole, and a number of other
non-punitive reactions to juveniles including mediation and diversion.
The chapter on Poland by Krzysztof Krajewski describes the difficult
process of changing legislation and systems of reaction away from some
hard and fast traditions into a more welfare-oriented system. Polish juvenile
court judges seem receptive to welfare approaches, at least for less serious
offenders. To some extent, this process of development resembles that of
East Germany, but the very process of changing legislation seems more
resistant than in the former East Germany. On the other hand, the treat-
ment-oriented social welfare view of juvenile delinquency seems rather well
entrenched. In spite of a modest rise in violent crime and a related moral
panic, the social welfare approach has preserved its place in Poland.
Scandinavian nations have a long-established social welfare tradition.
Both the chapter on Sweden by Jerzy Sarnecki and the chapter on Denmark
by Jørgen Jepsen deal with systems based on the Scandinavian welfare
boards. While in juvenile court systems the decision-maker is a judge, under
a welfare board model decisions are made by a board of social administra-
tors and local politicians. In cases where involuntary removal from the
home is sought, the board is assisted by a judge, and a psychologist or other
child specialist. The judge deals with procedural issues and the psychologist
assists in fitting the reaction to the personality and circumstances of the
juvenile. A number of issues arise under both systems regarding the protec-
tion of procedural safeguards for the alleged young law violator and the
issue of appropriate reaction(s). Although the variety of reactions utilized in
both systems is similar, the American juvenile court is characterized prima-
rily by a judicial element supplemented by a number of social and other
Introduction 9
services, and the Scandinavian systems consist primarily of a social welfare

organization supplemented by a judicial element on relevant occasions.
Both the American system and the Scandinavian systems have been
exposed to demands for increased social control reactions to young offend-
ers. In Scandinavia, Sweden has to a large extent resisted the pressure for
more repressive policies. In Denmark, on the other hand, the system has
become more social control-oriented as a result of a moral panic and con-
servative politicians rising to power, particularly in connection with reac-
tions to violent offenses committed by youngsters of non-Danish origin.
As Kishor Silwal reports in the last chapter of Section Two, Nepal is a
country in which the conditions for young offenders caught by the police
are worse than, or at least as bad as, those in Africa. However, in recent
years, the Centre for Legal Research and Resource Development (CeLRRD)
in conjunction with the Kathmandu School of Law (KSL) has developed a
program of assistance for young offenders in remand holds. A number of
cases have successfully been brought to the attention of the Supreme Court.
These cases have been used as an instrument for change and to put pressure
on the government to live up to its obligations under the CRC and other
international instruments. With support from the DIHR and other donors,
the two organizations have begun a process of reform of juvenile justice
involving all relevant stakeholders, including high-ranking police officials,
the judiciary, prosecutors, and NGOs. A steering committee has been
created to promote reform and provide a research basis for these efforts.
A number of relevant research projects have been conducted and coordinated
by Kishor Silwal. Nepal has actively participated in the DIHR juvenile justice
project and the KSL has created a website which collects information on
juvenile justice. Nepal’s efforts are an example of successful progress
towards a more humane juvenile justice system inspired by co-operation
with other developing countries and international organizations. The
Nepalese movement toward positive change comes in spite of very limited
resources.
The third section of the book contains chapters that focus on examples
of what practitioners and scholars involved in the varying juvenile justice
systems can learn from each other. These chapters address the role of the
police in juvenile cases in Catalonia (Vallés), an innovative and established
model of aftercare (Armstrong), indigenous Native American restorative
justice practices (Mendenhall and Dumesnil), processes for creating human
rights-based juvenile justice systems in developing nations (Kaunda), the
development of a mixed model of juvenile justice and family law reform in
Serbia (Stevanovic), and the pitfalls of the American version of the social
control model (Feld).
One of the innovations to emanate from the revisions in Spanish law on
juvenile justice is the creation of special police units which deal with juve-
niles in Catalonia. In her chapter, Lola Vallés describes this development.
The system she describes both allows more effective police work with
juveniles and stimulates more youth-friendly behavior on the part of the
police.
The chapter by Troy Armstrong discusses the issues surrounding an effec-
tive aftercare system for juveniles coming out of institutional settings. The
Intensive Aftercare Project is a theory- and research-based program
designed to aid in the transition of youth from correctional placements back
into the community. Just as the U.S.A. was at the forefront of developing a
juvenile court system in the late 1800s, it has also been a leader in develop-
ing improved services for troubled youth based on the extant research (see
also the chapter by Jensen). The level of resources invested in this aftercare
model is of course far beyond those available in the developing nations, but
it can be hoped that some of the lessons learned from the Intensive
Aftercare Project are generalisable to all societies.
The numerous Native American nations that exist within the borders of
the U.S.A. each have their own traditionally-based forms of justice. These
resemble the systems of (other) developing nations more than those in the
non-Native communities in the U.S.A. Mendenhall and Dumesnil have stud-
ied Native American reactions to youth law breaking. They find these
reactions to be based on restorative ideals and practices. Restoration and
apology are preferred to more repressive formal sanctions. A number of
similarities between these practices and those of indigenous peoples in
Africa, New Zealand and Canada are evident in this chapter. Developed
nations are now learning from these restorative practices.
Desmond Kaunda has written the chapter on the juvenile justice system
in Malawi. The original system of justice in Malawi was characterized by
repressive attitudes and disorganization, combined with a notable lack of
resources. Initiatives from foreign donors, including PRI, have led to co-
ordinated work between various parts of the system. This effort began with
the Juvenile Justice Forum at Zomba in the southern part of the country. A
magistrate in co-operation with a local NGO began by looking at the situ-
ation wherein a large number of juvenile offenders were detained in dismal
conditions in a section of an adult prison. A closer look at their records
indicated that their detention was not legal. In conjunction with a legal aid
organization, several of the juveniles had their cases reviewed and were
released.
This model inspired the creation of a National Juvenile Justice Forum
and juvenile justice forums in other parts of the country (e.g. Lilongwe).
The DIHR has supported these developments and has given support to a
process of monitoring juvenile delinquents and their treatment in the
system.
Kaunda’s chapter describes these developments and points to a need for
further assistance, in relation to the legal system, the judiciary and law
enforcement. Here the CRC and other international instruments have
Introduction 11
functioned as important guidelines for humanizing the system and counter-

acting repressive reactions. Similar projects in Tanzania and Uganda formed
part of the DIHR program of assistance in juvenile justice (see Sørensen and
Jepsen 2005).
Serbia, as part of the former Yugoslavian Federation until 2004, is in a
complicated political and legal situation. These complications extend to
issues of human and child rights. The transition from the former commu-
nist regime has been slower than was the case for Poland or East Germany,
and it is not yet complete. Repeated shifts in the political status of the
nation and constantly changing governments in the former Yugoslavia and
in the remaining republic of Serbia-Montenegro have protracted the process
of reform. In Chapter 17 Ivana Stevanovic discusses a proposal which has
recently been presented and advocated in Serbia by a group of child special-
ists working for new legislative initiatives. It combines proposed changes in
the law regarding juvenile delinquency, juvenile justice, and child and fam-
ily law. Thus, the situation of children is dealt with in terms of their roles
as both perpetrators of offenses and as victims abuse and neglect. This
holistic view of the child is in concordance with emerging international
trends. Whether this proposal will succeed in surmounting the numerous
obstacles currently presented by the political situation in Serbia is at pres-
ent uncertain.
Barry Feld’s chapter criticizes the social control direction that the
American juvenile court has taken. Underlying these demands for ‘getting
tough on crime’ is the role of the media in creating public perceptions of
youth as dangerous. As Feld points out, juveniles are subject to
rather severe sanctions yet continue to be deprived of many of the due
process protections available to adults in the U.S.A. Feld also points to
the role of racial tensions in the creation of these more repressive juve-
nile justice policies. He issues a warning to other societies to beware of
the pitfalls of the current approach in the U.S.A. Other paths should be
pursued in an effort to satisfy the guidelines for juvenile justice systems
as set out in the CRC.
In the concluding chapter Jensen and Jepsen review the themes that have
evolved in these chapters. Some of the themes were anticipated and others
were unexpected. On the one hand, the editors were aware of the moral
panic over youth crime in the U.S.A., the emergence of one in Denmark,
and the failed attempt to incite panic in Sweden (see Estrada 2001). On the
other hand, we were unaware of the moral panic in South Africa and the
movement toward one in Poland. In this chapter we also discuss the inte-
gral role of the social construction of childhood and youth in shaping juve-
nile justice policy, the restorative justice movement that has influenced
several of the nations represented in this book, and the importance of
implementing juvenile justice practices in line with human rights guidelines
and the available evaluative research.
REFERENCES
Bernard, T.J. (1992) The Cycle of Juvenile Justice. (New York, Oxford
University Press).
Braithwaite, J. (2002) Restorative Justice and Response Regulation. (New
York, Oxford University Press).
Cunneen, C. and White, R. (1995) Juvenile Justice: An Australian
Perspective. (Oxford, Oxford University Press).
Dünkel, F. (2003) ‘Youth Violence and Juvenile Justice in Germany’. In F.
Dünkel and K. Drenkhahn (eds.), Youth Violence: New Patterns and
Local Responses—Experiences in East and West. (Mönchengladbach,
Forum Verlag Godesberg).
Estrada, F. (2001) ‘Juvenile Violence as a Social Problem: Trends, Media
Attention and Societal Response’. British Journal of Criminology 41:
639–55.
Feld, B.C. (1999) Bad Kids: Race and the Transformation of the Juvenile
Court. (New York, Oxford University Press).
Platt, A. (1977) The Child Savers: The Invention of Delinquency. 2nd edn
(Chicago, University of Chicago Press).
Sørensen, J.J. and Jepsen, J. (2005) Juvenile Justice in Transition: Bringing
the Convention on the Rights of the Child to Work in Africa and
Nepal. (Copenhagen, Danish Institute for Human Rights).
United Nations (2000) Bringing International Human Rights Law Home:
Judicial Colloquium on the Domestic Application of the Convention
on the Elimination of All Forms of Discrimination against Women
and the Convention on the Rights of the Child. (New York, United
Nations).
Section One
The Practicality of Human Rights-Based

Juvenile Justice Systems for Diverse
Nations
2
Juvenile Justice:
The ‘Unwanted Child’
Why the potential of the Convention
on the Rights of the Child is not being
realized, and what we can do about it
BRUCE ABRAMSON
INTRODUCTION
T
HE CONVENTION ON the Rights of the Child is the centerpiece of an
international movement that is aimed at promoting the human dig-
nity of all children and adolescents. Unfortunately, juvenile justice
issues are being marginalized. Moreover, specialists in the field of juvenile
justice have not climbed on board the CRC bandwagon. Sadly, juvenile jus-
tice is the ‘unwanted child’ of the ‘children’s rights movement’. Why is this
so? And more importantly to those of us who work in the area of juvenile
justice, What can we do about the ‘unwantedness’ problem? How can we
juvenile justice professionals—lawyers, judges, sociologists, criminologists,
law professors, and public servants in the field of juvenile justice—harvest
the rich potential of the Convention on the Rights of the Child?
Marginalization is a comparative notion. Part I therefore begins with an
overview of the Convention on the Rights of the Child, discussing the seven
main ways in which the CRC is making an important difference in the lives
of boys and girls throughout the world. Major steps are being taken in all
of the other main areas of concern, such as child labor, sexual exploitation,
and universal education. It is relative to all of the action that is taking place
in these other areas that we can say that juvenile justice is being marginal-
ized, both within the children’s rights movement, and within the broader
human rights movement. Part II then discusses the six principal reasons for
this relative neglect and lack of progress. Part III suggests a way forward.
While this last part is addressed primarily to juvenile justice professionals,
the discussion is also relevant to CRC activists.
16 Bruce Abramson
PART I
THE SEVEN WAYS IN WHICH THE CRC MOVEMENT IS

TRANSFORMING THE WORLD OF CHILDREN AND ADOLESCENTS
Overview
The CRC movement is the social and political campaign that aims to real-
ize all the promises contained in the Convention on the Rights of the Child.
The Convention is the ‘clockwork’ of the CRC movement, which, despite
the misleading term ‘Child’, encompasses everyone up to the age of 18
years. The CRC therefore covers adolescents, the age group that makes up
the vast majority of the juvenile justice ‘client’ population.1
The CRC movement is a part of the broader international human rights
movement, but, interestingly, there are things about the Convention that
have given it an edge over the other main human rights treaties—the
International Covenant on Civil and Political Rights (ICCPR), and the
International Covenant on Economic, Social and Cultural Rights (ICESCR).
For one, the CRC has been far more popular with governments than
other UN treaties. Since 1989 when the Convention was opened for ratifi-
cation, all but two states have joined it, a record that no other human rights
treaty comes close to matching. (The United States and Somalia are the two
hold-outs.) For another, unlike the other treaties, the Convention on the
Rights of the Child is holistic: it combines the so-called ‘civil and political
rights’ with the ‘economic, social and cultural rights’. Moreover, while the
CRC recognizes that the right-holder is the individual boy or girl, it also
recognizes more clearly than the Covenants that each person is also a mem-
ber of a family, a community, and a society.
Not only have nearly all states ratified the Convention on the Rights of
the Child, many have done comprehensive reviews of their laws, institutions,
and social practices, and most of them have taken meaningful steps to bring
themselves into compliance with the treaty’s obligations. Another indication
of the positive response to the CRC is that states are actually turning in com-
pliance reports to the Committee on the Rights of the Child, the body that
monitors the implementation of the treaty. And these reports are usually not
just token gestures; they often provide candid assessments of the problems
that children and adolescents are facing, and concrete information about the
measures that the state is taking to realize their rights.2
1 The Convention on the Rights of the Child, along with all the other UN treaties mentioned
in this paper, is available at www.unhchr.ch.

2 The key documents are the state’s implementation report; the Committee’s List of Issues;
the state’s supplementary report addressing the List of Issues; the Summary Records of the
Committee’s dialogues with the state; and the Committee’s Concluding Observations (or rec-
ommendations). These are available at www.unhchr.ch/tbs/doc.nsf, under Treaty Body
Database: Documents—by type.
Juvenile Justice: The ‘Unwanted Child’ 17
The seven ways in which the CRC is having an impact
The situation is far from perfect, needless to say. States are frequently
accused of hypocrisy, of making fancy speeches about respecting the rights
of kids, and then going on with business as usual. But this contradiction
between words and actions is a problem that runs throughout all of life.
While there is indeed a great deal of superficiality in ‘rights-talk’, there have
also been many tangible accomplishments.
The power of the CRC is its catalytic effect in stimulating activism at all
levels of society. In this section, I will outline the seven ways that the
Convention is being put to work to improve the lives of children and ado-
lescents.
1. Coalition building
Perhaps the most dramatic catalytic effect is the networking and coalition
building that is going on, particularly among NGOs, but also with inter-
governmental organizations and states. The CRC movement is a social-
political movement, and the ‘bandwagon’ is precisely the extensive
collaboration that is required to effect change.
Local and national NGOs form coalitions to push their governments to
implement the CRC. For instance, many nation-wide coalitions meet with
government officials who are preparing the state’s implementation report to
the Committee on the Rights of the Child; they write their own ‘alternative
reports’; and they come to Geneva to meet with Committee members to
help ensure that the Committee’s dialogue with the government will address
the priorities. There is an international NGO liaison office that facilitates
this process, even paying the expenses of national NGOs from developing
countries to come to Geneva! And the liaison office follows up by assisting
national NGOs to maintain their coalitions as on-going forces within their
countries (Allen 1999).3
NGOs are teaming up to create a ‘multiplier effect’. They pool resources;
they form partnerships to carry out research and assessments in support of
reform proposals; they conduct training; they share information; they run
projects; and they influence public policy. There are many different types of
coalition. Some are made up of NGOs that specialize in particular areas,
like street children, while others are composed of a wide diversity of human
rights and humanitarian organizations, as in the campaign against under-
aged (or ‘child’) soldiers.
3 The one-stop-shop for information on the Convention is CRIN (Children’s Rights
Information Network), at www.crin.org. For information on coalitions, check the menu under
Organizations: NGO Group For CRC: National coalitions.
18 Bruce Abramson
NGOs that specialize in kids’ rights and welfare also join forces with
human rights organizations and humanitarian organizations in many
forums, such as the General Assembly, the UN Commission on Human
Rights, and the Sub-Commission. They have been active in the creation of
the International Criminal Court, and in the negotiations of other human
rights and humanitarian treaties, for instance.
2. Changing attitudes
Advocates on the CRC bandwagon are using the Convention to achieve

a variety of goals. At the most basic level, advocates aim at changing
attitudes.
Overcoming the invisibility of children and adolescents in government
decision-making, changing social norms that permit cruelty, abuse and
exploitation, and getting adults to value the opinions of kids and to pay
more attention to their feelings, are some of the measures being taken
to raise the status of youngsters in society. Anywhere from a third to
half of a country’s population is made up of people under the age of 18
years—citizens without the power to vote, and who lack, whether by
reason of immaturity or their lower social status, the ability to shape the
laws and policies that are critical to their survival and development.
Simply acknowledging that kids are bearers of rights is a big step for a
society to take.
The CRC, and the other UN human rights treaties, like the two
Covenants and the Convention Against Torture, are springboards for mobi-
lizing public outrage against injustices. The human rights movement is very
much a battle for the hearts and minds of society, which means that it is a
struggle over values, attitudes and beliefs (Laurent 1998).
3. New governmental structures
The CRC movement has also helped to create new governmental struc-
tures to better serve the needs of kids. For instance, some states have cre-
ated omnibus offices for children and adolescents, as well as
intra-departmental co-ordinating mechanisms; they have instituted better
data collection and information sharing procedures on indicators of
well-being (such as disaggregated statistics on school drop-out rates);
they analyze their annual budgets to ensure more equity for children and
their families; and they conduct impact assessments on kids’ welfare
before passing legislation. These are mega-structures in that they are not
specific to any particular category of concern, like education or sexual
abuse; they are institutional changes that affect the overall process of gov-
ernment in order to better realize all of the rights in the CRC (Hodgkin
and Newell 1996; Newell and Holmberg 2000).
At the international level, I think we can include under this heading some
of the new United Nations treaties, as well as treaties created under other
law-making systems. For instance, we now have two additions to the
CRC—the Optional Protocols On the Sale of Children, Child Prostitution
and Child Pornography, and On the Involvement of Children in Armed
Conflict; the new ILO Convention on the Worst Forms of Child Labor4; the
European Convention on the Exercise of Children’s Rights5; and the
African Charter on the Rights and Welfare of the Child.6
International forums devoted to the rights of children and adolescents
should also be mentioned here. Some notable examples include: The
General Assembly’s Special Session on Children in 2002, with the resulting
Declaration and Plan of Action; the two World Congresses Against
Commercial Sexual Exploitation of Children; the ‘Machel Study’ on chil-
dren and war; and the study on Children and Violence that is just now
getting underway, and which should be of real interest to specialists in juve-
nile justice. These are structural innovations in the sense that they are
frameworks for generating international, national and local actions.7
4. Participation of young people

One of the most exciting developments is the pioneering work in promot-
ing the participation of kids at all levels of society.
Participation is a broad concept. It includes the effective involvement of
individual youngsters in decisions that directly affect them, as in the case of
disciplinary actions at school. It also refers to the involvement of young
people as a social group. This occurs when adults consult with kids when
they conduct needs-assessments, or when they design and monitor pro-
grams. It also happens when young people are included in the running of
these programs. Training and employing young people as peer councilors is
just one such example (Hart 1992; Petrén and Hammarberg 2000).
5. Developmental needs
The CRC movement promotes understanding of the developmental needs of
adolescents and children. What distinguishes youngsters from adults is that
they are in a process of rapid development, physically, mentally, morally, and
socially. This is what entitles them to ‘special care and assistance’, in the
4 ILO Convention No. 182, available at www.ilo.int, buried under Child Labour (IPEC):
Ratification Campaign.
5 ETS No. 160; available at www1.umn.edu/humanrts, under Treaties: Regional
Conventions: All Council of Europe Conventions.

6 Available at www1.umn.edu/humanrts, under Treaties: Regional Conventions: African
Human Rights Instruments.

7 Information on these initiatives is available at www.crin.org, under Themes.
20 Bruce Abramson
words of the preamble to the CRC. Kids ‘grow in developmental sequences,

like a tower of bricks, each layer depending on the one below it’ (UNHCR
1994, 1). Our job as adults is to make sure that each brick is in the right
place at the right time.
Unfortunately, promoting the understanding of developmental needs is
perhaps the least advanced part of the movement. For instance, advocates
place great emphasis on training government officials about human rights,
but their programs tend to concentrate on the various UN treaties as sets of
rules. What is usually missing is training about the psychological, social and
physical needs of the kids. As Elizabeth Scott has argued in A Century of
Juvenile Justice, ‘good policy cannot ignore the empirical reality of adoles-
cence as a developmental stage’ (Scott 2002, 140). Many juvenile justice
specialists have expertise in the developmental needs of young people, and
the CRC movement could profit from collaborating with them.
6. Law reform
One of the chief aims of human rights activists is to get states to change
their laws. This is primarily a political process, which is why all the other
NGO activities—changing attitudes and coalition building, in particular—
are so important. While there is a slight trend in courts directly using the
various UN treaties in their decisions (Conforti and Francioni 1997; Cotran
and Sherif 1997; Jayawickrama 2002), for the most part the process of
‘implementing’ the human rights treaties is political, rather than legal
(Heyns and Viljoen 2001; Heyns and Viljoen 2002).
Legislative reform is always a major topic of concern to juvenile justice
specialists. The state implementation reports, together with the CRC
Committee’s recommendations, give a good snapshot of the successes, and
the gaps, in this area.
7. Budgets: getting bigger pieces of the pie
Governmental budgets are a type of law, to be sure, but they are so differ-
ent from other legislation that they need special mention.
Nearly all human rights are resource-intensive. Just because a piece of
legislation says that such-and-such is to happen does not mean that it will.
The state must spend money to put its programs and policies into effect, so
the actual enjoyment of human rights will largely depend on successful
competition for government spending.
Here, too, is where the other activities that I have mentioned have their
pay-off. Like a rising tide lifting all the boats, elevating the status of children
and adolescents in society, mobilizing societal sentiment against specific
outrages, and ensuring transparency and accountability through better gov-
ernmental structures, all help to ensure fairer allocations to young people.
While I have separated out these seven types of impacts, what is impor-
tant to emphasize is that all of these activities are going on simultaneously,
and it is the combined effect, the synergistic interaction, that produces the
results (Woll 2000).
PART II
THE SIX PROBLEMS THAT MAKE JUVENILE JUSTICE THE

‘UNWANTED CHILD’
While the Convention on the Rights of the Child is proving itself to be a

highly successful human rights treaty, the potential of the CRC is not being
realized with respect to the youngsters who are in trouble with the law. Of
all the major areas covered by the Convention, juvenile justice is the most
neglected.
Marginalization of juvenile justice reform
Several years ago, Defence for Children International (2000) made a study
of 140 state implementation reports, and the corresponding recommenda-
tions of the Committee on the Rights of the Child. The study identified a
number of indicators by which to gauge the seriousness of the neglect of
juvenile justice issues.
The first indicator is the frequency with which the Committee has called
for ‘comprehensive reform’ of the juvenile justice system. Of course, states
need to do better in all areas, including education and health, but the need
for ‘comprehensive reform’ of juvenile justice reflects the degree to which
the fundamental obligations of the CRC have not been understood,
accepted, or acted upon by governments. Another indicator is the number
of times that the Committee has had to urge states to end inhumane prac-
tices that constitute per se violations of international law, like using the
death penalty on minors, or flogging and torture. What distinguishes
human rights abuses against minors in the juvenile justice system from
other serious issues, such as sexual abuse and child labor, is that these
youngsters are in the care and custody of the state, so what happens to
them is often a result of conscious choices. For instance, the failure to sep-
arate minors from adults in detention, which is a bedrock requirement of
international law, is the result of a policy decision to not make the invest-
ments necessary for a humane penal system. The picture that emerges is
one of states failing to grasp the reasons for having a special system of jus-
tice for young people who are in trouble with the law. The depth of the
22 Bruce Abramson
problem is reflected in the difficulty that the Committee on the Rights of

the Child has had in focussing on key juvenile justice issues, and in articu-
lating the core messages of the Convention in this area.
This does not mean to say that there are no bright spots, that there are
no improvements whatsoever. But when compared to other major areas
covered by the Convention, the rights of youngsters in conflict with the law
are being neglected. This is the justification for calling juvenile justice the
‘unwanted child’ of state human rights obligations.
How can we account for the relative neglect of juvenile justice, or, more
accurately, the neglect of the youngsters who are caught up in the penal sys-
tem? The next section will discuss the six major reasons for the relative
neglect of juvenile justice reform.
Before I discuss the reasons for marginalization, I need to confront the
problem that I face in addressing this issue. Of the six causes of the rel-
ative neglect of juvenile justice, four are internal problems, that is to say,
they are barriers for which juvenile justice professionals or CRC activists
themselves bear some responsibility. If I compare myself to a doctor
trying to cure the ‘unwantedness problem’ of juvenile justice reform, then
my diagnosis has to include attitudes and behaviors of my colleagues—
fellow professionals in the field of juvenile justice, and fellow CRC
activists.
I think of the story of Dr. Ignaz Semmelweiss when I use the metaphor of
a doctor giving a diagnosis.
Dr. Semmelweiss noticed that the mothers in the hospital where he
worked were dying from fever after childbirth at a much higher rate than
in other maternity wards. This was in Europe in the 1840s. He finally
concluded that the deaths were somehow connected to the fact that
the medical students who were assisting the births had just come from
dissecting cadavers, and they were not washing their hands. The very
doctors who were ‘helping’ the mothers were the agents of their deaths,
Semmelweiss concluded. But no one would listen. He was rebuffed, even
vilified, and the strain broke him. He eventually went mad (Hellman
2001).
The medical world has changed greatly since then, thankfully, but
human nature is still the same. Dr. Semmelweiss is a real-life case of
‘shooting the messenger’ who brings the bad news. This is the dilemma
that I face. I want to encourage juvenile justice professionals to get on
board the CRC bandwagon, and CRC activists to work more closely with
them and with NGOs that specialize in juvenile justice reform. But, since
four of the six sources of marginalization are internal problems, part of
my message is ‘Physicians heal yourselves’. I don’t know of any way to
avoid the proverbial shoot-the-messenger problem other than to candidly
acknowledge it, and then move on to the discussion of the six sources of
marginalization.
The six causes of ‘unwantedness’
1. Juvenile justice is about crime

Perhaps the most serious problem is that minors in trouble with the law do
not receive the same sympathetic understanding that is so freely given to
other youngsters. Every penal offense has a victim, and fear of crime can
erode the quality of life of everyone in society, and these are the roots of the
unpopularity of penal reform.
When the public does become interested in juvenile justice it is often
because politicians are exploiting law-and-order concerns. Too often politi-
cians call for get-tough measures, and, typically, these ‘solutions’ turn out
to be shortsighted, doing more harm than good. And the media just adds to
the problem, since bad news sells better than good news.
The end result is that the public is usually either cold or outright hostile
to the kids who are accused of breaking the law. It should not come as any
surprise that juvenile justice remains unpopular, despite the popularity of
the CRC as a whole. 8
2. Juvenile justice is not a system but an overlapping of systems

It is standard practice to speak of ‘the juvenile justice system’, or to use
short-cut expression like ‘juvenile justice’, rather than say more completely
what we mean. The pressures of work, and the nature of bureaucracy, force
us to simplify. But this simplification distorts reality because ‘juvenile jus-
tice’ is not a system but an overlapping of systems. The police, the lawyers,
the judges, the prison staff, the probation officers, and the rehabilitation
personnel are separate occupational systems. In addition to these occupa-
tional systems, ‘juvenile justice’ can be looked at from the perspective of
functional systems, like prevention, apprehension (investigation and arrest),
diversion, imprisonment, trial, and rehabilitation. Each of these systems has
its own hierarchical structure and peer network, its own mission, and its
own ethos. And each is in competition with the others for resources. In fact,
sometimes there are even conflicts between the objectives or the working
methods of the overlapping systems.
We are all familiar with the ‘balloon effect’ in juvenile justice reform:
reformers grab hold of one part of the problem, and it bulges out some-
where else. One of the reasons for the balloon effect is that changes in
one system put pressure on the other interlocking systems, and these other
8 To fully appreciate this problem, we need to see the matter from the public’s perspective.
Ron Powers’ article, ‘The Apocalypse of Adolescents’ (2002), is a good example of public per-
ceptions in one developed country.
24 Bruce Abramson
systems push back, defeating the reform, or creating new problems. This
is why we must address ‘juvenile justice’ not as a system but as a set of
over-lapping systems.
The two barriers to juvenile justice reform that we have just looked at are
external problems in the sense that they are imposed upon juvenile justice
professionals and CRC activists either by society or by the institutional
structures of government. They are ‘inherent’ problems that will never go
away completely; reformers will always need to take them into account.
The other sources of marginalization, however, are to some extent internal
problems. It is to these internal sources of marginalization that we now
turn.
3. Rhetoric of ‘the child’

There are several features of the CRC movement that have made it difficult
for activists to take up juvenile justice reform. The dominant image in ‘chil-
dren’s rights’ advocacy is the innocence, vulnerability, helplessness, and
victimization of ‘the child’. There are two traps here, and perhaps you have
already guessed what they are.
The first is that juvenile offenders are not innocent! And they certainly
are not helpless! If they were, there would be no need for a juvenile justice
system.
Of course, many juvenile offenders are themselves victims—of physical,
sexual, or emotional abuse—and this victimization often plays an impor-
tant causal role in the behavior that has got them into trouble with the law.
But the fundamental premise of most CRC activists—the innocence and
helplessness of the beneficiaries of their altruism—contradicts the very rea-
son that the kids are in police custody and before the courts: they have
intentionally caused serious harm to other people.
The second trap is that the overwhelming majority of juvenile offenders
are not children: they are teenagers. CRC activists experience extreme dif-
ficulty with this fact.
We need to back up here and put the CRC into its historical context. The
Convention on the Rights of the Child did not give birth to the ‘children’s
rights movement’. Long before the United Nations was created there has
been a ‘child-savers’ movement that has seen kids, children primarily, as
objects of protection (Hawes 1991). After the UN system began creating
human rights agreements, activists in the child-savers movement lobbied
for a treaty specifically for children, and one that would be framed in terms
of ‘rights’. The early drafts of this treaty used the word ‘child’, meaning,
basically, young people below the age of puberty. As the negotiations
proceeded, it was suggested that the scope of the treaty should be enlarged
to cover everyone under the age of 18 years; in other words, to add adoles-
cents to the class of people who would be rights-holders under the new
convention. The delegates agreed to this extension, but the ‘child’ language
remained the same. The enlargement was handled by the technical device of
a legal fiction: CRC article 1 says that ‘[f]or the purposes of the present
Convention’ the term child is to be read to mean everyone under 18 years.
CRC advocates love to say that the Convention ‘defines’ every human
being under the age of 18 as a ‘child’. Which is simply not true. The
Convention does not say that all of these human beings are children, but
only that the word ‘child’ in the treaty is to be translated as everyone under
18. Article 1 is an artificial definition: that’s why it’s a ‘legal fiction’.
There is mental blocking going on here. While CRC advocates talk about
the Convention applying to everyone under 18, they are nearly always think-
ing about children, not children and adolescents. Look at the photos in CRC
promotional materials and you will find that they are exclusively, or over-
whelmingly, of children—usually pictured as innocent, vulnerable, and often
suffering. When you listen to a CRC advocate talk about ‘children’s rights’,
ask yourself: ‘Is this speaker visualizing 16 and 17 year olds?’ I believe you
will nearly always say, ‘Definitely not teenagers!’ Unfortunately, rhetoric like
‘child rights’ and ‘the child’ is making adolescents invisible in the CRC
movement (Abramson 1996).
Human rights are ‘tools’ for promoting respect for the human dignity of
each and every person. All of us who work directly with young offenders
know the importance of respect (Sennett 2003). There is no such thing as
rehabilitation, or reinsertion, or prevention, or even a fair trial, without
deep respect for the young person we are interacting with in the juvenile jus-
tice system. But I have never yet met a sixteen or seventeen year old who
wants to be called a ‘child’.
I cannot explain why CRC advocates find it so important to call older
teenagers—young men and women, really—‘the child’. It must be meeting
the adults’ emotional needs. As always, our greatest stumbling block to
reform is human nature. Whether it’s parents beating their children (‘It’s for
their own good, dammit!’), or the medical profession fighting Semmelweiss
(‘We’re helping these women!’), or countless other issues, we are always
confronted with the gap between our words and our deeds. CRC advocates
say that the Convention covers everyone under 18, but notwithstanding
some exceptions, like the reproductive health of girls, teenagers are margin-
alized. And since the young offenders are overwhelmingly teenagers, juvenile
justice gets sidelined, as compared with other areas covered by the CRC.
4. Over-reliance on the negative approach

The traditional NGO approach to human rights is to focus on abuses of civil
and political rights, and the primary mode of action has been ‘name-shame-
and-blame’, that is, to expose outrages, to shame governments into action
through public denunciations, and to seek punishment of perpetrators. The
traditional approach has succeeded in awakening the public’s conscience on
26 Bruce Abramson
many issues, and it will always be a necessary part of human rights work.
But by itself the ‘negative approach’ will not take us all the way to our des-
tination—to achieving full realization of all human rights. We must also
adopt ‘positive approaches’.
The heart of the positive approach is a focus on respecting the human
dignity of children and adolescents, which means, above all, promoting
their healthy development: indeed, this is the essence of the Convention on
the Rights of the Child. It’s vital that we stop cruelty, of course, but our aim
should be to replace cruelty with attitudes and practices that respect human
dignity, which includes promoting the healthy development of young peo-
ple. This objective is especially important in dealing with young offenders
because only this perspective keeps the system focussed on prevention and
rehabilitation. And only the positive approach can recapture the sympa-
thetic understanding that all human beings who are in need are entitled to.
There are times when it is appropriate to argue for reform on the basis of
social utility, such as when we show politicians the research studies proving
that prevention is cost-effective, or when we argue for diversion programs
on the grounds that detention is a scarce resource that is being over-used.
Pragmatic arguments are always necessary, but they are not human rights
arguments. Every kid has a right to an education, a right to family contact,
a right to an adequate standard of living—all of which are ‘social and eco-
nomic rights’, and all of which are critical to the well-being of the young-
sters who are caught up in the juvenile justice system.
Human rights advocacy requires a combination of moral, legal and prag-
matic arguments (Schulz 2002, 1–16). The more a state works towards real-
izing human right across the board, the more progress it will make in
reducing juvenile offending, but this will require a more positive approach
to human rights work than is currently the case.
5. The salami approach

As I’ve mentioned, one of the great strengths of the CRC is that it is holis-
tic. ‘Holistic’ is actually a cluster of concepts, when it is used correctly.
In the human rights movement, ‘holistic’ usually means that ‘civil and
political rights’ are not to be given priority over ‘economic, social, and cul-
tural rights’; all rights are said to be ‘interdependent’.
In addition, holistic can refer to a particular way of looking at social
problems, an approach which can best be illustrated by making a compar-
ison. There is a tendency for people interested in juvenile justice to focus on
two, so-called ‘juvenile justice articles’—CRC article 37 (inhumane treat-
ment) and article 40 (administration of justice). This is the ‘salami
approach’, which chops up the holistic Convention into slices of rights; it’s
an approach that fails to see young people as having a full range of needs,
and rights, at every moment they are within the justice system.
Under the salami approach, one divides life up into themes, such as edu-
cation or juvenile justice, and then focusses an inquiry within the confines
of the chosen heading. For example, one looks at schools and asks, ‘What
are the state’s obligations with respect to education under the CRC?’ or at
prisons and inquires, ‘What are the state’s juvenile justice obligations?’ By
contrast, the holistic approach looks at people as complete human beings
and asks, ‘With respect to these boys and girls in detention, what are the
obligations with respect to their education, to their health, to due process,
etc., etc.’ Under the holistic approach, virtually every CRC right can be seen
as a juvenile justice right, from the point of view of the boys and girls who
are in conflict with the law. The rights to education, to health, and to fam-
ily contact, for instance, are vitally important to kids in the juvenile justice
system. (Note my relapse into the singular ‘system’.)
‘Holistic’ is all-encompassing. Generally speaking, a significant percentage
of juvenile criminal activity is directed at income-generation. This includes
certain kinds of property crimes (e.g. theft), crimes of violence (e.g. robbery,
mugging), and illegal commerce (e.g. drug dealing, prostitution). If preven-
tion and reintegration programs are to have a significant social impact, they
must address the income-generation problems of teenage boys and girls, and
their families. Unfortunately, the needs of minors who are at risk of offend-
ing, or who are already in trouble, are not taken into account in national
economic development plans. ‘Juvenile justice’ is seen as the administration
of justice to minors who have broken the law, unconnected to the larger
problems of social justice, like poverty and other types of marginalization.
The truly holistic approach that I am talking about is, of course, simply
another aspect of the positive approach: providing adolescents and children
with the ‘special care and assistance’ that they are entitled to under the
CRC. Society—both the state and civil society—must take measures that
will promote healthy development, and this includes education, and the
ability for them or their families to earn a living in a lawful manner.
The holistic approach, in its fullest sense, addresses all of the dimensions
of life.9
6. Boys
Juvenile justice is overwhelmingly about boys. The kids who are being
arrested and imprisoned are boys, ranging from about 85% to 99% of the
total number of inmates in detention, depending on the country. The penal
system, adult and juvenile, is the most heavily gendered institution in soci-
ety, even more so than the military, given current trends. I think that this
9 John Pitts’ extraordinary book, The New Politics of Youth Crime: Discipline or
Solidarity? (2001), compares the holistic strategy of the French government to the fragmented
approach of the United Kingdom.
28 Bruce Abramson
fact is one of the most important reasons for the marginalization of juvenile
justice issues in the human rights movement.
The are a number of areas of life where the indicators of well-being show
that boys are doing worse than girls, but the CRC movement routinely
ignores this, with only modest exceptions. The expression ‘particularly
girls’ appears throughout the CRC literature, but it is very unusual to see
‘especially boys’. Unfortunately, the ‘particularly’ language is exclusionary:
the word particularly focusses people’s attention on girls, with the result
that either the situation of boys is ignored, or boys are reduced to second
class citizens as right-holders under the CRC.
For instance, when a state implementation report says that more boys
than girls are hooked on cigarettes, the CRC movement expresses concern
‘at the high and increasing’ prevalence of tobacco use ‘notably among girls’
(Committee on the Rights of the Child 2002, para. 40). The situation is
worse for the boys, but only the welfare of the girls is focussed on.
Apparently, the rationale for ignoring the boys is that the girls in this par-
ticular state have a higher rate of increase in tobacco usage, even though
more boys smoke, and even though society is only closing the gender gap,
as it makes females more like males in all areas of life not fixed by biology.
The justification here is not only thin, it works in just one direction. When
another state reports that boys are committing suicide two to three hundred
per cent more often than girls, and that the rate of increase for the boys is
greater (Australia 1996, Table F10), the situation still does not call for spe-
cial attention to boys.10 Instead, the CRC establishment merely expresses
‘concern’ at ‘the incidence of suicide among young people’, airbrushing out
the gender issue altogether (Committee on the Rights of the Child 1997,
para. 18) (emphasis added).
The indicators are staring us in the face. Everyone knows that girls are
being severely discriminated against or excluded in education. Right? Well,
the statistics tell us that boys are also being severely discriminated against
and excluded in education.
For instance, boys are under-represented in secondary schools in eighty-
eight countries (UNICEF 2002, 96–9). The pattern of female over-represen-
tation in education gets worse as the youngsters get older, the trend against
boys is increasing with time, and the problem is global. In post-secondary
education in Western states, for instance, males are under-represented in all
10 Table F10 is not reproduced on the UN website. Australia’s report has one short para-
graph on suicide, and it makes no mention of the dramatic gender disparities that are reflect-
ed in Table F10 (Australia 1996, para. 884). In an interesting comparison, the report devotes
eight paragraphs to what the Australian government is doing to combat female genital muti-
lation within its borders (Australia 1996, paras. 872–9). Eight paragraphs to one, with the one
paragraph refusing to mention the greater problems that the boys are facing: that’s a good
summary of the position of boys in the human rights movement.
but a couple of countries. In Norway, females are over-represented by

thirty percentage points (Doyle 1999, 22). And girls in Sweden are over-
represented by an extraordinary thirty-seven percentage points (UNICEF
2002, 96–9). According to the experts, these trends are explained in part by
the higher rates of learning disabilities in boys, and, even more importantly,
by the absence of male role models, primarily as a result of the increase in
female-headed households, and the over-representation of women in the
teaching profession (Doyle 1999, 22). These two factors—learning disabil-
ities and loss of male role models—are also significant in the over-represen-
tation of boys in the juvenile justice system.
Another indicator pertains to the most basic of all human rights: the right
to life. In all but a couple countries of the world, females have dispropor-
tionately longer life expectancies than males. In some European countries,
women are outliving men by as much as one hundred and twenty percent
(UNICEF 2002, 110).11 It is often said that the right to life is the most fun-
damental human right of all, since all of the other rights obviously require
that the right-holder be alive to enjoy them. But even though males are not
enjoying their right to live on a par with females, we do not see human
rights activists identifying this gender disparity as a human rights issue, or
as a gender issue, or, for that matter, even as a disparity. And one never
hears CRC or human rights activists calling for ‘affirmative action’ to cor-
rect the imbalance in the enjoyment of the most fundamental of all human
rights. Ensuring equal enjoyment of the right to life would require activists
to think in terms of ‘particularly men and boys’, but this expression simply
does not exist in human rights-talk.
I do not mean to imply that no government is making any effort to cor-
rect any of the various imbalances that are depriving boys of the equal
enjoyment of CRC rights with girls, or that the human rights estab-
lishment invariably turns a blind eye to the fate of males. But overall, nei-
ther the human rights movement nor the CRC movement is treating
imbalances in the well-being of males as a human rights issue, or even a
‘gender issue’.
The relative neglect of juvenile justice is therefore a part of a wider phe-
nomenon of the marginalization of boys and men wherein the problems
that disproportionately harm males are routinely ignored or downplayed.
And since juvenile justice is one of the most dramatic instances of boys as
a social group faring worse than girls as a group, we need to give the
gender dimension close attention.
11 Compare the presentation of these disparities with other rhetoric in the human rights lit-
erature: ‘Maternal mortality is a reflection of the devaluation of female life and a measure of
the social neglect of women’ (Center for Reproductive Rights 2003, 74). We never see a com-
parable statement about the lower life expectancies of boys and men.
30 Bruce Abramson
Consider the remarks of Sir John Stevens, the Metropolitan Police

Commissioner:
In London, our research shows that there are about thirty to forty youths on each
borough who have grown up in [state] care in an environment of physical and
sexual abuse, each and every one . . . had been abused and when they had
reported offences they had been ignored or enquires had not been successful.
These youths have been excluded from school for four or five years and who have
never experienced any form of parental control. Some of them wouldn’t even rec-
ognize their parents if they met them in the street. Is it any wonder they become
desensitised to society’s norms and decencies. Maybe three hundred to four hun-
dred of them are causing a huge upsurge in street crime and the pattern is repeat-
ing itself up and down the country. (Guardian 2002, 2)
What percentage of these ‘thirty to forty youths’ would you guess were
males? Stevens does not give citations for the studies, but I would be will-
ing to bet that ‘youths’ is 100% masculine. Sir John is obviously concerned
about stopping the sexual and other abuses that he mentions; even though
he is talking about hooligans, he has not lost his sympathetic understand-
ing. But rather than say ‘young males’, he has chosen to use de-gendered
language. Why do you think he made this choice?
Compare Sir John’s speech with Amnesty International’s report on juve-
nile justice in the United States. ‘Many girls suffering sexual and physical
abuse at home respond by fighting back or running away,’ which, the report
says, helps to explain why girls end up in the hands of the juvenile justice
system (Amnesty International 1998, 52–3). And what about the history of
sexual and physical abuse suffered by the boys who are in the system?
Amnesty’s report is totally silent about this. The report also decries the
‘massive over-representation of black children’ in the penal system
(Amnesty International 1998, 53, 56–7). Black children? Not black males?
Or just plain teenage boys, without the color coding? The Amnesty report
does not recognize any over-representation of males in the jails of America.
The report calls attention to the ‘distinct link between the over-representa-
tion of black children in the justice system and the social and economic
environment in which they live’, but since males are not over-represented,
nothing needs to be said about the sociological factors that propel boys into
the arms of the law. Apparently, black males are in lock-up because that’s
where they’re supposed to be. That’s the implication, isn’t it?
So much for the flagship of the human rights movement. Are the juvenile
justice professionals doing any better in addressing the over-representation of
boys in the penal system? Let’s check with the International Centre for the
Prevention of Crime. They say that we now have the knowledge and the tools
to effectively prevent juvenile delinquency. They tell us that large-scale studies
have identified the ‘factors . . . associated with’ delinquency, and this allows
us to design effective programs (International Centre for the Prevention of
Crime 1999, 2–3). They name eight risk factors, such as poverty and dropping
out of school, but the biggest statistical correlater—the sex of the youngster—
is not on their list. Apparently, effective prevention of juvenile delinquency
calls for androgynous measures; we are expected to believe that the young per-
son’s sex is irrelevant, despite the fact that males are grossly over-represented
in the penal system.
Although the United Nations plays a major role in the promotion of
human rights, we find this same exclusion of boys throughout its publica-
tions. For instance, the World Youth Report 2003 has a chapter on ‘Juvenile
Delinquency’ that is excellent in all respects—except when it comes to boys
(United Nations 2004, 188–210). The title page has a large photo of two
pre-teen girls looking out at the reader with beautiful, laughing smiles. The
body of the chapter has three photos, all of smiling girls. Boys are over-
whelming over-represented in jails and prisons of the world, but the chap-
ter on juvenile delinquency does not contain a single photo of a male. The
text of the chapter follows the same pattern of exclusion. For instance, a
long section on ‘Preventing Juvenile Delinquency’ is framed in terms of
‘adolescents’, thereby ensuring that there is no gender analysis. The subject
of gender comes up only a few times, and when it does the text is always
slanted in favor of girls at the expense of boys.
The systematic exclusion of boys exists throughout the CRC movement.
A UNICEF booklet, Sport, Recreation, and Play, illustrates the problem
(UNICEF 2004). The booklet contains twice as many photos of girls than
of boys, and for teenagers the imbalance jumps to a four-to-one ratio
against the males. The exclusion of boys is also seen in the types of activi-
ties that the youngsters are engaged in. Girls are often shown in activities
that require skill and dedication, like gymnastics and karate, but there is
only one photo of a boy—a pre-teen—doing anything that takes compara-
ble skill and that will win the youngster comparable social recognition. To
appreciate the extent of the exclusion, we need to bear in mind that the
booklet was produced in the United States, where, for a generation now,
editors and publishers have been taking great care to ensure that photos
reflect gender and racial or ethnic parity. Moreover, the booklet is a UN
publication, and I know from my own experience in working on a number
of publications that UN agencies are similarly vigilant. It is simply impossi-
ble for a booklet to contain such a gender imbalance by accident. And
finally, let us not forget that the subject is sports, and that sports activities
play an important role in juvenile delinquency prevention and reintegration
programs for boys—the gender that makes up the vast majority of the
inmates in penal detention facilities.
Whether we look at the CRC movement, or at the broader human rights
movement, or at the specialized juvenile justice advocacy, we find the same
pattern of avoiding the gender dimension of juvenile justice. Some adults
are in deep denial of the gender issue when boys are on the losing end of
32 Bruce Abramson
the disparities. But most people recognize that there is a gender issue. The
problem is that no one has found an effective, positive way to address it. I
think that juvenile justice professionals and CRC activists are paying a dear
price in credibility for their failure to address gender: the public knows—at
some level of awareness—that the advocates for reform are not addressing
the problem when they duck the gender dimension of delinquency.
This does not mean to say that no one is ever paying attention to the
needs and rights of boys as boys, but the task here is to account for the dif-
ficulty of juvenile justice reform, and we can’t ignore the fact that there is a
gender dimension within the advocacy itself.
Social marginalization is not a problem of accidental forgetfulness, like
not remembering to turn off the bathroom light. As in any type of social
exclusion, the marginalization of boys is the result of active processes
(Sommers 2002). Sad to say, there is outright sex discrimination against
boys in the CRC movement.
PART III
WHAT TO DO?
I believe that there are two basic things that juvenile justice professionals
can do to counteract the unwantedness problem, and to promote penal
reform for children and adolescents. The first step is to climb on board the
CRC bandwagon. The second is to get juvenile justice reform onto the
international agenda.
Step one: become part of the CRC movement
I have argued in the foregoing sections that there is much to be gained by

mainstreaming juvenile justice concerns within the CRC movement, and
that there are some serious barriers that must be overcome before the full
potential of the CRC can be realized. Almost all the obstacles are ones of
attitude, which, I would suggest, make them ripe candidates for human
rights advocacy.
Joining the CRC movement would require juvenile justice specialists to
invest time and energy, which would mean an increase in their already over-
stretched workloads. Whether they see this additional stress as worthwhile
will depend upon their perceptions of both the immediate and the long-term
payoffs. I think that the point that needs to be emphasized is that the invest-
ment will bear fruit only if the specialists form coalitions among themselves,
and then, with a strategy in hand, branch out and enlist others, including
NGOs, intergovernmental agencies, and states.
The juvenile justice situation is like a gigantic swimming pool where the
water is near freezing, and where the kids are succumbing to hypothermia.
We have a vast array of people bringing cups of hot water to the pool. But
the ‘tea cup brigade’ will not raise the temperature of the water; it can pro-
vide relief to the individual swimmers in the immediate vicinity, but the pool
is too vast for even an army of tea cups to effect a change.
I think that the only way to raise the temperature of the pool is for juve-
nile justice specialists to mainstream themselves in the CRC movement, and
in the broader human rights movement of which it is a part. These move-
ments are aiming at fundamental changes throughout society, and this is
where the criminal-law and juvenile-justice experts need to be putting their
efforts.
For instance, juvenile justice professionals have a lot to gain by teaming
up with CRC advocates in the course of their present work. The techniques
that are being developed to promote young people’s participation has obvi-
ous value to juvenile justice workers, for example. But this is still the tea
cup approach to reform. It will never overcome the attitude barriers that are
keeping juvenile justice marginalized.
Juvenile justice experts can gain more by joining the national CRC coali-
tions. But ‘joining’ is not enough. A bandwagon is not a club that one
becomes a part of by submitting an application. It is a social movement,
which means that it’s a series of alliances or partnerships that people form
to advance their specific objectives. Juvenile justice advocates must be able
to show the CRC advocates how the latter’s aims will be advanced by enlarg-
ing their spheres of interests to include the young people who are in trouble
with the law. Most NGOs have areas of specialization, like street kids, or
education, or caste discrimination, to name a few concerns. Juvenile justice
professionals must re-examine their work in light of these concerns, and then
find ways to build upon the links between juvenile justice issues and the
work of these other NGOs. Prevention, diversion, detention, and rehabilita-
tion are in fact linked to the mandates of the traditional ‘children’s rights’
organizations, but these links are not being made clear, and are not being
capitalized on for their multiplier effects in the promotion of reform.
In other words, juvenile justice specialists must pull CRC specialists into
their own corner of the bandwagon: they must be able to show how main-
streaming juvenile justice will have a pay-off in terms of implementing the
CRC as a whole.
Raising the temperature of the pool will require a global strategy.
Education is a good illustration of how thinking in global terms can change
perceptions and behavior. Education activists have been waging a fierce
campaign for a number of years to get political leaders to accept the notion
that basic education is fundamental to the economic, social and political
development of states. The idea has been planted, and the roots are now
fairly deep. The World Bank, for instance, integrates education-for-all
34 Bruce Abramson
within its developmental plans and its lending packages. The major UN
agencies are now actively supporting education. And governments are mak-
ing real efforts to achieve educational results. As a consequence, we have
seen tremendous progress, and the current rededication to education-for-all
is even more promising. Juvenile justice professionals need to team up with
CRC activists to take similar international action with respect to juvenile
justice reform.
The education-for-all campaign is also a good example of the contribu-
tions that juvenile justice professions can make. Dropping-out and related
problems at school are among the highest risk factors for teenager offend-
ing. So delinquency prevention programs and reintegration programs that
will get offenders back into the educational system are extremely impor-
tant. Moreover, school-based prevention and rehabilitation programs are
cost-effective ways for the state to reduce crime levels. But despite the
importance of these programs, the education-for-all campaign has not inte-
grated the juvenile justice dimension into its activities. Juvenile justice pro-
fessionals therefore have an important role to play in helping the campaign
to overcome this blind spot. The education-for-all people, juvenile justice
professionals, and CRC activists all share a common interest, and they need
to work together to accomplish their reform objectives. My point is that the
CRC movement is the best vehicle for this collaboration.
Step two: get juvenile justice reform onto the international agenda
A global juvenile justice strategy would likewise need to plant a powerful

conceptual seed: the development of society includes a progressively more
humane penal system. Economic developmental plans, and international
lending and donor aid-packages, must include provisions for reforming the
penal system.
To take one illustration, states are coming back to the Committee on the
Rights of the Child on their second implementation reports without having
complied with their obligations to separate minors from adults in detention.
Even though separation has been a fundamental UN standard for fifty
years, and even though it is specifically required by the CRC, and despite
the fact that the Committee’s first set of Concluding Observations urged the
state to take action, the situation has not changed. The reason is always the
same: no money. Which means, in translation, that the human rights of peo-
ple in trouble with the law continue to lose out in the political competition
for resources. And this will always be the case because developing countries
are having a tough time providing even the popular services, like health and
education; in fact, their education and health systems usually depend on
large amounts of international aid. But note the salami approach here. Kids
in detention have health and educational needs too! But their needs—their
human rights—are not being integrated within the international aid assis-
tance plans.
It’s the same situation with diversion programs. Governmental officials
can be persuaded that prevention and diversion are cost-effective measures
for reducing delinquency, but they cannot get from where they are to where
they would like to be without outside support. When there’s not enough
money to buy gas or radios for the police cars, and the police officers’
salaries are insufficient to live on, and the state is three months behind in
paying them, then we cannot expect the government to make the juvenile
justice expenditures that are required today in order to reap important
social gains in the future. Major reform will not occur without international
support, and that support will not come in amounts sufficient to raise the
temperature of the pool unless there is a new way of thinking among the
leaders in the world of international aid.
It is not acceptable for inter-governmental bodies or states to promote
multi-million dollar development projects without earmarking a portion for
the progressive upgrading of the penal system, not when we consider the
levels of inhumanity that we find in the juvenile and adult systems through-
out the world. Economic development fuels social disruption, like migra-
tion and changes in family structures, and disruption of the social fabric
will lead to additional crime; that’s the human condition. A holistic, human
rights approach will anticipate these problems, and will ensure that devel-
opmental packages have dedicated a certain portion to the rehabilitation of
the penal system.
The international system has already laid a number of foundations that
juvenile justice professionals, working together with CRC activists, can
build upon. For instance, the Commission on Human Rights appeals to
states to ‘include in their national development plans the administration of
justice as an integral part of the development process . . .’ (Commission on
Human Rights 2002).12 The Commission on Human Rights is a subsidiary
body of the UN General Assembly, and it is made up of states, so this recog-
nition of the link between penal reform and development is an important
step. But the abstract recognition of the link must be followed up by many
concrete initiatives. Juvenile justice professionals have a vital role to play in
showing national governments, donor states, UN agencies, and interna-
tional financial institutions the concrete implications of the link. For exam-
ple, the people who control the purse strings and the architects of
development projects need to understand that juvenile delinquency preven-
tion and rehabilitation programs do work, and that they are cost-effective
ways for the state to reduce crime. But the only way that the gatekeepers of
12 This part of the Commission’s resolution is based on the Beijing Rules, rule 1.4 (‘Juvenile
justice shall be conceived as an integral part of the development process of each country with-
in a comprehensive framework of social justice for all juveniles’).
36 Bruce Abramson
development will know this is for juvenile justice professionals to present

them with the research findings on prevention and rehabilitation.
Another foundation is the United Nations Millennium Declaration (General
Assembly 2000). Adopted in the year 2000, this document is increasingly
becoming the comprehensive framework for planning, co-ordination and
monitoring of the work of states, UN agencies, and international organiza-
tions. While the Declaration contains a few concrete targets, such as the uni-
versal enjoyment of primary education by the year 2015, most of the goals are
framed in highly abstract terms. The abstract goals are broad enough to
embrace all aspects of juvenile justice reform, from ending inhuman prison
conditions to the creation of prevention, diversion and rehabilitation pro-
grams, to ensuring due process in the handling of individual cases. But since
the goals are abstract, it is up to juvenile justice professions to define the con-
crete links. A great deal of work is being done to turn the Millennium
Declaration into a practical framework device in many spheres of life, but this
work will just perpetuate the marginalization of juvenile justice reform.
Unless, that is, juvenile justice professionals team up with CRC activists to
ensure the technical and political integration of penal reform into the
Millennium Declaration’s follow-up activities.
CONCLUSIONS
The Convention on the Rights of the Child has proven itself to be a highly
successful catalyst for promoting the human rights of children and adoles-
cents, with the one principal exception of juvenile justice. Once the unwant-
edness problem is acknowledged, juvenile justice professionals and CRC
activists can join together to create strategies that will counteract each of
the six sources of marginalization. By climbing on board the CRC band-
wagon, and by getting juvenile justice reform on to the international devel-
opment agenda, juvenile justice professionals will help to fulfil the powerful
potential of the Convention on the Rights of the Child.
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3
Support for the Implementation of
Humane Responses to Children in
Conflict with the Law in DIHR
Partner Countries
CHARLOTTE FLINDT PEDERSEN
INTRODUCTION
C
HILDREN AND ADOLESCENTS are the most important resource in a
country’s development. Providing good opportunities for children
and adolescents to develop their potential remains vital in the light
of future prosperity; however, it is not something that is necessarily easily
done. Doing so implies that children have access to a safe environment,
quality education, access to adequate health services, access to fair treat-
ment in the justice system, as well as the right to participate in decision-
making processes at various levels. This will give them the opportunity to
become active partners in a democratic society. However, in most of the
countries that the Danish Institute for Human Rights is working in, neither
the economic foundations nor the professional ability of the government
and its underlying structures are in place to provide these services to the
children of their country.
In December 2001 the Danish Institute for Human Rights (DIHR) there-
fore initiated co-operation with NGO partners in four countries (Nepal,
Uganda, Malawi and Tanzania) to establish a small juvenile justice platform
with the purpose of exploring ways of addressing the challenges posed to
the legal and social system in each of the partner countries, specifically tar-
geting the issue of fair treatment of children in the justice system and sup-
port to government structures in improving their justice systems in relation
to the treatment of children.
This article summarizes some of the experiences that can be drawn
from this co-operation and describes the gradual formulation of a strat-
egy on the implementation of humane responses to children in conflict
40 Charlotte Flindt Pedersen
with the law in this forum. Before going any further I would like to
credit our partners, who through their commitment are the primary
forces driving this process in each of their respective countries in formu-
lating and designing strategies which fit their respective legal systems
and social and economic conditions, and creating the possibilities for
dialogue with the state parties needed for the promotion of the cause.
I will be using examples and findings from our partners in my presenta-
tion; however, these should not be accredited to me, but to the Centre
for Youth Children’s Affairs (CEYCA) in Malawi, the Malawi Human
Rights Resource Centre (MHRRC), the Centre for Legal Affairs (CELA),
the Legal Human Rights Centre in Tanzania (LHRC), Ms. Lillian
Tibatemwa-Ekirikubinza, Deputy Vice Chancellor Makarere University
in Uganda, Centre for Legal Research and Development Research
(CeLRD), Kathmandu School of Law (KSL) in Nepal, and the National
Juvenile Justice Forum of Malawi. The role of DIHR is to facilitate
co-operation between the five countries (including Denmark) and to
support bilateral projects in terms of funding and coaching/advice
on specific issues, providing inspiration for further development in
terms of personnel and study tours, and providing the opportunity to
meet and exchange information.
THE WORKING SEMINAR ON JUVENILE JUSTICE
Establishing a common frame of reference
In December 2001 the four countries took part in a working seminar in

Copenhagen. The purpose of the seminar was to exchange ideas and per-
spectives with key stakeholders, resource personnel and partners with
regard to improving the administration of juvenile justice in the four part-
ner countries. Danida funded the seminar under our framework agreement.
The seminar’s point of departure was the flow of criminal justice in rela-
tion to juveniles. General and specific features in the four countries were
scrutinized:
• at the legislative level;

• at the judicial level;
• at the level of police and prosecution;
• at the level of sanctions and their implementation;
• regarding the role of the social welfare sector, NGOs and the local
community;
• finally, to look into the data and analytical material that could sup-
port the direction of future interventions.
Implementation of Humane Responses to Children in Conflict 41
The seminar turned out to be a forum for positive exchange and, based on
this, it was decided to set up a bilateral project of co-operation between each
set of partners in each country on juvenile justice as well as to maintain
regional co-operation in order to secure the exchange of experiences. One of
the main conclusions of the seminar was that the participants had found
more solutions to their endeavours to address their country’s juvenile justice
issues in the exchange with neighbouring countries than in the presentations
providing the Danish perspective (see Pedersen and Jepsen 2001).
Compliance with CRC
It was also established at the seminar that the co-operation would take a
rights-based approach, with the point of departure being the articles of the
Convention of the Rights of the Child as well as trying to apply the mini-
mum standards provided by the Beijing Rules and Riyadh Guidelines,
which thereby provided purpose and direction in our work and gave us the
methodological framework for all our activities.
In the course of the project of co-operation it has become clear that the
challenges facing our partners in terms of achieving compliance with the
international standards in relation to the administration of juvenile jus-
tice are huge. Below is an attempt to compile a list of some of the prob-
lems experienced in the juvenile justice systems of the four countries:
• The numbers of juveniles in detention and the way they are treated are
difficult to monitor in the co-operating countries, as the reporting of
such figures and information is poor. In none of the co-operating coun-
tries is there as yet any system in place that keeps proper track of the
numbers of children involved in the criminal justice system. Therefore
it is currently impossible to assess how well or how poorly the system
is working. In Malawi the national juvenile justice forum is promoting
the establishment of separate registries for juveniles at all levels of the
justice system. And the regional forums are monitoring the number of
children in the penal system and in remand facilities.
• There is no systematized collection of baseline data in the area of
juvenile justice or criminal justice, which impedes the possibility of
assessing the scope and types of juvenile delinquency, in creating
meaningful preventive and reactive responses with regard to efforts
in crime prevention, rehabilitation and improving the administration
of juvenile justice in general. A systematized approach to understand-
ing the system, scope, types and reasons for delinquency will provide
the government and other stakeholders with the basis for developing
strategies, social polices, and legislation.
• Some of the countries’ legislation allows for sanctions such as corporal
punishment and establishes a very low age of criminal responsibility.
The exception is Uganda. Here legislation has to a large degree been

brought into compliance with the CRC, whilst at the same time trying
to use existing resources and the local community court system outside
the formal system instead of setting up new and costly structures. The
Uganda children’s statute was to the other participants a sort of model
law for improving children’s rights; however, the application of the
statute is still far from perfect.
• There are insufficient legal guarantees with regard to due process and
fair trial, and superficial or no legal representation in the different
stages of the judicial process, with the effect that it is the most vulnera-
ble and unprotected youth who end up in prison, such as street children
and children from poor families.
• There are insufficient or no institutional structures providing for
alternatives to the prison system, along with a lack of resources and
professional capacity in these structures, in so far as they exist, with
regard to possibilities for the reintegration and rehabilitation of
child offenders. Often these institutions are placed far from public
transportation and visits from relatives are therefore rare.
• There is a lack of awareness at the different stages of the judicial process
(prosecutors, police investigators, judges, lawyers) of the special circum-
stances pertaining to child offenders and there are big gaps between
legislation and practice. Even in places with knowledge of the procedures,
the resources for applying special measures are often unavailable. Who
should write the social report? How to get hold of the parents or
guardians when telephone communication is only for the few? How to
transport juveniles to a special place for remand or to a judge to assess
the legality of the arrest, when transportation is not available? And so on.
• There is a lack of supporting mechanisms such as social and societal
structures, resulting in a one-dimensional juvenile justice system
which is compelled either to release juveniles without punishment or
to give mainly custodial measures of punishment.
• There is a lack of resources in terms of human and material resources
in the criminal justice system, such as means of transportation, which
impedes the authorities in e.g. bringing children back into the commu-
nity and to the family, and a lack of mattresses, food, medicine and
other basic needs.
• There is a lack of child participation in the justice system as well as in
society in general.
Seminar recommendations
A main recommendation of the seminar was not only to consider juvenile

justice and juvenile delinquency as a problem pertaining to the legal system
and as a legal problem, but to pay attention to the social dimension of the
issue and seek solutions for children in conflict with the law in this sphere
as well (Pedersen and Jepsen 2003).
This pointed towards the need for co-ordination, co-operation and the
involvement of different sectors of society. Therefore a multi-sectored
approach was recommended, promoting co-operation across social affairs,
to the law enforcement agencies, to the courts, and to the youth penal insti-
tutions and prisons in order to successfully provide humane responses to
children in conflict with the law.
Another recommendation stemming from the above was the need to
explore ways of engaging in pre-trial activities so that this period is not
spent in idleness. The pre-trial period can be spent trying to find a solution
outside the justice system. Whilst stating that diversion is important, the
question as to what type of diversions there should be remained unan-
swered. Nevertheless, those designing a juvenile justice system in each of the
countries should take the issue of diversion into consideration.
Finally it was decided to proceed with the task of gathering more knowl-
edge on the situation of children in the justice systems as well as looking
into the provisions of the legislation with regard to children in conflict with
the law and the institutional framework in each country. It seemed neces-
sary to decide on the complexity of the situation in order to define the right
strategy to address the issue properly as well as to promote the issue among
decision makers and government justice agencies.
Aims and activities in the implementation process
It was clear from the outset that one of the aims of any intervention would
be to support the establishment of a community-based infrastructure, util-
ising existing resources in the communities to support the justice system in
providing alternatives to incarceration as well as through measures of crime
prevention, diversion, rehabilitation and reintegration of children in con-
flict with the law, thus reducing the need for punitive interventions. A ten-
tative model for such a network was the newly established Juvenile Justice
Forum in Malawi and the Children’s Statute of Uganda.
At the seminar in Copenhagen, specific steps in the implementation
process were outlined:
• A systematic examination of national legislation, policies and prac-

tices to ensure that the letter and the spirit of the Convention and
guidelines are reflected—that is, baseline studies conducted by each
partner organisation based on bilateral partnership agreements.
• In connection with the above, development of monitoring and evalu-
ation mechanisms and improving tools for the collection of credible
information on the criminal justice system pertaining to children in
conflict with the law.
• Dissemination of the collected baseline information to stakeholders

from which to develop a strategy for implementation and improving
practices, as well as providing information to a broader public about
the rules and principles of juvenile justice instruments.
• Lobby for law reform based on the findings of the baseline study.
THE CONFERENCE ON JUVENILE JUSTICE AND HUMAN RIGHTS

IN NEPAL
Consolidation and comparing findings, development of a toolbox
A year after the forum took place, the organisations and individuals in the
four partner countries constituting the informal juvenile justice network
met again in Nepal. This conference was entitled ‘Juvenile Justice and
Human Rights’. Its purpose was to share information and research findings
among the participating countries which had been elaborated since the last
meeting. Each country was asked to present a situation paper, especially
reflecting the following:
• Problems of juvenile delinquency,

• Legal framework developed to address the problem,
• Mechanisms to deal with young people committing delinquency,
• Programs being implemented, with reference to diversion schemes,
• Institutions involved,
• Possibility of co-operation in future, and
• Presentation of Expert Inputs on Diversion Schemes, reflecting upon
recent developments and the most efficient forms of diversion.
Network terminology
During the meeting of the juvenile justice network the term ‘juvenile’ came
up for discussion. A working group was composed to try to create a com-
mon terminology for the network. Dissatisfaction was rooted in the fact
that the term ‘juvenile’ is usually applied in relation to judicial proceedings
and therefore has negative connotations associated with law breaking.
However, in the common sense the words ‘juvenile’ and ‘child’ can be used
interchangeably, referring to a human being who is not an adult. The work-
ing group appointed by the plenary to develop a working definition for
words that do not carry negative connotations came up with the following
to substitute ‘juvenile’:
A. Minors in conflict with the law/administration of justice (this should

cover minors liable to a charge or in conflict with police administra-
tion procedures).
B. Minors in conflict with societal norms (this will cover minors who
have not committed offences, runaways, children defined as beyond
control).
C. Minors in need of care and protection (children who are abandoned,
abused, victimized, exploited in e.g. child labour).
As was pointed out during the presentation to the plenary, these definitions
are not unproblematic either: the term ‘minor’ as opposed to ‘adult’ reflects
an element of discrimination as it implies that children are lesser or incom-
plete beings (and thereby maybe do not enjoy the same number of rights as
adults). Another problem is that the term ‘minor’ is often used with respect
to children who are not liable to a charge, and therefore it would seem that
the targeted age group is not encompassed by this term.
Nevertheless, for the time being we settled for the term ‘minor’, because
the age of the child differs from statute to statute in all the co-operating
countries. The working committee decided to retain the term ‘juvenile jus-
tice’ in the statutes and names of the organisation/s but footnoted the work-
ing definitions in all the program documents. The retention of the term
‘juvenile’ is supported by the United Nations Standard Minimum Rules for
the administration of juvenile justice (the Beijing Rules), which give us the
following definition of juvenile: ‘A Juvenile is a child or young person who
under the respective legal system may be dealt with for an offence in a man-
ner which is different from an adult.’
Legislation versus practice
Another issue discussed at the Nepal meeting was the role of legislation.
Based on the experiences of Uganda and Malawi it was stated that laws
are very important in strengthening the juvenile justice system; however,
law reform is not a precondition for implementing more humane
responses to children or initiating diversion programs. What are required
are resources, political will and creative use of the existing legislation.
But improving the law is necessary in order to sustain the results of
improved practices as well as to develop the range of possibilities for
diversion.
Diversion
Another dimension to the methodological toolbox was added and explored
during this conference. Ricardo Mukonda from UNICEF in Mozambique
talked about diversion and provided some principles and considerations for
the application of diversion programs:
The need to divert children in conflict with the law stems from the fact
that the criminal justice system in its present form subjects children to
institutionalized human rights violations. With diversion the argument is

that a humane way should be developed within the criminal justice system
to deal with children in conflict with the law so as to minimize the dehu-
manising effect of the formal criminal adjudication process. (Ricardo
Mukonda in Kathmandu School of Law 2003)
It was stressed that diversion programs should be designed to fit the
community and its cultural and economic contexts, as well as the chil-
dren in question. Therefore local partners are crucial to the successful
implementation of such programs. In most of the countries we can find
alternative measures to incarceration, but in only a few countries does
‘diversion’ as a concept form part of the legal system when dealing with
young offenders. Since the last meeting, Malawi has got so far as setting
up a national system for facilitating a diversion process through the
national and regional juvenile justice forums. A lesson can be learned
from this process: in every justice system a certain opportunity for discre-
tionary power always exists, which could be used in the direction of
diversion: that is, the police, the prosecutor or the judge could take
the initiative to divert the juvenile offender at any stage of the formal
criminal process.
It was decided that each of the participating partners should start devel-
oping diversions schemes. The main elements in the initiation of these
schemes would be as follows:
• Bringing stakeholders together to strengthen collaboration and the

ability to produce alternative solutions to offences committed by chil-
dren/minors, i.e. diversion, and the use of their discretionary power,
and ensure that children are always granted a genuine spokesperson
(NGOs, paralegals, teachers) as early as possible in the process.
Ideally Malawi’s model of juvenile justice forums should be applied,
adapted to the local context.
• Empower/mobilize local resources (both financial and human).
• Initiate piloting diversion programs with educative effects (preventive
diversion programs and life skills components).
• The next international network meeting would be solely devoted to
this aspect and the dissemination of experiences and exposure to suc-
cessful diversion programs should be high on the agenda.
Each national partner should formulate a second phase of individual proj-

ect co-operation along these lines. At the international level DIHR should
formulate terms of reference for the network’s activities in consultation
with the partners in the network. It was decided that DIHR should until
further notice function as an informal secretariat for the international ele-
ment of the network.
RESEARCH AND MONITORING
Research and monitoring was another important topic at the Nepal meet-
ing. It was concluded that due to the urgency of the problems it is neces-
sary to carry out continuous formative action research following already
ongoing programs in order to adjust these to the complexity of issues and
problems related to children and adolescents. The research should be car-
ried out by domestic researchers—so that the ownership of the information
obtained during the research is internalized and thereby maintained within
the society in question and with people who have the legitimacy to act and
take responsibility for acting upon the findings they make. This will also
provide for a more exact interpretation of the findings in relation to the
cultural context. A publication providing amongst other things a compila-
tion and extracts of the baseline studies is in the making, which will, as
was emphasized by the participants, provide an important comparative
perspective to the situation of juvenile justice and thereby be useful for the
purpose of promoting increased awareness of the problems involved in the
administration of juvenile justice among decision-makers and justice sector
stakeholders.
One of the aspects which is very important and where we see an impor-
tant role for DIHR is supporting our partners in the collection of statistical
information on children in the justice system. This is, however, extremely
difficult due to a lack of centralized registration of crime and judicial activ-
ities. Ideally registers should contain information about the type of offence,
where and when the offence was committed, former offences, the sanction,
and so on. This is, however, very rarely the case, which makes it virtually
impossible to follow developments in child-related crime or to compare
whether children are more involved in criminal activities than previously
and which type of activities they are involved in.
There is practically no tradition in our co-operating countries of using
statistical information, and therefore this has been the most problematic
part of the exercise. At the same time the partners are often confronted with
problems of gaining access to the relevant authorities, which only partially
are in possession of the required information. In the long run the gathering
of this information should be a government responsibility, but the activities
of the NGO can pilot this and show the way in relation to the usefulness of
statistical information on children in conflict with the law. For example,
answers to common questions could be found: Who commits the crime? Is
it juveniles/adults, men/women, employed/unemployed? Where is the crime
primarily committed? Is it in the city or in the countryside? What is the
most common crime? Is it theft or violence? And what are the reactions of
the formal/informal system to child-related crime? This information could
be used in developing crime prevention strategies and in supporting the
development of humane juvenile justice systems.
Upon presentation of the baseline studies to stakeholders (even though

the studies gave a critical picture of the performance of the administration
of justice in relation to children), the stakeholders were actually happy or
grateful to be informed and have the information as a point of departure
for discussion and for looking into improving the situation. The informa-
tion thereby became a communication tool between the NGOs and the
stakeholders in the juvenile justice system.
COMMON PROBLEMS AND SOLUTIONS
In both Denmark and the United States we have in recent years seen a trend
towards demands for a more punitive approach when dealing with young
offenders. Despite all our money and different psychological and pedagog-
ical methods we have not been able to find sustainable solutions to the
problems of the most marginalized and often most vulnerable youth/chil-
dren and the problem of their reintegration into society.
I am convinced that some of the elements of a solution to the problems
of Northern crime policies can be found with our partners in the South.
What I see is that they have, forced by the inhumanity and imperfection of
their own justice and penal systems, insufficient social welfare systems, and
insufficient funds, been compelled to move towards finding solutions out-
side such areas, using existing resources in the communities and mobilising
these to take responsibility for children. In Malawi, Uganda, Tanzania and
Nepal there is among the most progressive justice stakeholders an increas-
ing awareness and determination to keep children away from the criminal
justice system.
In countries like Malawi and Tanzania the formal legal system interacts
with informal structures, which must be taken into consideration when
designing strategies for improving juvenile justice practices. Often there
exist in these informal systems traditional, non-codified ways of taking care
of children who lose their family or somehow fall outside societal norms.
However, these informal systems and the values they are based upon are
under influence from modernization and development and are therefore
changing and cannot in the long run be relied upon to cater for the children
of the local community. Sometimes the informal system will not take an
approach that guarantees the best interests of the child, but neither, as can
be seen above, does the formal system. In both instances a change of atti-
tude and a possibility of finding other solutions and instituting other prac-
tices have to be provided: restorative justice, victim-offender mediation,
compensation, community service, supervision and so on, involving a range
of actors taking responsibility for children who fall outside societal norms.
In the North as well as the South we also share some common features.
If we look at marginalized children’s backgrounds in Denmark, Malawi or
Nepal the majority will come from single parent families, from severe
poverty, be it in a material or spiritual sense, from unemployment, and/or
have a minority background. They live on the brink of society and the chal-
lenge they pose to us is to bring them into the center of society again. The
family has not been able to take care of the child’s integration into society
and therefore the task faced by the system is to support alternative resource
personnel, communities or individuals who can take responsibility and
replace the role of the family with respect to guiding the child into the
womb of society.
One aspect which the network has to explore further is the develop-
ment of ways of promoting children’s participation not only in the
juvenile justice system, but in general in decisions of relevance to their own
lives. Juvenile offending often occurs as a reaction to a lack of influence.
The ability to care, own and take responsibility for one’s own life and
reject a lifestyle connected with offending has to be based on the participa-
tion of the child and the sensation of being able to influence one’s own life
situation.
CONCLUSIONS
DIHR has from the outset of its engagement in juvenile justice aimed at a
cross-sector and cross-regional approach (government, judiciary, civil soci-
ety, social and criminal law enforcement which includes both preventive
and reactive stages).
In order to promote sector-wide thinking on the part of domestic stake-
holders and to ensure domestic ownership in the process, DIHR has applied
a step-wise approach. The first step comprised the development of strong
partnership relations to key actors in all of the co-operating countries.
Together with these partners DIHR has initiated baseline studies on chil-
dren and adolescents in the justice system, situational analysis and revision
of the legislative provisions in the co-operating countries.
The contribution of diversionary methodologies and the development of
diversion schemes suited to the context of each of the participating coun-
tries remains one of the most realistic avenues, and should be a crucial
component in the achievement of a well-functioning juvenile justice system
in poor countries as well as wealthy ones. These efforts should be seen
together with parallel efforts that seek to achieve better national monitor-
ing systems and to develop strong national Juvenile Justice Forums work-
ing for broad-based reform and sector co-ordination.
Up to this moment, the program of co-operation has achieved the initial
part of its potential impact and has fertilized the growth and development
of common understandings in relation to juvenile human rights standards,
monitoring instruments, strategies and policies for diversion.
In the execution of juvenile justice there exists a situation in which many

stakeholders and actors are involved. To become able to provide impetus to
the development of the system, these different players must strike up a dia-
logue with each other. Co-ordination and sharing of information is an
important basis for possible improvements. Therefore it is imperative that
the sector develops its discussions around national forums for juvenile jus-
tice, such as that in Malawi. It is also necessary that the system becomes
capable of producing reliable data and analyses that can describe develop-
ments within the sector, and thus produce and maintain the planning base
for further deliberations and the drawing up of action plans, as in Nepal.
Finally, in order for the results to be sustained, it is necessary that the work
can inform the legislative process in the creation/design of viable and appro-
priate responses, as with the children’s statute in Uganda.
To proceed in this direction it is necessary:
• to support national juvenile justice forums and to build up their

capacity to conduct advocacy for reform, networking and their
strength to secure co-ordination;
• to develop and institutionalize national monitoring systems that can
produce reliable data and valid research for the benefit of stakehold-
ers and key decision makers;
• to develop proper criteria for diversion programs and appropriate
national diversion options.
The problems, challenges and objectives that compose our strategy have
been formulated in co-operation with our partners as an ongoing process. I
find this extremely important, as it means that the network belongs not
only to the Danish Institute for Human Rights—it belongs to each and
every member of the network.
REFERENCES
Kathmandu School of Law (2003) Juvenile Justice System in Nepal.

(Kathmandu, Nepal).
Pedersen, C.F. and Jepsen, J. (eds.) (2003) Report from Working Seminar
on Juvenile Justice, Copenhagen, 3–8 December 2001. (Copenhagen,
Danish Centre for Human Rights).
4
Regional Co-operation and the
Spread of New Ideas and Practices
ADAM STAPLETON
REGIONAL CO-OPERATION: AN OVERVIEW
R
EGIONAL CO - OPERATION IS problematic, particularly in Africa with
its range of languages, religions, political and economic groupings,
uncertain lines of communications, and prejudices. Francophones
and Anglophones suspect each of making no attempt to understand the
other. Angola is intimate with Brazil and distant from Namibia. The Sudan
looks over to Saudi Arabia with barely a glance at Uganda. If you want to
travel from west to east Africa, it is still quicker (and cheaper) to take a
plane to Europe and reconnect there.
Co-operation between donor agencies on a regional basis is weak. Country
missions report to desk officers in their capitals. They are neither required
nor, it appears, encouraged to share information with other missions in the
region. Donors still prefer to bring in consultants from their own countries
rather than identify expertise and relevant experience within the region.
NGO ‘networks’ exist but appear to have little impact. Amnesty
International assisted at the birth of the Southern Africa Human Rights
NGO Network (SAHRINGON). After a promising beginning, it has been
riven by internal squabbles and appears to continue in name only. The
Southern Africa Legal Aid Network (SALAN) has active individual member
organizations but lacks coherence of purpose to make it an effective body.
Yet the picture is not all negative. The groundbreaking work of the
South Africa Human Rights Commission has made it a leader in its field.
It has hosted Commissioners from other institutions around the continent
and provided know-how and training. The Conference of Heads of
Correctional Services in Central, Eastern and Southern Africa (CESCA)
meets every two years and includes heads of prisons from 17 African
countries. It provides a useful forum for senior prison officers to meet and
discuss new trends in corrections and invite speakers from within and out-
side the continent to inform improvements in corrections.
52 Adam Stapleton
PENAL REFORM IN AFRICA
In the area of penal reform, Penal Reform International (PRI) works around
the world, inter alia, to promote and develop international standards with
regard to law enforcement and prison conditions, to reduce the use of
imprisonment and to increase the use of constructive non-custodial sanc-
tions encouraging social reintegration while taking into account the interest
of the victims.
In Africa, PRI has been working to develop an agenda of reform that is
recognized and shared by African countries up, down and across the conti-
nent. This agenda is aimed at practitioners and informed by a plan of action
that sets out good practices and ‘models’ from all over the globe.1
Conferences provide stepping stones in the process of reform. They pro-
vide a forum for interest groups to come together, exchange ideas, and
chart a way forward. They can exert great moral influence and practical
guidance.
The first Pan-African conference on prison conditions took place in
Kampala, Uganda in September 1996. The conference convened 133 dele-
gates from 47 countries, including 40 African countries. The delegates were
heads of prison services, senior law officers, government ministers and rep-
resentatives from NGOs working in the sector. From the outset, all dele-
gates (from both governmental and non-governmental agencies) realized
they shared common ground, namely that prison conditions were appalling
and something had to be done. The conference issued the Declaration on
Prison Conditions in Africa 1996 which drew particular attention to the
plight of young prisoners, the need to separate them from adults, and the
need for treatment ‘appropriate to their age’.
Conference declarations need to be followed up if they are to enter the
mainstream of current thinking on a given theme. In order to enhance
the authority and visibility of the Kampala Declaration, it was trans-
lated and widely distributed throughout Africa, endorsed by the African
Commission on Human and Peoples’ Rights and, in 1997, adopted as a
United Nations instrument.2 The result today is that the Kampala
Declaration 1996 is widely recognized as the starting point for penal
reform on the African continent.
Concerned about the conditions of young people in conflict with the
criminal law, PRI convened a regional seminar on juvenile justice in
Lilongwe, Malawi in 1999. The conference (hosted by the Malawi Ministry
of Justice and Constitutional Affairs) focussed considerable attention on a
1 The first Index of Good Practices in a planned series focusses on reducing pre-trial deten-
tion and is available on the PRI website: www.penalreform.org.

2 Sixth session of the UN Commission on Crime Prevention and Criminal Justice.
International Co-operation for the Improvement of Prison Conditions. E/CN.15/1997/21.

Regional Co-operation and the Spread of New Ideas and Practices 53
model of juvenile justice drawn up by the National Institute for Care and
Resettlement of Offenders (NICRO) in South Africa and developed in
Namibia by the Legal Assistance Centre, a national NGO based in
Windhoek. As a result of the recommendations of the meeting, PRI facili-
tated a pilot scheme in the following year in one magisterial area in Malawi
and assisted in drawing up a two-year work program with national roll-out.
The national juvenile justice forum continues to this day, chaired by a judge
of the High Court of Malawi.
In 2002, a second Pan-African conference on prisons and penal reform in
Africa took place in Ouagadougou, Burkina Faso.3 The conference looked
back over the past six years at what had been achieved as a result of the first
conference held in Kampala. The record was encouraging, as the conference
noted: the appointment of the Special Rapporteur on Prisons and
Conditions of Detention by the African Commission on Human and
Peoples’ Rights (ACHPR); the extension of Community Service as an alter-
native to prison based on the Zimbabwe model to 13 new African coun-
tries; the increasing evidence of prison services entering into partnerships
with NGOs to bring about reform; the development of a regional forum for
heads of correctional services through the CESCA annual conference.
The Ouagadougou Declaration on Accelerating Prison and Penal
Reform in Africa also recognized the ‘considerable shortcomings’ in the
treatment of prisoners and issued a forward-looking Declaration set in a
practicable seven-point framework, supported by a plan of action to
address these shortcomings. The Declaration places emphasis on reducing
the prison population, making prisons more self-sufficient, promoting
greater reintegration of offenders into society, applying the rule of law to
prison administration, and encouraging best practice ‘at national, regional
and international levels’ drawing from the ‘rich experience’ from across the
continent.
This is not mere rhetoric. The practice of the law in Africa is often highly
creative and innovative—it has to be, given the constraints within which
justice systems operate in many countries. Over the past ten years the sec-
tor has had to develop its own ways of making justice accessible to ordi-
nary people. Good practices4 have emerged: practices which adhere to
international human rights standards, benefit the poor and vulnerable and
are proven to be effective. A case in point is the Namibian juvenile justice
forum.
3 Pan-African Conference on Prisons and Penal Reform in Africa. Ouagadougou, Burkina
Faso, 18–20 September 2002.

4 The phrase ‘good practices’ is preferred to ‘best practices’ since the use of the superlative
begs a number of questions that need not be addressed here (i.e.: who says so, in what con-
text, when, and how much do they cost?).
54 Adam Stapleton
These practices are being increasingly recognized and shared through

such regional mechanisms as CESCA; through the associations formed by
national co-ordinators of community service (with the mutual support and
assistance they provide); and through a growing recognition of and reliance
on regional expertise.
DEVELOPING NEW IDEAS
Developing and implementing new ideas in the justice sector is different

from coming up with new and more efficient ways of laying down 200 kilo-
meters of road or managing a forestry project. There is no ‘kit’ form like a
new water well or communications system. In general, one size does not fit
all. Nor do these new ideas and practices simply ‘catch on’. They need to
be introduced, planted, nurtured and supported—then, if the soil is recep-
tive and the timing is right, they may ‘take’.
Identify one problem in the justice sector and further analysis discloses a
range of causes—all of which need to be treated to cure that one problem.
One might take, for instance, the ‘inhuman’5 level of overcrowding in pris-
ons in Africa. Overcrowding is not unique to African prisons, however in
Africa it has reached epidemic proportions. The diagnosis is simple: too
many people. The solution (also simple): reduce the numbers in prison.
So, in 1998 in Nigeria, a presidential taskforce on prison decongestion
and reforms was constituted which approved criteria for release of prison-
ers and visited every prison in the country to verify data. Trials were
speeded up and magistrates visited prisons. Between December 1998 and
October 2000 over 8000 prisoners were released. Within three months the
prisons were even more congested.
Again, in 1999 in Malawi, the juveniles in Zomba prison were suffering
appalling conditions. Paralegals conducted a short study into the lawful-
ness of each boy’s detention. The enquiry found that of the 179 young per-
sons found in Zomba prison, not one was there in accordance with the
laws of Malawi. The Chief Commissioner and Chief Resident Magistrate
organized the closure of the section. Within two months it had re-opened
and by the end of 12 months the population stood at 120 young persons
and rising.
The work of the presidential taskforce in Nigeria and paralegals in
Malawi are valuable in that they expose the extent of the problem; however
they fail to achieve the cure sought because what is needed is an integrated
course of treatment to tackle the multiple ills that cause a particular disease
5 ‘Considering that in many countries in Africa the level of overcrowding in prisons is inhu-
man’, Preamble to the Kampala Declaration on Prison Conditions in Africa 1996.

within the system. A course that treats judicial and popular attitudes, sen-
tencing principles and practice, access to legal advice and assistance, police
investigation procedures, court administrative procedures and processes,
prison conditions and so on and so forth. All this takes some money, con-
siderable commitment and a great deal of time.
Some ideas (‘access to justice’) or ‘products’ (community service orders)
may appear to work well in country A (i.e. they do what they set out to do;
in a timely, inexpensive way; that can be demonstrated; and if you ask any-
one involved they would be able to give you a clear explanation of what
they are about and how they have assisted them), but on transplanting to
country B, they do not appear to ‘take’. The point of departure and
approach, the institutions, the needs and problems will all differ to a vary-
ing degree such that the idea or product just does not work. The context is
important. So too is timing. It is not much good starting something new in
the middle of a war or 12 months before the next elections.
So, what are the features that should attach to this idea or product if it is
to catch on and spread further afield? It would probably stand a better
chance if it was simple and if the idea had been translated into practice and
tested first. Then it would help gain ground if the idea was unoriginal—in
the marketing sense of being NEW!—but had roots—if dormant—which
people could identify and so claim as their own. Any idea is not much good
if it does not address a widely shared need—and do so in ways which are
sustainable, i.e. not merely affordable but providing ‘sustainability of
impact’.6
This said, the real world is greatly influenced—some might say unreason-
ably so—by the opinions of economists. Notwithstanding the caveat of
Einstein that ‘not all that counts can be counted and not all that can be
counted counts’, where we can ‘count’ and measure the impact of these new
ideas, we need to; where we cannot we need to illustrate in other ways how
they build ‘social capital’, to use the phrase favored by the World Bank.
A case in point concerns the community service orders scheme developed
in Zimbabwe. In 1992, research in Zimbabwe prisons showed that 60% of
prisoners were serving terms of 3 months or less. Data also showed that the
prison population was continuously rising. In 1994 a three-year pilot
scheme on community service began. Almost 17,000 orders were made in
this period and the prison population stabilized. 90% of orders were satis-
factorily completed. The cost of supervising a person on community service
is estimated to be one third of keeping the same person in prison. On sched-
ule, the government took over the scheme from donors in 1997.
6 ‘Beyond Rule of Law Orthodoxy—the legal empowerment alternative’, Golub (2003). The
author goes on to explain: ‘If a given legal services NGO serves enough people, or builds
enough capacities for the poor to effectively assert their own rights, or affects enough laws—
such impact is sufficient to justify past and future donor investment.’
56 Adam Stapleton
SPREADING NEW IDEAS
The question becomes, having identified this ‘new idea’ or ‘product’, how
to spread or export it?
In starting up, there is a need to develop clear and attractive literature and
‘visual aids’. Film is particularly useful and provides greater outreach since
not everyone can come and see for themselves. Criteria for the success of the
product provides guidance to those interested in borrowing from it or adapt-
ing it to their own country contexts. Statistics should clearly demonstrate that
the situation today is better than it was yesterday (from baseline data)
because of the introduction of the new product. Key people from elsewhere
may be invited to come and visit and see the product for themselves.
Influential and respected individuals with close links with the establishment
should be approached to sponsor the product’s introduction in their country.
Having started, there is a need to develop momentum (for change). A pre-
liminary visit to the target country would identify effective link persons in
key positions who will promote the product, together with a clear lead
agency. By convening a national conference to introduce the idea (including
all stakeholders and excluding none) with practitioners (from the region) as
resource persons and a tangible outcome in the form of a time-bound action
plan, the way forward becomes clear.
Follow up (sensitization) meetings targeting key groups assist in meeting
objections, fears or criticisms. Emphasis on close co-ordination both
nationally and within the region develops trust and confidence. A budget
for publicity is important to get people talking about the idea or at least to
recognize that others are talking about it. Then there is the task of securing
funding for the period in question.
The next step is national roll-out. Teams will need to be recruited and
trained. Materials will need to be ‘packaged’. Pilot schemes will need to
start and be closely nurtured in the earlier stages. This will require close
support and encouragement from those charged with supervising its imple-
mentation (the High Court judge in Zimbabwe in charge of introducing
community service encouraged every magistrate and volunteer to contact
him directly as and when they felt the need for advice or guidance). Early
wins/gains should be publicized as widely as possible. Once three countries
are applying the product, a regional network could be established so that
those charged with implementation are able to share information, discuss
problems and develop materials jointly and set and agree common stan-
dards—whether through e-mail forums or annual meetings.
The need for flexibility in marketing the product is also key to its success-
ful implementation, particularly in dealing with national rivalries or jeal-
ousy, thus it should be capable of adaptation so that it becomes ‘ours’ and
not something borrowed from ‘them’ with space for ‘local’ creativity and
ingenuity (so long as people do not lose sight of the criteria identified for its
success in the originating country). In this way and by maintaining an open

attitude to new ideas, investment in research and development based on
practices elsewhere in the world, the product is in a state of constant evo-
lution and change.
Any new idea or product is only as good as the results it can demonstrate
and its overall impact on the sector in particular or society in general. The
development of objectively verifiable indicators is required from the outset.
These targets should be conservative in the first instance. Surpassing expec-
tations builds confidence, failing to meet them does not and fuels the fears
of its detractors. The data gathered needs to be scientifically provable and
not anecdotal. In turn, this approach demonstrates a professional outlook
and reassures those providing the funding that they are getting value for
money. Regular evaluations that provide constructive criticism enable con-
tinuing improvements to be made to the product. Ways need to be identi-
fied how best to illustrate the impact of the non-countable benefits (film
and interviews with beneficiaries greatly assist here).
‘Between the idea and the reality falls the shadow’—converting the idea
into practice: two case studies
Juvenile justice in Malawi based on the Namibian model
The Juvenile Justice Forum (JJF) in Namibia was established in 1994 and
was made up of nine ministries, criminal justice agents, NGOs and individ-
uals. It ran a successful pre-trial diversion program for children in conflict
with the law.
Members of the JJF visited police cells each week and completed a cell
visit form. They identified young people who were being held unlawfully
and referred the case to a sub-committee of the JJF. Where parents had not
been traced, volunteer tracing agents were employed.
JJF workers screened the children to identify the child’s circumstances, to
determine the nature of the crime, to ensure that children were placed in the
custody of their parents/guardian, to monitor the treatment of arrested chil-
dren, and to make recommendations to the prosecution regarding diversion.
The recommendations were either for prosecution or for diversion to one
of the following: life skills program, prosecutor’s warning, supervision,
counselling, victim-offender mediation, pre-trial community service.
In conducting the screening, the guiding principle was the best interests
of the child. Between 1997 and 2002, only 3% of those diverted to life skills
programs were reported to have re-offended.7
7 The JJF program in Namibia has undergone significant changes since and further infor-
mation can be obtained from the program manager, Celeste Zaahl ([email protected]).
58 Adam Stapleton
Following the paralegal study of juveniles in Zomba prison above (and

other prisons), a national seminar was convened in Malawi (as mentioned
above) with the Ministry of Justice, Malawi Human Rights Commission
(MHRC), African Commission on Human and Peoples’ Rights and Penal
Reform International sharing the platform with UNICEF.
The participants at the seminar included judges, magistrates, lawyers,
police and prison officers as well as human rights NGOs and constitutional
bodies (such as the office of the Ombudsman, Inspectorate of Prisons and
MHRC) with invited speakers from the region (Uganda, Namibia and
South Africa). A library of contemporary papers and commentaries was put
together thanks to the good will of organizations such as Defence for
Children International, UNICEF (Florence) and Save the Children (UK) and
circulated to all participants.
The seminar looked at initiatives that were underway in Uganda,
Namibia and South Africa and international trends and thinking on the
subject. Particular interest was shown in the Namibian Juvenile Justice
Forum and it was decided by the seminar to test the scheme in Malawi by
selecting one magisterial district to start a forum. The costs were minimal.
The selected site also housed the prison where the worst conditions
obtained (namely Zomba). A timely urgent action by Amnesty International
on the plight of juveniles in custody added urgency to the process.
Over a period of 10 months (January–October 2000) the forum met
locally, facilitated by PRI. The meetings were minuted and action for the
next month agreed between all parties. The regional courts administrator
took charge of follow up. At each meeting the parties reported on what they
had done in the intervening four weeks. Those who were dragging their feet
or failing to honor their commitments were soon shamed into activity by
the activities of the others.
In the course of this period, the LAC provided technical assistance from
Namibia in the shape of someone who had been chiefly responsible for the
implementation of the scheme over five years in Namibia. He made several
visits to Zomba over the period, in which time he assisted in adapting the
Namibian model to suit the Malawi context, drew up a training syllabus,
trained people, and drafted a training manual for future use. In consultation
with members of the forum and judiciary, he then produced (with PRI sup-
port) a short term plan of action and two-year medium term work program.
In October 2000, a meeting was convened with members of the forum, the
judiciary, NGOs and other interested parties (such as UNICEF) to discuss
the work programs. They were unanimously adopted.
The National Juvenile Justice Forum was then established and the Chief
Justice nominated a judge of the High Court to chair the Forum, assisted by
a senior magistrate as national co-ordinator. PRI facilitated funding from
UNICEF and DFID and then withdrew. The program has a dynamic national
co-ordinator and in 2006 is running along the lines of the Namibian Forum.
The Malawi Paralegal Advisory Service—work in progress
The PAS began in December 1999 with a meeting of four NGOs and PRI
to identify an intervention in prisons to facilitate legal advice, assistance
and education to indigent offenders. Following discussions with the prison
service, a 12-month pilot scheme began in May 2000 with eight paralegals
from four national NGOs working in the four main prisons. No one out-
side the prisons expected the pilot to last six months, as NGO access to
prisons was an entirely novel enterprise. The PAS is now in its fifth year,
with 37 paralegals working in 13 prisons, four central police stations and
court centers, and has attracted attention from a number of other countries
in Africa and South Asia.
The type of assistance to be provided was developed over time according
to the needs expressed by prisoners and observed by the paralegals. By the
end of the 12 months a clear work program had been established based on
legal advice and assistance and education. Each team submits a monthly
report which is discussed at monthly meetings by representatives from each
team with the co-ordinators.
In April 2002, after two years of activity, the program was independently
evaluated (Kerrigan 2002). The highly positive report encouraged the
donor agency to extend funding for three years (2003–2006), aimed at
establishing a legal aid delivery service with national outreach on the front-
line of the criminal justice system (in the police stations at interview, in the
courts at first appearance and in the majority of prisons).
Entry into the police stations was initially resisted. This was a key objec-
tive of the program since most abuse takes place in police stations where
‘confession-based’ evidence remains the order of the day, and paralegals
sought admission to police interviews.
Once the team decided to focus their support exclusively on young per-
sons in conflict with the law, the police objections fell away. They readily
agreed to paralegals assisting with parent tracing so that interviews could
go ahead. After further discussion and collaboration with the judiciary,
paralegals developed ‘screening forms’ so that in appropriate cases, young
persons could be interviewed at the police station and promptly be diverted
from the criminal justice process where the individual was a first offender,
the offense charged was not serious and the person admitted his/her guilt.
The paralegals drew heavily on the Namibian model in designing this
approach.
After 12 months, the juvenile program in the police stations was evalu-
ated in the four regions where it was operating. A national meeting was
convened with senior police officers which agreed that paralegals should
extend their activities to include adult accused and attendance at police
interview—the initial goal of the intervention.
60 Adam Stapleton
In 2004, the program was again positively evaluated.8 The program was
replicated in Benin (2002). The Kenyan Prison Service with members of the
judiciary and NGOs sent a delegation to study the program in 2003 and a
pilot started in four prisons around Nairobi in January 2004. In 2005, the
Kenya Prisons Paralegal Project expanded to nine new prisons and three
children remand homes in four provinces. In Uganda, again following a
study visit, a similar pilot started in January 2005 under the aegis of the
Law Society of Uganda. In December 2005, the Paralegal Advisory Service
(Uganda) recruited 24 paralegals to work in prisons in the north, south, east
and west of the country.
Elsewhere in the region, the Principal Commissioner of the Tanzanian
Prison Service has invited PRI to facilitate the introduction of a pilot scheme
in prisons around Dar es Salaam. An NGO in Niger9 has proposed starting
a similar scheme. Interest has been expressed by prisons in Ghana and
Zambia. Beyond Africa, funding has been set aside in Bangladesh (UNDP
and the European Union) for a pilot to begin.
The criteria identified for the success of the scheme to date are:
— a practical and effective work plan responding to the immediate

needs of those in conflict with the law;
— a ‘highly co-operative and trusting spirit’ developed with the crimi-
nal justice agencies based on a low key approach;
— maximum participation of the stakeholders creating ownership of
the scheme;
— a service provider that complements rather than competes with the
legal profession by offering appropriate legal advice and assistance.
AFTERTHOUGHT
‘Where shall I begin, please your Majesty?’ he asked

‘Begin at the beginning’ the King said gravely, ‘and go on till you come
to the end: then stop.’ (Alice’s Adventures in Wonderland)
Entry points: choosing where to start—is it really such a problem?
Public opinion is generally highly judgmental and intolerant of those who

offend against society’s laws. Former Malawi President Banda’s much pub-
licized comment about prisoners in his prisons—‘let them rot’—strikes a
chord with many people.
8 By Thomas Trier Hansen, Deputy Judge, Denmark.

9 Niger, with a population of 11 million, has 77 lawyers.
Yet there are persuasive arguments for moving penal reform up the polit-
ical agenda even if there are no votes in improving prison conditions.
The prison population at any one time hides the real number of people
passing through prisons in the course of a year, which is five or six times
higher than the static population recorded on any given day. The over-
whelming majority of people entering prison will one day leave and return
to society.
Prisons are incubators of disease. The rise of tuberculosis in Russia in the
late 1990s has been traced to the appalling state of the country’s congested
prisons. In most countries in Africa, HIV rates are proportionately higher
in prison populations. The rates of tuberculosis are also on the increase in
the congested closed environment that characterizes most prisons in Africa.
Most people in prison are there because they do not have the means to
retain the services of a lawyer or because of the absence of effective alter-
natives to prison, not because they are dangerous or otherwise a threat to
the community at large. This is especially the case with juveniles who are
picked up for begging in the street (being a rogue or vagabond) or handed
over by a parent (who lack the time, know-how or patience to deal with a
rebellious teenager).
Where conditions are overcrowded, there is little prospect that the juve-
nile offender will receive an education or preferential treatment in accor-
dance with international laws and guidelines on the treatment of young
persons. The likelihood is abuse, criminalization and ultimately social
marginalization.
There is greater sympathy for a young person detained in a police station
or prison: few people would agree that it is in the best interests of the child
to keep him/her in such institutions. However a disproportionate amount
of energy is spent ‘structuring’ a correct response rather than agreeing a
strategy with key players and implementing it. The ad hoc remedies applied
in Nigeria and Malawi (above) were useful in allowing the system to let off
steam. What was lacking was the follow up that would ensure that the head
of steam did not build up again. In Malawi, a start has been made.
Ownership: maximizing participation and changing minds
It has become almost axiomatic to state that the more people are involved
the greater the chance an activity has of succeeding. Time spent in small
meetings—in Africa at least—rather than in large-scale workshops is useful
to explain the purpose and clarify activities. It is easy to ‘commit’ to activ-
ities in a populous assembly, less so when you are ‘face to face’.
A process approach (proceeding one step at a time) is also useful in ‘build-
ing coalitions’ of partners (both within and without government). The par-
ticipation of all actors is important if the idea is to be able to gain the ‘space’
needed to develop and grow and establish the credibility of the program.
62 Adam Stapleton
The head of the Female section at Zomba Central Prison was totally opposed
to the Paralegal Advisory Service when it first started in 2000. Her advice to
the prisoners was to have nothing to do with ‘these NGO people’ who were
‘well paid’ and ‘do nothing’. Six months later her attitude had completely
changed and she has become one of the strongest advocates within the Prison
Service of the PAS. In 2004, she started her own nursery for the children of
female prisoners in the prison, which the paralegals are assisting her to support.
Sustainability: making maximum use of scarce resources
A little money goes a long way in the justice sector. The Juvenile Justice
Forum and PAS in Malawi arose from an initial investment of $1000.
While many of the ‘institutional’ problems identified by stakeholders are
real—police officers do lack transport, communications equipment, ade-
quate terms and conditions of service and training; prison structures are
dilapidated; the judiciary do need properly equipped courts and registers
and administrative support—the perceived solution, ‘more funds and
resources’, is not going to fix the matter.
A wider (‘sectoral’) approach that involves the participation of all the
actors in the sector may achieve more by simply enhancing communication,
co-operation and co-ordination between them at the local level (a good
example of this is the ‘Chain Link’ project in Uganda and the introduction
of Caseflow Management Committees at the local and regional levels).
These can involve simple measures such as: issuing cost orders against
lawyers who seek unnecessary adjournments; taking account of the remand
period spent in custody when passing sentence; giving credit for an early
plea of guilty; lowering the threshold for bail in appropriate cases, and stat-
ing a general presumption in favour of bail; discharging those cases that
have taken too long to investigate or to come to trial; taking proactive
measures to ensure that the ‘equality of arms’ principle is maintained and
that unrepresented accused persons are not unduly prejudiced; amending
the law to include custody time limits; and so on (PRI 2003).
The reality of many governments is that, even with the best will in the
world, insufficient capital is available to address so many competing prior-
ity needs—not only in the justice sector, but also in health, education, agri-
culture and infrastructure. This is why the Ouagadougou Declaration
emphasizes the need for greater ‘self-sufficiency’ within prison services; and
why PRI looks for relevant, low/no cost practices/models from elsewhere.
Visibility
If there is no ‘quick fix’ to the multitude of problems confronting the jus-

tice sector in many countries, some well crafted ‘quick wins’ (i.e. discreet,
high impact, (usually) low cost interventions that address a priority need in
a short time-frame) help to show what can be done with little when the
actors concerned work together. Publicizing these early gains raises morale,
reassures policy makers, changes (often entrenched) attitudes and encour-
ages confidence in those providing funding that the money is being well
spent.
Public opinion is often ill-informed. In Zimbabwe, the community serv-
ice scheme was initially criticized by the general population as being ‘soft
on crime’. By the end of the pilot scheme, public opinion had moved 180
degrees and demand for ‘placements’ from the courts was exceeding the
number they could supply. Public opinion needs to be engaged through the
dissemination of accurate information, publicizing success stories and
encouragement of public debate (on the radio/television more than in the
print media).
Change is disquieting for many people. In a time of political flux and
financial and personal insecurity the very idea of more change engenders
alarm and a measure of resentment sets in. Change should not be too sud-
den therefore nor too drastic. People need time to adapt gradually to the
ideas tabled and see the practice so that they can observe the benefits for
themselves. In this way the noble aspirations of so many UN instruments
and texts are seen to transform into a living, practical reality.
REFERENCES
Golub, S. (2003) Beyond Rule of Law Orthodoxy—the Legal

Empowerment Alternative. Rule of Law Series No. 41, Democracy and
Rule of Law Project. (Washington, D.C., Carnegie Endowment for
International Peace).
Kerrigan, F. (2002) Energising the Criminal Justice System in Malawi—the
Paralegal Advisory Service. (Copenhagen, Danish Centre for Human
Rights).
Penal Reform International (2005) Index of Good Practices in Reducing
Pre-Trial Detention. (7th version, Lilongwe, Penal Reform
International).
5
The South African Child Justice Bill:
Transition as Opportunity
ANN SKELTON
INTRODUCTION
A
N IMAGE THAT has echoed again and again in the minds of people
working in the child justice sector in South Africa is that of Nelson
Mandela, as he made his first address to Parliament as the newly
elected President of South Africa in 1994. He promised that ‘the basic prin-
ciple from which we will proceed from now onwards is that we must rescue
the children of the nation and ensure that the system of criminal justice must
be the very last resort in the case of juvenile offenders’ (Mandela 1994).
The impetus for this important commitment by the ANC-led government
was the history of the suffering of children in South Africa’s police cells and
prisons. In the 1970s and 1980s many of these children had been political
detainees, subject to arbitrary arrests, detention without trial, sometimes to
torture (Wilson and Ramphele 1987). By the late 1980s the political deten-
tions had stopped, but many children continued to be swept up into the
criminal justice system because of ‘ordinary’ crimes, the majority of which
were non-violent crimes, mostly theft. Non-governmental organisations and
human rights lawyers did what they could during the apartheid years; there
were detainee’s parents committees and free legal representation during the
years of intense political activity. Later, there was a concerted campaign by
a group of non-governmental organisations to have children released from
prisons and police cells and to call for reform of the way in which the crim-
inal justice system dealt with children. In the early 1990s a strong child
rights movement began to develop in South Africa, and thus children’s rights
became an important theoretical framework underpinning the efforts at law
reform (Sloth-Nielsen 2001). All this history must have been ringing in
Nelson Mandela’s ears as he made his first promises of action.
With a President as a champion for the rights and protection of children
in the criminal justice system, anything and everything seemed possible, and
indeed—at least for a while—sweeping changes to the way that things had
66 Ann Skelton
been done in the past were more than possible, they were expected. In this
chapter I will show that the transition to democracy in South Africa flung
open the door to change, but that the door has been inching back to posi-
tion over the years that have ensued. It is not yet closed, but the gap is nar-
rower, and there is concern that some of the reform initiatives may not
come to fruition.
This chapter examines the efforts of law reformers in South Africa in
relation to children accused of crimes. The efforts have culminated in the
Child Justice Bill, which at the time of writing has been through two rounds
of deliberations of the Parliamentary Portfolio Committee on Justice and
Constitutional Development. The chapter details the background to the law
reform efforts and describes some of the issues relating to concern about
public safety that have influenced the process. Some aspects of the parlia-
mentary debates about the Bill are then explored and analysed.
TRANSFORMATION
The coming to power of the first democratically elected government in

South Africa provided an opportunity to transform organs of society and
government policy. There was an obligation to leave the apartheid past
behind and embrace a new era of justice and equality. After the elections
and the installation of the government of national unity in 1994, govern-
ment began to lead a consultative process aimed at the development of
criminal justice policy. The early period of the new democracy was a highly
consultative phase of government, and many members of civil society such
as academics and experts from the non-governmental sector were invited to
participate in this phase of policy-making. The period of transition was a
window of opportunity for legal transformation. The word ‘transforma-
tion’ is in itself significant: the early stage of the new democracy was a
period in which South Africans spoke about ‘transforming’ rather than
‘reforming’ laws, ‘creating’ rather than ‘redrafting’ policy. Every sector pro-
duced white papers, green papers or policy frameworks in the years follow-
ing the first elections in 1994.
Van Zyl Smit (1999) records that during the early years of the new gov-
ernment there was a conscious effort by criminologists and human rights
activists to build a coalition of progressive forces that united around new
ideas for dealing with juveniles. Van Zyl Smit is of the view that in the tran-
sitional period juvenile justice attracted more debate and development
resources than any other criminal justice issue and therefore the ideas of
how society should ideally be organized in the future were articulated most
fully in this context. Van der Spuy et al (2004) note, however, that the pro-
posed new juvenile justice dispensation was only one of many dramatic and
far-reaching schemes for the transformation of the criminal justice system
The South African Child Justice Bill: Transition as Opportunity 67
competing for resources and for the favourable attention of the legislature,
and consequently progress from research to policy formulation to draft
statute was slow.
Van Zyl Smit then moves on to sketch the reality that, within only a few
years of the new government being established, the pressure of keeping the
electorate happy began to show in some very mixed messages that govern-
ment was sending out with regard to its approach to criminal justice policy.
Quick on the heels of producing a National Crime Prevention Strategy
(1996) which was rooted in ideas of social crime prevention, and whilst still
running a Truth and Reconciliation Commission based on ideas of restitu-
tion and healing, the government began what Van Zyl Smit calls an ‘erratic
flirtation’ with law and order responses to crime. The responses ranged from
‘an almost farcical police undertaking to arrest thousands of known crimi-
nals in a short period …, through the introduction of mandatory minimum
sentences, to the bizarre (and only half-heartedly denied) suggestion that dis-
used mine shafts be used to house dangerous prisoners’ (Van Zyl Smit 1999,
201). He traces the genesis of this swing towards a law and order response
to a sense of ‘popular punitiveness’. The fears of the white minority about
the myriad of societal changes they were experiencing tended to be most
effectively articulated in terms of fear about crime. Thus government was
faced with the reality that keeping the business sector happy and promoting
investor confidence was becoming threatened by what appeared to be a lack
of commitment or ability on their part to deal effectively with crime.
Camerer (1997) defines the tension in a slightly different way. Her view
is that within a few years of coming to power the South African government
found itself doing a balancing act; on the one hand protecting the hard-won
commitment to human rights (including those of suspects and perpetrators),
and on the other hand addressing the angry calls for vengeance and retribu-
tion by many South Africans who have been victimised by crime. Camerer
maintains, however, that the only way that the government can hope to
restore faith in the criminal justice system is by focussing on the needs and
rights of crime victims and providing an adequate response to them.
It is evident from what has happened in criminal justice policy-making in
South Africa during the first ten years of democracy that popular sentiment
does not always remain supportive of vision-based policy. South African pol-
icy analysts Simpson et al (2001) observe that South Africa has experienced
a backlash to the ultimate vision-based policy, namely the Bill of Rights con-
tained within the Constitution. The authors contend that the experiences of
crime and violence, as well as government’s apparent non-delivery of solu-
tions to deal with the problem, has increasingly stimulated a popular back-
lash which is about a resistance to those mechanisms in the Bill of Rights
which are seen as servicing criminals rather than victims. Children who com-
mit crimes have not been immune to this backlash, and the influence that it
has had on the process of drafting legislation is palpable.
68 Ann Skelton
Crime and its control became a pivotal theme in South Africa within
two years of the first democratic government coming to power. South
African policy and law makers have in recent years begun to embrace a
number of ‘law and order’ ideas relating to crime control, primarily bor-
rowed from the United States. The ‘broken window approach to polic-
ing’ championed by the former Commissioner for New York City,
William Bratton, was discussed enthusiastically in the South African
press when Bratton visited South Africa in 1996. In the United States
Bratton had achieved much success by encouraging police to ‘crack-down
on the squeegee boys’—a reference to young (mainly black) males who
washed car windscreens in New York streets (Simpson 1997). This
approach is somewhat at odds with the idea of diversion of children
away from the criminal justice system, which is based on an attitude of
tolerance for the reality that young people often commit minor crimes. If
such children can be diverted away from the criminal justice system
rather than exposed to its brutalising effects, they are more likely to grow
up to be law-abiding citizens than those who are swept into the penal sys-
tem. This is the idea that underpins rule 11 of the United Nations
Standard Minimum Rules for the Administration of Justice (1985) which
encourages dealing with juvenile offenders, where appropriate, without
resorting to a formal trial.
Swart (2000), a member of the South Africa Parliament, observes that ‘In
South Africa—with the unacceptably high crime rate—what may seem a
desire for retribution is actually a concern for public safety’. Swart believes
that a restorative justice approach can still provide a solution because it can
potentially deliver at least as much public safety as the present system.
‘Therein lies the appeal to policy makers grappling with the demands of
society for safer streets’ (Swart 2000, 2).
The development of the proposed child justice system was strongly influ-
enced by the movements of restorative justice and children’s rights but con-
cerns have been raised about whether these two movements remain
strongly influential, or whether public concern about crime has caused the
mood in South Africa to shift to a point where the crime control impera-
tives are overriding some of the previous policy commitments, and a more
punitive approach is emerging (Skelton, 1999). The government’s
approach to children in the criminal justice system is ambivalent. ‘Criminal
justice responses to young offenders continue to oscillate between the iron
fist and the velvet glove’ is the vivid description offered by Van der Spuy
et al (2004, 177). To illustrate this, the authors note that according to
Muntingh (2001, 6) the number of children under 18 years in prison rose
by 158.7% from January 1995 to July 2000, compared to only a 33.2%
increase in the 18–20 year-old bracket. Sentences of children are also
getting longer. Yet at the same time, diversion has also rapidly increased
during the same period.
THE LAW REFORM PROCESS
The extent to which the law and order approach has dislodged the original
intention of those involved in the development of new policy and legislation
for child offenders needs to be examined by going back to the end of 1996
when the official process of law-making began. In December 1996 the
Minister of Justice, Dullah Omar, requested the South African Law
Commission (now called the South African Law Reform Commission) to
include an investigation into juvenile justice in its programme. He
appointed individuals from civil society to be members of the juvenile jus-
tice project committee, whom he knew had been part of the non-govern-
ment lobby group calling for substantial reform to the juvenile justice
system. The juvenile justice project committee of the South African Law
Commission commenced its work in January 1997. The Law Commission
process of law reform is a very consultative one, and there was a high level
of participation by people working in the system, and even by children
themselves who were directly consulted on the Bill in order to obtain their
views and reflect on them in the final report.
The first step taken by the juvenile justice project committee was to pub-
lish an issue paper setting out the general direction that was to be taken. A
quote from the issue paper indicates the broad approach:
The South African Constitution and international instruments give an
outline of what should be included in a future South African juvenile jus-
tice system. In line with these principles the project committee is of the view
that the overall approach should aim to promote the well-being of the child,
and to deal with each child in a individualised way. A key aspect should be
diversion of cases in defined circumstances away from the criminal justice
system as early as possible … The involvement of family and community is
of vital importance, as is sensitivity to culture, tradition and empowerment
of victims. There should be an emphasis on young people being held
accountable for their actions. This should be done in a manner which gives
them an opportunity to turn away from criminal activity. (South African
Law Commission 1997, 5)
In the final report, which was published almost three years later in
2000, the Commission enumerates various factors that influenced the
law reform process, namely the recognition of children’s rights, the the-
ory of restorative justice, fiscal constraints, and public concern about
crime. In relation to the last-mentioned factor, the Commission had the
following to say:
Increasingly, however, during the three year investigation into Juvenile Justice by
the Commission, a further influence has been brought to bear, and that is the deep
concern in South African society about the high levels of crime. The public have
expressed the need for a system of justice which deals effectively with serious
70 Ann Skelton
violent criminals. This factor, too has shaped the process of law reform, and this
is evidenced by provisions in the draft Bill which allow for children charged with
serious, violent offences to be tried in a criminal court at a higher jurisdictional
level, to be imprisoned both during the awaiting trial period and as a sentence
option. It is also recommended that criminal records for serious and violent
offences should not be expunged. These features were not originally envisaged by
the Commission in the early stages of the investigation. Indeed, the Issue Paper
made the assumption that there would be no children in prison awaiting trial in
the proposed new system. The realisation has grown, as the investigation has
unfolded against a backdrop of rising public concern about crime, that in order
to give the majority of children (those charged with petty or non-violent offences)
a chance to make up for their mistakes without being labelled and treated as
criminals, this Bill would need to be very clear about the fact that society will be
protected from the relatively small number of children who commit serious, vio-
lent crimes. (South African Law Commission 2000, 9)
The Commission went on to say that although the draft Bill was pragmatic
and cognisant of the realities of the crime problem in the country, the ini-
tial commitment to children’s rights had not been sacrificed. This demon-
strated that law reformers had committed themselves to what they believed
could realistically be achieved in South Africa, with an eye on the need for
proper implementation.
The ‘pragmatism’ referred to by the Commission also became a recurring
theme in the developing process of child justice law reform as the Bill
moved into Parliamentary discussions. The juvenile justice project commit-
tee had, with a great deal of foresight, predicted that the Bill would not suc-
ceed if questions about implementation could not effectively be answered.
Consequently, the project committee made history at the South African Law
Reform Commission by being the first project committee to undertake a
costing of their proposals (Barberton and Stuart 1999). Following the hand-
over of the South African Law Commission Report on Juvenile Justice to
the Minister of Justice in August 2000, work on implementation planning
began. The Child Justice Project, a United Nations technical assistance proj-
ect of the government of South Africa, followed up on the costing work
already done by assisting government to produce a comprehensive budget
and implementation strategy for the Child Justice Bill. This is an inter-sec-
toral budget developed with the involvement of Treasury, and linked to the
government’s medium term expenditure framework. The Deputy Minister
of Justice and Constitutional Development has described it as a model
according to which all future Bills should be costed and planned for.
Sloth-Nielsen (2003), in her innovative article entitled ‘The Business of Child
Justice’, undertakes an in-depth analysis of the pragmatic approach which was
followed by the project committee and by government. She concedes that chil-
dren’s rights and restorative justice were important influencing factors in the
development of the Child Justice Bill, but she makes the following observation:
The article has described and explained how, in the child justice sphere, a grow-
ing realism about the transition South Africa is facing resulted in a measurable
shift in emphasis from human rights values (as philosophical constructs), and
from a stance based on the righteousness derived from the worthiness of the
cause. The increasing reliance for both law reformers and government’s technical
advisors on arguments and practices related to economic modelling and cost effi-
ciency have been illustrated here in support of the contention that, while provid-
ing a useful backdrop, children’s rights and restorative justice ideology have been
eclipsed by business-speak. This could give the impression that an efficiency
model, along corporatist lines, has supplanted the idealism of the endeavour.
(Sloth-Nielsen 2003, 192)
Sloth-Nielsen, a well-known South African children’s rights advocate and

academic, is no doubt being a little provocative in this statement. In the
closing remarks of her article she concludes that a children’s rights ideology
and pragmatic management philosophy are not competing discourses if we
want to ensure that we provide a system that can actually deliver rights to
children.
THE ROLE OF THE POLITICIANS
The Child Justice Bill was introduced into Parliament in November 2002 as
Bill 49 of 2002. South Africa has a participative style of law making, with
every Bill being deliberated on by Portfolio Committees made up of elected
representatives from various political parties. Public hearings were held on
the Bill in February 2003 and the deliberations on the Bill by the Portfolio
Committee on Justice and Constitutional Development (hereafter the port-
folio committee) followed in March 20031.
Although the process of finalising the Bill is not yet complete, there are a
number of observations that can be drawn from the deliberations that have
taken place thus far. A number of themes have emerged from the nature and
content of the debates.
The portfolio committee has continued with the emphasis on the prag-
matic that began earlier in the law-making process. The policy makers’ ear-
lier decisions to focus on practical issues such as budgeting and
implementation were based at least in part on the knowledge that the
Parliament has previously passed laws for which there was no clear imple-
mentation plan or budget, and they have subsequently seen that govern-
ment has struggled to implement such legislation2. In order to demonstrate
1 The minutes of these portfolio committee deliberations can be found at www.pmg.org.za.

2 The Maintenance Act 1998 and the Domestic Violence Act 1999 are examples of legisla-
tion that had laudable aims but have proved difficult to put into practice. Government had to
undertake costings and develop infrastructures after the Acts came into operation.
72 Ann Skelton
that they had learned from these previous experiences and that they were
well prepared for the Child Justice Bill, government handed to the portfo-
lio committee a comprehensive budget and implementation strategy to sup-
port the Bill. The preparatory work that had been supported by the UN
technical assistance project on Child Justice as described above proved
invaluable, as the chairperson of the portfolio committee noted that, had
government been unable to demonstrate their readiness to implement the
Bill, the Bill may not have been debated at all3. The chairperson of the port-
folio committee has also mentioned the possibility of a ‘phased in’ approach
to implementation, and it may be that the final version of the Bill will indi-
cate a ‘staggered’ implementation date, with the Bill perhaps being put into
operation on different dates in the various provinces according to their state
of readiness to implement certain provisions.
The focus on practicalities is further evidenced by the portfolio commit-
tee’s current position on the imprisonment of children below of the age of
14 years during the pre-trial and trial stage. The intention of the Bill as pre-
sented to Parliament was to place a complete ban on the imprisonment of
children below the age of 14 years. The portfolio committee has shown
reluctance to accept this complete ban, at least in part because they fear that
there will not be sufficient appropriate alternative secure facilities to accom-
modate such children. They therefore propose, in the case of pre-trial deten-
tion of children below the age of 14 years, that such children may be
imprisoned only if there are no alternative facilities within a reasonable dis-
tance from the court, and the portfolio committee further proposes that this
should be a temporary measure, to be reviewed by parliament within two
years of the Bill being passed ‘with a view to establishing whether the fac-
tual situation in respect of the availability of suitable placement facilities
warrants the continued application of those provisions and, if necessary,
every two years thereafter’ (redrafted Child Justice Bill, clause 24 (5)). The
idea behind this appears to be that parliament is using its oversight powers
to force government to deliver on the policy commitment that has been
made.
A second identifiable trend is the portfolio committee’s tendency to
emphasise regulation rather than discretion. The original drafters relied on
translating their vision through principles, objectives and substantive
clauses which left the details regarding the decisions to be made in each case
to the discretion of various role players in the system, within a broad frame-
work of norms and standards. This was considered to be the best way of
ensuring that each child would be dealt with in an individualised way, and
it was also in line with the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (1985) which state at rule 6 that in view
of the varying special needs of juveniles as well as the variety of measures
3 PMG minutes (see n 1), 28 February 2003.

available, appropriate scope for discretion should be allowed at all stages

of the proceedings. A trend that can be identified in the portfolio commit-
tee deliberations thus far is that the politicians do not want to leave such
decisions solely in the discretion of prosecutors or magistrates. They have
tended to seek more regulation and a limitation of the choices that can be
made. An example of this is the question of which cases may be diverted.
The Bill as it was placed before parliament did not set any limits on the dis-
cretion of the criminal justice role players. The decision whether or not to
divert a particular matter was to be taken in the context of a broad set of
principles and minimum standards, and based on the particular circum-
stances of the child and the facts of the case. The approach of the politicians
has been to the contrary. In an apparent need to obtain legal certainty and
to ensure that the public feels that their interests have been protected, the
portfolio committee has chosen to link diversion to schedules of offences.
The Bill as placed before parliament did contain schedules of offences, but
the main intention of the schedules as devised by the original drafters had
been to place limits on the use of imprisonment. Instead, the portfolio com-
mittee has built a tight regulatory framework based on the use of these
schedules. With regard to diversion, for example, the portfolio committee
has directed that the system should allow for petty offences as listed in
schedule 1 to be diverted informally by a prosecutor, whilst certain serious
offences listed in schedule 3 are to be rendered ‘not divertable’. The ration-
ale for this highly regulatory approach appears to be, at least in part, a ten-
dency towards a more ‘determinate’ approach to sentencing, and therefore
to diversion. This approach has already been shown by the Justice portfo-
lio committee in relation to both bail and minimum sentencing (Skelton
1999). Both of these areas of criminal procedure have now been stringently
linked to schedules of offences, and there is also evidence of a ‘grading’ of
offences. For example, rape is no longer just rape, it has been broken down
to indicate the level of violence used, whether the offender acted alone or as
part of a group, or the degree of vulnerability of the victim. Politicians
appear to think that this will make the public safer, or at least feel safer.
Leggett observes that ‘the Mbeki administration has made sure that those
given responsibility for criminal justice talk the tough line. Harsh legislation
on sentencing and bail has been passed, prompted in no small part by per-
ceived public opinion … Surprisingly, public surveys have indicated that the
South African public might not be so unreasonable as the politicians
believe’ (2003, 1).
The Child Justice Bill as introduced into Parliament did not allow for
minimum sentences for children. The second round of deliberations at the
portfolio committee resulted in the committee deciding to graft the current
law in relation to minimum sentences (which applies to 16 and 17 year
olds) onto the Bill. This despite the fact that such provisions are clearly at
odds with the overall policy approach of the Bill. Since the last round of
74 Ann Skelton
Parliamentary deliberations, however, the Supreme Court of Appeal has

handed down a judgment in the case of Brandt v the State [2005] 2 AII SA
I(SCA), which may shape the legislature’s final decision on the whether or
not to include minimum sentences in the Child Justice Bill. The case
involved a 17 year old boy who had been convicted of murder. The court a
quo had applied the minimum sentence of life imprisonment on the boy. His
appeal against this sentence was upheld on the basis that, in the opinion of
the Court, minimum sentences do not apply and should not automatically
apply to persons below the age of 18 years. A constitutional argument was
invoked, namely that the Constitution provides that children should not be
detained except as a last resort, and that a minimum sentence implies a first
resort of imprisonment. The Court held that the traditional aims of punish-
ment for child offenders have to be re-appraised in the light of the
Constitution and the United Nations Convention on the Rights of the
Child, the Riyadh Guidelines, the Beijing Rules and the African Charter on
the Rights and Welfare of the Child. Any sentencing court must have dis-
cretion when sentencing a child, in order to give effect to the requirements
of international law for individualisation and the need for proportionality
to be applied to the young offender, as well as the crime and circumstances
surrounding it.
The Bill as it was introduced into parliament had followed the doli inca-
pax approach, but provided that the minimum age of criminal capacity be
increased from 7 to 10, with this age group being presumed to lack crimi-
nal capacity until such capacity is proven beyond a reasonable doubt by the
State. Children of 14 years and older, but below the age of 18 years are pre-
sumed to have criminal capacity, but are still considered to be children. This
is in line with section 28 (3) of the South African Constitution. Generally,
the portfolio committee has accepted this approach. There is, however, a
worrying tendency shown by the committee to exclude 16 and 17 year olds
from some protections. The committee has excluded diversion on a charge
of rape for 16 and 17 year olds, and has decided that there shall be no auto-
matic right of appeal for 16 and 17 year olds, and—if the portfolio com-
mittee insists on pushing through minimum sentences, they will apply only
to 16 and 17 year olds. This is disappointing to the Child Rights sector, and
the original draft of the Bill published by the Law Commission did not treat
this category of children differently from 14 and 15 year olds. Part of the
reason for the approach of the portfolio committee on this issue seems to
be that the members of the committee, basing their views on what they
believe to be public opinion, are more comfortable to accept special protec-
tion for young children if they can show that they are protecting the public
from older children who commit serious offences. This approach is not
altogether a surprise, and although it is not the ideal, the committee has not
gone so far as to say that 16 and 17 year olds should be treated as adults,
as is the case in many foreign jurisdictions such as a number of states in the
USA which try children as young as 13 years of age as adults on certain seri-
ous charges (Stafford and Kyckelhahn 2002).
A further factor leading to the highly regulatory approach mentioned
above may be a lack of faith in functionaries in the criminal justice system,
such as the police, the prosecution and the judiciary. All of these sectors are
undergoing transformation, with efforts being made to increase the number
of black and women candidates at all levels of the criminal justice system.
There is a fear that inexperienced personnel will not use their discretion
wisely, thus the tendency to centralise decision making through the more
peremptory style of law making.
A third identifiable trend has been the portfolio committee’s tendency to
focus on the exceptional cases, and shape the law to cater for the extraor-
dinary. This is again contrary to the approach of the original drafters. The
South African Law Commission noted that the majority of children do not
commit serious, violent crimes for example, and thus several sections of the
Bill focus on the first 48 hours following the arrest of the child and the
attempts to divert such a child from trial in the courts.
Although the portfolio committee has not proposed changing the basic
structure of the Bill, there is a tendency for them to reframe certain sections
to deal with the exceptional case. Numerous hypothetical examples have
been raised by politicians who are members of the portfolio committee along
the lines of ‘what if an eleven year old child who has committed a heinous
crime is arrested in an area where there are no secure alternatives to prison
and the police station has only one vehicle which cannot be tied up all day
to transport the child to another town that has a secure care facility …’. The
approach inherent in the Bill that was published by the Law Commission
was that there should be a generally applicable scheme with limited powers
available to deal with the exceptional case. In order to help this approach in
practice the drafters built in rules, such as ‘every child must be assessed by a
probation officer within 48 hours of arrest’ and then have a proviso to that
rule allowing for departure if there are substantial reasons for such depar-
ture, which reasons should be recorded by the presiding officer. Instead, the
politicians appear to be haunted by the idea of passing the legislation and a
few years down the line being confronted with a case which presents an
enormous challenge, such as the case involving the killing of James Bulger in
the UK, a case which has been referred to by the politicians during the delib-
erations on the Child Justice Bill on numerous occasions.
The portfolio committee’s approach in this regard is not unique. Brunk
(2001) makes the fascinating observation that people tend to form their
thinking about punishment when pondering the most horrendous cases.
Thus pressures are created for a criminal justice system that is designed to
deal with the ‘worst case’. Brunk cautions that ‘legal responses appropriate
for the worst cases are not necessarily the best way to handle the vast
majority of the routine offences that come to the attention of the criminal
76 Ann Skelton
justice system. There is always a danger in making “worst case” scenarios

the standard for policy’ (Brunk 2001, 32).
Oddly enough, opposition politics have not played a very distinctive role
in the deliberations. By and large the parties represented on the portfolio
committee all appear to agree with the general approach of diverting as
many children as possible away from the system. All of them, regardless of
political affiliation, appear to be afraid of political embarrassment, hence
their ‘worst case’ scenario discussions. They want to pass a Bill that can be
said to take a long term approach of leading children away from crime, but
they do not want any difficult come-backs that might lead to fingers being
pointed at them for not being tough enough on crime. It is a difficult
balance for them to strike.
CONCLUSION
Transition creates opportunities. These must be seized with both hands, but
there is a need to be thorough as well. New democracies require a high level
of consultation. Doing all these things properly takes time, and as time
passes, politics normalise—it is soon back to ‘business as usual’. It is there-
fore necessary to have a pragmatic approach that goes beyond policy artic-
ulation. It is necessary to try to foresee how patterns of thinking may
change once the euphoria of the new-found freedom has waned.
Simpson et al (2001) point out that the word ‘transition’ does not ade-
quately describe the changes that South Africa was going through in the
early years of the new democracy. ‘Transition is not the same as regime
change,’ the authors remark, and in the early years of a new democracy
it is not certain whether the basic liberal-democratic features will be per-
manent.
A lesson that can be learned from the unfinished journey of juvenile jus-
tice reform in South Africa is that there needs to be an awareness that soci-
eties do not remain static and that as a new democracy emerges so popular
expectations change. The initial impetus that is brought about by a regime
change is characterised by the desire to create legitimate structures and sys-
tems that reflect the new order. Thus, when the new ANC-led Government
of National Unity came to power, bolstered by a rights-based constitution
and a children’s rights lobby, it demonstrated the political will to bring
about dramatic changes to the way that children were dealt with by the
criminal justice system. But it did not take long before the public were ask-
ing new and different questions about crime and justice.
One of the difficulties that needs to be faced in countries that undergo
regime change is that everything is in transition. There are probably not
enough personnel to run current or future systems properly and new peo-
ple are being appointed who have to be trained. Procedures, institutions
and infrastructure have to be built or strengthened as the process unfolds.

The proof of the policy pudding is in the implementation thereof. Van der
Spuy et al (2004) observe that the juvenile justice reform initiatives are very
ambitious and far-reaching innovations. The authors speculate that ‘trans-
formation fatigue’ may be setting in as the complexities of social reform
become apparent to government officials trying to implement them, and
they have doubts about whether the criminal justice system can cope with
yet another restructuring and the new infrastructure and staffing re-organ-
isation that will be necessary to make things work.
Looking back with the benefit of hindsight, it was probably inevitable
that the pendulum would swing back around ‘rights’ debates in relation to
criminal justice matters, as concerns about high levels of crime and the need
to prioritise community safety came to the fore. In South Africa the sense
of new-found freedom amongst the public was soon eclipsed by a sense of
fear—a fear of crime, a fear that young people were out of control. And
thus politicians began to feel some pressure from the electorate to articulate
the fears of voters and to show that they are tough on crime. As an anti-
dote, it has been necessary to keep the history of South Africa’s children to
the fore, to stress that those who will benefit most from the new provisions
are the poorest and most marginalized children, such as street children. This
has helped to keep many of the provisions intact. Advocates for child jus-
tice have had to develop arguments about balancing the need for managing
children in a fair and just system that takes account of their age, with the
need to ensure the safety and protection of the community.
The sector has demonstrated resilience and the Child Justice Bill drafting
and implementation planning process was certainly characterised by a for-
ward-looking, pragmatic approach. Van Zyl Smit and Van der Spuy sum up
their view of the situation as follows:
Pragmatism among the moral entrepreneurs may not, however, be enough to keep
the communitarian ideas afloat. As elsewhere in the criminal justice system, the
gap between theory and practice, between social policy and bureaucratic imple-
mentation may loom large. This may be the case despite the fact that the bill was
placed before Parliament together with an implementation strategy and detailed
costing. Notwithstanding such initiatives, the political will to sustain this model
of child justice may prove to be fickle in the face of contradictory pressures to
‘tough justice’ elsewhere in the criminal justice system. (Van Zyl Smit and Van der
Spuy 2004, 201)
Only time will tell whether, and to what extent, the final Child Justice leg-
islation will reflect the aspirations of the post-apartheid child rights and
restorative justice reform movements. However, the approach of the judici-
ary as evidenced in the Brandt decision is encouraging, and perhaps the
judgment will nudge the legislature away from minimum sentencing for 16
and 17 year olds. It may well have broader positive effects on the sentenc-
ing provisions in the Bill. The judgment illustrates the importance that the
78 Ann Skelton
courts place on the international instruments relevant to juvenile justice as

well as on South Africa’s constitution—one of the few constitutions in the
world that contains rights protections specifically applicable to children.
Members of the legislature will have to keep in mind that the child justice
legislation they enact needs to pass muster with the courts, within a frame-
work of international and constitutional law.
REFERENCES
Barberton, C. and Stuart, J. (1999) Costing the Implementation of the

Child Justice Bill, Research Monograph 14. (Cape Town, Applied
Fiscal Research Centre, University of Cape Town).
Brunk, C. (2001) ‘Restorative Justice and the Philosophical Theories of
Criminal Punishment’. In M Hadley (ed.), The Spiritual Roots of
Restorative Justice. (Albany, New York, State University Press).
Camerer, L. (1997) ‘Crime, Violence and Punishment—Putting Victims on
the Agenda’. African Security Review 6, 46 at 47.
Leggett, T. (2003) ‘Are South African Victims Interested? Insight from an
Inner City Victim Poll’. (Pretoria, Institute for Security Studies).
Mandela, N. (1994) Inaugural Speech to Parliament, available at www.polity.
org.za/govdocs.
Muntingh, L. (2001) ‘Sentencing and Diversion Statistics, 1999–2000’.
Article 40, 3(3), 8.
Simpson, G. (1997) ‘Youth Crime in South Africa’. Conference paper pre-
sented at a conference entitled Appropriate Justice for Young People:
Exploring Alternatives to Retribution, hosted in Cape Town by the
Institute of Criminology (UCT) and NICRO, 5 and 6 February 1997.
Simpson, G., Hamber, B. and Stott, N. (2001) ‘Future Challenges to Policy-
Making in Countries in Transition’. Paper delivered at a conference
entitled Comparative Experiences of Policy Making and
Implementation in Countries in Transition, 6–7 February 2001,
Derry/Londonderry, Northern Ireland. Available at www.csvr.org.za/
papers.
Skelton, A. (1999) ‘Juvenile Justice Reform: children’s rights and responsi-
bilities versus crime control’. In C.J. Davel (ed.), Children’s Rights in a
Transitional Society. (Pretoria, Protea Book House).
Skelton, A. (2002) ‘The Child Justice Bill: Implementing the United Nations
Convention through the process of law-making’. Unpublished paper
presented at the ISPCAN Conference in Implementing the UN
Convention on the Rights of the Child: Myth or Reality, Durban,
September 2000.
Sloth-Nielsen, J. (2001) The Role of International Law in Juvenile Justice in
South Africa, LLD thesis. (Cape Town, University of the Western Cape).
Sloth-Nielsen, J. (2003) ‘The Business of Child Justice’. Acta Juridica

175–93.
South African Law Commission (1997) Issue Paper on Juvenile Justice,
Project 106, Pretoria.
South African Law Commission (2000) Report on Juvenile Justice, Project
106, Pretoria, available at www.law.wits.ac.za/salc/salc.html.
Stafford, M.C. and Kyckelhahn, T.L. (2002) ‘Delinquency and Juvenile
Justice in the United States’. In J.A. Winterdyk (ed.), Juvenile Justice
Systems: International Perspectives. 2nd edn (Toronto, Canadian
Scholars Press).
Swart, S. ‘The Appeal of Restorative Justice to Policy Makers’. Paper pre-
sented at the United Nations Crime Congress: Ancilliary Meeting,
Vienna, Austria, 2000.
United Nations Standard Minimum Rules for the Adminstration of Juvenile
Justice (1985).
Van der Spuy, E., Scharf, W. and Lever, J. (2004) ‘The Politics of Youth
Crime and Justice in South Africa’. In C. Sumner (ed.), The Blackwell
Companion to Criminology (Oxford, Blackwell).
Van Zyl Smit, D. and Van der Spuy, E. (2004) ‘Importing Criminological
Ideas in a New Democracy: Recent South African Experiences’. In T.
Newburn and R. Sparks (eds.), Criminal Justice and Political Cultures:
National and International Dimensions of Crime Control. (Collumpton,
Willan Publishing).
Van Zyl Smit, D. (1999) ‘Criminological Ideas and South African Transition’.
BJC 39(2), 198–215.
Wilson, F. and Ramphele, M. (1987) ‘Children in South Africa’. In Children
on the Frontline: the impact of apartheid, destablization and warfare
on children in southern and South Africa. (New York, UNICEF).
Section Two
Juvenile Justice Systems

6
An Historical Overview of the
American Juvenile Justice System
ERIC L. JENSEN
T
HE OBJECTIVE OF this chapter is to provide a broad overview of the
origins of the juvenile justice system in the United States and subse-
quent major changes in the system. This historical overview provides
the groundwork for the chapters by Armstrong and Feld on contemporary
issues in American juvenile justice. In addition, since the American juvenile
court has been a major influence on the systems in a number of Western and
Eastern European nations, this chapter provides an historical background
for those systems which are described in this book.1
THE HISTORICAL ORIGINS: THE SOCIAL CONSTRUCTION

OF CHILDHOOD AND THE SOCIAL WELFARE MODEL
The American model for the juvenile court, and more broadly the juvenile jus-
tice system, was created in Chicago in 1899. Just as the discipline of sociology
emerged out of a period of massive economic and related social changes in
Europe, the juvenile justice system was created during the transition from an
agricultural economy to an industrial economy, and from a rural to an increas-
ingly urban society in the U.S.A. (see Platt 1977). In a sense, these events may
parallel the economic and social transitions taking place in the developing
nations today. Of course, additional influences on the legal institutions in
developing nations today are the forces of economic and cultural globalization.
A number of societal forces influenced this change in the American legal
institution. These underlying societal forces cannot be discussed thoroughly
in this chapter but they are detailed in Platt’s The Child Savers (1977) and
Feld’s Bad Kids (1999).
1 Cunneen and White (1995) show that separate juvenile courts were also appearing in
Australia and England in the late 1800s and early 1900s (see also Farrington 1984). In fact,
the similarities underlying the development of separate courts for juveniles in the U.K. and the
U.S.A. are striking.
84 Eric L Jensen
Two cultural changes in the U.S.A. that were central to the creation of the
juvenile justice system were the social construction of childhood as a dis-
tinct stage of life, and the later social construction of adolescence. The
social construction of childhood began hundreds of years earlier in Europe
(Aries 1962). By the late 1800s it had become part of American culture.
Children were no longer seen as simply little adults, but as immature and in
need of ‘proper’ socialization and nurturing to develop into responsible
adults.
The social construction of adolescence was beginning in the late 1800s.
As the economy changed from agricultural to industrial, the traditional pat-
tern of becoming independent through employment and marriage in one’s
teenage years was no longer the norm. Persons in their teenage years were
now expected to continue to be economically dependent on their parents,
to attend school, and in essence prolong their childhood.
The Progressive Movement of the late 1800s and early 1900s was a
crucial force in creating policies directed at young people. The
Progressives were attempting to improve the life circumstances of
the working class and poor in this increasingly urban, industrial
America, and at the same time impose their rural, Protestant values on
the lives of the waves of immigrants coming into the United States at the
time. One element of the Progressive Movement has been termed the
‘child savers’.
Three of the youth-centered policies advocated by the Progressive
Movement were: (1) child labor laws, (2) compulsory school attendance,
and (3) the juvenile court (see Feld 1999). These were major changes in
social policy toward youth in the U.S.A.
Child labor laws
Laws were passed that limited the number of hours children could work
and set minimum ages at which children could work, among other things.
These laws were, on the surface, intended to protect children from the harsh
conditions of the industrial workplace of the time, but at the same time to
open up more jobs for adults.
Compulsory school attendance
Youth were required to attend school until they reached a specified age; for
example, 16 years. These laws were intended to require that youth learn the
basic skills necessary to become a productive part of the adult workforce
and ‘good’ citizens. Of course, these laws also took youth out of the work-
force and opened up industrial jobs for adults.
An Historical Overview of the American Juvenile Justice System 85
The origins of the juvenile court
One small, localized part of the Progressive Movement that became a major
force in the creation of the juvenile justice system was the Chicago Women’s
Club. Out of the industrial economy emerged a new upper-middle class in
the U.S.A. The cultural ethos of this newly affluent stratum of urban soci-
ety expected women to stay in the home and to be responsible for the
‘proper’ upbringing of their children. Given their affluence and their related
ability to hire others to perform the household labors for their families,
these women had the free time, the motivation, and the resources to be an
active part of the Progressive Movement in Chicago.
One of their priorities was to improve conditions in local jails. To famil-
iarize themselves with the conditions in jails, they visited the Cook County
jail in Chicago. Upon visiting the jail, they were appalled not only at the
physical conditions there, but also that children were being held with
adults. In conjunction with several other progressive-minded groups, they
worked to create the first juvenile court in Chicago in 1899.
The juvenile court model was based on the ideology of protecting and guid-
ing children to mature into responsible, law-abiding adults. The espoused
purposes of the juvenile court were to ‘help’ or rehabilitate, not punish. Since
its formal child welfare function was not to be punitive, the originators of the
juvenile court did not believe that it was necessary to provide due process
protections to youth in the court. These rights of due process are provided to
adults in the American criminal courts, at least in theory if not always in prac-
tice. In line with this lack of due process protections, the procedures of the
court were informal, not formal as in the adult criminal court system.
The juvenile court in the U.S.A. was based on the legal doctrine of parens
patriae. This doctrine was originally used in 1500s in English chancery
courts to protect the Crown’s interests in the property of children whose
parents had died and left an estate, that is, the state would take over man-
aging the property of the child until they were of majority age. The state
was ‘parent of the country’, and thus acted as parent for the estate of the
child (see Bernard 1992, Feld 1999).
The parens patriae doctrine emerged in the U.S.A. in the case of Mary
Ann Crouse in 1838. In that case, the Pennsylvania Supreme Court ruled
that the child Mary Ann could be removed from the custody of her father
and placed in the Philadelphia House of Refuge because she was a poor
child and in danger of growing up to be a pauper; she had committed no
crime. The court asserted the parens patriae doctrine when affirming the
decision of a lower court to remove custody from the father and place her
in an institution (see Bernard 1992, Feld 1999).
Another change in the treatment of juveniles under the law that came
with the juvenile court was the creation of ‘status offenses’. These are
behaviors that are illegal for youth only. Examples of these are truancy
86 Eric L Jensen
from school, running away from home, and being beyond the control of
parents. The child savers believed that these behaviors were early signs, or
predictors, that a youth would become involved in crime. So the rationale
was that the juvenile court should intervene early in the lives of ‘wayward’
children to prevent the development of criminal behavior. This belief led to
an entire new category of behaviors becoming illegal for youth.
The American juvenile court eventually evolved into an entire juvenile jus-
tice system. This new juvenile justice system included age-specific courts, pro-
bation and parole (or aftercare) services, short-term detention facilities, and
long-term correctional facilities. The states were free to set the age limits for
the juvenile court. Today 39 of the 50 states have a maximum age of 17 years
(i.e., under 18 years of age). Eight states have upper age juvenile court juris-
diction limits of 16 years and three states have upper age limits of 15 years.
REFORMS IN THE SYSTEM: DUE PROCESS, DIVERSION,

DEINSTITUTIONALIZATION AND DECRIMINALIZATION
(THE FOUR Ds)
Following these beginnings, the juvenile justice system carried out its duties
relatively unchanged until the 1960s. At this time, societal and legal changes
in the U.S.A. led to changes in the juvenile justice system. Specifically, dur-
ing the 1960s it was discovered by civil liberties attorneys and criminologists
that many youth were being treated punitively in the juvenile court but they
did not have the due process protections provided to adults in the criminal
justice system. This realization and subsequent U.S. Supreme Court deci-
sions led to major changes in the juvenile justice system. The initial phase of
these legal changes has been called the due process revolution.
The most influential and far-reaching of these decisions was the Gault
case in 1967. In this decision, the U.S. Supreme Court held 8 to 1 that indi-
viduals in juvenile court hearings had the constitutional right to certain due
process protections when the youth was in jeopardy of being incarcerated.
These were: the right to counsel, the right to a notice of the charges, the
right to confront and cross-examine witnesses against them, and the privi-
lege against self-incrimination.
The next major juvenile court decision by the U.S. Supreme Court came
in the Winship case (1970). In this decision, the Supreme Court ruled that
juveniles are entitled to the highest standard of proof ‘beyond a reasonable
doubt’ during the adjudication proceedings (known as the trial in the adult
criminal court). The Court ruled that the ‘preponderance of evidence’ is not
a sufficient basis for a decision of delinquency when youths are charged
with acts that would be criminal if committed by adults.
These two Supreme Court decisions began a due process revolution in the
American juvenile court and, at the same time, served as the beginnings of
a more adversarial system. The social welfare model of justice for juveniles
was ending and a more legalistic orientation began to emerge.
In addition to these important Supreme Court decisions, the national
political agenda in the U.S.A. changed in the late 1960s. President Lyndon
Johnson appointed a series of task forces to examine the rise in ‘street’
crime at the time. The juvenile delinquency and juvenile justice task force
called for four major policy directions: due process for juveniles in the juve-
nile court, diversion from handling in the juvenile justice system for minor
offenses, ‘decriminalization’ of status offenses, and deinstitutionalization
(i.e. a reduction in the use of incarceration for juveniles, particularly for sta-
tus offenses and less serious violations of criminal law) (President’s
Commission on Law Enforcement and Administration of Justice 1967).
These policy directions have been referred to as the four Ds. These changes
moved across the nation, although not always with the results that were
anticipated by their advocates (i.e. an unanticipated consequence of diver-
sion programs was often an increase in youth being touched by state con-
trols or ‘net widening’) (Polk 1984, see also Feld 1999, 173–85).
In 1974 the federal Juvenile Justice and Delinquency Prevention Act cod-
ified many of the changes recommended in the President’s Commission
report into law. This Act required states to remove status offenders from
secure detention and correctional facilities, to remove juveniles from jails
where they were held with adults, and to encourage the development of
community-based alternatives to detention and correctional facilities,
among a number of other progressive changes. This Act allowed the federal
government to withhold juvenile justice funds from states if they did not
comply with the required policies.
Research on the deinstitutionalization of status offenders found that this
new policy was effective. The number of status offenders held in secure
short-term detention and in long-term correctional institutions decreased
substantially between 1974 and 1982 (Schneider 1984, Krisberg et al 1986,
see also Feld 1999, 175–9). An unanticipated consequence of this change
was that many more status offenders were subsequently held in private
mental health and substance abuse treatment facilities, in some instances
with levels of security comparable to those in public correctional institu-
tions (Feld 1999, 179–85). This change in the handling of status offenders
is not in line with the objectives of the federal deinstitutionalization legisla-
tion. Feld (1999) has referred to this new development as the ‘hidden sys-
tem’ of social control for youths.
This reform movement of the 1970s appears to have laid the framework
for portions of the juvenile justice sections of the Convention on the Rights
of the Child (1989). For example, Article 37.b states in part, ‘The arrest,
detention, or imprisonment of a child shall be in conformity with the law
and shall be used only as a measure of last resort and for the shortest appro-
priate period of time’ (emphasis added). The latter part of this section is
88 Eric L Jensen
referred to as the ‘least restrictive alternative’ among professionals in the

U.S. This notion is grounded in the diversion and deinstitutionalization
portions of the four Ds. The least restrictive alternative method of handling
a youth is also covered in Article 40.3.d and 4. In Article 37.c it is stated
that ‘... every child deprived of liberty shall be separated from adults unless
it is considered in the child’s best interest not to do so ...’. While this notion
was one of the founding tenets of the origins of the juvenile court, as noted
above it was only realized more fully in the U.S. with the passage and
enforcement of the Juvenile Justice and Delinquency Prevention Act of
1974. The removal of children from adult remand facilities and prisons is
currently a major issue being pursued by various non-governmental organ-
izations and legal practitioners in the developing nations included in this
book (see chapters in the present volume by Kaunda and Silwal).
In addition, several of the due process rights delineated in Article 40.2.b.i–iv
derive from the U.S. Supreme Court decisions reviewed in this chapter. For
example, Article 40.2.ii: ‘To be informed promptly and directly of the charges
against him or her, and if appropriate, through his or her parents or legal
guardians, and to have legal or other appropriate assistance in the preparation
and presentation of his or her defense’; the portion of Article 40.2.iii referring
to the right to legal counsel; and Article 40.2.iv ‘not to be compelled to give
testimony or to confess guilt; to examine or have examined adverse witnesses’
were first required in the U.S.A. by the Gault decision (1967).2
In the next U.S. Supreme Court decision on due process rights for juve-
niles, McKeiver v Pennsylvania (1971), the Court began to retract its sup-
port for additional due process rights in the juvenile court. The Court ruled
in this case that there was not a constitutional requirement for juveniles to
have the right to a jury trial. The Court noted in this decision that the juve-
nile court had become somewhat similar to the adult criminal court with
the rights guaranteed in Gault and Winship. The Justices did not want this
trend to expand.
Breed v Jones (1975) was the last of the major cases in the due process
revolution. In this case the Supreme Court held that a juvenile could not be
tried in an adult court after being adjudicated in the juvenile court for the
same offense since this was forbidden by the double jeopardy protection.
CHANGE CONTINUES: THE CRIME CONTROL MODEL
Another crucial political change that influenced juvenile justice policy in the
United States was the presidency of Ronald Reagan. Almost immediately
2 The United States of America has not ratified the Convention on the Rights of the Child.
The primary reasons behind this failure to ratify the CRC are that some states allow capital
punishment for juveniles, and that some rights accorded to children under the CRC are not
recognized as rights in the United States, such as the fundamental right to an education (see
Walker et al 1999, 36–8). The U.S. Supreme Court recently ruled in Roper v Simmons (2005)
that a person cannot be executed for a crime they committed when under the age of 18 years.
upon entering office in 1980, Reagan began to alter the direction of federal
initiatives for juvenile justice policy from prevention programs and related
research to an emphasis on serious, violent youth offenders and incarcera-
tion. Specifically, the Reagan administration emphasized the following poli-
cies: (1) preventive detention—holding juveniles believed to be a risk to
public safety in secure holds before appearing in court; (2) transfer of juve-
niles charged with specified crimes to an adult criminal court; (3) mandatory
and determinate sentencing for violent juveniles; (4) increased confinement
of juveniles; and (5) enforcement of the death penalty for juveniles convicted
of committing aggravated murder. This direction in juvenile justice policy
has been termed the ‘crime control model’. The crime control model contin-
ues to be the dominant presence in U.S. juvenile justice policy today.
Alfred S. Regnery, director of the federal agency responsible for juvenile
justice policy and funding under President Reagan, explained their objec-
tives as follows:
In essence, we have changed the outlook of the office from emphasizing
the lesser offenses and the non-offender to one emphasizing the serious
juvenile offender. We have placed less emphasis on juvenile crime as a social
problem and more emphasis on crime as a justice problem. In essence, the
office now reflects the general philosophy of President Reagan and his
administration rather than that of Jimmy Carter and his administration.
(Regnery 1986, 40)
Interestingly, there was not a major increase in youth violent crime at the
time. Although there was a small increase in the homicide rate for 14–17
year olds in 1980 (www.ojp.usdoj.gov/bjs/homicide/teens.htm), the rate of
serious violent crime for juveniles—homicide, aggravated assault, forcible
rape and robbery combined—declined between 1975 and 1985 (see Empey
et al 1999, 63). Furthermore, the proportion of persons under 18 years of
age who were arrested for serious violent crime steadily decreased from
1975 through 1982, reaching its low point in 1987. Juveniles accounted for
an average of 11.5% of arrests for serious violent crimes in the years 1978
to 1982 and this declined to an average of 9.3% in the years 1981 to 1989
(Maguire and Pastore 2001, 389).
The anti-youth sentiment underlying this Reagan administration policy
shift has been interpreted by many social scientists and others as a socio-
political construction to capture public attention and galvanize a voting
block for the Republican party that began under the Nixon administration
(see Baum 1996, Jensen and Gerber 1998, Beckett and Sasson 2004).
Although this ‘get tough’ trend began with conservative Republicans, it has
subsequently spread throughout the American political spectrum (see the
chapter by Jepsen in this volume for a similar experience in Denmark and
Ann Skelton on South Africa).3
3 See White (1990) regarding a moral panic about youth as a dangerous class in Australia.
90 Eric L Jensen
Later, homicide rates of youth exploded. Between 1987 and 1993 the
juvenile arrest rate for murder increased substantially, as did the murder
arrest rate for 18 to 25 year olds. This escalation in lethal violence was
widely covered by the media and served to support both in public opinion
and politically the ‘get tough’ policies that the Reagan administration had
been advocating for several years.
One of the crime control model changes that swept across the nation was
the increase in statutory or legislative transfer (or waiver) of juveniles to the
adult criminal court. Under this policy juveniles are automatically sent to
the adult criminal court for trial in certain instances. These statutes usually
specify an age range (e.g. 15–17 years) and specific offenses (e.g. first-
degree murder, forcible rape, robbery) for which a juvenile is automatically
transferred to an adult court for trial and sentencing. These statutes were
created because conservative legislators believed that juvenile court judges
were ‘too soft’ on juveniles accused of serious offenses. Of course, legisla-
tive transfer to the criminal court allows for or requires more severe pun-
ishments since juveniles are subject to sanctions in the adult criminal justice
system.
The research shows that legislative transfer of juveniles to the adult crim-
inal court has been ineffective in deterring serious violent crime among
youth. The first two studies of legislative transfer of juveniles to the adult
criminal court in the urban high crime rate state of New York (Singer and
McDowell 1988) and the rural low crime state of Idaho (Jensen and
Metsger 1994) both concluded that this policy was ineffective. Jensen
and Metsger (1994, 102) stated, ‘the movement away from the traditional
juvenile court model to the more punitive criminal justice system did not
deter youth from committing violent crimes’.
The most recent research on this topic follows two matched groups of
youth prosecuted for serious crimes for seven years after their appearances
in the adult criminal court or juvenile court. This research not only con-
firms the findings of the earlier studies, but also concludes that serious ado-
lescent offenders prosecuted in the adult criminal court are more likely to
be rearrested for violent, property and weapons offenses than are those
prosecuted in the juvenile court. In addition, ‘they are rearrested for these
crimes more quickly and more often, and they are more likely to be
returned to incarceration’ (Fagan et al 2003, i). The authors go on to state:
Law and policy facilitating ‘wholesale waiver’ or categorical exclusion of
certain groups of adolescents based solely on offense and age, are ineffec-
tive at ... specific deterrence of serious crime, despite political rhetoric
insisting the opposite. Non-individualized transfer to criminal court may
increase the risk of serious crimes by adolescents and young adults, by heav-
ily mortgaging their possibilities to deflect their behavioral trajectory and
resume a path of pro-social human development (Fagan et al 2003, ii; see
also Sampson and Laub 1993).
The crime control era was solidified further with the decision in Schall v
Martin (1984). In Schall the U.S. Supreme Court ruled that the preventive
detention of juveniles is legal under the U.S. Constitution. That is, if the
judge believes the youth to be at risk of committing a serious crime, he/she
can be incarcerated until the adjudicatory hearing. There is no provision for
bail for juveniles in the U.S.A. Procedures in the adult criminal system are
very different. Bail is allowed for nearly all adult criminal cases. As Feld
(1999, 138) has noted, ‘juvenile pretrial detention practices contrast
sharply with the limited circumstances under which criminal courts preven-
tively detain adult defendants’.
As we have seen with the legislative waiver policy, the research reveals a
major flaw in this preventive detention policy. In a remarkable ‘natural exper-
iment’ study of the effects of preventive detention, Fagan and Guggenheim
found that judges predicted future violent crime incorrectly in four out of five
cases. ‘The high rate of false positives demonstrates that the ability to predict
future crimes—and especially violent crimes—is so poor that such predictions
will be wrong in the majority of cases’ (Fagan and Guggenheim 1996, 447).
In summary, with the U.S. Supreme Court decisions of the due process
revolution, the American juvenile court has experienced the addition of sev-
eral due process protections for juveniles in juvenile court, but these con-
tinue to be fewer than for adults accused of a crime. In the McKeiver and
Schall decisions the scope of the due process revolution was initially stalled
and later reversed. In a landmark study of the juvenile justice system in the
U.S., Feld (1999, 162) concluded:
The United States Supreme Court’s jurisprudence of youth possesses two
competing cultural constructions and legal conceptions of young people.
On the one hand, it views them as innocent, vulnerable, fragile and depend-
ent children. When the Court characterizes youths as children, it invokes
‘paternalistic’ rationales to enable their parents and the state to protect and
nurture them and subordinates their autonomy to the longer-term interests
of the adults they will become. On the other hand, the Court’s jurispru-
dence sometimes characterizes young people as autonomous and responsi-
ble adult-like people.
The Court adopts this ‘liberationist’ posture when young people engage
in adult-like activities, such as frightening criminal behavior, and treats
them as the formal and legal equals of their elders. ... [A]s a result ... young
offenders continue to receive the ‘worst of both worlds’.
THE OFFICE OF JUVENILE JUSTICE AND DELINQUENCY

PREVENTION
The Office of Juvenile Justice and Delinquency Prevention (OJJDP) is the

federal agency with the responsibility for recommending juvenile justice
policy, providing funding for juvenile justice programming, and compiling
92 Eric L Jensen
and reporting statistical data on the juvenile justice system in the U.S.
Although OJJDP’s primary missions have changed to meet the philosophi-
cal positions of each federal administration since its inception, it continues
to furnish valuable information and services to practitioners and
researchers today, despite cut-backs by the George W. Bush administration.
One example is the OJJDP Model Programs Guide
(http://www.dsgonline.com/Model_Programs_Guide/Web.mpg_index_flash
.htm). This easily accessible website contains descriptions of model pro-
grams throughout the continuum of care, from prevention through re-entry
into society following residential care (see the Intensive Aftercare Model
chapter by Armstrong in this volume).4
OJJDP also sponsors numerous training sessions and workshops on juve-
nile justice practices. A major event of this type was the Justice for Children
national conference held in December 2000 in Washington, D.C. Justice for
Children was attended by hundreds of practitioners and researchers from
across the country. Numerous workshops were held on cutting-edge juve-
nile justice practices (e.g. the Intensive Aftercare Model and the Social
Development Model).
As part of its mission, OJJDP produces a number of statistical reports on
juvenile crime, juvenile victimization, and juveniles in the justice system
(http://ojjdp.ncjrs.org/; then go to ‘statistics’). The information contained in
these reports is widely used by practitioners and researchers alike.
THE ROLES OF EXPERTS AND FOUNDATIONS
Although the formal role of neo-conservative governmental agendas has

been deleterious to juvenile justice policy in the U.S.A. in the opinions of
many scholars specializing in this field (see Fagan et al 2003, Howell 2003,
Krisberg 2003, Fagan and Guggenheim 1996, Laub et al 1995), experts
based at universities or research institutes, and child welfare foundations
have been at the forefront of progress in programs to aid troubled youth,
especially since the late 1970s (see Tables 6.1 and 6.2). These efforts are a
continuation of the policies and programs that emerged during the four Ds
movement. Three examples of theses are Multisystemic Therapy (www.mst-
services.com), the Social Development Research Group (http://depts.wash-
ington.edu/sdrg/index.html), and the Annie E. Casey Foundation
(www.aecf.org).5
4 Unfortunately, thorough explanations of the research support necessary to identify a pro-
gram as a model for other jurisdictions is lacking in many cases.

5 Other programs and organizations of note are Functional Family Therapy
(www.fftinc.com), the Oregon Social Learning Center (www.oslc.org), and the Center for
Restorative Justice and Peacemaking, School of Social Work, University of Minnesota, St.
Paul, Minnesota, U.S.A. (http://ssw.che.unm.edu/rip).
Table 6.1: Positive Outcomes of the American Juvenile Justice Experience

Increased due process rights for juveniles
Least restrictive alternatives
Deinstitutionalization
Removal of juveniles from adult jails
Independent research and programming efforts by experts and foundations
The ‘decriminalization’ of status offenses
Table 6.2: Negative Outcomes of the American Juvenile Justice Experience

The creation of status offenses
The increased use of incarceration
The expanded use of preventive detention
The increased use of legislative transfer of juveniles to the adult criminal court
The failure to ratify the Convention on the Rights of the Child
Widening the net of the juvenile justice system in response to efforts at diversion
Less than full rights of due process for juveniles
The multisystemic therapy program and the Social Development

Research Group have developed theory-based methods of treating youth
and empirically evaluated their effectiveness. Multisystemic therapy (MST)
is an intensive, short-term, in-community family treatment that addresses
the known determinants of serious antisocial behavior in adolescents and
their families. These determinants may include individual psychological
problems of the youth, family problems, peer relations, and school prob-
lems. The treatment approaches include cognitive behavior therapy and
family therapies. MST has been thoroughly researched and found to be
very effective in reducing delinquent behavior (see Aos et al 2001,
Henggeler et al 1992).
The Seattle Social Development Project (SSDP) was created as a delin-
quency prevention program by the Social Development Research Group.
SSDP is a three-part intervention for teachers, parents and students in the
first six years of schooling (i.e. beginning at about 6 years of age). The pri-
mary intervention tool is training teachers to manage classrooms to pro-
mote bonding to school (see Catalano and Hawkins 1996; see also Hirschi
1969). Training to promote bonding to school and family is also offered to
parents. This program has been thoroughly researched and found to be
effective in reducing several law violating behaviors among the youth after
they grow into the teenage years (see Aos et al 2001, Hawkins et al 1999).
94 Eric L Jensen
The Annie E. Casey Foundation is supporting a program to reduce racial

disparities in juvenile detention (i.e. short-term incarceration). Minority
youth represent two-thirds of detained juveniles in the U.S.A., but comprise
only about one-third of the total youth population. As part of its Juvenile
Detention Alternatives Initiative, the Casey Foundation has disseminated
information on effective strategies to curb the disproportionate numbers of
minority youth who are incarcerated (www.aecf.org/initiatives/jdai/).
These successful programs to help youth in trouble with the law have
been adopted in various jurisdictions throughout the nation. Indeed, the
Social Development Research Group currently has programs operating in
several nations including the U.K. The foresight, dedication and devotion to
methodological rigor in testing the effectiveness of these programs has led
to advances in treatment of both youth at-risk of involvement in delin-
quency and those who are experiencing serious problems in their lives.6
CONCLUSION
Juvenile justice policy in the U.S.A. has experienced a number of major

shifts in emphasis and practice since its creation. To understand these
changes one must examine the underlying cultural traditions of the society,
changing values which are rooted in the shifting social and economic
dynamics of the society, and more recently the social constructions of youth
and youth crime created by political claims-makers and solidified in public
perceptions by the media.
Based on the American experience, it is prudent to advise nations in the
midst of developing and implementing juvenile justice systems to take a
path based on empirically supported models of human development,
research on the causes of delinquency and the associated theories, best prac-
tices as established by research, and human rights principles (see Sampson
and Laub 1993, Catalano and Hawkins 1996, Laub et al 1995, Aos et al
2001, Welch et al 2001; see also Abramson’s chapter in this volume). Such
efforts have been exemplified by experts and foundations such as those
noted in this chapter.
However, based on the material contained in this book, we see that
research-based best practices give way to ideologically driven policies in
many instances. A path comprised of ideology, political self-interest, and
swings in public opinion—which are often stimulated by political and
moral claims-makers—is not only ineffective in solving problems of the
social development of youth and their related law violating behaviors, but
has also proven to be subject to problems of inequality under law, or the
‘worst of both worlds’ (see Feld’s chapter in this volume and Feld 1999).
6 See also relevant advances in developmental psychology discussed by Feld in his chapter
in this volume.
REFERENCES
Aos, S., Phipps, P., Barnoski, R. and Lieb, R. (2001) The Comparative
Costs and Benefits of Programs to Reduce Crime. Version 4.0.
(Olympia, Washington: Washington State Institute for Public Policy).
Aries, P. (1962) Centuries of Childhood: A Social History of Family Life.
(New York, Knopf).
Baum, D. (1996) Smoke and Mirrors: The War on Drugs and the Politics
of Failure. (Boston, Little, Brown).
Beckett, K. and Sasson, T. (2004) The Politics of Injustice: Crime and
Punishment in America. 2nd edn. (Thousand Oaks, California, Sage
Publications).
Bernard, T.J. (1992) The Cycle of Juvenile Justice. (New York, Oxford
University Press).
Catalano, R.F. and Hawkins, J.D. (1996) ‘The Social Development Model’.
In J.D. Hawkins (ed.), Delinquency and Crime: Current Theories.
(New York, Cambridge University Press).
Cunneen, C. and White, R. (1995) Juvenile Justice: An Australian
Perspective. (Oxford, Oxford University Press).
Empey. L.T., Stafford, M.C., and Hay, C.H. (1999) American Delinquency:
Its Meaning and Construction. 4th edn (Belmont, California,
Wadsworth Publishing).
Fagan, J.A. and Guggenheim, M. (1996) ‘Preventive Detention and Judicial
Prediction of Dangerousness for Juveniles: A Natural Experiment’.
Journal of Criminal Law and Criminology 86, 415–48.
Fagan, J.A., Kupchik, A. and Liberman, A. (2003) The Comparative
Impacts of Juvenile versus Criminal Court Sanctions on Recidivism
among Adolescent Felony Offenders: A Replication and Extension.
Final Technical Report submitted to Office of Justice Programs, U.S.
Department of Justice, Washington, D.C.
Farrington, D.P. (1984) ‘England and Wales’. In M.W. Klein (ed.), Western
Systems of Juvenile Justice. (Beverly Hills, California, Sage Publications).
Hawkins, J.D., Catalano, R.F., Kosterman, R., Abbott, R. and Hill, K.G.
(1999) ‘Preventing Adolescent Health-risk Behaviors by Strengthening
Protection during Childhood’. Archives of Pediatrics and Adolescent
Medicine 153, 226–34.
Henggeler, S.W., Melton, G.B. and Smith, L.A. (1992) ‘Family Preservation
Using Multisystemic Therapy: An Effective Alternative to Incarcerating
Serious Juvenile Offenders’. Journal of Consulting and Clinical
Psychology 60, 953–61.
Hirschi, T. (1969) Causes of Delinquency. (Berkeley, California, University
of California Press).
96 Eric L Jensen
Howell, J.C. (2003) Preventing and Reducing Juvenile Delinquency: A

Comprehensive Framework. (Thousand Oaks, California, Sage
Publications).
Jensen, E.L. and Gerber, J. (1998) ‘The Social Construction of Drug
Policies: An Historical Overview’. In E.L. Jensen and J. Gerber (eds.),
The New War on Drugs: Symbolic Politics and Criminal Justice Policy.
(Cincinnati, Ohio, Anderson Publishing Co. and the Academy of
Criminal Justice Sciences).
Jensen, E.L. and Metsger, L. (1994) ‘A Test of the Deterrent Effect of
Legislative Waiver on Violent Juvenile Crime’. Crime and Delinquency
40, 96–104.
Krisberg, B. (2003) ‘The End of the Juvenile Court: Prospects for our
Children. In J.D. Hawkins, S. Meyers, and R. Stone (eds.), Crime
Control and Social Justice: The Delicate Balance. (Westport,
Connecticut, Greenwood Press).
Krisberg, B., Schwartz, I., Lisky, P. and Austin, J. (1986) ‘The Watershed of
Juvenile Justice Reform’. Crime and Delinquency 32, 5–38.
Laub, J.H., Sampson, R.J., Corbett, R.P. Jr. and Smith, J.S. (1995) ‘The
Public Policy Implications of a Life-Course Perspective on Crime’. In
H. Barlow (ed.), Crime and Public Policy: Putting Theory to Work.
(Boulder, Colorado, Westview Press).
Maguire, K. and Pastore, A.L. (eds.) (2001) Sourcebook of Criminal Justice
Statistics 2000. (Washington, D.C., United States Government Printing
Office).
Polk, K. (1984) ‘Juvenile Diversion: A Look at the Record’. Crime and
Delinquency 30, 648–59.
President’s Commission on Law Enforcement and Administration of Justice
(1967) Task Force Report: Juvenile Delinquency and Youth Crime.
(Washington, D.C., U.S. General Printing Office).
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Crime and Delinquency 32, 39–51.
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Turning Points Through Life. (Cambridge, Massachusetts, Harvard
University Press).
Schneider, A. (1984) ‘Deinstitutionalization of Status Offenders: The
Impact on Recidivism and Secure Confinement’. Criminal Justice
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Deterrent Effects of the New York Juvenile Offender Law’. Law and
Society Review 22, 521–35.
Walker, N.E., Brooks, C.M. and Wrightsman, L.S. (1999) Children’s Rights
in The United States: In Search of a National Policy. (Thousand Oaks,
California, Sage Publications).
Welch, B.C., Farrington, D.P. and Sherman, L.W. (2001) Costs and Benefits
of Preventing Crime. (Boulder, Colorado, Westview Press).
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in Australia. (Cambridge, Cambridge University Press).
Cases Cited
Breed v Jones 421 U.S. 519 (1975)
Ex parte Crouse (4 Whart. 9 [Pa. 1838])
In re Gault 387 U.S. 1 (1967)
In re Winship 397 U.S. 358 (1970)
McKeiver v Pennsylvania 403 U.S. 528 (1971)
Roper v Simmons 125 S. Ct. 1111 (2005)
Schall v Martin 467 U.S. 283 (1984)
7
The New Spanish Penal System on
Delinquency
JOSÉ LUIS DE LA CUESTA
GENERAL BACKGROUND
D
URING MOST OF the twentieth century, the Spanish system with
regard to minors and juvenile delinquency was based on a welfare
model (modelo tutelar). This model experienced a deep crisis in the
1970s, particularly after the approval of the Spanish democratic
Constitution in 1978. This led to a progressive abandonment of the tradi-
tional system (de la Cuesta 2001a, 7). The protection of abandoned minors,
which since 1987 has been the responsibility of the regions (Comunidades
Autónomas)1 and the civil judges, was specially regulated by the 1996
Minors’ Legal Protection Act. The reform on delinquency came later.
In 1985 the new Act on Judicial Power created Judges for Minors and
required the Government to present to the Parliament a new Draft on
Minors. This legal mandate was not immediately acted upon, however.
Only after the Constitutional Tribunal Decision on the unconstitutionality
of the 1948 system in 1991 did the process to reform the old model begin.
The first reform—legally classified as ‘urgent’—became effective in 1992.
The true transformation of the system arrived with the new century. Act
5/2000 of 12 January was approved in the application of Article 19 of the
new 1995 Penal Code, with the aim of regulating the penal responsibility of
minors. After several reforms—the most important of which was created by
Act 7/2000 regarding very serious crimes and terrorism (Etxebarria
Zarrabeitia 2001a, 77)—the Act entered into force in January 2001.
Act 5/2000 regulates all of the material, procedural and executive aspects
of intervention against minors and juvenile delinquents (14–18 years old),
establishing a system integrated within the criminal justice system. The new
system is co-ordinated with the social services working to protect minors as
established in the Autonomous Communities; these are competent to give
1 Spain is a unitary state, but constitutionally divided into 17 regions that have political
autonomy and are called Comunidades Autónomas.

100 José Luis de la Cuesta
their support to the judicial system and to the application of judicially

adopted measures. Delinquency and penal responsibility of minors is declared
according to the general basis established by the Penal Code. A special
regime, currently suspended, is foreseen for juveniles 18–21 years old.
PENAL RESPONSIBILITY OF MINORS
The new model is a mixed one; it follows the trend begun in 1992 and is
fully respectful of the Convention on the Rights of the Child. This model
admits the ‘penal responsibility’ (or criminal responsibility) of minors under
18, and intends to reduce the importance of the ideas of protection and
paternalism. According to the new model, minority of age (under 18) is no
longer a circumstance that relieves the person of responsibility for a crimi-
nal offense (against, Feijóo Sánchez 2001, 24); culpability is also required
to declare the penal responsibility of minors (Cuello Contreras 2001, 49).
Minority of age is thus a personal limit to the application of the adult Penal
Code that opens the way to the application of the Act on the Penal
Responsibility of Minors. The new absolute limit of criminal responsibility
is therefore established at 14 years of age (Article 3), and those who are
between 14 and 18 years can be criminally responsible.
Formally, the penal responsibility of minors is exclusively based on the
commission of a penal infraction with certain exemptions (Article 5.1). This
responsibility differs from that of adults because it opens the door to treat-
ment intervention. Allowing non-punitive intervention justifies important
differences and avoids (but not in an absolute way) essential principles of
adult penal law: proportionality, general deterrence, victim’s participation
in the penal process (de la Cuesta 2001b, 59), etc.
The application of treatment intervention for those minors who are deemed
to be without sufficient maturity is also possible, but this question has not
been yet adequately approached by Act 5/2000 and requires reconsideration.
If criminal responsibility must be declared, proof of sufficient maturity (in par-
ticular, of those under 16) should be required, and not only the absence of the
general circumstances of exemption from penal responsibility provided by the
adult Penal Code. On the other hand, in cases of absence of capacity for form-
ing criminal intent, the imposition of therapeutic measures should always
require a documented risk of criminal dangerousness.
Penal responsibility and re-education
According to the Act, the declaration of penal responsibility is the first step
in the process of re-education and resocialization of minors. Via a declara-
tion of penal responsibility, minors should realize the importance of their
The New Spanish Penal System on Delinquency 101
conduct and of the social intervention; this is possible only if they are capa-
ble of understanding the process and the aim of the intervention. Although
the new Act insists on this point and explicitly recognizes it, procedural
norms are not clear and it will be very difficult for many minors to partic-
ipate adequately in the penal process.
The special educative nature of the intervention also determines the
prominent position of the technical team, and the need for the specializa-
tion of all professionals who take part in the penal process (4th Final
Disposition).
The best interests of the child
According to the legal regulation, the entire legal intervention should be

based on the ‘minor’s superior interest’ (Palacio Sánchez Izquierdo 2000,
Juan and López Martín 2001) or ‘the best interests of the child’ (CRC)—a
principle repeatedly mentioned by the Act; additionally, the prosecutor’s
intervention and the intervention of the minor’s lawyer should follow this
principle. In fact, every decision and, in particular, choosing and determin-
ing the measure to be applied (Article 7.3) should be adopted in the light of
this principle. Thus, judges must sentence based not solely on the seriousness
of the penal infraction, but also based on the relevant psycho-social and fam-
ily conditions (Article 7.3). Furthermore, the prosecutor is not obliged (as in
adult penal law) to prosecute whenever a penal infraction has been commit-
ted; he can decide whether to prosecute or not (Articles 18 and 19).
However, the Act is not clear enough on the content of this concept. This
is an important limitation that should have been avoided by adequate ref-
erences to the minor’s personal development, their educational needs, etc.
The ‘minor’s interests’ should indeed be connected to a minor’s re-education
and resocialization (Palacio Sánchez Izquierdo 2000, 58), especially as
defined by the technical team and according to non-legal criteria in close
co-ordination with the prosecutor and the judge (Funes Arteaga 1997, 65).
Field of application
The new Spanish Penal Law on Minors is applied to those between 14 and
18 years of age2 who commit a penal infraction defined by the Penal Code
or by a Penal Special Act (Article 1). Those under 14 who commit a penal
infraction are sent by the Prosecutor to social services experienced in the
protection of minors (Article 3) (Lorca Martínez 2001, 79).
2 In 1992, the age limits were from 12 to 16 years.

An important legal distinction is made between those minors between 14

and 16 years old and juveniles (16–18 years old) (Article 9.4–5). The latter
can be subjected to penal intervention of a greater intensity in serious cases.
Attainment of the age of majority does not put an end to the execution
of the measure imposed. The measure goes on until its goals are achieved
(Article 15), but internment of persons 23 years old, if necessary, will con-
tinue in a penitentiary institution.
According to Article 69 of the Penal Code, the system of penal responsi-
bility of minors may apply in certain circumstances to those between 18 and
21 who have committed a less serious penal infraction,3 committed without
violence, coercion or serious danger to the life or personal integrity of oth-
ers (Article 4). However, Act 9/2002 suspended this possibility until 2007.
Special features of procedure
The penal process for minors as regulated by the Act is a judicial process—
possibly too similar to the one for adults—conducted by a specialized magis-
trate, the Judge of Minors, and fully respectful of the basic penal guarantees:
presumption of innocence, right of defense, and the right of appeal (before
the ‘Audiencia Provincial’). Even a final appeal to the Supreme Tribunal is
possible in the interest of the law in the most serious cases.
The Prosecutor’s participation in the process is an intensive one. The
prosecutor conducts the investigation and prepares the instruction (Article
23). At the same time, the Prosecutor must guarantee the minor’s rights and
protect their interests (Article 6). A Prosecutor cannot make decisions that
restrict a minor’s fundamental rights; only the Judge of Minors is compe-
tent to adopt decisions restricting minors’ fundamental rights based on a
request by the Prosecutor (Article 23.3).
Diversion
A characteristic feature of the legal processing of juveniles is the recognized
flexibility in the prosecution.
Article 18 authorizes the Prosecutor not to begin proceedings in cases of
first offenses of less serious infractions committed without coercion or vio-
lence. Discretion is very broad in this instance and not sufficiently con-
trolled. The decision should be based upon the possibilities for correction
in a familial or educational milieu, under the control of the regional insti-
tutions competent in the protection of minors (critically: Landrove Díaz
2001, 287).
3 Less serious offences are nowadays those punished by a prison term of up to five years
(Article 33.3.a PC).

An investigation that has already opened can be closed (Article 19) if con-
ciliation or reparation occurs. The Prosecutor must in this case take into
account the seriousness of the infraction (in particular, the absence of coer-
cion or violence) and the minor’s circumstances. Mediation is conducted by
the technical team.
Conciliation is deemed to have been achieved ‘if the minor acknowledges
the harm and apologizes to the victim and the latter accepts it’ (Article
19.3). Reparation—operating here in the framework of ‘penal responsibil-
ity’ (Richard González 2000, 4) and not as a civil liability—is legally iden-
tified with the agreement of the minor to do something in the victim’s favor
or in favor of the community. Goodwill on the part of the minor is not
enough: the victim must accept conciliation (critically: Gómez Rivero 2001,
168) or the reparation compromise. The literature considers, however, that
the victim’s acceptance need not necessarily be an explicit one; the absence
of rejection is adequate (Martí Sánchez 2001, 77). Success in the applica-
tion of the educative measure proposed by the technical team could also, in
certain cases, be valid as reparation.
If conciliation and reparation are effective, only then (except if reparation
was not possible due to reasons other than the minor’s consent) can the
Prosecutor close the investigation and propose that the Judge dismiss the
case. If reparation (or the educative activity) is not fulfilled, the process goes
on (Article 19.5).
Once the process has begun and even once the measure of intervention
has been pronounced, there are possibilities for the suspension, modifica-
tion and/or substitution of the measures imposed (Articles 14 and 51) that
can put an end to the penal intervention (Mena Álvarez 2001, 221).
Provisional measures
Article 28 allows the Prosecutor—if they consider that there is sufficient
reason to suppose or a risk that the minor may elude justice—to demand of
the Judge of Minors the adoption of provisional measures in order to guar-
antee the custody and defense of the minor.
These provisional measures (Gisbert Jordá 2001, 103) can consist of
internment, controlled freedom, or custody by a family member or an edu-
cational group. The Judge must order the measures in the interests of the
minor after having heard the minor’s defense and having taken into consid-
eration, amongst other opinions, the input of the technical team.
The time a youth spends in a provisional measure is counted as time
served as part of a sanction, if a measure is finally imposed. This can also
be applied to minors who are not capable of culpability but who are sus-
pected of the commission of a criminal behavior. In these cases, the prosecu-
tor (Article 29) should demand the adoption of civil measures for the
protection and custody of the minor. However, the process is not interrupted
because it is the responsibility of the Judge of Minors to impose, according

to the minor’s interests, either a therapeutic internment or an ambulatory
treatment—the two therapeutic measures contained in the Act.
Detention and provisional internment

1. In case of detention by the police, minors should be kept in adequate
facilities, different from the ones used for people over 18 years of age
(Article 17.2). Detained minors have the right to speak formally in the pres-
ence of their counsel and their parents or legal guardian and the Prosecutor.
The Prosecutor must be informed of the detention within 24 hours. After
48 hours the minor must be either released or appear before the Judge of
Minors (Article 17).
A detained minor has all the rights of an adult detainee and, in particu-
lar, the right to counsel (Article 520 Criminal Process Act) and habeas cor-
pus (Article 17.6). They also have the right to protection and to social,
psychological, medical and physical assistance according to their age, sex
and individual characteristics (Article 17.3).
The detention of minors requires detailed regulation, with an explicit
determination of the applicable means of control and coercion. Some
‘Provisional norms on the police treatment of minors’ have created special-
ized teams or police groups for the treatment of minors.
2. Before the end of detention, the Judge for Minors—in accordance with
the gravity of the conduct, the ‘social concern’ and always taking into
account the minor’s personal and social circumstances—can order provi-
sional internment. This internment can extend to three months and may be
extended by an additional three months (Article 28).
3. In case of terrorism, the reform operated by Act 7/2000 foresees the
establishment of specific facilities, eventually created with the collaboration
of the Autonomous Communities, and kept under the control of the special-
ized staff of the Audiencia Nacional4 (4th Additional Disposition).
Other special features

1. The penal process for minors did not allow the intervention, as actors,
of victims (Article 25). Victims could denounce, but it was the Prosecutor’s
task to accuse. This exclusion of the victim from the legal processing of the
minor has been criticized (Landrove Díaz 1998, 293; Ventura Faci and
Peláez Pérez 2000, 124), although in exceptional circumstances the victim
was allowed to participate during the instruction as well as in the hearing
regarding certain cases, but only in a limited way.
4 The National Audience is a central judicial body competent to deal with certain crimes,
particularly terrorism and organized crime.

Act 15/2003 has put an end to this exclusion of the victim and has mod-
ified Article 25. It allows the victim’s intervention as an actor in the penal
process for minors.
Victims’ exclusion from the penal process has never affected their
involvement in the process of establishing civil liability. The civil process is
examined in a ‘separate file’ (Articles 61–64) (de la Cuesta Arzamendi
2001c, 175; Navarro Mendizábal 2001, 121). Act 5/2000 has indeed estab-
lished a new procedure (Ventura Faci and Peláez Pérez 2000, 212), before
the Judge of Minors but independent of the penal action. In this ‘separate
file’ victims can intervene and they are allowed to present their civil claim
to the Judge (Article 109.2 Penal Code).
Act 5/2000 also regulates the liability of parents and legal guardians to
pay victims compensation for damage caused by the minor’s behavior.
2. An important feature of the new penal process for minors is the special
position of the technical team (Dolz Lago 2001, 129). It is usually composed
of a psychologist, a teacher and a social worker (although the Autonomous
Communities are allowed to establish their exact composition). The techni-
cal team has important responsibilities: to investigate and report on the
minor’s situation; to explore the possibilities of conciliation or reparation; to
advise on the appropriateness of application of the provisional measures;
and to advise on the final measures and their order of application, modifica-
tion, substitution or suspension. They can also present proposals for the
non-prosecution of the case, in the minor’s interests, if the ‘social concern’
has already been shown sufficiently or it is deemed inadequate due to the
time that has elapsed since the commission of the facts (Article 27.4).
The hearing
Flexibility is also assured in the hearing, where the Judge of Minors again
has broader discretion than in the adult criminal process.
A minor’s agreement with the Prosecutor’s petition leads directly to a
‘conformity sentence’ (Article 32). The hearing takes place in the presence
of the prosecutor, the lawyer, a representative of the technical team and the
minor, who can be accompanied by their legal representative unless barred
from doing so by a judicial decision. Participation of a representative of the
public entity responsible for the protection or reform of minors is also
allowed (Article 35).
According to Article 35.2, and although as a general rule (Tomé García
2001, 176) hearings are public, the Judge can decide to keep the hearing
private if it is in the best interests of the minor or the victim. The Judge can
also order the minor to leave the hearing temporarily if, officially or at the
parties’ request, they consider that it is in the minor’s best interests to do so
(Article 37.4).
After the hearing, the Judge makes public the sentence within five days.
The sentence establishes the measures and their content, duration and
objectives in a clear manner and with explanations appropriate to the
minor’s age (Article 39).
Special protection against mass-media publicity
Article 35.2 explicitly establishes that the mass media cannot obtain or
disseminate the minor’s photograph or any data that will identify
them. The judge and the prosecutor must strictly enforce this mandatory
rule.
The system of sanctions
In general
The primary task of the technical team (Article 27.3) is to detect the possi-
bilities of conciliation and reparation and, eventually, to propose the con-
tent and aims of the reparatory activity that can lead either to the
abandonment of the process as foreseen in Article 19 or to the decision to
put an end to the execution of the measure already applied (Article 51.2).
Often, the elaboration of this proposal will require mediation by the tech-
nical team.
By virtue of the accusatory principle, the Judge of Minors cannot impose
a more severe measure than the one demanded by the Prosecutor.
Internment measures cannot exceed the length of deprivation of liberty
penalties foreseen by the Penal Code for the commission of the same offence
by an adult (Article 8). The general rules for the selection of measures are
contained in Article 7.3: the judge must take into account with flexibility
not only the evidence and the legal importance of the conduct, but in par-
ticular the minor’s age, social and family conditions, and personality. The
technical team must provide this information to the Judge in their reports;
in addition the public institutions competent for the protection and reform
of minors can advise the judge in this way.
In case of the minor’s non-culpability, only therapeutic internment or
ambulatory treatment can be imposed, and always taking into account the
risk of dangerousness by the minor.
Measures
1. Act 5/2000 establishes a list of ‘measures’. An important part of the
academic literature considers them to be ‘punitive sanctions’ (Sánchez
García de Paz 2000, 719) and prefers to call them ‘juvenile punishments’
(Cerezo Mir 2000, 106, García Pérez 2000, 686, Etxebarria Zarrabeitia
2001b, 32. Measures consist of the following (Muñoz Oya 2001, 185):
Measures consisting of the deprivation of liberty: internment in a closed
regime, in a semi-open regime or in an open regime; and therapeutic intern-
ment (Ortiz González 2001, 185).
Other measures: ambulatory treatment, visiting a day-center; weekend
arrest; supervised freedom (eventually with intensive supervision); custody
by a family or educative group; community service; warning; socio-educative
tasks; deprivation of driving license for motorcycles; revocation of other
administrative licenses (to hunt, to fish, or allowing the use of arms);
absolute disqualification from taking part in political elections or becoming
a public servant.
The list is broad, but more imaginative measures are lacking; maybe they
could be applied through the socio-educative programs. It is also very doubt-
ful whether this kind of measure will really help to achieve rehabilitation.
2. Measures, in general, may not exceed two years (community service
100 hours, and weekend arrest 8 weekends) (Article 9.3). However, for
those over 16 years of age who have committed an offence with violence or
coercion or presenting a great risk to life or one’s physical well-being, meas-
ures can extend up to five years (200 hours community service, and up to
16 weekend arrests) (Article 9.4). In extremely serious cases (and recidivism
is always considered so) internment in a closed regime for 1–5 years is
allowable, followed by supervised freedom with educative assistance for up
to 5 additional years. This measure cannot be suspended or substituted
before one year of effective execution (Article 9.5).
In the case of very serious offences (murder, homicide, rape, violent sexual
aggressions and those punished by the Penal Code with 15 years’ imprison-
ment or more), minors of 16 years can receive a measure of internment in a
closed regime (1–4 years) followed by supervised freedom (up to three years
further); those over the age of 16 will receive a measure of internment in a
closed regime (1–8 years) followed by supervised freedom (up to five years
further) and the measure will not be modified, suspended or substituted until
half of the internment has been executed (4th Additional Disposition).
If the offence is terrorism and the minor is held responsible for more than
one offence—and one of them is punishable by 15 or more years’ imprison-
ment for an adult—internment in a closed regime can extend up to 5 years
for those under 16, and up to 10 years for those aged 16 and over.
Furthermore, taking into account the seriousness of the offence, the num-
ber of acts committed and the perpetrator’s circumstances, an absolute dis-
qualification from taking part in political elections or becoming a public
servant (4 to 15 years) can follow internment (4th Additional Disposition).
3. Act 5/2000 foresees the possibility of conditional suspension of the
execution of measures after two years (Article 40). Conditional suspension
requires both the absence of new convictions during the probation period
and the minor’s promise not to commit further offences. The Judge can sub-
mit the minor to a regime of supervised freedom during the conditional sus-
pension or to a socio-therapeutic activity (eventually with the participation
of parents or tutors), if the technical team or the public entity competent to
protect or reform minors proposes it.
The judicial capacity to modify, suspend, reduce, substitute or put an end
to the measure is an important feature of the system. These decisions can
take place ‘at any moment’, in accordance with the minor’s best interests
and if the social concern of the minor’s behavior has been sufficiently
expressed (Article 14).
Relations among different measures

The judge can impose one or more measures, if he/she considers this to be
most suitable and in the best interests of the minor. Nevertheless, if differ-
ent measures are pronounced and they cannot simultaneously be applied,
the Judge can substitute all (or some) of them or indicate the order of appli-
cation. The total amount of time cannot exceed twice the most serious one
(Article 13).
As a general criterion, the order of application should begin with intern-
ment measures (particularly therapeutic internment). In cases of measures
of the same nature, the preferred order according to the law is the chrono-
logical one (Article 47). However, judges are free to establish a different
order.
If, during the measure’s execution, an 18 year old is punished by applica-
tion of the Penal Code and the simultaneous execution of this punishment
and the juvenile measure is not possible, priority is given to the juvenile
measure, unless, taking in account the defendant’s circumstances, the
judge considers the immediate execution of imprisonment more suitable
(Article 47.5).
Special sentencing rules

For misdemeanors only, warnings, weekend arrest (up to 4 weekends), com-
munity service (up to 50 hours) and deprivation of licenses can be applied
(Article 9.1).
Internment in a closed regime is foreseen only for intentional offences
committed with violence or coercion or causing a great risk to the life or
personal integrity of others (Article 9.2 and 9.6).
Regulation of concurrence of infractions is ‘very much inspired’ in the Penal
Code (Articles 11 and 12). In addition, special statutory limitations are fore-
seen (Article 10), although offences committed by persons aged 18 to 21 years
or very serious crimes and terrorist offences (4th Additional Disposition) will
be submitted at this point to the general rules of the Penal Code.
Special features of the execution of measures
The execution of measures (San Martín Larrinoa 2001, 141; also López
Martín and Dólera Carrillo 2001, 141) is founded upon the principle of
legality (Article 43) and is placed under the control of the Judge for Minors
(Article 44).
The Autonomous Communities are competent to execute the measures
directly or by means of contracts with other public or private, not-for-profit
entities. However, responsibility for the execution of measures remains in
the hands of civil servants (Article 45). Proximity is an important principle:
minors must be kept in institutions close to their residence, but the Judge
can decide to the contrary if there are indications that this will be in the best
interests of the minor (Article 46.3).
To execute a measure, the competent public entity designates a profes-
sional who assumes responsibility for oversight of the youth’s sentence. He
must report periodically to the Judge, the Prosecutor and counsel for the
minor on the execution of the measure and the minor’s progress (Article 49).
If a minor escapes, as soon as they are apprehended they are returned to
the same institution where they were interned or to another institution bet-
ter adapted to their situation. If the measure was weekend arrest, they will
be obliged to remain at home for the rest of the time. If the measure did not
consist of deprivation of liberty, the prosecutor can propose to the judge
that it be substituted by another measure or, in exceptional cases, that the
minor be interned in a semi-open regime (Article 50).
The execution of the measure of internment (López Cabello 2001, 155)
is divided in two periods: effective internment and supervised freedom
(Article 7.2). The Act contains particular rules for the execution of meas-
ures of deprivation of liberty in specific centers outside the penitentiary
administration: these can be centers for the protection of minors or psychi-
atric facilities (Article 54).
Measures imposed as sanctions against terrorism are executed under the
control of specialized staff and in the centers of the Audiencia Nacional,
eventually established by means of a contract with the Autonomous
Communities (4th Additional Disposition).
A fundamental principle of treatment in the centers must be resocializa-
tion of the youth (Article 55). By virtue of this principle, those rights of the
inmate that are not affected by the conviction (and regulated by Article 56)5
must be guaranteed, and the internal life of the institution should be guar-
anteed; in addition, life inside must be organized in a manner that is simi-
lar to the outside world (Article 55.2). Administrative regulations establish
the system of ordinary and extraordinary leaves and releases (Article 55.3),
and all the other aspects of the establishment’s functioning. Minors have the
5 Duties are defined by Article 57.

right to be informed in writing and in comprehensible language of all these

points and of their rights to present petitions and claims and to appeal
(Article 58).
Particularly important rules are the disciplinary rules (Article 60) and the
rules related to surveillance and security measures (Article 59). Disciplinary
sanctions must respect the constitutional principles and norms in their con-
tent, form and procedure. Disciplinary sanctions can always be appealed—
either in writing or orally—before the Judge for Minors (Article 60.7).
Personal dignity, the right to nourishment, the right to mandatory educa-
tion, the right to be visited, and the right to communicate are guaranteed
(Article 60.1).
Act 5/2000 does not establish the different disciplinary infractions; it is
the task of the Regulation to define them. Disciplinary sanctions are, how-
ever, contained in Article 60: separation from the group (in cases of aggres-
sion, violence or serious breach of the rules of communal life), separation
during the weekend, deprivation of weekend leave; deprivation of other
leave; deprivation of participation in leisure activities; and warning. These
sanctions are also legally classified according to their applicability to very
serious, serious or light infractions, respectively.
FINAL REMARKS
Five years ago, a new minors’ and juveniles’ penal justice system entered
into force in Spain, established by Act 5/2000 on the Penal Responsibility
of Minors. The new model is fully respectful of the CRC. Far from the
ancient social welfare approach, it does not follow a purely correctional
and repressive approach, but a mixed one. It is a responsibility model:
minors can be held responsible, but the declaration of their penal
responsibility is not answered by (minors’ or juveniles’) punishments, but
by ‘measures’ that should be oriented to serve the best interests of the
child.
In order to be effectively applied, any new system needs not only suffi-
cient investment in structures, facilities and means, but also, usually, nor-
mative development by the government of the general legal provisions.
Both aspects are essential. Without new and improved means and facili-
ties, the new system has no real opportunity to succeed in such a difficult
field. Without sufficient normative development, individual rights will suf-
fer and many of the new provisions will never be applied. Several years have
elapsed and these two essential preconditions for guaranteeing the adequate
application of the new system have needed a lot of time to be fulfilled or
are even still lacking.
At the regional level, only Catalunya urgently approved a new
Regional Act (Act 27/2001) on Juvenile Justice, in order to regulate the
principles of the interventions of the Autonomous Community. At the

national state level, only in summer 2004 was the administrative regula-
tion necessary to ensure the adequate application of the Act approved
(see Royal Decree 1774/2004 of 30 July; published by the Official
Journal—Boletín Oficial del Estado, 209—on 20 August 2004). The time
that has elapsed since it entry in force is too short to give an accurate
evaluation of its provisions.
Regarding facilities and resources, after the approval of Act 5/2000 by
the parliament, the Autonomous Communities estimated that more than
seven million euros (Ríos Martín 2001, 241) of public investment were
needed to implement the new system. Five years after Act 5/2000 entered
into force, a large proportion of these funds are still awaited.
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8
Juvenile Justice in Germany
FRIEDER DÜNKEL
HISTORICAL ASPECTS OF JUVENILE JUSTICE IN GERMANY:

THE COMPROMISE BETWEEN WELFARE AND JUSTICE
PRELIMINARY REMARKS
G
ERMANY IS SITUATED at the centre of Europe, bordering Denmark,
Poland, the Czech Republic, Austria, Switzerland, France,
Luxemburg, Belgium and the Netherlands. The country has a geo-
graphical area of 357,026.55 square km. With about 82 million inhabi-
tants, the population density per square kilometre is 231.
Germany, with its capital city Berlin, is a parliamentary democracy.
Article 20 of the Constitution (Grundgesetz) defines the political system as
‘a democratic and social welfare state under the rule of law’. Germany is a
federal republic consisting of 16 federal states which exhibit a certain
degree of autonomy, particularly concerning questions of education and
culture, but not in criminal and prison law or juvenile justice. Therefore, in
these matters the same federal law applies for all federal states.
In 2004 the gross domestic product was 108 € per capita (2004) and the
unemployment rate stood at 12% (about 10% in West-Germany, 20% in
East-Germany, i.e. the 5 states which formed the former German
Democratic Republic prior to the re-unification of Germany in 1990).
The age structure is as follows (at 1 January 2004):
children under 8 years: 7.4%;

children 8–14 years: 6.1%;
juveniles 14–18 years: 4.7%;
young adults 18–21 years: 3.4%;
young adults 21–25 years: 4.8%;
adults 25–30 years: 5.7%;
116 Frieder Dünkel

adults 60 years and older: 24.6%.
Roughly 9% (7.3 million) of the population have a foreign passport, one

quarter of which are Turkish passports. A further 25% come from other EU
member states, particularly Italy, Greece and Spain. Population growth in
Germany has been declining for years and this despite increases in the num-
ber of immigrants, which played a significant role in the 1980s and early
1990s. Immigrants from the former Soviet empire with German roots have
been issued German passports and are not classed as foreigners.
HISTORICAL ASPECTS OF JUVENILE JUSTICE IN GERMANY:

THE COMPROMISE BETWEEN WELFARE AND JUSTICE
The history of a system of specific social control for minors in Germany goes
back to the beginning of the previous century. Since 1908, some courts, such
as in Berlin, Frankfurt/Main and Cologne, began to develop special court
chambers that specialised in issues concerning young delinquents. Only after
World War I could the idea of specific legislation successfully be pursued by
opting for the ‘dualistic’ approach of welfare and justice. Thus, in 1922, the
Juvenile Welfare Act (JWA—Jugendwohlfahrtsgesetz of 1922) dealing with
young persons in need of care was passed and in 1923 the Juvenile Justice
Act (JJA—Jugendgerichtsgesetz, literally translated as the Juvenile Courts
Act)1 dealing with juvenile offenders who had committed a delinquent act
proscribed by the general penal law (Strafgesetzbuch, StGB). A totally wel-
fare oriented model of juvenile justice did not fit with the German ‘mental-
ity’, which remained intent upon keeping the penal option to deal with
young offenders. The compromise was a somehow ‘mixed’ system of juve-
nile justice, combining elements of educational measures with legal guaran-
tees and a procedural approach in general which is characteristic of the
justice model. The JJA did not create a new ‘juvenile penal law’. Punishable
crimes are the same as for adults, i.e. so-called status offences do not form
an element of the JJA. The JJA consists of a specific system of reactions/sanc-
tions applicable to young offenders and of some specific procedural rules for
the juvenile court and its proceedings (e.g. the principle of non-public trials).
In comparison with the general penal law for adults, the legislator of
1923 for the first time ‘opened the floor’ for educational measures instead
1 The literal translation of ‘Jugendgerichtsgesetz’ reflects the historical roots of the JJA. It
goes back to the adjudication of specialised judges of youth chambers at some courts in big-
ger cities like Berlin, Cologne and Frankfurt. The ‘Jugendgerichtsbewegung’ (‘movement for
establishing juvenile courts’) had a major influence on the first JJA in 1923; see Schaffstein and
Beulke 2002, 34 ff.
Juvenile Justice in Germany 117
of punishment (the corresponding slogan was ‘Erziehung statt Strafe’), par-

ticularly instead of imprisonment. Also opened was the possibility of aban-
doning the otherwise strictly applied principle of obligatory prosecution
(principle of legality, Legalitätsprinzip). The JJA was thus a forerunner to
the notion of giving the prosecutor discretion as to whether, and how, to
prosecute or dismiss a case because of the petty nature of the offence or
educational measures taken by other institutions or persons (see §§ 45, 47
JJA and below). The third pillar of innovation contained in the 1923 legis-
lation was to increase the age of criminal responsibility from 12 to 14 years.
In this context one can mention that only in the period of the Nazi regime
between 1933 and 1945 was the 12- to 14-year age group ‘re-criminalised’
for certain offences and behaviour. Today, the lowering of the age of crim-
inal responsibility is only an issue (of a more rhetorical or symbolic nature,
particularly at election time) for a few conservative politicians of the
Christian Democratic Parties (CDU/CSU), but without any chance of being
accepted by the majority of the political parties.
The law of 1923 and the amendments that followed did not define the
principle of ‘education’. History has demonstrated that this lack of precise
definition of ‘education’—under certain ideologies—can lead to a totally
different meaning and use of the educational principle. Thus the Nazis
defined ‘education’ as education by (not instead of!) punishment. In other
words, a rather repressive meaning of education prevailed. The introduc-
tion of so-called disciplinary measures, particularly the short-term deten-
tion centre (up to four weeks of detention as a short sharp shock), by an
administrative decree of 1940 and an amendment to the JJA in 1943 can be
seen as a demonstration of the repressive ‘Zeitgeist’ of the Nazi era.
After World War II the legislator decided to keep these measures, as they
also existed in other European legislation (see e.g. the British detention cen-
tre). The reforms of the Nazi system are ambivalent insofar as they also
included educational innovations that had been discussed in the previous
era of the Weimar democracy of the 1920s. On the other hand it can be seen
that a totalitarian ideology of education was linked to the general totalitar-
ian ideology of the Nazis (see Wolff 1986; 1989).
The Juvenile Welfare Act of 1922 was a classic law providing interven-
tion in the sense of the parens patriae doctrine. The state replaces parents
who are not able or willing to fulfil their educational duties. The educa-
tional measures were similar to or even the same as the educational meas-
ures stipulated in the Juvenile Justice Act, such as supervisory directives,
care orders, orders to improve the educational abilities of parents, place-
ment in a foster family or in residential care, etc. In the years that followed,
the interventions of the JWA were neither changed nor criticised very much.
However, in the late 1960s, following social and political movements and
changes, the reform debate emerged. The main criticism concerned closed
institutions (‘homes’) as stipulated by the JWA; in the field of the JJA the
118 Frieder Dünkel
concern was the disciplinary measures, particularly youth detention of up

to four weeks (a kind of shock incarceration for repressive purposes). The
reform movement in the early 1970s was strongly in favour of a unified
welfare model (excluding classic sanctions of the justice model as far as pos-
sible). However, this idea had been abandoned by 1974 (see in detail
Schaffstein and Beulke 2002, 41 ff). Thereafter reform proposals were
made under the dualistic approach of separate welfare and justice legisla-
tion. Finally, in 1990, the JWA was replaced by a modern law of social wel-
fare (under the concept of the Sozialstaat). The juvenile welfare boards
should function as a help and offer help, not as agents of ‘intervention’. At
least in theory, the repressive measures of education, such as detention in
secure (closed) residential care (‘homes’), have been abolished. In the late
1980s and early 1990s a few closed welfare institutions were re-opened
(about 150 places in total in some federal states—which is about 0.2% of
all measures of placement in the welfare system; see Sonnen 2002, 330).
The juvenile justice system has experienced major changes since the
1970s. This has happened without any legislative amendment and has been
called ‘reform through practice’ (‘Jugendstrafrechtsreform durch die
Praxis’), meaning that innovative projects have been developed by social
workers, juvenile court prosecutors and judges. As a consequence the num-
bers of juvenile prison sentences lessened considerably in the 1980s after the
introduction of ‘new’ community sanctions (see below and Heinz 2003).
THE SANCTIONS SYSTEM OF THE GERMAN JUVENILE JUSTICE

ACT (JJA—Jugendgerichtsgesetz, JGG)
In cases of crimes the interventions of the JJA are characterised by the prin-
ciple of ‘subsidiarity’ or ‘minimum intervention’ (see the diagram at the end
of this chapter).2 This means that penal action should only be taken if it is
absolutely necessary. Furthermore, sanctions must be limited by the princi-
ple of proportionality. The legislative reform of the JJA in 1990, passed in
the same year as that of the JWA, underlines the principle of juvenile court
sanctions as a last resort (‘ultima ratio’). Therefore the primary sanctions of
the juvenile court are educational or disciplinary measures.
2 The application of the JJA is restricted to crimes defined by the general penal law (StGB).
The Juvenile Welfare Act (JWA) is applied when a child or juvenile in his personal develop-
ment seems to be ‘in danger’ and needs help or measures provided by the JWA. The measures
are chosen according to the estimated educational needs. They are not imposed in an ‘inter-
ventionist’ style, but are offered and taken upon the request of the parents. In part, the meas-
ures are the same as those provided by the JJA (e.g. social training courses, special care, etc.).
The residential care order exists in both laws, too. If the authorities of the youth welfare
department want to bring a child or juvenile to such a home (against the parents’ will), they
must ask the family court judge for a specific order (according to § 1631b Civil Code,
Bürgerliches Gesetzbuch). Such homes are usually open facilities.
The most important response to petty offences is dismissal of the case

without any sanction. In this context one should emphasise that police
diversion, like the British form of cautioning, is not allowed in Germany.
The underlying reasoning is the abuse of police power that occurred under
the Nazi regime. Therefore all forms of diversion are provided for only at
the level of the juvenile court prosecutor or the juvenile court judge. The
police are strictly bound by the principle of legality. All criminal offences
have to be referred to the public prosecutor. The situation is different from
the one in England where police cautioning plays a considerable role.
The 1990 reform of the Juvenile Justice Act in Germany extended the
legal possibilities for diversion considerably. The legislature has thus
reacted to the reforms that have been developed in practice since the end of
the 1970s (see Bundesministerium der Justiz 1989; Heinz in Dünkel, van
Kalmthout and Schüler-Springorum 1997). The law now emphasises the
discharge of juvenile and young adult offenders because of the petty nature
of the crime committed or because of other social and/or educational inter-
ventions that have taken place (see § 45 (1) and (2) JJA). Efforts to make
reparation to the victim or to participate in victim-offender reconciliation
(mediation) are explicitly put on a par with such educational measures.
There is no restriction concerning the nature of offences; additionally,
felony offences (‘Verbrechen’) can be ‘diverted’ under certain circum-
stances, e.g. a robbery, if the offender has repaired the damage or made
another form of apology (restitution/reparation) to the victim.3
Four levels of diversion can be differentiated. Diversion without any sanc-
tion (‘non-intervention’) is given priority in cases of petty offences. Diversion
with measures taken by other agencies (parents, the school) or in combina-
tion with mediation is the second level (‘diversion with education’). The third
level is ‘diversion with intervention’. In these cases the prosecutor proposes
that the juvenile court judge impose a minor sanction, such as a warning,
community service (usually between 10 and 40 hours), mediation (‘Täter-
Opfer-Ausgleich’), participation in a training course for traffic offenders
(‘Verkehrsunterricht’) or certain obligations such as reparation/restitution, an
apology to the victim, community service or a fine (§ 45 (3) JJA). Once the
young offender has fulfilled these obligations, the juvenile court prosecutor
will dismiss the case in co-operation with the judge. The fourth level is the
introduction of levels one to three at the juvenile court proceedings after the
charge has been filed. Fairly often in practice the juvenile court judge will face
a situation where the young offender has, in the meantime (after the prosecu-
tor has filed the charge), undergone some educational measure such as
3 The situation is different in the general penal law for adults (>18 or 21 years old) where
diversion according to §§ 153 ff of the Criminal Procedure Act is restricted to misdemeanours.

Felony offences (i.e. crimes with a minimum prison sentence provided by law of one year) are
excluded.
120 Frieder Dünkel
mediation, and therefore a formal court seems unnecessary. Section 47 of the

JJA enables the judge to dismiss the case in these instances.
In addition, formal sanctions of the juvenile court are structured according
to the principle of minimum intervention (‘Subsidiaritätsgrundsatz’; see the
diagram at the end of the chapter). Juvenile imprisonment has been restricted
to a sanction of last resort, if educational or disciplinary measures seem to be
inappropriate (see §§ 5 and 17 (2) JJA). The reform of the Juvenile Justice Act
of 1990 extended the catalogue of juvenile sanctions by introducing new
community sanctions such as community service, the special care order
(‘Betreuungsweisung’), the social training course (see Dünkel, Geng and
Kirstein 1998) and mediation (see Dünkel 1996, 1999; Bannenberg 1993).
The educational measures of the juvenile court, furthermore, comprise differ-
ent forms of directives concerning the everyday lives of juvenile offenders in
order to educate and to prevent dangerous situations. Thus the judge can for-
bid contact with certain persons and prohibit going to certain places (‘where-
abouts’, see § 10 JJA). Disciplinary measures comprise the formal warning,
community service, a fine and detention for one or two weekends or up to
four weeks in a special juvenile detention centre (‘Jugendarrest’).
Youth imprisonment is executed in separate juvenile prisons (see § 92 JJA).
Youth prison sentences are a sanction of last resort (‘ultima ratio’, see §§ 5
(2), 17 (2) JJA), in line with the view espoused by international rules such as
the so-called Beijing Rules of 1985.4 For 14–17 year-old juveniles the mini-
mum length of youth imprisonment is six months, the maximum five years.
In cases of very serious crimes for which adults could be punished with more
than ten years of imprisonment, the maximum length of youth imprisonment
is ten years. In the case of 18–20 year-old young adults sentenced according
to the JJA (see below), the maximum penalty is also ten years (see §§ 18, 109
JJA). The preconditions for youth imprisonment are either the ‘dangerous
tendencies’ of the offender that are likely to exclude community sanctions as
inappropriate, or the ‘gravity of guilt’ concerning particular, serious crimes
(like murder, aggravated robbery, etc.; see § 17 (2) JJA).5
Youth imprisonment sentences of up to two years can be suspended in
case of a favourable prognosis; in all cases the probation service gets
involved. The period of probationary supervision is one to two years; the
period of probation two to three years.
4 See United Nations 1991, Dünkel 1994, 43; Rule No. 17.1 of the Beijing Rules restricts
youth imprisonment to cases of serious violent crimes or repeated violent or other crimes if
there seems to be no other appropriate solution.
5 The precondition of ‘dangerous tendencies’ for imposing a prison sentence is very often
heavily criticised as it causes stigmatisation and possibly contributes to an ‘inflation’ of prison

sentences where the juvenile court judge cannot find appropriate alternatives, see Dünkel 1990,
466 f; law reform proposals urge for the abolition of the term ‘dangerous tendencies’ and for
keeping only the precondition of the ‘gravity of guilt’, see Albrecht 2002; Deutsche Vereinigung
für Jugendgerichte und Jugendgerichtshilfen 2002; Dünkel 2002 with further references.
HUMAN RIGHTS ASPECTS OF CRIMINAL PROCEDURE IN THE

JUVENILE JUSTICE SYSTEM
Juvenile justice systems, particularly those following the welfare model, are
often criticised for failing to guarantee human rights. Compared to the gen-
eral criminal procedure for adults, the right of access to a legal defence coun-
sel and other basic human rights issues seem to be underdeveloped and some
critical scholars denounce the juvenile justice system as ‘second class justice’.
The German juvenile justice system shares these criticisms only to a very
minor extent, as in general the legal procedural rules are very similar for
juvenile and adult criminal justice. The JJA states that the procedural rules,
for example the rules of evidence, are the same as for general criminal pro-
cedure. Deviations from this general rule are based on educational aims. So,
for example, court hearings are not open to the public (see § 48 JJA) in
order to protect the juvenile’s privacy and to avoid stigmatisation. In juve-
nile trials the participation of the so-called social court assistant
(‘Jugendgerichtshilfe’), i.e. a social worker from the community youth wel-
fare department, is required (see § 38 (2) JJA). They have to prepare a social
report and are required to participate in the court trial in order to give evi-
dence about the personal background of the juvenile and to assist the judge
in finding the appropriate sanction. The right to a defence counsel, in prin-
ciple, is more extensive in the juvenile justice system, as every juvenile who
is put in pre-trial detention must have an advocate appointed immediately
(see § 68 No. 4 JJA), whereas in criminal cases for adults this right is
realised only after having suffered three months of pre-trial detention.
Furthermore, there are restrictions for imposing pre-trial detention on juve-
niles, particularly for 14 and 15 year-old offenders (see § 72 (2) JJA).
Residential care in a juvenile home should always be given priority to pre-
trial detention. The reality, however, sometimes indicates that the legal pre-
conditions are not always complied with. Therefore the criticism of
inappropriate forms of pre-trial detention cannot be refuted.
Another problematic issue is the appeal against juvenile court decisions. A
court decision cannot be appealed solely in order to receive another educa-
tional measure (see § 55 (1) JJA). This seems to be problematic in cases where
the judge imposes a rather ‘severe’ educational measure, such as several hun-
dreds of hours of community service. Unlike in other countries, in Germany
the community service order is not limited by a maximum period (in Austria
for example it is limited to 80 hours, in other countries 120–240 hours).
Thus, in individual cases, a violation of the principle of proportionality has
been observed.
Another critical issue concerning the system of judicial review in juve-
nile justice is that the juvenile can only appeal once, either to the district
court (‘Landgericht’) in order to get a second hearing, or to the high
court of a federal state (‘Oberlandesgericht’) for a review of legal questions
122 Frieder Dünkel
(see § 55 (2) JJA). This shortening of review procedures has been intro-
duced in order to speed up trials and to enforce the educational approach
of juvenile justice. However, from a legal and human rights perspective
this puts juveniles at a disadvantage compared to their adult counterparts.
On the other hand, juveniles profit from the exclusion of a joint procedure
by the victim or their representative counsel (‘Nebenklage’) and of the so-
called private criminal procedure (‘Privatklage’, i.e. the private charge if
the public prosecutor refuses prosecution in the public interest), both of
which are disallowed in the juvenile justice system (see § 80 (1), (3) JJA).
A few (practically unimportant) rules disadvantage juveniles for the sake
of educational concepts. For example, the period of pre-trial detention—
according to the discretion of the judge—will not be taken into account if
the remaining period of a juvenile prison sentence is less than six months
and therefore estimated as being insufficient for the educational process of
reintegration (see § 52a JJA).
In general one can say that the orientation of the German juvenile crim-
inal procedure towards preserving fundamental rights is quite well devel-
oped and that disadvantages as compared to adults are restricted to more
exceptional cases. Thus the German juvenile justice system does not share
the shortcomings of welfare systems that rely more on informal procedures
(e.g. round tables, family conferences etc.) than on formal legal rights.
TRENDS IN JUVENILE DELINQUENCY, PARTICULARLY OF

VIOLENT OFFENCES
In Germany no longitudinal studies of victimisation and delinquency on the

basis of representative surveys exist, unlike in the USA or some European
countries. Police and court-based data are, besides the well-known short-
comings, problematic as the counting methods were changed in the 1970s
and 1980s. Thus, more or less comparable data is at our disposal only from
1984 onwards. These indicate that juvenile delinquency was stable or even
slightly decreased in the 1980s up until 1989, and then increased until the
mid-1990s. From then on, a rather stable rate of young offenders, and of
violent offenders in particular, can be seen when looking at the rates of con-
victed offenders (see Figures 8.1–8.3).6 Police data indicate, however, a
stabilisation only for robbery offenders, whereas serious and bodily injury
after 1993 was still increasing for juveniles and young adults. A particular
increase can be observed in the five new federal states of the former East
Germany (Brandenburg, Mecklenburg-Western Pomerania, Thuringia,
Saxony, and Saxony-Anhalt). The rates for certain offences, particularly
6 For a comprehensive overview of the development of juvenile crime in Germany see
Bundesministerium des Inneren and Bundesministerium der Justiz 2001; for a similar develop-
ment in other European countries see Estrada 1999; 2001.
Figure 8.1: Male German suspects and convicted offenders by age group, 1984–2002. All
offences (without traffic offences)).
Figure 8.2: Male German suspects and convicted offenders by age group, 1984–2002.
Robbery (§§ 249–56, 316a PC).
124 Frieder Dünkel
Figure 8.3: Male German suspects and convicted offenders by age group, 1984–2002.
Serious and dangerous bodily injury.
violent offences, even exceeded the ratio of the western federal states (see
Figure 8.4). In the last 8 years, however, the violent and other young
offender crime rates in West and East Germany have grown closer together
because of an increase in West Germany and a stabilisation or even reduc-
tion in East Germany. This development could be interpreted as a kind of
normalisation after a period of particular problems of social transition and
anomie or ‘normlessness’ in East Germany.
Young migrants and members of ethnic minorities have become a major
problem for the criminal justice system in Germany. They are overrepre-
sented, particularly concerning violent offences. For the period 1984–97,
83% of the increase in the police registered juvenile and young adult
offenders crime rate (persons aged between 14 and 21) was due to foreign
citizens (see Pfeiffer et al 1998, 48). Most of these foreigners were born in
Germany. The Turkish minority plays a specific role in this problem. Self-
report studies reveal that the rate of violent offenders is twice as high in the
Turkish as compared to the German juvenile age group (Pfeiffer et al 1998,
81). Looking at different groups of ethnic minorities or foreigners up to
1993, asylum seekers played a predominant role, which explains the
increase in the general crime rate, but also the increase in pre-trial detainees
and sentenced prisoners. This problem disappeared after a change of immi-
gration legislation in 1993 reduced the influx of immigrants considerably.
Figure 8.4: Suspected juveniles and young adults per 100,000 of the age group in East
and West Germany, 1995 and 2003.
A specific problem has emerged with the so-called ‘Aussiedler’, usually

people from the former Soviet Union with a German passport, who have
severe problems integrating because of language deficiencies and other
problems. Often they are sentenced for serious violent crimes and build a
rather explosive prison subculture (see Dünkel 2005, Dünkel/Walter 2005).
126 Frieder Dünkel
All the phenomena described here concerning young migrants and ethnic
minorities are only valid for the old federal states of former West Germany.
The East German Länder face very different crime problems. These are con-
nected with the German native population. As very few foreigners live
there, they do not really contribute to the crime problem. However, they are
worthy of particular interest as they are overrepresented as victims of vio-
lent crimes, particularly committed by xenophobic or right wing extremists
(see Dünkel/Geng/Kunkat 2001; Dünkel/Geng 2003). However, right wing
extremist and xenophobic attitudes as well as self reported violent crime
since 1998 in East Germany have declined, too (see Wilmers et al 2002, 101
ff; Sturzbecher 2001; Dünkel/Geng 2003; all with further references).
There are many possible reasons for the increase in crime, and particu-
larly violent crime, that occurred after German re-unification and the open-
ing of borders in Eastern Europe in general and the concomitant social
changes. One of the most popular explanations is Heitmeyer’s theory of
social disintegration (see Heitmeyer 1992; Heitmeyer et al 1996). The East
German development can also be connected with the increase in opportu-
nity structures and a lack of social control at the beginning of the 1990s,
when police forces were re-established. One general argument to explain
the violent crime increase in the 1990s is a changed sensibility to and
reporting rate of violent crimes. One of the very few longitudinal victimisa-
tion studies, conducted by Schwind et al in the city of Bochum in 1975,
1986 and 1998, showed that a changed reporting rate accounted for the
major proportion of the increase in violent offences (assault/serious bodily
injury; see Schwind et al 2001). Thus, the officially registered assault rate
increased by 128%; the non-reported rate only by 9%. The overall increase
was only 24% from 1975 to 1998. What really had changed considerably
was the reporting rate: whereas in 1975 7.2 unreported crimes were added
to one reported crime, in 1998 the ratio was only 3.4:1. That means that
the dark figure had diminished by half and the ‘real’ increase in violent
crime is much less impressive than police data would suggest.
Another important statement is that the development of police registered
crime rates is not on a par with court-based crime rates. The increase in
sentenced young offenders is much less important than one would presume
when looking at the police data. This can be seen in Figures 8.1–8.3. The
gap between police registered and convicted (sentenced) young offenders
has increased considerably. One reason is the practice of diversion by juve-
nile court prosecutors and judges (see below), which is partly the result of
an increase particularly in petty property offences. There are, however,
indications that reported violent offences are too often not very serious
crimes and are therefore available for mediation and diversion as well (see
Pfeiffer et al 1998). For instance, in Hannover during the 1990s, apparently,
robberies causing very minor damage (of less than 15 Euros) have
increased.
Table 8.1: Changes in police registered and non-registered violent crimes (assault) in
Bochum 1975–98
1975 1998 Changes: 1998

compared to 1975
Police registered offences 865 1,976 + 128%

Non-reported offences 6,214 6,772 + 9%
Police registered and 7,079 8,748 + 24%
non-reported offences
Ratio of reported to 1 : 7.2 1 : 3.4
non-reported offences
Source: Schwind et al 2001, 140.
Although violent crime rates, particularly robbery and (serious) bodily

injury, increased in the early 1990s, it is still true that the vast majority of
juveniles and young adults are not violent offenders. Non-violent property
offences constitute about 70% of all crimes reported for young offenders (see
Bundesministerium des Inneren/Bundesministerium der Justiz 2001; Walter
2001: 201 ff; H-J. Albrecht 2002, D 32). The victims of such crimes are often
the peers of young offenders. Victims of violent adult offenders are also very
often children or young persons (see for example the crimes of sexual child
abuse or child maltreatment). Considering domestic violence, the First
Periodic Security Report (‘Erster Periodischer Sicherheitsbericht’) of the German
government states: ‘Young persons deserve attention and the protection of
society not so much as perpetrators than as victims of violent crimes’
(Bundesministerium des Inneren/Bundesministerium der Justiz 2001, 2).
Violent and other crime is not equally distributed over the different
regions. It is more widespread in cities than in rural areas and the official
crime rates indicate an elevated prevalence rate in the northern compared
to the southern federal states of Germany (on the differences between East
and West Germany see Figure 8.4 above). Whether these differences are
‘real’ or the product of different reporting and selection strategies is not
clear. Looking at the different federal states, an interesting observation is
that the relatively high police registered general crime rates for juveniles and
young adults in the northern and north-eastern states such as Bremen,
Berlin, Hamburg, Schleswig-Holstein, Mecklenburg-Western Pomerania
and Brandenburg, as compared with those of southern states like Bavaria
and Baden-Württemberg, diminish if we take the ratio of court-sentenced
young persons (always calculated per 100,000 of the age group). The ratio
of sentenced young offenders in the southern states is even higher than in
the abovementioned northern states (see Figures 8.5 and 8.6). This is a
result not only of different reporting rates, but of very distinct and different
styles of diversion, as will be amplified below.
128 Frieder Dünkel
Figure 8.5: Suspected and sentenced German juveniles in a comparison of the federal
states in 2003.
SENTENCING PRACTICE IN THE GERMAN JUVENILE JUSTICE

SYSTEM (DIVERSION AND JUVENILE COURT DISPOSITIONS IN
PRACTICE)
Diversion became the principal reaction utilised in the 1980s in juvenile justice
in West Germany. In this context it has to be stressed that police registered
juvenile crimes during the 1980s had been quite stable; even violent crimes
Figure 8.6: Suspected and sentenced 18–21 year old German young adults in a compari-
son of the federal states in 2003.
had diminished (see Heinz 2001a). The extension of diversion continued in

the 1990s when official crime rates, particularly for violent offences,
increased (see above). There was a real increase in crime after the opening
of the borders in Eastern Europe and the occurrence of the phenomena of
anomie and social disintegration in the youth subcultures in West Germany,
but particularly in the East German federal states. The rate of young violent
130 Frieder Dünkel
offenders registered by the police in East Germany until 1995 had tripled;
since then it has been stable or has decreased slightly.7 The practice of using
diversion as a measure of controlling input into the juvenile justice system
can clearly be shown in the Eastern federal states as well as in the so-called
‘city-states’: Berlin, Bremen and Hamburg. The elevated crime rates in these
states have been reduced by a more extensive diversion practice.
Before the law reform, the discharge rates (diversion) in West Germany
had already increased from 43% in 1980 to 56% in 1989. This increased
steadily to 69% in 2003 (see Heinz 1994; 2003; Heinz in Dünkel/van
Kalmthout/Schüler-Springorum 1997, and Figure 8.7). It should be stressed
that in particular the increase concerned diversion without intervention
(according to § 45 (1) JJA), whereas the proportion of diversion combined
with educational measures remained stable (see Figure 8.7).
However, the large regional disparities had not been eliminated. The dis-
charge rates varied in 2003 between 61% in Bavaria, 85% in Bremen and
84% in Hamburg. Apparently in all the federal states of Germany discharge
rates in cities are higher than in the rural areas (see Heinz 1994; 1998/99).
This contributes to the rather stable conviction rates and case-loads of juve-
nile court judges.
It is interesting to compare the diversion practices of East and West
Germany. Statistics for comparison have only recently become available. It
had been presumed that the penal culture in East Germany would be more
severe and repressive. However, first calculations of diversion rates gave
evidence of an even wider extended diversion rate in the new federal states,
with an overall rate of 77% (Mecklenburg-Western Pomerania and
Brandenburg as much as 82% and 81%; see Figures 8.8 and 8.9; see also
Heinz 2003). In Mecklenburg-Western Pomerania statistical data is
available from 2001. Its diversion rate of 82% is similar to the other new
federal states (see also Dünkel/Scheel/Schäpler 2003). Here too, the ‘economic’
strategy of controlling the input and workload of the juvenile courts is
evident. There is, however, another explanation that seems to be plausible.
The expanded diversion rates could also be a reaction to different report-
ing behaviour. In East Germany possibly more petty offences are reported
to the police, which are later excluded from further prosecution by the
juvenile court prosecutors.
The strategy of expanding informal sanctions has proved to be an effec-
tive means, not only to limit the juvenile court’s workload, but also with
respect to special prevention. The reconviction rates of those first-time
offenders who were ‘diverted’ instead of formally sanctioned were significantly
lower. The re-offending rates were 27% : 36% (see Figure 8.10 and Heinz
7 From 1995 onward one can observe a (slightly) diminishing juvenile crime rate in East
Germany and an increasing rate in West Germany (also concerning violent offences), which
results in a ‘convergent’ situation in both parts of Germany; see Heinz 2003 and Figure 8.4
above.
Figure 8.7: Diversion rates (dismissals by prosecutors or courts) in the juvenile justice
system of Germany, old federal states, 1981–2003.
Figure 8.8: Comparison of diversion rates (dismissals by prosecutors or courts) in the

juvenile justice system in Germany’s federal states, 2003.
132 Frieder Dünkel
Figure 8.9: Comparison of diversion rates (dismissals by prosecutors or courts) in the

juvenile justice system in Germany’s federal states, 1981–2003.
1994; 2003; Dünkel 2003, 94). Even for repeat offenders the re-offending
rates after informal sanctions were not higher than after formal sanctions
(see Heinz/Storz 1992). The overall recidivism rates in states such as
Hamburg with a diversion rate of more than 80% or 90% was the same
(about 25%) as in states such as Baden-Württemberg or Rhineland-
Palatinate where the proportion of diversion at that time counted for only
about 40%. Thus the extended diversionary practice has had at least no neg-
ative consequences concerning the crime rate and general or special preven-
tion. It also reflects the episodic and petty nature of juvenile delinquency.
At the same time, the proportion of ‘formal’ sanctions diminished to only
31% of all cases that could have entered the system at the juvenile court level.
Interestingly, major changes in the juvenile court’s sentencing practice in the
1980s and 1990s can be observed (see Figure 8.11). The proportion of the
sanction of sentencing to short-term custody in a detention centre was
reduced from 11% to only 6% (which amounts to a reduction of about
45%!) in the West German federal states. Unconditional youth imprisonment
(six months up to five or, in exceptional cases, ten years; see above) accounts
only for 1.5%; the suspended youth prison sentence for 3.5% of all formal
and informal sanctions against 14–21 year-old offenders. The reduction in
youth prison sentences from 8% to 5% means a 38% reduction since 1981.
This is remarkable insofar as in the 1990s the proportion of youth prison
sentences remained stable, although the number of violent offenders
Figure 8.10: Rates of formal and informal sanctions after a first sanction for larceny and
a risk period of 3 years (juveniles, cohort 1961).
increased considerably. The reduction in community sanctions by the court

from 36% to 20% is attributable to the extended diversion practice.
About 70% of youth prison sentences are suspended (combined with the
supervision of a probation officer). Since the mid-1970s, prison sentences
of up to one year are suspended in about 80% of cases. Even the longer
prison sentences of up to two years are now suspended in about 60% of
cases, whereas in the mid-1970s this occurred only in exceptional cases
(fewer than 20%). The extended practice of probation and suspended sen-
tences (even for repeat offenders) has been a great success, as the revocation
rates dropped to only about 30%. The probation service has apparently
improved its efficiency, but on the other hand, the courts also have changed
their practice by trying to avoid a revocation of the suspended sentence for
as long as possible (see Dünkel 2003, 96 ff). Again it becomes clear that
German juvenile court judges follow the internationally recognised princi-
ple of youth imprisonment as a last resort (ultima ratio) and for periods as
short as possible (the minimum intervention approach).
The average length of youth prison sentences has slightly increased inso-
far as the proportion of sentences up to one year has decreased, the propor-
tion of sentences of one to two years has increased. However, this has been
‘compensated’ by an extended rate of suspended sentences (see below). The
proportion of youth prison sentences of more than two or more than three
134 Frieder Dünkel
Figure 8.11: Sanctioning practice in Germany’s juvenile justice system, old federal
states, 1981–2003.
years remained stable (see Figure 8.12).

The practice of repeatedly suspending youth prison sentences of between
one and two years had already preceded the reform of 1990 to a great extent
by the suspension of not less than 54% of such sentences in 1990 (the ratio
in 2003 went up to as much as 59%). The expansion of alternatives to youth
imprisonment to young adults, who are more involved in crime than juve-
niles, particularly in respect of crimes such as robbery, contributed to the
considerable decline, by about 40%, in the rate of imprisonment of juveniles
and young adults between 1983 and 1990. This decline can be attributed to
only a limited extent (5%) to demographic changes. Since 1990, however,
youth prisoner rates have increased considerably. But, as can be shown by
Figures 8.13 and 8.14, for crimes of robbery and assault this is not a result
of more severe punishment by way of longer prison sentences, it is due sim-
ply to an increase in the absolute figures of sentenced persons.
89% of ‘youth’ prisoners in Germany are young adults between 18 and
25 years of age, whereas only 11% of the total population of 7,455 youth
prisoners (31 March 2002) are 14 to 18 years old (see Dünkel 2003a).
We do not know much about court sentencing practice in East German
federal states, as statistical data was until recently unavailable. A doctoral
dissertation at Greifswald concerning the three states Brandenburg, Saxony
Figure 8.12: Length of youth prison sentences under juvenile criminal law, 1981–2003.
Figure 8.13: Length of youth prison sentences under juvenile criminal law, 1990–2003,
Robbery.
136 Frieder Dünkel
Figure 8.14: Length of youth prison sentences under juvenile criminal law, 1990–2003,
Serious and dangerous bodily injury.
and Thuringia showed that (contrary to the presumption of some scholars)

sentencing practice is not more repressive in the East. There are some dif-
ferences in sentencing certain crimes, and particularly violent crimes are
punished more severely. The youth detention centre option is widely
rejected by judges, whereas suspended youth prison sentences are more
widespread than in West Germany (see Kröplin 2002). Although the violent
crime rates differed between East and West Germany in the mid-1990s, the
number of youth prison sentences was about the same, as can be demon-
strated by Figure 8.15 which itemises robbery offences. The main disparity
between East and West Germany is the considerably lower risk of a young
suspect in East Germany being sentenced by the juvenile court, which again
reflects the extended practice of diversion (see Dünkel/Drenkhahn/Geng
2001; Kröplin 2002).
In a recent analysis of the statistical data on Mecklenburg-Western
Pomerania, the pattern of extended diversion rates and the low number of
sentences to a detention centre has been confirmed. One peculiarity, how-
ever, was the lower rate of suspending youth prison sentences (up to one or
two years). Only 55% of youth prison sentences were suspended, whereas
the average in West Germany is about 80%. Particularly in cases of violent
offences, juvenile court judges seem to rely on ‘sharp shock’ incarceration.
On the other hand, the study showed that ‘new’ community sanctions, such
as social training courses, were given to 15% of all formally sanctioned
Figure 8.15: Comparison of juveniles and young adults suspected and sentenced to
unconditional youth imprisonment for robbery offences in East- and West- Germany*,
1997.
young offenders (10% of young adults, 20% of juveniles; see

Dünkel/Scheel/Schäpler 2003). One-third (36%) of all formally and infor-
mally sanctioned offenders received a community service order (16% of young
adults and almost 80% of juveniles!). Mediation, making up about 8%
(the same ratio for juveniles as for young adults), ranged far behind.
However, like the care order (11%, 8% for young adults, 18% for juveniles),
it is apparently not only an alibi for a ‘repressive’ sentencing practice, but
an integrated part of a juvenile justice system that greatly relies on the
educational ideal.
YOUNG ADULTS (18–21 YEARS OLD) UNDER THE JURISDICTION

OF THE JUVENILE COURTS (§ 105 JJA)
In Germany, since the reform law of 1953, all young adults are transferred to
the jurisdiction of juvenile courts. Comparing practices internationally, this
decision is remarkable, because it points the way to extending the scope of
juvenile courts for young adults between the ages of 18 and 21. So, for exam-
ple, in 2000 Spain introduced regulations for young adults that are very sim-
ilar to those of Germany. In 2001 Austria and Lithuania also introduced a
flexible system for dealing with young adult offenders, and the option to
138 Frieder Dünkel
choose an appropriate sanction from either the juvenile or the adult criminal
law, when dealing with the aspect of the personality and maturity of the
offender. Other countries, such the Netherlands and the former Yugoslavia,
have long provided for the possibility of avoiding sentences according to the
general penal law and instead impose sanctions according to juvenile law (see
Dünkel 2002a). But, if in these latter cases the application of educational
measures remained the absolute exception, the developments in Germany
have gone in the opposite direction. Undoubtedly a major reason is that the
reform of 1953 created the jurisdiction of the juvenile court for all young
adult offenders independently of whether sanctions under the JJA or under
the general Penal Law (StGB) were to be applied (see § 108 (2) JJA).
Section 105 (1) No. 1 of that law provides for the application of juvenile
law if ‘a global examination of the offender’s personality and of his social
environment indicates that at the time of committing the crime the young
adult in his moral and psychological development was like a juvenile’. In
other words, he should be punished according to the JJA (‘Reifeentwicklung’).
Furthermore, juvenile law must be applied if it appears that the motives
and the circumstances of the offence are those of a typical juvenile crime
(‘Jugendverfehlung’, see § 105 (1) No. 2 JJA). In 1965 only 38% of young
adults were sentenced under the terms of the Juvenile Justice Act, but by
1990 this proportion had nearly doubled to 64%. In 1995 the ratio
decreased slightly to 60%, but then increased again to 64.5% in 2003 (see
also Dünkel 2002a; these data refer to the ‘old’ West German federal
states). This makes it clear that the full integration of young adults into the
juvenile justice system has been accepted in practice. The regulations men-
tioned above have also been interpreted very widely by the courts to pro-
vide for the application of juvenile law in all cases where there were doubts
about the maturity of the young offender (see BGHSt 12, 116; BGH
Strafverteidiger 1989, 311; Eisenberg 2004, notes 7 ff to § 105). The
Supreme Federal Court (‘Bundesgerichtshof’, BGH) held that a young adult
has the maturity of a juvenile if ‘elements demonstrate that a considerable
development of the personality is still to be seen’ (‘Entwicklungskräfte noch
in größerem Umfang wirksam sind’, BGHSt 12, 116; 36, 38. This is the
case with the majority of young adult offenders. Thus the court does not
rely on an imagined (prototype of) juvenile, but on aspects of each individ-
ual’s personal development. There is no doubt that these arguments also
hold for a further extension of the juvenile court’s jurisdiction, for example
for 21–24 year-old adults (see below). The interpretation of a ‘typical juve-
nile crime’, which is extensively used, follows a similar logic.8
8 The examples mentioned in the cases are crimes committed in groups or under the influ-
ence of a group, as well as hooliganism, and sometimes very violent crimes that have derived
from a specific situation (possibly in combination with alcohol abuse) etc.; see Eisenberg 2004,
notes 34 ff to § 105.
However, in practice there are considerable regional differences with

respect to specific crimes and different regions. For most serious crimes
such as murder, rape and robbery, nearly all (more than 90%) young adult
offenders are sentenced in terms of the (in these cases, milder) juvenile law
(see Figure 8.16). The reason for this is that the higher minimum and max-
imum sentences provided by the ‘ordinary’ criminal law138 do not apply in
the juvenile law (see § 18 (1) JGG). Juvenile court judges, therefore, are not
bound by the otherwise obligatory life sentence for murder or the minimum
of five years’ imprisonment in the case of armed robbery. The German
practice seems to be contrary to the so-called waiver decisions of the U.S.A.,
where the most serious young offenders are transferred to the ‘ordinary’
criminal justice system (see Stump 2003).
Only in the case of traffic offences are the majority of young adult offend-
ers (in 2003: 57%) in Germany sentenced in terms of the criminal law for
adults, because in these cases there is the procedural possibility of imposing
fines without an oral hearing (‘Strafbefehl’, which is excluded from the
juvenile penal law).
There are constitutional reservations about the regional inequalities that
have emerged in practice. In North Rhine-Westphalia, for example, convic-
tions in terms of the juvenile law according to research conducted in the
1980s ranged between 27% and 91% of all convicted juveniles (see Pfeiffer
1988, 96). When the (old) federal states are compared, the range in 2003
Figure 8.16: Proportion of young adult offenders sentenced under juvenile criminal law
(§ 105 JJA) according to different crimes, 2003, old federal states.
140 Frieder Dünkel
was from 48% in Baden-Württemberg, 49% in Rhineland-Palatinate to

86% in Hamburg and 91% in Schleswig-Holstein. Apparently juvenile
court judges have different conceptions of the ‘typical’ personality of juve-
nile offenders and of the ‘typical’ nature of juvenile delinquency. Overall,
there is a north-south divide, with the federal states in the north increas-
ingly applying juvenile criminal law, whereas in the south juvenile court
judges rely to a greater extent on the criminal law for adults. As to the new
federal states, again a shortage of available data must be admitted. From
individual studies we know that in 1998 the proportion of young adults
sentenced according to the JJA was only 30% in Brandenburg and 34% in
Saxony, but 60% in Thuringia (East-German average: 38%; West-German
average: 59%, see Heinz 2001, 79 ff). In Mecklenburg-Western Pomerania
the proportion in 2001 was 55%, in 2003 56% (see Dünkel/Scheel/Schäpler
2003 and Table 8.2). The low rates in Brandenburg and Saxony are not due
to the ‘distrust’ of juvenile court judges towards the JJA, but are the result of
a specific bureaucratic routine in the application of the ‘Strafbefehlsverfahren’,
a summary procedure with only a written file in cases of less severe offences.
In this context two discourses can be differentiated. On the one hand there
is the ‘rhetoric’ debate in the field of criminal policy and the critique of con-
servative parties of too-lenient sanctioning by applying the sanctions of the
JJA instead of the general criminal law.9 Conservative politicians argue for
young adults to be given increased ‘responsibility’, thereby allowing for the
imposition of more severe punishment. On the other hand, practitioners
have other problems. They want to eschew the application of the general
criminal law in order to avoid the imposition of more severe punishment,
but would like to be able to impose fines in a summary procedure (without
an oral hearing), which up to now is not provided by the JJA (‘Strafbefehl’).
This procedure is very economical and time-efficient and—as indicated
above—is used particularly for traffic offenders (drunk driving etc.).
REFORMS SINCE THE 1970S IN WEST GERMANY: INNOVATION

FROM THE GRASSROOTS OF THE JUVENILE JUSTICE SYSTEM—
THE NEW COMMUNITY SANCTIONS (MEDIATION, COMMUNITY
SERVICE, SOCIAL TRAINING COURSES, CARE ORDER)
As indicated earlier, Germany experienced a reform movement that evolved

from the ‘grassroots’ of the juvenile justice system. Practitioners from private
or community organisations (youth welfare departments in the cities) and
9 These arguments do not consider that in fact sometimes the application of sanctions of the
JJA may be a disadvantage rather than a benefit, as can be shown by the fact that in the juve-
nile justice system the minimum prison sentence is six months, in the general criminal law only
one month; for some empirical evidence of disadvantages in sentencing see Dünkel 1990;
Pfeiffer 1991.
Table 8.2: Proportion of young adults (18–21 years old) sentenced according to the JJA
(§ 105 JJA)
Federal states Proportion of young Proportion of young adults

sentenced according to sentenced according to the
adults the JJA (all crimes) JJA (traffic offences)
1998* 2001 2003 1997** 2001 2003
Baden-Württemberg 43% 47.9% 47.9% 20% 17.3% 19.2%

Bavaria 55% 60.5% 64.8% 35% 36.7% 39.3%
Berlin 57% 52.8% 54.4% 30% 45.5% 36.3%
Bremen 62% 70.8% 78.2% 61% 71.8% 77.8%
Hamburg 92% 83.2% 86.4% 95% 80.6% 82.3%
Hessen 71% 74.4% 77.2% 67% 64.8% 69.7%
Lower Saxony 71% 69.6% 71.9% 61% 56.9% 60.0%
Northrhine-Westfalia 63% 65.7% 69.4% 45% 47.9% 52.5%
Rhenania-Palatinate 47% 51.4% 49.2% 19% 20.2% 19.5%
Saarland 84% 87.4% 84.1% 77% 81.7% 68.9%
Schleswig-Holstein 89% 90.0% 91.2% 93% 87.8% 89.6%
Old federal states total 59% 62.3% 64.5% 38.8% 40.5% 43.0%
Brandenburg 30% no inf. no inf. 23% no inf. no inf.
Mecklenburg-Western no inf. 55% 56% No inf. 41% 37%
Pomerania (2003)
Saxony 34% no inf. no inf. 12% no inf. no inf.
Thuringia 60% no inf. no inf. 44% no inf. no inf.
New federal states
(1998 resp. 1997
without Saxony-Anhalt
and Mecklenburg-
Western Pomerania) 38% no inf. no inf. 21% no inf. no inf.
Sources: * Heinz 2001; ** Kröplin 2002; Strafverfolgungsstatistik 2001, 2003;

Strafverfolgungsstatistik Mecklenburg-Western Pommerania 2001, 2003, own calculations.
juvenile court prosecutors and judges developed so-called new community

sanctions (see for one of the first so-called ‘Brücke’-initiatives Pfeiffer
1983) from 1974 when it became evident that legislative reforms would not
be achieved in the near future. These projects were established close to the
juvenile courts at the community level, very often by the communal welfare
boards, but were then transferred to private organisations. This is a peculi-
arity of the juvenile welfare system that gives priority to privately run
projects (principle of subsidiarity of state versus privately run organisa-
tions, see § 4 (2) JWA). The idea in the 1970s and 1980s was to establish
appropriate and educational alternatives to the traditional, more repressive
sanctions, such as short-term incarceration in a detention centre (‘Jugendarrest’,
see above). The first ‘new’ community sanction to be implemented was the
community service order. It was followed or accompanied by the special
142 Frieder Dünkel
educational care order. This care order means that a social worker is
attached to a juvenile offender, rather like a mentor, for a period of usually
6 to 12 months. It is seen as an alternative to the classic probation sanction
where a probation officer sometimes has 70 or more cases. The care order
amounts to more intensive oversight, as a social worker will have no more
than 10 to 15 cases. It is evident that the care order can be much more effi-
cient in providing help and social integrative services than a suspended
prison sentence with supervision by a probation officer.
Since the beginning of the 1980s another ‘new’ community sanction has
been developed: the social training course. This is a group-centred educa-
tional measure that targets both leisure-time problems and day-to-day liv-
ing problems. Its aim is to improve social competence and the skills
required in private and professional life. Social training courses are organ-
ised as regular meetings once or twice a week, often in combination with
intensive weekend arrangements (sometimes sporting activities and ‘adven-
ture’ experiences such as sailing, mountain climbing, etc.), usually for a
period of up to six months (see Dünkel/Geng/Kirstein 1998).
The first mediation projects began in the mid-1980s (see Dünkel 1999,
108). At the beginning of the 1990s, 60% of the youth welfare departments
reported that a mediation project had already been established. In 1995 a
national poll revealed a total of 368 mediation projects, which is a 68%
increase since 1992 (see Wandrey/Weitekmap in Dölling et al 1998).
However, the authors reported that the majority of mediation schemes run
on an ‘ad hoc basis’ to cater for individual cases and not as a priority meas-
ure within the ambit of educational measures provided by the JJA (see
Wandrey/Weitekmap in Dölling et al 1998, 130 ff).
With the reform law of 1990 the legislator recognised the development
of ‘new community sanctions’ by creating legal provision for their further
and wider application. Mediation, in particular, in the draft bill was men-
tioned as ‘the most promising alternative to the more repressive traditional
sanctions’.10
The current JJA in Germany offers many opportunities for arranging
mediation or damage restitution. Juvenile court prosecutors may waive pros-
ecution if reformatory measures have already been implemented or intro-
duced (§ 45 (2) JJA). The 1990 reform Act explicitly equates mediation with
such a reformatory measure. Significantly, the legislator already recognises
sincere efforts by juveniles to resolve conflicts or to provide restitution. This
arrangement protects juvenile and young adult offenders if the victim of the
crime refuses to co-operate. Successful damage restitution more frequently
10 The legal justification referred to the favourable experiences with assorted pilot projects
launched since 1985, which increase consideration for the victim’s special circumstances and
‘settle the conflict between the offender and the victim that results from the criminal act more
appropriately and more successfully ... than traditional sanctions have done in the past’; see
Bundesratsdrucksache, No. 464/89, 44.
leads to a dismissal because of ‘reduced culpability’ (pursuant to § 45 (1)

JJA; similar to § 153 of the Criminal Procedure Act in adult criminal law).
Under the same conditions that apply to juvenile court prosecutors, juvenile
court judges may waive prosecution to enable subsequent consideration of
mediation efforts by the young offenders. Material loss restitution, as well
as mediation as an independent sanction of the juvenile court, is a peculiar-
ity associated with German juvenile law (see §§ 15, 10 JJA). The juvenile
justice system, furthermore, provides for damage restitution in conjunction
with a suspended term of detention in a remand home or imprisonment (the
same applies for release on probation; for a summary see Dünkel 1999).
Providing mediation as a court sanction in juvenile justice (see § 10 (1)
No. 7 JJA) was rightly criticised for violating the voluntary principle of
mediation efforts. In practice, mediation as a juvenile court educational
directive is almost never used (see Rössner/Klaus in Dölling et al 1998,
115), because suitable cases are dealt with in informal proceedings (diver-
sion in the sense of § 45 (2) JJA, see above) prior to a court trial and there-
fore do not enter the level of formal court proceedings.
All of the above demonstrates that elements of restorative justice at differ-
ent levels have been implemented in the German juvenile justice system.11
The juvenile law reform of 1990 somehow acted like a ‘booster detona-
tion’ for the further extension of new community sanctions. In a nation-
wide poll conducted by the Department of Criminology at Greifswald we
looked at the periods two years before and two years after the law came
into force (1 December 1990). There was a 23% increase in the number of
projects before and even a 60% increase after the statutory amendment in
the case of mediation, which amounts to a relation of 1:2.6 (see Table 8.3).
Considerable further increases can also be observed for the care order and
for social training courses, but in absolute terms not for the community
Table 8.3: Increase in projects of ‘new community sanctions’ (offered by private or

public organisations) in the old federal states before and after the amendment of the JJA
in 1990
Increase before the Increase after the

law amendment law amendment
Educative measure (1 December 1990) (1 December 1990) Relation
Mediation 23% 60% 1 : 2.6

Care order 17% 37% 1 : 2.2
Social training course 16% 30% 1 : 1.9
Community service 2% 5% 1 : 2.5
11 After the juvenile justice legislation of 1990, the legislator also passed reforms of the gen-
eral penal law and the Criminal Procedure Act (StPO) which included some innovation with
emphasising mediation (see § 46a Criminal Law (StGB) of 1994 and §§ 155a, 155b Criminal
Procedure Act; see also Dünkel 1999, 110).
144 Frieder Dünkel
service order. This is, however, due to the fact that before 1990 almost all
youth welfare departments already ran community service schemes and
therefore scope for a further increase was rather limited.
THE IMPLEMENTATION OF NEW COMMUNITY SANCTIONS IN

EAST GERMANY AFTER RE-UNIFICATION IN 1990
The main aim of the nationwide Greifswald study on new community sanc-
tions was to obtain empirical data about the establishment of these sanctions
in the federal states, particularly in East Germany in the general context of
implementing the JJA in the former GDR. The process of social transition
proceeded very quickly in terms of legal reforms. The JJA came into force
simultaneously with re-unification in October 1990, shortly before the
amendment of the law in all of Germany. The poll was conducted in 1994
and 1995 and included a questionnaire sent to all community welfare
departments, private organisations running mediation and other community
sanction schemes and to juvenile court judges (see Dünkel/Geng/Kirstein
1998). The question was to what extent the new federal states had been able
to implement the structure of juvenile welfare as compared to the established
infrastructure in West Germany.
The results were astonishing as, a mere four years after re-unification,
East German Länder had not only reached equivalent structures and qual-
ity of juvenile welfare, but had even overtaken the ‘old’ federal states (see
Table 8.4).
This development continued in the five years that followed, as can be
demonstrated by several further studies, particularly in the field of media-
tion (see Steffens 1999; Schwerin-Witkowski 2003). The German federal
government sponsored and promoted many projects that focused on specific
violent offender groups, such as right-wing extremist skin-heads. At present
the police authorities estimate that there are about 10,000 right-wing, vio-
Table 8.4: ‘New’ educational community sanctions (offered by private or state organ-
isations) in the old and new federal states of Germany in 1994
Youth Social
welfare training Community
departments course Mediation Care order service
n n % n % n % N %
Old federal states 479 350 73.1 336 70.1 408 85.2 461 96.2
(FRG)
New federal states 127 96 75.6 112 88.2 119 93.7 127 100
(former GDR)
Total Germany 606 446 73.6 448 73.9 527 87.0 588 97.0
lence-prone skin-heads etc. in the whole of Germany. About half of them live
in East Germany, although the East German population accounts only for
20% of the total German population (for an overview of right-wing extrem-
ism in Germany and particularly the East-German federal states see
Dünkel/Geng 1999, 2003; Dünkel/Geng/Kunkat 2001). The overrepresenta-
tion of right-wing extremists in East Germany is a very striking phenomenon
and can no doubt partly be explained by the specific problems generated by
the economic situation (the unemployment rate is double that of West
Germany), the lack of professional and personal perspectives, particularly in
young people, and also the authoritarian style of rearing families in East
Germany.
In consequence of the specific East German problems the youth welfare
authorities face a tough workload. Nevertheless, the infrastructure and the
number of social workers today is comparable to that of West Germany. In
the old federal states youth welfare authorities and the juvenile justice sys-
tem in general face different problems, particularly with young migrants
and young drug addicts, which are not (yet) prevailing problems in the east-
ern part of Germany. The ‘classic’ drug in the Eastern Länder is alcohol.
The illegal drug market has only recently increased there, too, although
there is no real hard drugs scene yet (heroine, cocaine).
Community sanctions have made progress in the East, too. However, it is
mainly the community service order that has gained major importance in
the practice of juvenile justice. Table 8.3 shows that the other community
sanctions, which are more educational and ‘constructive’ than community
service or other traditional sanctions, have made little progress.
Consequently, half of the community youth departments stated that they
had no more than eight young offenders participating in mediation per year.
In 50% of the cases in youth departments no more than eight young per-
sons in West Germany and seven young persons in East Germany were
under special educational care, and the number of participants at social
training courses was 18 and 11, respectively. On the other hand, 80 and 78
community service orders were counted in 50% of the youth departments
(see Table 8.5). The total number of young offenders sentenced to commu-
nity service was six to eight times as much as that for the other educational
sanctions mentioned in Table 8.5.
ACTUAL TENDENCIES IN JUVENILE CRIMINAL POLICY—BETWEEN

TOLERANCE AND REPRESSION
The actual tendencies in juvenile criminal policy are ambivalent.

Conservative parties demand a lowering of the age of criminal responsibil-
ity from 14 to 12, since the registered crime rate of children has increased
(an argument that is not convincing as most of the increase is attributable
146
Table 8.5: Number of participants at educational measures of youth welfare departments, 1993
Mediation Care order Social training course Community service

Frieder Dünkel
25%* 50%** 75%*** 25% 50% 75% 25% 50% 75% 25% 50% 75%
n= n= n= n= n= n= n= n= n= n= n= n=
Old federal states

Participants at the measure 4* 8** 20** 4 8 16 9 18 32 41 80 152
Departments of youth welfare, n = 210 263 200 233
Total participants, n = 3.346 3.758 4.926 28.130
New federal states
Participants at the measure 3 8 20 3 7 20 7 11 19 43 78 124
Departments of youth welfare, n = 107 99 47 106
Total participants, n = 1.836 1.933 815 9.985
* This means: 25% of the departments had X clients in the specific measure
** This means: 50% of the departments had X clients in the specific measure (= Median)
*** This means: 75% of the departments had X clients in the specific measure
to petty non-violent offences). Furthermore, they urge that the widely

extended practice of sentencing young adults according to the JJA should
be removed in order to impose harsher punishments on this age group and
that the application of the JJA should be the exception and not the rule.
The simple but enticing argument is that young adults have many respon-
sibilities in civil law and therefore should be responsible like adults in
penal matters, too. These arguments totally neglect the psychological and
pedagogic foundation of the JJA. Today the development of personality
and integration into the lives of adults takes even longer. Therefore,
German juvenile criminologists and most of the practitioners in juvenile
justice urge for the retention of the current age limits for young adults and
even for going further in extending the application of the JJA to young
adults, without any exception (for arguments of comparative law see
Dünkel 2002a), and to include even 21–24 year-old adults in certain cases
where the sanctions of the JJA seem to be more appropriate (see Deutsche
Vereinigung für Jugendgerichte und Jugendgerichtshilfen 2002). Indeed, in
Europe the age limits are not yet harmonised. On the one hand, in some
countries the tendency to lower the age of criminal responsibility has been
actualised, to as low as ten years, as in England and Wales (similar tenden-
cies can be observed in the Netherlands); on the other hand the
Scandinavian countries have retained their moderate approach with 15 as
the age of criminal responsibility. It will be difficult to harmonise the dif-
ferent approaches in Europe, and perhaps it is not even desirable if one
looks at the influence of the English ‘get tough’ policy. However, the
majority of countries, particularly the Baltic and Central and Eastern
European countries, have more or less developed a consensus about age
limits of 14, 18 and 21 years (see the introductory chapter in this volume).
So, in conclusion, it seems to be desirable that Germany maintains its juve-
nile crime policy and even extends the application of the JJA to young
adults without exception.
A major reform debate took place in September 2002 when the German
Juristentag (a biannual meeting of German lawyers) discussed the issue ‘Is
the German juvenile justice system up to date?’. The principal expert
opinion was presented by Hans-Jörg Albrecht, director of the Max Planck
Institute for Foreign and International Penal Law at Freiburg. His main
proposal was to abolish the idea of education, but nevertheless to keep a
separate juvenile justice system with proportionate (and with respect to
adult offenders milder) sanctions (see Albrecht 2002). Concerning the
abolition of the ‘leitmotiv’ of education his ideas have been rejected by
almost everyone in the German lawyers’ assembly, as well as by juvenile
criminologists and penal lawyers (see e.g. Dünkel 2002, Streng 2002,
Walter 2002). Some of Albrecht’s concrete proposals, however, corre-
sponded with proposals of the Deutsche Vereinigung für Jugendgerichte
und Jugendgerichtshilfen, an organisation of juvenile court judges, prose-
148 Frieder Dünkel
cutors, social workers active in juvenile justice and welfare, and criminol-
ogists. This organisation has influenced the reform debate of the last 30
years quite considerably. The DVJJ wants to keep the idea of education in
the sense of special prevention and also to extend the scope of construc-
tive solutions, like mediation and other community sanctions. In this con-
text a ‘reconstruction’ of the system of community sanctions is being
advocated as well as the restriction (limitation) of youth prison sentences
(abolishing the possibility of imposing a prison sentence because of ‘dan-
gerous tendencies’) and of pre-trial detention. They urge for young adults
generally to be included in the JJA, for an extension of the maximum
penalty from 10 to 15 years (in cases where a life sentence would be
imposed for adults), and for a form of a summary written procedure to be
introduced for this age group in order to deal with minor traffic or prop-
erty offences (see Deutsche Vereinigung für Jugendgerichte und
Jugendgerichtshilfen 2002 and the recommendations of the Deutsche
Juristentag 2002: see www.djt.de).
Although the government of the social-democratic and the Green par-
ties in Germany should not be tempted to follow a ‘populist’ and ‘hyster-
ical’ criminal policy, it remains uncertain whether reform bills, including
a reduction in penal severity, will pass through parliament successfully.
Feelings of insecurity are exploited by most political parties (except the
Green party) and right-wing populist parties in some state parliaments,
as in Hamburg, have campaigned successfully during elections with law
and order paroles. The role of the mass media is very important in this
context. The German social-democratic party is sometimes badly influ-
enced by the more repressive ideas of criminal policy of the British
Labour Party. On the other hand, the ‘culture of education’ of those
working in juvenile justice is strongly engendered in Germany by perma-
nent further education of practitioners organised by the Deutsche
Vereinigung für Jugendgerichte und Jugendgerichtshilfen and other
organisations.
It was the honourable Franz von Liszt who, shortly after 1900, stated
that a good social policy would be the best criminal policy. The idea of
crime prevention has been developed more and more in the past 20 years in
Germany. Successful projects have been established, e.g. to prevent violent
or xenophobic crimes, in quite a few cities and communities (see e.g.
Dünkel/Geng 2003). This development does not detract from the need for
reforms of the juvenile justice system, but it points the way to dealing with
the causes of crime. Juvenile justice can play only a marginal role in this
regard and cannot solve general societal problems (such as poverty, unem-
ployment and discrimination).
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Bundesministerium der Justiz (1989) (ed.) Jugendstrafrechtsreform durch
die Praxis. (Bonn, Ministry of Justice).
Deutsche Vereinigung für Jugendgerichte und Jugendgerichtshilfen, 2.
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also DVJJ-Journal, vol. 13: 228–276).
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Dünkel, F. (1990) Freiheitsentzug für junge Rechtsbrecher. Situation und
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—— (1994) Les orientations actuelles de politique criminelle. In F. Dünkel
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—— (1996) Täter-Opfer-Ausgleich. German experiences with mediation in
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—— (2002) Jugendstrafrecht—Streit um die Reform. Anmerkungen zum
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—— (2002a) Heranwachsende im Jugendstrafrecht—Erfahrungen in
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Sanktionspraxis und des Strafvollzugs in Ost- und Westdeutschland. In
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neue ambulante Maßnahmen nach dem JGG in Deutschland.
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vol. 10, 11–19; Teil 3, DVJJ-Journal, vol. 10, 131–48; Teil 4, DVJJ-
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—— (2001) Die jugendstrafrechtliche Sanktionierungspraxis im
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—— (2001a) Jugendkriminalität in Deutschland. Internet publication:
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—— (2003) Das strafrechtliche Sanktionensystem und die
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und Perspektiven von Jugendlichen. DVJJ-Journal, vol. 3: 76–84.
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bei Jugendlichen aus unterschiedlichen sozialen Milieus. 2nd edn
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9
The Juvenile Justice System
in Poland
KRZYSZTOF KRAJEWSKI
INTRODUCTION
I
N POLAND , RESPONSIBILITY for juvenile offenders, as well as the meas-
ures that may be imposed upon juveniles showing other signs of social
maladjustment, are regulated independently of the adult criminal law.
Provisions regarding these issues are contained in the Proceedings in Cases
of Juveniles Act of 26 October 1982 (‘Juveniles Act’). Despite its title, this
act regulates not only procedural aspects of juvenile justice but also most
issues of substantive law. After 1989 (i.e. the fall of the communist regime)
it was amended twice, namely in 1995 and in 2000, but these amendments
were not of a substantive nature. They both introduced certain important
modifications but the model of the juvenile justice system and basic regula-
tions remained unchanged. This means that in Poland the area of juvenile
justice, as opposed to the ‘adult’ criminal justice system, is still regulated by
legislation dating back to the communist period.1 Moreover, it may be
worth noting that this particular piece of legislation was adopted in the
autumn of 1982 (i.e. less than one year after martial law introduced by the
communist authorities crushed independent trade unions, and hopes for
reform and liberalization of the system had to be abandoned). As a matter
of fact, in the autumn of 1982 martial law was still in force, many activists
of the opposition were still held in internment camps, and communist
authorities were busy introducing various extraordinary measures con-
tained in martial law decrees into ‘regular’ criminal law. In other words, in
general this period cannot be evaluated positively from the point of view of
its contribution to the development of criminal law in Poland (Wasek and
Frankowski 1995).
1 Old criminal codes from 1969 (i.e. adopted under the communist regime), although sub-
stantially amended, remained in force until 1998. On 1 September of that year they were sub-
stituted by the completely new Criminal Code, the Code of Criminal Procedure and the Code
on Execution of Penalties adopted by Sejm (the Diet) in April 1997.
156 Krzysztof Krajewski
Interestingly enough, this does not necessarily apply to the Juveniles Act.
Despite some controversial solutions and provisions which will be discussed
later, it constituted quite a modern piece of legislation and did not differ
substantially from models existing in many countries of Western Europe.
The main proof that this act may be evaluated quite positively is that after
only minor amendments, it has served over the last 15 years in democratic
Poland. There was, of course, always some talk of the necessity of prepar-
ing a new juvenile regulation, but this was not considered to be an immedi-
ate task. Moreover, postulates and proposals voiced in this area indicate
that the eventual new law may not necessarily bring real improvements and
progress into the area of juvenile justice.2
Prior to the passing of the 1982 Juveniles Act, most issues of the juve-
nile law and juvenile responsibility were regulated by the provisions of
Arts. 474–95 of the 1928 Code of Criminal Procedure, and Arts. 69–78 of
the 1932 Criminal Code. The 1932 Polish Criminal Code, considered at
that time to be one of the most modern pieces of penal legislation in
Europe, remained under significant influence of the sociological school in
penal law and positivist thinking in criminology. Because of this it adopted
an approach based predominantly on the welfare model of juvenile law,
and not a justice model of it (Beaulieu and Cesaroni 1999). As a conse-
quence, juveniles under 17 were not assumed to be capable of forming
criminal intent and thus of bearing criminal responsibility. Thus, priority
has been given to special rehabilitative measures, not punishment, and to
a separate system of procedure in cases of juveniles, as well as to the estab-
lishment of juvenile courts. From this point of view Poland was only fol-
lowing certain patterns established earlier in many countries of North
America (Bernard 1992; Trépanier 1999b) and Europe (Christiaens 1999;
Oberwittler 1999; Weijers 1999b), and all this despite the fact that tradi-
tions of welfare state and welfare based criminal policy were never very
strong there.
In the period after World War II, communist authorities in principle fol-
lowed this pattern. Moreover, a welfare approach to juvenile delinquency
was even reinforced during the 1980s. During the drafting of the new
Criminal Codes in the 1960s it was decided to take cases of juveniles com-
pletely out of the Criminal Code and the Code of Criminal Procedure, and
to prepare a separate piece of legislation regarding these issues. Although it
took years to prepare this legislation,3 the Juveniles Act of 1982 continues
2 At the end of 2003 the Ministry of Justice finally decided to call a committee of experts
and entrust it with the task of preparing a draft of the new juvenile law. The work of this com-
mittee is currently at a very preliminary stage, and it is difficult to predict whether Poland will
follow its own tradition and the example of the recent very liberal Czech juvenile legislation
(Válková 2001), or make a switch towards a more punitive approach. Nevertheless, it is cer-
tain that the draft of a new law will not be ready soon.
The Juvenile Justice System in Poland 157
with the ‘child welfare’ approach of the previous legislation.4 It is based on

the assumption that persons below a certain age, because of their mental
development, shall not and cannot be held responsible for their wrongful
acts in the same way as adults. This excludes first of all retributive purposes
of punishment which may be acceptable in the case of adults. Moreover, it
is assumed that possibilities of changing youthful law violators, or rehabil-
itating them, are, because of their young age, much better than is the case
with older persons. This is due to the fact that their personalities are usu-
ally not fully developed and are more malleable. Because of this they may
be more susceptible to measures of treatment and rehabilitation.
As a consequence, Polish legal language uses different terminology with
respect to adult and juvenile lawbreakers. An offence may be only commit-
ted by an adult, and only adults may be held criminally responsible and
punished in the strict meaning of the word. If a juvenile commits an act
defined in the Criminal Code as an offence, it is referred to merely as a pun-
ishable act (czyn karalny), and not as an offence (przestepstwo). It is
assumed that juveniles’ culpability is different from that of adults, as juve-
nile acts lack mens rea in principle. It does not mean that juveniles are not
held responsible for their wrongdoings in any way. They are, but according
to different rules from adults.
Moreover, in juvenile cases courts do not impose punishments, as juve-
nile law contains a separate system of various measures aimed primarily at
the treatment and rehabilitation of juvenile lawbreakers. This is stated
clearly in Art. 3 § 1 of the Juveniles Act, which says that ‘in cases of juve-
niles the guiding principle shall be the juvenile’s welfare, and considerations
aimed at achieving positive changes in his/her personality and behaviour, as
well as encouraging and supporting proper fulfilment of their duties by the
juvenile’s parents or custodians’. This is completely different, exclusively
rehabilitation oriented language compared with Art. 53 § 1 of the Criminal
Code of 1997, which contains the main sentencing guidelines in cases of
adults. This provision explicitly mentions both retributive purposes (pun-
ishment shall not exceed perpetrator’s guilt, and be related to the harm
done by the offence), as well as preventive and rehabilitative purposes of
punishment. It refers also to the necessary influence of punishment on the
law-abiding attitudes of the public, or what is commonly referred to as
‘positive general prevention’ (as opposed to general deterrence).
3 The pre-war criminal codes went out of force in ‘socialist’ Poland not earlier than 1 January
1970. However, it took 12 more years to prepare and pass the new, separate juvenile legisla-
tion. Because of this, earlier mentioned provisions of the old codes regarding matters of juve-
niles remained in force until 12 May 1983 (i.e. until the entry into force of the Juveniles Act).
4 For a general overview of the contemporary juvenile justice system in Poland see: Habzda
(1992), Marek (1992), Stando-Kawecka (1995), Czarnecka-Dzialuk (2000), as well as Gaberle

(2002).
This provision makes it clear that Polish criminal law, like the legal
systems of most other European countries, does not treat retribution as an
exclusive purpose of punishment, and still pays much attention to the treat-
ment and rehabilitation of offenders. However, in case of juveniles it
stresses practically exclusively diagnosis and treatment, and disregards guilt
and punishment. Because of this the term ‘juvenile penal law’, which is used
in some other countries (such as Germany), although used colloquially, does
not constitute an official term in Polish. The term ‘juvenile law’ appears in
legal terminology, in this way stressing the non-punitive and non-penal
character of juvenile responsibility.
GROUNDS FOR APPLICATION OF JUVENILE MEASURES
General remarks
Provisions of the Juveniles Act of 1982 state that intervention in cases of

juveniles (Art. 1 § 1), may be based on two different types of grounds.
Under this act court intervention is possible first of all in cases of juveniles
who show what the law refers to as signs of demoralization (przejawy
demoralizacji), which means social maladjustment in a very broad sense of
the term. Second, the law also allows for intervention in cases of punishable
acts (czyny karalne), or what in the case of an adult would constitute an
offence. What is interesting, and somewhat complicated, regarding these
two grounds for intervention is that they are connected to two separate
meanings of the term ‘juvenile’, or age limits for such court intervention
(Górecki and Stachowiak 2002; Gaberle and Korcyl-Wolska 2002).
Signs of demoralization as a ground for intervention
Persons older than 18 years may not be subject to the proceedings instituted
on the basis of demoralization. In that case, then, the term ‘juvenile’ is iden-
tical with the concept of a minor under Polish civil law. As a consequence
there is no lowest limit whatsoever to judicial intervention in such cases,
and even the youngest children may, at least theoretically, be subject to it.
One of the most controversial issues of this type of intervention under
current Polish law is that the Juveniles Act of 1982 does not provide for a
precise definition of the very term signs of demoralization (Korcyl-Wolska
2001). Article 4 of the Juveniles Act contains only some examples of behav-
iour types or circumstances which typically have to be treated as signs of
demoralization. To those belong violation of the principles of community
life, commission of a prohibited act, truancy, abuse of alcohol or illegal
drugs, prostitution, vagrancy, as well as participation in criminal groups.5

However, this list is by no means complete, and there may be various
grounds for instituting proceedings in cases of demoralization which are
not explicitly provided for on this list. In practice, about 30% of interven-
tions due to this ground are based on grounds ‘other’ than those listed
explicitly in Art. 4 (Habzda 1992). The above regulation was intended to
provide flexibility and broad discretion in initiating state intervention in
families’ and youngsters’ affairs, according to the classical formula of the
‘child savers’ ideology (Platt 1977) and the child welfare model of juvenile
law. This flexibility and discretion may be considered to constitute an
advantage from the point of view of social work. From the point of view of
due process guarantees they may give grounds for serious doubts. Article 4
of the Juveniles Act is in certain parts extremely vague, and as such it may
even be considered nowadays to be unconstitutional. This regards primarily
the first category of Art. 4, or a violation of the principles of community
life. This category is so broad and vague that it includes practically any-
thing.6 It constitutes no doubt the remnant of the communist rule, when
communist authorities wanted to have as broad a ‘safety valve’ as possible,
which could justify intervention in family affairs, also because of political
reasons. Because of this it is rather surprising that since 1990 the lawmak-
ers have undertaken some other changes in the Juveniles Act, but have not
attempted to improve this particular provision of the most controversial
section. Of course it must be remembered that this provision is currently
construed and applied by the independent judiciary. The situation before
1989 was certainly different as there were various limitations on judicial
independence, and various instruments of political influence on judicial
decisions existed. Nowadays, with full guarantees of judicial independence
the situation has changed substantially. Nevertheless the problem remains
as to whether or not too much discretion has been granted here.
Punishable acts as grounds for intervention
The second possible ground for intervention in the case of juveniles is com-
mission of what the law refers to as a punishable act. The Juveniles Act
provides for various forms of responsibility and reactions which may be
5 None of the forms of behaviour mentioned in this provision-with the exception of com-
mission of a prohibited act-constitutes an offence per se under current Polish law. Because of
this demoralization is something much broader than behaviour considered to be criminal. This
means that the concept of demoralization under the Juveniles Act constitutes, as a matter of
fact, an equivalent of status offences under the American legal tradition.
6 The principles of community life clause is often used in various provisions of Polish civil
law, and in this area it has a relatively clear meaning established by the jurisprudence and judi-
cature of the Supreme Court and appellate courts. However, in the area of juvenile law its
meaning is much less clear, and because of this its use may be questionable.
considered to constitute an equivalent of the ‘adult’ criminal law and pro-

cedure. Article 1 § 2.2 of the Juveniles Act provides this time a clear-cut def-
inition of what is meant by this term. It means an offence (i.e. under Polish
criminal law either a felony or misdemeanor) defined in any piece of legis-
lation (i.e. not only in the Criminal Code), including the so-called fiscal
offences (which under Polish law constitute a separate category), plus some
selected contraventions7 listed precisely in that provision. Intervention
based on this ground applies to a narrower age group than in cases of
demoralization, namely persons between 13 and 17 years. The lower limit
of 13 years for juvenile responsibility for punishable acts is set by the
Juveniles Act, and means that children under 13 who commit prohibited
acts are dealt with exclusively as exhibiting signs of demoralization and
treated accordingly. This also means that under current Polish law children
under 13 cannot be held responsible for their ‘offences’ (i.e. actions which
formally violate criminal law provisions), even in a quasi-penal sense.
The upper limit of special juvenile responsibility is set both in the
Juveniles Act and in the Penal Code, the latter providing several further
important regulations here. According to Art. 10 § 1 of the Criminal Code
of 1997, criminal responsibility is possible if the perpetrator at the moment
of the offence is at least 17 years old. Only such persons are considered
under Polish law to be adults for the purposes of penal responsibility.
Persons under that age are in general considered to be juveniles. However,
the age limit of 17 years is not of an absolute character, as the law provides
for some flexibility. Article 10 of the Criminal Code contains two excep-
tions to the above general rule: in some cases persons younger than 17 may
be held responsible according to the rules of the Criminal Code (i.e. as
adults). In other cases persons older than 17 may be treated as juveniles.
The first exception applies to persons who are younger than 17 but older
than 15 at the moment of their lawbreaking. According to Art. 10 § 2 of
the Criminal Code, if such a person commits one of the prohibited acts
(offences) listed in this provision,8 waiver of juvenile jurisdiction and trans-
fer of the case to the adult criminal court is possible. In other words, such
persons may be tried and punished as adults. However, such waiver is by
no means automatic. It must be based on an evaluation of all the relevant
circumstances of a given case, including the personal circumstances of the
7 Under the Polish criminal law system all adult prohibited acts are divided into offences
and contraventions. Contraventions are defined as minor types of rule violations. They are
generally dealt with by fines only, and are decided in a very simplified procedure. Nowadays
contravention cases are handled in courts. Under communism special administrative boards
had this jurisdiction.
8 This list includes assassination of the President of the Republic, homicide and manslaugh-
ter, causing serious bodily harm with deadly consequences, causing a catastrophe of a serious
character, hi-jacking, road accident with fatal consequences, aggravated rape, taking hostages,
and robbery.
juvenile in question. The Code also states that the main grounds for such
waiver of juvenile court jurisdiction is that juvenile measures were applied
earlier without a positive effect (i.e. that the juvenile in question is in fact a
‘recidivist’). But, if such a juvenile is tried as an adult, the Criminal Code
provides a special sentencing rule, namely that the maximum penalty
imposed in such cases shall not exceed two-thirds of the statutory maxi-
mum for a given offence. The court may also apply provisions on the
extraordinary mitigation of punishment (Art. 60 of the Criminal Code)
independently of all other requirements. This may result in imposing a
sentence below the statutory minimum.
It may be worth noting that a similar provision was contained in the
Criminal Code of 1969. However, the new Code introduced one significant
modification that was important from the point of view of due process
guarantees. The old Code was less specific about the types of offence which
give grounds for the possibility of a juvenile being tried as an adult. It
referred only in general terms to certain types of most serious offences;
this gave—at least theoretically—prosecutors and juvenile judges more dis-
cretion in deciding on that issue. The new Code enumerates specific
offences, thus making the use of discretion practically impossible. It must
be underlined that in practice this provision is seldom used—no more than
in a few cases each year.
The above regulation means that currently for persons under 15 (and
above 12) waiver of juvenile jurisdiction is impossible. Such juveniles may
never be held responsible for their wrongdoings according to the rules of
the adult criminal law. For them responsibility under the Juveniles Act and
specific juvenile measures remain the only possibility. It is only 15 to 16
years olds that may be subject to such responsibility, although the rule—
applied in most cases—also constitutes special juvenile responsibility here.
Since the beginning of the 1990s this regulation has been subject to some
public discussion in Poland. Public perceptions of the serious growth of
juvenile delinquency, as well as some very brutal and ruthless violent
offences committed by juveniles publicized broadly by the media, resulted
in demands for the age limit of 15 to be lowered and the possibilities for
applying adult criminal law to juveniles to be broadened. As a matter of fact
the new Criminal Code had lowered it already—in the Code of 1969 this
limit was set at 16 years. For many the lowering of the age limit in 1997
was not enough and demands that it be lowered further to 13 or even 10
years are voiced from time to time, although the chances of such proposals
being implemented remain rather small.
It may also be worth noting that there are certain possibilities for juve-
nile courts to impose penalties, and not only specific juvenile measures. This
situation is regulated by Article 13 of the Juveniles Act. According to this
article, in cases involving juveniles, who at the moment of adjudication of
the case and sentencing are older than 18 years (although they are still
treated as juveniles, if they committed their act before reaching 17), the
juvenile court may waive juvenile measures if it considers them inappropri-
ate and impose ‘regular’ punishment. However, in such cases extraordinary
mitigation of punishment (i.e. its reduction below the lowest statutory
limit) is mandatory.
A possibility of modifying the general age limit of 17 for juveniles in the
opposite direction is regulated in Art. 10 § 3 of the Criminal Code. According
to this article, persons who are older than 17 (i.e. who are in principle
already adults) may be treated as juveniles under certain circumstances, if
at the moment of their offence they were not older than 18. This rule
applies in cases of misdemeanors, but not felonies. Courts adjudicating such
cases may impose measures provided under the Juveniles Act instead of
penalties, if the circumstances of the act and personal characteristics of its
perpetrator warrant it.
Special Treatment of Adolescents
All of the above means that under Polish law persons 17 years and over—
with the above-mentioned minor exceptions—are treated by penal law as
adults and are subject to normal criminal responsibility. However, it must
be noted that the Criminal Code designates a special category of adult
offenders who receive special treatment because of their young age: the
group labelled adolescents (mlodociani). Under Art. 115 § 10 of the
Criminal Code, an adolescent is a person who at the moment of an offence
was younger than 21 years and at the moment of sentencing younger than
24 years. Adolescents constitute only a subgroup within the category of
adult offenders. This means that they are held criminally responsible for
their law violations according to the general rules of penal responsibility.
However, Art. 54 § 1 of the Criminal Code provides a special sentencing
rule or directive which applies exclusively to this category of offenders.
Namely, when sentencing such offenders courts shall consider primarily the
need to rehabilitate them. Moreover, under Art. 60 § 1 of the Code, courts
may always apply with respect to them an extraordinary mitigation of pun-
ishment. Additionally, an adolescent who at the moment of the offence was
not yet 18 years old may not be sentenced to life imprisonment.9 This
means that while punishing adolescents, courts will always consider first of
9 Life imprisonment constitutes the severest possible sanction under Polish criminal law.
The death penalty was abolished in Poland in 1997 by the new Criminal Code, although since
1995 there has been a formal moratorium on executions, which was preceded by an informal
one since 1989. The last execution took place under the communist regime in 1988. Even
when capital punishment was still in use it was prohibited by the law to sentence persons under
18 to death.
all circumstances relevant from the point of view of individual prevention

and rehabilitation, with retribution and general prevention practically set
aside as purposes of punishment.
MEASURES IMPOSED IN JUVENILE CASES
As was mentioned earlier, with few exceptions juveniles under 17 years of

age are assumed to be incapable of forming criminal intent in Poland. Thus
they are not punished for their wrongdoings. For juveniles who show signs
of demoralization or commit punishable acts, the law provides a special cat-
alogue of measures intended exclusively for child care and rehabilitation of
the lawbreaker. This catalogue is set out in Art. 6 of the 1982 Juveniles Act
and contains the following measures:
— caution;
— obligation to behave in a certain way, especially to repair the damage,
to offer an apology to the victim, to continue education at school or
employment, to refrain from presence in certain milieus or places, to
refrain from use of alcohol or drugs;
— responsible supervision by parents or by a custodian;
— supervision by a youth organization or other association, an employer
or trusted person, who is obliged to guarantee the juvenile’s proper
conduct;
— supervision by a probation officer;
— directing the juvenile to a probation centre, a social organization or
institution providing care, therapy or training for juveniles, applied
with the consent of these institutions or organizations;
— ordering the juvenile to be put in a foster family, in an appropriate
child or educational institution or in a training and educational centre;
— ordering the juvenile to undergo appropriate treatment for his/her
mental handicap, mental illness, alcohol or drug abuse;
— withdrawal of driving licence;
— forfeiture of the proceeds of a punishable act;
— correctional centre (suspended or not);
— other measures under the Juveniles Act or Family Code.
Although this list of measures provided by Polish juvenile law is not neces-
sarily extremely broad or innovative, it provides for flexible reactions in
cases of misbehaving and lawbreaking children, that is, reactions aimed
primarily at approaching the root causes of such misbehaviour and law-
breaking located either in the juvenile him/herself or in his/her environment
(primarily the family). It must also be mentioned that the law and practice
stress up to a certain point imposition of measures aimed at improving the
child’s performance in its ‘natural’ family environment. Measures having as

a consequence change of this environment should be applied only if there
is no other way to react. Because of this, measures provided by the Juveniles
Act are usually connected in a more or less obvious way to elements of social
work. Even if they impose certain limitations, deprive the juvenile of something
etc., this is not intended primarily as a punitive reaction.
Flexibility and the possibility of adapting measures imposed earlier to
changing conditions and circumstances constitute the main guiding princi-
ple in the execution of juvenile measures. This means first of all broad pos-
sibilities of changing earlier imposed child care and educational measures if
this is justified by the welfare of a juvenile, as well as the possibility of
imposing additional appropriate treatment measures during the execution
of care, educational and reformatory measures (Art. 79). This is in accor-
dance with the general rule regarding execution of juvenile measures. As a
rule, all these measures have an indeterminate character (i.e. they are
imposed in principle for an indefinite period of time). However, care and
educational measures consisting of the duty to behave in a certain way, of
establishing responsible supervision by parents or custodians, as well as the
withdrawal of driving licence, automatically cease when a juvenile comes of
age (i.e. when he/she becomes 18 years old) unless the court revokes them
earlier. Execution of all other measures, including placement in a correc-
tional centre, ceases automatically when a person is no longer a juvenile for
the purpose of the execution of measures (i.e. when he/she becomes 21
years old).10
All measures listed in Art. 6 may be imposed both in cases of juveniles
showing signs of demoralization, and in cases of juveniles who commit pun-
ishable acts. The most severe measure at the disposal of family courts does
not fall into this category, namely placing a juvenile in a correctional centre
of the borstal type. This measure may be imposed exclusively as a conse-
quence of committing a punishable act. Moreover, it may be imposed only
if a juvenile committed an offence or a fiscal offence. It may not be imposed
as a consequence of a contravention (see footnote 6). An additional prereq-
uisite for imposing this measure is a serious demoralization of the juvenile,
the circumstances and character of his/her act, as well as the fact that earlier
juvenile measures proved to be ineffective. These taken together become the
grounds for a negative criminological prognosis (Art. 10). Execution of an
order to place a juvenile in a correctional centre may be suspended for a
probation period of 1 to 3 years. In such a case it is mandatory for the court
10 This means that, apart from two earlier mentioned meanings of the term ‘juvenile’ (i.e.
persons under 18 for the purposes of intervention in cases of demoralization, and persons
between 13 and 17 years for the purposes of intervention in cases of punishable acts), the
Juveniles Act recognizes a third meaning of this term. For the purpose of the execution of juve-
nile measures, juveniles are persons under 21 years.
to impose parallel care and educational measures. A decision to suspend

such an order must be based on a positive prognosis with respect to the
future behaviour of a juvenile (Art. 11).
Placement in a correctional centre is—like other measures under the
Juveniles Act—of indeterminate character. It may be executed until a juve-
nile becomes 21 years old. The family court may also conditionally release
(parole) a juvenile from a correctional centre, if the progress of his/her reha-
bilitation warrants the conclusion that he/she will not break law in the
future. Conditional release is possible no earlier than after 6 months spent
in a correctional centre. If the court decides to release a juvenile it has to
ascertain a probation period of no less than 1 and no more than 3 years,
and impose mandatory care and educational measures (Arts. 86, 87). Parole
automatically ceases when a person becomes 21 years old.
It should also be mentioned that the Juveniles Act in its Art. 7 provides
for some measures which are imposed not against juvenile him/herself, but
against other persons, first of all his/her parents or custodians. These meas-
ures are:
— obligation of parents or custodians to improve educational, living and

health conditions of the juvenile and to co-operate closely with the
juvenile’s school, educational centre, or employer, as well as his/her
doctor or medical centre;
— obligation of parents or custodians to repair in part or in whole the
damage done by a juvenile.
If the juvenile’s parents do not comply with the above court orders, Art. 8
of the Juveniles Act provides for sanctions for such misbehaviour, beyond
those which may eventually be imposed on the basis of the Family Code.
The family court may impose a financial sanction in the amount of 50 to
1.500 PLN (currently about €10–350).
THE JUVENILE (FAMILY) COURT SYSTEM
Under the 1982 Juveniles Act, jurisdiction over all types of juvenile cases is
placed with special family courts. It is a tradition under the Polish system
that despite the child welfare orientation of juvenile law and juvenile inter-
ventions, measures provided for under juvenile law are imposed by the judi-
ciary, and not by agencies of some other type. During the 1970s, as several
drafts of the Juveniles Act were discussed in various commissions, there was
an idea to introduce special juvenile boards of non-judicial character, con-
sisting of specialists of various types involved in child welfare issues. This
idea, based on Scandinavian examples, received relatively strong support
among some specialists. It was expected that such boards may diminish
even further any remaining punitive character of interventions in cases of

juveniles and reinforce the welfarist orientation of the entire juvenile law
system. However, these ideas were finally rejected, and the existing system
of juvenile or family courts having jurisdiction over juvenile cases was
retained. Interestingly enough, the main argument against the introduction
of such boards of non-judicial character had something to do with the polit-
ical situation in Poland at that time. There was fear that such boards may
be much more susceptible to external influences, including political ones.
Courts, although at that time hardly fully independent according to the
standards of democratic states, were still better equipped to resist such
eventual influences.
Family courts are created on the basis of Art. 18 of the Courts Act by an
ordinance of the Minister of Justice. In practice they form special divisions
within the county courts (i.e. the lowest courts within the court structure
in Poland). In 2001 there were 314 family courts in Poland, with about
900 judges. The idea of such courts came about many years ago, during
the 1970s (i.e., again under communism). According to the Courts Act,
such courts shall have jurisdiction over all legal issues, both civil and crim-
inal, related to the functioning of the family. This idea is quite similar to
the stance once popular in the U.S. that understood ‘the clientele of the
juvenile court as “families with service needs”’ (Weijers 1999a, 32). Because
of this Polish family courts had jurisdiction not only over cases of juvenile
delinquency, but also over cases resulting from family law matters (includ-
ing divorce), and criminal cases against adults involving family issues (e.g.
non-payment of alimony or subsistence, family violence, etc.). Judges of
these courts should have better knowledge about all the problems of a
given family. Second, they should have training broader than an exclu-
sively legal one, including some additional knowledge of psychology, soci-
ology, social work, etc. Family courts should also have on their staff
specialists in these disciplines. During the 1990s the jurisdiction of family
courts was limited, as divorce cases were transferred to provincial (district)
courts, and family related adult criminal cases to penal divisions of county
courts. Nevertheless, they retained jurisdiction over all juvenile cases under
the 1982 Juveniles Act and all family cases under the Family Code, except
divorce.
It may be worth noting that despite the very important role of juvenile
courts within the Polish system of administration of justice, the position of
family judge or juvenile judge is not necessarily very highly regarded. In the
opinion of many judges this constitutes a sort of ‘dead end’ for a judicial
career and for further promotion to district courts or appellate courts. The
reason for this is that juvenile judges are considered to have very narrow
specialisation, as a matter of fact neither in civil nor in penal law, and have
experience which is useless from the point of view of the requirements for
becoming an appellate judge.
PROCEDURE UNDER THE JUVENILES ACT
General rules of procedure in cases of juveniles
As was mentioned above, according to Art. 2 of the Juveniles Act, actions

and interventions possible under this act may be undertaken either if a juve-
nile shows signs of demoralization, or if he/she commits a punishable act.
In both cases imposing juvenile measures may be justified. However, cir-
cumstances justifying the imposition of such measures have to be estab-
lished formally, in a special type of proceeding. Like ‘adult’ criminal
procedure in any continental system, Polish procedure in cases of juveniles
also consists of two basic phases. It starts with what Art. 33 of the Juveniles
Act refers to as explanatory or investigative proceedings (postepowanie
wyjaśniajace),11 which constitutes roughly speaking the equivalent of a
formal investigation in ‘adult’ criminal procedure. Depending on facts and
circumstances revealed and established during the investigative phase, a
case may be either dismissed or followed by the court phase, constituting an
equivalent of the ‘adult’ trial. This phase may take two different forms,
namely care and educational proceedings (postepowanie opiekuńczo-
wychowawcze), or reformatory proceedings (postepowanie poprawcze).
Procedures under the Juveniles Act have several particular features. First,
they constitute an unusual mix of rules and provisions of both civil and
criminal procedure. The Act itself contains only some of the most basic
procedural provisions and regulates only a few issues directly. Otherwise it
provides in Art. 20 that in principle provisions of the Code of Civil
Procedure on so-called non-litigious matters are applicable in cases of juve-
niles. Additionally the collecting and recording of evidence, participation of
the defence counsel, and reformatory proceedings are subject to the provi-
sions of the Code of Criminal Procedure. Thus, the basic idea underlying
proceedings in cases of juveniles is that it should be procedure of a civil
type, with criminal procedure applicable only on a supplementary basis.
This decision of the Polish legislature not to create specific procedural reg-
ulations for juvenile cases, but to apply procedural provisions of other
codes, is subject to some criticism in the Polish literature (Korcyl-Wolska
2001, 54–55). It is argued that the provisions of civil procedure are not able
to regulate this type of proceeding properly. Moreover, civil procedure in
non-litigious cases was created to regulate a completely different type of legal
issue, thus it does not suit juvenile cases. Because of this, many practical
11 The exact English equivalent of the Polish term postepowanie wyjaśniajace would be
‘explanatory proceedings’. As this sounds rather artificial in English the term ‘investigative
proceeding’ will be used here to designate this phrase.
problems were created, including several loopholes which had to be filled—

also by the judicature of the Supreme Court—using some complicated legal
arguments and interpretation rules. This led again to various doubts from
the point of view of due process and other constitutional guarantees.
The investigative phase in cases of juveniles
A second feature of juvenile proceedings in Poland is the crucial role that is

played by a family or juvenile judge. This includes the investigative phase
which remains primarily in the hands of this judicial agency, having a posi-
tion similar to the investigating magistrate in some continental criminal
procedure systems, otherwise unknown in ‘adult’ criminal procedure in
Poland. As a consequence public prosecutors have a very limited influence
on juvenile cases in Poland. There is no special prosecutorial agency for
juvenile matters (as there is in Germany). In addition, the role of the police
during the investigative phase is—at least theoretically—of a very limited
character.
Juvenile judges enjoy broad powers. One of the most important of these
is regulated in Art. 21 § 1 of the Juveniles Act: it is the juvenile judge, and
not the police or public prosecutor, who has the sole competence to insti-
tute formal investigative proceedings. The judge may do this if there is a
good reason to suspect that a juvenile shows signs of demoralization or
that he/she committed a punishable act. From the point of view of civil
rights guarantees for both a juvenile and his/her family, it is important that
if a juvenile is merely at risk of demoralization it is not enough to institute
juvenile proceedings. According to the prevailing jurisprudence, he/she has
to show actual signs of demoralization (Korcyl-Wolska 2001, Gaberle and
Korcyl-Wolska 2002). If he/she is endangered only by demoralization, it is
a matter for intervention by social welfare agencies and other measures,
including judicial measures but under the Family Code regarding child care
and custody.
Most importantly, as opposed to the ‘adult’ criminal procedure, which in
Poland is governed strictly by the principle of mandatory prosecution,
according to Art. 21 § 2 of the Juveniles Act proceedings in cases of juve-
niles are governed by the expediency principle, and juvenile judges enjoy
broad discretionary powers. The judge may always refuse to institute pro-
ceedings or choose to discontinue them, if he/she considers imposing any
care and educational or reformatory measures to be improper or unneces-
sary in a given case. In the latter situation it may also mean diversion of the
case to be dealt with appropriately by a juvenile’s school, or an organiza-
tion or association he/she belongs to. In such cases the school or the organ-
ization or association to which the case has been transferred has the duty
to inform the judge about actions undertaken and their results.
It is also worth mentioning that since the amendment to the Juveniles Act
adopted in 2000, additional possibilities of diversion have been introduced.
The new Art. 3a of the Juveniles Act provides that at any stage of the pro-
ceedings the juvenile judge, while acting on the initiative or with acceptance
of both juvenile and victim, may transfer the case to mediation by an insti-
tution or a trustworthy person. Results of such mediation efforts shall be
presented to the judge by this institution or person and taken into consid-
eration while deciding the case. This provision constitutes a first attempt to
introduce elements of restorative justice in a formal way into the Polish
legal system. So far, practical experience with this form of deciding juvenile
cases is rather limited. Nevertheless, Art. 3a was introduced as a result of
the encouraging results of a pilot experimental program of mediating juve-
nile cases which has been running in eight family courts since 1995. This
experiment has laid the groundwork for the development of certain institu-
tional elements of a mediation system in Poland (Czarnecka-Dzialuk and
Wójcik 2001).
It is important to note that the discretionary powers of the judge are not
unlimited, as they are subject to appellate review. Decisions of the family
judge to institute proceedings, as well as refusing to institute or to discon-
tinue them, may always be appealed, also by the victim (Art. 21 § 3). This
situation is the subject of intense discussion in the Polish literature. In prin-
ciple the rights of the victim, and possibilities of influencing the course of
proceedings with various motions—normally rather broad under ‘adult’
criminal procedure—are severely limited in juvenile proceedings. This is
considered to be justified by the special purpose of this type of proceeding,
namely that the welfare of a juvenile and his/her rehabilitation are the most
important aims of intervention. Because of this right to appeal, the juvenile
judge’s decision to refuse to institute proceedings or to discontinue them
constitutes one of the very few instruments which remain in the hands of
the victim. For some time, especially due to some cases of serious violent
offences committed by juveniles and publicized by the media, this regula-
tion is hotly contested. Various victim organizations and associations are
struggling for more victim rights in juvenile courts. However, so far and
in accordance with the ‘child welfare’ ideology, the legal position of the
victim in juvenile proceedings remains significantly weaker than in ‘adult’
criminal procedure.
The main purposes of the investigative phase of the proceedings in cases
of juveniles are to reveal all relevant circumstances of the case, and to col-
lect and record all relevant evidence for the purpose of future use during the
trial. Due to the character of this proceeding devoted primarily to the
welfare of the child, the juvenile judge also has the duty to collect all rele-
vant personal data on the juvenile, as well as on his/her family. In this
respect juvenile courts have to rely on specialized institutions, so-called
family diagnostic and consultative centres. They are entrusted with the task
of conducting complex examinations of juveniles and their families and

preparing expert opinions in these matters for family courts. In 2001
there were 67 such centres in the country, and they employed 582 special-
ists of various types, including educational specialists, social workers,
psychologists, psychiatrists and doctors of other specialization. As such
they constitute an example of a bureaucracy based on the ideology of social
work. People working within it consider themselves to be members of help-
ing professions, rather than members of criminal justice agencies. This has
an important influence on the way in which juvenile courts function, and
on the non-punitive character of their dispositions.
The role of the police and public prosecutor during investigative proceed-
ings is limited. All activities, including interviewing a juvenile, witnesses,
expert witnesses, or taking any other evidence during the investigative pro-
ceedings are performed by the juvenile judge personally. According to the
law the police may only perform certain activities which are necessary at
the crime scene, or in case of a delay. Otherwise, they must act exclusively
on the orders of the juvenile judge (Art. 37). Of course, the realities of mod-
ern investigation, especially in cases of serious and complicated offences,
requiring various types of specialized police activities and forensic expertise,
result in a situation in which juvenile judges must rely heavily on the police.
Otherwise they would be unable to investigate many cases properly.
Nevertheless, for a juvenile judge it would be a violation of the law to turn
over the entire investigation of the case, or its substantial parts, to the police.
The special role played by the juvenile judge during the investigation of
juvenile cases of both types (cases of demoralization and cases of punishable
acts) may mean that the role of the investigative phase in juvenile procedure
increases, and it starts to dominate the court proceedings, with the role of
the trial being marginalized. This may certainly be true, and corresponds
with the general tendency towards the growing influence of the investigative
phase in criminal proceedings (Schüler-Springorum 1999). This tendency,
especially problematic in continental criminal processes, may be balanced in
cases of juveniles in Poland, at least to a certain extent, by the fact that the
investigation is conducted by an independent judicial agency.
A juvenile enjoys several civil rights guarantees during the investigative
proceedings, independent of whether a ground for instituting proceedings
constituted signs of demoralization or a prohibited act. First of all, he/she
has the right to counsel. If there is a conflict of interests between the juve-
nile and his/her parents, participation of counsel is mandatory. Participation
of counsel is also always mandatory during reformatory proceedings in
court. Counsel has access to all files of the proceedings, and the right to par-
ticipate in certain activities during the investigation. The most important of
such activities is taking the testimony of the juvenile under investigation.
Interestingly enough, he/she is not referred to as a ‘suspect’, a term used by
‘adult’ procedure, but as a juvenile. Such a hearing takes place in principle
in front of the juvenile judge. Only in exceptional situations, namely in the

case of delay, may it be performed by the police. But during the juvenile’s
testimony certain additional persons, apart from the judge or a policeman
on the one side, and the juvenile on the other, must be present. Usually it
has to be either the juvenile’s counsel or his/her parents or both. If their par-
ticipation is impossible it may be the juvenile’s teacher, or a representative
of an appropriate family welfare institution or of an NGO involved in help-
ing families, who must be present during the testimony. Empirical research
on this issue shows that, unfortunately, provisions on mandatory presence
of these persons during the juvenile’s testimony are often disobeyed
(Korcyl-Wolska 2001, 174–83).
The Juveniles Act of 1982 also regulates issues of arrest and preliminary
detention of juveniles. Special rules, which are different from those in adult
criminal procedure, apply here. First, the police have the right to arrest juve-
niles suspected of prohibited acts (Art. 40 § 1). This means that arrest is not
possible in cases of demoralization. Arrest may take place in cases of prohib-
ited acts only if there is a possibility that a juvenile may escape, distort evi-
dence or where it is impossible to establish his/her identity. The police have
to inform the juvenile’s parents and the family court about the youth’s arrest
within 24 hours. Arrested juveniles cannot be placed in ‘regular’ police jails
or detention centres where adults are held. They must be placed in special
institutions called police children shelters, intended exclusively for juveniles.
Although they are run by the police, their staff usually have additional train-
ing and specialize in dealing with juveniles. The decision to arrest may be
appealed to the juvenile judge, and the juvenile suspect shall be informed of
this right. Under Art. 40 § 6.4 of the Juveniles Act and Art. 41.3 of the
Constitution, a juvenile—like any other citizen—may be held under arrest
for up to 72 hours. If the grounds for arrest are not confirmed, he/she must
be released immediately. He/she must also be released if during the said 72
hours a family court does not impose an equivalent of preliminary detention
in ‘adult’ criminal procedure (i.e. places the juvenile for a longer time in a
special juvenile detention institution or remand house), or send him/her tem-
porarily to a child care or educational institution.
Analogous to the regulations of ‘adult’ criminal procedure, the Polish
Juveniles Act does not provide for the Anglo-American institution of bail.
This means that after arrest the court must decide whether to apply any spe-
cial measures intended to secure the suspect’s presence during trial or not. In
cases of juveniles these issues are regulated by Arts. 26 and 27 of the
Juveniles Act of 1982. The first of these provisions states that it is possible
to apply various preliminary measures such as supervision by an association,
a youth organization or an employer, as well as preliminary supervision by
a probation officer or a trusted person. A juvenile may also be temporarily
placed in educational institutions of various types. Only in cases of pro-
hibited acts which later may provide grounds for instituting reformatory
proceedings and imposing a special measure of placement in a correctional

centre is it possible (Art. 27) to apply during the investigative proceedings an
equivalent of preliminary detention (i.e. place a juvenile in a remand house
for a longer period of time). Such a decision may be justified either by the
fact that there is a danger that the juvenile will escape or distort evidence, or
by the fact that it is impossible to establish his/her identity, or he/she is sus-
pected of having committed certain very serious prohibited acts (offences),
listed in Art. 27 § 2 of the Juveniles Act—for example murder, rape or rob-
bery. Decisions on placing juveniles in a remand house are made by the juve-
nile judge. Initially a juvenile may be placed in such remand house for no
longer than three months. This may be extended by an additional three
months by a panel consisting of one juvenile judge and two lay assessors.
This means that detention in a remand house during the investigation can-
not exceed six months. According to Art. 27 § 6 of the Juveniles Act, joint
duration of detention until conviction by the court of original jurisdiction
cannot exceed one year. This means that if the juvenile has to stay in a
remand house during the entire proceedings, the investigative proceedings in
a juvenile’s case must be completed within 6 months, and the trial within the
next six months. There are some possibilities of extending the stay in a
remand house beyond this one-year term, but they are extremely limited.
Trial in juvenile cases
Depending on the results of the investigative proceedings, the juvenile judge

has several options for completing it. He/she may resort to discretionary pow-
ers and discontinue proceedings, with or without diverting a case to other
institutions. If he/she considers that discontinuation is not proper and further
action is necessary, a decision to transfer the case for trial in the juvenile court,
or to transfer it to the public prosecutor with a motion to waive juvenile juris-
diction and bring charges under Art. 10 of the Criminal Code according to
the adult procedure, is required. Decisions of this latter type are extremely
rare. This means that the most typical decisions ending investigative proceed-
ings are decisions to open trial in the juvenile court (Habzda 1992).
Trial in the juvenile court, depending on the decision of the judge who
investigated the case, may take one of two forms: care and educational
proceedings or reformatory proceedings. The decision of the judge as to which
type of procedure should be applied depends on what kind of measures
he/she considers to be appropriate in a given case (i.e. either care and edu-
cational measures or reformatory measures). Care and educational meas-
ures may be applied in cases of both demoralization and prohibited acts, and
constitute the vast majority of measures imposed by Polish family courts in
juvenile cases of all types (see below). Reformatory measures may be
applied only in cases of prohibited acts.
The two types of proceedings differ greatly. As was mentioned earlier,

care and educational proceedings, with a few exceptions, are governed
exclusively by provisions of the Code of Civil Procedure. Therefore this
type of procedure is flexible. The punitive purpose is nearly totally absent,
and thinking in categories of child welfare clearly dominates. Decisions are
taken in a clearly non-adversarial environment,12 and certain civil rights
guarantees typical of criminal procedure are weakened or even totally
absent. From this point of view it is necessary to stress that in practice the
vast majority of juvenile cases are tried according to this form of procedure.
Even in cases of punishable acts, more than 90% of cases are tried in this
form, which means that in total this form on average constitutes more than
96% of juvenile cases. This practical domination of care and educational
proceedings means also that an exclusively child welfare oriented type of
procedure dominates the Polish juvenile justice system.
As opposed to care and educational proceedings, reformatory proceed-
ings in juvenile courts are regulated by the provisions of the Code of
Criminal Procedure (Górecki 1997). Thus, this type of procedure stresses to
a greater extent civil rights and issues of procedural guarantees. It also
has a quasi-penal character. However, there are some differences between
reformatory trial proceedings in cases of juveniles on the one hand and
‘adult’ criminal procedure on the other. For example, during reformatory
proceedings participation of counsel is mandatory. This is not always the
case in ‘adult’ criminal procedure, and during investigative proceedings in
juvenile cases it is only a possibility. This gives reformatory proceedings a
more adversarial character that is reinforced by the fact that in some,
although not all, cases participation of the public prosecutor is also manda-
tory.13 In reformatory proceedings the court panel consists of a juvenile
judge and two lay assessors (which is the rule in ‘adult’ proceedings), while
in care and educational proceedings a single judge presides over the pro-
ceedings (Art. 50 of the Juveniles Act). Finally, as opposed to adult crimi-
nal procedure, juvenile trials are closed to the public, unless special
educational interest warrants waiver of that rule.14
12 Of course from an Anglo-American perspective any continental procedure is considered
to be of an inquisitorial character. Nevertheless, the adversarial character of procedure may be

subject to gradation, and continental procedures may contain various elements of an adversar-
ial system. Because of this it may be rightly claimed that Polish juvenile court proceedings in
cases of punishable acts have a much more adversarial character than such proceedings in
cases of demoralization.
13 This may be considered to be unusual, since the public prosecutor does not play any role
in investigating juvenile cases, and does not prepare a charge sheet in such cases. Activities of
an equivalent type are undertaken by the juvenile judge in such cases.
14 In addition, court hearings in care and educational proceedings are closed to the public,
but this is a rule in civil non-litigious proceedings, as opposed to criminal proceedings, where
hearings are as a rule public.
Despite the fact that reformatory proceedings are regulated by the provi-
sions of the Code of Criminal Procedure and bear a close similarity to the
‘adult’ criminal trial, it cannot and should not be considered to be of a pri-
marily penal or punitive character. As was mentioned earlier, the only refor-
matory measure known to Polish juvenile law (i.e. correctional centre
suspended or not) is not considered to constitute a punishment. And this is
true despite the fact that it bears a certain similarity to deprivation of lib-
erty or to a suspended sentence under ‘adult’ criminal law. Nevertheless a
correctional centre is not a prison. It constitutes a juvenile measure, and its
application and execution are governed by the general rule of Art. 3 § 1 of
the Juveniles Act (i.e. child’s welfare and rehabilitation). Moreover, if the
court after trial comes to the conclusion that reformatory measures are not
justified in a given case of a punishable act, it may always impose care and
educational measures.
THE STATISTICAL PICTURE OF JUVENILE DELINQUENCY

AND JUVENILE JUSTICE IN POLAND
The above description of the Polish juvenile justice system may be supple-
mented by some statistical data on the juvenile delinquency problem in
Poland, as well as the functioning of the juvenile justice system. First of all
it is necessary to stress that Poland, like all other countries of Central and
Eastern Europe after the political, economic and social change which began
in 1989, saw a serious growth in registered offences (Jasinski 1995; 1999,
Widacki 2001, Krajewski 2004). A detailed presentation of this phenome-
non and its causes goes beyond the scope of the present analysis—only a
few general remarks are possible here. After a sharp jump in the registered
offence rate in 1990 (from 1,440 per 100,000 inhabitants in 1989 to 2,317)
during the first half of the 1990s this rate actually stabilized. It was only
during the second half of the decade that it began to grow again in a signif-
icant way (Figure 1).
As a consequence, the rate of registered offences in 2001 was approxi-
mately 55% higher than it was in 1990. If one considers additionally the
fact that especially rapid growth could be observed in the area of violent
offences, such as assault, bodily injury, robbery and homicide, which were
growing much quicker than property offences, it may be argued that the
evolution of the crime problem in Poland took a very problematic direction.
In the literature this picture is often countered with the argument that avail-
able results of victimization surveys do not necessarily confirm this dra-
matic growth trend. They show rather that the prevalence rate of
victimization has stabilized or even decreased slightly during recent years,
although readiness to report offences remains extremely low, which results
in a large dark figure. However, this readiness to report seems also to be
Figure 1: Overall offense rates and juvenile offences rates.
growing steadily. This means that the growth of registered offences may
result primarily from increased readiness to report them to the police.
Nevertheless, if one compares the development of the adult offence rate
and the juvenile offence rate during the 1990s, it becomes obvious, first of
all, that the latter remained much lower than the former. Its growth was
also somewhat less spectacular than in the case of adults, and at the begin-
ning of the present decade even some slight decrease could be observed.
Because of these different developments the juvenile offence rate in 2001
was 49% higher than in 1990, as compared to 55% growth in the overall
offence rate. This picture certainly becomes more pessimistic if one consid-
ers developments in the area of some violent offences committed by juve-
niles (Krajewski 2003) (Figure 2).
Here growth rates were significant, sometimes even spectacular, such as
in the case of robbery. They increased more than tenfold during the 1990s!
But also in cases of assault or causing bodily harm these increases were very
significant. This necessarily brought about changes in the structure of reg-
istered juvenile offences (Figure 3).
Prior to 1990, juvenile delinquency in Poland was dominated by property
offences, such as simple theft and burglary, which even in 1990 still consti-
tuted almost 80% of all juvenile offences registered by the police. Certainly,
this changed during the 1990s, as in the year 2001 the proportion of prop-
erty offences among all juvenile offences decreased to about 40%, while the
proportion of violent offences grew to more than 20%. Interestingly enough
Figure 2: Development of selected violent juvenile offences.
it is the category ‘other’ which has also grown significantly, to slightly less
than 20%. This was mainly due to a substantial growth in the drug offence
rate. However, it may be interesting to note that despite all this, the propor-
tion of juvenile offences among all registered offences (Figure 4) still
remains fairly low (under 10%). Moreover, after growth during the first
half of the 1990s it started to fall, and in 2001 it reached a historical low
of 4.9%.
Figure 3: Structure of juvenile offences.

Figure 4: Proportion of offences commited by juveniles among all offences.
All this may indicate that juvenile delinquency in Poland does not neces-
sarily pose a serious problem in quantitative terms, but undergoes certain
qualitative changes which may give reason for some concern: it becomes
more violent and generally more serious. This may be true, although some
reservations are necessary. A comparison of registration and processing pat-
terns of juvenile delinquents in some central and western European cities
(Neubacher et al 1999) shows that these patterns are quite different. It
seems for example that in Hamburg a very high number of registered acts
is followed by an extremely intensive selection processes and very high
‘drop-out’ ratio. In Central European cities (Budapest, Prague, Krakow) the
number of registered offences is much lower, but at the same time selection
processes seem to be much less intensive. This may give grounds for the sus-
picion that a substantial proportion of less serious delinquent acts in
Central Europe either go unnoticed by the police or are selected-out in a
quite informal way and are never officially registered. This would mean of
course that the dark number of juvenile offences in Central Europe may
remain extremely high.
Similar patterns indicate data regarding juvenile suspects, although here
general rates of suspects and rates of juvenile suspects developed according
to a much more similar pattern than offence rates (Figure 5).
But the juvenile suspect rate was usually also 30–40% lower than the
respective adult rate. Interestingly enough, if one examines the age distribu-
tion of offenders (Figure 6), it becomes clear that although substantial
changes took place during the 1990s in the incidence of criminal behaviour
in all age brackets, it was not necessarily the bracket of 13–16 years that
was most problematic.
Figure 5: Adult suspect rates and juvenile suspect rates.
This distribution in 1989 was still relatively flat, and differences in the
incidence of criminal behaviour between younger and older offenders were
not very high. During the 1990s this changed, and younger age brackets
experienced a sharper growth in offending than the other age categories.
However, this growth was most substantial among 17–21 year olds (i.e.
among adolescents), which have the highest offence rates, and not among
juveniles. At the same time the proportion of juvenile suspects among all
suspects remained fairly stable and low during the 1990s. In recent years
this proportion decreased even further, following the same pattern as the
number of registered offences (Figure 7).
Figure 6: Age distribution of persons suspected of offences.

Figure 7: Proportion of juveniles suspected of offences among all suspects.
The remaining data illustrate the reality of the Polish juvenile justice sys-
tem, and the way it adapted to the changing patterns of juvenile delin-
quency. First of all it is worth noting that the number of juvenile cases in
family courts grew substantially during the 1990s (Figure 8).
The number of cases related to signs of demoralization doubled during
that time, while the number of cases related to punishable acts more than
doubled. The fact that the number of cases of the second type has been
growing a little bit faster is confirmed by the fact that in 1990 their ratio
was 1:2.5. In 2001 it became more than 1:3. This means that the majority
(about three-quarters) of all juvenile interventions under Polish juvenile law
Figure 8: Juveniles dealt with by family courts because of demoralization and

because of punishable acts.
are related to punishable acts. Despite these changes in the rate and struc-
ture of juvenile offending, the structure of sanctions imposed by juvenile
courts remained almost unchanged (Figures 9 and 10).
There are even some indications that a more lenient and liberal approach
actually established itself in the practice of family courts. In both types of
juvenile cases, namely cases of demoralization and cases of punishable acts,
the type of measure most often used, applied in about a third of cases of
both types, is supervision by a probation officer. Although the use of pro-
bation decreased during the 1990s, it was followed by more intensive use
of such measures as cautions and obligations of various types. This may
Figure 9: Structure of measures imposed in cases of demoralization.
Figure 10: Structure of measures imposed in cases of punishable acts.

have two bases. First, during the 1990s Polish criminal policy in cases of
adults underwent a significant process of liberalization, as compared with
the communist period (Krajewski 2004). For example, a significant drop in
the use of imprisonment and an increase in the use of fines took place.
Additionally, the average duration of imprisonment went down. Something
similar may occur also in cases of juveniles, as courts opt for less restrictive
sanctions. But it may also be that the less intensive use of supervision by
probation officers resulted from probation agencies being overloaded with
work, which in turn forced courts to seek alternative measures.
Finally it is worth noting that the use of the most restrictive juvenile
measure, namely the correctional centre, remained quite limited. This meas-
ure was and still is applied on average in less than 10% of all cases of pun-
ishable acts and showed decreasing use, which ended in a spectacular fall to
4.1% in 2000! And all of this despite the growing number of more serious
juvenile offences. It seems that in the opinion of the judges, who have daily
contact with the realities of juvenile delinquency, there is no need to react
to these tendencies in a harsher way. This may be confirmed by the fact that
a vast majority of measures imposed in cases of punishable acts are care and
educational measures, and not the reformatory option (Figure 11).
At the same time, despite some growth in 2000, the majority of reforma-
tory measures or correctional centre orders imposed by Polish juvenile
courts (about three-fifths) remain suspended (Figure 12).
This indicates again that in face of the above mentioned qualitative
changes in juvenile delinquency, Polish juvenile judges either moved in
favour of a more lenient treatment of juvenile offenders, or do not perceive
the problem of juvenile delinquency in such a dramatic way as the media
and politicians.
Figure 11: The proportions of care and educational, and reformatory measures
imposed in cases of punishable acts
Figure 12: The proportions of suspended and non-suspended correction centre orders
CONCLUSIONS
Current laws regulating the juvenile justice system in Poland are clearly ori-
ented towards a ‘child welfare’ model, with the rehabilitation of young
offenders constituting the main task of all actions undertaken in cases of
juvenile law violators. It means that the basic idea behind the creation of
the juvenile courts in the U.S. at the end of the nineteenth century, namely
that children in trouble ought to be ‘saved’ and not ‘punished’ (Weijers
1999a, 330), also underlies the Polish juvenile justice system. As a conse-
quence, procedures in juvenile cases are constructed in a much more flexi-
ble way than in adult cases. Much more discretion is permissible, and the
law gives broader possibilities for intervention in a juvenile’s life than is the
case with adults. Finally, juvenile measures are not aimed at punishment of
the lawbreaker, but almost exclusively at his/her treatment and rehabilita-
tion. However, this does not necessarily mean that what Weijers (1999a,
341) refers to as efficiency and consequentialism have absolute priority over
civil rights. It is true that an emphasis on child needs often results in the
conviction that there is no need to safeguard all his/her procedural rights
(Trépanier 1999a, 314). It seems, however, that the Polish legislation was in
principle able to strike a common sense balance between these elements of
any juvenile justice system. As a recent major empirical study on this sub-
ject (Korcyl-Wolska 2001) shows, this balance may not be perfect, and
there are sometimes serious practical problems. Nevertheless, it does not
result in widespread excesses or abuses. Interestingly, such a model has
existed in Poland since before World War Two and its principles were not
changed under the communist rule. Because of this, the 1982 Juveniles Act
still remains in force as basic assumptions underlying its regulations were

acceptable also from the point of view of the new democratic state.
Notwithstanding this, since 1989 certain amendments were introduced
which made some civil rights guarantees more explicit. This change was in
accordance with the general tendency in penal and other types of legislation
in Poland during the 1990s when issues of human rights and protection
against abuses of power constituted the main point of attention. Such a ten-
dency was absolutely natural in a country which has shaken off communist
authoritarian rule.
Due to growing problems with juvenile delinquency and particularly
juvenile violence, or rather a public perception of this, the public, media
and politicians increasingly support a more punitive approach to the prob-
lem of juvenile delinquency. Demands to lower the age limit of criminal
responsibility, or even to end the treatment ideology in the juvenile justice
system altogether are often heard. This seems to be in accordance with cer-
tain tendencies that may be observed primarily in the U.S. and Canada
(Trépanier 1999a; 1999b), but also to a much lesser extent in Europe
(Weijers 1999a, Kilchling 2002). This return to classical thinking about the
responsibility of juveniles, and stress on retribution and ‘doing justice’ can
be observed especially clearly in the U.S. The prior ideology of child welfare
is being substituted there by the tendency to make a ‘sharp distinction
between young offenders and children in need of protection’ (Trépanier
1999a, 321). It is only the last group which is approached with the tradi-
tional welfare model. Young offenders are treated increasingly, in accor-
dance with the general tendency of the American criminal justice system, in
a punitive, retributive manner, like any other offenders.
So far, such tendencies have not prevailed in Poland, where the phenom-
enon of the ‘cycle of juvenile justice’ (Bernard 1992) seems to be absent (so
far). This may be a general European pattern. In the opinion of Weijers
(1999a, 339) this is mainly due to the fact that most European systems of
juvenile justice never implemented the child welfare ideology in such a far
reaching manner as was the case in the U.S. and never constituted agencies
acting in such an informal and discretionary way. As a consequence, in
Europe status offenders and children in need of care were always treated in
a different manner from juvenile offenders (which does not necessarily
mean that the latter were treated in a punitive way). Because of this, the
position of juvenile courts in Europe and their special jurisdiction seems to
be much more solid and stable than in the country of their birth. This seems
to be the case also in Poland, where differentiation between children who
show signs of demoralization and children who commit punishable acts
results in a differentiated treatment of both categories. To the first group an
exclusively welfare oriented approach applies, to the second—especially to
perpetrators of the most serious offences—an approach in which more
elements of penal reactions are included.
Interestingly enough, the child welfare approach to the problem of juve-

nile delinquency was—and still is—criticized from various points of view. It
is not only the classical, retributive, justice oriented argument which is used.
It is also an argument based on the principles of human rights and due
process, which points out that the welfare and treatment ideology (not only
in cases of juveniles) leads simply to unjust and unequal decisions and out-
comes (Beaulieu and Cessaroni 1999, 374). From this point of view it may
be asked what influence eventual changes in the direction of the guilt and
punishment instead of the diagnosis and treatment model could have on
issues of protecting the civil rights of juveniles. Paradoxically, a move
towards more punitive, neo-classical elements in the juvenile justice system
does not necessarily include increased protection of these rights. Experience
teaches us that nowadays any reforms in the direction of an increasingly
punitive character of criminal law usually involve a parallel dismantling of
various guarantees of civil rights. Because of this, despite all its shortcom-
ings and inadequacies, the current child welfare oriented model of juvenile
justice in Poland seems to better serve not only the cause of controlling juve-
nile delinquency, but also the cause of protecting the civil rights of juveniles.
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1891–1901. European Journal of Crime, Criminal Law and Criminal
Justice, vol. 7, No. 1, pp. 63–80.
Widacki, Jan (2001) Criminality in the Central and Eastern European
Countries in the Period of Transformation 1989–1999. In J. Widacki,
M. Maczynski, and J. Czapska (eds.), Local Community, Public
Security. Central and Eastern European Countries under
Transformation. (Warsaw, Instytut Spraw Publicznych), pp. 13–24.
10
Responses to Juvenile Crime:
The Swedish System
JERZY SARNECKI
INTRODUCTION
T
HE ENGLISH CONCEPT ‘juvenile delinquency’ has no direct equivalent
in the Swedish language or in the Swedish legal system. Instead, in
Sweden we usually speak of juvenile criminality, a concept which
differs from juvenile delinquency in that it does not include so-called status
offences, i.e. acts committed by juveniles which constitute a crime but are
legal if they are committed by adults. Of course this does not mean that
the Swedish authorities do not react if young people drink alcohol, run
away from home or commit other acts which jeopardise their development.
However, the authorities’ reactions in such cases have the character of
social measures and are regulated by social legislation, not penal legislation.
In this paper the term ‘juvenile delinquency’ is used synonymously with the
Swedish concept of juvenile criminality and thus covers all acts which are
subject to penal sanctions according to Swedish law.
The objective of this paper is to describe the ways in which Swedish
authorities respond to juvenile delinquency/criminality and also how this
response has changed over the past two decades. These changes will then be
related to existing knowledge of the extent and character of crimes commit-
ted by young people over the course of the period in question.
TRENDS IN JUVENILE DELINQUENCY OVER TIME
On the whole, criminality in Sweden has increased greatly since the mid-
1920s. This is most frequently explained by the increase in the level of
opportunities for crime. People today own a lot of attractive goods which
are also relatively easily accessible. Cars constitute a good example of this.
Considering their value, they are relatively easy to steal. The enormous
expansion in private car ownership in Sweden (435 per 1,000 inhabitants
188 Jerzy Sarnecki
in 2002) has affected the structure of Swedish criminality considerably, not

only in terms of thefts, but also as a result of traffic offences and other kinds
of offences. The introduction of self-service in shops constitutes another
example of a social trend that has had a major effect on criminality.
However, changes in the level of criminal opportunities are by them-
selves insufficient to explain the changes that occurred in crime rates over
the course of the last century. We can see this if we examine the number
of individuals convicted1 of offences in Sweden. This number has
increased dramatically during the last century. The extent of the increase
is very different across different age groups, however. According to statis-
tics relating to persons convicted of serious offences2 (von Hofer 2004
tab. 5.6) the proportion of 15 to 17 year olds convicted of such offences
increased from approximately 0.35 per 100,000 individuals in this age
group in the mid-19th century to 27.60 in the mid-1970s.3 Thus we are
looking at an increase of almost 80 times. The increase was considerably
less marked within the older age groups (26 times for those aged 18 to 20,
16.5 times for those between 21 and 29 years of age, 6.0 for those aged
between 30 and 39) and was low among the oldest group presented, i.e.
individuals aged 40 years and over, where the proportion increased only
2.8 times (from 0.58 per 100,000 in the mid-19th century to 1.56 in the
mid-1970s). Since the mid-1970s, the number of persons being registered
has decreased.
The major differences in crime trends across different age groups suggest
that changes in the opportunity structure are not sufficient to explain the
increase in crime. Opportunities for crime have changed to the same extent
irrespective of one’s age. The fact that it is specifically juvenile crime that has
increased suggests instead that changes have taken place in the social control
of young people over this period. This is in fact not surprising, given the
major changes that have taken place in relation to the position occupied by
young people in the production process. Young people have been excluded
from this process, which has led to a decrease in levels of control and has at
the same time given them significantly more freedom, which in certain cases
has led to an increase in their levels of criminality (Sarnecki 2003).
1 The English term ‘conviction’ is used throughout this text as a translation of the Swedish
‘lagföring’. This means that besides referring to persons adjudicated to have committed a given
offence by a court, the term ‘conviction’ also covers two other responses to crime, these being
1) the issuance of a fine by the prosecutor (without proceeding through the court system)
and 2) a so-called ‘waiver of prosecution’, which in effect amounts to a caution issued by the
prosecutor (again in combination with a decision not to prosecute the offender through
the courts). Both these responses require an admission of guilt on the part of the offender, and
are thus treated as ‘findings of guilt’ in official statistics in the same way as court adjudications.
2 Crimes where a prison term is included in the sanctioning scale.
3 The final year for which von Hofer presents data is 1994. Unfortunately statistics relating
specifically to serious offences were discontinued at the beginning of the 1990s.

Responses to Juvenile Crime: The Swedish System 189
Trends since the mid-1970s
The proportion of young persons (aged 15 to 17) convicted of offences

peaked in the mid-1970s. As can be seen from Figure 10.1, there was then
a substantial drop at the beginning of the 1980s. Following this point, the
number of convictions then stabilised at a somewhat lower level, before
undergoing a new decrease during the second half of the 1990s. The num-
ber of convictions relating to persons aged 18 to 20 has also declined. This
decrease has been both considerably more substantial and more continuous
than that witnessed among the juveniles. The total level of police reported
crime in Sweden increased up until the beginning of the 1990s, at which
point it stabilised.
Alternative sources of information on trends in juvenile crime also indi-
cate that the offending of young people has been relatively stable and may
possibly even have decreased over recent years. National self-report studies
were first started in Sweden in the mid-1990s (Ring 1999; 2003). Since this
point, four self-report surveys have been conducted on representative sam-
ples of pupils in school-year nine (aged approximately 15 years). The find-
ings from these surveys show that levels of self-reported drug offences and
violent crime were relatively stable between 1995 and 2001 whilst levels of
theft offences and vandalism appeared to have fallen off somewhat. The pro-
portion of young people who report not having committed offences of any
kind over the course of the previous year increased somewhat from 19% in
1995 to 24% in 2001. At the same time, it is worth noting that a large
majority of the 15-year-olds surveyed (approximately 75%)4 still reported
Figure 10.1: Absolute numbers of young people aged 15–17 and 18–20
years convicted of criminal offences in Sweden 1993–2000 (BRÅ, 2002).
4 If certain minor offences such as thefts from school or the respondent’s home, and fare
dodging on public transport, are ignored, the proportion of youths reporting having commit-
ted one or more (non-minor) offences during the last year stood at 61% in 1995 and 52% in
2001 (Ring 2003).
190 Jerzy Sarnecki
that they had committed one or a few offences during the past year. Relatively
few youths reported having committed large numbers of offences, however.
Since property crimes dominate among the reported offences, the total
level of self-reported crime has decreased. This decrease is greatest among
the most socially well-adjusted respondents and those reporting the lowest
levels of participation in crime, but it is also discernable among youths pre-
senting much higher levels of delinquent participation and among those
from socially disadvantaged backgrounds. It should also be pointed out,
however, that the study includes a number of questions relating to the
young people’s experience of criminal victimisation. In contrast with the
levels of self-reported crime, levels of reported victimisation as regards cer-
tain types of theft, threatening behaviour and violence remain fairly con-
stant over the period examined.
The first large self-report study of juvenile crime in Sweden was con-
ducted in the town of Örebro in 1971. Twenty-five years later, in 1996, this
study was repeated using the same survey instrument (Ward 1998). This
study also indicated that variations in levels of self-reported crime were rel-
atively small. Ward shows, however, a certain polarisation among the
groups studied, with the group presenting the highest levels of criminal par-
ticipation becoming both larger and more heavily involved in crime
between the two surveys, whilst at the same time the size of the group
reporting no involvement in crime whatsoever also became larger.
The majority of researchers in Sweden are more or less in agreement that
the total level of juvenile crime has not increased over the last decades
(Sarnecki 2003). The question of trends in juvenile violence is rather more
controversial. According to official statistics (see Figure 10.2), the number
of young people convicted of violent offences underwent a dramatic
increase between the mid-1980s and the mid-1990s, after which point a cer-
tain decrease may be observed.
Certain academics (e.g. Kühlhorn 2003) have contended that this
increase in recorded violent crime reflects a real increase, not least in rela-
tion to levels of serious violence. This contention has been called into ques-
tion, however. Estrada and Sarnecki (2002), for example, have pointed out
that the most serious form of violence—i.e. that resulting in death—has
not increased among young people. The number of youths who die as a
result of acts of violence has remained constant at approximately 16 indi-
viduals per year since the beginning of the 1970s. Whilst this does not con-
stitute a direct indication that juveniles are not in fact committing crimes
of this type, it does indirectly belie the perception that serious violence is
on the increase among this group, since the perpetrators and victims of vio-
lence are most often drawn from approximately the same age group
(Sarnecki 2001).
Nor does the apparent increase in the number of 15 to 17 year olds con-
victed of homicide (murder and manslaughter) during the second half of the
Figure 10.2: 15–17 year olds convicted of assault and robbery respectively,
per 100,000 of population, 1973–2000 (Estrada and Sarnecki 2002,
source: BRÅ, 2002).
1990s provide support for the contention that serious violence among juve-
niles is on the increase. On the contrary, a study from the Swedish National
Council for Crime Prevention (BRÅ 2002) shows that the total number of
convictions relating to violence resulting in death in fact decreased during
this period. This decrease is a result of the fact that whilst convictions
within the two most serious categories (murder and manslaughter)
increased, the number of convictions relating to aggravated assault resulting
in death fell. According to Lindström and Rying’s calculations, 24 individuals
between the ages of 15 and 17 were convicted of murder, manslaughter or
negligent homicide between 1990 and 1994, whilst the corresponding figure
for 1995 to 1999 was 14 individuals. This involves a reduction of slightly
over 40%. One hypothesis that might be suggested in this context is that the
courts today view cases of violence resulting in death more severely than
they used to. It is not unreasonable to assume that this more severe view
might relate not only to violence resulting in death, but rather to violence in
general. Support for this hypothesis that Swedish society views violent
crime more seriously than it did previously may be found, inter alia, in the
findings from research into changes in the way violent crime is reported in
the mass media (Estrada 1999, Pollack 2001).
As was mentioned earlier, the increase in levels of juvenile violence
recorded by the police over recent years is not corroborated by either the
self-report or victim surveys conducted among Swedish 15-year-olds since
1995. Victim surveys have been conducted among the general population in
Sweden since the end of the 1970s. These surveys do not indicate any major
increase in the level of youths’ (16–24 years) exposure to violent crime
either (Figure 10.3).
192 Jerzy Sarnecki
Figure 10.3: Proportion of youths aged 16–24 who report having been subjected to
violence resulting in visible injury, or requiring medical attention, during the past
year, 1978–2000 (Estrada and Sarnecki, 2002).
In particular, the figure provides no support for the thesis that more
serious violence is on the increase, at least not since the beginning of the
1990s. Once again, this statement is based on the assumption that crimes
against young people are for the most part committed by other young
people.
RESPONSES TO CRIMES COMMITTED BY YOUNG PEOPLE
In Sweden social legislation is used to a great extent to regulate the author-

ities’ responses to crimes committed by juveniles. The social services play
a considerably greater role in society’s response to criminal acts committed
by young people, in comparison with most other countries. This also
means that the goal of treatment characterises Swedish responses to
deviant behaviour among young people to a greater extent than in many
other parts of the world. Generally speaking, the social services and the
public sector in Sweden have undergone a much more rapid expansion
than in most other western countries. (The number of social services
employees, for example, increased by about 500% during the 1960s and
1970s. Source: Näringslivets ekonomifakta 1983.) Since this time, the
expansion has not been quite so pronounced and during the economic
crisis of the first half of the 1990s, a number of cutbacks in the social sec-
tor were witnessed, as was also the case in the majority of areas of public
sector activity in Sweden. One could nonetheless still argue that Swedish
public sector social services remain relatively strongly resourced and influ-
ential (OECD 2003).
The responsibility for responding to crimes committed by young people

is shared by the social services and the judicial system. The extent to which
the judicial authorities and the social services share responsibility for the
response to crimes committed by young people is mainly dependent on the
age of the offender.
• For those below the age of 15, the main responsibility for the response
to crime lies with the social services.
• For those aged between 15 and 17 (and in certain cases up to the age
of 20), the responsibility is divided between the social services and the
judicial authorities.
• From the ages of 18 to 20, the responsibility lies mainly with the judi-
cial authorities.
The judicial system: the police
The Swedish justice system functions on the basis of the legality principle,
which means that the police and other agencies within the justice system are
obliged to intervene where the legal criteria that serve to define a criminal
act are fulfilled. At the same time, however, the system allows for a large
number of exceptions to this rule. In practice, therefore, as is the case in
many other countries, the Swedish police have a large amount of discre-
tionary power. When the police discover that a minor offence is being com-
mitted, their efforts are often limited to an order to cease and desist. If this
is sufficient to stop the improper behaviour, the police do not report the
matter. According to the legislation, the police have the right in certain cases
to direct young offenders to repair the damage caused by their criminal acts.
If the offender complies, the offence is not reported. In 1990, however, cer-
tain restrictions were introduced in relation to the police’s right to exercise
discretion in relation to the reporting of offences (RPS 1999).
According to Swedish law the police shall prevent, discover and investigate
crimes. If a crime has been reported, the official task of the police is to inves-
tigate who committed the crime. As in most western countries, the police in
Sweden have a low success rate (approximately 15%) when it comes to clear-
ing up traditional crimes. This is true both for crimes committed by juveniles
and for those committed by adults. Nevertheless the police, and in particular
those police who work with juvenile crimes, are familiar with most of the
highly criminally active juveniles within a police district. The criminal activi-
ties of these young people are so extensive that even given the low risk of dis-
covery, they will become the subject of a police investigation at some time or
other. Furthermore, the police obtain substantial knowledge about the more
active juvenile offenders through contacts with and interrogations of other
juveniles, neighbourhood police work and other police activities.
194 Jerzy Sarnecki
Up until 1985, the authority of the police in relation to the investiga-

tion of crimes committed by children less than 15 years of age was
extremely limited. The police could not, for example, interrogate persons
under the age of 15 unless they were investigating crimes involving adult
suspects, looking for stolen goods or had other important reasons.
(Establishing the guilt of a juvenile suspect was not, in normal cases, con-
sidered to be one of these ‘important reasons’.) Beyond this, it was
expected that the social services would be responsible for investigating the
crimes committed by these young people. After a change in the law in
1985 the police were given broader powers regarding the investigation of
juvenile crimes. Today, in normal cases, the police are expected to inves-
tigate crimes committed by young people over the age of 12, but such
investigations are supposed to be carried out in collaboration with the
social services. The principal objective with an investigation of this kind
is to investigate the need for social measures. By law the police have the
right to investigate crimes committed by younger children only in special
cases. In addition, the last decade has witnessed a certain shift in praxis,
such that schools, for example, have become more inclined to report
offences committed by relatively young pupils to the police (Estrada
1999). The social services, however, still have the right to request that spe-
cific criminal investigations be suspended when they relate to persons
under the age of 15.
Most investigations of juvenile crimes are relatively simple since the
crimes committed by young people are usually not of a particularly
serious nature. By law, the police are required to show great regard
and care in their interrogations of juveniles. Parents and/or representa-
tives of the social authorities should in most cases be present during an
interrogation.
In different parts of Sweden the juvenile crime investigation issue has
been resolved organisationally in variety of ways. In some areas, special
units have been established which specialise in crimes committed by juve-
niles, or in some instances even certain types of juvenile crime, such as
mugging, for example. In other areas, the less serious offences committed
by juveniles are investigated by local community police officers whilst
investigations into more serious offences are transferred to the central
criminal investigation departments at the police district level. Irrespective
of the way in which the police organise investigations of juvenile crime
internally, this work always takes place in collaboration with the local
social services.
If a suspect is under the age of 15, the police turn over the results of
their investigation to the local social services. If the suspect is older then
15 the results of the investigation are turned over to the prosecutor.
However, if the suspect is under 18, the social services are usually
informed.
The judicial system: the prosecutor
According to current legislation, the police are to have a prosecutor

assigned to an investigation if the offence is not of a ‘straightforward
nature’ and where there is a suspected offender aged 15 or older involved.
In certain cases the prosecutor is the head of the formal investigation. The
prosecutor is also responsible for deciding whether the suspect should be
arrested and whether an application should be made to a court for a deten-
tion order. However neither arrests nor detention orders are utilised very
often in relation to offences committed by juveniles. For an individual aged
15 to 17 to be detained during an ongoing investigation, the law requires
‘exceptional cause’.
One of the prosecutor’s important tasks is that of deciding which meas-
ures should be taken regarding the suspect once the police investigation is
finished:
• Should the preliminary investigation be discontinued?

• Should the prosecutor issue a prosecution waiver?
• Should he issue a summary sanction order?
• Should he prosecute the suspect in court?
A preliminary investigation may be discontinued, for example, if it turns

out that the act committed by the individual did not constitute a crime.
The prosecutor may also find that the evidence is insufficient to warrant
prosecution.5
A waiver of prosecution still constitutes a relatively common form of
decision taken by prosecutors in Sweden (see Figures 10.7, 10.8 and 10.9)
although its use has decreased substantially since the mid-1980s (see
Figure 10.4). This waiver means that the guilty party will not be subjected
to any further measures by the legal apparatus (on the condition that they
do not commit any further offences) as a result of the act. However, the
act will be considered a crime and will be recorded as such in the register
of convicted persons. The prosecutor may issue a prosecution waiver with
regard to less serious crimes but only if the suspect has admitted to the
offence. In the absence of an admission of guilt, the matter must be tried
by a court.
5 The prosecutor may also discontinue a criminal investigation if the crime in question may
be deemed to be insignificant in relation to another offence and if the costs of the investiga-
tion would assume unreasonable proportions, providing the sanction would not exceed a fine
or a waiver of prosecution. In such cases, however, the interests of other parties (e.g. those of
the victim) may not be disregarded.
196 Jerzy Sarnecki
Figure 10.4: Youths aged 15–17 years who have been convicted by means of a court
sentence, a prosecution waiver or a prosecutor’s fine in 1980 and 2000, for assault
and theft offences respectively.
The Swedish Young Offenders Act (LUL) gives prosecutors broad pow-
ers regarding the issuance of prosecution waivers when a suspect is below
the age of 18, and in certain cases up to the age of 20. The rules are much
more generous in relation to young people than older people. But the pros-
ecutor may revoke a prosecution waiver if the young person returns to
crime. In the legislation from 1988 on young offenders, the prosecutor’s
power to revoke such decisions was extended. The provisions regarding
prosecution waivers were also made more formal and were to some extent
given the form of a formal caution issued by the prosecutor to the juvenile
and his parents. A further legislative change in 1994 (SFS 1994: 1760)
produced a situation whereby waivers of prosecution may in principle no
longer be used for youths who have previously been registered in connec-
tion with offences.
Over the course of 2001, approximately 111,000 court sentences, prose-
cutor’s fines and waivers of prosecution were issued in Sweden.
Approximately 16% of these convictions took the form of waivers of
prosecution. Approximately 12,000 of the convictions related to young
people aged between 15 and 17. Of these, approximately 24% were com-
prised of waivers of prosecution. Of the 10,000 or so convictions relating
to youths aged between 18 and 20, approximately 11% took the form of
waivers of prosecution. In the mid-1980s, these proportions were signifi-
cantly higher among the youngest group (45%) whilst they lay at approxi-
mately the same level (9%) among the older youths.
Before a prosecutor issues a waiver of prosecution to a person under
the age of 18, he often obtains an opinion from the social services if the
offence is of a serious nature. When such a decision is issued it is often com-

bined with the condition that suitable measures are to be undertaken by the
social services. Prosecution waivers are issued only in extremely rare cases
in relation to violent crimes or vandalism.
Another option available to a prosecutor is to determine the sanction for
a crime himself. The conditions for the prosecutor to be able to issue a sum-
mary sanction order are similar to those for a prosecution waiver: the crime
must be relatively minor and the suspect must have confessed. In addition,
the suspect must have accepted the size of the sanction. Summary sanction
orders may be issued only in the form of day-fines, where the number of
days is determined by the seriousness of the crime while the size of each
day-fine is determined by the guilty party’s economic circumstances.
Approximately 33% of all the entries into the register involve summary
sanction orders. Among the youngest youths (i.e. those aged 15 to 17), the
proportion is somewhat higher at 37%.
Finally, as was mentioned above, the prosecutor may decide to prose-
cute. Of the 15 to 17 year olds who were convicted of offences in 2001,
61% received these convictions in the form of a prosecutor’s decision
whilst 39% were convicted by a public court, having been indicted by the
prosecutor. The corresponding proportions for 18 to 20 year olds were
51% and 49% respectively. Thus the majority of the younger youths and
approximately half of the older ones are convicted by means of a prosecu-
tor’s decision. By contrast, 15 years ago a significantly larger proportion
(83%) of 15 to 17 year olds were convicted by means of a prosecutor’s
decision as were 61% of the older group. Thus a considerably larger
proportion and number of youths are today indicted for their crimes in a
public court, whilst at the same time, the proportion and number of young
people being convicted by means of a prosecutor’s decision has fallen
substantially.
The judicial system: the courts
When a prosecutor decides to prosecute an individual, his guilt and any

possible sanction will be determined by the court. Of the approximately
4,600 juveniles aged 15 to 17 convicted annually by the courts in Sweden,
47% are sentenced to day-fines (the same type as can be decided upon by a
prosecutor). A similarly common court-imposed sanction regarding juve-
niles involves being delivered into care in accordance with the Social
Services Act. The proportion of sentences of this kind has doubled since the
mid-1980s (see Figure 10.5); the number of juveniles given a sentence of
this kind has increased almost fourfold. This sentence means that the court
transfers the responsibility of finding a suitable measure for the guilty party
to the local social services board.
198 Jerzy Sarnecki
Figure 10.5: Comparison of distribution of court sentences for youths aged 15 to

17, 1980 and 2000.
Approximately 11% of all registered offenders in Sweden are sentenced

to prison. Prison sentences are employed very rarely in Sweden for persons
who have not yet reached the age of 18.6 Up until 1999, approximately
60 individuals per year aged under 18 at the time of their offences were
sentenced to a prison term, whilst a further 25 or so were sentenced to a
special form of probation that begins with a short stay in prison. Since
the introduction of the new youth sanction Secure youth care in 1999,
only very few persons under the age of 18 (to date no more than four per
year) have been sentenced to prison. Individuals in this age group are today
in principle only sentenced to a prison term if they are of an age such that
the length of a sentence to secure youth care would extend beyond the date
on which they turned 21 years of age (see figure 10.6).
The fact that so few young persons are sentenced to prison shows that
the intention of the new Act—to minimise the number of youths sitting in
prison—has been achieved. The new sanction does in fact involve young
people being sentenced to a fixed term sanction (which according to the
intentions of the Act should be of approximately the same length as the
prison term for which one would be sentenced as a young offender, usually
approximately half the length of the sanction that an adult would have
received for the same offence) but is served in an institution established for
6 According to Swedish law, exceptional cause is required before an individual aged between
15 and 17 may be sentenced to prison. The opportunities to sentence 18 to 20 year olds to

prison are also limited, although the legislation is somewhat less restrictive in this case and
only reasonable cause is required.
the care of young people (here referred to as a youth care facility). These
are the same institutions where youths are placed in compulsory care by
the social services (see below). These institutions are focused on the treat-
ment of young people and have a staff to ‘inmate’ ratio approximately
three times that of prisons (approximately three staff members per youth
in care). Over the course of 2000 and 2001, approximately 100 annually
youths have been sentenced to the new sanction (of which approximately
85% were aged between 15 and 17 at the time of the offence, whilst the
remainder were over the age of 18). This constitutes a slightly higher
number than those who were sentenced to prison (including probation
with a prison term) prior to the new Act coming into force. In addition, the
introduction of the secure youth care sanction has led to longer custodial
sentences. Youths sentenced to prison prior to 1999 served an average sen-
tence of approximately 5.4 months. Youths sentenced to the new sanction,
on the other hand, spend an average of 9.5 months in custodial care
(BRÅ, SOS, SiS 2002).
The other sanctions that a court can use in sentencing minors are:
• Suspended sentences (approximately 1% of convicted persons aged 15

to 17 and 13% of those aged 18 to 20 were given this sanction in
2001); and
• Probation (without prison) (approximately 1% of convicted persons
aged 15 to 17 and 11% of those aged 18 to 20 were sanctioned in this
way in 2001).
Figure 10.6: Number of youths sentenced to custodial sanctions 1995 and

2000.
200 Jerzy Sarnecki
Certain of the sanctions presented above may be combined with each other
or with other forms of sanction. Thus probation may for example be com-
bined with contractual care or community service. Combinations of this
type are rare, however, for young persons under the age of 18. On the other
hand, surrender into the care of the social services may be combined with
the sanction youth service, which comprises community service specifically
adapted to younger people. For approximately 20% of the 15 to 17 year
olds sentenced to care within the social services, the sanction is combined
with youth service in this way. In rare instances, youth service is also
applied in combination with probation for young people over the age of 18.
Fines may also be awarded in combination with other sanctions. Finally,
young people are in rare cases sentenced to psychiatric care. This sanction
is however extremely rarely used in relation to the youngest age group.
The distribution of sanctions in 2001 for all those convicted, and for
young people aged 15 to 17 and 18 to 20 respectively, is presented in
Figures 10.7, 10.8 and 10.9.
The social services
The social services do not have the task of punishing young people for their
crimes. Therefore, when the social services make a decision regarding a
measure suitable as a response to a criminal act, the decision should be
Figure 10.7. Convictions for all persons sentenced by the courts, or awarded
prosecution waivers or summary sanctions by the prosecutor, 2001. 110,711
convictions in total.
Figure 10.8: Convictions for all 18 to 20 year olds sentenced by the courts, or
awarded prosecution waivers or summary sanctions by the prosecutor, 2001.
10,333 convictions in total.
Figure 10.9: Convictions for all 15 to 17 year olds sentenced by the courts, or
awarded prosecution waivers or summary sanctions by the prosecutor, 2001.
12,029 convictions in total.
based solely on the young person’s social situation. (If an individual has a
serious history of criminality, that is naturally included in the overall pic-
ture of his social situation.) Swedish law places the entire responsibility for
responding to crimes committed by individuals under the age of 15 on the
social services. Thus the criminality of this group is regarded as a social wel-
fare problem.
Accordingly the measures of the social services are to have the aim of
helping the young offender out of the social situation that is causing
202 Jerzy Sarnecki
him/her to commit crimes. The measures vary substantially, depending on

which factors are deemed to be causing the individual’s delinquency. Several
years ago there was a heated debate in Sweden about whether or not the
social services should have the right to undertake coercive measures with
regard to their clients. The opponents of coercion thought that if the pur-
pose of the social services was to help an individual, then it could hardly be
done against the individual’s will. It was also feared that the social services’
right to use coercion would make the development of confidential contacts
between social workers and clients impossible. The supporters of coercive
measures felt that in certain cases, e.g. extensive drug abuse or substantial
antisocial behaviour by young people, coercive measures were necessary, at
least at the beginning of the treatment process.
The compromise that was finally reached came to mean that the use of
coercive measures was limited greatly in the social legislation. In the Social
Services Act (SoL) there are no coercive measures at all. This Act, which in
most cases is also applicable to young offenders, states that those measures
which have the aim of removing the causes of an individual’s criminality
are to be undertaken in terms of co-operation between the individual him-
self, his parents and the social services. Regarding individuals with minor
criminal histories, these measures are usually limited to one or a series of
talks with the young offender and his parents. If it becomes apparent
through these talks that there are serious problems in the home (economic
problems, internal conflicts, etc.), an attempt will be made to resolve these
problems. The family is then given certain opportunities to receive eco-
nomic support, therapy, a contact person and other forms of support. In
certain cases the family may get a social worker who can meet with them
at home over a longer period in order to help the family members resolve
various problems (e.g. the family’s economic planning, their leisure time
problems, and conflicts in relations).
In cases of extensive antisocial behaviour that constitutes a threat to a
young person’s ongoing development, a law containing coercive measures
known as the Act with Special Provisions on the Care of Young People
(LVU) may be utilised. Another law containing coercive measures which can
be used by the social services is the Act on the Care of Drug Abusers in
Certain Cases (LVM). The rules governing when an individual may be
forcibly taken into custody for the purposes of social services care are very
restrictive. According to the Social Services Act (1982) the local social wel-
fare boards have the right to decide about taking a child or young person
into custody for social care. These boards, which are made up of local politi-
cians and reflect the political party breakdown at the local government level,
have been established by law in every Swedish municipality. In the larger
municipalities, additional local boards have been set up. All decisions on
custody for social services care made by these boards must be approved by
a county administrative court. These courts have an organisation which is
completely separate from that of the criminal courts. Decisions arrived at in

the county administrative courts may be appealed to higher courts.
In approximately 2,000 cases per year, the social services arrive at a deci-
sion to place a young person outside of the family home. In the majority of
these cases (approximately 80%, see Figure 10.10), the decision relates to
voluntary care in accordance with SoL. The young person is usually placed
in a family home or a so-called home for residence and care (HVB). HVB
placements are also used relatively often in relation to compulsory (LVU)
placements. (In 33% of compulsory care orders, the young person is placed
in an HVB home).
The most common form of placement used in connection with compul-
sory care orders is placement in a youth care facility. Unlike the other insti-
tutions, these facilities have the right to use compulsion to keep the youth
in place, and they often have secure units. In addition to placements in
accordance with LVU, and in rare cases SoL, youths sentenced to secure
youth care are also placed in these institutions (see above). Thus both
youths placed in care in accordance with LVU and those sentenced to secure
youth care are given compulsory care at these institutions. The difference is
that youths in the LVU group are placed in these institutions by the social
services (once the care order has been confirmed by the county administra-
tive court) and are discharged in accordance with a decision reached by the
social services which must however be re-examined every six months, and
Figure 10.10: Youths aged 15 to 17 placed outside of their own home by the social
services in accordance with SoL and LVU in 2001. 1,995 persons in total. (Source:
BRÅ, SoS, SiS).
204 Jerzy Sarnecki
which may in this context be appealed in the county administrative court,

whilst those sentenced to secure youth care are placed in these institutions
by means of a court sentence and stay throughout the term of this sentence.
It is common that young people who have been placed in youth care facil-
ities by the social services or by the courts are there for the same reason—
i.e. involvement in crime. The social services may however also take a
decision to issue care orders and place youths in institutions (although
not usually youth care facilities of this kind) as a result of other problems
experienced by the young person, such as the parents’ inability to look
after the young person, and different forms of behaviour which are self-
destructive but not criminalised.
Other institutions
Thus, according to Swedish law, the social services and the judicial system
are the institutions which are responsible for society’s response to juvenile
delinquency. The social services are also responsible for the response to
other forms of antisocial behaviour among young people. On the other
hand, young people with social problems also come into contact with other
societal institutions and they are often the subject of measures taken by
these institutions.
The largest and most important of these institutions is the school system.
Sweden has a system involving nine years of compulsory education, but
most young people (approximately 97%) go on to some form of further
education. The 3% or so who do not continue their education are to a large
extent young people with serious adjustment problems (Sarnecki 1983).
According to Swedish law, they are to be followed up by the local authori-
ties until they reach the age of 18. In those cases where these young people
do not obtain jobs on the open labour market, they are offered various
types of assistance by the local authority such as short training programs,
job counselling, educational guidance, etc.
The school system has no formal responsibility for the control of deviant
behaviour among young people. However, its de facto role is of course very
large. Schools have to a great extent replaced the social control previously
placed upon young people by working life and to a certain extent by the
family and the neighbourhood. In a country like Sweden, where the major-
ity of women work outside the home, the school constitutes the most
important agent for social control of the young during most of the hours of
a normal working day.
In Sweden, just as in other countries, there is a strong correlation between
behaviour in school and criminality as well as other forms of deviant behav-
iour, both in the teenage years and in adulthood (SOU 1972, 76; Sarnecki
1986; Torstensson 1987; Ring 1999). Swedish teachers recognise very well
the symptoms related to a heightened risk of persistent criminality, alcohol

and drug abuse, etc., even if not all teachers are conscious of how impor-
tant these observations may be.
Schools usually have their own organisation for dealing with student
problems. Many schools have a school psychologist, a social worker
(school curator) and medical personnel (doctor, nurse) attached to them.
These personnel, along with those heading the administration of the school
and certain teachers, constitute a student care team which, among other
things, has the task of deciding how to react when students show symp-
toms of deviant behaviour. Most schools also have teachers who are spe-
cially trained to take care of students with school problems, behavioural
difficulties, etc. Initially schools try to resolve problems that arise by means
of talking with the student and his parents. Another possibility open to
schools is that of taking students out of normal classes and placing them
in special education groups, where they may receive more support and be
subject to more control. In certain difficult cases the students can be placed
in special separate schools run by local school boards. The goal, however,
is to separate students with adjustment problems as little as possible from
other students and to make sure that they are kept in their ordinary classes
to as great an extent as possible. In addition, according to current law,
schools within the compulsory school system cannot completely exclude
students from the educational system. Instead, students with serious prob-
lems among the older age groups are given the option of taking a part-time
class schedule and working the rest of the time (without pay) at some
workplace nearby. In such cases, the school is responsible for providing
the student with suitable guidance.
In general, the school staff will initially try to resolve a student’s behav-
ioural problems themselves. The social services are usually not contacted
until the measures put in place by school staff have been seen not to pro-
duce the desired results. Even though school personnel see their students’
behavioural problems at an early stage, schools make relatively few
reports to the social services. In Sweden, the level of co-operation
between the social services and schools varies from municipality to
municipality.
The social services and the schools are also supposed to co-operate with
the mental health care authorities responsible for children and juveniles,
which have an independent status in Sweden. Parents, especially parents of
younger students with behavioural problems, are often given a recommen-
dation to make contact with this institution which offers various forms of
individual, family and group therapy. However, contacts with the mental
health care authorities are in principle voluntary and in most places they do
not accept clients who are not clearly motivated regarding treatment.
Sometimes the social services also utilise psychiatric experts to analyse
young people with more serious behavioural disturbances. Certain young
206 Jerzy Sarnecki
people with substantial criminality in their backgrounds can also be taken

in for observation and in rare cases even for treatment in the county’s
psychiatric clinics for children and juveniles.
In the context of the debate on juvenile delinquency, the issue of leisure
time is usually ascribed major importance. Sometimes juvenile criminality is
simply defined as a leisure time phenomenon. A significant portion of the
leisure time activities available to young people in Sweden are either
financed or directly organised by public sector agencies. The financing of
leisure activities for young people is provided through payments to an
extensive number of organisations. It is estimated that at least half of the
young people in Sweden are members of one or more organisations, most
often sporting associations. In many places, especially in some of the coun-
try’s smaller cities, the degree of association membership is significantly
higher. However, associational activity seems to a large extent to be charac-
teristic for young people from socially well-functioning families and,
accordingly, for young people among whom the risk of developing serious
antisocial behaviour is relatively low. The number of organisations that suc-
cessfully recruit young people in the risk zone for criminality, and that may
serve as an effective alternative to their antisocial network is relatively small
(Sarnecki 1983, 1986).
As was mentioned earlier, the economic problems affecting Sweden at the
beginning of the 1990s resulted in certain cutbacks within the public sector.
The local authorities, which are responsible for schools, the social services
and the leisure sector, were forced to make savings and did so primarily in
areas of activity that are less well regulated in law than the social services.
Amongst other things, substantial savings were made in the area of leisure
provision for young people and student care within schools. During the sec-
ond half of the 1990s, as the economy improved, more resources were once
again devoted to these sectors, but one has to work on the assumption that
preventive efforts, not least within schools, are less comprehensive than
they were previously. At the same time as the resources available to schools
for social measures have been reduced, schools have turned to an increas-
ing extent to the police for support in connection with criminality among
pupils (Estrada 1999). Several local authorities have made policy decisions
that all crime in schools is to be reported to the police.
CONCLUSIONS
Sweden is a pluralistic welfare society with a highly developed public sec-

tor. Until the middle of the 1970s Sweden experienced a substantial increase
in levels of criminality and other social problems among juveniles. From
that point onwards the trends seem to have stabilized, and there are even
signs that levels of juvenile crime may have diminished.
The ideas of welfare and pluralism also contribute to the relatively large
amount of tolerance and humanity shown in Sweden towards persons who
deviate from the norm. These ideas are considered to be important in the
formulation of the measures to be used in relation to young offenders.
Relatively substantial and long-term criminality is required before the
authorities are allowed to undertake more far-reaching measures. The
emphasis on treatment instead of punishment is also considered to be more
humane, even though the ideas behind it have been questioned (BRÅ
Rapport 1977, 7; SOU 1993, 35). The criticisms directed at the strong
treatment focus within the Swedish justice system, and primarily within
that part of the justice system focused on young people, comprised two ele-
ments. One related to the lack of scientific evidence that treatment was an
effective method, the other to the perception that the system was unfair. In
the light of more recent research, the first of these arguments against
employing treatment as a means of responding to crime has shown itself to
overstate the case (e.g. Lipsey 1992, 1995; Loeber and Farrington 1998 and
BRÅ 2001b). The treatment of young offenders has shown itself capable of
producing positive effects, even if these effects are rarely all that strong
(CUS, SiS, Andersson 2003). The criticism of the system’s unfairness, on the
other hand, is still relevant. In this context, a hypothetical case is usually
referred to whereby two youths who have committed the same offence are
responded to in quite different ways. One comes from a well-functioning
social background and is merely given a caution, whilst the other comes
from much more difficult conditions and is therefore taken into care and
placed in an institution.
In general, one can argue that in Sweden, the 1980s and 1990s were char-
acterised by increasing levels of concern for juvenile violence which has
been perceived both within the media and among the public as undergoing
a substantial increase. Discussions of the trends in violent crime of the kind
presented above seldom reach the public and tend to be contrasted in the
press with descriptions of tragic and particularly bloody cases of violence.
The general perception among the public at large may be assumed to be that
the country has suffered a dramatic increase in the levels of violent crime
committed by young people and other forms of serious youth crime. In the
context of this climate of opinion, there is a general questioning of methods
used to treat young offenders that are perceived to be too lenient. Certain
treatment measures, such as taking youths with a long criminal record on
sailing trips, have been presented in the media as both ineffective and at
odds with the public’s general sense of justice. This atmosphere has led
politicians to perceive a need to show that they take juvenile crime seri-
ously, and in particular violent crime (cf. Garland 1990, Estrada 2001, von
Hofer 2004). Many of the reforms of legislation and praxis relating to
young offenders appear to have the objective of accentuating the idea that
this is a problem that cannot be taken lightly.
208 Jerzy Sarnecki
The substantial reduction in the number of young persons convicted of

crime has therefore been followed by a substantial tightening of both the law
and its application in relation to young offenders. This has led, for example,
to a dramatic reduction in the number of young people being awarded waivers
of prosecution and to a larger number of youths being sentenced by the courts.
This and a long list of other measures suggest that there are efforts afoot to
limit the measures of the social services, which are perceived as rather diffuse
by many, and instead to emphasise the more transparent means of dealing
with young offenders that is manifested by the justice system. These efforts,
however, have not been allowed to go so far as to sentence young people to
prison. On the contrary, Swedish legislators have made it clear that they do
not regard prison as a suitable sanction for youths. Placing juveniles in prison
is regarded as inhumane and as running contrary to the UN’s Convention on
the Rights of the Child. Parallel with the general increase in the severity of the
response to juvenile crime, then, the prison sanction has in effect been abol-
ished for the youngest individuals who have reached the age of criminal
responsibility. Instead of a prison term, the sanction of secure youth care has
been introduced, which takes the form of a treatment measure but which is
imposed by a public court and in accordance with the proportionality princi-
ple. In this way, the ‘lenient’ influence of the social services is removed from
this sanction. Given the current social climate, however, the introduction of
secure youth care has in fact had a ‘net-widening’ effect, if not with regard to
the number of youths being given custodial sentences then at least with regard
to the length of the custodial sentences being imposed. Despite the fact that it
was not the intention of the legislators, the courts appear to feel that they may
sentence youths to a longer stay in a youth care institution than they could
when the youths in question were instead being sent to prisons.
It is nonetheless highly doubtful that the influence of the social services
over measures relating to young offenders has declined in any general way
as a result of the neo-classicist trend witnessed within the Swedish justice
system. It is true that the social services do not exert an influence over the
length of stay in youth care institutions, but the treatment provided is
nonetheless of a social nature and is provided in a collaboration between
the National Board of Institutional Care, which falls under the Ministry of
Health and Social Affairs and the local social welfare authorities. Further,
the fact that a larger number of young people are being indicted and sen-
tenced in public courts has resulted in more youths being delivered into the
care of the social services. In connection with this sanction, the measures
are formulated by the local social services even if the court has a certain
influence over the way they are formulated.
The general conclusion of the above presentation is thus somewhat sur-
prisingly that the combination of a general critique of the treatment ideol-
ogy, a neo-classicist focus within the judicial system and a stiffening of
sanctions against young offenders, has led to a situation where the influence
of the treatment ideology and the social services has in fact become more
powerful in relation to the way society responds to the crimes of young

offenders. The fundamentally humanist view of youth crime and of meas-
ures for young offenders that has been dominant in Sweden over recent
decades appears at least for the moment to remain intact, although the
authorities have become more inclined to intervene against young offend-
ers. The pressure from various quarters to change this system and to make
it ‘more effective’, or even simply ‘tougher’, remains, however. The Swedish
Government recently appointed a new inquiry with the task of reviewing
the way Swedish society responds to crimes committed by young persons.
The Government’s directive to the inquiry states amongst other things that:
The measures taken are to be dedicated to preventing the youth from reoffend-
ing. The commission’s objective, whilst maintaining the penal law principles of
proportionality, predictability and consistency, is to make progress with the work
to develop a sanctioning system for young persons whose content is both clear
and instructional, and to create improved conditions, on the basis of the young
person’s needs, for a return to a life characterised by good social function, thus
producing positive change. (Ju 2002, 14)
By means of these formulations, the Government appears to be opening the

way for both a more powerful element of neo-classicist thinking but also a con-
tinued treatment focus within the new legislation. The future will tell which of
these directions the inquiry and the future legislation will take and what the
consequences of coming reforms will be for the system’s humanist focus.
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11
Juvenile Justice in Denmark:
From Social Welfare to Repression
JØRGEN JEPSEN
INTRODUCTION
T
HE FOLLOWING ACCOUNT of developments in juvenile justice in
Denmark in recent years was originally intended to demonstrate how
a so-called welfare state has handled the problems of youth crime
with non-repressive measures based upon social and personal support to
young law violators, rather than through harsh repression with an empha-
sis on crime control. The somewhat unique use in Denmark—as in
Scandinavia—of communal welfare boards instead of juvenile courts or
adult courts was at the time of the presentation at Oñati seen as a model
that might serve as an inspiration for developing nations or nations want-
ing to reform more repressive juvenile justice systems in a welfare direction,
all in pursuance of the goals of the Oñati conference.
In the process of re-writing the original contribution after the Oñati con-
ference it became increasingly clear, however, with the passage of time and
the emergence of new information, that this would have amounted to pre-
senting much too rosy and optimistic a picture of the actual developments.
Tendencies that were discernible in the first years of the new millennium
have become more prominent and the optimism originally expressed has
been replaced by serious concern over the increasing repression character-
izing juvenile justice—like criminal justice in general—in Denmark up until
July 2005.
The following account will take up some of the characteristics of the orig-
inal Danish welfare model of juvenile justice and look at the transformation
it is undergoing which is bringing it closer to the crime control model of
other Western countries such as the U.S.A. Both the welfare board model
and the use of social support instead of institutionalization have come
under pressure. The system of sanctions against youth in trouble with the
law in recent years has been superseded by symbolic legislation aimed pri-
marily at signalling official disapproval of juvenile deviance and instituting
214 Jørgen Jepsen
new forms of punishment emphasizing protection of the public. We shall

return to this later, but first some words about the history of the Danish
welfare state and its model of juvenile justice.
DENMARK AS PART OF SCANDINAVIA AND AS PART

OF THE MODERN WORLD
Denmark is a small country (some 5.4 million inhabitants, with 6–7% in

the age group 15–20) and forms part of Scandinavia, which until recently
was characterized by great homogeneity in population and in politics and
social structure. Abroad, Scandinavia has been seen as an important strong-
hold for social welfare traditions and for social and economic equality.
Until Denmark and later Sweden joined the European Union, there was
close co-operation between the Scandinavian countries on legislation and
social conditions for many years. There is a joint Nordic passport union
and there are rules for mutual assistance in legal and social matters. These
similarities also characterize the fields of youth policy and juvenile justice
(Nordisk Ministerråd 2000). Developments in crime patterns and in reac-
tions to crime and deviance also display considerable similarities—as evi-
denced e.g. by Sarnecki’s contribution to the present volume—with Finland
earlier presenting a somewhat different case. Norway has lower offending
rates than Sweden and Denmark.
Denmark long had a reputation for being the most permissive Nordic coun-
try in relation to deviance, both as to criminal sanctions and as to its drug poli-
cies. Denmark has also been seen as more pragmatic and less ideological than
Norway and Sweden, working out policies on a more ad hoc basis and with
relatively little inclination to base policy upon research and knowledge as
opposed to public sentiment. Denmark was regarded—and regarded itself—as
very tolerant and broad-minded with good foreign relations.
This picture has changed in recent years. Danish politics have evidenced a
swing to the right, the Social Democratic hegemony has been replaced by
neo-liberalistic governments based upon the more well-to-do segments of the
population, but with a parliamentarian basis in a populist party—the Danish
People’s Party—reminiscent of other right-wing parties in Europe. Both this
party and the conservative and liberal parties seek constituencies in the mid-
dle and so profess to be strong adherents to the welfare state. In later years,
however, the influence of the Danish People’s Party in particular has led to a
tightening up of the legislation on immigration and refugees, accompanied
by a clearly xenophobic rhetoric. This has also been a response to increas-
ing public concern about the influx of foreigners who have not been well
integrated, have tended to cluster in urban ghettoes, are not well versed in
the Danish language and are beginning to exhibit the characteristics of a
marginalized underclass (Socialforskningsinstituttet 2005).
Juvenile Justice in Denmark: From Social Welfare to Repression 215
Second generation immigrants in particular have displayed problems of

adjustment in a spiralling interaction with discrimination in housing, in the
labour market and on the streets. Signs of such maladjustment have been
increasing crime levels, particularly among the young, and conflicts with
the police, often of a quite dramatic nature.
In addition, Denmark has experienced a rise in gang phenomena, both in
the form of motorcycle clubs (Hells Angels, Bandidos) with a high level of
violent crime and drug dealing and in the form of street gangs, some of
them consisting of immigrant youth. The Danish gangs have engaged in
fights with immigrant gangs, thus a picture is formed which bears consid-
erable similarity to American juvenile and racial gang wars over turfs and
drug markets.
These developments have in recent years had the consequence that ordi-
nary citizens have become afraid of foreigners and have demanded tough
public action against perceived risks of violence, in particular from immi-
grant youth. The fears were nourished by dramatic media coverage of a few
incidents involving ‘ethnic’ (i.e. coloured) youth—including a group rape in
2001 in the centre of Copenhagen.
Politicians were quick to grasp these sentiments and turn them into
political capital in the struggle for power. The result has been harsher
reactions to deviance, starting out with several ‘violence packages’ of leg-
islative and law enforcement measures carried by the Social Democratic
government in the 1980s and the early and mid-1990s. This trend was
taken up much more forcefully by the later right-wing government, which
took power in late 2001 and went on to win the elections in January
2005.
In the early spring of 2005, street gangs of very young immigrant youth
in Copenhagen ghettoes who committed repeated acts of street robberies
and violence, primarily against young Danish children, aroused worries
among local inhabitants. The Copenhagen police and local politicians have
called for stricter reactions towards these under-age groups, and again the
issue of lowering the age of criminal responsibility has come up.
The following sections will deal with the original social welfare model as
it was seen in operation until the late 1990s, and will then go on to chart
changes towards the control model, which accelerated from around 2000
up until spring 2005. It will highlight some of the perceived assets of the
welfare model, look at the ways in which this model has been challenged
and is undergoing change, and finally try to chart the background to the
changes and the prospects for further development. Finally we will look at
the lessons that might be learned from this course of events.
These developments will be related to some of the key elements in juve-
nile justice raised by the Convention on the Rights of the Child (CRC) and
to issues found relevant in work on juvenile justice reform in developing
countries.
216 Jørgen Jepsen
THE AGE OF CRIMINAL RESPONSIBILITY
A caveat
In relation to the following consideration of criminal responsibility it

should be noted that although children below the relevant age (‘minors’) are
considered as objects of assistance and treatment rather than punishment,
some of the measures applied within the system of social welfare—in par-
ticular in secure residential institutions—in actual practice may be quite as
harsh as institutions within the prison sector (some of the Danish open pris-
ons have very permissive regimes and almost pleasant infrastructures). It is
therefore worth considering how the interests of minors are safeguarded
under the welfare system. It must also be noted that some offenders of
minor age actually commit serious acts, including violence and robberies,
and represent such a danger to their surroundings that protection of the
public (and staff!) is an inescapable consideration.
Historical development1
In the mid 19th century steps were taken to limit the use of penal sanctions
for children and juveniles. Ten years as the minimum age of criminal
responsibility was made statutory while sentencing of children between 10
and 15 years came to be dependent on individual evaluation. They were
only to be punished if they were evaluated to have been sufficiently mature
to understand the criminal nature of the behaviour (Greve 1996).
Punishment was seen as both unsatisfactory and burdensome and in 1905
an absolute age limit of 14 was introduced. Simultaneously, a law on child
welfare was introduced, which was based on the still valid principle that
children and juvenile offenders under 18 years should be educated, not pun-
ished (Greve 1996). Child welfare committees were set up and reformato-
ries established to take care of ‘erring and wicked children’ as well as young
offenders as the new law gave the committees the authority to detain chil-
dren on the basis of behavioural problems and neglect.
The inspiration to form child welfare committees came from Norway,
where a similar arrangement was established in 1900 (Dahl 1985).
Moreover, the new radical ideas about criminal policy and about possibili-
ties for treating the offender, which emerged in Europe around the turn of
the 19th century, also influenced the changes concerning children and child
welfare. It was the idea developed from the positivist school that led to a
paradigm shift in the view of the offender and later on to a change in the
classical penal ideology based strictly on proportionality.
1 The following historical account is based largely upon Kyvsgaard (2004b).

These trends had a pronounced influence on the new Danish Criminal

Code of 1930, which is still in force. The minimum age of criminal respon-
sibility was then raised to 15 years (Nielsen 1999). Despite many attacks,
this legal age limit has remained unchanged since then. Fifteen is also the
age of criminal responsibility in the other Nordic countries (Nordisk
Ministerråd 2000, 11–14).
An important aspect of the administrative implementation of the age of
criminal responsibility is the question of the actual placement of the
youngest offenders. Up until 2004 the youngest offenders—below 15—
could not be placed in secure wards under the social welfare system by the
communes (municipalities) without special permission from the county,
which was supposed to safeguard the interests of children. In 2004 an
administrative change was promulgated, allowing the communes to place
children between 12 and 15 in secure wards without such permission. This
has been seen by some (Vestergaard 2004a, Boerneraadet 2005) as a covert
way of reducing the age of criminal responsibility to 12. It coincided with
a demand set forth by the Danish Peoples Party for lowering the age of
criminal responsibility to 12—a demand which found some support within
the government itself.
In other words, the Danish history of the age of criminal responsibility
shows a move between a fixed age limit and the maturity criteria discussed
also in developing countries. Internationally, there are great variations in
setting the limit (Mehlbye and Walgrave 1998, see also Table 1.1 in the
Introduction), and it is more interesting to look at the overlap between the
two systems rather than seeing them as divided according to sharp criteria.
DEVELOPMENTS IN DANISH JUVENILE JUSTICE LEGISLATION

1933–73 AND BEYOND
The Criminal Code of 1930 (in force in 1933) introduced a number of spe-
cial sanctions, all based on the idea of treatment and all partly or totally
indeterminate. For youth justice it resulted in the establishment of the youth
prison sanction, a sentence for juveniles between 15 and 21 years of age
with the intention of educating and training juveniles with criminal procliv-
ities. The youth prison sanction was partly indeterminate as it was to last
for a minimum of one year and maximum of three years, in case of re-
admission up to four years.
Even though the youth prison sanction was meant only for juveniles in
need of care and education, it gradually became the most important prison
sentence for juveniles. Most youth prison sentences, however, concerned
offenders between the ages of 18 and 20, as offenders under 18 years in
most cases had their charges withdrawn and were instead subjected to child
and youth welfare. During the last decades of the existence of the youth
218 Jørgen Jepsen
prison, however, there was an increasing tendency to use the sanction for
juveniles under 18 years.
The youth prison sanction was abandoned in 1973 together with the
other (indeterminate) special sanctions based on the idea of treatment. Since
then, no legislation concerning only juveniles and young adults was passed
until 2001 when a new Youth Sanction, indicating the partial re-emergence
of treatment-related ideas, was introduced.
THE DANISH SYSTEM OF JUVENILE JUSTICE TODAY
Denmark has no juvenile justice system
Denmark, in essence, has no separate juvenile justice system. Put simply,

children below the age of criminal responsibility (15) are dealt with exclu-
sively by the social welfare authorities—the municipalities and the counties.
Persons above 15—be they adolescents aged 15 to 17 or young adults aged
18 to 21—are in principle dealt with by the ordinary courts. There is no
juvenile court system.
Nevertheless, there is an overlap between the social welfare system for
juveniles aged 15–17 and the adult criminal justice system, as young offend-
ers may be dealt with within the welfare system until the age of 18 (and in
a few cases until 21). Social welfare measures—including involuntary place-
ment in a residential institution—may be extended below the age of 15 and
may also be prolonged for youth turning 18 while in care, or may be the
result of a decision by the welfare boards for juveniles aged 15–17. This
may happen either independently of criminal behaviour or as a reaction to
law violations. In the latter case, an interplay between the criminal law sys-
tem and the welfare system occurs.
The criminal law system as a gateway to juvenile justice
The initiative from the criminal law system may occur either through a
waiver of prosecution—granted by the prosecutor, but subject to limited
review by the local court—or via a court decision. The latter type of deci-
sion may take the form of a conditional sentence (probation) with condi-
tions subjecting the juvenile to supervision or placement within the welfare
system or to a specific type of treatment, e.g. for psychiatric disease, or an
unconditional ‘Youth Sanction’ (see below). When the young offender turns
18, however, (s)he becomes the responsibility of the adult probation system,
which normally takes over supervision for the remaining period.
Adolescents may, however, become the responsibility of the Department
of Corrections (Kriminalforsorgen, translated as the Department of Prisons
and Probation (DP&P)), from the age of 15 in more serious cases, e.g.
serious violence and repeated grave offences. This decision is up to the sen-
tencing court, which may also pass an ordinary prison sentence.
According to the provisions of the CRC (Art 37), juveniles below 18 are
presumed not to serve an unconditional sentence together with adult
offenders, i.e. in adult prisons, and they are not supposed to be held in cus-
tody with adults in adult jail. Due to lack of slots in secure wards under the
social welfare system, several young offenders aged 15–17 are still placed in
local jails or prison rather than in secure social service institutions
(Politiken, 27 March 2005).
The DP&P, in a count as of 13 August 2002, found a total of 16 juve-
niles aged 15–17 in its institutions, consisting of 5 in local jails, 4 in the
Copenhagen jails, 1 in the special psychiatric prison at Herstedvester, 1 in
an open prison and 5 in the closed prison at Ringe (in a special section for
juvenile prisoners). In 1999 the Danish Supreme Court decided (UfR
1999.1415) that the CRC does not expressly prohibit placing a juvenile in
isolation (solitary confinement) in an adult prison in extraordinary
situations.
Adolescents aged 15–17 who are sentenced to prison are supposed (since
1998) to serve their prison sentence in an alternative way under section 78,
subs. 2 of the Act on Execution of Sentences. Serving in alternative way cov-
ers a number of different options, some of them involving specialized treat-
ment (e g in a psychiatric or other hospital), some involving placement by
the welfare authorities in a foster family or other group setting and some of
them involving special institutions for juveniles, including so-called ‘secure
wards’. See figure 11.1 for an overview of the Danish system.
Social welfare, secure wards and budgets
The fact that the latter category of placement is under the auspices of the
welfare authorities (run by the counties) may cloud the fact that the secure
wards are tough institutions not so different from prisons. They are sup-
posed to maintain maximal security, i.e. protection against escape. They are
also supposed to contain elements of treatment, particularly for those
young offenders serving a Youth Sanction (see below), but in practice treat-
ment is rather limited and lacks any clear theoretical or professional basis
(Vestergaard 2004b). The treatment element is clearly subordinate to the
element of security. Some of the secure wards are specifically authorized to
hold the most violent and dangerous categories of young offender, and even
within these there are special isolation units or cells used for the most recal-
citrant and escape-prone young offenders.
The secure wards are also to some extent used as alternatives to remand
in ordinary jails for young offenders aged 15–17, as they are supposedly
220 Jørgen Jepsen
Figure 11.1: Denmark's juvenile justice system: an overview. The measures for different
age groups ('juveniles' primarily 15–17)
more geared to housing young offenders and fulfil the CRC principle that
juveniles should not be institutionalized with adult offenders. Still, occa-
sionally a juvenile awaiting trial may be transferred to (or housed in) an
adult jail when no room is available in a secure ward or when even these
are insufficient to prevent escape and repeated offending.
The decision to place a juvenile in a secure ward is usually taken by the
ordinary courts in connection with a remand custody order or as part of a
Youth Sanction, as is transfer to an ordinary institution for juveniles.
According to current provisions and agreements, the local social welfare
authorities at the municipal level do not have to cover the specific costs for
each individual placement in a secure ward. According to available accounts,
from a purely budgetary point of view, local authorities may therefore pre-
fer placement in more restrictive, secure wards or even in prison.
It is understandable that the communes are also reluctant to remove a child
from its home if this is not deemed absolutely necessary. But this reluctance
has given rise to criticism that the communes are unwilling to bear the costs
necessary for safeguarding the welfare and best interests of children. A parlia-
mentary proposal was put forward in 2004 to move responsibility for decision
making from the municipalities to a different forum which is independent of
economic considerations (Forslag til Folketings-beslutning B 77/2004,
Socialministeriet 2004). It resulted in a limited reform on placements, but
without any major change in the organizational setup.
In principle, the economic responsibility should be a factor persuading

the communes to prefer preventive social measures to institutionalization,
also for children at risk of entering into or extending a criminal career. In
practice, however, the communes are less effective at providing such preven-
tive measures, particularly when they involve economic support to a
child/juvenile and his/her parents. In recent years the economic burdens
upon the communes of institutional placement after a removal of a child
from the family—be it voluntarily or against the will of the parents and the
child—have grown considerably, at the same time as the state increasingly
limits their budgets. Thus at the end of 2002 a total of 14,360 children and
juveniles were placed outside their home (Mehlbye and Rohde 2004, 13).
Ten per cent of these placements were made against the will of the parents
and/or the juvenile. The number of children and youth placed in residential
institutions has been fairly stable at around 3,000 since the mid-1990s.
Therefore, the growth in placements is primarily due to increased place-
ments in social-pedagogical institutions and in foster family care. The for-
mer category today amounts to some 25% of all placements, foster families
amount to 45% and residential institutions 25%. Compared to the other
Nordic countries, Denmark has a high level of placements, particularly in
the form of social-pedagogical collectives, boarding schools and ‘own resi-
dence’ (with municipal payments) (Mehlbye and Rohde 2004, 13).
THE SOCIAL WELFARE SYSTEM AND YOUNG OFFENDERS
In principle, decisions in children’s cases, with or without a penal sanction,

but involving removal of the child from the home, are made by the munici-
pality (the local commune) through its ‘welfare board’, named the Child and
Youth Board (CYB). In cases of compulsory removal of a child from its home,
the local communal administration presents the proposal and its basis to the
CYB. This board normally consists of three municipal politicians, supposed
to represent a political and lay element with local insight. In cases of compul-
sory removal of a child or juvenile the committee is joined by a local judge
and a person with special insight into children’s matters. This is supposed to
safeguard the legal position of the child/juvenile. The parents and the juvenile
above 15 are provided with a lawyer free of charge. This structure—and in
particular the CYB—is the Danish parallel to the Juvenile Court.
The role of the welfare boards—delimitation and co-operation between

the social and justice sectors
The rules on administration and structure in placement cases are found in

the Act on Social Service, the Act on Due Process (Retssikkerhedsloven),
and the Act on Administration (Forvaltningsloven).
222 Jørgen Jepsen
According to section 40 of the Act on Social Service the commune

(municipality) makes decisions on voluntary measures. A number of meas-
ures are enumerated, such as consultancy, day care, youth clubs, practical
and pedagogical support to parents, economic support, and placement out-
side the home. Most of these measures require the parents’ consent,
although appointment of a personal consultant or contact person for the
child can be decided without consent under certain circumstances.
‘Voluntary’ placement outside the home of adolescents above 15 also
requires consent by the adolescent. The commune decides on the place-
ment and carries out supervision. Such voluntary measures may be
appealed to the Social Board (‘det sociale nävn’) as far as the legality of the
measure is concerned. The local Social Boards consist of five members and
the County Chairman. In 2002 the Social Boards decided 855 cases,
particularly in relation to questions of social support. These decisions are
final.
If the commune finds that the case cannot be solved by voluntary meas-
ures it sends a proposal to the CYB for compulsory measures, accompanied
by a case analysis and a plan of action for the measure.
A decision to remove a child/juvenile from the home against the will of
the parents must be made by at least four of the five members, i.e. either
the judge or the child specialist must be in favour. The CYB’s decisions
may be appealed to the National Board of Appeal (Ankestyrelsen) within
four weeks, and from there—also within four weeks—to the High Court
(Landsretten). Appeal may be made both by the parent and by the
juvenile, if over 15. The complaint may concern the placement as such
and the type of placement (foster home, institution) but not in which
specific institution or home of those available the placement should take
place.
Participants in the meetings of the National Board of Appeal are four
ordinary members (civil servants), a chairman and a medical consultant,
most often a specialist in child psychiatry. In 2002 the National Board han-
dled 489 complaints, mostly concerning involuntary placements
(Socialministeriet 2004, 18).
Appeals to the High Court involve the parents as parties to the case,
along with the youth, if above 15. A lawyer is appointed free of charge for
the complainant(s). The case is decided by two judges, one whom must be
a specialist in child/youth psychiatry or psychology, the other a specialist in
child and youth welfare measures. The case is handled according to the
rules of the Act on Administration of Justice (Retsplejeloven) dealing with
appeals against administrative deprivation of liberty.2
2 These statements are based upon the Analysis of Procedures in Children’s cases
(Socialministeriet 2004).
Involuntary placements. Placement in secure wards
Placement in a secure unit under the general rules of the Social Welfare Act
is an available option in the following circumstances: (1) if such a measure
is considered absolutely necessary to protect an individual from harming
himself or others, (2) for initial observation, or (3) to implement a decision
regarding a longer period of treatment (section 58 of the Social Service Act).
For juveniles above 15 the total duration of placement in a secure unit may
be up to 14 months and the decision is made for 2 months at a time with the
possibility, however, of two lots of 6 months in connection with a treatment
program. In addition, the court may make a decision concerning placement
in a secure unit at a juvenile institution as a surrogate for pre-trial custody
according to the provisions of the Administration of Justice Act.
In connection with recent criticism of CYBs, a parliamentary initiative
(Forslag til Folketingsbeslutning, B 77/2004) gave rise to an analysis of pro-
cedure in these cases (Socialministeriet 2004). Four considerations were
seen as essential: decision-making should be improved in relation to (1) pro-
fessionalism, (2) legal safeguarding of the interests of parents (to a lesser
extent the child), (3) uniformity in decisions, and (4) counteracting of irrel-
evant economic considerations (i.e. the interest of the communes in saving
money). Various reform models were presented in the analysis, one of them
involving the removal of the judge from the local CYB and letting the local
court be the first instance for complaints about decisions of the communal
administration, another introducing a new national board as decision-
maker, and a third variation involving regional centres. It was alleged that
having a judge present in the CYB creates confusion between the adminis-
trative and the judicial powers. This discussion, however, did not result in
any change in the organization of children’s and juvenile cases within the
communal sector.
In a separate piece of legislation (Act No. 1442 of 22 December 22 2004)
the duty of the communes to provide preventive and supportive measures
before removing children from the home was stressed, and a specific obli-
gation for the communes to provide a cohesive policy for children was
introduced. Also a duty was introduced to provide a quick plan of action
(within 7 days from the receipt of documentation from the police), for chil-
dren below 18 having committed violent crimes. The act further specified
the options for support etc. that should be available, the rules for com-
plaints and the rules for distribution of expenses. The system of decision-
making was not changed in any fundamental way, however.
Within the next few years a major communal reform will be imple-
mented, which involves a significant reduction in the number of communes,
and the counties will be abandoned in favour of a limited number of regions
(five). How the professional qualifications for dealing with cases of children
in trouble with the law will be provided and improved is at present unclear.
224 Jørgen Jepsen
Summing up—the welfare board model
The Danish experience of welfare boards (CYBs) undertaking some of the

functions handled by juvenile courts elsewhere is thus by no means unam-
biguous. The idea that the CYBs should provide both legal safeguards and
professionalism has not been clearly demonstrated. Furthermore, it has
been noted that in Denmark there is a scarcity of research on the effects
and efficacy of different organizational structures. It has also been pointed
out in relation to placement outside the home that very little research on
this topic has been carried out in Denmark. Thus the scientific basis for
choosing between different models of organization and securing profes-
sional treatment of serious young offenders—or for that matter children
and juveniles at risk—is lagging behind (even if this problem was finally
taken up in 2004) (Vestergaard 2004a). This has led to increasing pressure
to establish methods and routines for evaluation and documentation. A
start has been made with the publication Unge i dögnanbringelse—indsats-
og resultat-dokumentation (Youth in 24-hour placements—documentation
of efforts and results) (Mehlbye and Rohde 2004). A number of illustrative
cases are quoted, and proposals for the development of methods and
systems to be applied by communes and counties in the coming years are
presented.
DEVELOPMENTS IN THE SYSTEM OF REACTIONS
Cautious experiments with family conferencing within the welfare sector

and victim-offender mediation in the criminal justice sector have begun.
The latter has been only half-hearted and the development of alternatives to
imprisonment or institutionalization has been quenched by the demand for
security, for being ‘tough on crime’—and on juveniles. There has been little
respect for the type of research that questions the effectiveness of incarcer-
ation in preventing or reducing (re-)offending. Instead the demand has been
for ‘signal-legislation’ expressing moral condemnation of law violation and
of law violators, almost regardless of their age.
The development from the extensive use of waivers of prosecution for
juvenile offenders through the special category of Youth Contracts to secure
wards and the Youth Sanction is illustrated in the following sections. The
public and political demands for demonstrative condemnation of young
offenders and for harder sanctions have been based upon the perception
that juvenile offending—like crime in general—and in particular violent
crime, has been on the rise due to former laissez-faire criminal policy and
that there has been a growing need for harder sanctions and more incarcer-
ation with an emphasis on protecting the public.
Are these perceptions borne out by the actual developments in juvenile
crime, and to what extent are the problems adequately represented in the
media? We will look at these questions in conjunction with an analysis of

the statistics on registered offences committed by children (under 15), juve-
niles (15–17) and young adults (18–20) and with developments in the sys-
tem of reactions during the period 1992–2002.
It should be noted, however, that the statistics on offences are hard to
interpret and are subject to perceptual distortions due to the way they are
created. The statistical entity for counting offences in the tables is decisions
or ‘dispositions’ under the Penal Code and so-called ‘special legislation’,
i.e. less serious offences carrying maximum penalties of no more than two
years. The decisions—either by the prosecution (waivers) or by the courts
(conditional or unconditional prison sentences)—are distributed according
to the ‘main type of offence’, i.e. the offence carrying the highest penalty
under the law, which means that other offences in the same case (decision)
are not counted. Furthermore, most of the official statistics concern deci-
sions, not people—and some individuals appear in the annual statistics
more than once in a year. These are the conditions that inescapably colour
the presentation of reality in statistics.
THE DEVELOPMENTS IN CHILD AND YOUTH CRIME

AND REACTIONS
Studies on self-reported crime among 14–15 year olds
Research on self-reported crime among school children in grade nine

(14–15 years old) indicates a decline from 1979 and 1989 to 1999 both in
the number of juveniles engaging in crime and in the number of juveniles
committing serious offences. The former is especially pronounced (see
Figure 11.2). Furthermore, the studies show that while the number of youth
who have committed repeated serious offences has decreased, offenders
tend to exhibit an increasing crime frequency (serious offences include car
theft, burglary and robbery, while minor offences include inter alia shoplift-
ing, theft of bicycles and vandalism).
The studies thus reveal an increased polarization in crime prevalence and
frequency among juveniles, and similarly patterns of increased polarization
are found in the lifestyles of the juveniles and in school life (Balvig 2000,
Kyvsgaard 1992).
The decrease in prevalence among juveniles has been explained by demo-
graphic changes as small cohorts face different and better life circumstances
than bigger cohorts and children of large families. It has furthermore been
explained by an increased tendency among the youth to focus more on
future opportunities and to view crime as risk behaviour (Kyvsgaard 1992,
Balvig 2000). Finally, it has been pointed out that intensified crime preven-
tion measures might have diminished the number of minor thefts (Balvig
2000, Kyvsgaard 2004b, 364–5).
226 Jørgen Jepsen
Figure 11.2: Self reported crimes among 14-15 year olds in 1979, 1989 and 1999
Source: Flemming Balvig: RisikoUngdom, 2000.
Children below 15—registered offence patterns
A set of preliminary statistics on offences registered for children aged 10–14

years during the period 1992–2002 has been published by the Danish
Ministry of Justice, which stresses, however, the limited validity of the data
(Justitsministeriet 2003, Kyvsgaard 2003a, 2003c).
Table 11.1 shows that the total number of reported crimes perpetrated by
children under 15 years during the 1990s fluctuated somewhat and there
was neither a clear upward nor a clear downward trend in crime prevalence
among children. However, certain types of offences, especially violence and
partly also robbery and shoplifting, showed a tendency to increase. The
level of cases involving violence was rather stable until 1998 but in later
years considerably more children were registered for violence. ‘Joy-riding’
(car theft) and in particular burglary decreased. Thus the number of chil-
dren registered for burglary in 2002 was a third of the 1992 level. The table
also indicates that the number of children registered for shoplifting heavily
influences the total number of registered crimes for children below 15
(Justitsministeriet 2002).
Reactions, children, 12–14 years old
Since children below the age of criminal responsibility cannot in principle

be punished, neither can they be formally ‘charged’ with violations they are
suspected of having committed. But they can, in practice, be interrogated by
the police.
In 2003 a set of rules on administrative coercive measures in criminal proce-
dure against children below 15 were introduced in the Act on the
Table 11.1: Cases concerning children aged 10–14 ‘charged’ with offences, distributed by type of offence and year (absolute numbers)
1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002
Violence 64 76 54 67 60 63 99 133 163 208 199
(§ 244–6)
Burglary 526 336 385 256 240 211 182 108 173 165 185
Robbery 25 30 22 22 68 30 39 47 97 75 113
Shoplifting 1194 1374 1285 1261 1344 1271 1490 1550 1734 1310 1099
Joy-riding 325 252 261 261 203 254 230 217 290 246 317
Other 1074 1038 924 927 763 644 798 784 992 959 901
Total 3208 3106 2931 2794 2678 2473 2838 2839 3449 2963 2814
No. of 10–14
year olds 298752 290752 280521 273930 272987 276633 280579 289167 298751 308866 318443
Per 1,000
10–14 year
olds 11 11 10 10 10 9 10 10 12 10 9
Source: Danmarks Statistik, Kyvsgaard 2004b.
Juvenile Justice in Denmark: From Social Welfare to Repression
227
228 Jørgen Jepsen
Administration of Justice for the first time, limiting the time the police are
allowed to keep under-age children in custody while investigating their sus-
pected offences to 6 hours and regulating the way ‘charges’ might be presented.
The Social welfare authorities are required to be represented during question-
ing of such underage suspected ‘offenders’. These rules—which were drawn up
pursuant to a report by the Criminal Procedural Committee of the Ministry of
Justice (Justitsministeriets Strafferetsplejeudvalg 2003)—have been criticized
for giving the police too wide powers in this respect (Boerneraadet 2005).
Only a small fraction of children below 15 are removed from their home
by the social welfare authorities primarily because of acts which, if commit-
ted by an adult, would amount to a crime. Law violation should in principle
be seen as a signal of trouble and interventions are seldom implemented due
to crime exclusively, as other circumstances are indicators of a need for help.
Statistics on child welfare do not tell us the number of measures initiated
on the basis of criminality. At the end of 2000 nearly 1,800 boys between
12 and 14 years of age were placed outside their home, which amounts to
19 per 1,000 population in that age group (Kyvsgaard 2004b, 368).
Placement in foster families is the most common type, while placement in
institutions constitutes around one-fourth of the placements
(Socialministeriet 2003a).
A study on Fyn (=‘Fünen’—one of the major Danish islands) estimated that
if the figures from Fyn were calculated up to the national level an estimated
2,300 cases involving law violations would be brought before the CYBs. Of
these, some 800 would result in a juvenile being placed outside their home.
Adolescents 15–17 years old, patterns of offences—decisions
The registered offence pattern as measured by dispositions (‘decisions’—which

are based upon the unit of the decision for the most serious offence registered
for the youth in question in the relevant year) is about the same for 15–17 year
old offenders as for younger juveniles, as violence, robbery and shoplifting
have increased while burglary has decreased. Dispositions (sanctions) for
shoplifting increased especially from 1991–2, which was, however, primarily
due to changes in sanctions policy and not to changes in offence rates.3
The number of juveniles aged 15–17 who during the period 1992–2002
received a penal reaction (waiver of prosecution, fine, or a court sentence)
is quite stable and there are no clear tendencies towards increase or
decrease. In absolute numbers there has been a decline, but this is negated
when relative figures are applied (see Table 11.2).
3 Until July 1991 around half of all charges for shoplifting were dropped and a warning was
issued. By 1 July 1991 this practice had changed and instead a fine was imposed. Offences not
leading to a charge are not included in the table.
Table 11.2: Number of sanctions (waivers of prosecution, fines, prison sentences (conditional and unconditional)) 1992–2002 for juveniles
aged 15–17
1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002
Sex offences, total 21 22 19 34 19 28 19 28 39 23 21
Of which Rape 2 2 3 9 0 3 5 5 11 2 3
Violence, total 264 380 482 493 424 407 441 482 693 748 777
Of which Murder 1 0 0 0 1 1 0 0 0 0 0
Attempted murder 0 0 0 0 0 0 0 0 0 0 0
Penal Code § 244 (simple vi.) 207 292 364 372 309 308 311 334 522 548 572
PC § 245 (aggravated violence) 19 31 40 49 54 46 34 51 66 81 73
PC § 246 (v. with death or 0 0 3 0 0 2 0 0 1 0 0
serious damage)
Property Crimes, total 4172 4065 4108 4246 3951 3744 3680 3345 3583 3527 3194
Of which Burglary 705 515 534 512 451 434 322 297 299 318 302
Shoplifting 1217 1294 1335 1320 1315 1282 1371 1210 1194 1024 911
‘Joy-riding’ 284 311 333 394 359 405 341 365 340 345 271
Robbery 61 58 70 86 87 112 110 113 142 152 134
Other Penal Code offences 48 79 90 102 51 73 75 76 84 111 103
Of which Drug offences 2 1 0 3 1 0 7 2 1 7 4
Penal Code offences, total 4505 4546 4699 4875 4445 4252 4215 3931 4399 4409 4095
Other law* violations, total 677 636 613 569 465 349 388 313 332 397 379
Of which Drug Act violations 59 77 81 61 66 57 99 70 91 109 119
Act on weapons 441 374 328 266 246 196 182 145 156 213 213
Total 5182 5182 5312 5444 4910 4601 4603 4244 4731 4806 4474
Per 1,000 15–17 year olds 25 26 27 29 27 26 27 26 29 29 26
Source: Danmarks Statistik, Kyvsgaard 2003c.

* ‘Other laws’ include traffic offences and violations of other ‘special laws’, including the Weapons Act and the Act on Euphoriant Drugs.
229
230 Jørgen Jepsen
In relation to violence, there was a marked increase in the number of cases

involving juveniles (15–17): the number has tripled since 1992. The great
majority of cases concern simple violence (Penal Code section 244), but there
has also been an increase in the number of cases of aggravated violence (sec-
tion 245). Juveniles in Denmark, however, are very rarely involved in murder
or attempted murder or particularly dangerous violence (section 246).
Juveniles commit rather few sex crimes. In 2000, when several cases occurred
in which juveniles had participated in group rapes, 11 juveniles were sen-
tenced for rape, but this figure has diminished considerably since then.
The system of reactions, 15–17 year old offenders
For offenders in the age group 15–17 years the system is mixed: the great
majority of these adolescent offenders are referred by the police, prosecution
and/or the court for action to the welfare boards (CYBs), which are also exclu-
sively responsible for dealing with child offenders below 15 years of age, and
are often already in contact with the adolescent offenders and their families.
The board may decide to remove the adolescent offender from their
home, but the majority of cases consist of measures not involving depriva-
tion of liberty (Socialministeriet 2003b). Furthermore, 15–17 year olds are
not normally placed in jail on remand awaiting a decision on their case. The
most serious young offenders may be placed in substitute remand (‘surro-
gatfängsling’), normally in an institution within the welfare system. For the
most serious of these, such remand may take place in high security institu-
tions but still within the social service system, normally in small institutions
Types of disposition
The formal basis for special welfare measures against juvenile offenders
aged 15–17 is a conditional waiver or suspension of prosecution4, where
referral to the welfare board and to the social services for youthful offend-
ers is a condition for suspension of prosecution. After the lapse of a proba-
tion period of up to two years—or upon reaching 18—without further
offending and without serious infractions of the condition(s) of submission
to possible welfare measures the case is closed.
The ‘traditional’ waiver will only be kept on the juvenile’s criminal record
for two years after the initiation, if the conditions have not been violated.
This may be seen as a partial expression of the wish not to stigmatise young
offenders unnecessarily. It was further reduced in 1998 along with the
introduction of the youth contract.
4 Sections 722 and 733 of the Act on Administration of Justice (Retsplejeloven); see
Rigsadvokaten (1998).
In addition to the condition of non-offending for a certain period, the

waiver—which is formulated in co-operation between the prosecutors and
the welfare authorities—may include a number of other conditions. Some
of the conditions will be related to welfare measures, others may involve
the payment of a fine or of restitution (damages) to the victim. Conditions
which involve economic burdens upon the juvenile must be accepted by
the court. Both in these cases and where other conditions are applied the
case must be presented to the court, which has to be satisfied that the
offender admits guilt and the judge is convinced of the truthfulness of this
statement. If not, the case will have to go through an ordinary court
process.
The conditions relating to social welfare measures may include placement
outside the home according to the decision of the welfare board, or specific
types of treatment, e.g. for the abuse of alcohol or other drugs.
Within the non-institutional measures the social authorities can use a
wide array of measures, most of them parallel to those conditions that may
be imposed under a conditional sentence under section 57 of the Penal
Code. They may include various kinds of economic support for the juvenile
or the family, the appointment of a personal advisor (mostly for adminis-
trative matters) and a contact person (for personal support and control),
and special provisions for education. For families without means the wel-
fare board may grant subsidies for such purposes.
As a measure of intermediate severity, the juvenile may receive a condi-
tional sentence with probation (Kyvsgaard 1998). This may involve the set-
ting or non-setting of the penalty in advance. In some cases the length of
sentence will only be set in the case of violation of the conditions and a new
appearance in court. A conditional sentence will normally be to a prison
term, and the court may set a ‘combination-sentence’ which is in part sus-
pended and in part unsuspended. The latter usually involves a short period
(maximum three months) of deprivation of liberty or a fine.
For those young offenders who are given a conditional sentence, proba-
tionary supervision is normally carried out by the services of the
Department of Prisons and Probation, but it may be delegated to the social
services. When the juvenile reaches 18 years of age, further supervision is
transferred from the social services to the Department of Prisons and
Probation. This department is in charge of the supervision of all offenders
above 18 years who receive a conditional sentence.
Remand placement and prison sentences for youth aged 15–17
Remand
As of January 15 1999 new rules came into force under which juvenile
offenders aged 15–17 were to be placed as far as possible in surrogate
232 Jørgen Jepsen
remand custody in one of the secure institutions under the child and youth
welfare authorities and could not normally be placed in ordinary jails. Still,
a few of the most recalcitrant and escape-prone youths are occasionally
placed in adult jails (see below).
Young prisoners
Until January 1999, young offenders aged 15–17 sentenced to prison under
the Department of Prisons and Probation (DPP) were placed in special
prison wards separate from adult offenders, one of them in a former youth
prison, others in the Copenhagen Jail. These placements were, however,
found to be problematic for geographical reasons and due to difficulties of
providing suitable activities.
Thus, in the period 1999–2002 there was at any one time an average of
13–14 young inmates in prisons or jails, of whom 7–8 were serving a sen-
tence and 6 were in remand custody. In 2003, however, the figures were
notably higher: as of 25 February 2003 a total of 32 offenders below 18
were in prison or jail, of whom 12 were serving a sentence and 20 were on
remand awaiting trial. This latter group would normally be put in a jail in
Copenhagen or near their home.
Usually, young prisoners aged 15–17 serving a sentence in an open prison
are also placed according to the principle of proximity to the home. At least
every two weeks the prison staff are supposed to discuss the juvenile’s situ-
ation and decide whether there might be grounds for placement elsewhere.
Prisoners aged 15–17 sentenced to serve time in a closed institution should,
as a rule, serve in the State Prison at Ringe—normally in a special section
for the youngest group—or in a jail. The institutions are supposed to pro-
vide individual treatment programs according to the motivation of the
youth. Cognitive skills programs, treatment of abuse, training in daily liv-
ing (ADL), supplementary school education and other activities are offered.
At the state prison in Ringe, a special three-year project on separate wards
in co-operation between the prison service and the social welfare system was
introduced for young prisoners aged 15–18. These slots should aim specifi-
cally at the small group of young offenders repeatedly committing serious (or)
violent crimes. It is maintained that these placements have a double objective:
—Taking care of the needs of the adolescent for relevant pedagogical and
therapeutic measures, and
—fulfilling the demands of society for sanctioning the criminal activities of
the juvenile (the public sense of justice), including keeping the offender
in a closed environment as long as and to the extent that he violates the
environment with his illegal behaviour.’ (Socialministeriet 2003a)
The project includes the special section at Ringe and two open residential
institutions with a mobile unit to assist in critical situations. The special
ward at Ringe was fully occupied in 2002 and has a waiting list.
Figure 11.3: Sanctions for Criminal Code offences for 15-17 year old offenders by type
of sanction, 1986-2000. Absolute numbers, cumulated
Source: Statistics Denmark, Kyvsgaard (2004b).
Within the social welfare sector 23% of the 3,000 slots for young persons
were occupied by youthful offenders in 2000. In secure residential institu-
tions (for placements based upon administrative deprivation of liberty)
there was in 2003 a total of 85 slots in 7 institutions (Socialministeriet
2003a, 47); this number later increased to a total of 94. In one of the secure
institutions a special secure ward was established in 1998 to provide for
those young remand prisoners who represent the greatest danger to their
surroundings and to themselves.
In critical situations, the most difficult and violent young offenders are
moved around among the secure institutions and the jails. The pressure on
the secure wards has also meant that an increasing number of young offend-
ers on remand have to be held in ordinary jails instead of the secure welfare
institutions (Politiken, 27 March 2005).
Regarding prison sentences imposed on young offenders, the length of
the sentence will normally be shorter than is the case for adults irrespective
of the fact that a prison sentence for young offenders typically embraces
offences for which the juvenile has earlier been given a withdrawal of
charge and/or a suspended sentence. For youth aged 15–17 a prison sen-
tence may not be for more than 8 years.
In the year 2000, the average length of a prison sentence was 4.4 months
for young offenders (aged 15–17) compared to 6.5 months for older offend-
ers (aged 18–30), and none of the sentences for the juveniles exceeded 3
years (Kyvsgaard 2004b).
Until 2001, a provision in the Penal Code (section 49 subs. 2) was used
to grant transfers from a prison to a treatment institution5. In connection
with a change in the legislation which established the new Youth Sanction
5 See Hagemann and Olsen (2001) for an evaluation of the effects of the application of sec-
tion 49, subs. 2.

234 Jørgen Jepsen
Table 11.3: Number of young offenders aged 15–17 sentenced to imprisonment and
the number serving the sentence in an alternative way, respectively, 1991–99
1991 1992 1993 1994 1995 1996 1997 1998 1999

Sentenced to 51 69 70 91 113 105 111 111 89
imprisonment
Serving in an 10 23 27 44 55 53 58 75 60
alternative way
Actually imprisoned 41 46 53 47 58 52 53 36 29
Source: Ekspertgruppen om ungdomskriminalitet 2001 Kyvsgaard (2004b).
in 2001, a special provision was introduced in the Act on the Enforcement

of Sentences (section 78) for such transfers. About half of them involve
transfers to pensions or other (semi-open) institutions under the
Department of Prisons and Probation; others involve transfer to a treatment
institution within the social welfare system and a few to a psychiatric insti-
tutions; and yet others involve transfer to a special ‘secure ward’, also
within the welfare organisation (these measures are referred to here as ‘serv-
ing in alternative way’).
The number of juveniles serving their prison sentences in an alternative
way increased greatly after the ratification of the UN Convention on the
Rights of the Child in 1991. During spring 2001 the practice of combining
imprisonment with serving the sentence in an institution was established,
enabling those who had not initially been allowed to serve a sentence in an
alternative way to be transferred to an institution outside the prison system
after some time (see table 11.3).
The numbers and types of sanctions (dispositions) imposed against
Criminal Code offenders aged 15–17 in 2003 can be seen from Figure 11.3.
(p. 233) (Kyvsgaard 2004b, 374).
Figure 11.3. shows the results of the Danish youth justice policy for the
age group 15–17 years. In 2000, 5% of the sanctions for these young
offenders were prison sentences, 20% suspended sentences, 11% were
waivers of prosecution and the majority (nearly two thirds) of the sentences
were fines.
For offenders over the age of 17 the corresponding figures were as fol-
lows: 22% prison sentences, 21% suspended sentences, 5% withdrawal of
charge (waivers), and 53% fines. Fines and withdrawal of charge are thus
Figure 11.4: The flow of juvenile justice in Denmark 2003, age group 15–17
Table 11.4: Data on Reactions to ('sanctions') in Denmark, young offenders (aged 15–17
years) 2003
% of total Overall
decisions total decisions
10591
Acquittals (in court) 117
Charges not sustained
(no grounds for prosecution) 1720
No guilt, total 1837 17%
Guilt established 8754 83%
Fines, total 6659 76% 8754

ticket fines 5972
other fines 687
Waivers, total 496 6% 8754

youth contacts 184
ordinary waivers 114
other wavers 198
Court Sentence, total 1574 18% 8754
conditional 1223 78% 1574

cond. sent. alone 908
cond. sent.+ comm. serv
(80) + fine (46) 126
cond. sent. + fine 189
Measures (Greenland) 25
Unconditional
sentences 351 22% 1574
unconditional.
sentences. alone 175
youth sanction 70
unconditional sentences 176
combination sentences 14
more frequently used for young offenders (Kyvsgaard 2004b, 374), and
most fines are ticket fines6.
The annual number of prison sentences for young offenders increased
somewhat in the 1990s due to both an increase in robberies and violence
6 Ticket fines are imposed by a police officer or a prosecutor without being taken to court—
unless the offender denies guilt or is unwilling to pay the amount stipulated.
236 Jørgen Jepsen
among juveniles and to harsher sentences for violence. Withdrawal of

charge (waiver of prosecution) has been declining for many years: while
40% of all sanctions for offenders below 18 years were withdrawals of
charge in 1980, this had decreased to 11% by 2000.
In 2003, the great majority—76% (6,659)—of all reactions to youth
aged 15–17 (involving established ‘guilt’) were fines and 6% (496) were
waivers of prosecution. Of these waivers, 184 (37%) involved Youth
Contracts and 114 (23%) were ‘traditional’ waivers conditioned upon child
and youth welfare measures. 1,574 decisions—or 18% of the total—
involved a court sentence. Of this latter group, 1,223 were conditional and
351 unconditional (prison) sentences. 70 of the 351 were sentences to the
‘Youth Sanction’ (see table 11.4 (p.235)).
The most recent figures for reactions towards juvenile offenders aged
15–17 (from 2003) are summarized in Figure 11.4, which illustrates the
flow of cases in the criminal justice system.
It should be noted that the number of admissions to prison does not quite
correspond to the numbers in the table above as they stem from a different
source from the ordinary crime statistics (namely information from the
Department of Prisons and Probation) and thus overestimate the number of
juveniles actually put in prison.
The overall system of reactions is illustrated in Figure 11.5, with
available numbers for 2003 included (p.237).
Young adult offenders (18–20)—crime pattern (sanctions)
Regarding offenders aged 18 to 20 years, the crime pattern between 1992

and 2002 was much more stable than is the case for younger offenders, as
shown in Table 11.5 (p.238).
It is difficult to point to a clear increase in violence and robbery among
young adult offenders in this period, whereas the downward trend in bur-
glary is pronounced. In general, the level of violence is somewhat higher for
18–20 year olds than for those aged 15–17, but during the period the two
groups approached each other.
It should be noted, however, that to some extent the described develop-
ment in types of offences is a statistical artefact, due to legislative
changes—higher penalties—particularly in the field of violence. This has
meant that violence will appear more often as the main offence in cases
involving several counts of different offences. In general this means that
the statistics overestimate the level of juvenile violence for 1992–2002 by
some 20%.
For violation of the provisions on drugs in the Penal Code, as well as for
violations of the Act on Euphoriant Drugs, there has been an increase in the
number of cases since the end of the 1990s concerning youth aged 18–20.
Figure 11.5: Flow of cases, juvenile offenders, aged 15–17 (2003)
Cases involving violation of the Act on Weapons declined during the period,
which is also the case for 15–17 year olds. However, after 2002 the police
launched systematic crackdowns on illegal weapons—knives, in particular.
The knife-killing of a young Italian tourist in a street in Copenhagen by two
young second generation immigrants in 2003 triggered a heated debate on
the carrying of knives. The anger generated by this crime led to a (Supreme
Court) sentence stating that the two young killers, after serving prison sen-
tences of 10 and 8 years respectively, should be deported to Turkey, from
where their families originated (one of them was born there, but came to
Denmark with his parents at the age of three, the other was born in
Denmark and both of them had lived most of their lives in Denmark).
As can be seen from the last row in Table 11.5, the number of disposi-
tions per 1,000 population aged 18–20 years increased from 1992 to 1994
and has since then returned to the level we saw at the beginning of the
1990s. The figures reflect a decrease in the number of 18–20 year olds dur-
ing the 1990s, down 23% from 1992 to 2002 (Kyvsgaard 2004b, 364).
The pattern of sanctioning for young offenders aged 18–20 in the year
2003 is shown in Table 11.6 (p. 239).
For youth aged 18–20, the proportion of waivers (2%) is just one third
of those for 15–17 year olds (6%). Fines (the majority of which are for traf-
fic offences) clearly dominate the picture (75% of all sanctions).
The development in relative offence rates, distributed by sex and age
group (15–17 and 18–20), can be seen from Table 11.7 (see p. 241).
238
Table 11.5: Number of penal sanctions (waivers of prosecution, fines and prison sentences (conditional and unconditional)) 1992–2002 for
the age group 18–20
1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002
Sex crimes, total 33 30 33 42 27 34 24 35 33 38 35
Of which Rape 4 5 3 4 6 7 3 7 4 6 7
Jørgen Jepsen
Violence, total 680 829 1069 909 858 889 830 862 852 997 970
Of which Murder 2 2 2 6 2 2 1 4 2 1 1
Attempted murder 0 0 2 0 0 0 1 0 0 0 0
Simple violence (PC § 244) 524 601 793 616 596 608 562 559 592 652 610
Aggravated violence (PC § 245) 61 111 109 125 104 102 103 95 88 141 144
Very serious violence (PC § 246) 2 0 4 2 3 4 1 1 5 2 0
Property crimes, total 5470 5699 5606 5220 4821 4577 4332 4010 3817 3825 3525
Of which Burglary 1108 1087 958 829 804 662 601 504 474 486 450
Shoplifting 1139 1300 1318 1110 1056 1025 990 985 894 811 719
‘Joy-riding’ 360 434 521 500 540 551 514 452 362 403 363
Robbery 119 121 89 110 115 112 115 103 140 133 157
Other Penal Code Offences 191 199 228 288 232 214 246 224 282 285 362
Of which Drug crimes 11 20 17 17 20 16 28 36 35 49 79
Penal Code decisions, total 6374 6757 6936 6459 5938 5714 5432 5131 4984 5145 4892
‘Special laws’, total 1583 1598 1563 1390 1145 1073 1123 1074 1137 1232 1199
Of which Drug Act violations 465 463 468 388 353 401 402 476 511 565 559
Act on Weapons 487 496 461 329 305 264 288 219 208 268 243
Total 7957 8355 8499 7849 7083 6787 6555 6205 6121 6377 6091
Per 1,000 15–17 year olds 36 38 39 37 35 35 34 33 34 37 36
Source: Danmarks Statistik, Kyvsgaard 2003c.
Table 11.6: Reactions to youthful offenders (aged 18–20) in Denmark, 2003
(Penal Code and ‘special laws’) per cent of

Decisions, total: 16.148
Acquittals (in court) 241
Charges ‘dropped’ (insuff.evidence etc.) 2532
‘Guilt’ not sustained, total 2773 2.773
‘Guilt sustained’, total 13.375
Dispositions
Fines: police fines:
ticket fines (traffic laws etc.) 7.150
fines + disqualif.,
prosecution 842
court fines:
fine sentences 1590
fines accepted 361
fines acc. + disqualif. 63
court fines, total 2014 2.014
Fines, total 10.006 10.006 75% 13.375
Waivers of Prosecution
Youth contracts 6
Conditions of youth measures 29
‘other waivers’ 264
waivers, total 299 299 2% 13.375
Court decisions (excl. acquiittals)
Sentences, suspended (probation)
‘suspended sentences alone’ 1.098
Suspended sent.s + fine 303
suspended + Comm.Service 323
suspended + CS + fine 113
Suspended sentences, total 1.787
Unsuspended sentences (prison)
Unsusp. ‘alone’ 846
partly suspended 204
partly susp + CS 48
unsusp. + fine 95
served on remand 19
Unsusp.sent.s, total 1.212 1.212
Other court decisions
‘Measures’ (Greenland) 43
no penalty, 28
Other court decisions total 71
Court decisions, total 3.070 3.070 23% 13.375
(Acquittals) 241
All decisions involving guilt 13.375
240 Jørgen Jepsen
It is notable that in 2001 and 2002 the proportion of sanctions for older
boys was pretty much the same as in the period 1993–95. And for boys
aged 15–17 the relative sanctioning level in 2002 returned to a fairly low
level when looking at the period as a whole.
‘NEW SANCTIONS’
Youth Contracts (1998)
In 1998 a new form of waiver of prosecution was instituted under the name
Youth Contract (YC). The YC came into force on 1 July 1998 (Kyvsgaard
2000, Rigsadvokaten 1998, Stevens 2003). These contracts were to replace
the traditional waivers of prosecution for most young offenders aged
15–17. At the same time, the use of fines and warnings were recommended
by the Attorney General as the primary measures for young (first) offend-
ers committing only less serious acts (Rigsadvokaten 1998).
On the basis of a pre-decision study, a contract is drawn up by the wel-
fare services in conjunction with the prosecutor’s office and the juvenile,
and in some cases his or her parents. If the juvenile does not accept the con-
tract at the end of the negotiations, prosecution resulting in a conditional
sentence (i.e. a higher level of sanction) or an unconditional prison sentence
is the presumed result.
The conditions of a youth contract might involve a promise to conscien-
tiously attend school or another type of education, spend leisure time in a
certain way, e.g. in a youth club, perform some type of work, etc. The
types of promises are not necessarily different from the conditions that
might be attached to the old style waivers or to a suspended sentence with
probation. In addition, traditional welfare measures, including placement
in an institution or foster family, may be used as a condition in a Youth
Contract.
The Youth Contract was designed to gradually replace the old style
waivers, particularly in cases of a somewhat serious nature. It was thus
meant for a ‘medium severity’ type juvenile offender, who could not
adequately be sanctioned by a warning or a fine. However, it was not meant
for ‘youth who seem to be involved in a fairly stable pattern of crime’,
i.e. repeated burglaries, theft etc. of a more serious nature. Robbery, drug
crimes and drunken driving were also exempt from the Youth Contract
system.
The ideology behind the Youth Contract was that young offenders should
receive a more serious warning than implied by the traditional waivers.
They should be warned that this was ‘a last chance’ and that more serious
reactions would occur in the case of further offending or violation of condi-
tions. On the reward side the law stated that if a youth contract was fulfilled,
Table 11.7: Number of sanctions (waivers of prosecution, fines, prison sentences (conditional and unconditional)) per 1,000 in the respective
age groups, distributed by sex
1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002
Age 15–17 years Girls 8 9 9 10 9 10 11 11 11 10 9
Boys 40 42 45 47 44 41 42 40 46 47 42
Age 18–20 years Girls 10 10 10 9 9 9 9 9 9 9 9
Boys 60 64 67 63 59 59 59 56 59 64 63
Source: Danmarks statistik, Kyvsgaard 2003c.
241
242 Jørgen Jepsen
the decision would only remain on the offender’s criminal record for one
year after the court’s decision (as opposed to two years for ordinary
waivers). The idea was to make youthful offenders accountable for their
deeds (Kyvsgaard 2000).
There was at that time no willingness to use community service in the
patterns of reactions towards juveniles. However, in connection with a
tightening up in 2001of sanctions for car theft (classified as ‘joy-riding’) it
was assumed that community service as condition of a suspended sentence
would be a normal reaction towards young car thieves (15–17 years of age)
and preliminary data show that the number of community service orders
for young first offenders actually rose in the following year (Kyvsgaard
2004a).
In Denmark there has been no clear tendency towards more imaginative
sanctions, e.g. restorative justice. Even the importation of conflict coun-
cils (‘Konfliktraad’) from Norway was carried out in a way that did not
involve any real alternative. Participation in a conflict council meeting
was not supposed to reduce the sanction to be imposed and the system
was tried only on a pilot basis in a few circuits. In 2004 there was a pro-
posal to expand its application on a national basis, but in April 2004 the
government declared its intention to abandon the measure altogether.
Its use has continued, however, on a limited experimental basis in a few
circuits.
Youth contracts and the level of juvenile crime
The tightening up in relation to the traditional waiver was a reaction to the

oft vented allegation that young offenders did not really get any serious
reaction early enough, that they received several waivers, one after
another—an impression which was not actually substantiated by statistics
(Hansen 1996, Stevens 2003, 16), and that the supervisory roles were not
very authoritative, but rather implied lenient reactions to breaches of con-
ditions. Only very few violators were reported for breaches of conditions,
and even fewer received any significant sanctions (Clausen 2002, Stevens
2003).
It was also a reflection of an increased fear of youth and angry reactions
to publicity about a few, much discussed serious incidents (see further
below). The public perception at that time was that juvenile crime—in par-
ticular violent crime—was on the rise and that society had failed to stem the
tide of criminality.
In actual practice, however, juvenile crime had decreased over the years
1990–99 by almost 20%, except for its more serious forms. Thus the num-
ber of cases against 15–17 year olds for burglary declined from 867 in 1990
to 297 in 1999 (i.e. a reduction of almost two-thirds), theft of bicycles and
mopeds from 505 to 277, and ‘other theft’ from 657 to 453. It should be
noted, however, that part of the decline was due to the fact that the
population of youth in the relevant age bracket—15–17 years—declined
from 220,000 in 1990 to 165,000 in 1999, i.e. a decline of some 25%, so
that the relative level of youth crime had not reduced so markedly as might
first be assumed.
On the other hand, robbery cases rose from 72 to 113, serious violence
from 27 to 51 and simple violence from 208 to 334. This is possibly wor-
rying—percentage-wise—but not large in absolute numbers.
The application of Youth Contracts
In actual practice it turned out that YCs were used increasingly over the fol-
lowing years (1998–2001) against young offenders within the intended age
brackets, but particularly for 15–16 year olds (Kyvsgaard 2000). Out of a
total of 482 waivers in 1999, 162 involved YCs.
But in general the late 1990s and the early 2000s were characterized by
a decline in the use of waivers altogether. Furthermore, in the sanctioning
pattern we see a development resembling a polarization. Relatively more
juveniles received fines (or warnings) rather than waivers and suspended
sentences, and relatively more were sentenced to deprivation of liberty. The
proportion of prison sentences thus rose from 17% of all dispositions in
1989 to 22% in 2003.
The explanation for this development may be an increasing level of crime
among the more active juvenile offenders—more serious offenders, and seri-
ous offenders commit more crimes—or it may be that the prosecutors
demand heavier penalties than previously.
This development in the sanctioning pattern parallels to some extent the
developments in Sweden, where likewise ‘a substantial reduction in the
number of young persons convicted of crime has … been followed by a sub-
stantial tightening of both the law and its application … a dramatic reduc-
tion in the number of young offenders being awarded waivers of
prosecution and to a large number of youth being sentenced by the court’—
a paradox possibly explained by a perceived serious increase in juvenile vio-
lence (see Sarnecki’s article in the present volume).
The demise of the Youth Contract
As indicated above, the idea of the Youth Contract was to provide a more
constructive reaction to juveniles aged 15–17. In actual practice, however,
this sanction did not take the place of the traditional waiver of prosecution,
which still represents a large proportion of sanctions not involving depriva-
tion of liberty. This may be due to a number of factors. One factor could be
244 Jørgen Jepsen
their increasingly limited use by local courts, which make decision based
upon proposals from local prosecutors (Rigsadvokaten 2000). It also seems
as though prosecutors have not been as enthusiastic about the YC measure.
The concept of swift and harsh reactions to breaches of conditions relating
to social welfare measures did not quite materialize either. The welfare serv-
ices were late in reporting violations and most reported violations were met
with quite mild sanctions—if any (Stevens 2003).
The use of waivers in general had been decreasing over the preceding
years. Only 3% received more than one waiver with conditions and if those
waivers without conditions are included, only 7% received more than one
waiver. This was in contrast to the public perception of extreme leniency in
granting repeated waivers.
The results in relation to recidivism were studied by Stevens (2003), who
compared recidivism among those young offenders who received YCs with
those who received only an ‘old style’ waiver, with or without conditions of
social welfare measures. Among those young offenders who in the period
1996–99 received a waiver with conditions, 20% committed a new offence
resulting in a penalty more serious than a fine within the first two years.
The corresponding figure for youth receiving a conditional sentence was
33% and for those receiving an unconditional sentence, the rate of recidi-
vism was 48%. For those receiving a prison term of more than 3 months,
the rate was 65% (Stevens 2003, 5). It must be noted, of course, that these
differences are to some extent a product of selection mechanisms placing
the more recidivism-prone offenders in the prison category.
Stevens’ study compared those young offenders who in the period 1 July
1998 to 31 December 2000 received a waiver of prosecution conditioned
upon a youth contract with those who in a comparable prior period
received a traditional waiver with (other) conditions. The result was that
the two groups largely recidivated to the same extent and at the same fre-
quency and speed. Even when controls were made for age, sex and prior
criminal record as well as for the type of crime leading to the waiver with
conditions, it was impossible to demonstrate significant differences in their
inclination to commit new crimes. The conclusion that there were no signif-
icant differences is probably what might be expected as there are in reality
only rather minor differences between the two types of sanction—namely
the contractual element in the YC group (Stevens 2003, 40).
Thus one might say that neither youth contracts nor other waivers of
prosecution have succeeded in holding or expanding their place in the total
pattern of sanctions for offences committed by 15–17 year olds, even
though their results must be considered to be fairly positive.
Although the use of fines had been rising for some years, it decreased
again in the early 2000s. This development may be said to imply that ‘the
soft approach’ has been seen as insufficient to handle the perceived prob-
lems of juvenile crime. But—more importantly—it did not seem to fulfil the
alleged public demand for security and for notable and serious reactions to
juvenile deviance, hence the ensuing upsurge of ‘signal legislation’.
Waivers of prosecution have also been a major traditional reaction towards
juvenile offenders in Sweden, where their use has reduced substantially since
1980, but it is still a relatively common form of decision taken by prosecutors
(see Sarnecki’s contribution in the present volume, Figures 10.4, 10.7, 10.8 and
10.9). Legislative changes in 1988 and 1994 involved further restrictions on the
provisions for such waivers. Today a larger proportion and number of youths
are indicted for crimes in public courts in Sweden (Sarnecki, this volume).
THE DEMAND FOR MORE SERIOUS SANCTIONS
During the early 1990s and the years 2000–02 an increasing concern was
noted in relation to serious juvenile crime. It had three main components:
(1) Fear of (serious) violence, (2) the ‘Rocker War’, and (3) the unruly
behaviour of ethnic minorities.
(1) Increasing violence?
The early 1990s and the following years were characterized by increasing
public alarm about violence. This concern was nurtured by the public, media
and politicians alike. Even if the crime statistics did not reflect any great
increase in violence in general, there was some increase in serious violence,
also committed by 15–17 year olds (see Table 11.2 above). The result was the
enactment of two consecutive ‘violence packages’, involving new legislation
with higher penalties for violence—a dramatic inflation—and a ‘violence sec-
retariat’ to launch a number of violence prevention activities. Between 2003
and 2005 a heavy investment in fighting the perceived increase in (youth) vio-
lence has by far overshadowed the beginnings in earlier years.
(2) The ‘Great Danish Rocker War’7
This ‘War’ involved gunfights and other battles during the 1990s between
the motorcycle clubs Hells Angels and Bandidos and their respective sup-
porters and ‘prospects’. It resulted in a number of killings and spectacular
events which frightened the public and resulted in a special law prohibiting
their residence in so-called ‘Rocker fortresses’ (Rockerborge).
7 The term ‘rockers’ was imported to Denmark from England. It is erroneously applied to
designate national chapters of international motorcycle clubs with provocative jacket decora-
tions (‘colors’). In Germany they have been outlawed as ‘criminal organizations’, but not in
Denmark. See Jepsen (1998).
246 Jørgen Jepsen
The fighting went on for several years, but seemed to end in 1999 when
a truce between the two gangs was negotiated. The police played a large
role in investigating and prosecuting members for a large number of
crimes—not only the murders, but also drug trafficking and property crime.
On only one occasion were innocent non-members exposed to serious risk
and on another occasion a visitor to a rocker fortress party was killed when
the opponent group fired an anti-tank missile into the fortress.
In 2003 a number of extraordinary legal and enforcement measures were
processed through parliament to fight this problem. Part of the problem is
that a large proportion of the offences are committed by supporters and
recruits who try to obtain status and membership in the groups. The motor-
cycle groups seem to be extremely attractive to young persons impressed by
their macho image. Keeping youngsters away from them has become a
major goal of crime preventive activities.
(3) Ethnic disturbances and crime
Xenophobic reactions to increased immigration, not least from (Northern)

African countries and the Middle East, has triggered a very repressive atti-
tude towards juvenile delinquency committed by immigrants, escalating
almost infinitely to the time of writing (spring 2005). There were and are
some real grounds for concern, however.
Young immigrants—and particularly second generation immigrants,
born in Denmark and speaking Danish, but carrying foreign names and
skin colours—contribute disproportionately to juvenile crime statistics, par-
ticularly in the more serious offence categories, including violence and rob-
beries. And a couple of spectacular cases, one of them involving the rape of
a Danish woman in a public toilet in the very heart of Copenhagen by a
small group of immigrant youth, triggered enormous public concern and
demand for harsher penalties. In the spring of 2003 this resulted in legisla-
tion significantly raising the penalties for violence and rape.
It is disputed, however, to what extent the higher offence rates among
young—in particular second generation immigrants—are due to their eth-
nic status as such. When account is taken of social factors such as the young
offenders’ social status and geographical location—which place them in the
distinctly lower strata of society—their crime rates do not seem significantly
higher than those of Danish youth in the same social category (see
Kyvsgaard 2001a and 2005, and Politiken, 26 February 2003).
A study from the University of Copenhagen indicates that 75% of all
charges against Danish youth end with a sentence, as compared to only 62%
for second generation immigrants and 68% for first generation immigrant
youth. This may indicate police discrimination at the point of charging
(Kyvsgaard 2001b), a view confirmed to some extent by Holmberg’s study
(2003) on the daily operations of police in a police circuit with a high rep-
resentation of ethnic youth. Kyvsgaard (2005) notes social and cultural
discrimination of young persons of non-Danish ethnic origin as the most
important factors in explaining juvenile crime, but not necessarily as a reflec-
tion of culture conflict in the traditional sense (Sellin 1938).
Furthermore, new immigrants to Denmark have tended to be clustered
in certain sections of major towns: Copenhagen, Aarhus and Odense. Here
they have come into conflict with Danish citizens and the police. Battles
have been fought within the immigrant ghettoes: Nörrebro in Copenhagen
and Vollsmose in Odense. Police cars have been turned over and set on fire,
and a local police station in the ghetto was set alight. These areas are not
as run-down and slum-like as American racial ghettoes or the huge French
congregations of immigrants from the former colonies. Most of them are
areas of rather expensive public housing that ordinary Danes cannot
afford, but where consequently the immigration and refugee authorities
have tended to place refugees and immigrants with considerable public
subsidies. On the other hand, the inhabitants have not been properly inte-
grated into the labour market and particularly the younger generations
have been left to fend for themselves. Ordinary Danish citizens have moved
out, leaving the ethnic composition characterized by people of dark skin
colour. In 2005 this led to an official move to find ways of reducing the
number of coloured persons in the ghettoes, inter alia by prohibiting them
from moving in.
The immigrants and their offspring maintain—and seem to be right in
doing so—that they are being discriminated against in relation to employ-
ment and participation in Danish society. They are increasingly forming a
distinct underclass with all the characteristics of deprived minority groups
known from the U.S.A. and elsewhere. Minority youth express their frus-
trations in violent behaviour. Many of them are also isolated from society
by language barriers and by living within foreign cultures resistant to inte-
gration into the general institutions of society.
The situation of dark-skinned immigrants and asylum-seekers from a
number of African and Middle Eastern countries is parallel to the situation
of black youth in the U.S.A. in many ways, as demonstrated in Feld’s paper
in the present volume. Although the ‘blacks’ in Denmark cluster in urban
ghettoes, the minorities there are more of a mixture of different cultures.
But their social situation and the way their ‘alien-ness’ is perceived and
reacted to by the conservative politicians and the majority of the popula-
tion, stimulated by sensation-seeking media, is strongly reminiscent of the
‘race problem’ in the United States.
By contrast, the minority problems in Sweden are less pronounced and
the public and political attitudes are much more accepting and rational,
although minority ghettoes are also becoming evident in Stockholm and a
few other larger cities.
248 Jørgen Jepsen
The coming into power of the right-wing government in late 2001 and
the influence of the Danish People’s Party has contributed to the alienation
of immigrants and their offspring in Denmark. This alienation results in
both expressive crimes due to frustration and instrumental crimes due to
economic underprivilege. Altogether, these factors have generated and for-
tified public demands for toughness on crime and particularly for attention
to crimes committed by ‘ethnic youth’.
Nevertheless, perceptions of public sentiment may have been overstated
by politicians in search of a cause. Repeated annual surveys (with four
measurements each year) of public opinion and fears about violence and
crime (Institut for Konjunktur-Analyse, figures elaborated by the Ministry
of Justice, see Kyvsgaard 2003b and 2004c) indicate that the proportion of
respondents worrying ‘a lot’ about violence and crime declined from some
60–70% in most years within the period 1985–1996 to 50–60% at the end
of the 1990s. In 2001 and 2002 this proportion was only 43%. This ten-
dency towards fewer ‘worriers’ continued into 2003 and 2004 when only
37% of respondents stated that they worry a lot about violence and crime,
and this despite the dramatic events that took place in the summer of 2003.
A recent report (2005) by ‘Visionsudvalget’ (Report on ‘The Future of
Danish Police’ (Fremtidens Politi) by a Ministry of Justice Committee on
visions for the Danish Police states the following regarding the public’s feel-
ings of security and insecurity:
In December 2004 a report was published by TrygFonden and Huset
Mandag Morgen named Tryghedsrapport 2004—en analyse af danskernes
tryghed og utryghed (Report on Subjective Security 2004—an Analysis of
Feelings of Security and Insecurity among Danes). The study demonstrates
that the Danish population generally does not feel particularly insecure in
relation to crime. Thus only one out of fifteen Danes feels insecure in rela-
tion to the risk of being hit by violence. It further indicates that four out of
five Danes find that the media overstate the risk of many things. Two out of
three Danes find in addition that society often uses large resources by doing
something against risks which are in reality insignificant. It is finally con-
cluded that ‘more remote sources of insecurity, such as crime, violence and
terrorism play no measurable role for the subjective quality of life of the
Danes’.
These surveys indicate that when you ask the citizens themselves a much
more nuanced picture appears than those signals on rise in insecurity and
worries which often seem to be dominant in the media and in the legal-
political debate.
Visionsudvalget thus finds that the predominant focus in the media
and politics on ‘citizens’ feelings of insecurity’ and ‘a visible police’—
which is thus not demanded by the citizens themselves—is very problem-
atic in relation to an adequate and reasonable use of the resources of the
police.
According to the report (Tryghedsrapport 2004/JJ), ‘… the citizens are

aware of the risk of being exposed to scare propaganda—and are quite irri-
tated by it’ (Visionsudvalget 2005, 34).
The politicians’ interpretation of public opinion led, however, to the
establishment of two new elements in juvenile delinquency policy: Secure
Wards and the Youth Sanction.
THE SECURE WARDS
Only a few of the former state institutions for juveniles—including the most
closed ones—survived the municipal reform of the mid-1970s which initi-
ated a massive movement of de-institutionalisation. A couple of them were
high security institutions which held juveniles on remand awaiting trial
(surrogat-fängsling). The 1990s—after Denmark had signed the CRC—saw
an increase in the use of such institutions as alternatives to remand in tra-
ditional jails. Today, however, only a few juveniles, representing very seri-
ous behavioural problems and high escape risk, are held on remand in
jails—ideally, but rarely in reality, jails with special sections for juveniles. As
a consequence of the CRC the number of slots in secure wards within the
social welfare system increased during the 1990s, but the capacity of these
institutions has on repeated occasions been lagging behind the need.
The quest for security has led to an increase in the use of these wards.
Between 1996 and 2001 the number of secure slots rose from 45 to 85 and
in 2004 there were 94. In addition it was estimated that before the end of
2003 there would be a need for 120 more slots in open institutions
The total number of placements in secure wards rose from 321 in 1996
to 509 in 2001, and jumped to 750 in 2002.
The need for secure wards was aggravated by the creation of the new
Youth Sanction (in force 1 July 2001), which requires as part of the sen-
tence initial placement in a secure ward, normally for at least two months.
The time to be spent in institutions should not exceed 18 months in total.
But re-institutionalization may take place as a reaction to new crimes or
violation of conditions for release. The number of placements in secure
wards in 2002 stemming from Youth Sanctions amounted to 10% of all
secure placements. The utilization ratio for secure places was 65% in 1996
versus 91% in 2002 and 101 in 2004 (Politiken, 27 March 2005).
In 2002 a total of 185 stays in secure wards were interrupted: in 31 of
these transfer to ordinary prison took place, and in 63 cases the interrup-
tion was due to violence or threats (Socialministeriet 2003a, 51). The place-
ment of children below 15 in secure wards on the basis of criminality
decreased, however, from 29 in 2002 to 11 in 2003 (Amtsrådsforeningen,
quoted from Söndagsvisen, 21 March 2004).
250 Jørgen Jepsen
THE YOUTH SANCTION
Background and rationale
The Youth Sanction (YS) was instituted in connection with legislation on

youth crime (Act No. 469/2001—new provisions in the Penal Code and in
the Act on Social Service). The legislation was based on a report by an
Expert Committee appointed by the Ministry of Justice with a rather
repressive mandate (Ekspertgruppen om Ungdomskriminalitet 2001). It
was spurred by the demand for more severe—and effective—sanctions and
better protection of society. The YS should normally be seen as an alterna-
tive to an unconditional (or combined) prison sentence in the interval
between 30 days and one year (approximately—it might extend up to one
and a half years). The ideology was that it should both take care of the indi-
vidual treatment needs of the offender and protect society. In the latter
respect it was also stressed that it should give expression to ‘the public sense
of justice’, including a need to keep offenders securely behind bars for a cer-
tain period and in this way impress on them the concern of society with
their transgressions. The measure was supported by both the right wing and
the social democrats, not least the then (SD) prime minister, apparently
being scared about being seen as soft on crime.
It is notable that in practice both the YS and the secure wards are to a
great extent used to contain youth of ‘a different ethnic origin’. This reflects
both the xenophobia mentioned above and the fact that ethnic youth are
overrepresented among juveniles with a serious criminal record, with vio-
lence, with social and emotional problems and—for some—low intelli-
gence. They have a higher record of absconding and of resistance to efforts
to involve them in treatment or social-pedagogical efforts. Their record of
violence against staff is also higher.
The initial period of a Youth Sanction is followed by a stay in a social-
pedagogical (normally open) institution for up to 16 months. Upon release
from the institution, a program of treatment at liberty follows until the end
of the two year period. The idea is that this program seen as a whole is of
a social-pedagogical and even psychotherapeutic nature and that the
increase in freedom is conditional upon the progress of the offender during
the earlier stages. The judge may, however, initially set the stay in the secure
ward at as much as 16 months, primarily based upon the seriousness of the
offence and the problems of the offender.
The application of the Youth Sanction
From 1 July 2001 until the end of 2002 a total of 77 sentences involved a YS.
In 2003 a total of 70 were imposed. This caseload somewhat exceeded the
expectations of the preparatory expert committee which had expected some

36 sentences per year. In 71 of the first 77 sentences a maximum of 12 months
for placement in a residential (open) treatment-institution was established.
During the same period a total of 265 unconditional sentences to prison
were pronounced to youth below 18 years of age. Of these, however, 127
were partly conditional—‘combination sentences’.
In the last quarter of 2001 and in the fourth quarter of 2002 some
20–25% of all sentences to deprivation of liberty were Youth Sanctions. In
some 80% of cases the juvenile had been in remand custody.
More than half (41) of the first 77 juveniles were sentenced to YS with rob-
bery as their main offence. Fourteen of 77 sanctions concerned serious vio-
lence (as compared with 50 of the 265 prison sentences) and 9 (compared to
55) simple violence. One case involved serious vandalism and one case sale
of narcotics. Of those sentenced to prison for violence or threats, a large pro-
portion concerned threats or violence against witnesses—the kinds of crimes
that were central in the police-influenced media reports. 47% of the YS group
had no prior record (including waivers of prosecution) as compared to 22%
for the prison group. Prior unconditional sentences to prison are unusual for
the YS group but around one third of the prison group had such a sentence.
Less than half of the YS group was of Danish descent, 40% were them-
selves immigrants and 14% were descendants of immigrants. For the prison
group the corresponding figures were 56%, 31% and 11%, i.e. there was
some over-representation of non-Danish in the YS group.
Critique of the Youth Sanction
In his review of the results of the YS legislation Jorn Vestergaard concludes:

A review of the 55 sentences to YS pronounced during the first year of
the YS shows that the courts demonstrate a significant level of insecurity in
relation to the field of application and formulation of YS, and on a number
of points the scepticism expressed from several sides on this innovation has
been justified. In some of the cases the crime criterion has not been clearly
fulfilled. Some sentences give the impression that the YS in a doubtful fash-
ion is used to obtain juridical and political social aims. This article demon-
strates that the YS involves considerable aggravation of the intensity of
intervention as compared to prior practice. It is particularly unfortunate
that some sentences do not allow for flexibility concerning the initial stay
in a secure ward. [Vestergaard 2003, 1, my translation]
Part of this critique touches upon the real need to extend deprivation of
liberty in a highly secure institution for as long as indicated. In reality a
fairly large proportion of these youth have already been in such an institu-
tion under remand as a surrogate for jail placement. A hard and fast rule of
a minimum of 2 months’ initial stay for all may lead to overly long stays in
252 Jørgen Jepsen
closed conditions. Further, problems arise concerning transfer between

open and closed institutions. But the major problem is the potential (and at
times real) disproportionality between the time to be spent in institutions
under the YS as compared to the shorter time normally spent under an ordi-
nary prison sentence for a similar—or even the same—crime committed by
another youth, possibly involved in the same case. In addition the shorter,
ordinary prison sentences are normally served in open institutions within
the welfare system. This contributes to a sense of injustice among the YS
clients who compare their fate to that of their peers.
These objections are by and large the same as those made against the for-
mer sanction of Youth Prison, which was used in Denmark between 1933
and 1973. It was terminated on the basis of exactly the same arguments
about injustice and about abuse of the considerations for treatment as an
excuse for keeping young offenders imprisoned for longer terms than would
normally be deserved in relation to the severity of the crime. This was one
of the major objections against the (relatively) indeterminate sentencing
practice of the 1960s, which led to the abandonment of almost all of these
types of measures, where the length of time served depended on the asserted
treatment needs of the offender rather than the severity of the offence. The
‘just deserts’ discourse was part of this development.
Vestergaard also is critical of the limited protection of the human and due
process rights of young offenders in the institutions under the welfare
authorities:
The coercive powers which a sentence to a youth sanction confers upon
the welfare system are extremely extensive and vague, which puts basic con-
siderations for due process to a hard test. … The exercise of power is regu-
lated in an administrative regulation, which is sharply in contrast with the
legislative regulation, which in 2000 was promulgated in the execution of
sentences in the criminal law system and with recent legislative regulation
of coercive measures in criminal procedure against children below 15. The
social system, furthermore, is not at all professionally geared to safeguard
considerations for proportionality and due process, which are traditionally
in focus in the correctional services and in the rest of the system of law
enforcement. [Vestergaard 2004a, 149, author’s translation]
This leads Vestergaard to suggest considering moving responsibility for
implementing penal measures against young offenders from the social wel-
fare system to the criminal justice system—as seen in other countries (ibid.
n. 27). Vestergaard (ibid. 158) finds it thought-provoking that Sweden
introduced the sanction of ‘sluten ungdomsvaard’ (closed youth care) in
1999, which has the same target group as the Danish youth sanction, but is
much more in accordance with usual considerations for the setting of penal-
ties. In Sweden, prison sentences for young offenders have largely been
replaced by the new sanction. It is applied in some 100 cases per year, which
has led to a rise in sanctions involving deprivation of liberty. Furthermore,
the average period of institutionalisation has risen to some nine months

(ibid. 158 n. 50).
In relation to the legitimacy of the YS, Vestergaard (2004b) states:
The real situation is that the Youth Sanction in its principles as well as on
its own grounds lacks legitimacy. As penalty it is generally unjust. As treat-
ment it is fundamentally inefficient. As social practice it represents an
extreme violation of individual liberty and personal integrity. … The youth
sanction has been introduced in direct opposition to researched knowledge,
the consideration for elementary due process and common sense.
He concludes (2004b, 80):
Public security has been given priority to child welfare, just like a hun-
dred years ago (Stang Dahl, 1978). The emergence of the youth sanction is
due to a mixture of a well-founded concern regarding a neglected and con-
sequently menacing segment of juveniles and of a moral crusade based upon
public mores and political sentiments. Thus, once again, the individual
juvenile offender will have to pay the price for the failure to develop ade-
quate methods of dealing with the wild ones.
DENMARK AND THE CONVENTION ON

THE RIGHTS OF THE CHILD
Denmark ratified the CRC in 1991, but has not yet incorporated it into
Danish Law—as has happened with the European Convention on Human
Rights.
In general, Denmark is reluctant to undertake such incorporation, partic-
ularly of conventions of a more general nature (Espersen 2002) which are
not ‘self executable’. Under the ‘dualist principle’ Denmark is, however,
obliged to take the CRC into consideration in legislation and policy as well
as in administration. For several years the Danish state has maintained a
somewhat self-sufficient attitude, indicating that Danish law and practice is
generally of a high standard in relation to the topics covered by conventions,
but this assumption is becoming increasingly doubtful. Thus there has been
repeated criticism from NGOs—and from the relevant UN committees—
that Denmark has not sufficiently implemented or incorporated the
Convention Against Torture (CAT) or the CRC. Thus in 2001 the CRC com-
mittee criticized Denmark for forming insufficient bases for initiatives in leg-
islation. Most recently Danish policy in the CRC field has been criticized by
the Danish Council On Children (Børnerådet—here BR8) for this deficit and
for its policies inter alia in relation to youth in trouble with the law.
8 Børnerådet is a state consultative institution composed of members with particular insight
into children’s affairs, and thus is not an NGO in a strict sense.

254 Jørgen Jepsen
Thus, in its latest ‘shadow report’ on CRC—a supplementary report to

Denmark’s 3rd periodic report to the UN Child Rights Committee—the BR
states:
In an international perspective Danish children belong to the most privi-
leged in the world—in particular in relation to material conveniences, social
welfare, education and cultural rights. But as documented in the present
report there are areas where the protection of children’s rights have suffered
setbacks in the past five years, and there are quite a lot of fields where—in
spite of the recommendations from the CRC of June 2001—no strengthen-
ing of children’s rights has occurred.
The BR (Boerneraadet 2005) summarizes the situation as follows:
It is still practice in Denmark to imprison juveniles, even together with
adult offenders, in violation of the CRC. In later years sanctions against chil-
dren, even down to the age of 12 have been aggravated and old-fashioned
methods of incarceration and the use of force are used more and more often.
The BR recommends that juveniles should never be incarcerated together
with adults and new thinking should be developed in the direction of ‘sanc-
tions without the use of bars’. It also recommends that children should be
heard more and that the age limit for children to be considered as parties to
their own cases should be lowered to 12. In general, children should be bet-
ter informed about their own situation, about their rights under the CRC
and about their right to complain.
But the BR is in general worried by the implacable tone, devoid of
humanism, which dominates the debate on the youngest law violators. This
is also true in relation to the law on immigrants (aliens) where many restric-
tions have been added, in particular in practice. This is true also in cases on
family re-unification where children are involved, and in dealing with
rejected asylum seeking families with children. Here, too, government pol-
icy seems steeped in the same implacable tone, failing to prioritize the best
interests of the child.
Although the recommendations offered by the BR are of a rather simplis-
tic kind, they and the paper reflect a perception which is rather widespread
among critics of the more recent repressive and security-oriented trends in
juvenile justice in Denmark. A number of more ‘well-established’ NGOs in
the child welfare field have in their own ‘Shadow Report’ to the CRC in the
spring of 2005 expressed similar views, although in less ardent wording.
The trend described here is also marked in relation to criminal policy in
general. It forms part of the right wing government’s program of penal law
reform, which represents a considerable tightening of the repressive screw. It
is also a reflection of public demands for security and more accountability
in reactions to deviance in general and offending behaviour in particular.
The Social Democrats seem to have interpreted public sentiments in such
a way that they have accepted the criminal and immigration policies of the
right wing, apparently in the hope of keeping their (former predominantly)
working class constituency. The elections in February 2005 showed, how-

ever, that this did not suffice. Other parties have opposed both aspects of
this development from the standpoint of justice and openness to currents
from abroad, so the policy issues have been tied to issues of nationalism and
retaining national identity.
This also means that criminal policy and juvenile justice since the mid-
1990s—at least—have been increasingly politicized and have become a
vehicle for parties fighting against the intellectual elites that used to domi-
nate the debates over social problems, deviance and culture in general.
‘Cultural radicalism’ has become a dirty term and has been linked with ‘left-
ism’ and covert adherence to communistic ideals. ‘Being soft on crime’ is
seen as an indication of this allegedly naïve do-gooder posture, leaving the
ordinary population at a loss for protection.
THE DEVELOPMENT OF JUVENILE JUSTICE IN

DENMARK—TRENDS AND INFLUENCES
It should be evident from the above that legislation and practice in the field
of juvenile justice in Denmark since the 1930s has followed a pendulum
course, swinging back and forth between a belief in welfare and treatment
on the one hand and the demand for public security and control on the
other. While the 1973 reform did away with some of the old paternalism
and belief in indeterminate treatment, it probably shortened sentences and
resulted in some de-institutionalization in the long run. It also emphasized
proportionality and justice, i.e. that persons who commit similar crimes
should receive similar sentences, regardless of their personal circumstances.
After 1973, the term ‘inmate’ was changed back to ‘prisoner’ and Nils
Christie’s view of imprisonment as the intentional infliction of pain and the
belief that ‘nothing works’ gained a foothold.
Juvenile justice, however, managed to resist the swing of the pendulum
away from welfare thinking for a long time. Juveniles have continued to be
excused many of their norm violations due to their immaturity and the hope
of socialization with the passage of time. The aura of innocence or lack of
reproach has lingered for several years in this field. Resocialization was seen
as the best way to further public security (Socialministeriet 2003a).
But this view has become increasingly unpopular in later years. Moral
panics about increasing violence, unsafe streets and violent gangs have
dominated the public discourse. Cautious criminologists have been swept
aside as ‘self-pronounced so-called experts’ and ‘judges of taste’.
Balvig (2003) sees this development as an indication of a more funda-
mental change in the existential view of society and of one’s fellow beings.
The latter are—if they commit offences—not seen as persons in need of sup-
port and resocialization, but as mature and responsible individuals. Their
256 Jørgen Jepsen
transgressions are connected with guilt and ill will and the response to their
lack of self-control is public control and incapacitation. The changes needed
in society have nothing to do with changing social conditions, improving
welfare and decreasing social inequalities and discrimination. Rather they
involve more control, supervision and internment of transgressors.
CONCLUSION: THE DANISH EXPERIENCE OF JUVENILE

JUSTICE—LESSONS TO BE LEARNED
For many years the Danish model of juvenile justice and its primary ele-
ments—the social welfare boards, the extensive use of waivers of prosecu-
tion and the other elements for diverting young offenders into social service
instead of the criminal justice system—worked reasonably well in Denmark.
There was a widespread feeling that it might also serve as a model for other
systems with similar goals. It was assumed to be in accordance with the let-
ter and spirit of the CRC and other international instruments for safeguard-
ing the interests of society and of wayward youth at the same time.
As can be seen from the history sketched above, today it is not seen in the
same favourable light. First, the age of criminal responsibility is—if not in the
law books—in reality slowly creeping down from 15 towards 12 years for the
‘heavy end’ of delinquent children aged 12–15 through administrative provi-
sions for the placement of such children in secure institutions or wards.
Control has become a key word in this respect, and these secure institutions,
although placed within the social welfare system, have many characteristics
in common with the closed prisons, but lack the same legal safeguards.
Secondly, the municipal social welfare boards (CYBs), as decision-mak-
ers in cases of forced removal of children and juvenile offenders from their
homes, are coming under increasing criticism for not safeguarding the legal
and social interests of youth, by not investing sufficiently in support of the
family at an early point, by not removing neglected children and juveniles
soon enough from unhealthy surroundings, and by not reacting adequately
to their delinquency. This is due in part to economic reasons, partly to a
lack of professionalism and partly to a lack of an adequate knowledge base.
The construction of the boards with the judge present in cases of involun-
tary removal of children from the home has been criticized for being inef-
fective as a guarantee of due process. The system has also been criticized as
an obfuscation of the separation of powers, which today is seen as a prob-
lem rather than as an asset.
Thirdly, the primary administrative responsibility for safeguarding the
fundamental legal rights of youth in the sanctioning system—including the
institutions under the Youth Sanction—has been found to be lacking, and
there has even been a proposal to extend the responsibility of the ordinary
courts for juveniles down to the age of 12.
Fourthly, the system for complaints against coercive measures has been
found to be unsatisfactory and cumbersome. Reform plans are under way,
but the scientific basis for such reforms is scarce, the ideology is seen as irra-
tional and the resources insufficient.
Fifthly, secure wards and the provisions for exercise of power in them are
seen as expressions of an extreme focus on security and control, based upon
fears of a small group of aggressive and treatment-resistant youthful offend-
ers committing serious and violent offences, even while under age. A large
part of the public discourse on juvenile delinquency and juvenile justice has
focused on this group, particularly the growing part of the group of non-
Danish origin, and even more particularly second generation immigrants
with dark skin.
Finally, in general the system of reactions towards youthful offending has
been polarized. The intermediate sanctions of waivers of prosecution, youth
contracts and sentences conditional upon the application of welfare measures
have been significantly reduced. Instead, fines are used increasingly for young
offenders at the ‘soft end’ and closed institutions with secure wards as part of
the Youth Sanction at the hard end. Serving ‘alternatives to sentence’, i.e. in
treatment institutions, has reduced in favour of youth sanctions or ordinary
serving of a sentence in closed prisons. New separate secure institutions are
being created to house difficult young offenders of ‘ethnic’ origin. The Youth
Sanction is being criticized for having an obfuscating mantel of treatment—
with no or little rationale or reality—and for violating basic tenets of propor-
tionality in the setting of sentences (Vestergaard 2004b).
How has all this come about—and must the ‘soft’ welfare approach give
way once and for all to outright repression and control?
The repressive development of the system of reactions is to a limited
extent founded upon a rise in violent and serious offences committed to a
disproportionate extent by young ‘ethnic’ boys—in a situation when crime
in general and juvenile crime in particular has been decreasing for some time.
The overrepresentation of ethnic youth in certain types of crime is con-
siderably reduced when socio-economic background is controlled, but even
so, the increase in the number of ethnic youth in secure institutions is alarm-
ing. Immigrants and refugees in Denmark are to an increasing extent form-
ing a distinct underclass, clustering together in ethnic ghettoes (which most
of them would like to leave, but are unable to do so), with problems of high
unemployment, linguistic difficulties and outright discrimination. Young
groups in the larger cities are experiencing this situation, exacerbated by
xenophobic rhetoric at the political level as well as in day-to-day interac-
tion. The result is despair and aggressive reactions towards mainstream
Danish society. In this way the fear of strangers is becoming a self-fulfilling
prophecy and a downward spiral is the result.
Criminal policy and juvenile justice have been taken out of the hands of
academic experts in the name of democracy and invocations of ‘the public
258 Jørgen Jepsen
sense of justice’. And if the population is not sufficiently fearful, politicians

and the media have demonstrated considerable capacity to turn realistic con-
cerns into moral panics. This has put juvenile justice on the political platform
in a way that has never been known in Denmark. It used to be a non-contro-
versial issue, left to the good intentions of the welfare system in co-operation
with a usually sensible system of law enforcement and penology. Today juve-
nile justice has become a battleground where populistic policies overshadow
and counteract the opportunities for traditional social welfare action.
The Social Democratic politicians’ fear of their own constituencies has
led them down the same road as the parties to the right. Consequently there
is no reason to expect a change of direction in any foreseeable future, even
in case of a change in political constellations, which is rather improbable
within at least the next four years.
Reformers and juvenile justice activists might therefore prefer to look to
other welfare states—such as Sweden—for models. Or they might look
back in history to the rather good results of original Danish welfare policy
in dealing with all but the heaviest end of juvenile offenders.
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260 Jørgen Jepsen
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overvægt af indvandrere (Crime statistics without overrepresentation of
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—— (1 March 2003) Kritik af politital om kriminelle (Critique of police
figures on offenders) (relating to misleading figures on crime rates among
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262 Jørgen Jepsen
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(Copenhagen, Justitsministeriet).
12
Juvenile Justice in Nepal:
An Overview
KISHOR SILWAL
INTRODUCTION
T
HE LEGAL STATUS of children and adolescents is different from that of
adults in every democratic country. In addition, children and youth
are not held accountable for violations of the criminal law in the same
way as adults in these systems. The ultimate aim of such treatment of chil-
dren and adolescents is to protect them from the negative effects of the adult
justice system and also to provide a more appropriate way of dealing with
them. These notions are guaranteed by international human rights law,
which substantially considers children who violate the law to be victims of
social hardship, neglect, violence, and deprivation. The juvenile justice con-
cept is based on the assumption that a person below a certain age, because
they are at en early stage of mental development, shall not and cannot be
held responsible for their wrongful acts in the same way as adults. For this
basic reason, it is now a widely accepted notion that juvenile justice systems
should be established differently from traditional criminal justice systems.
The Nepalese judicial system has, at least nominally, given such attention
to child offenders. With the ratification by Nepal of the UN Convention on
the Rights of the Child (1989) (CRC) in 1990 and the Covenant on Civil
and Political Rights (1966) (ICCPR) in 1991, it has theoretically accepted
the fundamental notion of juvenile justice systems adopted in most parts of
the world. Enactment of a separate Children’s Act (1992) is another strong
commitment Nepal has made. It is the first Act entirely dedicated to chil-
dren’s rights. It is designed to safeguard the interests and welfare of chil-
dren. The Nepal Treaty Act (1990) is another important step that Nepal has
taken towards fulfilling its international commitments. This Act was
adopted by the Parliament to implement the treaty provisions mentioned in
the Constitution of 1990 to which the country is a party, and it foresees in
section 9 (1) the superiority of international law (either customary or
treaty-based) over national legislation. Under this provision, inconsistent
264 Kishor Silwal
domestic law is rendered void, and provisions of the treaty are to prevail as
the law of Nepal. Therefore, any provision in the domestic Act may be set
aside if it is found to be inconsistent with the provisions of the CRC or the
ICCPR. These are some of the efforts Nepal has made to distinguish the
juvenile justice system from the criminal justice system.
THE DOMESTIC LEGAL FRAMEWORK OF THE NEPALESE

JUVENILE JUSTICE SYSTEM
The Constitution
The Constitution of the Kingdom of Nepal (1990) is the fundamental law

of the country. It is the highest norm at the domestic level and ‘contains a
framework for government, and provides a legitimate vehicle for granting
and limiting the power of government officials’.1 With regard to juvenile
justice, the relevant provisions of the Constitution of the Kingdom of Nepal
(1990) are encompassed in Part Three, entitled Fundamental Rights. It
guarantees the right to freedom,2 rights regarding criminal justice,3 and
rights against preventive detention.4 Similarly, Article 26 (8) safeguards the
rights and interests of children as part of state policy. The Supreme Court,
as per Article 88 (1) and (2) of the Constitution, ensures the observance and
compliance of Nepalese law to the Constitution. When the political powers
fail to enforce the fundamental rights enshrined by the Constitution, it is
1 See Dhungel, Adhikari, Bhandari and Murgatroyd (1998), 1.
2 Article 12 (1) of the Constitution of the Kingdom of Nepal states that no person shall be
deprived of his personal liberty save in accordance with law, and no law shall be made which
provides for capital punishment.
3 Article 14 of the Constitution of the Kingdom of Nepal has the following provisions:
1. No person shall be punished for an act, which was not punishable by law when the act
was committed, nor shall any person be subjected to a punishment greater than that
prescribed by the law in force at the time of the commission of the offence.
2. No person shall be prosecuted or punished for the same offence in a court of law more
than once.
3. No person accused of any offence shall be compelled to be a witness against himself.
4. No person who is detained during investigation or for trial or for any other reason shall
be subjected to physical or mental torture, nor shall be given any cruel, inhuman or
degrading treatment. Any person so treated shall be compensated in a manner as deter-
mined by law.
5. No person who is arrested shall be detained in custody without being informed, as soon
as may be, of the grounds for such arrest, nor shall be denied the right to consult and
be defended by a legal practitioner of his choice.
6. Every person who is arrested and detained in custody shall be produced before a judicial
authority within a period of twenty-four hours after such arrest, excluding the time nec-
essary for the journey from the place of arrest to such authority, and no such person shall
be detained in custody beyond the said period except on the order of such authority.
7. [...] nothing in clause 6 shall apply to any person who is arrested or detained under any
law providing for preventive detention.
4 Article 15 of the Constitution of the Kingdom of Nepal.
Juvenile Justice in Nepal: An Overview 265
then for the highest court to ensure that the constitutional provisions are
properly observed.
The Muluki Ain, 1963
The Muluki Ain, also called ‘Law of the Land’, is categorised into five parts.
The first and last parts of the instrument deal respectively with generalities and
repeal provisions; they are not related to the present topic. The second part
refers to court procedures, both civil and criminal. This part is particularly rel-
evant to the issue of juvenile justice, as it deals with the functioning of regular
courts. However, it does not provide for a separate juvenile court or for spe-
cific procedures applicable to juveniles. Therefore the common law is applied.
However, as soon as a specific juvenile justice system is adopted, in accordance
with the CRC and the Children’s Act of 1992, the provisions of the Muluki
Ain will be set aside: speciala generalibus derogant, the special law supersedes
the general law. The third and fourth parts are dedicated to civil and criminal
offences respectively, and as such determine the legality of any offence that
may be perpetrated by young offenders. In the absence of a proper and inde-
pendent system of juvenile justice, the general law applies to juvenile cases.
The Nepal Treaty Act 1990
This Act, adopted by Parliament in order to implement the treaty provisions

mentioned in the Constitution of 1990, foresees in section 9 (1) the superi-
ority of international law (either customary or treaty-based) over national
legislation: the domestic law shall be void to the extent of the inconsistency,
and the provision of the treaty shall prevail as the law of Nepal.5 Therefore,
any provision of the domestic acts mentioned below may be put aside when
it is inconsistent with the provisions of the CRC or the ICCPR.
The Nepal Children’s Act 1992
This legislation was enacted after the ratification of the CRC. In fact, it was
crafted to fulfil the obligation created by CRC. The Children’s Act was
enacted for the overall protection of children. Basically, the following six
provisions of the Children’s Act relate directly to juvenile justice.
Section 2(a) of the act defines ‘child’ as every human being below the age
of 16. The age of criminal liability set by the Act is slightly lower than that
recommended by the CRC. There is no universally acceptable standard for
the age of criminality; there is also no uniform international standard for
the age of criminal responsibility for children.
5 See also Sapkota (2003), 10.

266 Kishor Silwal
The CRC, Article 40.3.a, only requires State Parties to establish ‘a mini-
mum age’ below which children should not be presumed to have the capac-
ity to violate the penal law. The Commentary on Rule 4.1 of the Beijing
Rules declares the principle that ‘the beginning of that age shall not be fixed
at too low an age level, bearing in mind the facts of emotional, mental and
intellectual maturity’. Section 11 of the Children’s Act establishes the age of
criminal responsibility. Nepalese legal provisions establish three distinc-
tions: below 10—age of complete innocence; between 10 and 16—age of
quasi responsibility (with sub-divisions 10–14 and 14–16); above 16—age
of complete responsibility.
The minimum age of criminal liability in Nepal is far below that recom-
mended by international instruments. The CRC recommends 18 years as
the upper age for a ‘child’. Although it has given latitude for a lower age by
domestic legislation it does not mean that there should always be a lower
age than 18 years for that purpose.
Section 15 of the act clearly prohibits using handcuffs and fetters, solitary
confinement and keeping a child in prison with a prisoner who has attained
maturity. It ensures basic minimum protection by prohibiting rigorous pun-
ishment. Section 42 provides for the establishment and operation of chil-
dren’s rehabilitation homes, guaranteeing that children will be put in these
homes rather than prison. Section 50 gives leeway to the concerned author-
ity who hears juvenile cases to use alternative measures instead of police
custody or imprisonment. Section 55 is another provision relating to juve-
nile justice. It creates the obligation to establish a juvenile court. This sec-
tion also authorises the government to establish a special bench for juvenile
justice in each District Court.
ACTORS WITHIN THE JUVENILE JUSTICE SYSTEM
The actors within the field of juvenile justice may be divided into two groups:
institutional and individual. The major functions and roles of the actors as
well as deficiencies in their structure and operation are described below.
Institutional actors
The police
One of the basic functions of the police is to enforce laws. The police is the
first official body with which juvenile offenders come into contact after the
commission of an offence.6 Nepal’s police force is headed by the Inspector
6 The information mentioned in the present paragraph is derived from CeLRRd (2002a), 28
and CeLRRd (2002b), 10.

General of Police (IGP) and is organised under the Police Act 1955 and
Police Rules 1992. It is under the direct line of command of the Home
Ministry. Dealing with the pre-trial phase, the crime investigation branch is
in charge of investigating juvenile cases. The Criminal Investigation
Department operates through 5 Regional, 14 Zonal and 75 District Police
Offices (DPOs). The DPOs are the grassroots law enforcement units,
entrusted with the responsibility to investigate crimes within their territo-
rial jurisdiction. There is no specialised mechanism for dealing with issues
of delinquency, although a Women’s and Children’s Cell exists within the
Crime Investigation branch of Nepal.
In Nepal, there is no separate police system handling cases relating to
juvenile delinquency. In the absence of specialised police to deal with juve-
nile matters, the police officers who investigate crimes committed by adults
have the power to investigate juvenile offences. Principally, the State
Offence Act (1993) and State Offence Rules (1998) prescribe the process of
crime investigation as well as prosecution. However, in the case of juveniles,
the Children’s Act (1991) has established special provisions for conducting
investigations. Handcuffing and solitary confinement are prohibited even at
this stage of the investigation. The presence of a lawyer has been made com-
pulsory at every stage of trial.7 But hardly any of these protections provided
by the legislation have been implemented.
In juvenile matters as in other cases, the State Cases Act authorises all
persons to report the commission of any offence to the nearest police office.
The police are required to examine the place of commission of the crime
and preserve any necessary evidence. The police can arrest a person sus-
pected of committing a crime for investigation. If a juvenile is suspected or
arrested, special procedures should be initiated. It is during this period that
protection of juveniles is most important. It has been argued that of all
phases of the juvenile justice procedure, it is at the point of arrest and
immediately thereafter, while in police custody, that an accused juvenile is
most likely to become the victim of torture or other forms of cruel treat-
ment. As stated in the Commentary to Rule 10 of the Beijing Rules, the
period of initial contact with law enforcement agencies is of great impor-
tance. In this sensitive period, juveniles need a high standard of protection.
Unfortunately, rights to this protection are often denied, as seen in frequent
failures to ensure the involvement of a juvenile’s legal representative and
guardians during the proceedings. The involvement of the above mentioned
people are valuable not only in their support for the child but also as
observers of how the case is handled.
In Nepal, there is legislative protection against maltreatment of juveniles.
The Constitution prohibits physical or mental torture of a person who is
7 Section 19 of the Children’s Act states that children’s cases are not to be entertained in the
absence of a legal practitioner.

268 Kishor Silwal
detained during investigation, for trial or for any other reason. It forbids
cruel, inhuman or degrading treatment, and moreover provides for compen-
sation to the victims of such treatment.8 The Children’s Act applies this pro-
vision more specifically to cases of juveniles. It states that, ‘notwithstanding
anything mentioned in the other law in force, no child shall be subjected to
handcuffs and fetters, solitary confinement or put together in prison with a
adult prisoner in case a child is convicted of any offence’.9 However, this
legislative protection is not matched by practice. His Majesty’s Government
has stated that no cases have been reported of children who have been the
victims of torture or other cruel, inhuman or degrading treatment (CRC
para. 22). Yet, handcuffing juveniles as well as adults is a common practice
in Nepal.
The Supreme Court has condemned the practice of handcuffing, observ-
ing (obiter dicta) that it is immoral, and issuing a writ of mandamus to
compel the removal of handcuffs from juvenile offenders who are travelling
from the police cell to the court.10 Surprisingly, against the spirit of the law
and the earlier rulings of the Supreme Court, in another case the judge of
the Supreme Court refused to remove the handcuffs of a juvenile who was
produced before the bench with handcuffs under a writ of habeas corpus.
When the lawyer representing the case demanded the removal of the hand-
cuffs, the bench dismissed it, asking: ‘Who would be responsible if the juve-
nile escaped?’11 This sort of attitude is typical of the adult criminal justice
system.
Protection against abuse of authority can be found in measures relating
to its supervision and the encouragement of participation by different inter-
est groups. This may be observed in the following procedures: the police are
required to conduct interrogation of the suspect in the presence of a public
prosecutor/government attorney. Furthermore, number 24 of the Chapter
on Court Procedure directs that in the case of an individual who has not
attained the age of 16 years, the statement may only be made in the pres-
ence of a guardian. This is in accordance with the international emphasis
on the involvement of parents and guardians in the justice process for juve-
niles.12 However, this sort of legal provision is regularly ignored by interro-
gation officers.
In Nepal the police can generally place a suspect in police custody for
investigation, without judicial authority, for only 24 hours. If it is required
that the person be kept in custody for more than 24 hours, this can only be
8 Article 14 (4) of the Constitution of the Kingdom of Nepal.

9 Section 15 of the Children’s Act 1992.
10 Balkrishna Mainali v Ministry of Home Affairs and Others, writ No 3505 of 1999, dated
7 August 2001.
11 See The Kathmandu Post, 7 March 2002.
12 CRC Art 40.2 expressly states that juveniles should be informed promptly and directly of
the charges against them, and, if appropriate, through their parents or legal guardians.
extended by order of the court. In such a circumstance, the maximum period

before the court appearance and submission of the charge sheet is 25 days.
It has been observed that in such situations, regardless of jurisdiction, there
is no guarantee that the case will be resolved at this hearing. There may be
statutory provision for unusually lengthy remand. Under Nepal’s Narcotic
Drugs (Control) Act 1976, suspects may be detained for up to 90 days prior
to trial. The detention situation may possibly be more serious in the event of
political and social upheavals. Those suspected of being involved in opposi-
tion or rebel groups may face severe restrictions on their liberty, by law and
through pressures on the system. There are a number of children who have
been detained on suspicion of their involvement with the Maoists, which has
been declared a terrorist group by the Nepalese Government. Under the
Terrorist and Destructive Activities Prevention Act 2002, anyone accused of
terrorist activities may be kept in remand for up to six months.
The concern for speed within the pre-trial process derives from the widely
held belief that deprivation of liberty should be used only as a last resort,
and then only for the minimum possible period. Indeed, Rule 13.1 of the
Beijing Rules stipulates that ‘(d)etention pending trial shall be used only as
a measure of last resort and for the shortest possible period of time’.
Furthermore, as provided by Rule 13.2, whenever possible, ‘detention
pending trial shall be replaced by alternative measures, such as close super-
vision, intensive care or placement with a family or in an educational set-
ting or home’. In Nepal there are no specific statutory provisions for the
practical application of Rule 13 of the Beijing Rules. Juveniles in pre-trial
detention can face a danger of ‘criminal contamination’, and as such, alter-
native measures should be sought to best ensure their well-being.13
However, it has been argued that, despite the application of the ‘last resort’
principle of detention in the context of juvenile justice, this standard has
been violated on a huge scale.
One important condition of detention is the separation of children from
adults. This is one of the most basic and long-standing principles of crimi-
nal justice. It has a dual purpose: to protect children from exploitation,
abuse and negative influences by adults, and to ensure that the detention of
children occurs in facilities that cater for their special needs. It is a princi-
ple articulated in numerous international instruments. Article 10 of the
ICCPR states: ‘Accused juvenile persons shall be separated from adults and
brought as speedily as possible for adjudication’,14 and furthermore, ‘... be
accorded treatment appropriate to their age and legal status’.15 Rule 13.4
of the Beijing Rules states that ‘(j)uveniles under detention pending trial
13 See also JDLs Rules for the Protection of Juveniles Deprived of their Liberty, (General
Assembly Resolution 45/113 Rule 17).

14 Article 10.2.b.
15 Article 10.3.
270 Kishor Silwal
shall be kept separate from adults and shall be detained in a separate insti-
tution or in a separate part of an institution also holding adults’.16
In Nepal, provision for these requirements can be found in section 42 (2)
(a) of the Children’s Act, 2048 (1992). It clearly states: ‘A child to be
imprisoned pursuant to the existing law for the investigation or proceedings
of the case being accused of any crime shall be kept in the Juvenile Reform
Home’. Further, Section 50 (1) of the Children’s Act provides that where
under other laws in force any person accused of committing any offence is
to be kept in custody for investigation of the crime, the court hearing the
case may order a suspected juvenile to be placed in the custody of their
father, mother, relatives or other guardian. Furthermore, the court may
order the suspected juvenile to be placed in the care of a social organisation
working for the protection of children’s rights or in a child reform centre.
Such order will be made on the condition that the party with whom the
juvenile is placed can ensure the appearance of the juvenile at the necessary
time. The court is empowered to make such orders if, considering the age
and physical condition of the juvenile, the details of the crime and the place
of custody, it is found to be inappropriate to put him/her in custody.
However, despite such provision, in most of the cases studied so far there
has been no practice of placing a child in the custody of any other person
or entity except that of the police.
Generally, the police and prosecutors are blamed for inflating the age of
juveniles above 16 years on the charge sheet. During the investigation
period, the prosecution must record the age of the suspect. If there is any
inconsistency between the suspect’s statement and other evidence collected
by the prosecution, it will be necessary to verify which facts are genuine
after collecting other necessary evidence. If there is any doubt remaining
after such a process, the prosecutors consider the higher age to be the gen-
uine age. The suspect has the right to rebut the statement of the prosecution
in court. After completion of the investigation, the police will send their
report to the public prosecutor’s office, along with their opinion of the
crime for which the suspect should be prosecuted and what punishment
(s)he should receive.
Nepal’s justice system is characterised by procedure and the norms of a ‘for-
mal’ justice system. However, it is slowly becoming more flexible. In juvenile
cases, there is increasing recognition of the need to ensure care and assistance
for young people and encourage their personal development and reintegration.
Nonetheless, the system is still far from full compliance with the fundamental
principles of juvenile justice. These principles can be seen in the use of
‘diversion’. Diversionary approaches are those that seek to avoid ‘unnecessary’
contact with the formal justice system and its potentially harmful aspects.
16 See also the Standard Minimum Rules for the Treatment of Prisoners 85 (2).
Instead, alternative responses are sought that are sensitive to the personal cir-
cumstances of the offender and the nature of the crime as well as the interests
of the victims, such as cautions, mediation and life skills training. Diversion
can occur at all stages of a case, but is perhaps most significant when initiated
in the early stages, prior to a hearing. International instruments encourage its
use, namely Guideline 58 of the Riyadh Guidelines, and Article 40.3.(b) of the
CRC. Rule 11 of the Beijing Rules further expands on its application. In
Nepal, there is presently no provision for diversion in the treatment of juve-
nile offenders. However, the development of such approaches should be a pri-
ority, along with allocation of resources to establish them. Despite some
necessary investment, alternative approaches could eventually take pressure
off the formal justice system and, moreover, improve the justice available to
juveniles, particularly those committing first-time or non-serious offences.
The Office of the Attorney General

With regard to the administration of justice, Article 110 of the Constitution
provides the Attorney General with the right to initiate or not to initiate
prosecution against offenders17. The same rule applies in the case of a juve-
nile offence. Its role is to protect society from all types of offenders, be they
adult or juvenile. At present, within the prosecution service there is neither
special training on nor any awareness of the specific rights of children, at
either the central or the district level. Nevertheless, it seems that the Central
Office of the Attorney General is the major source for cases of the Supreme
Court on the subject circulating through the various District Government
Attorney offices. Furthermore, a recent internal policy instruction from the
Office of the Attorney General, dated July 2003, seems to have established
a new recording system for juvenile cases. Each District Government
Attorney should submit a monthly report stating the number of cases in
which children were involved. Those reports will then be compiled into an
annual report on the activities of the Office of the Attorney General and
will ultimately be submitted to the Parliament and to the Prime Minister.
However, this system of monthly reporting is yet to be put into effect.
In the case of a juvenile accused, there is no special provision for the
process of prosecution. Prosecutors have been following the traditional sys-
tem of just mentioning the age of the accused in the relevant column on the
charge sheet. If the age is stated as below 16 years, that is prima facie evi-
dence to the court that the case needs special consideration due to the
immature age of the accused. Generally, in practice, it has been found that
17 At the district level, section 17 of the State Cases Act also provides the District
Government Attorney with the authority to decide whether or not to initiate judicial proceed-
ings against suspects. There are 75 district level offices and 16 appellate offices to discharge
the responsibility of the Attorney General.
272 Kishor Silwal
if the age of the accused is below 16 years, prosecutors ask for remission of
the sentence as per section 11 of the Children’s Act.
The judiciary
The judicial system is threefold and is presented in Part 11 of the
Constitution of the Kingdom of Nepal, 1990. The first level of hearing is
the district level. District Courts, also called Courts of First Instance, have
jurisdiction over both civil and criminal cases (whether adult or juvenile)
and are located in all the 75 districts. The second level of hearing lies with
the Courts of Appeal, of which there are 16 throughout the Kingdom of
Nepal. The third and highest court in the judicial hierarchy is the Supreme
Court. It is composed of a Chief Justice and a maximum of 14 Associate
Judges, all of whom are appointed by His Majesty the King, on the recom-
mendation of the Judicial Council. Article 88 of the Constitution provides
the Supreme Court with vast jurisdiction. Decisions made by the Supreme
Court strongly influence the development of law and act as precedents.
The Nepalese judicial system is uniform; it does not have a separate sys-
tem of courts for the hearing of civil and criminal cases. However, there are
provisions regarding the establishment of Special Courts to hear excep-
tional cases, such as State Treason. In violation of Article 40.3 of the CRC,
there are no juvenile courts in Nepal. In the year 2000 the government
decided to create Juvenile Benches, composed of one judge, one psycholo-
gist and one social worker (on the model of the Juvenile Courts mentioned
in the Children’s Act). Many regarded that decision as a first step toward
the establishment of independent juvenile courts. However, three years after
that decision, Juvenile Benches were yet to be established. Now, of the 75
districts, Juvenile Benches are only partially operating in two districts, viz.
in Chitwan and Dolakha.18 Juvenile cases are therefore heard in the ordi-
nary judicial system, which obviously does not have the same focus on child
welfare and rehabilitation as a separate system of courts would have.
There are no differences in trial procedures for adults and juveniles. A
juvenile is arrested and detained in exactly the same manner as an adult.
The public prosecutor files a charge sheet, along with the evidence collected
during the investigation, and, if the accused person is in custody, s/he pres-
ents the accused before the relevant District Court; then the trial begins. As
a general rule, trial in a court of law is open, according to the principle of
public hearing19. However, the proceedings of a case involving a juvenile
should be conducted in camera. Children’s cases must be taken up by
a juvenile court or by a child bench. The name and address of the child
18 Juvenile cases in these two districts have been heard in the presence of a social worker;
there was no psychologist though. See CeLRRd (2003), 101.

19 Number 6 in the Chapter on Court Management, Muluki Ain.
cannot be disclosed to the public. The juvenile’s legal representative, father,

mother, relatives or guardian are allowed to be present in court for the hear-
ing. Similarly, the officer hearing the case may allow any person or the rep-
resentative of a social organisation involved in safeguarding the rights and
interests of the child to observe the proceedings.20
Unfortunately, in practice, the court is often open during the hearing of
juvenile cases. If properly implemented, the above provisions could help to
put a child at ease and facilitate his/her full participation in the process.
Such measures are also important for the protection of the child’s privacy,
something guaranteed by, inter alia, Article 40.2.(vii) of the CRC, Rule 8 of
the Beijing Rules and Article 22 of the Constitution of the Kingdom of
Nepal (1990). The interests of the juvenile as well as justice are important
in determining how open proceedings may be, and how the judgment may
be published.21
In the area of juvenile justice, the Supreme Court recently rendered a
number of decisions with important implications for the juvenile justice sys-
tem. The first decision by the Supreme Court regarding juvenile justice was
taken in 2001. The Court issued a writ of habeas corpus with the aim of
removing a juvenile offender from the central prison and placing him in a
Juvenile Reform House, as prescribed by section 42 (1) of the Children’s
Act 1992, or, at the very least, to a juvenile welfare home, an orphanage or
a privately established centre, as per section 42 (3) of the said Act.22 More
recently, in Bablu Godia v His Majesty’s Government (writ no. 3390/2002),
the Supreme Court ‘... directed the Government to establish and operate
Child Reform Houses and other beneficiary organisations respecting the
rights of children to physical and mental development’.23
The District Officer

The role of the Chief District Officer (CDO) is to take care of the entire
administration of the district s/he has been assigned to. These prerogatives
are not confined to the exercise of executive power; s/he also enjoys quasi-
judicial power. The Public Offence Act gives competence to District
Administration Officers (DAOs) to hear and decide cases brought before
them on the ground of public offences. District Courts therefore appear
incompetent to adjudicate such cases. Public offences represent a substan-
tial part of all juvenile offences. CeLRRd’s survey on juvenile justice shows
that 63% of all offences committed by juveniles between the years 1997–98
and 2002–03 were public offences.24 However, proceedings before this
20 Children’s Act 1992, s. 49.

21 See ICCPR, Article 14.1.
22 Bablu Godia v Banke District Court et al, writ no 3390 of 2000, decided on 2000 Chaitra 12.
23 See CeLRRd (2003), 25.
274 Kishor Silwal
quasi-judicial institution are known for recurrent violations of fair trial

and other fundamental rights. This characteristic of the Nepalese system
appears to be to the detriment of a dedicated and professional juvenile jus-
tice system.
The prison system

The Nepalese prison system is composed of 73 prisons in 71 districts.25
Inmates in Nepal are divided in two groups: those convicted by a court of
law are called ‘prisoners’ whereas those undergoing trial are called
‘detainees’.
The penal system in Nepal is inefficient and by any measure inhumane.
The existing prison system focuses on punishment without introducing a
reformative or rehabilitative regime. While we talk about the links between
prison and juvenile justice, although imprisonment is internationally recog-
nised as inappropriate for dealing with juvenile offenders, it remains the
most common instrument of juvenile justice in Nepal. As per the norms
mentioned in the international instruments, Nepalese legislation clearly
prohibits the keeping of juveniles together with adults in prison but it is
common practice in Nepal to do so. 26
Individual actors
Children (juvenile delinquents)

The main actors in the juvenile justice system in Nepal, and anywhere else,
are undoubtedly the children themselves. Juvenile delinquents, for whatever
reason, have caused a wrong to society, and as a consequence are chan-
nelled through the legal system. The CRC and all other international instru-
ments dealing with the subject promote a specific juvenile justice system,
focusing primarily on the welfare of the child and on its reintegration rather
than on mere repression. Thirteen years after the ratification of the CRC,
the Nepalese political power (government and parliament), the police and
the legal profession (judges, prosecutors and lawyers) have not yet fully
realised the negative impact that the absence of a proper juvenile system
may have on society as a whole, for it is proven that dealing with juvenile
delinquency through traditional punitive-oriented channels is inviting adult
criminality.
24 See CeLRRd (2003), 98. Information and data were gathered from 63 districts (informa-
tion on the remaining 12 districts was unobtainable).

25 Four districts do not have prisons: Bara, Dhanusa, Bhaktapur and Sunsari.
26 See supra note 10, at 5.
Who, in the eyes of the law, is considered to be a child? Under Art. 1 of

the Convention on the Rights of the Child (CRC), every human being below
the age of 18 is considered to be a child. With regard to Nepalese law, the
Children’s Act of 1992 provides in section 2 (a) that a ‘(c)hild means every
human being below the age of 16’.27 Persons under the age of 16 years make
up 43.92% of the population of Nepal.28 Of course, the issue of juvenile jus-
tice does not concern most of the young population; all children below the
age of 10 do not have criminal capacity;29 and among those who are 10 and
over, only a minority commit crimes. However, the fact that juvenile delin-
quency is less frequent than adult criminality should not make it a sort of
‘secondary criminality’, subject to less attention. Indeed it requires special
measures and care. Besides, the number of crimes perpetrated by minors has
dramatically increased in the urban areas in the last few years.
Of all children, ‘street children’ are the most at risk. There are an esti-
mated 30,000 street children in Nepal, of whom approximately 4,000 are
children ‘of the street’, that is children who reside and work on the street
(as opposed to children ‘on the street’ who have homes but who spend most
of their time working or playing on the street).30 The environment of
poverty and neglect in which they grow up, along with the negative inter-
personal associations they are likely to make on the street, put them in the
front line of the juvenile justice system.
Lawyers
It is a fundamental right of any person accused of having infringed the law to
be represented in court by a defence counsel, hence young offenders are also
supposed to be in contact with lawyers. Legal assistance at each stage of the
judicial process is extremely important, as it is often the only way to be
informed of one’s rights and to have them observed. In the absence of a real
social-worker profession, the role of the lawyer may require more skills than
mere legal knowledge. In dealing with juvenile justice, lawyers must target the
best interests of the child as the most important objective to achieve.
Social workers
The role of social workers is essential in the administration of a proper
juvenile justice system. However, due to lack of resources and political
27 The Treaty Act 1990 specifies the superiority of provisions provided by international
agreements to which Nepal is a party over national provisions that would be inconsistent with
international law. Therefore, the legality of section 2 (a) of the Children’s Act is questionable
insofar as it does not comply with the definition given by the CRC (to which Nepal is party).
28 See HMG (2002), 24.
29 There are 5,513,485 children below the age of 10 in Nepal, and 2,727,710 between 10
and 16. See Central Bureau of Statistics (2003), 1.

30 See CWIN (August–October 2003), Juvenile Delinquency in Nepal, Kathmandu, at p8.
276 Kishor Silwal
willingness, their role is almost nonexistent in Nepal. Social workers are

usually the actors who are most aware of the conditions in which a child
may evolve or probably evolve to be a criminal. The Children’s Act of
1992 foresees that each juvenile court will be constituted of one judge, one
psychologist and one social worker. But at the moment, this kind of court
only exists in legislation. Similarly, the Beijing Rules foresee in Article 16
that a social inquiry should be made before sentencing. This inquiry should
be done by qualified and experienced social workers. These inquiries are
an indispensable tool for reaching a decision that will respect the juvenile’s
best interests. An understanding of their background, and of the causes
that led to the commission of the offence, is essential in order to tailor-
make the sentence to maximise the juvenile’s chances of social re-integra-
tion. Furthermore, the role of social workers does not stop with the court
sentence but should carry on after the juvenile exits the criminal system.
Social workers should be there to facilitate the re-integration of the juve-
nile; they should be landmarks to which juveniles may come to seek help
and counselling.
Parents
Parents have an important role to play in explaining the reasons for juve-
nile delinquency and youth criminality. In an ideal world, parents take
care of their children and surround them with love, affection and educa-
tion throughout their youth, which ultimately prevents them
from exhibiting socially deviant behaviour, the most obvious being the
breach of penal law. But we do not live in an ideal world. Parental respon-
sibility implies duties (legal and moral) toward children and rights owed
by the State to the parents. The limited scope of the present paper
excludes a discussion of the duties of parents toward their children; how-
ever, some of the parental rights are specifically linked to juvenile justice
and may be considered as providing psychological support for young
offenders.
FUNDAMENTAL ISSUES
The Nepalese juvenile justice system has undergone major reforms, result-
ing in a distinct change in the structure and function of the adult justice sys-
tem. Theoretically, legislation relating to the juvenile justice system in Nepal
is clearly oriented towards the child welfare model, thus complying with
international standards. But in the practical aspects it has been generally
observed that the state of juvenile justice is pitiful, hence there are calls for
immediate reform at the practical level. The fundamental issues mentioned
below are the major concerns to be addressed in order to make our system
just, reasonable and fair.
Criminal responsibility
An important concern relating to criminal responsibility is establishing the

age of the child. However, in many remote places there is no system of birth
registration. How can the age and subsequently the criminal capacity of
children be obtained in those conditions? Though there are few options,
one is to ask a doctor to identify their age. A second is to refer to the school-
class level of the child. The first option requires money, the second requires
that the child attends school, which is of course not always the case when
dealing with alleged young offenders.
Surveys and reports reveal that investigating officers falsify the ages of
accused, putting them into the higher age category, thus making conviction
and sentencing easier.31 The Government should make a special effort to
improve the birth registration system in order to make it systematic. Indeed,
section 3 (1) of the Children’s Act of 1992 recognises the right of a child to a
name and determination of birth date. The Committee on the Rights of the
Child recommended in its last Concluding Observations (1996) that registra-
tion of children could be undertaken through ‘the establishment of mobile
registration offices and registration units in school’.32 In practice, when there
is no official birth registration, judges often refer to a medical examination or
to a school certificate. Section 3 (2) of the Children’s Act states that ‘in cases
where the date of birth of any child is not traced, the person or organisation
bringing up the Child shall, in consultation with a registered medical practi-
tioner, determine the birth date of the child. Unless otherwise proved, the date
so determined shall be considered to be the date of birth of the Child’. So the
following are some suggestions: a proper system of birth certificates in remote
areas should be established, either through schools or through local doctors;
the establishment of mobile registration units should be encouraged, such as
those suggested by the UN Committee on the Rights of the Child; judges and
police personnel should be sensitive to the issue of age falsification. Its nega-
tive impact on justice and therefore on society should be emphasised. They
must realise that by unquestioningly accepting false ages they irrevocably
damage a life and cause a wrong to the society that they are meant to serve.
Quasi-judicial bodies
Authorities in quasi-judicial bodies are not always legally qualified and

skilled; they are civil servants and as such they may come from very differ-
ent academic backgrounds and have no knowledge of issues of delinquency.
They have not been sensitised to the requirement of fair trial, nor have they
31 See op cit note 17, pp. 94 and 99.

32 See CRC/C/15/Add.57, para. 31.
278 Kishor Silwal
followed special courses on the implementation of the CRC or of the

Children’s Act, but it is a bitter fact that they have been equipped, through
various pieces legislation, to hear and decide the majority of juvenile cases.
The only solution regarding this is to change the legislation through
Parliament or to challenge it before the Supreme Court to make it void on
the basis of inconsistency with principles of juvenile justice. Alternative
measures for diverting juveniles as soon as the investigation starts will be a
vital step towards avoiding trial by quasi-judicial bodies.
Lack of information and co-operation
In Nepal there exists no official data regarding the extent of juvenile delin-
quency. There is an obvious lack of knowledge and understanding of the
child issue at all levels of administration and of the judiciary. Section 52 of
the Children’s Act creates the obligation for police organisations to keep
accurate records of the manifestation of juvenile justice in Nepal. As per the
Act those statistics must be made available for any study or research work
without mentioning the name, surname or address of the child. Further,
Rule 12 of the Beijing Rules reads as follows:
In order to best fulfill their functions, police officers who frequently or exclusively
deal with juveniles or are primarily engaged in the prevention of juvenile crime
shall be specially instructed and trained.
An internal policy letter from the Office of the Attorney General, dated
July 2003, seems to have established a new recording system of juvenile
cases:
Each District Government Attorney should submit a monthly report stating the
number of cases where children were involved. Police organisations should also
take the initiative to maintain the records of delinquency as per the provisions of
Children’s Act. In large cities, special police units should be established for that
purpose.
Establishment of effective juvenile benches
The Nepalese Children’s Act prescribes the establishment of juvenile courts.

This obligation has not been made effective yet; and the juvenile benches
that were considered as a temporary alternative do not work as well as they
should: neither social workers nor psychologists are involved in the judicial
process as envisaged by the Children’s Act. However, the question of need
for special courts to hear cases involving delinquents is not even a subject
of controversy: it is common sense. So there remains a need for children’s
specialists in the judicial process and training of judicial personnel on juvenile
justice, focusing on the international framework, the national provisions,

and the ways and means to implement both of them. Similarly there is an
urgent need to equip social workers and psychologists with the skills to
handle juvenile cases properly.
Incarceration of children in prison
Section 42 of the Children’s Act stipulates that a child be kept in a Child

Rehabilitation Centre both during the investigation and in the execution of
the sentence. This provision clearly indicates that the child should not be
sent to prison to live alongside adult prisoners, even during the trial stage.
The Children’s Act is not specific on whether or not a child may be kept in
police custody with adults during the pre-trial stage, however. Nevertheless,
section 42 rejects this outright. Similarly, section 50(1) and (2) provides that
if a judge presiding over a trial finds it inappropriate to send the child to
prison, s/he should deliver the child to the parents or social organisations
for custody. The Supreme Court in the Bablu Godia case (see note 25) ruled
that it is mandatory to send a child to a child reform centre, thus the court
completely ruled out the incarceration of children in prison. But in practice,
however, children are kept in police custody or sent to jail indiscriminately.
Where a delinquent is sent to a Child Rehabilitation Centre in lieu of
punishment, it is not clear how long s/he should stay there if s/he becomes
a ‘mature person’ (as per the Children’s Act) while serving the sentence. In
practice, when the child becomes mature they are sent to prison. This goes
against the reformative approach of juvenile justice. Once s/he is sent to a
rehabilitation centre for reformation, how can sending him/her to prison
only on the grounds of crossing the age barrier be a reasonable justifica-
tion? It clearly negates the previous reform s/he received at the centre. In
this regard, clear-cut provisions should be incorporated in our legislation to
send them to vocational training centres instead of sending them to prisons.
CONCLUSION
Nepal does not have separate comprehensive legislation regarding the treat-
ment of juvenile delinquents. The Children’s Act of 1992 contains some
provisions which deal with delinquent behaviour. But these provisions have
not proven sufficient to establish a separate justice system for juveniles.
Even now, the process of investigation, prosecution and trial is almost iden-
tical to that applied in the adult criminal justice system. Although the
notion of a modern juvenile justice system accepted by the international
community has been partly incorporated in Nepalese legislation, it is far
from being applied. Despite the constitutional guarantee of legal assistance
to delinquent suspects, this right has been frequently denied. The use of
280 Kishor Silwal
friendly, polite language in extracting information from young offenders

while conducting interrogations is not the practice of the investigating
authorities. Except as applied in some court rulings, probation has not been
applied to young offenders. In this scenario, there is an urgent need to
incorporate into practice separate juvenile justice legislation diverting juve-
nile delinquents from the ordinary criminal justice system.
REFERENCES
CeLRRd (2002a) Baseline Survey on Criminal Justice System of Nepal,

CeLRRd (Bhaktapur).
CeLRRd (2002b) Research Report of Trial Court System in Nepal,
CeLRRd (Bhaktapur).
CeLRRd (2003) Juvenile Justice in Nepal, CeLRRd (Bhaktapur).
Central Bureau of Statistics (2003) Statistical Year Book Of Nepal 2003.
CWIN (2003), Juvenile Delinquency in Nepal (Kathmandu).
Dhungel, Adhikari, Bhandari and Murgatroyd (1998) Commentary on the
Nepalese Constitution, DeLF (Kathmandu).
HMG (2002) Population Census 2001, National Report, National Planning
Commission Secretariat, Central Bureau of Statistics (Kathmandu).
Mukonda, R. (2003) ‘A Paper on Diversion’. In Juvenile Justice System, pp.
227–9. (Kathmandu, Kathmandu School of Law, Nepal).
Sapkota, T. (2003) Review of the Environmental Laws of Nepal. Report
submitted to HMG/UNDP: Strengthening the Rule of Law Programme.
Section Three
Learning from the Experiences of

Diverse Models
13
The Role of the Police within the
Spanish Juvenile Justice System:
The Results of Legal Reform in
Catalonia
LOLA VALLÉS
INTRODUCTION
I
N THE LAST twenty years, major reforms in the political, economic and
social fields have taken place in Spain. Among these changes, the crimi-
nal justice system and its agencies have been through a process of mod-
ernisation and democratisation. One of the more recent reforms affected
the juvenile justice system and was introduced by a new law in 2000.
The police are a law enforcement agency within the criminal justice sys-
tem. They hold a key position in this system as they can be considered the
main entrance to it. In Spain a specific justice system for juveniles was cre-
ated at the beginning of the 20th century. If we follow the historical evolu-
tion of the Spanish juvenile justice system we can observe changes in the
model legislation and ages for application of juvenile law that go from the
guardianship model—a paternalistic model similar to the American social
welfare model—to treatment ideology—a mixed model based on individual
responsibility, as in the crime control model—that have shaped police inter-
vention with juveniles (see the chapter by de la Cuesta in this volume for
additional information on the new Spanish model).
The guardianship model (modelo tutelary) was introduced in Spain by
the Law of Bases in 1918, which opened the door to the progressive cre-
ation of Children’s Courts following the model of the Cook County juve-
nile court (Chicago, 1899). Thirty years later, in 1948, the Law of 1918 was
replaced by the Law of Juvenile Courts. The juvenile courts sought to pro-
tect those under 16, whether victims or offenders, from the improper exer-
cise by their parents or guardians of the right to custody and education. It
was a very ‘paternalistic’ and ‘male based’ conception. For instance, the
284 Lola Vallés
main prerequisites for membership of this court were being male, over 25
years of age and with irreproachable morals and an unblemished lifestyle.
After a long dictatorship, democracy was re-established in 1976 and the
lack of procedural guarantees in the Law of 1948 conflicted with key arti-
cles in the Spanish Constitution of 1978. During the 1980s there was in
general minimum intervention by the juvenile justice system against juvenile
delinquency as the law was in conflict with some of the principles of democ-
racy. In addition to this, the need to introduce international treaties and
agreements in law created a need to promulgate a new law regarding jus-
tice for juveniles; this took place in 1992 (Act 4/1992). This law constituted
an urgent and provisional reform prompted by the declaration of unconsti-
tutionality of the Law of 1948. The year 1995 saw the change of lawful age
to 18 years, which was introduced by the new Penal Code, bringing it into
line with the civil age of majority. Following this approval, a new law on
justice for juveniles became all the more necessary.
The promulgation of Act 5/2000 on minors’ penal responsibility was a swift
movement towards treatment ideology1 as it puts judicial intervention regard-
ing juveniles somewhere between a formal sanction and a ‘materially educa-
tional intervention’. It emphasises the recognition of the special vulnerability
and educational demands of the offending juvenile and his/her legal responsi-
bility for his/her acts. The law mandates that children under 14 years will not
be criminally responsible for their actions and they cannot go through the
criminal justice system. In exceptional instances, the law can be applied to
young people of 18–20 years of age2 (i.e. ‘young adults’). Treating young
adults as juveniles seems to take into account structural changes in western
societies where the beginning of adulthood has been moved to run in parallel
with the increasing practice of delaying entry to the employment market.
The way the police intervene with juveniles has gone through an impor-
tant transformation in the last decades, especially since the democratisation
of the State.
CHANGES IN LAW AND CHANGES IN PRACTICE
Act 5/2000 introduced a variation in the age of criminal responsibility for

juveniles, from 12–16 to 14–173. This means that children up to the age of
1 The 2000 reform follows the juvenile justice model promulgated by international law such
as the United Nations Rules, the Council of Europe Recommendations, the Convention on the
Rights of the Child and the European Charter on Children’s Rights.
2 Provided young people fulfil the conditions presented in Art. 4 of the law: having commit-
ted a less serious crime or penal misdemeanour without violence or intimidation to the per-
sons, or putting them in serious danger; not having been condemned by a final sentence for
crimes committed after reaching 18 years of age; and that the special circumstances and the
degree of maturity of the accused make it advisable, all those being considerations assessed by
the Technical Advice Team.
3 The 2000 reform fixes the minimum age for applying the juvenile justice system at 14
years; this has also been done in Italy, Sweden and Germany. The maximum age is 17.
The Role of the Police within the Spanish Juvenile Justice System 285
13 are exempt from the juvenile justice system and criminal intervention is
limited according to what biology and psychology define as childhood and
adolescence. As a result, police intervention with juveniles under 14 years
who commit a crime must be oriented towards child protection and must
be done in connection with the juvenile welfare system and under the super-
vision and direction of the juvenile prosecutor’s office.
Concerning the police, the new legislation on juveniles is a shift towards
better protection of juvenile rights and legal safeguards in police perform-
ance. In this sense the reform introduces an exhaustive list of formal con-
siderations relating to the detention of juveniles4. It must be emphasised
that the 2000 Law limits the time of detention by the police to 24 hours5
and also diminishes police discretion by establishing external bodies to lead
police interventions: a judicial body—the prosecutor, and an administrative
one—the juvenile welfare board. Furthermore, the law implies the official
recognition and adoption in law of practices that were already in force,
such as the existence of specialised police units for juveniles.
Act 5/2000 emphasises the protection of the basic legal safeguards and
basic rights of juveniles; for instance, juveniles can request the habeas cor-
pus procedure,6 which will be initiated by the chief of police. The compe-
tent preliminary investigation judge in the place where detention has taken
place will intervene. When the police detain a juvenile they are clearly
instructed to avoid ‘using tough language, physical violence and exhibiting
4 Art. 17 of Law 5/2000: the detention of juveniles must be exceptional and must always be
put into practice in such a way that it should cause the minimum detriment to the juvenile;
juveniles must be informed of their constitutional and legal rights in words that they can
understand and that should allow them to understand also the events they are being charged
for, and the reasons for their detention; the police must immediately notify the prosecutor and
the juveniles’ representatives of the arrest, and also the appropriate legal personnel, as the case
may be; a lawyer must assist the juveniles at all times; they must be questioned before their
parents and a defence lawyer; and in their absence, before a prosecutor other than the one in
charge of the proceedings; juveniles must be retained in adequate facilities and separate from
those used for adults of penal age; they must also receive any physical, medical, psychological
and social assistance and all the care and protection their age requires according to their sex
and individual characteristics; and finally, within a maximum period of 24 hours juveniles
must regain their freedom, and must be handed over to their parents, guardians or relatives or
put under the Public Prosecutor, as the case may be.
Whenever the crime committed gives rise to liability to a prison sentence of over three
years, juveniles must be put under the custody of the prosecution; if the presumed sentence is
shorter, juveniles will be freed after giving evidence under the guardianship of those responsi-
ble for it. The prosecutor has 48 hours from the time of the arrest to decide on their freedom
or request from a judge the precautionary measures they see fit to apply to the juvenile’s
situation.
5 All juvenile detentions must be immediately communicated to the juvenile prosecutor by
telephone and fax. During detention juveniles should be kept separate from adults and also be
transported separately. Normally the police statement should also be sent within 24 hours to
the juvenile prosecutor’s office. In those cases where both adults and juveniles are considered
perpetrators of a crime, a copy of the police statement must be sent to the juvenile prosecutor
within 24 hours.
6 The juvenile’s parents or legal representative, the prosecutor, the juvenile’s lawyer and the
ombudsman can also request habeas corpus.

286 Lola Vallés
weapons’7. Furthermore, the police are only to use special protective secu-
rity measures, such as handcuffs, on juveniles between 16 and 18 in serious
crimes (i.e. violent crimes, sexual crimes or terrorism)8.
Regulations on juvenile arrest and detention are provided by the new law,
including the issue of place of detention. The law states that juveniles must
be detained in adequate facilities and separate from those used for adults.
The experience of the Catalan Police proves that improving and adapting
facilities leads to less violence during the detention of juveniles. The juve-
nile prosecutor’s office in Catalonia had made repeated requests to adapt
detention facilities for juveniles since December 2001, when the 2000
reform came into force. However, the adaptions were not completed until
July 2003.
When juveniles were kept in the old-style cells, violent episodes arose
continuously such as self-inflicted injuries or furniture destruction. The new
facilities consist of two big rooms with natural lighting and capacity for 30
juveniles each. The rooms have TV, video and special furniture designed to
resist vandalism. Juveniles’ attitudes towards the police have changed radi-
cally since the new facilities were put into use. For instance, taking inter-
views and testimonies is much easier and there is less self-injury.
JUVENILE POLICE UNITS
Law mandates that specialised police units for juveniles should be the main
actors within the police segment of the juvenile justice system at the differ-
ent levels of political power. It must be mentioned that in Spain there are
three levels of government—state, regional and local—and as a conse-
quence different police services with different tasks coexist, each service
corresponding to one of the following levels: (1) At the state level there are
two services: the National Police Force and the Civil Guard. (2) At the
regional level there are three regional police services, in Catalonia (Mossos
d’Esquadra), in the Basque Country (Ertzaintza) and in Navarra. In
Catalonia and the Basque country these regional police services are
intended to replace the state police forces. (3) At the local level in munici-
palities with more than 5,000 inhabitants there are local police services,
better known as municipal police or guardia urbana.
Both state and regional police services in Spain have special units for
dealing with juveniles; these units form part of the judicial police. The 2000
7 Following the 2000 law reform the State General Prosecutor’s Office dictated
Recommendation 1/2000 for Police Services [Circular 1/2000 de la Fiscalía General del Estado
sobre criterios de aplicación de la Ley Orgánica Reguladora de la Responsabilidad Penal del
Menor] containing instructions for implementing the new law on juvenile justice. In section 9
instructions are given for police intervention during the detention of juveniles.
8 Section 12 of General Prosecutor Recommendation 1/2000 for police services.
reform specifies for the first time in Spanish law that the juvenile police
units will be the main police body to implement juveniles’ law. However, it
should be noted that these units had been set up long before the 2000
reform.
In Spain during the 1980s constitutional safeguards and European stan-
dards on criminal justice were gradually introduced, and the legal treatment
for juveniles set apart a child protection system and a separate criminal jus-
tice system for children (those under 18 years of age). However, the police are
the only criminal justice agency in which staff still deal with both juvenile jus-
tice and child protection tasks9. The 2000 reform maintains this situation.
Child protection tasks are aimed at all juveniles under 18 and the police
develop them in collaboration with the juvenile welfare system. They target
children and juveniles who are unprotected or at specific risk, and victims
of ‘a crime likely to affect their normal development as individuals’.
Intervention of the police with juveniles under 14 who have committed a
crime is protective only and only civil legislation on child protection can be
used. In these cases police services may intervene only for the purposes of
civil identification or determination of age, and they cannot use techniques
and measures that are used to fight crime in relation to older juveniles or
adults. They should apply child protection regulations, inform the prosecu-
tor, follow his/her instructions and hand the juveniles over to their parents,
guardians or relatives or to the juvenile welfare system.
Juvenile justice tasks are aimed at juveniles between 14 and 17. The
police act as a part of the juvenile justice system which targets juveniles
below the legal age of responsibility who have violated the law in such a
way that, had they been of age, they would have been considered perpetra-
tors of an offence or crime. Regarding juvenile justice procedures, police
intervention according to Act 5/2000 must be fitting for juveniles who have
committed acts considered misdemeanours in the Penal Code. It should be
emphasised that juvenile criminal law is not applicable to children under 14
years of age regardless of the crime committed, nor to youngsters over 18
years who are processed in the adult criminal justice system.
Police enforcement of immigration law also applies to juveniles. When
dealing with foreign juveniles, juvenile police units perform controls and
administrative restrictions as part of their tasks.
At the state level the most important juvenile police unit is the group
under the National Police Force. In the late 1970s and as a result of the
emergence of juvenile delinquency within urban settings (crimes against
property, vehicle theft, climate of insecurity, violence), Juvenile Delinquency
Groups were created within the National Police Force (NPF), aimed at
focusing on the offending juvenile. The emergence of juvenile delinquency
9 For instance, the Catalan police force’s juvenile unit self-reports that 30% of their work
relates to protection while 70% relates to juvenile justice interventions.

288 Lola Vallés
coincided with the appearance of drugs, major demographic growth and

unemployment among the second generation of immigrants who had settled
on the outskirts of the larger cities during the industrialisation process of
the 1970s. From the mid-1980s onwards, this more reactive orientation
was complemented by the implementation of police departments specialis-
ing in juveniles and youth-related problems with a strong emphasis on pre-
ventive strategies. This demand for specialisation on the part of the police
was specified in Royal Decree 769/87 for Regulation of the Judicial Police,
constituting the Groups for Minors of the NPF (GRUME) in 1987, with
headquarters in three big cities: Barcelona, Madrid and Seville.
GRUME forms a part of the Judicial Police Provincial Brigades, and their
field of action focuses on three main objectives:
(1) To protect children and juveniles who are victims, in collaboration

with the juvenile welfare system. Their duties include: detection of children
and juveniles in situations of abandonment or danger; the prevention and
investigation of crimes involving children and juveniles as victims; assisting
children and juveniles who have been victims of misdemeanours, and so on.
(2) To combat criminality of youth in the juvenile justice system. Their
duties include: informing parents regarding slight breaches of the law by
juveniles; collaboration with juvenile courts and institutions providing
attention to juveniles; the prevention and investigation of crimes involving
children and juveniles as perpetrators, etc.
(3) To help children and juveniles in risk situations. Their duties
include: control of school absenteeism; participation in discussions, confer-
ences and informative activities at schools; the search for and location of
children and juveniles who have run away from home, etc.
At the regional level there is a juvenile unit in the Catalonia police force: the
Minors Brigade. It was created in June 1986 together with a Minors Police
Headquarters. It began to deal with questions relating to the victimisation of
children and juveniles and also with criminal lawsuits brought against them.
Since the beginning, a social educator has been part of its staff.
As a consequence of an organisational change after the 2000 reform, the
Minors Police Headquarters was disbanded and instead a Minors Service
Office (MSO) was created in December 2001. The MSO is a police unit
solely for children and juveniles, on duty 24 hours a day, covering the entire
region of Catalonia10. Three operational groups were established: two
working from the public prosecutor’s office for juveniles and one from the
police headquarters building. Their duties are similar to those performed by
10 The Minors Service Office covers the whole region of Catalonia, which has a population
of 6.5 million. The average number of juveniles the Minors Service Office receives is close
to 15 juveniles per day, with an average of four declarations being taken for each juvenile
(perpetrators, victims and witnesses).
the Juveniles Unit of the NPF. They include, on the one hand, the investiga-
tion of complaints and reports which require subsequent inquiries. On the
other hand, the MSO undertakes all other investigations ordered by the
public prosecutor’s office for juveniles and the courts as well as all steps in
pursuance of court orders and administrative requests, detentions, appear-
ances, summons, locations, confiscations, etc.
RELATIONS WITH THE PROSECUTOR AND OTHER AGENCIES
The rapport between the police and the prosecutor is very close and since
the reform it has become even closer. Act 5/2000 recommends to the
Ministry of the Interior, at both the national and regional level, that the staff
of the juvenile units of the Judicial Police Brigades be assigned to the juve-
nile sections of the prosecutor’s office. This has already been done, for
instance, in the Catalan regional police where there are two groups assigned
to the prosecutor’s office dealing mainly with investigations following com-
plaints or judicial orders. Under the 2000 reform, juvenile prosecutors lead
the police investigations. However, after the detention and release of a juve-
nile offender investigations can be followed by the police with or without
the request of the prosecutor or the judge11.
Co-ordination between prosecutors and police services is better at the
local level than at the regional level. The 2000 reform introduced the figure
of the regional prosecutor who specialises in juveniles, but the police are
still building bridges with regional prosecutors.
At the local level some positive initiatives have been taken in order to
fight certain types of violence or crime in a more global and effective way
through the creation of specific protocols among the different agencies deal-
ing with the problem, including the prosecutor and the police. In fact, col-
laboration with other agencies through protocols is encouraged in section
30 of the National Police Service’s ‘2001 Provisional Rules on police inter-
vention with juveniles’. For example, in the case of the protocol for domes-
tic violence: ‘... consensual performing of all the agencies: schools, health
services, hospitals, prosecutors, police, judges and so on’. Evaluation of the
protocol outcomes shows an increase in the number of complaints reported
to the police and to the criminal justice system and more convictions result-
ing from co-ordination of the different agencies.
POLICE DISCRETION UNDER THIS SYSTEM
Police services in Spain have a large amount of discretionary power, just as

in many other countries. This is because police activities are not always
11 Section 28 of the ‘Provisional Rules on police intervention with juveniles’ [Normas provi-
sionales sobre tratamiento policial de menores] of the National Police Service, January 2001.
290 Lola Vallés
qualitatively equal. Within the Spanish system police cannot use diversion
formally—only the prosecutor is allowed to do so. Following the law
strictly, police should always report improper behaviour and offences com-
mitted by juveniles. However, they do use diversion informally. It must be
said, though, that the 2000 reform has reduced police discretion to some
extent: it has introduced certain limits to the performance of the police by
regulating in more detail the conditions for the detention of juveniles. In
addition, police services must follow the prosecutor’s orders when they per-
form criminal investigations and are under the juvenile welfare system
when they perform child protection tasks.
In Spain, law regulates police proceedings, as they must be subject to the
rule of law. However, there is a common thought that the police should be
‘softer’ with certain groups, especially those not able to defend themselves
or to attack. This is the case with youngsters and children. This is based on
the assumption that juvenile offenders are not responsible for their acts,
thus they are not guilty. Their offences are seen as the result of the failure
of those institutions in charge of socializing juveniles. Therefore police have
a difficult role when dealing with juveniles. They must react to juveniles’
offences, so they do have to intervene, but at the same time they should try
not to stigmatise juveniles while performing their control function. For
instance, two of the common characteristics of juvenile police units are that
police officers do not wear uniforms and they receive specific training on
skills that encourage juveniles to trust them.
When facing juvenile delinquency the police use even more discretion.
They tend to react only when there is clear evidence of a crime and then
they will apply the least degree of sanction permitted. In fact, when dealing
with juveniles, police services tend to perform in a manner different from
that which the law strictly stipulates. The reason for this adjustment is to
try to avoid the stigmatisation that any criminal justice system intervention
generates. This informal diversion by the police is mainly done in two ways:
(1) Use of conciliation and mediation: a mediation process between the

two parties to avoid a legal proceeding. The aim is to reach an
agreement and avoid a lawsuit and police inquiry.
(2) Diversion to other social control agencies: i.e. diverting police
intervention to another social agency or institution. The aim again
is to avoid the stigmatisation associated with a lawsuit or police
inquiry. For instance, parents or legal guardians assume control
and responsibility for the young offender’s further actions. Another
method of diversion is to refer the case to less stigmatising social
agencies such as education, health or welfare agencies/institutions.
Out of this informal diversion arises the problem that police officers are not
trained to undertake mediation, conciliation or referral to other agencies These
are not strictly legal actions because Spanish law does not regulate them as
police actions. In the event that it becomes regulated by law, training could
then be included in police curricula. In fact, conflict resolution strategies are
already part of the training curricula of some police services in Spain12.
CONCLUSION
As a result of the promulgation of the new law on the juvenile justice sys-
tem in 2000, Spanish police have changed the way they work with juveniles.
The reform is a shift towards treatment ideology which considers that juve-
niles are not responsible for their acts and envisions juvenile crime as a
result of problems in their process of socialisation—so it is in fact a shift
towards a ‘softer’ approach to juvenile delinquency.
The law has introduced a very detailed regulation on police intervention
with juveniles. It lowers the maximum time of detention, introduces the
possibility of claiming habeas corpus, and lowers the age of criminal
responsibility. All in all it limits police intervention and stresses the protec-
tion of the basic rights of juveniles.
In Spain there were already special juvenile police units, but they are now
regulated by law. Members of these units receive special training. The func-
tions of the police under the new system are quite wide as they range from
protecting children at specific risk to detaining juveniles who have commit-
ted a crime. The law reinforces co-ordination between prosecutors and
police services. It appears to be a more effective way of fighting criminality
and reducing victimisation of juveniles.
When dealing with juveniles, police services tend to use more informal
diversion. In Spain this diversion consists mainly of conciliation and medi-
ation, and diversion to other agencies. This still happens even though these
functions are not recognised by law and policemen are not trained to do so.
REFERENCES
Ajuntament de Barcelona (2002) Menors: Protecció i Reforma. (Barcelona;

Guàrdia Urbana de Barcelona).
Antón Barberá, F. and Colás Turégano, A. (2002) Ley reguladora de la
responsabilidad penal del menor (LO 5/2000 de 12 de enero) Aspectos
policiales. In Justicia Penal de Menores y Jóvenes (Análisis sustantivo y
procesal de la nueva regulación). (Valencia, Tirant lo Blanch).
12 For instance, during the Basic Training Course of the Catalan Regional Police-Mossos
d’Esquadra there is a 17 hour course on ‘mediation and communication’. The course aims at
teaching cadets how to use mediation for the alternative resolution of conflicts, how to analyse
conflicts and decide whether mediation is suitable, and techniques of mediation.
292 Lola Vallés
Bueno Arús, F. (1999) El anteproyecto de ley orgánica reguladora de la jus-

ticia de menores elaborado por el Ministerio de Justicia. Harlax 29,
49–61.
Clemente, Miguel (1999) El menor como objeto de las diferentes diligencias
policiales. Harlax 29, 19–33.
Colectivo IOE, Martínez Reguera, E. et al (1989) ¿Tratamiento penal para
menores? (Madrid, Cáritas Española).
Dolz Lago, Manuel-Jesús (2000) La nueva responsabilidad penal del menor
(Comentarios a la Ley Orgánica 5/2000, de 12 de enero). (Valencia,
Ediciones Revista General de Derecho).
Generalitat de Catalunya (2000) El Model de Justícia Juvenil a Catalunya.
(Barcelona, Centre d’Estudis Jurídics i Formació Especialitzada).
Polo Rodríguez, J.J. and Huélamo Buendía, A.J. (2000) La nueva ley penal
del menor. (Madrid, Colex).
Sancha, V. (1999) Los menores infractores ante la ley orgánica reguladora
de la justicia de menores. Harlax 29, 65–81.
Sánchez García de Paz, Isabel (1999) Minoría de edad y derecho penal juve-
nil. Aspectos político criminales. Harlax 29, 37–45.
14
Achieving Positive Results with
Serious Juvenile Offenders in a
Reintegrative Framework: Strategies
Essential for Rehabilitative
Effectiveness with the Intensive
Aftercare Program (IAP) Model
TROY L. ARMSTRONG
INTRODUCTION
D
URING THE 1960 S , the more progressive wing of American juvenile
justice assumed a stance that professional expectations for
improved performance and behavior among youth released into the
community following placement in secure confinement facilities (i.e. refor-
matories, training schools, secure treatment units) were simply not being
met (Abadinsky 1991). In fact, the growing legitimacy of a nascent commu-
nity corrections movement nationwide was being derived in part from the
critical findings of research studies that noted the failure of accepted prac-
tices within youth correctional systems to resolve the legal, social and devel-
opmental problems exhibited by juvenile offenders experiencing extended
periods of confinement. Regarding this failure, Dean-Myrda and Cullen
(1985, 19) observed:
… research on recidivism rates revealed that prisons did little to diminish crimino-
genic predispositions. It was estimated that somewhere between fifty and eighty-
five percent of all children committed to a reformatory eventually returned to
crime after release. (Jensen and Rojek 1980, 50; Horwitz and Wasserman 1977)
Culminating a period of professional discontent and insight about the unac-

ceptably high level of continuing failure of the system to reform delin-
quents, major alterations in the way juvenile offenders were defined and
294 Troy L Armstrong
processed—spurred largely by the emergence of important new ideas about

human development and the negative effects of social isolation—began to
occur in the late 1960s across the country. Underlying these changes were
persistent criticisms of numerous principles and practices that had previ-
ously been highly regarded and viewed as virtually unassailable.
A significant development in this call for reform was the increasingly
active role taken by the federal government in stimulating planned change
in the juvenile justice arena. Particularly critical in these governmental
efforts was the issuance of a major report by the President’s Commission on
Law Enforcement and Administration of Justice (Armstrong and Altschuler
1982a). This policy initiative called for reform in four key areas of juvenile
justice: decriminalization, due process, deinstitutionalization, and diversion
(Blackmore 1980). Within this mandate for change, the primary thrust of
deinstitutionalization/diversion strategies to reverse the excesses of many
years of overreliance upon secure, institutional placement was to promote
the development of coherent systems of community-based alternatives for
juvenile offenders at the state and local levels.
Although emphasis in this movement was initially placed on less severely
delinquent youths, the community-based strategies eventually came to
embrace youthful offenders exhibiting the entire gamut of criminal miscon-
duct. Hence arose the idea for designing and implementing specialized pro-
grams and supervision modalities in the community for high-risk, chronic,
and even violent delinquents (Armstrong and Altschuler 1982b). These
experiments extended to serious juvenile offenders who had required com-
mitment to secure correctional facilities and then needed to be successfully
reintegrated in their home communities. Noteworthy in these earlier efforts
to normalize juvenile parolees in the community was a series of programs
designed and implemented by the California Youth Authority during the
1960s and 1970s (Armstrong 1991a). In spite of some promising results
with normalization and long-term behavioral change (Johnson 1962;
Palmer 1971, 1973, 1974; Pond 1970; Roberts 1970), funding for such
aftercare programs began to disappear as interest in specialized treatment
as a high priority began to wane by the mid-1970s.
Interest in developing strategies for achieving more effective reintegration
did continue to surface sporadically throughout the 1970s and in the early
1980s with the design and testing of various innovative models of juvenile
aftercare and community re-entry. Perhaps most notable among these
efforts was the Violent Juvenile Offender (VJO) initiative, funded by the
Office of Juvenile Justice and Delinquency Prevention (OJJDP) in 1981 for
a three-year demonstration period and tested at four sites nationally
(Boston, Detroit, Memphis, Newark). Underlying the conceptual frame-
work for this project was the assumption that key to effective intervention
with serious, confined juvenile offenders was the utilization of theoreti-
cally-driven steps and procedures to reintegrate them back into their home
Intensive Aftercare Program (IAP) Model 295
communities (Fagan, Rudman and Hartstone 1984). Yet, in spite of

progress made through such experiments attention was increasingly
deflected from treatment-oriented reintegration approaches by a national
acceptance of the precepts and slogans of a burgeoning ‘get tough’ move-
ment that asserted that severely delinquent youth could only be brought
under control through the adoption of harsher policies and practices
(Conrad 1982; Doleschal 1982; Gross 1982; Greenberg 1977; Von Hirsch
1976).
The redirection of resources, restatement of philosophy, and restructur-
ing of programs that marked the decline of community corrections in the
late 1970s was a direct reflection of this emerging ‘get tough’ movement. In
part predicated on the notion that juvenile crime had reached epidemic pro-
portions, ‘get tough’ proponents championed the use of much more strin-
gent, punitive sanctioning approaches to judicial and correctional
intervention characterized by a new set of goals and objectives for the sys-
tem. The agenda for change relied almost exclusively on the increased use
of automatic waiver/transfer of youth to criminal court jurisdiction, a low-
ered age for criminal court jurisdiction, mandatory sentencing, and the
return to a much wider utilization of long-term, secure confinement.
Treatment and rehabilitative strategies were relegated to a very minor role
(Armstrong and Altschuler 1982a).
Perhaps more than anything else, the ‘get tough’ movement riveted the
attention of the juvenile justice community and the general public alike on
the serious, chronic and violent delinquent. Issues of offender accountabil-
ity and community protection came to the fore as strategies were devised
and programs restructured to guarantee the imposition of high levels of
social control over this population, especially when such youngsters were
being maintained in the community.
As with all correctional fads and movements, the ‘get tough’ school
began to show signs of weakening during the latter part of the 1990s and
into the the 21st century. This re-emergence of the value and effectiveness
of community correctional programming for juvenile offenders has been
driven by a variety of factors. For one, costs of confinement in and con-
struction of secure correctional facilities have caused both elected officials
and juvenile professionals to return to the drawing board to explore more
cost-effective ways of sanctioning and supervising juvenile offenders.
Another growing realization is the recognition that incapacitation has done
little to stem rising crime rates, especially serious crimes being perpetrated
by juveniles (Byrne and Kelly 1989; Hagan 1991; National Research
Council 1993, 2001; Shannon et al 1988). The late 1980s and early 1990s
were clearly showing a pattern of greatly increased violence among juvenile
offenders at the same time that juvenile correctional facilities were again
beginning to bulge at the seams. Third has been an acknowledgement by
many in the justice field, as well as by the public at large, that just maybe
some things ‘do work’ in the attempt to rehabilitate juvenile offenders and
adjust them to normal community life. A new rehabilitative literature is
beginning to emerge and is revealing that certain treatment modalities are
demonstrating long-term positive effects with delinquents (Andrews et al
1990; Borum 2003; Gendreau and Ross 1987; Lipsey 1992, 1995, 1999;
Lipsey and Wilson 1998; Lipsey et al 2000; MacKenzie 2000; Palmer 1992,
1994; Sherman et al 1997). As Gies has noted, ‘Despite early skepticism
regarding intervention programs, recent literature reviews and meta-analy-
ses demonstrate that intervention programs can effectively reduce delin-
quency’ (2003, 3).
Interestingly, the renewed interest starting in the mid-1980s in commu-
nity-based intervention strategies both as alternatives to incarceration and
as reintegrative approaches has largely focused upon the problems posed by
the most severely delinquent segment of this nation’s larger juvenile
offender population (Palmer 1991). These developmental efforts and the
particular nature of the reforms can readily be shown to follow both from
the impact of the ‘get tough’ school and from a number of research-based
but widely disseminated insights about the relative role of serious juvenile
offenders within the larger crime patterns of adolescent offenders in the
United States. With regard to the influence of the get-tough school of the
late 1970s and early 1980s, juvenile justice planners and practitioners were
forced to take into consideration in designing and operating new programs
the public demands that serious juvenile offenders be held much more
accountable for their criminal behavior and that relatively high levels of
social control be imposed upon them, especially while being managed in the
community. In fact, much of the interest shown in juvenile restitution and
community service programs throughout the 1980s and beyond can be
readily tied to their ability to satisfy the widespread call for more account-
ability.
The clearest result of targeting severely delinquent youth for intervention
has been the system’s response of launching experimental program initiatives
under the rubric of intensive supervision (Krisberg et al 1991, 1995;
Wiebush 1993). Intensive juvenile aftercare as a coherent programming
approach can be traced to experiences during the past several decades in
adult intensive probation supervision and then subsequently to experiments
with intensive supervision in juvenile probation (Armstrong 1991b). Clearly,
the spread of the juvenile intensive probation supervision movement (JIPS)
throughout the country has had important implications for the design and
operation of juvenile intensive aftercare programs (Clear 1991; Steenson
1986; Wiebush and Hamparian 1991). Although largely grounded in
notions of enhanced surveillance and heightened social control, JIPS has
assumed a number of forms, the majority of which include various combi-
nations of intensified surveillance/monitoring and highly specialized treat-
ment modalities along with supportive service provision. Programs geared
almost totally to strategies of increased control have met with little accept-
ance or success; rehabilitation and treatment persist as central considerations
in interventions with delinquents. From a long-term perspective the feared
decline and demise of the rehabilitative ideal have simply not occurred.
OVERVIEW OF TRANSITIONAL AND AFTERCARE PROGRAMMING

FOR HIGH-RISK JUVENILE OFFENDERS
As indicated above, juvenile justice officials in charge of youth correctional

systems throughout the United States have historically compiled a dismal
record in efforts to reduce the recidivism rates of juvenile offenders re-entering
the community from secure confinement, whether facilities were being
operated at state, county or local levels (Altschuler and Armstrong 1994a).
Within this overall pattern of failure the rate of recidivism appears to be
most pronounced among a subpopulation of incarcerated youth who have
established long records of criminal misconduct usually beginning at an
early age and often being quite serious and violent in nature. Not only do
they exhibit a persistent pattern of intense and severe delinquent activity, but
also large numbers of youth in this extremely high-risk group are plagued by
a multitude of other problems. Often they experience a variety of emotional
and interpersonal problems, sometimes accompanied by physical health
problems; most come out of family settings characterized by high levels of
violence, chaos, and dysfunction; many are engaged in excessive alcohol and
drug consumption and abuse; and a substantial proportion have become
chronically truant and have dropped out of school altogether (Hamparian et al
1978; Hartstone and Hansen 1984; Elliot et al 1989; Tolan and Gorman-
Smith 1998; McCord et al 2001). It is precisely this group of juvenile offend-
ers who populate many juvenile facilities and pose the greatest challenge for
the delivery of effective aftercare services and supervision.
One of the most common problems besetting the aftercare segment of
youth corrections has been the difficulty of supervising the offender’s tran-
sition from the closely monitored and highly regimented life in a secure
correctional facility to the relatively unstructured and often tempting life in
the community (Altschuler and Armstrong 1994b, 1994c, 1995). The
inability of correctional personnel (i.e. institutional staff and field workers)
to provide continuity of service and supervision from facility confinement
to community living has long plagued efforts to achieve conditions of
stability and normalization. Lack of co-ordination and partnership among
correctional facilities, parole authorities, and community social institutions
such as schools, community organizations, the family, mental health
agencies, drug and alcohol treatment centers, employment and training
programs, churches, business associations, employers and the like, have
been a grave impediment to the development of effective aftercare programs.
The recognition of the multi-faceted needs and problems of youth in correc-

tional programs should lead us to realize more than ever that aftercare field
staff and community social institutions must be directly involved with cor-
rectional facility staff. The key challenge is how to create and bolster these
partnerships and then to maintain and institutionalize them.
Recommendations for improved communication, shared decision making,
co-ordinated planning and clear lines of authority are certainly not new; they
have been made numerous times. Unfortunately, however, these recommen-
dations have met with only a modicum of success (Nelson et al 1978). Much
of the problem is that because of funding limitations, bureaucratic and pro-
fessional intransigence, disputes over jurisdictional authority, understaffing,
inefficient deployment of existing staff, community fears and resistance, and
inadequate or nonexistent community resources, juvenile parole agencies,
correctional facilitators and community-based social institutions have been
unable to unwilling to enter into active, working partnerships.
In sum, the ability to reduce failure in the programming area of commu-
nity re-entry necessitates addressing shortcomings in the structure and col-
lective mission of correctional/parole/community-based resource and
behavioral management systems. This need is particularly urgent in the case
of multi-problem, serious juvenile offenders who are re-entering the com-
munity and display extremely high rates of reoffending. Intensive aftercare
programs for this population must be designed, implemented and main-
tained with a full understanding of the potential pitfalls and a sense of how
continuous case management, intensified levels of supervision and surveil-
lance, and improved service provision, evidence-based treatment and youth
advocacy can be effectively applied.
THE CONCEPT AND ROLE OF AFTERCARE IN JUVENILE JUSTICE
In commenting upon issues tied to defining the aftercare function suitably,

Drs. David Altschuler and Troy Armstrong, Co-Principal Investigators on
the OJJDP-funded ‘Intensive Aftercare Program’ (IAP), suggested a defini-
tional frame of reference with regard to the concept of aftercare that was
marked by a degree of specificity necessary for noting fundamental struc-
tural characteristics, underlying operational requirements, and essential
programming dimensions. The intent of this conceptual formulation to
broaden how we as professionals in the field of juvenile justice think about
aftercare reflects more than a decade and a half of research and program
development in this arena nationwide on their parts. They state:
Aftercare … refers specifically to those activities and tasks that 1) prepare out-of-
home placed juveniles for reentry into the specific communities to which they will
return, 2) established the necessary arrangements and linkages with the full range
of public and private sector organizations and individuals in the community that
can address known risk and protective factors, and 3) ensure the delivery of pre-
scribed services and supervision in the community. As this definition makes clear,
both the correctional facility and the community have a critical role to play in
aftercare. This definition stands in marked contrast to the customary conception
and practice of aftercare historically in America where the focus is primarily—if
not exclusively—on supervision in the community, with little or no focus on what
takes place before release back into the community (Altschuler, Armstrong and
MacKenzie 1999). Moreover, all too commonly, post-release aftercare falls far
short on service delivery and treatment, leaving aftercare as little more than sur-
veillance and monitoring in the community. (Altschuler and Armstrong 2001, 2–3)
The central concern explored in this definitional framework is that aftercare
practice within the juvenile justice system has been largely confined to those activ-
ities in working with youth in the community once they had been released from
confinement. Usually, little was done to pave the way for a more carefully
designed reintegrative process in terms of pre-release planning and collaborative
decision making by institutional and field staff as the youth transitioned from
confinement. There has been a growing recognition among practitioners working
with issues of re-entry that this approach to reintegration, often described as
‘falling off the table,’ tends to be fraught with a variety of inherent problems, fre-
quently resulting in high rates of failure and recidivism. Yet, for the most part
innovative strategies to make the step-down phase of the institution/community
continuum smoother and less disjointed had not been developed and tested.
Obviously, changes are now beginning to occur both in the way aftercare is
defined and in how programming efforts are being configured.
PROBLEMS AND IMPEDIMENTS PLAGUING THE DESIGN

AND DELIVERY OF AFTERCARE SERVICES
It has repeatedly been stated over the past two decades that greater empha-
sis should be placed upon transitional and aftercare services for confined
juvenile offenders, but progress in this area has been slow for a number of
reasons. A matter of particular irony is that although this population of
serious and chronic delinquents, given their high-risk behaviors and
propensity for repeated illegal acts, should supposedly be receiving the ben-
eficial, cumulative effects of residential treatment and community-based
follow-up, the reality is one where this programming arena has been given,
at best, short shrift and, at worst, has simply been overlooked or ignored.
Programs designed to respond to the needs and difficulties of youth
re-entering the community have, historically, been assigned low priority on
a regular basis in the competition for scarce resources.
Another major concern has been the ongoing inability of staff (located
both in facilities and in the community) to provide continuity of service
delivery and supervision from the point of confinement to reinsertion in the
community. The issue of boundary has long hampered transition and result-
ingly plagued efforts to achieve successful long-term adjustment for juvenile
offenders. The lack of communication, co-ordination and collaboration

among professionals representing the wide array of involved agencies rang-
ing across residential facilities (both public and private) and community-
based social institutions such as schools, neighborhood organizations, the
family, mental health agencies, drug and alcohol treatment centers, employ-
ment and training programs, churches, business associations, and individ-
ual employers have been a persistent impediment to the development of
appropriate policies and procedures for assigning and monitoring delivery
services in a timely and efficient manner.
Any programming framework designed to achieve successful reintegra-
tion must devise strategies for overcoming such problems of linkage and
connectedness that impede collaborative interaction across segmented sys-
tems. Two other ongoing problems identified as major obstacles to behav-
ioral normalization and emerging from justice practice are as follows: 1) the
experiences and interventions during residential confinement do not ade-
quately prepare youth for the vicissitudes of daily life upon community
re-entry, and 2) those valuable lessons learned and skills acquired while in
confinement are not being sufficiently built upon and reinforced in the com-
munity following release. As Altschuler and Armstrong have noted, the key
service areas around which both residential facilities and community-based
providers need to organize their respective efforts in tandem are family,
peers, school, work and substance abuse (1999, 6). It is these areas, when
plagued with problems, that have been shown to be most predictive of reof-
fending among delinquent youth.
THE IAP INITIATIVE
Within the past fifteen years, as the field has experienced a resurgence of
experimentation with innovative community corrections programs, one
area of particular interest has been initiatives to develop more effective
transitional and aftercare services for high risk youth. Notable among them
have been several well documented projects including the Skillman
Foundation’s Intensive Aftercare Project, the State of Maryland’s Juvenile
Drug Treatment Program, the Michigan Nokomis Challenge Program, the
Philadelphia Intensive Probation Aftercare Project, and the OJJDP-funded
Intensive Aftercare Programs (see Altschuler et al 1999 for a description of
these initiatives). It should be noted that much of this recent experimenta-
tion with innovative juvenile aftercare programming has focused on ways
to develop more effective ‘intensive’ approaches that combine an appropri-
ate mix of increased social control and intensified service delivery/treat-
ment. This resurgence of interest in community corrections has dovetailed
with a renewed confidence in the efficacy of treatment (Palmer 1992; Lipsey
and Wilson 1998; MacKenzie 2000).
Current insights about designing and implementing intensive aftercare

programs are grounded not only in previous experiments conducted on
intensive supervision models in the adult system and juvenile probation
but also draw inspiration from the earlier movement to expand and
improve upon non-custodial correctional alternatives that were preva-
lent during the 1960s and 1970s (Armstrong and Altschuler 1982b).
Several of the approaches and strategies that proved useful in diverting
offenders from secure confinement are, in fact, prime candidates for
transferability to highly structured and programmatically rich aftercare
settings (Altschuler and Armstrong 1990). Key among these innovations
were:
(1) Involvement of private agencies and citizens as well as public agencies in

the community corrections process through the use of both volunteer
and paraprofessionals and through purchase of service agreements,
(2) Adoption of a new stance by the community corrections agency that
stresses resource brokerage and advocacy rather than direct delivery
of all services to clients, and
(3) A case management approach that stresses continuity of service
delivery and ongoing communication/collective decision making
among all involved parties.
These practices, which undergirded much of professional activity during

the height of an earlier community connections movement, have more
recently been combined with newly formulated strategies and procedures
for the supervision and treatment of high-risk offenders returning to the
community.
The Office of Juvenile Justice and Delinquency Prevention, U.S.
Department of Justice, announced in July 1987 a competitive bidding pro-
cedure to conduct a research and development project, Intensive Aftercare
Programs (IAP). The IAP project was designed to assess current knowledge
and programs in the field of juvenile aftercare, to develop a promising pro-
gram model, to disseminate information about the proposed model, and to
test this model in selected jurisdictions. The Johns Hopkins University’s
Institute for Policy Studies, in collaboration with California State University
at Sacramento’s Division of Criminal Justice, was funded in the spring of
1988 to conduct this multistage project. The demonstration phase of IAP
was concluded in June 2000, and subsequently steps have been taken to
advance further the dissemination of information about the findings and
experiences of this project, as well as to provide varying levels of technical
assistance. A key direction that has emerged for follow-up activities to pro-
mote the IAP approach has been the development of an aftercare center
with a clearinghouse capacity for responding to requests nationwide
(Altschuler and Armstrong 2001).
The IAP model that resulted from the research and development process
and was tested in four pilot sites nationwide represents a carefully designed
attempt to combine in a coherent fashion the most innovative policies and
practices identified nationally to facilitate effective transitioning of high-
risk adjudicated offenders back into the community and to offer a reason-
able chance of long term normalization of behavior and reduced recidivism
(Altschuler and Armstrong 1996). The model is grounded in a set of
assumptions about the need to specify clearly the range of factors that gen-
erate and are highly correlated with serious delinquency. This identification
process logically suggests promising strategies of intervention that are the-
oretically linked with these factors. Consequently, the model is theory
driven and provides a framework of differential responses designed to meet
the problems and needs of individual juvenile offenders. It is our impression
that when the basic conceptual or theoretical principles of a program model
either have not been stated or are ambiguously stated, it is difficult if not
impossible for staff, program participants, or any other observers to under-
stand with any degree of clarity what practices, services and procedures
should be pursued and why, how they should be conducted and when, with
which particular youth, and under what circumstances.
The design of the model was driven by a growing recognition arising
largely from the assessment phase of the research and development process
that a small set of goals must be incorporated if reintegration was to be suc-
cessful. In the broadest sense, the implementation and management of effec-
tive aftercare services depends upon operationalizing programmatically
four central goals. They are:
(1) Defining the overall aftercare function in a fashion that guarantees

the inclusion of staff and interlocking programs across the entire
continuum from the point of judicial commitment and residential
placement to the termination of community supervision;
(2) Designing the network of community-based service provision in a way
to respond comprehensively to the problems and needs of chronic,
multi-problem delinquents;
(3) Devising a framework for case management thateinsures the continuity
of supervision (surveillance and social control) and service delivery
(treatment and competency development), which matches clients scien-
tifically with appropriate interventions, and that brings the most objec-
tive procedures to inform decision making in the areas of risk and need;
(4) Focusing upon collaborative, inter-agency approaches and solutions
to the challenge of supervision and service provision for a high-risk,
high-need population.
In light of these requirements, a model (see Figure 14.1) was configured to

span four distinct but linked conceptual levels extending from the most
abstract and theoretical to program operations and service delivery.
Figure 14.1: Intervention model for juvenile intensive aftercare.
In terms of descending levels of abstraction this framework (see Table 14.1)

consisted of:
(1) An integration of social control, strain and social learning theories,

(2) Underlying principles of programmatic action,
(3) Program elements, and
(4) Service delivery areas.
At the level of integrating elements of various grand theories the design of

co-relational pathways was consistent with a number of previously applied
research initiatives to develop an intervention framework for serious juvenile
offenders (Elliot et al 1985; Fagan and Jones 1984; Greenwood and Zimring
1985; Weiss and Hawkins 1981). The strength of these formulations has been
that each of the three principal theories contributes a particular perspective
and mode of reasoning, thereby deepening our understanding of the various
causal and behavior-change processes involved. The proposed theoretically
integrated framework for IAP postulates that serious delinquency, in general,
and recidivism, in particular, are substantially related to: 1) weak controls
produced by inadequate socialization, social disorganization and strain;
2) strain, which can have a direct effect on delinquency quite independent of
Table 14.1: The four conceptual levels that configure the IAP model
1. Integrated Theory—A Synthesis of:

• Strain Theory
• Social Learning Theory
• Social Control Theory
2. Underlying Principles of Programmatic Action

• Progressively Increasing Responsibility and Freedom
• Facilitating Client-Community Interaction and Involvement
• Working with both Offender and Targeted Community Support Systems
• Developing New Resources, Supports, and Opportunities
• Monitoring and Testing
3. Program Elements
• Organization and Structural Characteristics
• Overarching Case Management
• Assessment and Classification for Client Selection
• Individual Case Planning with a Family and Community Perspective
• Surveillance/Service Mix
• Incentives and Graduated Consequences
• Service Brokerage and Linkage with Social Networks
• Management Information and Program Evaluation
4. Service Areas
• Special Needs and Special Populations
• Education and Schooling
• Vocational Training, Job Readiness, and Placement
• Living Arrangements
• Social Skills
• Leisure and Recreation
• Client-Centered Counseling (Individual and Group)
• Family Work and Intervention
• Health
• Special Technology
weak controls and which is also produced by social disorganization; and

3) peer group influences, which serve as an intervening social force between
youth with weak bonds and/or strain on the one hand and delinquent
behavior on the other. The pathways by which these social forces and
circumstances produce delinquency or recidivism are multiple, thereby
requiring the availability of multi-modal interventions and treatment that
can be tailored and targeted for individual problems and needs.
At the conceptual level of underlying principles of programmatic action,
one sees a very distinctive domain within the IAP model, namely, the
reintegrative demands for responding to circumstances of removal and iso-

lation from community and the ensuing complexity of re-entry. Here, the
model offers a very logical and structured guideline to overcome this con-
dition of separation from the community. A focus is brought to bear upon
the numerous issues and impediments arising out of the largely discon-
nected and fragmented movement of juvenile offenders from court disposi-
tions to out-of-home custodial placement, to community step-down and
aftercare supervision, and finally to discharge from the juvenile justice sys-
tem. These principles are:
(1) Preparing youth for progressively increased responsibility and free-

dom in the community;
(2) Facilitating youth-community interaction and involvement;
(3) Working with both the offender and targeted community support
systems (e.g. families, peers, schools, employers) on qualities needed
for constructive interaction and the youth’s successful community
adjustment;
(4) Developing new resources and supports where needed; and
(5) Monitoring and testing the youth and community on their ability to
deal with each other productively.
The five principles collectively establish a set of operational objectives and

a reintegrative mission upon which the model rests (Altschuler and
Armstrong 1991). In addition, these principles highlight the fact that inter-
vening with confined youth for purposes of community re-entry requires
not merely intensive supervision and service provision following release,
but also planning and program activities that directly prepare these youth
for what they will confront in the community. These pre-release activities,
linked directly to street readiness, are followed by a carefully structured re-
entry process keyed to a close monitoring of performance and progress by
individual youth, and a close collaboration with other support and moni-
toring systems.
At the next conceptual level in the model, program elements, three crit-
ical areas have been identified as essential for developing an IAP imple-
mentation plan suitable for different jurisdictions, many of which face
distinctly different challenges, barriers, and opportunities. They are: 1)
organizational and structural characteristics, 2) case management, and
3) management information and program evaluation. Elements 1 and 3,
organizational factors and the external environment, management infor-
mation and evaluation, offer the means by which the overarching case
management implementation and operations plan: 1) is developed to
accommodate different settings, circumstances and contexts related to
the targeted offenders, the structure of the juvenile justice system, nature
of the juvenile code, and specific characteristics of the home community,
and 2) can be monitored for the fidelity of implementation and program

outcomes. However, at the heart of the program elements resides case man-
agement, truly the operational centerpiece of the IAP model. This is the
operational centerpiece of any well-designed aftercare system since with-
out its presence any attempt to identify, co-ordinate, monitor and deliver
appropriate services would be futile. The exact configuration of required
components specified as essential for aftercare case management emerged
from a very extensive review of case management approaches being uti-
lized nationwide in various jurisdictions to manage the behavior and
deliver services to high-risk, multi-problem youth transitioning from
out-of-home placements back into the community. The five discrete
components we identified as essential are:
(1) Assessment, classification and client selection,

(2) Individualized case planning,
(3) Incentives and graduated consequences,
(4) Surveillance/service mix, and
(5) Brokerage and linkage to community resources.
Each of the five plays a role in determining how clients are targeted for
particular levels and types of supervision, how clients are matched with
appropriate resources and services, how clients can be tracked through the
system without falling through the cracks, and how specific techniques can
aid in the provision of supportive activities and sanctioning measures
necessary for client supervision in the community.
At the most concrete and tangible level of the IAP model are the ten serv-
ice areas identified as central to the comprehensive provision of supportive
activities for juvenile aftercare. They are: 1) special needs and special pop-
ulations, 2) education and school, 3) vocational training, job readiness and
placement, 4) living arrangements, 5) social skills, 6) leisure and recre-
ation, 7) client-centered counseling (individual and group), 8) family work
and intervention, 9) health, and 10) surveillance and monitoring technol-
ogy. While it is highly unlikely that any one program or participating
provider would or even could provide this array of services, a strong argu-
ment can be made that a comprehensive system of aftercare offering an
adequate continuum of interventions in a given jurisdiction must be
equipped in some fashion to deliver this set of services to high-risk, multi-
problem youth on aftercare status. These are the key service parameters
that have been identified as relevant to juvenile populations transitioning
from confinement. For a detailed discussion of each area, see Altschuler
and Armstrong (1990).
A final but absolutely critical dimension of the IAP model’s design and
implementation concerns a conceptualization of the system domain for
applying this framework. Here, the continuum for aftercare intervention is
best viewed as consisting of three distinct, yet overlapping segments (See

Figure 14.2). They are:
(1) Pre-release and preparatory planning during confinement,

(2) Structural transition requiring the participation of facility and
community-based aftercare staff prior to and following community
re-entry, and
(3) Long term, normalizing activities that ensure adequate service delivery
and the necessary level of social control during the community phase.
This tripartite conceptualization represents a structural response to the sys-

temic dilemma of being unable to smoothly transition youth with any major
degree of success across the institution/community boundary. The review
and analysis of promising juvenile aftercare approaches nationwide by the
IAP staff, as well as the result of model building in the IAP project, have indi-
cated the value of dividing the critical points of processing and movement
across the continuum into three overlapping phases (Altschuler and
Armstrong 1994a, 1994b). Within each of the three phases a set of aftercare-
related activities should be initiated and then linked to activities to be con-
ducted in subsequent phases (see Figure 14.3). Clearly, the first two of these
three phases (i.e. pre-release planning and structural re-entry) are related
programmatically to overcoming the difficulties posed by the facility/com-
munity boundary. It should be noted that these two phases are not mutually
exclusive since their activities, procedures and goals are often intertwined.
Pre-release planning lends itself logically to the consideration of a series
of activities that gradually lead to the full-time return of the confined
youth to the community. This planning and treatment phase eventually
merges into that part of the reintegrative process referred to as structured
Figure 14.2: Reintegrative continuum.

Figure 14.3: The structural configuration of and associated activities for juvenile
aftercare across the institutional-community programming continuum.
transitioning. This phase, which includes both institutional and commu-

nity segments (see Figure 14.4), involves providing well-planned and
highly structured situations and opportunities through which gradual,
progressively increased exploration and contact by the juvenile offender
with the community can occur. A number of activities initiated in the
facility during the institutional segment of transition can be used to
launch the probing and testing of a youth’s readiness and suitability for
return to the community. These usually entail initial ventures into the
community such as furloughs, home visits, and brief excursions to make
contact with parents or other placement options, educational providers
and potential employees. Once a decision is made to begin formal re-entry
and to terminate residential placement in the facility, considerable atten-
tion is given to the use of various ‘step-down’ procedures during the com-
munity segment of transition prior to final community placement. These
steps focus on relatively brief reintegrative procedures such as residential
settings that include transitional cottages (often located close to the facil-
ity itself), halfway houses, short-term group homes, and other prepara-
tory program placements preceding long-term independent living
arrangements. Accompanying these procedures for step-down program-
ming is the need to activate as quickly as possible those linkages with
community services and resources that have already been identified. There
can be no extended waiting period for provision of services following
community re-entry.
Figure 14.4: Segmentation of transitional phase.
From a supervision perspective, the period of structured transitioning

usually should require a higher level of both face-to-face and telephone
contact between the aftercare worker and the youth, as well as with other
significant individuals, a more stringent use of curfew, the possible appli-
cation of tracking services, the temporary use of electronic monitoring
devices, and random use of drug and alcohol testing. All of these meas-
ures should, of course, be conditioned and influenced by the assessed cir-
cumstances of the youth at the point of release. In addition, this initial
level of more intense social control and surveillance should hopefully be
reduced as the youth moves through the aftercare experience, exhibiting
improved performance and justifying increased freedom of action.
Gradual decompression is a critical aspect of reintegration in the IAP
model.
TESTING THE IAP MODEL AT MULTIPLE SITES
Challenges for implementation
During the research and development process four states were selected to test
the model from a larger group of eight states that had initially participated in
a series of three-day training conferences on IAP. These four states (Colorado,
Nevada, New Jersey, and Virginia) pursued a variety of preliminary tasks

involving policy reformulation and fine-tuning essential features and
components of their existing aftercare systems in preparation for moving
forward to full operational status with the IAP Model. The major chal-
lenge faced across all four sites in the early stages of implementation was
the complexity of adapting the generic IAP Model to the specific prob-
lems, needs and circumstances of the individual jurisdictions (Altschuler
and Armstrong 1996). By design the model allows for a considerable
degree of flexibility as long as implementation is consistent with basic
underlying principles and program components. This strategy in design-
ing the model anticipated the fact that program settings for juvenile after-
care are characterized by a diverse set of social, economic, political and
organizational environments, often requiring considerable ingenuity in
tailoring any conceptual model to the demands and constraints of spe-
cific concrete situations.
From an implementation perspective, pivotal to the success of this proj-
ect at the individual demonstration sites has been the availability of content
experts including the two co-principal investigators to provide extensive,
ongoing technical assistance to guarantee that essential theoretical princi-
ples, program components, as well as required service provider agencies,
were fully and precisely incorporated into the operational aspects of these
pilot programs. Particular emphasis was placed on seeing that the five over-
arching case management components were applied and utilized in a way
consistent with the intentions and stated requirements of the original
model, generically defined. Also critical were key thematic features such as
interagency collaboration, closer connections and open communication
between institution and community-based aftercare, and strategies to facil-
itate backing representatives from community agencies and service
providers, as well as significant others (family members and close friends),
into the institution to interact with youth and staff to help achieve specified
therapeutic outcomes.
Table 14.2 provides a brief summary of both positive and negative fac-
tors at the pilot sites which affected achieving a wide range of implemen-
tation goals. Only through a careful consideration of such factors can
program planners and administrators hope to achieve full implementa-
tion of this complexly configured model. Perhaps the most objective
comments and observations about implementation can be found in the
process evaluation conducted by the national evaluation team from
NCCD (Wiebush et al 2000). In discussing the degree of success achieved
at the pilot sites in fully implementing the model, NCCD cited common
programming factors that aided the implementation process. They were
the following:
• high-risk, program-eligible youth are identified through the use of risk

instruments that are site specific and empirically based,
• both institutional and aftercare case management are provided by staff
who handle only IAP cases in small caseloads (i.e. 15 to 20 youth); in
the community, parole officers work jointly with staff referred to as
parole aides, field agents, or ‘trackers’,
• there is substantial co-ordination and continuity in case planning and
case management across the institutional and aftercare phases; this
co-ordination is facilitated by a team approach.
• team involvement and more frequent interaction between institutional
and parole staff have helped overcome traditional turf and communi-
cations barriers,
• planning for aftercare begins shortly after the youth’s institutional
placement and is finalized at least 30 days prior to release into the
community,
• there are formal structures to facilitate the transition from institution
to aftercare, including the use of transitional facilities, furlough with
intensive monitoring, or service delivery by community treatment
providers that begins during the institutional phase and continues into
the community,
• special services designed specifically for IAP youth have been devel-
oped and implemented in both the institutional and aftercare
phases,
• aftercare services represent a mix of control measures and treatment
interventions, and
• positive incentives and graduated sanction systems have been
developed for the institutional and parole phases. (Wiebush et al
2000)
One should note that all of these factors are very consistent with essential
requirements of the IAP model and represent ‘doing business’ in a way that
is quite different from traditional, standard aftercare practice.
IAP demonstration sites
Within the IAP initiative, three states (Colorado, Nevada, Virginia) remained
active in testing the model across the five years of pilot programming. Factors
largely extraneous to implementing the model itself forced the state of New
Jersey to discontinue the IAP test after two and a half years. While adhering
closely to the fundamental design features and procedures that define the IAP
framework, the three remaining states demonstrated considerable flexibility
Table 14.2: Factors affecting implementation
Positive Facilitators
• Previous well-established history of community, multi-agency collaborations for
troubled youth where clear guidelines and procedures and guidelines have been
identified and followed.
• The presence of scientifically valid assessment tools, both in the area of risk and
need, to help match offenders with appropriate levels of supervision and relevant
services.
• The availability of knowledgeable experts who can regularly provide technical
assistance and training in the enhancement, fine-tuning and refinement of after-
care programs.
• Frequent interaction between institutional and parole staff to help overcome diverg-
ing interests and perceptions of relevant interventions.
• The presence or capacity to develop formal program structures and/or procedures
to facilitate the transition from institution to aftercare.
• A jurisdictional history of contracting and brokerage for specialized services from
various vendors in the community.
Impediments
• Difficulty of parole/aftercare line staff in adjusting to changing supervisory expec-
tations and revisions in job description and responsibilities as aftercare evolves
away from traditional casework practice.
• The fact of substantial physical distance between the home community of con-
fined offenders and the institutions where they are being housed.
• The resistance of grassroots agencies and groups to embrace and provide oppor-
tunities for youth who have been identified as chronic, serious juvenile offenders
and have been incarcerated due to the threat they pose to the community.
• The resistance of families—essential players in the intervention process—to
agree to participate fully and openly in treatment and counseling along with
their children.
• The inability to provide a condition of short-term ‘lock-up’ as the most stringent
measure in a graduated sanctioning framework.
• An approach to intensive supervision that relies almost exclusively upon surveil-
lance and social control techniques.
• A lack of creative approaches to work with older adolescent offenders on after-
care caseloads (generally tied to tendency to be inflexible in managing this popu-
lation).
• Inability to find a common meeting ground, programmatically and philosophi-
cally, when working with other large and significant organizational entities in the
community such as public schools and mental health.
and ingenuity in adapting the generic model to the specific circumstances and
needs of their jurisdictions. The creativity revealed in these variations of the
model served as a rich source of information and insight into the numerous
ways the primary implementation goals of the IAP project could be achieved.
Colorado
The Colorado IAP project was operated by the State Division of Youth
Services (DYS), Department of Institutions. The catchment area for eligible
youth in confinement was comprised of parts of Jefferson, Arapahoe and
Denver counties, including greater metropolitan Denver. The designated
youth correctional facility for this project was Lookout Mountain Youth
Services Center (LMYSC) and was located only 18 miles from downtown
Denver, beneficial for close proximity to juvenile offenders’ home commu-
nities. LMYSC was the state’s most secure facility, housing the most
severely delinquent youth in the DYS system. Project design required that
all IAP participants be housed in a single cottage on the grounds of
LMYSC.
Decision making about matching services with offenders and determin-
ing levels of supervision benefited from the availability of a battery of
comprehensive assessment tools including the Youth Level of Service
Inventory, the Adolescent Living Independently Via Education and
Employment instrument, and a variety of privately provided tools
focusing upon the assessment of family, vocation, and drug/alcohol prob-
lems and needs. These instruments supplemented the standard set of
educational and psychological tools, completing other case file data
already gathered to develop a youth’s social, legal, medical, and person-
ality profile. Within 60 days of confinement, a discrete case plan
that established goals and procedures for successful community reinte-
gration was developed. This master plan established guidelines for
both institutionally based treatment and follow-up activities in the
community.
To ensure adequate levels of supervision and service delivery, an IAP
client manager (a DYS employee) provided oversight for each client
from the point of institutional referral through transition and step-down
into the community and throughout follow-up and eventual discharge.
Specific standards for client management included monthly face-to-face
contact with the youth during confinement and weekly contact that
began 60 days prior to release and continued throughout community
placement. A relatively intense level of contact was also maintained with
ancillary individuals and agencies in the community including family
members, school officials, employers and other involved parties.
Caseload size was capped at 18 cases with a maximum of 6 institutional
and 12 community clients.
Client managers assumed primary responsibility for all community con-
tacts, but various service providers aided in the supervision process.
Trackers employed by private providers were used extensively for daily
face-to-face contacts. They were trained to make random spot checks, to
monitor daily schedules and to employ electronic surveillance technology
(following discussion with and approval by case managers). The majority

of tracker contacts occurred outside normal working hours.
Each service provider developed an individualized treatment plan for
referred youth, establishing goals and time frames for treatment consistent
with the directives of the master case plan. Co-ordination and monitoring
of these services were handled by the client managers through a brokerage
model for contracted treatment and resource provision. The shaping of
client behavior was greatly influenced through a graduated response frame-
work in which both positive incentives and consequences/sanctions were
utilized.
Nevada
The Nevada IAP project was operated by the State Division of Youth
Corrections’ Youth Parole Bureau. Clark County (Las Vegas), which had
the greatest concentration of serious juvenile offenders in state confine-
ment, was selected as the IAP pilot. The correctional facility identified
for participation in the project was Caliente Youth Center, located
approximately 150 miles from Las Vegas. This geographical factor of
distances presented a substantial challenge in implementing the IAP
Model.
Within the Caliente Youth Center, particular emphasis was placed on the
special pre-release curriculum taught during the month prior to re-entry
into the community. The curriculum focused major attention upon social
skills training and issues related to street readiness. An aftercare worker (a
parole agent) from Las Vegas resided and worked in the Caliente facility
and in that role served as an ongoing liaison between the institution and
community, ensuring regular, sustained contact and communication. All
IAP youth returning to the Las Vegas area were required as part of transi-
tion to step-down into a highly structured and intensive day treatment pro-
gram, the Center for Independent Living. Within this transitional setting
existed the option of short-term residential placement for youth who were
simply not prepared to return immediately to their homes for any one of a
number of reasons. As a collaborative gesture, the Clark County School
District employed an educational liaison specialist who spent considerable
time at the institution and had primary responsibility for reintegrating IAP
youth into public schools. Unfortunately, this strategy only achieved mixed
results since retention proved to be a much greater obstacle than simply the
act of enrolment.
The community supervision component relied on a team approach in
which three parole officers assigned to the IAP project were collectively
responsible for supervising 45 IAP parolees. This approach afforded
24-hour coverage in the community when required and facilitated a quick
response when problems arose. Each officer managed a small caseload
individually but contributed specialized expertise to the larger group of

clients. Each officer had been encouraged to develop individualized expertise
in areas such as substance abuse treatment, family therapy techniques,
vocational education and training techniques, and job development and
placement skills. These officers also traveled several times per month to
Caliente to work with staff and IAP youth.
Additional personnel augmented the IAP supervision team. Two com-
munity outreach trackers provided expanded hours of supervision dur-
ing evenings and weekends. Outreach workers blended surveillance
with service provision that included life skills training and monitored
recreation.
Virginia
The Virginia IAP project, commonly referred to as IPP (Intensive Parole

Program), was designed to intervene and provide structured transition
and community follow-up for serious, chronic juvenile offenders who had
been committed to the Beaumont Juvenile Correctional Center by the
Norfolk Juvenile and Domestic Relations Court. The Norfolk Court
Service Unit appointed two senior parole counselors who supervised all
IPP participants and co-ordinated the delivery of family services. These
counselors visited confined youth at Beaumont at least once a month.
Upon release participants were contacted on a face-to-face basis at least
three times a week.
The parole counselors in this project managed caseloads with an aver-
age of 15 clients. They held weekly family meetings; conducted unan-
nounced spot checks at school, home, and place of employment; continued
the life skills curriculum that had been initiated in the institution; and
co-ordinated other group activities involving participants and their fami-
lies. These parole counselors also worked closely with the Norfolk
School’s Transition Specialist to address educational needs. A paraprofes-
sional, serving as a parole aide, assisted with monitoring, transportation
and other functions related to community supervision. Every 30 days IAP
youth on parole status were required to appear in court for a judicial
review, during which the counselor updated the court on the participant’s
progress.
As was the case with the Nevada pilot program where institution and
community were at a considerable distance from each other, a similar situ-
ation existed in Virginia regarding the respective locations of the Beaumont
facility and the city of Norfolk. A comparable strategy was adapted here to
help overcome difficulties posed by the considerable distance separating the
institution and the reentry community. A parole staff member was assigned
to work exclusively in the institution with IAP youth and serve as liaison
for them as they returned to the community.
Other examples of IAP implementation
The national attention that was given to the IAP Model during the formal
demonstration period at the pilot sites resulted in a number of other juris-
dictions across the U.S.A. beginning to experiment with variations of this
basic framework in the mid-to-late 1990s. These sites have contributed sub-
stantially to the emerging knowledge base about issues in the design, imple-
mentation, and operation of intensive aftercare. Projects that were
particularly valuable in providing insight were 1) the Network Aftercare
System (NAS) in Mobile, Alabama; 2) the Intensive Parole Program (IPP)
that was instituted throughout the state of Washington; 3) the Minority
Youth Transition Program with the Oregon Youth Authority; 4) the
Hennepin County Home School Intensive Aftercare Project in Minnesota;
and 5) a number of statewide youth correctional system projects including
the states of Alaska, Florida, Kentucky, New York, South Carolina, and
South Dakota. Experimental or quasi-experimental design outcome evalua-
tions have been conducted on a number of these projects.
At present, the most ambitious national juvenile re-entry/aftercare proj-
ect grounded in the IAP design is the Targeted Re-entry Initiative. Managed
by the Boys and Girls Clubs of America, the project has been funded by the
Office of Justice Programs, U.S. Department of Justice, as a three-year
demonstration at a number of pilot sites. Primary attention is being focused
upon four intensive sites where a quasi-experimental design evaluation is
being conducted by a research team from Indiana University, Indianapolis.
A key element in this elaboration of the IAP Model is the introduction of a
Boys and Girls Club providing recreational and other programming activi-
ties inside the participating juvenile correctional facility at each site (Barton
et al 2004). In addition, major emphasis has been placed upon superimpos-
ing a strength-based, positive youth development component on more con-
ventional correctional interventions that have traditionally targeted
problems and deficits being exhibited by offenders in confinement
(Armstrong 2004; Barton 2004).
Another widely discussed juvenile aftercare program that is currently
in operation and builds upon IAP design features is the Minority Youth
Transition Program (MYTP) housed within the state of Oregon Youth
Authority. It represents an effort to adapt the IAP Model specifically to the
needs and circumstances of African American youth in confinement as they
transition into their home communities. This programming experiment has
already been described in considerable detail in another publication
(Armstrong and Jackson 2005).
The most serious manifestation of minority overrepresentation in the U.S.
juvenile justice system can be found at the point of secure confinement,
where the highest level of overrepresentation occurs. One strategic
approach to reducing the problem that has received increasing attention

over recent years involves programming steps being taken to reduce the
number of minority youth returning to confinement as a result of new
offenses or major technical violations being committed following release.
Based upon the IAP framework for pre-release planning, structured transi-
tion, and intensified supervision/enhanced treatment during community
follow-up, the MYTP utilized innovative policies and procedures that were
especially sensitive to the needs of African-American youth in the youth
correctional system. Between 1996 and 1999, the approach to aftercare
began to show positive results in terms of reducing rates of recidivism,
thereby reducing the extent of minority overrepresentation in Oregon’s
juvenile correctional facilities (Jackson 2002).
STRATEGIES ESSENTIAL FOR REHABILITATIVE EFFECTIVENESS
Other than insights gained and experiences noted during implementation

of the IAP demonstration sites, five primary facets in design and application
of the IAP Model were identified as being fundamentally important in achiev-
ing positive rehabilitative outcomes. Observations by the two co-principal
investigators who probed issues relating to treatment impact across IAP
demonstration and IAP-derived sites indicated that the following interven-
tion strategies must be incorporated. Further, although the presence of
appropriate evidence-based treatment modalities is mandatory, experiences
in applying the IAP framework suggest that steps to success must be defined
more broadly.
Appropriate mix of social control/surveillance and treatment/service
A major finding from prior research on intensive supervision programs has

been that effective interventions aiming for long-term positive change with
serious juvenile offenders need to provide programming modalities empha-
sizing treatment modalities and enriched service provision in addition to
imposing the required level of social control (Armstrong, 1991). The impor-
tant lesson of a fundamental need to mix social-control and treatment was
not lost on the initial design of the IAP Model where the stated goal was to
develop policies of intervention that assured the imposition of an appropri-
ate mix of social control/surveillance and treatment/service provision. It was
determined that the best way to guarantee this configuration was to incor-
porate into the screening/planning process a comprehensive assessment
package for risk, need and resilience/strengths in order to guide decision
making on an individualized basis, thereby resulting in a carefully calibrated
deployment of resources to ensure appropriate levels of both
surveillance/social-control and treatment/service provision. Only by achiev-

ing the appropriate mix of these responses to high-risk, multi-problem youth
can program staff hope to maximize the overall impact of interventions; too
much or too little of either modality (social-control or treatment) can have
very negative implications in normalizing behavior and in seeking positive
change with this highly volatile, problematic group of adolescent offenders.
Fortunately, the assessment technology for guiding these complex decisions
is readily available to the juvenile system. These tools represent the major
innovation in the field over the past twenty years. At this point in the evolu-
tion of treatment and rehabilitation, the true challenge is to have available
those resources necessary to follow-up upon the indicated findings from
assessment for appropriate interventions.
Evidence-based treatment modalities and their inclusion across the

reintegrative continuum
As emphasized early in this chapter, fundamentally important to current

efforts to design and deploy effective intervention approaches with high-
risk delinquents is the operational assumption that the assertion emerging
during the mid-1970s and stating ‘nothing works’ in youth offender treat-
ment and rehabilitation has been shown through a number of research stud-
ies simply not to be true. The fact that correctional treatment can be
effective generally in reducing recidivism and renewed criminal activity
among adjudicated youth has a special relevance in programming intended
to remediate the antisocial behavior of severely delinquent juveniles. The
more severe the delinquent behavior, the more impact appropriately
matched treatment can have in terms of effect (Borum 2003; Gies 2003;
Lipsey et al 2000).
This narrower focus on issues of effectiveness with a particular offender
sub-population suggests an important set of considerations deriving from
the ‘what works’ debate and having a bearing upon the effectiveness of rein-
tegrative programs. Carefully profiling confined youth who will be partici-
pating in transitional, re-entry and aftercare programs and being matched
with required levels of supervision/social control and linked with appropri-
ate services and treatment modalities is a necessity for successful interven-
tion. In large part this is a serious, chronic and often violent offender
population characterized by a pattern of early onset of delinquency, exhibit-
ing frequent misconduct, and being plagued by a variety of social and per-
sonal problems. The axiom about what works best, with whom and under
which circumstances is especially relevant to situations where matching
treatment involves youth who have experienced multiple failures previously
in the juvenile justice system, are obviously resistant to interventions and
have reached the deep end of the system. Selection of appropriate modali-
ties must occur with a deep, comprehensive understanding of the nature

and intensity of the problems, deficits and needs exhibited by this difficult
group of youth.
At the heart of the procedures for selecting and matching treatment
modalities is the need to understand the centrality of certain key factors
referred to as criminogenic that ongoing research on recidivism has shown
repeatedly to be the most predictive of reoffending (Andrews and Bonta
1994; Dembo et al 1991; Farrington 1989; Farrington and Hawkins 1991;
Hawkins et al 1987, 1998; Lipsey and Derzon 1998; Loeber and
Stouthamer-Loeber 1987; Osborn and West 1980; Patterson et al 1992;
Thornberry and Krohn 1997; Thornberry et al 1993; Wiederanders 1983;
Zarb 1978). These factors, often exhibited in combination by severely
delinquent youth, are associated with problems such as dysfunctional and
fragmented families, school disruption and conflict, negative peer influence,
and substance abuse. Within the IAP Model special attention is given to
identifying and measuring them early during the confinement experience
and taking those steps through the individual case planning process to
respond appropriately to their remediation.
In a recent article on effectiveness of aftercare programming, Altschuler
and Armstrong (2002) noted that two bodies of research bear upon pos-
itive reintegrative outcomes. First, there is research that draws upon the
nature of the confinement experience and its impact on subsequent suc-
cess and failure in the community. Here, findings indicate the benefits of
incorporating into the routine of confinement the delivery of those serv-
ices and activities that maximize the choices of successful community
reintegration. Second, another body of research examines the community
side of transition and re-entry. Community intervention refers to what
occurs: 1) in neighborhoods, 2) with families, friends, and acquaintances,
and 3) with various socializing institutions (e.g. schools, faith-based
organizations, neighborhood groups, recreational programs and clubs,
employers). Correctional oversight and supervision must extend well
beyond the formal role played by aftercare staff. These authors further
note that among the several risk/need factors that must be included in
this potent combination highly predictive of reoffending and must be tar-
geted for intervention are those related to family dysfunction and con-
flict, negative peer group influence, school conflict and disruption, and
drug/alcohol dependency.
Some of the specific programming/treatment principles and situational
factors that have been shown to generalize well to effective interventions
with more severely delinquent youth include the following:
A. Role of the juvenile justice system

1. The site for service delivery not being a juvenile justice or law
enforcement facility,
2. The juveniles in the program being referred or identified by a juve-

nile justice agency and their participation being mandated, and
3. The program being sponsored by a juvenile justice or law enforcement
agency and having a tangible sense of requirements/performance stan-
dards and individualized accountability associated with operations.
B. Amount/intensity/duration of service
1. The duration of the service period amounting to more than 18
weeks, and
2. The average number of hours per week of service contact time
being more than 5 hours.
C. Targeted services
1. Designed to target the specific characteristics and problems of offend-
ers that can be changed in treatment (dynamic characteristics), and
2. Target the most intensive programs to those offenders who are at
the highest risk of recidivism.
D. Other promising strategies
1. Therapeutic integrity being high, i.e. the program’s services are
delivered as designed, having been fully implemented and staffed
by trained personnel, and
2. Research personnel playing a major role in designing and monitor-
ing program activities.
E. Promising treatment modalities
1. Intensive supervision with reduced caseloads (both probation and
parole),
2. Behavioral-based intervention (based on social learning or cog-
nitive theories of change that emphasize positive reinforcement
contingencies for pro-social behavior),
3. Skill-oriented approaches that translate into improved interper-
sonal relations and readiness for more effective daily living,
4. Multi-model approaches that allow simultaneous intervention into
multiple problem areas of a single individual,
5. Employment with the full complement of released activities includ-
ing job training, job development, job placement, job shadowing,
and associated activities, and
6. Service brokerage with specialized providers in both public and pri-
vate sectors and exhibiting state-of-the-art assessment and follow-up.
Essential structural characteristics of the reintegrative continuum
Another major development over the past decade in the evolution of

experimentation with promising approaches and strategies for effective
aftercare has been the growing recognition that emphasis must be placed
upon critical structural features in the design of reintegrative systems. It

has become evident on the basis of a small number of programming ini-
tiatives (Altschuler et al 1999) that any discussion of effectiveness and
ensuing action-planning must go beyond simply a consideration of treat-
ment modalities and move to incorporate certain essential structural
characteristics. This aspect of program development and operations has
only recently begun to be fully appreciated and incorporated with the
newer wave of intensive aftercare initiatives beginning in the late 1980s
and continuing into the 1990s. This lesson was not lost on the IAP proj-
ect where a very concerted effort was made during the design phase to
identify and implement those required structural characteristics of the
reintegrative continuum (Wiebush et al 2000). The reader is referred to
Table 14.3, which itemizes on the basis of IAP-related research what
appear to be essential design features at each of the three interlocking
phases of the continuum. It further provides a framework for conducting
comparative analysis to determine the extent to which other recent after-
care initiatives have taken steps to incorporate such structural features
(see Table 14.4).
A broad policy-driven challenge at the first, or institutionally-based phase
of the continuum, is the need to inculcate a sense of reintegrative orienta-
tion among facility administrators and staff who are often heavily occupied
with the demands and requirements of managing a confined offender
population where issues of security and safety are critical and ongoing. An
orientation toward reintegrative goals at this initial phase is essential for
optimal results across the entire continuum.
Table 14.3: Baseline characteristics of IAP pilot programs for comparison with other
intensive aftercare initiatives
I. Program Design: Institutional Phase

A. Pre-release Planning
B. Involvement of Outside Agencies and Individuals in Institution
C. Targeted Community Activities during Confinement Period
II. Program Design: Transitional Phase
A. Testing and Probing of Reentry Prior to Formal Placement in Community
B. Structured Step-down Process Utilizing Residential Placement or Intensive Day
Treatment.
III. Program Design: Community Follow-up
A. Provision of Multimodal Treatment Services
B. Discrete Case Management Services
C. Use of Graduated Sanctions and Positive Incentives
D. Provision of Supervision and Surveillance beyond Ordinary Working Hours
E. Reduced Caseload Size/Increased Frequency of Client Contact
F. Multi-stage Decompression Process
Table 14.4: Juvenile aftercare matrix
Program/Study Philadelphia Maryland Skillman Michigan

Characteristics Intensive Aftercare Program Intensive Nokomis
(IAP Model) Probation Aftercare Challenge
Aftercare Project Program
PROGRAM DESIGN
Institutional Phase
Pre-release Community Family therapist Aftercare Planning for com-
planning sources offer assesses, diag- caseworker munity re-entry is
input via pro- noses, develops commences initiated 30 days
bation offi- family contract, contacts with after placement in
cers. and begins weekly youth and residential phase.
Preparation of family group ses- family 3
post release sions. (Highly months prior
plan. uneven implemen- to release.
tation.)
Involvement of Probation Family visits facili- Not indicated. Parents meet with
outside agen- officers meet ty at lease once; confined children,
cies and indi- with institu- therapist involves institutional staff
viduals in tional staff youth in family and a community
institution and juveniles. assessment ses- worker once
sion. (Less than every 2 weeks.
half of youth
involved in family
assessment ses-
sion.)
Targeted com- Probation Family attends Not indicated. Community
munity activi- officers meet weekly group ses- workers see par-
ties during with parents sions with thera- ents once per
confinement on regular pist and support week at their
period basis in the groups. (Low fam- home.
community. ily involvement.)
Transitional Phase
Testing and Not indicated. Not indicated. Not indicated. Not indicated.
probing of
re-entry prior
to placement
in community
Structured step- First 6 weeks Initial period First few weeks Initial month
down process with very high of intense after facility of virtual
using residential level of pro- contact, fol- release: carefully house arrest.
placement or bation offi- lowed by less- prescribed pro- Level of com-
intensive day cer/client con- er contact gram. Average munity work-
treatment tact. No use with case monthly contacts er/client con-
of intensive manager, 10 over 67 months tact also high
day treatment additional in Detroit; 60 over during first 3
or short-term counselor, and 6 months in months. No
residential family thera- Pittsburgh. use of inten-
treatment. pist. No use Contacts taper off sive day treat-
of intensive after first 2 ment or short-
day treatment. months. Pittsburgh term residen-
uses transition tial treatment.
group home.
Community Follow-up
Provision of mul- Few pre- Wide spec- Efforts to improve Variety of
timodal treatment scribed activi- trum of serv- family functioning required pro-
services ties but some ices offered through counseling gramming
emphasis on with links to and to link clients activities.
education and community with education Some major
vocational resources. program. Jobs far questions
activities. short of expecta- about quality
tions. of delivery.
Discrete case Required pro- Three articu- Not highly devel- Not empha-
management serv- cedures nei- lated levels of oped. sized.
ices ther highly intervention:
developed nor pre-release,
clearly articu- initial inten-
lated. sive aftercare,
and transition-
al aftercare.
Use of graduated Not indicated. Not indicated. Not indicated for Not indicated.
sanctions and pos- incentives.
itive incentives Pittsburgh sanctions
permitted return to
group or wilderness
program.
Provision of Thirty percent Not indicated. Not indicated. Supplemental

supervision and of contacts by surveillance
surveillance probation offi- activities provid-
beyond ordinary cers required ed by specialized
working hours to occur out- community
side normal workers.
office hours.
Reduced caseload Aftercare Caseload size Caseload size Aftercare case-

size/increased fre- caseload of unknown. of 6. load of 10
quency of client 12 youth Clients average Experimental youth. Higher
contact under com- 3.2 monthly group receives level of contact
munity super- contacts during far more con- for supervision,
vision versus aftercare or tacts than con- treatment, and
standard 70- 32.4 contacts trol group. surveillance.
120. Far over approxi-
higher level of mately 10
contact than months.
usual.
Multistage Procedures Intensive after- Contacts taper Framework and
decompression for gradual, care 33 weeks off over time in procedures for a
process phased reduc- long, not 8 aftercare. diminishing level
tion in level weeks as of supervision
of imposed planned; youth and control dur-
control dur- average less ing aftercare.
ing 6 months than 1 contact
of aftercare per week.
supervision. During transi-
tional aftercare
phase, clients
average meet-
ing with case
managers less
than once
every 3 weeks.
From the perspective of more specific design features and associated

activities at this structural phase is the deployment of a comprehensive
assessment package to examine the nature and intensity of problems,
needs and deficits being exhibited by the targeted youth. This procedure
should be completed early during confinement and used to shape the treat-
ment regimen in the facility, as well as to establish guidelines for interven-
tions continuing after release into the community. Much of this activity
needs to revolve around the identification of criminogenic factors exhibited
by these youth and predictive of re-offending behavior if not directly
addressed. Further, assessment at the point of institutional entry needs to
incorporate variables for both measurement and clinical consideration
along three primary dimensions: 1) risk, 2) need, and 3) resilience/protec-

tion. The next point in processing at which a thorough reassessment needs
to be conducted is shortly prior to release into the community. This infor-
mation is critical for determining the degree of positive change achieved
during confinement, as well as identifying behavioral, attitudinal, and
skill areas still in need of improvement. Such data are valuable for guid-
ing decisions about timing of release and providing a baseline for subse-
quent reassessment of performance in the community. Additional
reassessments should occur at designated points during the community
phase of supervision.
The second, or transitional phase of the reintegrative continuum is
undoubtedly that segment of aftercare planning and programming which has
historically received the least attention. In a sense this phase has to be con-
structed since it does not have a tangible reality in the same way that both
institutional and community-based phases of the system do. Without ques-
tion the design and operationalization of the transitional phase received the
greatest attention by administrators and staff at all of the IAP pilot sites. It is
here that the potential exists for the highest level of communication, joint
decision making, and collaborative activities by institutional and field staff.
Since the baton of supervision and treatment is being passed during this
phase, the opportunity and obligation for the greatest degree of interaction to
facilitate a smooth and consistent step-down process is present. A number of
possible design features to achieve transitional goals were recommended in the
IAP initiative for testing at the pilot sites (see Table 14.5). Not surprisingly, the
pilot sites took this set of generic recommendations and proceeded to greatly
elaborate these features and configure them into highly innovative and some-
what distinctive constellations of transitional activities and programming
components for transition at each of the sites (see Table 14.6).
Table 14.5: Operational procedures for structuring step-down at the point of transi-
tion: essential principles identified for effective transitioning in IAP
• Backing community-based agencies, individuals, and resources into the facility.

• Intensifying activities for a relatively short period in the facility prior to
release and tied directly to re-entry requirements.
• Working with targeted community support systems prior to release to facili-
tate smoother transition into and linkage with the community.
• Testing and probing for youth adjustment and degree of street readiness in the
community prior to final release.
• Providing a highly structured step-down (both short term residential and
intensive day treatment) at the point of re-entry.
• Structuring caseload supervision on the basis of risk assessment procedures to
ensure appropriate levels and forms of social control at the point of transition.
Table 14.6: Transition components of IAP programming*
Transition Colorado Nevada Virginia

Component
Early Parole Initial Plan complete Initial plan com- Initial plan complete
Planning 30 days after institu- plete 30 days after 30 days after institu-
tional placement; institutional place- tional placement; final
final plan complete ment; final plan plan complete 30 days
60 days prior to complete 30 days prior to release.
release. prior to furlough.
Multiple per- Case manager, institu- Parole officer, insti- Parole officer, institu-
spectives incor- tional staff, youth, tutional community tional case manager,
porated in plan parents, and commu- liaison, institutional youth, interagency
nity providers rou- staff, and youth: Community
tinely involved. parent participation Assessment Team, par-
limited. ent.
Parole officer One to two times per Once per month; One to two times per
visits to institu- week; routine. routine since spring month; routine.
tion 1997.
Treatment Via community Via institutional- Via one provider at
begun in insti- providers. Includes community liaison Hanover only.
tution and con- multifamily counsel- and parole officers. Drug/alcohol treatment;
tinued in coming, life skills train- Includes life skills sporadic use. State poli-
munity ing, individual coun- and drug/alcohol cy discourages contract
seling, and vocational curriculums; done services by community
skills training; done routinely until liai- providers for institu-
routinely. son vacancy. tionalized youth.
Youth pre- Supervised day trips Not allowed. Not allowed.
release visits to to community pro-
community grams, beginning 60
days prior to release.
Pre-parole fur- Overnight/weekend 30 day conditional Not allowed.
lough home passes, begin- release to commu-
ning 30 days prior to nity, prior to offi-
release. cial parole.
Transitional Not part of the Not part of the Two group homes in
residence design, but occurs for design. Norfolk; 30- to 60-day
some youth. length of stay; used for
most youth.
Transitional day Two day-treatment One-day supervi- Day treatment used for
programming programs in Denver; sion/ treatment pro- youth who do not go to
used for almost all gram; used for most group homes.
youth during the first youth.
few months after
release.
Phased supervi- Informal system: con- Four-phase system: Four-phase system:

sion levels on tact once per week contact 4 times per group home; contact 5
parole during the first few week during fur- to 7 times per week
months, down to lough; 3 times per next 60 days; 3 to 5
once per month later. week next 90 days; times per week next 60
2 times per week days; 3 times per week
next 60–90 days; last 30 days.
once per week next
30–60 days.
* Source: Richard G.Wiebush, Betsie McNulty and Thao Le, ‘Implementation of the
Intensive Community-Based Aftercare Program’, OJJDP Juvenile Justice Bulletin, U.S. Dep.
of Justice (July 2000).
The third, or community follow-up phase of the reintegrative continuum,

constitutes that segment of the system that was historically singled out as the
focus of most aftercare or parole activities. Obviously, the IAP conceptualization
of the overall continuum specifies this phase as only one of three critical
segments involved in key decision making and programming activities for
the delivery of effective aftercare services. Yet, it is within this part of the
total system that the ultimate testing of the effectiveness of program design,
policies and practices across the entire continuum occurs and is demon-
strated through the successful stabilization and normalization of offenders
or their failure to adjust. A number of key design features were identified for
inclusion in the community follow-up during the development of the IAP
Model (see Table 14.7). Although the importance of a number of these fea-
tures has long been recognized as critical for successful community-based
programming, the IAP project took a special initiative in fully conceptualiz-
ing the role and importance of the decompression process for designing the
structure of community supervision. In addition, this formulation was
closely linked to the increasing involvement of community organizations and
agencies at the grassroots level as the youth under formal supervision moves
ever closer to the completion of parole/aftercare status (see Figure 14.6).
Ideally following release, the youth experiences a relatively brief period
(30–60 days) of intensive supervision and highly structured programming
as he/she moves into the community on a full time basis (community tran-
sition phase). As adjustment and stabilization begin to occur, the youth pro-
gresses through a series of increasingly decompressed phases characterized
by greater freedom of movement and a decreasing level of surveillance and
supervision. This relaxation of control is triggered by evidence of positive
performance and compliance with conditions of parole/aftercare. Progress
is measured systematically on a periodic basis that is marked by the com-
pletion of a given stage of supervision, a thorough reassessment of perform-
ance and decreased level of risk, and specification of behavioral
requirements for participation in the next stage of decompression. Key to
Table 14.7: Program design features for community follow-up phase
1. Multi-stage decompression process

2. Multi-agency collaboration including public organizations, private provider
agencies, and key stakeholders
3. Increasing degree of community involvement at grassroots level
4. Provision of multi-modal treatment and service provision
5. Discrete case management framework
6. Provision of supervision and surveillance beyond ordinary working hours
7. Reduced caseload size/increased frequency of client contact
objective decision making for movement through this process is a procedure

including formally administered instruments and a team review. IAP pilot
sites defined the overall decompression experience in terms of three or four
stages extending over a nine to twelve month period.
At the same time as decompression was occurring with respect to formal
supervision of the offender in the community, efforts were being made repeat-
edly to link these youth to activities and organizations at the grassroots level.
It was anticipated that this restorative strategy defined in terms of mobilizing
community resources for the youth would provide ongoing support and sta-
bility when another critical transition occurred, namely, completion of
Figure 14.6: Multi-stage decompression in the community: reducing social control

through formal reassessment and linkage to grassroots level.
parole/aftercare and termination of formal supervision. Advocacy for com-

munity involvement with and acceptance of high-risk juvenile offenders
returning from confinement is essential if full normalization of this problem-
atic population is to occur.
Overarching case management
At the heart of operational effectiveness for re-entry and aftercare program-

ming there must reside a framework for overarching case management. As
described earlier in the paper, this aspect of program design consists of five
discrete components, sequential in nature and lending themselves to continu-
ous, integrated case planning and management. The specifications for case
management in the IAP Model reflect a number of imported factors that were
taken into consideration in the model development process. For one, the tar-
geting of a particular sub-population of juvenile offenders whose profile indi-
cates the characteristics of high-risk and multi-need were key considerations
for the inclusion of certain management components. For another, the
research literature indicates limitations on effectiveness if there is sole reliance
upon a casework approach to supervision; incorporation of multi-agency,
collaborative arrangements through networking and service brokerage play a
fundamental role in shaping management components. Perhaps above all is
the recognition of the criticality of a state-of-the-art, comprehensive assess-
ment package that drives much of the decision making for case management
as the targeted offender is moved across the reintegrative continuum.
Coherence to ensure linkage and continuity across the entire set of case
management components is best facilitated through the development of a uni-
fied or master case planning document. This tool must incorporate informa-
tion derived from a number of sources and at various points in time, beginning
with the judicial decision to commit a youth to confinement and continuing
throughout the residential, transitional and community-based follow-up
phases of the overall reintegrative experience. All IAP pilot sites were man-
dated with the requirement of developing such a tool to guide decision mak-
ing and programming activities for each youth participating in the project.
A balanced approach to reintegrative intervention
Given their roots in the adult probation arena, intensive supervision pro-
grams within juvenile justice systems (the origins of IAP being traced to this
approach) have a tendency to be or quickly become surveillance and social
control approaches. However, research indicates that this tendency has nega-
tive implications for the long-term success of youth enrolled in such pro-
grams, namely, the relative lack of rehabilitative services precludes the option
of promoting the development of skills and competencies in this population
(Armstrong 1988). High-risk, serious juvenile offenders require program-

ming modalities that combine a set of intervention exhibiting both social con-
trol and treatment features. The prime mover for achieving this configuration
is the presence of sophisticated assessment tools for both risk and need that
guide decision making on an individualized basis and result in the deploy-
ment of surveillance/supervision and treatment/service provision techniques.
Having clearly designated procedures for achieving an objective, bal-
anced approach to decision making in intensive supervision programs is
essential. This challenge was addressed in the IAP initiative by identifying
techniques (i.e. assessment technology and the resulting match with inter-
vention modalities) that ensured an appropriate mix of program activities
reflecting key juvenile justice principles (Altschuler and Armstrong 1994a).
Direction for designing the relevant constellation of interventions was ulti-
mately derived from an integrated theoretical framework where the predic-
tive power of various risk and need factors for generating misconduct and
reoffending behavior had been demonstrated through prior research. The
key set of operant principles that were identified and used to guide this
blending process were community protection, accountability, and compe-
tency development (see Figure 14.5). The operationalization of these prin-
ciples was initiated through the individualized assessment of risk, need and
resilience. This grouping has come to be known as the ‘Balanced Approach’
(Maloney et al 1988; Armstrong et al 1990), and the IAP Model is
grounded in this conceptual framework, having been tailored for use in
transitional and aftercare settings.
As a heuristic tool, the Balanced Approach is a convenient and highly
objective point of reference for practitioners assigned the responsibility of
matching high-risk juvenile offenders transitioning from confinement with
the appropriate type and level of social control and rehabilitative services
while at the same ensuring the imposition of a desired level of accountabil-
ity. With regard to the significance of each of these principles, the single most
important is the protection of the public from crime. The decision to move
high-risk offenders back into the community in spite of their posing some
level of risk requires that their supervision be sufficiently effective to reduce
markedly the possibility of reoffending behavior. The array of techniques
that have been developed for use with the IAP Model allow for the applica-
tion of high levels of control, surveillance and intrusion. The second of the
three principles, offender accountability, can be traced to the justice theme
that the system must respond to illegal behavior in a swift and certain fash-
ion so that the offender is expeditiously made aware of and responsible for
the loss, damage or injury perpetrated upon the victim. The form and inten-
sity with which the message is conveyed may vary considerably. Although
the idea of punishment or revenge has never received substantial credibility
in the juvenile justice system, a reasonable formulation of accountability is a
critical component of system response for importing some sense of individual
responsibility and psychological awareness on the part of the juvenile

offender. A variety of techniques are available for achieving this goal and
have been deployed widely in IAP programs. The third of the three princi-
ples, competency development, speaks to the value of rehabilitation as a
critical factor in juvenile justice programming. Its pre-eminence derives from
a body of research about youth being incompletely developed persons still in
need of guidance and nurturing. Further, this concept in its most recent iter-
ation points to a growing awareness in our field about the need for a basic
redirection and redefinition of what juvenile justice treatment practices
should be. At the center of this reformation process is an acknowledgement
of the shortcomings of a pure ‘medical model’ based almost entirely upon
the belief that delinquent behavior could most effectively be remediated
through intense psychotherapeutic techniques. The central issue is not one of
whether to treat, but rather how best to treat, given what is now known
about the needs and developmental problems of delinquent youth. The pri-
mary challenge facing youth corrections for high-risk offenders in confine-
ment is one of completing the basic habilitation process since these
individuals exhibit multiple problems and deficits in the major areas of mat-
urational development (Altschuler and Armstrong 1983).
CONCLUDING REMARKS
Juvenile justice systems throughout the United States have experienced a

lengthy history of failure in managing populations of adjudicated youth
transitioning from confinement back into the community. Unacceptably
high rates of recidivism have been prevalent among those confined youth
who are especially at high-risk of reoffending and tend to exhibit a wide
range of problem behaviors and troubled personal histories. Beginning in
the 1960s, a number of experimental program initiatives addressing issues
of transition and aftercare were launched with the goal of achieving long-
term normalization of offenders in the community (see Armstrong et al
2004, chapter 1). Although much has been learned collectively from these
efforts, many of the inherent impediments and difficulties that plague the
reintegrative process have persisted. In spite of valuable insights gained
about more effective intervention strategies for juvenile offenders both
within institutional settings and in community corrections, a sense of crisis
over programmatic failure continued to mount in American youth correc-
tions throughout the 1970s and 1980s.
Between the years 1988 to 2000 the Office of Juvenile Justice and
Delinquency Prevention funded a long-term research and development proj-
ect, Intensive Aftercare Programs, for the purpose of identifying promising
approaches in juvenile aftercare, developing a model that was theoretically
sound and incorporated state-of-the-art programming technology, and
testing the efficiency of this model in order to reduce markedly the level of
recidivism among the most severely delinquent youth transitioning from
confinement. The development process in this initiative built upon a num-
ber of key ideas about effective policy and practice drawn partially from
previous efforts and also incorporating new, untested strategies. Over the
past several years, upon completion of the demonstration phase of the proj-
ect, considerable effort has been devoted to generating findings and draw-
ing conclusions about the initiative from a program development
perspective. The resulting synthesis has allowed for considerable clarifica-
tion about exactly what are the requisite dimensions for achieving success-
ful treatment outcomes in reintegrative systems utilizing this approach.
Following a number of years of research and development activities tied
to model design, implementation and operations, the broadly prescribed
framework for systems utilizing the IAP approach appears to point to five
basic programming dimensions that define procedural steps and practices
essential in the effective delivery of treatment services and geared toward
achieving positive outcomes. First, reflective of a number of earlier experi-
ments aimed at providing highly structured interventions for serious juve-
nile offenders, the IAP Model clearly represents a version of reintegrative
programming grounded in intensive supervision strategies and techniques.
Yet, based upon extensive testing of the model, an essential aspect of inten-
sification has been shown to be simultaneously placing a strong emphasis
upon social control/supervision and service delivery/treatment. Decision
making geared towards ensuring an appropriate mix of these two strategies
must be guided by collaborative planning and assignment of responsibilities
among agencies and sectors of the system managing various aspects of pre-
release, transition and community follow-up.
Second, the IAP model is largely conceptualized as a rehabilitative frame-
work operationalized by procedures through which participating youth are
carefully profiled and then matched with proven, evidence-based treatment
modalities. Deployment and co-ordination of these highly specialized inter-
ventions across the entire span of reintegrative process (i.e. from the point
of placement in confinement to the completion of supervision in the com-
munity) is central to the model’s design.
Third, application of the model within any juvenile justice system is
highly dependent upon the recognition and incorporation of certain struc-
tural characteristics essential for mobilizing open communication, joint
decision making, collaboration, and reinforcement in the community of
gains made in the institution. These structural characteristics are directly
tied to programming activities that characterize the three key phases of the
reintegrative continuum: institutional pre-release, transition spanning insti-
tution and community, and long-term community follow-up.
Fourth, at the heart of operational effectiveness in the IAP Model resides
a framework for overarching case management. This specification of case
management components reflects a number of important factors that were

taken into consideration in the model development process. For one, the
targeting of a particular population of juvenile justice offenders whose pro-
file indicates the challenge of managing a high-risk, multi-problem group
was a critical consideration. For another, the research literature and practi-
cal experiences indicate limitations on effectiveness if there is sole reliance
upon a casework approach to supervision; incorporation of multi-agency,
collaborative arrangements through networking and brokerage play a fun-
damental role in shaping case management. Perhaps of most importance is
the recognition of the criticality of a state-of-the-art, comprehensive assess-
ment package driving much of the decision making for individual case plan-
ning as the targeted youth moves across the reintegrative continuum.
Fifth, a further guarantee that issues of both risk and need (i.e. social con-
trol and treatment) are being appropriately addressed in working with high-
risk, multi-problem delinquents is readily facilitated through utilization of the
Balanced Approach framework. This heuristic tool assures that consideration
at key points in decision making is given in each case to the principles of com-
munity protection, competency development and offender accountability.
In conclusion, it is the perception of the two co-principal investigators of
the IAP initiative, as well as of many juvenile justice professionals who have
implemented the model in their jurisdictions, that reliance upon these five
dimensions of program design as a collective point of reference is necessary
if positive supervision and treatment outcomes are to be achieved.
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15
Exploring Traditional Cultural
Mechanisms of Conflict
Resolution in American
Indian Communities
BARBARA MENDENHALL AND JAMES DUMESNIL*
INTRODUCTION
A
GROWING NUMBER OF Native American and Canadian First
Nations communities, both reservation-based (Indian Country) and
within urban areas, are going ‘back to the future’ (Jim Zion quot-
ed in Rubin 2001) by using a variation of restorative justice conflict reso-
lution based in their traditional culture. At the same time, mainstream
communities are looking to restorative justice as a new way of resolving
community problems, and American Indian communities are recognizing
that their traditions are founded in conflict resolution through restorative
justice. Reintroduction and revitalization of these traditions may provide a
better system than the introduced Western criminal justice system for
Native communities to respond to serious problems with juvenile delin-
quency.
In this chapter we will explore use of the traditional Native American
variety of restorative justice conflict resolution with Native American juve-
nile offenders. This chapter relies on limited research on restorative justice,
primarily Braithwaite (2002), and various sources on use and reintroduc-
tion of tradition in conflict resolution in Indian communities, including
research conducted by one of the authors (Dumesnil), who interviewed
friends and colleagues who manage prevention and intervention programs
for Native American youths and adults about their use of tradition in their
programs.
* The authors wish to thank Howard Bad Hand, Pat Bad Hand, John Beheler, Chuck Ross,
Dorothy Brave Eagle, Dana Brave Eagle, Dawn Brave Eagle, and James W. Zion.
342 Barbara Mendenhall and James Dumesnil
RESTORATIVE JUSTICE CONFLICT RESOLUTION AND AMERICAN

INDIAN COMMUNITIES
What is restorative justice and how does it work?
According to Braithwaite, ‘restorative justice has been the dominant model

of criminal justice throughout most of human history for perhaps all the
world’s peoples ... (and among indigenous peoples) restorative traditions
persisted into modern times’ (2002, 5). Definitions of restorative justice
involve the notion of an egalitarian and respectful process in which all the
various parties with a stake in an offence collectively determine how to
resolve the situation so that all—victims(s), offender(s), and those affected
by the offence—are restored. It is up to those involved to determine what is
meant by restoration and when it is achieved.
It is this empowerment of the affected community to deal with conse-
quences of injustice and to change private problems into public issues that
can be discussed and resolved through community action that gives restora-
tive justice its effectiveness.1 Note that in this sense, ‘community’ is defined
as those who have a stake in the particular offence. Depending on the situ-
ation, ‘community’ may have a narrow or wide inclusion of participants.
Collective decision making provides dignity and respect to all participants,
destigmatizes both offender and victim, and creates space for rehabilitation
of the offender. Note also, that in no community where restorative justice
has been implemented have government courts lost control over criminal
cases. It is usually the court that determines which cases will be ‘allowed’ to
be processed through restorative justice (Braithwaite 2002). Analysis of a
number of restorative justice programs in an international array of commu-
nities indicates that these programs can work in restoring victims, offend-
ers, and communities (Braithwaite 2002). It usually becomes apparent
during restorative justice sessions that the offender has also been a victim
and needs restoration him/herself. As Ross (1996, 96) notes about restora-
tive justice and conflict resolution, ‘the real issue is how such states of
disharmony have come into existence and what can be done to turn them
around’.
The community that should be involved in a restorative justice process
consists of those individuals who have been affected by a specific problem,
and their roles should be as active participants in developing solutions and
as sources of informal social control and support (McCold and Wachtel
1997). David Moore (1997) called this a ‘micro-community’. Below is an
example of a micro-community at work.
1 In reviewing a draft of this paper James W. Zion commented: ‘it [is also] changing public
issues into private problems in the sense of taking a dispute out of the “public”, i.e. governmen-
tal, arena and returning it to where it belongs—the private scene’ (personal communication).
Exploring Traditional Cultural Mechanisms of Conflict 343
In an upper middle class suburb a group of youths vandalized a number of ice

fishing houses on a local lake. The public prosecutor, because of the difficulty of
matching specific damage to specific offenders, decided not to pursue the case.
The traditional justice system failed to deal with the crime. The police, however,
had implemented a family group conference program for juvenile offenses and
offered the victims an alternative response to the wrongdoing they had suffered.
One particular victim, whose elaborate two-story ice fishing house had suffered
considerable damage, was particularly irate, agreed only begrudgingly to attend
the conference and threatened to display his rage at the conference.
The perpetrators, ice fishing house owners, and family and friends gathered for
the family group conference. First, the offenders admitted their wrongdoing and
described the damage that they had done. Then each of the victims expressed how
they had been affected by the destruction of ice houses that they had built them-
selves, over many years, with their families and friends. The son of the owner of
the two-story fishing house spoke for his father and expressed, in rather poignant
terms, how he had spent much of his childhood working with his father and the
rest of his family building their house for each winter fishing season. He suddenly
realized, when faced with the destruction the youths had caused, how much that
experience meant to him. His father, instead of expressing his rage as he had
threatened, saved his comments for the close of the conference, after the whole
group had worked out the terms of reparation.
Then he spoke with great emotion and thanked the youths for having vandal-
ized his ice fishing house. He explained that until the conference he had never
heard his son express how much all those years of shared experience meant to
him. The father then invited all of the boys and their fathers, when the damage
was repaired, to spend a weekend with his family fishing on the lake.
All of the people who participated in this conference lived in geographic prox-
imity, but until they were grouped into a ‘micro-community’ through this power-
ful restorative justice process, they hardly knew each other. After the conference,
bonds had been established that did not exist before the conference. Community
can be defined identically to Goldstein’s description of community that is used by
good problem-oriented police officers: ‘They use “community” rather deftly to
describe those affected in any way by the specific problem they are attempting to
address’. (McCold and Wachtel 1997, 10)
In this case, if the only truth that mattered was the conviction and sentencing
of the offenders, healing for the individuals, the family and the community
at large would not have occurred or even been possible. The opportunities
for ‘offender’ and ‘victim’ restoration or rehabilitation would have been
overlooked. Co-author Dumesnil is a forensic counselor who works with
offenders and victims. The preponderance of forensic counseling suggests
that offenders tend to be more open to therapeutic gains prior to adjudi-
cation. As the people of Hollow Water discovered (see below), the adver-
sarial legal process positions an offender to deny, minimize or evade one’s
guilt. Accountability to family, victim, peers and community is required by
the treatment process, and embracing responsibility and restoration
routinely occurs. To satisfy legal obligations and accomplish full recovery,
therapeutic clients turn themselves into law enforcement as a part of their

healing. Dumesnil reports that when clients arrive for treatment post-adju-
dication, full recovery is very difficult to achieve or involves considerably
more work.
What are the concerns and reservations about restorative justice?
Not all legal scholars agree that restorative justice is helpful or timely
(Delgado 2000). Delgado concludes that restorative justice is typically no
worse than conventional justice, but says that it can be an opportunity to
promulgate middle class values upon minorities in society, and can allow
and encourage the ‘victim’ to indulge in exacting revenge on the offender.
What Delgado appears to be concerned with is the practice of mediation,
where a court-appointed mediator referees differences between two parties
with the primary goal being compensation paid to the victim by the
offender. He is pessimistic about mediation allowing victims to indulge in
revenge against offenders, with mediators perpetuating conservative mid-
dle-class values. His concerns may be valid since mediation is the one form
of restorative justice that does not extend ‘ownership of the crime problem
beyond the victim and offender to concerned community members’. Presser
and Gaarder (2000, 181) acknowledge that ‘restorative justice has been
inaccurately equated with mediation in the US’.
In addition, when this paper was initially presented at the ‘Youthful Law
Violators, Human Rights, and Development of New Juvenile Justice
Systems Conference’ at the International Institute for the Sociology of Law
in Oñati, Spain, several participants raised concerns about the reintroduc-
tion of traditional methods of social control in restorative justice systems
dealing with juvenile crime. Participants who worked in juvenile justice in
Africa and with the United Nations cautioned that the use of severe corpo-
ral punishment is one traditional sanction that has been championed by
indigenous groups wanting to re-establish traditional community-based
restorative justice systems for juvenile offenders. The level of corporal pun-
ishment cited as traditional can be more severe than Western proponents of
restorative justice can accept.
These participants also pointed to the United Nations Standard
Minimum Rules for the Administration of Juvenile Justice (‘the Beijing Rules’)
which expressly state in Part Three, section 17: ‘Juveniles shall not be sub-
ject to corporal punishment.’ In the commentary to the convention, it is
explained that this statement is in line with Article 17 of the International
Covenant on Civil and Political Rights, and the Convention Against Torture
(i.e., corporal punishment is against international law). Although the
Convention on the Rights of the Child does not forbid corporal punishment
outright, it states that ‘Every child deprived of his liberty shall be treated
with humanity and the inherent dignity for human person and in a manner
which takes into account the needs of the person and his or her age’ (sec-
tion 37a). Thus, the extent to which cultural traditions that advocate cor-
poral punishment should be respected has been questioned by some within
the framework of international instruments on the treatment of juveniles
under the law.
Another possible limitation to the utility of community restorative justice
programs is that to date evaluations of such programs are minimal and pri-
marily anecdotal. Restorative justice system advocates have not produced
evaluation reports demonstrating the benefits of such programs in a variety
of Native communities. Finally, systems and individuals in positions of
authority in some Native communities may be so damaged that restorative
justice would only create another means of victimization. Such damaged
communities will need to heal at a more fundamental level before introduc-
ing restorative justice programs using traditional healing methods with
juvenile offenders. However, careful use of restorative justice may be part
of healing Native communities to a point where traditional healing can be
reintroduced.
In response to these criticisms, the research reported in this chapter indi-
cates that restorative justice programs, including Peacemaker Courts,
Sentencing Circles and Family Group Conferences are designed to address
and manage Delgado’s criticism of mediation. More systematic evaluations
of restorative justice programs for juvenile law violators will be needed to
answer the final criticism of the efficacy of restorative justice in Native (or
other) communities.
The value of restorative justice
By constituting a micro-community made up of all in the relevant circle of

the victim, the offender and the community, many perspectives are
included. Equality of expression is an immediate goal of restorative justice
(Haberfeld and Townsend 1993). If in the interest of efficiency, the process
is truncated, time limits are set, and no effort is made to involve all stake-
holders in the micro-community, then Delgado’s concerns are salient. What
this appears to mean is that the traditional variant of restorative justice can-
not be employed in anything less than a comprehensive manner; a manner
that honors the traditions and cultures where these methods originated.
Native communities must have an ongoing level of cultural context of their
tradition to reinstitute such programs. Otherwise the result would likely be
another adversarial hierarchical process, only without judges or attorneys—
simply more powerful and possibly abusive community members.
Braithwaite (2002) states that restorative justice may facilitate crime pre-
vention and that the strongest outcome of restorative justice is that victims
are more satisfied than with the criminal justice system. In addition, recidi-
vism rates for those who participate in restorative justice conferences tend
to be lower. This ties in with criminological research which shows that
criminal rehabilitation most often occurs through the rehabilitation of the
family of the offender—restorative justice strengthens family responsibility
for dealing with crime in contrast to punitive court systems that weaken
family responsibility for dealing with crime and deterring reoccurrence
(Braithwaite 2002). There is also evidence of restorative justice efforts per-
meating the community at large and preventing potential offenders from
offending (Braithwaite 2002; Ross 1996).
Finally, with regard to the integration of the modern restorative justice
movement and indigenous communities, Braithwaite suggests the ‘need ...
to save and revive the restorative justice practices that remain in all soci-
eties’ (2002, 142). He suggests ‘... helping indigenous community justice to
learn from the virtues of liberal statism—procedural fairness, rights, pro-
tecting the vulnerable from domination (which did not get mandated along
with Western legal systems or were corrupted by political and illiberal sta-
tism [authors’ opinion]), ... and helping liberal state justice to learn from
indigenous community justice—learning the restorative justice community
alternatives to individualism’ (2002, 142).
Attempts at eradication and foundations of restorative justice in American

Indian communities
Although there have been recent efforts to reintroduce traditional restorative

justice in Native communities, they come after a long period of public and
private effort to eradicate Native American culture. American Indian tribes
have been subjected to several hundred years of aggressive imposition of out-
side force that has seriously impacted every part of Native culture including
systems of social control and conflict resolution. These forces have included
invasion by Europeans and Americans; massive loss of population and social
collapse due to inadvertent and deliberate spread of diseases (smallpox,
tuberculosis, measles, malaria); complete eradication of tribes through war
and disease; removal or restriction of tribes to reservations; total loss of
tribal land base; decimation of subsistence resources; attempted forced
assimilation that has included allocation of reservation lands to individuals
(with much land subsequently lost through sale to non-Natives); imposition
of American legal, political, medical, religious, educational, and other sys-
tems; forced removal of children to boarding schools; and criminalization of
traditional social, ceremonial, and religious activities. Zion (2002b, 1) states:
‘The Western world thought it was bestowing “civilization” on Indians, but
instead, it created the foundations for anomie and institutionalized legal sys-
tems that do not work well.’ The fundamental message to Native Americans
until about 1960 was that ‘nothing (Native) was of value to themselves:
nothing of spiritual belief and practice, child-raising, pharmacology, psy-
chology, dispute resolution, decision making, clan organization, or commu-
nity governance’ (Ross 1996, 46). This was conveyed despite mainstream
adoption of much that came from Native American culture: domesticated
crops, herbal medicine, governance structure, ideals of democracy.
Despite these enormous pressures to assimilate into American culture,
Native American communities have maintained cultural values and tradi-
tional beliefs and practices. Fundamental to Native American values are:
first, the importance of community and family; second, the responsibility of
every individual to be part of community and family with a wide under-
standing of extended family; and third, the responsibility of the community
and family to include each individual with social control and support oper-
ating through traditions of family responsibility (Ross 1996). This concept
of interdependent society is expressed by the Lakota people as Mitakuye
Oyasin, meaning ‘we are all related’. Given these foundations of belief,
restorative justice as a process of conflict resolution can work well in Native
American communities presuming a certain level of social stability.
EXPLORING THE USE OF TRADITIONAL BELIEFS IN CRIME

PREVENTION AND INTERVENTION IN NATIVE AMERICAN
COMMUNITIES
There is little published documentation or description of the use of tradi-

tional restorative justice with crime prevention and intervention in Indian
Country. Co-author Dumesnil interviewed people who run youth facilities
and whose families have been in law enforcement and education in Native
American communities for generations. While Native Americans have tra-
ditionally been suspicious of the written word, there is increasing concern
that their ways are often unrecognized, undocumented, and even worse,
misunderstood. As Native leaders have to compete for funding for pro-
grams to educate and rehabilitate their youth, many recognize that their
ways need to be documented and reviewed. Their reluctance to write things
down is a vestige of the oral tradition that defined their past. It is also partly
about fear that something sacred will be taken from them or taken out of
context. Another element is that Native societies have a strong ethic of
non-interference (Ross 1992). Most learning traditionally occurred through
modeling over a lifetime. It was a matter of observing repeatedly, and when
the time came, being prepared to act. If not, then learning occurred through
trial and error. Traditional leaders are very patient and trusting that people
will learn from their own mistakes. Howard Bad Hand (2002) teaches that
the most loving and spiritual stance towards another person is to accept them
for who they are. Traditional elders try very hard to not tell anyone what
to do but instead ‘advise’ through telling a traditional story (Zion, personal
communication). Thus, if traditions are published, there is concern that the

writer may be perceived as giving advice or direction. Please keep in mind
that any pedantic quality in this chapter needs to be ascribed completely to
the authors, as the original stories do not have this quality.
Those interviewed agreed that using traditional practices and ceremonies
in character formation and dispute resolution with juveniles makes a great
difference. They feel they are getting a little more support to institute these
kinds of programs within their job duties and report that there is reason for
cautious optimism. Recently, traditional methods have been used with good
results in corrections by Chris Eagle Hawk of Pine Ridge Reservation Public
Safety and in education by Florentine Blue Thunder of the Rosebud
Reservation. Presently, they are being integrated into a new juvenile deten-
tion center, Wanbli Wiconi Tipi, which is opening on the Rosebud reserva-
tion. These leaders relate that providing services, especially ceremonies, as a
way of confronting one’s own history and issues has to be done with sincer-
ity, honesty, humility, and integrity (described as ‘a good way’ by our Native
American advisors); it has to be provided by someone who commands
respect, and it works because the youth care about traditions and identify as
‘Indian’ even though they may not speak their indigenous language.
The critical importance of a living cultural context
In addition to concern about ceremonies being done in a good way, leaders

have a concern that the cultural context of Native philosophy and way of
life for applying traditional Native American beliefs in modern settings has
been compromised or decimated. The problem as identified by Native lead-
ers is whether the ‘living cultural context’ still exists to integrate traditional
teachings into everyday life, especially as a method for dealing with juvenile
crime. Although native teachers, treatment providers and corrections per-
sonnel report positive outcomes when traditional cultural mechanisms are
used with children, they are concerned whether cultural context is adequate
to meaningfully integrate traditional teachings into daily life, as well as into
juvenile restorative justice systems.
For example, the Lakota (Sioux) way of life teaches a deep understand-
ing of the interconnection and interdependency of all things and all nations.
Reference to the term ‘all our relations’ establishes the foundations for the
health and well-being of the individual and of the community.
For Lakota people, life is like a circle—continuous, harmonious, and
cyclical, with no distinctions. Medicine and healing are a coming-together
of all the elements in this circular pattern of life. The circle of healing is
formed by the interconnections among the sick person, his or her extended
family or relatives, the spirits, the singers who helped with the ceremonial
songs, and the medicine practitioner. (Voss et al 1999, 235)
Much of the Native American cultural context was lost in the clash with
European civilization. As noted previously, many, if not all, Native
American traditional practices and ceremonies were made illegal in the late
1800s with recommendations and principles introduced by the Quaker
Policy (Delano 1873) and establishment of codes for the Courts of Indian
Offenses in 1883. The problem today is that traditional teaching without
the living cultural context of tradition may result in the seed not taking root
in young people. The teaching may be blamed for no longer having rele-
vance to the modern world, as not being beautiful and powerful guideposts
and landmarks in personal development and transformation.
As an example of this possibility, John Beheler, educator and principal of
Marty’s Indian School, relates a day where his school observed the
‘Throwing of the Ball Ceremony’. This ceremony is a coming of age cere-
mony for a girl. As she comes into the age of motherhood, she is understood
to have the ‘world (or creation) in her hands’. Beheler involves parents and
teachers and observes traditional forms to create the sacred space in an
attempt to preserve or revive the living cultural context.
Beheler explains that the Sacred Ball, representing the universe and the
Creator, is tossed over her back by a young girl dressed in traditional regalia
representing purity, beauty and unspoiled humanity that are closely con-
nected to the divine or creative. This ceremony teaches that challenges or
opportunities may be dropped into a young person’s life that will serve as a
test. Will he/she reach out and bring the Creator into his/her life? How much
conviction will he/she have in this effort? Will the young person be ready if
it comes to him/her? Does he/she understand what it means to reach out for
it? Does he/she understand what it means to accept it? If the world were
dropped in his/her hands now, would the youth know what to do with it?
Bringing these questions to the students’ consciousness following the cere-
mony is most important, according to John Beheler. This is the way the
experience impacts education. It is how the child’s development, the commu-
nity and the ceremony take their role in sustaining one another. Beheler
emphasizes that teachers and parents must have the capacity to provide a liv-
ing cultural context to ensure this quality in education. If adults are not
versed in traditions and song or are not allowed or encouraged to speak and
to live them, then activities such as the Throwing of the Ball Ceremony
become simply folklore. These concerns are echoed at schools within Indian
Country. Bureau of Indian Affairs2 (BIA) schools may have cultural directors,
2 The Bureau of Indian Affairs is the agency of the U.S. Department of the Interior respon-
sible for providing services to federally recognized Native American tribes and communities.
Services include the array of government provided services that would ordinarily by funded
and managed by special districts, cities, counties and states, including health, education, wel-
fare, law enforcement and courts, community infrastructure (roads, water, etc.). In recent years
there has been an effort to provide funds to the tribes and communities and to allow tribal
authorities to manage many of these services directly.
but teachers who live and practice the tribe’s sacred traditions cannot share
personal experience with the children, or teach songs or crafts that honor
their Native spirituality because BIA schools enforce the U.S. government
standard of separation of church and state. Teachers who participate in tribal
traditions are silenced.
Our advisors note that sharing information covertly helped to maintain
knowledge and practice of traditional beliefs and ceremonies.3 Children
respect teachers who provide traditional knowledge; children also develop
self-respect through knowledge of ancestral beliefs. At tribally administered
schools, teachers and staff have more freedom to include rituals and cere-
monies as part of the normal school routine. In these situations, teachers
report that Native American practices have become powerful and helpful
tools in early intervention and prevention work. Some traditions, such as
Pow-Wows and costume and dance contests are preserved at BIA schools.
Although these activities may maintain the social form of traditions, they
were never intended to keep the spiritual context alive. There is also con-
cern that the appointment of a school Cultural Director acknowledges that
traditional culture no longer survives adequately in the community. Bad
Hand states that ceremonies have always been a living and dynamic
process. They are a product of time, place and tradition: handed down by
history, and interpreted by elders and leaders to meet the demands of the
time. He states that this element has been lost in much of contemporary cer-
emonial observances. Instead, Native Peoples have become concerned with
‘getting it right’, and the responsiveness, complexity and adaptability of liv-
ing tradition has been lost. This dynamic is addressed further in our discus-
sion of complex adaptive systems and complexity theory below.
In addition to schools, tribal juvenile justice systems are also incorporat-
ing traditional teachings and ceremonies into rehabilitation programming
in their facilities. Pat Bad Hand is a director of the Rosebud Sioux
Community’s new (2005) Youth Wellness and Renewal Center, Wiconi
Wanbli Tipi, serving a detained, court-ordered juvenile population.
The project is committed to the use of traditional Lakota Sioux teachings in
rehabilitating the youth who are in the facility. One of the major program
goals of Wiconi Wanbli Tipi is to help youth to regain and reclaim an
understanding of their tios’paye, which is a Sioux concept representing the
story of one’s relatives and ancestry, one’s name, one’s circle and one’s life.4
3 Howard Bad Hand (personal communication), A.C. Ross (personal communications) and
Meyer (2002) share that such covert or secretive observance is a time-honored tradition for
native peoples. Bad Hand states that for the century that the Sun Dance was outlawed, his peo-
ple would sneak it in, early in the morning before July 4th celebrations. As Meyer indicates
with the legal system, Native People often needed to disguise their teachings and practices in
a European or American form in order to secretly pay honor to their knowledge and their
ways.
4 According to Black Elk; translated as ‘ti (where we live) ospaye (apart but not separated
completely)’ (DeMalle 1984, 320–1).

Witnessing generations come of age without an understanding of their place

among their ancestors, their families and their community represents one of
the most painful losses endured by Sioux elders.
Psychologists and anthropologists report that secure mother/infant
attachment is the single greatest factor correlated with non-violent societies
(Prescott 1980). Yet American Indian people have been subjected to
Western hegemony telling them:
... from every direction and in every way, that (they) have no value to anyone, no
purpose to (their) lives, no positive impact on the world around (them) ... At
some point people brought to this position stand up and demand to be noticed,
to be recognized as being alive, as having influence and power (author’s empha-
sis). And the easiest way to assert power, to prove that you exist, is to demon-
strate over people who are weaker still, primarily by making them do things they
don’t want to do. The more those things shame and diminish that weaker person,
the more the abuser feels, within the twisted logic of victimizations, that they
have been empowered and restored themselves. (Ross 1996, 48)
In many Native communities high levels of alcohol abuse, domestic vio-

lence, physical and sexual abuse, vandalism, and gang involvement illus-
trate the level of community social illness. Pat Bad Hand and colleagues at
Wiconi Wanbli Tipi recognize the importance of these factors. They are
committed and determined that their youth develop an intimate knowledge
of tios’paye; their kinship circle, their relatives, their community, what it
means for this individual to have his/her name and to be accountable to the
legacy of his/her ancestors. It is the inclusion of the circles of family, com-
munity and ultimately the enveloping context of cultural/spiritual cere-
mony, values, beliefs and integrated system within the framework of
restorative justice conflict resolution that provides a coherent context
whereby delinquent youths and their families may choose to make whole
their victims and their community. The same framework also provides the
context whereby the community may choose to restore the offender and
his/her family.
Attacks on the living cultural context
Zion (2002a, 9) reports that one contemporary theory of Indian crime and
violence is that it is actually a form of ‘mass post-traumatic stress disorder’
(PTSD), resulting from centuries of failed European experiments to solve
the ‘Indian problem’. Europeans viewed the interrelated systems of educa-
tion, religion, justice, science, medicine, agriculture, hunting, and gover-
nance as the ‘Indian problem’ that needed to be eradicated. Eradication
attempts have been partially successful with severe damage to the integrated
social systems of precontact Native America that has led to a prevalence of
intergenerational learned violence among Indian families and communities

(Zion 2002a). Likewise, many Native American teachers and elders observe
that some of the greatest harm done to Indians today is by Indians them-
selves (Bad Hand 2002). This has caused great tension within communities
(Bad Hand 2002, 35–6).
In trying to appreciate more fully the effects of European ways upon
the living cultural context of Native Americans, Canadian Crown
Prosecutor Ross has developed a story that was given to him by a Native
teacher:
Imagine that our two cultures are represented by a skin diver and a moon walker.
Because they lived and worked in different environments, they developed differ-
ent footwear to suit their needs. The moon walker created heavy boots, because
there is less gravity on the moon. Without them, he would float off into space.
The skin diver needed swimfins to propel him through the ocean. Without them,
his ability to move about was diminished. As long as each stayed with his own
footwear, in his own environment, he could move easily and well. If, however, the
skin diver were forced to put on weighted moon boots, he would be at risk of
drowning. Similarly, if the moon walker changed to swimfins, he would likely
float off into space. In either case, each would be likely to come to grief if forced
to wear the other’s footgear.
But imagine that Moon Boots came over to Swim Fins’ land, and not appre-
ciating why he needed flippers said ‘You need to wear Moon Boots’. Believing
in the ‘rightness’ of his ways, all measures were employed: from persuasion
and ridicule right through to legal prohibition ... However, Swim Fins would
not have changed environments, he would have only lost the ability to move
around in his own world. Over time, his loss of mobility and power would
take away his wish to move. No longer would he rejoice in his land and his
relationships to it.
Within that metaphor, the Western world has indeed done everything it could
to force Aboriginal people to discard their traditional footwear. ... Instead of
being encouraged to develop personal qualities and wide notions of responsibil-
ity, they found themselves trained into unthinking acceptance of codes of ‘right’
behavior established by others. Instead of a ‘Natural Law’ of interdependence
requiring that they connect with each other as co-adventurers, they were trained
to start thinking of themselves as ‘better than’ or ‘worse than’ their fellows ... .
... Traditional law makes no such assertion, and attempts no such imposition.
Instead, it grants that each person, family, community and nation should be as
free as possible to put their own wisdoms into practice within their own spheres
of activity. Ironically, it is our very system of Canadian (American or English) law,
especially its emphasis on absolute truths and one right answer, which seems to
be the greatest felon where traditional law is concerned. (Ross 1996, 268–70)
Another example is that the Western/European way is intrinsically hierarchi-

cal in nature, and Native understanding is not. European invaders naturally
saw their beliefs and their God as inhabiting the top spot, the right way and
the truth. Native people did not propose that their God was better or that
their spirits were stronger. They did not compete for the top spot in the hier-
archy because they had no appreciation that a hierarchy existed (Neihardt
1932; Mails 1991; Ross 1989; Bad Hand 2002). For example, with regard
to the Lakota:
This spirit-centered worldview of the Lakotas is a worldview in which human

beings are not superior to, but equal with other creatures of the earth. This view
contrasts sharply with that of Judeo-Christian philosophy, which views human
beings as superior to other creatures—’a little less than the angels ...’ (Voss et al
1999, 230)
Or as Associate Chief Justice Murray Sinclair, Ojibway, of the Provincial

Court of Manitoba stated:
I am not a biblical scholar, but as I have come to understand it, in the Judeo-
Christian tradition, man occupies a position just below God and the angels, but
above all other earthly creation ... In sharp contrast, the aboriginal world-view
holds that mankind is the least powerful and least important factor in creation ...
Mankind’s interests are not to be placed above those of any other part of creation
... In the matter of hierarchy, or relative importance of beings within creation,
Aboriginal and Western intellectual tradition are almost diametrically opposed.
(Ross 1996, 61)
Basil Johnston, an Ojibway scholar, relates that the Ojibway hierarchy of

Creation is based on dependencies. ‘It places the Mother Earth (and her
lifeblood, the waters) in first place, for without them there would be no
plant, animal or human life’ (quoted in Ross 1996, 61). Next are the plant
nations followed by the animal world. Last and clearly least important
are humans, since ‘Nothing whatever depends on our survival’ (in Ross
1996, 61). By contrast, Western philosophy and religion place distance
between human beings and the natural world, setting the hierarchical
template institutionalized in Western civilization (Waldram 1994). It is
reported that Native Americans had neither hierarchy nor permanence in
their views on leadership, although there is recognition of the need for
leadership.
Growing congruence between Native understanding and Western science
In the last century, breakthroughs in many scientific fields of research have

led to transformations in how the world is viewed by Western science.
These findings are locating Western philosophy and science closer to Native
understanding than was previously thought possible. Recent developments
in scientific study, including physics (Lipton 2001; Ross 1996), linguistics
(Ross 1996), organic chemistry (Lipton 1998; 2001), the structure and
action of DNA (Cairns et al 1988; Lipton 2001; Ridley 2003; Thaler 1994),
cellular biology (Cairns, et al 1988; Lipton 1998, 2001; Thaler 1994), fetal
development (Gibbons 1998a; Lipton 2001), early childhood development
and psychology (Siegel 1999), chaos and complexity theories (Siegel and
Hartzell 2003), study of complex adaptive systems (Peroff and Wildcat
2002; Siegel and Hartzell 2003), and Native American psychology (Bad
Hand 2002) all point toward congruence between the previously dualistic
nature of the Western worldview and the holistic nature of the Native
American worldview. The predominant trend is toward the holistic view-
point that healthy systems are interactive and naturally adaptive and self-
organizing in the direction of increased complexity. Complexity lies
between the extremes of sameness, rigidity and predictability, or random-
ness, unpredictability and disorder (Siegel and Hartzell 2003). Such systems
are open, receive input from outside, have layers of components capable of
chaotic behavior and are thus adaptable in changing circumstances.
Complexity is the path of harmony, the path of wicozani or hozho’, the
path between the two extremes. It is the same as the ‘Good Red Road’ often
referred to in Lakota life and prayer. It is similar to what Dr. A.C. Ross
describes as the struggle of some Native people to live a sober life. On one
side are the invitations of the comrades for drinking and excess. On the
other are the tee-totalers and prohibitionists. For him and for other Native
peoples their path to recovery consists of staying on the path between the
chaos of excessive drinking and the rigidity of prohibitionists (Ross 1989).
According to Zion (2002a), the Navajo spiritual path is similarly not the
path of being ‘all good’. It is a path of being in balance between the
extremes of all good and all evil.
Howard Bad Hand, in responding to questions about Native American
healing today, says: ‘All dynamic systems require change. We are in the
midst of change and transformation with our traditions, practices and
beliefs. However, the truths I have learned about humanity and life from my
people, especially from the old ones, have been solidly consistent and
enduring’ (Bad Hand 2002, 12). Further, Howard Bad Hand relates that,
‘... If you wish to know the independence of that which is idealized in life,
the growth of that which is High cannot be based on the rigid and the
unmoving ... All face the law of having to change with the times. Or, the
times will come and shatter their rigidity’ (Bad Hand 2002, 192). It appears
that teachers (e.g. Bad Hand) are confirming that Native American spiritu-
ality and tradition endure because they honor the principles of complex
adaptive systems.
There is a vibrant quality that emerges when systems are able to move in
their natural, self-organizational flow toward complexity. The natural
movement of the mind is also toward complexity and toward mental
health. A stressed system, on the other hand, is one that tends to move away
from complexity, toward extremes of rigidity or disorder (Siegel and
Hartzell 2003). Psychological research with securely attached children and
their parents reveals evidence of complex give-and-take in which each per-

son contributes to the dialogue and can anticipate, but never fully predict,
the response of the other. There is a vibrant matching, a pacing and alive-
ness present in the connection between parent and child. Through this
process with an attuned and mindful adult, securely attached children learn
to regulate behavior (Siegel and Hartzell 2003).
Most behavioral issues with onset in early childhood are caused by the
child’s inability to attach to or the unavailability of a primary parent figure.
Such children will generally become the offenders of the next generation
(Siegel 1999; Prescott 1979, 1980; Cline 2001). The Navajo would say about
such an individual that ‘he acts as if he has no relatives’. In this way, he betrays
solidarity and kinship, and he becomes ‘crazy’ (Bluehouse and Zion 1993,
331). The Lakota would agree that this person has no relation with tios’paye
and therefore is not open to the help his community and family can offer.
One reason why Western healing and corrections have not been effective
with Native peoples is the overemphasis on the individual. Theories of rel-
ativity, complexity, and chaos; environmental influence; and the importance
of a coherent narrative describe an evolution in Western science leading to
a convergence with the values and traditions of Native philosophy. Patterns
of the critical interplay of families, communities and the environment on
genetic expression, individual development, health, healing, recovery and
rehabilitation have become apparent. While these developments have
occurred in science and health, a similar path can be traced in law and jus-
tice including the revitalization of restorative justice as a system for dealing
with juvenile delinquency.
The Western legal system: when did victims of crime become victims of
the criminal justice process?
An adversarial legal system is of necessity a hostile environment; it is

organized as a battlefield in which strategies of aggressive argument and
psychological attack replace those of physical force. (Herman 1992, 72)
Our children and the community can no longer afford the price the legal
system is extracting in its attempts to provide justice in our community.
(Community Holistic Circle Healing 1993, 5)
Traditional Native American and Aboriginal approaches to justice and
corrections focus on harm done to victims and the community. Restitution
is made to the victim and the victim’s family, and optimally, the offender
and victim will be restored to a mutually acceptable relationship. In so doing,
the community is also wholly restored (LeResche 1993). Western justice
shared this restorative focus until about the early 12th century.
However, with the passage of ‘Leges Henrici’ between 1112 and 1116,
the English King, Henry I, declared that crimes were against the crown and
that fines were payable to the crown prior to restitution made to victims.
Over time, restitution was viewed as interfering with the crown’s right to
exact a penalty for crime. Victims could sue for damages, but the state
authority received what was originally direct restitution to the victim
(Meyer 2002). The victim’s role in providing evidence for the state’s prose-
cution became more important than his/her need for healing, safety or com-
pensation.
The justice system began to serve the needs of the abstract state, more
than it served the needs of the victim and community (Umbreit and
Bradshaw 1997).5 This trend and pattern became so out of balance that by
1970 the ‘Victim’s Rights Movement’ erupted in the United States, as well
as movements for alternative and community policing, neighborhood
watch, and other forms of more informal social control (Meyer 2002). In
contemporary society most systems of adjudication and municipal law
remain reactive adversarial processes, which are vertical and hierarchical in
nature and use force to implement decisions or sanctions assuming one
truth in any given situation. This reactive, adversarial, coercive and hierar-
chical system has essentially prevailed over traditional forms of justice, even
in Tribal Courts. Most Native American scholars date the formal destruc-
tion of tribal justice systems at 10 April 1883, when the U.S. Commissioner
of Indian Affairs created the Courts of Indian Offenses. With this ruling,
followed by the Major Crimes Act of 1885, Native justice systems were
completely transformed at the mandate of the federal government (Meyer
2002, 1380; Meyer and Zion 2000). Meyer notes:
However, traditional justice was not completely annihilated; some tribal members
were able to conceal their continued practice of traditional forms of justice from
white view or found ways to embed some traditional thought in decisions issued
from the Euro-American Courts of Indian Offenses. (Meyer 2002, 1380)
From a tribal perspective, the European model of justice imposed on

Native Americans lacked the ability to deal with crime. How could ignor-
ing the cause and origin of the problem reduce offensive behavior? In
addition, victims could not expect justice from the federal courts. Not
only were they left without reparations and compensation but they also
lost the ability to tell their stories about how the offense had harmed them
(Meyer 2002, 1386). Navajo healing understands that diagnosis and heal-
ing happen when a victim is able to give meaning to a problem through
narrative; the person needs to ‘talk about’ and ‘talk out’ the problem in a
social context (Zion 2002a, 28). When tribes lost their ability to use tra-
ditional techniques, they lost a powerful tool in their fight against crime
5 Nowhere has this imbalance been as pronounced as the War on Drugs. Pre-1984, U.S.
prison populations were largely made up of violent criminals. Today, 60% of those in prison
are non-violent drug offenders (Jensen et al 2004).
and disorder. They lost the ability to develop a ‘coherent narrative’ to deal
with what had occurred. The tios’paye of the tribe was no longer allowed
to inform or be informed by the transgression and the corresponding
opportunity for restoration. Recent efforts in Native communities are
reinstituting forms of traditional justice by engaging in restorative justice
conflict resolution.
LITERATURE REVIEW OF CONFLICT RESOLUTION/CRIME

PREVENTION AND INTERVENTION PROGRAMMING USING
TRADITION IN NATIVE COMMUNITIES
In addition to a brief review of the peculiarities of justice systems in Indian

Country, this section will describe several restorative justice conflict resolu-
tion programs operating in Native communities as they have been presented
in published material. In addition, other material will be synthesized in
terms of various principles, theories, or other ideas germane to the topic.
This is not the result of an exhaustive literature search.
One of the issues affecting the reintroduction of traditional restorative
justice in Native communities is the matter of jurisdictional responsibility
for managing justice. The central Canadian government is responsible for
managing the justice system in Canadian First Nations communities.
Within the United States there is a lack of coherence among the institutions
of justice in Native communities. Responsibility for community social con-
trol is disjointed and spread between different governmental authorities
that frequently do not work together, trust each other or communicate with
each other. Many American Indian tribes and communities do not have
authority over serious juvenile offenders in their own community. There is
not even a consistent pattern to this lack of coherence across Indian
Country. In some states the state court system and local law enforcement
have responsibility for managing justice within Native American communi-
ties. In other states, some (but not necessarily all) Native American tribes
manage their own tribal court systems and law enforcement agencies.
However, in these communities the Federal courts have taken responsibility
for investigating, prosecuting and adjudicating such major crimes as rape,
murder, major drug dealing, and incest. Youths who are adjudicated for
major crimes in Federal courts and enter the custody of the U.S. Bureau of
Prisons are removed and incarcerated in contracted state or private facilities
that may be distant from their home community. Where tribal courts do
exist, they have limited ability to impose sentence (one year or less) or fine
($5,000 or less), which leaves these communities with many mid-range offenses
which they have difficulty sentencing effectively. Given the low level of
funding for intervention and prevention services, these peculiarities of adju-
dicating crime in Indian Country, and the ineffectiveness of punitive justice
at reducing recidivism and preventing crime, it is particularly important

that juvenile offenders be dealt with at the lowest level of offense or pre-
vented from offending. Restorative justice conflict resolution can play a
major role in this effort. The following briefly describes the attempts by
some communities to use Native traditions to reinstitute restorative justice
conflict resolution with juvenile offenders.
Emmonak Elders’ Group
A recent restorative justice initiative in a Native community is the Emmonak

Elders’ Group in the Alaska Yukon Delta Yup’ik Eskimo community of
Emmonak (total population of 800, with 200 youth enrolled in school)
(Justice Center 2001). In agreement with the Alaska Division of Juvenile
Justice, the Emmonak Elders’ Group handles most non-felony juvenile cases
within the community, which has allowed the youth to remain in the com-
munity while their case is being adjudicated through the elders. This process
avoids the formal Alaska state justice system, which usually involves
removal of the youth from the village and lengthy processing prior to con-
sequences. Instead, youth are quickly held accountable within the context
of community traditions.
The Elders’ Group was started in 1997 in response to increasing social
problems in the community. Their original goal was to pass down tradi-
tional knowledge and wisdom to younger generations. They have also
addressed domestic violence by educating families and providing culturally
based guidelines. The juvenile program started in 1999 with two goals: to
reduce juvenile crime and recidivism, and to increase the skills, knowledge
and control of local Native entities in solving village issues. These goals
were to be achieved by increasing collaboration between state and
local/tribal organizations and by restoring cultural relevance to community
social controls and education by incorporating Yup’ik traditional values
and beliefs into youth-serving systems.
One member of staff, funded by U.S. Department of Justice block-grant
funding to the State of Alaska, is responsible for processing referrals from
the state justice system and monitoring sentence completion. The person in
this position is critical to the effectiveness of the restorative justice project
but the Elders’ Group is the essence of the project. The Alaska Division of
Juvenile Justice (DJJ) regional office in Bethel, Alaska receives the case of
every juvenile who is accused of violating the law (as determined by local
police and magistrates or district court judges). Juveniles are assigned to a
probation officer who determines whether the youth should have the choice
of appearing before the Emmonak Elders’ Group or stay in the state system
for formal processing. The decision to offer the option is based on prior
offense history, current charge, and offender’s age. The juvenile and his/her
parent(s) must agree to accept the authority of the Elders to administer

the case. An increasing number of early interventions in the form of local
referrals to the Elders’ Group are also being made by families, community
members and schools without DJJ involvement.
A hearing occurs in the community within 8–10 weeks following arrest
or other referral. The Elders’ Group, the youth and his/her family, and the
staff member attend. Police are invited but infrequently participate. The
agenda allows everyone to speak, there is then a break for the Elders to con-
fer in private, and the process ends with sentencing the youth at which time
all the Elders have a chance to speak to the youth and family. Sentencing is
the core of the procedure and includes stories from the Elders about their
own youth with discussion of values and guidance that were handed down
to them, Yup’ik myths, and warnings about consequences for continued
‘bad’ behavior. Most sentences involve a period of community service.
Finally, the youth is given a chance to speak.
The documented strengths of the program are the quick referral process,
the community collaborations that have been built, expansion of referrals
from local sources resulting in earlier intervention and resultant reduction
of cases referred to the DJJ, and an expressed generalized positive feeling of
community pride, as well as greater interest expressed in understanding
the needs of community youth. Weaknesses are the lack of formal systems
for providing case information to community referral agencies and poor
record-keeping that makes it difficult to track recidivism. Comments
about the program from families, elders and community members include
the following:
The elders opened her eyes. It doesn’t make sense for the young people to sit in
jail and not do anything. They should be here in the community at home doing
something productive. In court the kids are just pieces of paper and with the eld-
ers’ court the kids are people with families and histories ... She really changed,
changed her attitude. They just sort of opened her eyes to what she was doing to
herself. The whole community gets involved when the general elders’ meetings
occur.
The elders provided very good advice. Within a week I noticed her face was
glowing. We talk about things now that we never did before. By referring my
daughter to the Elders’ Group it made my daughter feel more cared about, both
from me and also by people in the community.
Our role is to pass on wisdom. It’s knowledge, values, passed down.
Knowledge is worthless unless it’s passed on.
We try to give advice without breaking their spirit. This is what I see when kids
come back from Bethel. Their spirit is broken.
Everyone can change their way of life. I’ve seen this for many years. The kids
know we think this.
The project is helping to bring back a new generation. Our dances are com-
ing back and we are taping the elders’ proceedings, saving the wisdom and the
language.
To ensure ongoing success and continuity of operations, it will be impor-

tant for this program to continue funding the administrative staff person
position and to improve record keeping that can demonstrate the effective-
ness of the program.
Navajo peacemaking
A similar program operated in one district of the Navajo Nation court sys-
tem between 1996 and 1999 (Rubin 2001). The Navajo Nation operates its
own tribal justice system with only those offenders who commit crimes
falling under the Major Crimes Act being processed in the U.S. Federal jus-
tice system. Serious problems with juvenile delinquency exist in the Navajo
Nation: over 2,000 charges were dealt with in the tribal court system in
1999. Gangs are well-established and cause serious violence (Rubin 2001).
The Navajo Tribal Code directs the court to utilize Navajo common law and
tribal statutes enacted by the Tribal Council as the laws of preference, fol-
lowed by federal law, if applicable, and finally state law. Navajo common
law is the traditional ways of the Navajo people, which are regularly argued
in the Nation’s courts and can be found in many publications and Navajo
Supreme Court decisions, as well as by consulting elders, stories and oral his-
tory. Chief Justice Robert Yazzie states the vision of the tribal court system:
It is not to punish, boss people around, have courts seen as powerful people who
tell others how to live their lives, or courts being distant and alien from the peo-
ple. It is a vision of courts as partners in the process of making it possible for
Navajos to live freely as Navajos. (Rubin 2001, 2)
Within the Navajo courts, one method of increasing the use of tradition is
to institutionalize historic Peacemaking practices by using community lead-
ers and elders to resolve conflicts. Peacemaking is used primarily in family
and civil disputes but it has also been used in juvenile delinquency cases as
a diversion from court or as directed by a judge at judicial disposition.
Navajo district courts employ liaisons who arrange for Peacemakers, who
are elders with traditional Navajo wisdom, to meet with the concerned par-
ties, keep records, and monitor implementation of an agreement. The
Peacemaker Court heals relationships and achieves solidarity, balance and
harmony. Lawyers and judges, as well as other professionals, are not
involved. Restitution is only a small part of healing with a talking-out
process being the major action that enables authentic healing.
Usually, three Peacemaking sessions are held for each case during a one
year time period, with counseling occurring in between sessions. The first
session gathers a wide range of information about the family and the youth
with development of an individualized treatment plan that can include use
of traditional ceremonial healing along with more standard counseling and
other services. A second session several months later reviews progress and
needs—service providers may participate and the treatment plan is
reviewed. A final session assesses whether the treatment plan was com-
pleted and successful, and a follow-up plan is designed.
Rubin (2001) analyzed the Chinle District Juvenile Peacemaking Court
for three years (1996–9) and states that the value of Peacemaking was
demonstrated in the lives of juveniles and families. Records are scant, there-
fore it is difficult to know if juvenile delinquency has been reduced by
Peacemaking. It is the author’s impression that Peacemaking with juvenile
offenders was only used within one district for a small number of cases.
However, the potential exists for much more extensive involvement of
Peacemaking throughout the Navajo Nation.
Healing Circles in Hollow Water, Canada
In the book Returning to the Teachings, Rupert Ross, Assistant Crown

Attorney for the Canadian Justice Department, writes about his multi-year
investigation of traditional healing among Canada’s Aboriginal people (Ross
1996). Ross had worked in the system as the prosecutor in juvenile criminal
cases in Aboriginal villages and was given the opportunity to work for sev-
eral years finding and documenting those Native communities who were
dealing with serious postmodern social ills. His description of the Healing
Circles in Hollow Water, Manitoba, Canada are particularly engaging.
This effort came about when a group of Hollow Water residents—mostly
Aboriginal women—met to discuss community problems, especially con-
cerning youth. Many in the group were social service practitioners. In the
process of working with the families of troubled youth it was discovered
that the children’s homes were plagued by high levels of substance abuse
and family violence that was mostly not acknowledged or dealt with in the
community. In looking at the cause of these problems among the adults the
group of healing professionals discovered that in a community of 600 there
was an extremely high level of historical and generational incest and sexual
abuse. It was estimated that 80% of residents (male and female) had at one
time or another sexually abused someone else.
The group determined that professional barriers had to come down—the
former way of operating in separate agencies with confidentiality rules pre-
vented them from achieving their shared goal of healing people to whole-
ness. A true team approach was created that incorporated outside
professionals but required inclusion of lay team members as a means of
sharing knowledge with the community. This partnership also created a
way for the lay team members to train the outside professionals to work
within the Native holistic framework. Extensive cross-training included
information sharing across disciplines, Western models for intervention and
healing, and exploring traditional ways and teachings being practised in

other Aboriginal communities. As the level of sexual abuse in the commu-
nity became clear to the team, members themselves had to confront the sit-
uation of their own histories of sexual abuse before they were ready to
reach out to others. Since this work had occurred prior to Ross’s explo-
ration he could not describe it. The Healing Circles used with community
members involve the practitioners sharing their own stories and sketching
the pathways that lead victims and abusers away from self-hatred, alien-
ation, anger and despair. Team members started on the healing path with-
out traditional cleansings that were included later.
Ross (1996) reports that the strategy that the community team has devel-
oped involves a detailed protocol that leads all participants through a num-
ber of steps. These stages are truly restorative to all involved, and to the
extent the participants choose, includes use of a number of traditional
cleansing rituals. The process takes at least two years and some last much
longer. The process occurs outside the criminal justice process, although
links are maintained. When sexual abuse is alleged, the assessment team
quickly evaluates the complaint and if it appears valid, swings into action
with the organizational level described as ‘a complex military action’ (Ross
1996, 33).
The victimizer is confronted with the allegations (with police backup if
needed), listened to, and offered support and accompaniment through the
criminal justice process if sincere efforts are made to accept responsibility
and go through the healing process. At the same time, team members con-
tact others who will be affected by the disclosure to explain what has been
alleged, the processes to be followed, and the help that might be made avail-
able. No one is left in the dark or alone in painful isolation. The victimizer
is accompanied to the police station where formal charging occurs and
he/she is asked to make a statement (not admissible in court but seen as a
first step in accepting responsibility). The team then requires the victimizer
to enter a guilty plea in court as quickly as possible. It asks the court to
delay sentencing as long as possible so that the team can have the time it
needs to work with the victim, offender, families, and community before
presenting the court with a realistic assessment of the challenges and possi-
bilities of the particular case. The team likes to see sentencing delayed until
completion of the formal healing process, but frequently that is too long for
the court system. Team members are involved in preparing sentencing
reports and participating in court-based Healing Circles.
Ross (1996) reports that the Hollow Water Healing Circles’ processes are
evolving over time with greater participation of victimizers and victims and
with greater interaction between community healing process and court
process. A more recent step has been to require follow-up community
Healing Circles at six month intervals following completion of the formal
healing process but without the court’s involvement to affirm the promises
made, to honor further healing steps, and to maintain community expecta-

tions of victimizers. Of 48 offenders over a nine-year period, only five had
gone to jail, primarily due to failure to participate in the healing program.
Only 2 of the 43 completers had been charged with reoffending, one at an
early stage in the process and the other during the infancy of the program.
This latter person has since completed the formal healing program and gone
on to become a valuable member of the Healing Circles team.
The strengths of the Hollow Water Healing Circles team and processes
are its embeddedness in the community, its true team development, the
commitment of the team members to work through the healing process
with all parties concerned and at all stages of healing (including denial and
joking about the offense from the victimizer—the shift from denial to jok-
ing is viewed as a positive step toward healing), the modeling of healing that
team members (former victims and some of them former victimizers) pro-
vide to victims and offenders, and the openness of the process. Serious com-
munity ills such as sexual abuse can only exist at the level experienced in
Hollow Water when they stay secret, private, and shameful.
Thoughts on the foundations, philosophy, and status of Native American

law and restorative justice
This section will add to our discussion of Native American philosophy, psy-
chology, point of view, and understanding of the role of humanity in the
cosmos and the close fit between restorative justice and use of traditional
healing for dispute resolution with delinquent juveniles in these Native con-
ceptions. Carey Vicenti, Chief Judge of the Jicarilla Apache Tribe, writes
that in stark contrast to American society:
... the Indian concept of the human being is one in which all aspects of the per-
son and his or her society are integrated. Every action in daily life is read to have
meaning and implication to the individual and guides how he or she interacts
with tribal society or fulfills obligations imposed by society, law, and religion ...
Therefore our institutions were not designed, as in American society, to discover
the truth. Our institutions focused more upon determining the manner in which
a transgression against social order would be remediated ... part of the remedy is
in performing the exploration ... (It) is essential that the internal and external life
of any perpetrator be examined to determine whether the individual is healthy or
whole. And ultimately, we desire to reintegrate the individual back into tribal
society. (Vicenti 1995, 3, 9–10)
Zion (2002b, 5) states that ‘Traditional Indian Justice differs from Western
models because it recognizes the healing component. Indian justice is not
simply indigenous methods of resolving disputes, but a philosophy of life
based upon respect and relationships’. Another contrast that Zion
(undated) discusses is that Western justice does not try to reach into the
mind or deal with psychological injuries, whereas traditional indigenous
law does, which is why it heals and restores both victim and offender. Brill
(1997) notes the emphasis of Indian justice on civil sanctions and diffusion
of power rather than consolidation of political power. This writer also notes
that ‘civil refers to processes that attempt to restore relationships rather
than permanently separate or stigmatize’ (Brill 1997, 131). Chief Justice of
the Navajo Nation, Robert Yazzie, recently called for a push by tribes,
tribal courts, Indian Law organizations, Indian Country leadership and aca-
demics to promote and use Indian law as the law of preference (Yazzie
2003). Vicenti (1995) discusses the status of tribal courts across the U.S.
and notes that lack of funding for sufficient competent staff to adequately
justify the place and purpose of the court within the democratic structure
of tribal government undermines the rest of tribal government. He also
states that in 1995 ‘few tribes [had] reached a level of maturity where they
can meaningfully make choices between traditional practice and American
legal process’ (Vicenti 1995, 15). However, it is our impression that
progress is occurring rapidly in this area.
Others describe the benefits of indigenous or traditional justice in the
forms in which it is being reintegrated into tribal court systems. Melton
(1999, 24) notes that the indigenous process is ‘non-adversarial and facili-
tates discussion between people in conflict in a safe environment that pro-
motes resolution of underlying problems and keeping relationships intact.
The communication process is fluid and allows for discussion of multiple
viewpoints of the problem or conflict from those directly or indirectly
affected’.
Native thought on adversarial courts is that opportunities are missed by
offering healing to no one and only relying on deterrence and confinement,
which works against the healing process and moves unbalanced persons
further out of balance. One should not get the idea that traditional
Indian law was without provision for dealing with dangerous individuals.
Community welfare was paramount and those persons who resisted or
were beyond community efforts aimed at healing could be killed (usually
reserved for those considered truly evil, e.g. practitioners of witchcraft
that harmed others) or banished to the wilderness (Ross 1996). In addition,
traditional teaching could be quite painful to body and mind. The differ-
ence with Western justice is that it is not ‘strictly ... punishment, unac-
companied by efforts to move people forward out of their problems ...’
(Ross 1996, 14).
Vicenti (1995) points out that the American system of government with
its adversarial system of justice is a large part of American culture. Imposition
of this justice system with the purpose of correcting perceived rampant
injustice creates greater injustice by forcing its culture on Indian peoples.
Finally, Cruz says: ‘an indigenous nation’s sovereignty is strengthened if its
law is based upon its own internalized values and norms ... traditional law
is internal to a particular community, oral and for the most part, dynamic
and not static in nature...(as) the fundamental principles of customary law
do not change. They are simply extended to cover new situations’ (Cruz
undated, 2, 4).
Restorative justice and therapeutic jurisprudence and other original
forms of dispute resolution (ODR) represent a horizontal legal system.
Examples of such forms of justice are found in international law, in addi-
tion to the laws of many Native peoples. The core of the common law of
most Native peoples is the ‘segmentary lineage system’, which is a method
of tracing relationships and adjusting disputes among people who are
related to each other in various ways (Barkun 1968). A horizontal legal
system assumes and works for equality between participants (Haberfeld
and Townsend 1993). It is a relationship-centered process, not agreement-
centered. Its goal is to sustain community health (LeResche 1993). It is
not a reactive adversarial process, and its preference is to avoid force or
coercion.
According to Zion (2002b), ‘therapeutic jurisprudence’ is a new philoso-
phy of using science and healthcare (including mental health services) to
seize crime as an opportunity for healing rather than only for retribution
and punishment. Zion (2002b) adds that we need therapeutic jurisprudence
because people hurt each other. Violence is part of our human behavior;
aggression is used as a form of intimidation and dominance, and aggression
is redirected by people who have been hurt against weaker victims (e.g.
women, children and animals). For many traditional peoples who hear of
the possible healing nature of law, of ‘appreciative inquiry’, of ‘Getting to
Yes’, of ‘talking things out’ in a circle and giving every person a voice and
honoring mutuality, most would respond with ‘What’s new? Our ancestors
were doing this for centuries’ (Haberfeld and Townsend 1993; Whitney and
Trosten-Bloom 2003; Zion 2002a, 2002b).
Original forms of dispute resolution revolve around the ability of offend-
ers to completely restore themselves and their victims within their commu-
nity, even in the case of very serious crimes. A prime example is the
approach described above in Hollow Water, Manitoba, Canada. Instead of
focusing on legal sanctions, prosecution and punishment, the community-
based program focuses on full accountability, retribution to victims, and
healing for all. The program involves a 13-step program over a period of
several years. For some people, it would be easier to go to jail:
After completing the program, the former abuser goes through a cleansing cere-
mony to ‘mark a new beginning for all involved’. During the ceremony, the for-
mer abuser washes his victim’s feet (part of a traditional puberty rite),
symbolically allowing her to re-enter womanhood, then throws a mask he has
worn throughout the ceremony into a fire, symbolically destroying his identity as
an abuser. Those who complete the program are welcomed back into society as
though they had never offended in the first place. (Meyer 2002, 1382; see also
Community Holistic Circle Healing 1993)
This program has a very low recidivism rate. In American society many
accept the claim that adult sex offenders are incurable and need to be
incapacitated, registered and monitored for life.6 In the Hollow Water
program recidivism for adult sex offenders is less than 5% (Aboriginal
Peoples Collection 1997; Community Holistic Circle Healing 1993;
Ross 1996).
As the restorative justice program for sexual abusers at Hollow Water
indicates, there can be and needs to be a powerful healing component for
all parties involved. Disharmony and crime are viewed as signs of problems
with the health of the community, not only with an individual. By
approaching the problem and intervention from a community standpoint,
specific ceremonies aimed at eliminating the roots of disorder can be
approached and accomplished as a community. In this way, Native
Americans cope with emotional losses and other traumatic life altering
occurrences at the same time as using crime as an opportunity for restoring
offenders, victims and the community to greater strength, wholeness, inte-
gration and complexity (Meyer 2002).
While establishment of the Courts of Indian Offenses in 1883 and the
Major Crimes Act of 1885 transferred prosecutorial power from Native
American tribes to the federal government for certain serious offenses, the
experience of Hollow Water indicates that for some very serious offenses,
confinement may be inadequate (Ross 1996). In the words of the people of
Hollow Water:
What the threat of incarceration does do is keep people from coming forward and
taking responsibility for the hurt they are causing. It reinforces the silence and
therefore promotes, rather than breaks, the cycle of violence that exists. In real-
ity, rather than making the community a safer place, the threat of jail places the
community more at risk. (Aboriginal Peoples Collection 1997, 148)
As the women of Hollow Water have said, defense attorneys have

destroyed their work with offenders on many occasions. ‘We would do all
this work, at our level here in the community, and in five minutes a defense
lawyer can negate all your work. That offender is so weak and so vulnerable
6 California’s Megan’s Law requires major and minor sex offenders to register for life.
Minor offenses may include indecent exposure, pornography, or ‘mooning’ the basketball
team as part of a drunken fraternity party. All registrants who attend college or work on a
campus are required to have their identities made public. California’s law distinguished
between minor and major offenders, but due to a need to conform to federal law, the distinc-
tion has been lost in the renewed bill.
that he’ll take what he doesn’t have to face, what he doesn’t have to
acknowledge’ (Aboriginal Peoples Collection 1997, 148). Hollow Water
now has a few defense attorneys it can trust. These good attorneys do not
encourage minimization or denial, and still protect rights and due process
for clients.
Meyer and Zion (2000, 104) report that ‘Navajos, as most Native
American nations, have great contempt for the federal promise of incarcer-
ation as a solution to their crime problem’. Western jurisprudence does not
deal with the causes of crime and recidivism.7 Rather than dealing with the
collapse of the living cultural context of Native communities, it has con-
tributed to the demise of the indigenous cultural context.
Although its declared focus is on handing out punishment to fit the
crime, just desserts, its punishments do not appear to help to restore the
community, victims or offenders to wholeness and we find that increased
incarceration has not reduced crime8 (Koetting and Schiraldi 1997). Yet,
our current policy increasingly requires mandatory minimum sentences
resulting in lengthy sentences for minor drug offenses. In combination
with disproportionately high rates of confinement for youth of color who
are arrested, our policies have resulted in prison becoming a ‘normal’
socialization experience for poor minority youth (Anderson 2003) with
little effect on creating safer communities. As expressed by Chairman
Robert Horner, of the (Canadian) Parliament’s Standing Committee on
Justice: ‘If locking up those who violate the law contributed to safer soci-
eties, then the United States would be the safest country in the world’
(Ross 1996, 267).
CONCLUSION
If present science in a variety of areas demonstrates to us the importance of

environmental interaction shaping behavior, then perhaps the Native ther-
apeutic jurisprudence emphasis on restoring the community to wholeness
and complexity, rather than simply punishing an individual, is where justice
needs to focus. The reception that restorative justice has received indicates
7 Francis Deisler (2002) has demonstrated that being incarcerated is frequently synonymous
with receiving incompetent treatment. He argues that while prisoners are seen as ‘second class
citizens’ they are still entitled to competent treatment. It is incorrect to conclude that people
are incurable if they have not yet received treatment.
8 Placing low-risk offenders in programs designed for high-risk offenders increases recidi-
vism (Andrews et al 1990). After 3.5 years of incarceration, prisoners’ coping skills become
better suited to prison society than to mainstream life (Hammond and Chayen 1963). Thus
longer prison sentences increase recidivism since recidivism is inversely related to evolving cop-
ing behaviors (Armentrout 2003).
that much of the American justice system is ready for reform (Zion 2002a,
2002b: Hora et al 1999; Winck and Wexler 1996; Boldt 1998; Schma
2000). However, adopting systems born from a culture that honored com-
plexity, into a culture that currently tends toward rigid, reactive application
of policy reforms can spell disaster. We need to embrace restorative justice
while honoring the complexity of the living cultural context from which it
sprang. Otherwise employing it may be no more meaningful or life chang-
ing than taking a souvenir home from a guided bus tour of the Black Hills.
We must ask the question: are the victim, the offender and the community
being restored through this process? If we cannot answer that question
affirmatively, then the true purpose of restorative justice is not being ful-
filled.
Native American peoples are in a dynamic process of revitalizing their
traditions. One way in which this is occurring is by using restorative justice
conflict resolution with delinquent juveniles outside of punitive court sys-
tems. This is being implemented in very different judicial structures such as
tribal courts like the Navajo Nation or where state or federal courts have
jurisdiction such as Alaska Native communities or Canadian Aboriginal vil-
lages. These communities are finding that by applying the principles of
restorative justice toward conflict resolution with delinquent youth they are
able to:
• save children from progressing deeper into the system and being lost to
the community;
• restore families to better relations and restore relations between families;
• bring healing to victims;
• prevent other youths from becoming delinquent;
• restore and recognize the value and usefulness to the community of
elders;
• further restore traditional values, beliefs, and practices throughout the
community, which restores the locus of social control in families and
community; and
• restore the whole community as a functioning integrated system based
in traditional Native philosophy and spirit.
The Native perspective needs to be honored and salvaged fully intact

and not in pieces, not only for Native communities but for the modern
world. We need belief systems that understand how deeply interrelated we
are to each other, to time, to place and to every thing in the environment,
and how constantly responsive, flexible and adaptive we need to be. With
new knowledge, Western science has shown us that helping professionals
must value context, relationships, story telling, and family history to heal
through restorative justice.
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16
The Juvenile Justice Forums of
Malawi: A Case Study of the
Lilongwe Juvenile Justice Forum
DESMOND KAUNDA
INTRODUCTION
T
HIS PAPER SEEKS to share the experiences of a new juvenile justice
program in Malawi—the Juvenile Justice Forums of Malawi. The
Lilongwe Juvenile Justice Forum (a regional/district forum) will be
treated as a case study. This is a relatively new initiative intending to pro-
vide various interventions leading to the improvement of the juvenile justice
delivery system in Malawi by adopting an ‘integrated approach’ to juvenile1
justice issues.
THE MALAWI NATIONAL JUVENILE JUSTICE FORUM (NJJF)
One of the biggest constraints for the Malawi juvenile justice system has
been the lack of a policy developing body and no development of proce-
dural rules, guidelines and tools. Based upon a successful model tested in
Namibia, Malawi established its own National Juvenile Justice Forum
(NJJF) in 2000. The task of addressing the gaps in juvenile justice has been
the responsibility of this forum. The NJJF is part and parcel of the judici-
ary, and is chaired by a High Court judge who works in consultation with
the relevant authorities and stakeholders in the juvenile justice sector. The
establishment of the working committee within the NJJF will result in a
major improvement in the development of policy on juvenile justice. The
NJJF has made progress in achieving its goals, some of which are high-
lighted below.
1 The term ‘juvenile’ is here applied to young suspects aged 12–18. The minimum age of
criminal responsibility in Malawi is currently 12.

374 Desmond Kaunda
Office setup and regional/district forums
The Malawi Judiciary donated office space at the High Court in Zomba.
The offices have been refurbished and furnished by British funds through the
DFID-Malawi Safety, Security, and Access to Justice (MaSSAJ) program
and UNICEF, who are also funding the operations of the National Office.
The office has recruited staff.
Three new Regional/District Forums (Blantyre, Lilongwe and Mzuzu)
have been formed. Blantyre and Lilongwe have been launched and are now
fully functional. The Regional/District Forums are headed by the Judiciary
(a Magistrate) but co-ordinated by NGO partners. The Forums were
formed and funded by UNICEF and they also receive support from the
Danish Institute for Human Rights (DIHR).
All the Forums have held training sessions and awareness campaigns.
They are also spreading to communities and establishing community com-
mittees. They have now been recognized, and children with problems are
referred to them by the communities. The communities are slowly accept-
ing that ‘problem’ children are not always police material.
Activities undertaken by the NJJF
Firstly, the NJJF, with the assistance of the American Bar Association
(ABA), has produced draft Rules of Juvenile Procedure to create uniformity
of approach and ensure that the constitutional rights of the child are pro-
tected. In addition to this, the NJJF has secured the authority of the
Judiciary to have courts specializing in Juvenile Justice in the four Regional
centers of Malawi. Twelve Magistrates will initially be trained to run these
courts. This will reduce or hopefully remove the errors in procedure so far
experienced. Further, the Malawi Police Service is compiling statistics on
the arrest of children district by district. It is the intention of the NJJF to
target districts with high arrest rates for specialization of courts.
With the collaboration of the Para-Legal Advisory Services (PAC), the
NJJF has compiled comprehensive statistics on juveniles in custody, and
juveniles convicted and sentenced to imprisonment contrary to the Children
and Young Persons Act (CYPA). Also, in collaboration with the Board of
Visitors established under the Children and Young Persons Act, funding has
been secured from the British DFID-MaSSAJ Program to refurbish and fur-
nish two dormitories at Mpemba Reformatory Centre to receive, assess and
counsel juveniles who have been wrongfully convicted and sentenced to
imprisonment. In collaboration with the Malawi National Council on
Community Services (MNCCS), the NJJF is working to establish compre-
hensive rules and procedure for community service and diversion of juveniles.
Diversion will be at pre-trial level; both at community and court level, and
The Juvenile Justice Forums of Malawi 375
post-trial. In this regard, the NJJF has drafted Screening Guidelines for
juveniles with a view to emphasizing diversion. The establishment of com-
munity committees is instrumental to the success of pre-trial diversion at
community level.
In conjunction with the Ministry of Gender and Community Services, the
NJJF is establishing a working committee that will develop further policy
on juvenile justice under the direction of the National Council for Safety
and Security, which is headed by the Vice President of Malawi. And finally,
with the agreement of the Judiciary and donors, the NJJF has secured sep-
arate chambers from adults for trials of juveniles charged with homicide.
Although the National Forum will be launched after a trial period of two
years, it has satisfactorily networked with other institutions and NGOs. A
directory of institutions and NGOs dealing with juveniles will also be com-
piled and published.
OVERVIEW OF THE LILONGWE JUVENILE JUSTICE FORUM
The Lilongwe Juvenile Justice Forum (LJJF) was established as a result of

recommendations made following a pilot project on juvenile justice that
was implemented in the Zomba District, one of the urban centers of
Malawi. The Zomba pilot project commenced in 2000 and ended in 2001.
This part of the paper will focus on progress made since the establishment
of the Lilongwe Juvenile Justice Forum.
Establishment of the LJJF
The forum was launched in Lilongwe in March 2002 with all the key stake-
holders in support of the program. This was in line with the Government
of Malawi’s intention to support the establishment of Juvenile Justice
Forums in all the cities of the country where the crime rate (largely due to
urbanization) was generally high, including that of juvenile delinquency.
Members of the LJJF are drawn from the stakeholders in the juvenile
justice sector and include persons from such wide-ranging institutions as
the police, social welfare programs, judiciary branch, prisons, NGOs,
traditional leaders, religious leaders, the Malawi Human Rights Commission,
the National Youth Council, and the Ministry of Education.
Objectives of the LJJF
The four main objectives of the LJJF are: (1) to attempt to provide a platform
for exchange of information among the stakeholders regarding juvenile law
376 Desmond Kaunda
and practice, (2) to contribute to improvements in the delivery of juvenile

justice in Malawi, (3) to contribute to the realization of the standard mini-
mum rules on juvenile justice, and (4) to improve the working relationship
among the stakeholders.
Through such objectives, the forum will ensure adherence to Article
37(b) of the Convention on the Rights of the Child, which states that:
No child shall be deprived of his/her liberty unlawfully or arbitrarily. The arrest,

detention or imprisonment of a child shall be in conformity with the law and shall
be used only as a measure of the last resort and for the shortest possible period
of time.
The overall objective of the Forum is to contribute, through the establish-

ment of a fair and humane juvenile justice system, to the protection of the
rights of children in conflict with the law and to promote a culture of
human rights in Malawi.
Structure
The LJJF is chaired by a judicial officer (Magistrate) and is co-ordinated by

a Non-Governmental Organization (NGO) dealing with issues of children.
Supporting the chair and co-ordinator is a core group of members who are
responsible for planning, guiding and monitoring the implementation plan
of forum activities. Table 16.1 illustrates the structure of the LJJF.
Table 16.1: Structure of the LJJF

Activities
During its launch, the LJJF developed an action plan which spelled out
activities to be undertaken, and identified the institutions that would
be responsible for undertaking these activities. The activities included the
following:
Capacity building
This activity took the form of a workshop. It was intended to provide
forum members with skills and knowledge about juvenile justice procedures
so that they could return to their institutions and share those skills and
knowledge.
Community sensitization, mobilization and formation of juvenile justice

community monitoring committees
Members of the forum agreed to focus not only on children that have com-
mitted offences but also on the preventive aspects of crime. Members there-
fore decided that part of their program would be to mobilize the
communities at both the local and city levels, the goal being to sensitize
them and to form community monitoring committees on juvenile justice.
These community committees were also meant to provide alternative, tra-
ditional means of dispute resolution for minor offences. The committees
were there to provide civic education on crime prevention and generally to
act as watchdogs in the communities. The committees would act as links
between the forum and the community.
Forum meetings
Forum meetings were intended to provide a platform for discussion where
the members would periodically come together and update each other on
progress. The meetings were also meant to contribute towards enhancement
of their working relationship. Problems to be faced by respective institu-
tions were to be tabled at such forum meetings with a view to finding pos-
sible solutions. The meetings also provide the core group members with an
opportunity to give progress reports.
Monitoring and prison visits

The purpose of the visits to prisons and other institutions was to enable
forum members to periodically assess the cases and welfare of the young
offenders in order to ensure proper intervention. It was noted that parale-
gal reports alone would not be sufficient.
378 Desmond Kaunda
Progress on the activities
So far, the forum has been able to sit for meetings and attended to some of
the issues raised in the meetings. These issues have been in reference to the
day-to-day experiences of respective institutions. A case in point is that
police officers are continuing to handcuff young offenders on arrest and
during trial at the court. The forum has been concerned with this practice
and has tried to find out the reasons for its continuation contrary to legal
requirements. Mostly, the police have been at pains to defend themselves,
stating that children are ‘slippery’ to the extent of running away from the
police officers, especially when not in handcuffs and as they go to court. It
must be noted that police officers and the accused usually walk to court due
to a shortage of transport.
With the training complete, there are now fewer allegations among var-
ious institutions that others are in the wrong, that they caused the delay
of a juvenile’s case or that they mishandled a case. The forum meetings
have strengthened the relationships between the different institutions:
they assist in identifying where the problems in the system are located and
encourage the institutions to work together to attempt to rectify those
problems.
Support structures, such as community monitoring committees relating
to the preventive aspects of young offenders committing crimes, are still in
the early stages of development. The committees have been able to provide
the Forum Co-ordinator with reports regarding their community outreach
initiatives. These have included the sensitization of village chiefs through
meetings, the gathering of students and out-of-school youth, and several
community sessions targeting various groups.
In terms of policy, the Chief Justice has recently directed the judiciary that
juveniles be considered for placement in community service, depending on
the nature of the offences committed. The system will work in a similar way
to community service for adult offenders, the difference being the number
of hours and type of work that may be given to young offenders. This direc-
tion came about upon recommendations being sent to the Judicial Service
Commission for consideration following research in the area.
Key issues as identified by the LJJF
The LJJF has identified some vital issues as being in need of immediate
attention, including the need for a change of ‘Institutional Mindset’ within
the juvenile justice delivery institutions. This lends itself to lack of mental
transformation of the Justice Officers. The ‘Presumption of Guilt’ of juve-
niles in conflict with the law is also a serious problem. Poor facilities,
which lead to lack of separation of juveniles from adult inmates, present a
danger to juvenile offenders. Finally, there are concerns about lengthy stays
of juveniles in detention on remand awaiting trial, and poor qualifications
of Juvenile Justice Officers.
Immediate challenges
Some immediate challenges facing the LJJF are as follows:
• Resource constraints and inadequacies: These threaten to kill the cur-

rent juvenile justice initiative as the institutions are likely to become
frustrated the longer this problem persists.
• High staff turnover: Those officers trained by the LJJF are frequently
transferred to other districts, thereby necessitating continuous training
for replacement officers.
• Consolidation of the forum: The forum is an effective platform for the
sustenance of the project; however, it is not fully established in terms
of strategic thinking for long-term impact.
A CASE STUDY OF THE LILONGWE JUVENILE JUSTICE FORUM
Background
With financial support from the DIHR(Danish Institute for Human Rights),
the LJJF embarked on a project: Advocating for the improvement of crimi-
nal justice system for juveniles in conflict with the law. The project has three
main focus areas: (1) capacity development of the juvenile justice institutions
through training, (2) continuous research/monitoring and data collection on
juvenile issues through monitoring, and (3) advocacy and lobbying for the
improvement of juvenile justice. The project, which began in August 2002,
is being implemented by two leading NGOs—the Centre for Youth and
Children Affairs (CEYCA), and the Centre for Legal Assistance (CELA), with
co-ordination and technical support from the Malawi Human Rights
Resource Centre (MHRRC).
This particular case study will focus on the research and data collection
component of the project (the monitoring exercise). The monitoring exer-
cise began in September 2002 with the following objectives. First, to iden-
tify key stakeholders in the juvenile justice system; next, to measure
knowledge and practice among the stakeholders; also to find out how dif-
ferent institutions handle and view juvenile offenders; to find out what
actions are viewed as appropriate when different institutions discharge
juvenile justice; and finally, to establish whether the Children and Young
380 Desmond Kaunda
Persons Act (CYPA) and the Convention on the Rights of the Child (CRC)
are recognized and applied when discharging juvenile justice.
By early September, the monitoring exercise had made strides in fulfill-
ing the first objective, having identified the following institutions as key
stakeholders in the LJJF: police, prisons, courts, social welfare, the com-
munity, and civil society. The monitoring exercise was largely facilitated by
a set of guiding tools (questionnaires) which were specifically designed to
gather various information concerning juvenile offenders as well as the
knowledge, practice and attitudes of various identified stakeholders. Apart
from administering the questionnaires, the information was also gathered
through continuous observation as well as perusal of official files and
records. The information sought included the following: characteristics of
juvenile offenders, roles of the various stakeholders, handling of juvenile
cases, and relationships among the stakeholders as well as their limita-
tions. A sample questionnaire targeting social welfare appears in the
Appendix to this chapter.
Although the Lilongwe Forum has registered some positive develop-
ments, the case study below reveals a picture which demonstrates that the
various stakeholders do not fully appreciate their role in juvenile justice;
that there are persistent problems in the handling of juvenile cases; that
there is a lack of communication between stakeholders; that the responsi-
bilities are unclear among the stakeholders; and that the various stakehold-
ers face limitations (particularly resource constraints) and lack adequate
knowledge and training on their legal obligations and duties relating to
juveniles. All of this prevents the stakeholders from carrying out their duties
and delivering effective and efficient juvenile justice. Further, other stake-
holders/duty bearers (such as traditional authorities, families, businesses,
churches and NGOs) do not fully understand that they too have a role to
play in the delivery of juvenile justice.
Childhood and characteristics of young offenders
A review of the Monitoring and Advocacy Reports of the LJJF for

September and October 2002 suggests that the majority of young offenders
are male and live in urban and peri-urban areas. Approximately 80% of
them come from high-density areas, Kawale being a good example.
Approximately 50% of these young offenders are street children coming
from broken and low-income households. While some have both parents,
there is a growing trend of children from single or female-headed house-
holds and indeed others who are orphans. There is also ample evidence to
suggest that poverty and HIV/AIDS are the major contributing factors caus-
ing children from such homes to come into conflict with the law or commit
crimes.
Most of the juveniles in the Kawale study are within the age range of
12–18 years, and the average age of young offenders is 15.
Statistics available from Kawale Police Station, a local police station,
indicate that the most frequently committed offences by young offenders
within Lilongwe are assaults, thefts and robbery, in order of decreasing fre-
quency. However, statistics emanating from Lilongwe Police Station (a
receiving and holding station for juveniles from all districts in the Central
Region of Malawi) point to the fact that at the Central Region level, the
most frequently committed offences are theft, burglary and robbery, in that
order.
Pre-trial
While the law states that juveniles should not be handcuffed, throughout
the monitoring period police officers were observed handcuffing juveniles.
When asked why they were doing this, the frequent response was ‘to pre-
vent them from escaping’. While it may be the case that some of the offi-
cers were not aware of the international and domestic rule against
handcuffing juveniles, it was also evident to the monitors that such atti-
tudes and practices were a major problem for other officers, especially
those who took part in recent training on juvenile justice provided by
Centre for Youth and Children Affairs (CEYCA). However, issues of
capacity also contribute to the problem. With the current police to popu-
lation ratio of 1:16672 and officer/prisoner ratio of 1:14,3 law enforcement
officials find themselves—and were observed—escorting large numbers of
prisoners (adults as well as juveniles) and are therefore compelled by such
circumstances to handcuff all of them (Malawi Government 2002, 75).
This is compounded by a lack of transportation, which means that officers
often have to walk with prisoners to and from the court/prison/police sta-
tion. As the penalty for ‘allowing a prisoner to escape’ is heavy, most offi-
cers would rather contravene the international and domestic rule against
handcuffing juveniles than face the harsh sanctions for facilitating their
escape.
While police officers try their best to separate juveniles from adults, they
are often faced with the reality that there are no separate cells for juveniles.
Consequently, some juveniles are kept at the OB Counter. Once juveniles
are remanded to prison, both Maula and Kachere Prisons have separate
cells for juveniles. The observed practice, however, is that juveniles are only
2 The current Police to population ratio of 1:1667 is against an SADC regional standard of
1:500.
3 The Warder to Prisoner ratio of 1:14 is against an international standard of 1:5.
382 Desmond Kaunda
separated from adults during the night when they are locked up; during the
day, they are largely allowed to move freely within the prison.
Although police officers did often state that once a juvenile is arrested,
they immediately inform probation/social welfare officers, probation offi-
cers often complained that they are not informed early enough for them to
be able to play their role in the process. Prison officers confirmed this as
they also complained that police officers rarely follow up on juveniles once
they are committed to prison. At the same time, prison warders do not con-
sider that they have a special mandate towards juveniles. Consequently,
prison officers do not compile or keep separate information or submit
returns to police, court or social welfare officials. The observation of the
monitors was that since there were no specialized officers within the police,
at the courts, or within social welfare and prisons to deal with juvenile
matters, juveniles may often be ‘lost’ in the system. Further, it was quite
apparent to the monitors that some law enforcement officials found cases
of juveniles very involving and intimidating due to the strange and special
regime of rules governing juvenile justice. It therefore does not come as a
surprise that none of the police officers mentioned special handling and
treatment of juveniles from the moment of arrest as part of their role as law
enforcement officials.4
The monitors observed that juveniles are not provided with any food in
police cells. The only food available has to be brought in by relatives and
those with no relatives may end up with empty bellies unless they are given
a share by their fellow inmates. For those who end up on prison remand,
they have to make do with the monotonous diet of Nsima (maize meal) and
beans which is taken once a day. Sanitation and ventilation in both police
and prison cells were observed to fall well below minimum international
standards.
The constitutional requirement for juveniles to be remanded for the
shortest possible period is one that is often flouted. Statistics obtained from
both Maula and Kachere Prisons indicated that most juveniles are often left
on remand for too long, the majority staying for more than six months.
During September 2002, there were approximately 54 juveniles at Maula
Prison. Of these, 33 were being held on remand for homicide cases. Most
had been held for so long that they were no longer children. One had been
on remand for more than six years. Table 16.2 provides a picture of the
numbers of juveniles held in Maula and Kachere Prisons during the six
months between July and December 2002.
4 Police officers mentioned their traditional roles of arresting offenders, investigating crime
and temporarily detaining criminals.

Table 16.2: Number of juveniles in Maula and Kachere Prisons,

July to December 2002
MAULA KACHERE
JULY
Juvenile Remand 31 15
Juvenile Remand Murder 37 0
Juvenile Convicted 82 0
AUGUST
SEPTEMBER
OCTOBER
NOVEMBER
DECEMBER
Trial
There are no specialized courts for juveniles at the Lilongwe Magistrates

Court. The reason advanced for this is that ‘there are only very few juvenile
cases which are handled by Magistrates Courts’. When asked about delays
in handling juvenile cases, magistrates responded by saying that it is court
clerks and social welfare officers who are supposed to follow up on such
cases. However, court clerks attributed the blame to police officers and
magistrates, whom they said often renew remand warrants without the
involvement of court clerks, who are supposed to keep court records on them.
384 Desmond Kaunda
It would appear that there has been a gradual breakdown of co-ordination

between court clerks and magistrates as a result of police officers dealing
directly with magistrates, especially on renewal of remand warrants. While
police officers pointed their fingers at social welfare officers for their delays
in preparation and submission of court social reports to courts, social wel-
fare officers blamed both the police and magistrates for taking centre stage
in handling juvenile justice issues and only involving social welfare officers
at a later stage in the process.
Despite the lack of specialized courts for juveniles, juvenile cases are han-
dled in camera in the presence of the police, social welfare officers and par-
ents or guardians. Only those juveniles jointly charged with adult offenders
have their cases handled in open court.
Despite the law specifically prohibiting imprisonment unless it is a meas-
ure of last resort and then only for the shortest period possible, magistrates
continue to pass fixed prison sentences on juveniles. Some of the sentences
well exceed the set maximum periods for imprisonment, as evidenced by the
prison files and records of some of the juveniles at Maula Prison. It would
appear that the problem relates to the lack of training and specialization of
non-professional magistrates in this field. The reluctance of prison author-
ities to check on such excesses and the demand that certain minimum stan-
dards be followed by all stakeholders also compounds the problem.
Although the Chief Justice has promulgated a special directive allowing
magistrates to assign juveniles to community service, there are very few
juveniles, if any at all, who benefit from such a provision within the
Lilongwe area.
Post-trial
The researchers observed that convicted and remand juveniles at Maula and
Kachere Prisons are not kept in separate cells, and they are only separated
from adult prisoners during lock-up hours. Juvenile cells lack sufficient
mats, which are used as mattresses. There is also insufficient bedding and
the few blankets that are available are torn.
Both convicted and remand juveniles are given the same food as all other
prisoners: maize meal with beans, which they take once a day. There is no
special diet for juveniles requiring special meals.
There is very poor sanitation in the juvenile blocks at both Maula and
Kachere Prisons due to a lack of disinfectants and cleaning materials. With
the overcrowding situation, the prisons become fertile ground for diseases
such as scabies.
It was observed that the only recreation activity available at either prison
is football, and even this is only played once in a while when footballs are
available. There is no formal education and training or rehabilitation
program in place at either of the two prisons. The conditions observed by

the monitors at both Maula and Kachere Prisons can hardly be described
as ‘taking into account [the juvenile’s] age and the desirability of promot-
ing his or her reintegration into society to assume a constructive role’, as
the Constitution requires (Malawi Constitution 1995, section 42(2)(g)(v)).
Relationship among stakeholders
Relationship between police, prisons, courts and social welfare

Although most of the respondents from the various institutions and stake-
holders stated that their relationship with others in the juvenile justice arena
was good or satisfactory, our observation is that this response is either (a)
in line with a Malawian culture which avoids negative comments, or (b) due
to low levels of knowledge or awareness of child rights/juvenile justice and
their corresponding duties as duty bearers. The actual situation is that, on
the one hand, the police complain that social welfare personnel are respon-
sible for delays in juvenile processing due to delays in preparation and sub-
mission of court social reports and, on the other hand, that social welfare
personnel perceive the police and courts to be the centre of juvenile justice
and that social welfare plays a peripheral role. This indicates that much of
the relationship is self-centred and therefore one-sided. There is generally a
lack of communication among the juvenile justice stakeholders.
Although some of the institutions have taken certain initiatives to
improve their relationship with other institutions, there is much left to be
done. The Prisons Department is a case in point: after several visits by the
Monitoring Team, staff at Kachere Prison have begun compiling statistics
and returns on juveniles and providing the same to police, courts and social
welfare. Our observation is that much as this may be the case, it is being
done more by way of personal initiative and the commitment of individual
prison staff rather than as an approach which follows any professional
juvenile justice standards. This observation may be supported by the fact
that the prison staff have not undergone any juvenile justice training.
Relationship between courts, police, prisons, social welfare and

community/NGOs
Court, police, prison and social welfare officials described their relationship
with NGOs and other civil society organizations as ‘good’, ‘satisfactory’, or
‘just starting’. Certainly, such relationships are improving, especially with
the presence of the LJJF as a meeting and discussion forum. However, it
may be observed that the expectations of the communities in their demand
for juvenile justice/child rights may not be properly conceived unless they
386 Desmond Kaunda
are well informed and sensitized regarding the rights of the child. Attitudes
of community members and some traditional authorities may offer some
illustrations, such as the fact that juveniles are reported or handed over to
the police with the expectation that the police will perform the role of par-
ents or guardians (e.g. provide counselling sessions), or punish the juveniles.
On the other hand, the police, courts, prisons and social welfare officials
may not effectively deliver and discharge their roles as ‘duty bearers’ unless
they too have the requisite knowledge and training in juvenile justice issues
followed by a deliberate change in attitudes and practices regarding the
manner in which juveniles are handled.
Limitations
All the juvenile justice institutions cited a number of limitations that

impeded their effective delivery of juvenile justice. These limitations
revolved around ‘resources’ and may be summed up as follows:
• Lack of stationery to record information properly;

• Poor and manual (as opposed to computerized) system of keeping juve-
nile records;
• Lack of transport to conduct visits to juvenile institutions, transfer
juveniles from one institution to another, take juveniles to court, etc.;
• Lack of proper facilities to hold and properly care for juveniles;
• Lack of specially trained and specialized staff in juvenile justice mat-
ters.
However, the research team also observed that in addition to the limitations
outlined above, there are generally low levels of morale and poor commit-
ment to work on the part of most officials in all the key juvenile justice
institutions (police, courts, prisons and social welfare). The Malawi Poverty
Reduction Strategy Paper (MPRSP) has recognized this problem and formu-
lated strategies to change and improve on what it calls ‘political will’ and
‘mindsets’ (Malawi Government 2002, 72–3). This may be attributed to
poor salaries, lack of resources, and lack of training and knowledge. The
research team would, however, wish to register its observation of the shared
interest and willingness to learn in order to improve the delivery of juvenile
justice among the stakeholders in the LJJF.
REFERENCES
Constitution of the Republic of Malawi (1995)

Laws of Malawi, Children and Young Persons Act (1969)
Lilongwe Juvenile Justice Forum (2002a) Research Report on the Juvenile

Justice Situation in Malawi: a Case Study of the Lilongwe Juvenile
Justice Forum (unpublished)
Lilongwe Juvenile Justice Forum (2002b) Monitoring Reports for the
months of September, October, November and December (unpub-
lished)
Malawi Government (2002) Malawi Poverty Reduction Strategy Paper
United Nations Convention on the Rights of the Child (1989)
388 Desmond Kaunda
APPENDIX
Sample Questionnaire Used by the Lilongwe Juvenile Justice Forum as a

Checklist for Monitoring
(Note: there are other sets of questionnaires adapted for monitoring
other institutions and stakeholders such as police, courts, prisons, NGOs,
community, etc.)
SOCIAL WELFARE
1.0 BIODATA OF THE INTERVIEWEE

1. Name:
2. Positions: ........................................................................................
3. Stations: ..........................................................................................
2.0 ROLES OF SOCIAL WELFARE.

1. What is the role of social welfare in-terms of juvenile justice delivery
systems?
............................................................................................................
............................................................................................................
............................................................................................................
3.0 HANDLING OF CASES

1. Do you receive juvenile offenders at your office?
...........................................................................................................
2. How many cases of juveniles per: week... month... year... do you
receive?
3. What is the common age range: 7–10 yrs.......... 11–14 yrs..........
15–18 yrs..........
4. Sex: Male.....................................Female........................................
5. Nature of cases: theft.........assault.........murder............others.........
6. What cases do you regard as the most common offences?
............................................................................................................
............................................................................................................
............................................................................................................
7. What steps do you take when you receive a juvenile offender in
your office?
............................................................................................................
............................................................................................................
............................................................................................................
8. What factors do you consider when determining the type of action/

recommendation which you may come up with when dealing with a
juvenile offender?................................................................................
............................................................................................................
............................................................................................................
............................................................................................................
............................................................................................................
9. Do you have follow up programs on juveniles committed to a par-
ticular recommendation?
............................................................................................................
............................................................................................................
............................................................................................................
............................................................................................................
10. What do you know about the CYP Act and CRC? How do you
apply them to your actions?
CYP Act..............................................................................................
CRC....................................................................................................
Application..........................................................................................
............................................................................................................
4.0 FAMILY
1. What is the common life history of the young offenders?
............................................................................................................
............................................................................................................
2. Do you contact their parents or guardians?
............................................................................................................
5.0 RELATIONSHIPS WITH OTHER STAKEHOLDERS:

3. What relationships exist between you and the:
4. Prisons.............................................................................................
5. Police...............................................................................................
6. Court...............................................................................................
7. NGOs..............................................................................................
8. Community.....................................................................................
9. Placement Institutions.....................................................................
10. Families.........................................................................................
6.0 What factors may hinder your operations in delivering juvenile justice?
............................................................................................................
............................................................................................................
17
Combining Juvenile Justice with
Family Law Reform in Serbia
IVANA STEVANOVIC
INTRODUCTION
E
VEN THOUGH THE status of children in Serbia is directly contingent
upon political, economic and societal circumstances, it also depends
on attitudes toward children, and the understanding of what their
rights should be. The patriarchal extended family still plays an exceptionally
important role in Serbia and Montenegro—as the main provider of support
and influence. These patriarchal characteristics are more visible and domi-
nant in the south of the country. Attitudes toward women, therefore, and
toward female children as well, are predominantly discriminatory, and,
again, more so in the south of the country than in the north. One of the
most prominent characteristics of the traditional approach toward children
is the tendency to overprotect them, at least declaratively, undermining their
right to participation, as well as their right to privacy and expression of
thought and opinions.
Similar attitudes and practices are visible in the education, health and
social care and protection systems, as well as in judicial bodies.
Traditional attitudes are clearly held by the majority of those who are
major political decision-makers and policy-creators. Of course, it would
be unrealistic to expect different attitudes and treatment toward children
in a country where even the most basic human rights are not yet accepted
and adopted in society. The family situation—crucial for the proper
development of every child—is very bleak. Most families in Serbia face a
growing threat of poverty and an inability to maintain basic household
standards. At the same time, the state cannot provide adequate help,
not only because a growing number of families need help, but also
because the state itself is extremely poor, and must use its limited budget
for the basics—social security allocations, replenishing dilapidated pen-
sion funds—but also to support a gigantic administration, army and
police.
392 Ivana Stevanovic
Furthermore, children are not yet accepted in Serbia as holders of rights.

Key principles regarding ‘best interests’, and a child’s right to be listened to
and to participate in decisions are not yet understood in society. Although
the situation of children in Serbia is directly affected by political, economic
and social circumstances, it is also conditioned by local attitudes to children
themselves and their rights. One of the basic characteristics of the attitude
towards children is over-protectiveness, at least in its verbal expression as
the typical family structure in Serbia is patriarchal with the extended fam-
ily playing an important role in provision of support and advice. Going
from the north of the country southwards, the features of patriarchy are
increasingly expressed and prevalent. This family structure with the
extremely dominant pater familias directly influences attitudes to children
and their rights to participation, privacy and expression of opinions.
Attitudes to women and girls are often discriminatory, which is again more
evident in the south of the country.
The consensus seems to be that many laws relating to children and their
rights are ineffective, anachronous, and need modernizing in line with inter-
national legal documents and guidelines such as the Beijing Rules. Our
politicians have a sinewy tendency to change parts of certain laws every
time a switch in power occurs, while rarely creating new laws correspon-
ding to international standards. For example, since the Law on Social
Security of Citizens and Financial Protection of Families was adopted four-
teen years ago, there have been nine laws amending and adding to its orig-
inal text, which means that this particular law changed, on average, every
seventeen months. Conversely, some laws remain unchanged for decades, in
spite of being totally out of step with international conventions and treaties
ratified by Serbia.
THE RIGHT OF THE CHILD IN THE JUVENILE JUSTICE

SYSTEM IN SERBIA
As an extremely complex theme, juvenile justice encompasses the system

and organization of the protection of rights for the most vulnerable groups
of children: those exposed to abuse and neglect, those whose development
is at risk due to family malfunction, and those in conflict with the law. With
regard to new knowledge about the consequences of child abuse and etio-
logical factors of delinquency, it is often possible to equate these groups of
children.
The Convention on the Rights of the Child, along with other interna-
tional documents, contains standards and norms indicating the obligations
of the state and governmental bodies concerning the preservation of the
family, legal protection of the child in family relations, and protection of the
child from specific forms of violence in a wider social environment.
Combining Juvenile Justice with Family Law Reform in Serbia 393
Complementary provisions of the Convention refer to the protection of

rights of those children who breach certain norms of behavior.
Based on current knowledge regarding the legislation and experience in
practice, it is possible to attempt a basic assessment of the level of compli-
ance of Serbian family law and criminal law in this area with the principles
and content of international documents as well as with the real needs and
interests of children.
Legislation concerning child abuse and neglect is divided into three sys-
tems: social legislation, family law, and criminal law, which prescribe vari-
ous legal measures for prevention and the protection of children from
abuse. The situation of children who are in conflict with the law is gener-
ally based on principles contained in the above-mentioned international
documents. However, implementation of this model has many shortcom-
ings and contradictions.
According to the Statistics Institute of the Republic of Serbia, juvenile
delinquency rates stagnated in 2004, as evidenced by the number of
motions filed for criminal prosecution of juveniles. For various reasons,
however, these statistics must be taken with a pinch of salt. Data indicate
that crimes against life and bodily harm increased. Juveniles are most fre-
quently sentenced to probationary/socialization measures, while incarcer-
ation remains rare. However, there are no set follow-up methods for youth
sentenced to increased supervision or other probationary measures, result-
ing in their ineffectiveness.
According to current criminal legislation in Serbia, juvenile delinquents
can be sentenced to: educational measures, juvenile prison (1 to 10 years)
and safety measures. Criminal legislation differentiates two categories of
juvenile delinquents: younger minors (14 to 16 years of age) and older
minors (16 to 18 years of age). Persons under the age of 14 are not consid-
ered criminally liable and cannot be subject to criminal proceedings or
criminal sanctions.
Educational measures, as a type of criminal sanction, are established as
basic criminal sanctions that can be inflicted on these persons. The penalty
of juvenile prison, which can be inflicted under certain conditions on juve-
niles aged between 16 and 18, is a criminal sanction that is imposed only in
exceptional cases, when the legal conditions have been cumulatively ful-
filled. Even then, it is imposed only if the court finds that it is the only pos-
sible way of reacting to the concrete criminal act perpetrated by an older
minor.
Educational measures are grouped into three basic categories according
to severity: disciplinary educational measures, educational measures of
strong supervision, and institutional educational measures. Juvenile delin-
quents can be sentenced to all the same safety measures as adults, except
those concerning prohibition from performing a profession, duty or work.
In addition, safety measures of mandatory treatment of alcoholism and
drug addiction may be imposed on them only in special circumstances.

This system of criminal sanctions dates from 1959 and requires substantial
revisions. Professionals in practice regard the system of criminal sanctions
as inefficient, inadequate and obsolete. A reform of criminal proceedings
against juveniles is also necessary in the sense of improving institutional
and organizational solutions. In this area, so far, only partial specialization
has been achieved. On the other hand, the model of social protection in
criminal juvenile justice is criticized by the contemporary concept of child
rights. Bearing this in mind, in 2001, the Belgrade Child Rights Centre,
with the support of the Danish Institute for Human Rights, set up the proj-
ect Legal Reform in the Area of Juvenile Justice in Serbia. The Ministry of
Justice realized the need for legislative reform in the system of juvenile jus-
tice. A proposal for a new Law on Juvenile Justice was made in 2004. This
proposal comprehensively defines the responsibility and status of minors
who commit a criminal act, legal proceedings, and the sanctions that can
be applied. It also contains articles pertaining to the protection of children
who are victims of crimes, or witnesses in criminal proceedings. Juveniles
are separated from the adult criminal justice system and all matters relat-
ing to minors in conflict with the law are addressed by one comprehensive
law. The Serbian Assembly adopted the new Juvenile Justice Law in
September 2005. The New Law being implemented the 1st of January
2006.
THE PROCESS OF PROJECT IMPLEMENTATION
Implementation of the project Legal Reform in the Area of Juvenile

Justice in the Republic of Serbia began on 1 June 2001. In the first
month—the preparatory phase of the project—the following activities
were completed: organization of two groups of experts, establishment of
contacts with the relevant ministries—the Federal Ministry of Justice, the
Ministry of Justice of the Republic of Serbia and the Ministry of Social
Affairs of the Republic of Serbia—who were informed on the project,
and preparations concerning the acquisition of relevant foreign laws and
publications in this field, to be used at a later stage of the project—the
comparative analysis.
The research phase started with an analysis of the relevant legislation in
Serbia, both family and criminal law (substantive and procedural law),
from the viewpoint of international standards on child rights. Also analyzed
were models of juvenile justice in comparative legal systems (national legis-
lations of Croatia, Slovenia, Republika Srpska, Federation of Bosnia and
Herzegovina, Macedonia, as well as Norway, Denmark, England, Wales,
Germany, Belgium, Hungary, Scotland and the practice of the European
Court in Strasbourg). Two study visits were undertaken—to Norway and to
Croatia—with the aim of studying best practices in this field. These countries
were selected as representatives of Western Europe and as the regions with
juvenile justice systems serving as good examples.
Within the research part of the project, one of the planned activities was
a survey of the viewpoints of professionals and of their views on possible
future directions for legal reform. Bearing in mind the experiences from
practice, which indicate deficiencies and inadequacies in some legal solu-
tions that diminish the efficacy of the protection of rights, we reached the
conclusion that it was necessary to obtain the viewpoints of professionals,
and insights into practice and problems in the implementation of the cur-
rent regulations, as well as to obtain proposals for possible amendments.
Therefore, the aim of the research was to discover the views of profes-
sionals working on the implementation of regulations in the domain of
family and criminal law and related to juveniles more specifically on cur-
rent practice, on some contemporary concepts and legal solutions in
comparative law, and on the possible and necessary changes to be made
in this field in order to comply with the conditions and capacities of our
country.
Two working groups—dealing with criminal law and family law respec-
tively—began their activities on 1 October 2001. In October and November
they worked on defining legal models of protection in line with interna-
tional standards and basic characteristics of our legal tradition, as well as
on defining the basic theses of the legal projects. The result of their work
was the Policy Proposal, a document submitted to the relevant ministries in
the Republic of Serbia at the beginning of November 2001.
In the following five months, the working groups focused on defining the
final version of legal models for the protection of child rights in the legal sys-
tem, in compliance with international standards and contemporary scientific
knowledge, as well as the needs and specifics of practice.
With regard to assessment of priorities, the work focused on the follow-
ing areas:
(1) Criminal legislation in relation to the criminal-legal treatment of juve-

nile offenders: criminal responsibility, proceedings enabling diversion
from the classic criminal-legal procedure, the system of criminal sanc-
tions, the criminal process, organization of the judiciary.
(2) Protection of abused children in criminal law: criminal liability of
adults with regard to acts of violence against children, rules of
criminal proceedings and organization of the legal system.
(3) Protection of child rights in family relations: child rights and forms
of violation of their rights, ways of ensuring the ‘best interests of
the child’, the child’s participation in the exercise of his/her rights,
organization of the judiciary and specialization of the procedure,
proceedings for the protection of rights.
By working on these issues in the domain of criminal law, the working

group defined the model pertaining to (1) the rights of juveniles in conflict
with the law, and (2) the right of the child to protection from abuse and
neglect.
The criminal-legal working group of the Belgrade Child Rights Centre
created the Draft Law on Juvenile Justice, basing its work on contemporary
concepts of the system of juvenile justice, on international documents on
human rights and child rights, on the latest solutions in comparative law,
and on practical experience and local legal tradition.
Although the project proposal planned the lobbying phase for the adop-
tion of the new model in May 2002 (the end of the project), bearing in mind
that lobbying is a long process, the members of the Child Rights Centre
team started the activities from the very beginning, i.e. when the project was
accepted by the DCHR.
From our very first contact with the relevant ministries and the beginning
of project implementation, to the Policy Proposal, which was submitted at
the beginning of November 2001, up to the final submission of the Draft
and its explanation, we were in direct contact with the governmental bodies
responsible for the field that was the subject of our activities. It is important
to emphasize that the Ministry of Justice of the Republic of Serbia and the
Ministry of Social Affairs of the Republic of Serbia, through their represen-
tatives, participated directly in both working groups.
In the course of our work on the project, the Government of the Republic
of Serbia established the Council for Child Rights (Savet za prava deteta
Vlade Republike Srbije), an advisory governmental body for these issues.
We presented the results of our year-long work to this Council in order to
gain their support for our mission.
The draft model law on justice for the young brought together the pro-
visions of criminal legislation, both substantive and procedural. The nov-
elty of the proposed model lies in the fact that it requires juvenile judges to
be specialized, a requirement also set for the state prosecutor, attorneys
and the police. The model requires all of these to acquire special expertise
in the field of child rights and juvenile delinquency. The reason for this is
the fact that all normative interventions, even if the best laws and regula-
tions are created, cannot have even a modest effect, let alone full effect,
unless this is accompanied by the development of high-quality profession-
als. This has prompted us to refer to the well-known saying: ‘All laws are
worth as much as the people called upon to apply them.’ In this regard,
and in order to ensure the acquisition of professional expertise in the field
of child rights and juvenile delinquency, the transitional provisions that
should form part of this piece of legislation (in case it is adopted) should
stipulate the obligation on the part of the Ministry of Justice of the
Republic of Serbia and the Supreme Court of the Republic of Serbia
to oversee the advanced training of personnel working in this field by
arranging scientific and professional consultations, seminars and other

forms of additional professional training.
In regulating the legislative response of society to crime among minors,
the draft law on justice for the young proceeds from the principle of the
subsidiary nature of sanctions—preferring out-of-court forms of interven-
tion. The model expands the possibility of applying diversion procedures
and non-custodial measures. In this manner, it provides for diversion from
the conventional criminal procedure and for defining the rights of minors
relative to their entry into the diversion procedure. In selecting a sanction,
the model gives maximum emphasis to the principle of education rather
than punishment. It points out that the purpose of criminal sanctions
against minors is to influence their development, through supervision, by
giving protection and assistance as well as by providing general and voca-
tional education and training, to make them feel more personally responsi-
ble and to positively affect their education and the proper development of
their personality.
The educational measures stipulated by the model are the following:
warning measures (court reprimand and special obligations); reinforced
supervision measures (reinforced supervision by the parent, adoptive parent
or guardian); reinforced supervision in another family; reinforced supervi-
sion by the guardianship authority; reinforced supervision with day care at
an appropriate institution for education of minors; and institutionalized
educational measures (referral to a correctional institution, referral to a
reformatory, and referral to a special institution for treatment or training).
The most important novelty in the field of substantive law envisaged by
the model is the possibility of a special obligation being imposed as an
autonomous educational measure. However, this educational measure may
be pronounced together with the educational measures of reinforced super-
vision.
These types of sanctions are often, in the professional literature, called
alternative sanctions because their main aim is either to demand that the
minor—by appealing to him to show personal responsibility and actively
co-operate—fulfils a certain obligation or to impose a certain prohibition
against him. The model enumerates ten special obligations item by item,
giving the court the authority to pronounce one or several such obligations
dovetailed to suit the minor’s personality and his living conditions. In order
for these special obligations to be able to serve their purpose, they must be
strictly individualized but, on the other hand, they may entail the full indi-
vidualization also of criminal sanctions against juvenile delinquents.
Likewise, it is very important to bear in mind that they should never be
imposed as an additional disciplinary measure whose purpose it is to addi-
tionally burden the minor with particular duties, orders or prohibitions.
In addition to the special obligation, as a novel educational measure, the
model introduces into the register of educational measures another such
measure: reinforced supervision with daily care at an appropriate institu-

tion for the education of minors. The introduction of this measure is in line
with modern trends, by introducing new semi-institutionalised forms of
education for minors with larger or smaller behavioural disorders, to avoid
their total removal from their living environment.
As for the procedural substance, the model proceeds from the redefined
social-protective model which has been predominant in this field so far. Its
aim is to better protect the basic human rights of the minor in the proceed-
ings that concern him, namely: urgency of proceedings with specifically
defined terms; redefinition of the provisions on detention in order to more
fully define this measure as the ultimate and extraordinary tool; propor-
tionality between the offence and the sanction (Obretković 1996, 136–63;
Freeman 1983, 86–92).
Criminal proceedings against minors are instituted only at the request of
the State Prosecutor for Minors. The model proposes that in the event that
the State Prosecutor for Minors fails to make a request for proceedings
against the minor to be initiated, he shall be obliged to inform the aggrieved
party accordingly within eight days. The aggrieved party may not institute
a criminal prosecution but has the right to demand, within eight days of the
date of receipt of notification from the State Prosecutor for Minors, and if
he has not been informed then within three months as of the date of rejec-
tion of the criminal complaint, that the issue of initiation of proceedings be
decided upon by the juvenile chamber of a higher court. If the juvenile
chamber of a higher court decides that the proceedings should be initiated
or continued, the State Prosecutor for Minors must participate in these pro-
ceedings and has all the powers that belong to him under the draft.
The model highlights the role played by the Guardianship Authority in
these proceedings.1 Indeed, the State Prosecutor for Minors has to notify
the Guardianship Authority of any initiated proceedings against a minor
and if he fails to do so, this will be done by the juvenile judge while the fail-
ure will be brought to the attention of the Higher State Prosecutor for
Minors.
In the creation of this legal model, the members of the working group
were guided particularly by the need to make the national legislation
comply with the Convention on the Rights of the Child—in particular with
its Articles 37 and 40—in the sense of creating the legislation, procedures,
bodies and institutions that specifically deal with children alleged as, accused
of, or recognized as having infringed the criminal law (Art. 40, para. 3 of
the Convention on the Rights of the Child). In relation to that, we were
guided by recommendations of the United Nations and the European
1 In the proceedings against a minor, the centre for social work as a guardianship authority
has the right to be acquainted with the course of the proceedings as well as to make propos-
als in their course and point to the facts and evidence of relevance to the adoption of a correct
decision.
Council contained in: the UN Standard Minimum Rules for the

Administration of Juvenile Justice 1985 (Beijing Rules), UN Guidelines for
the Prevention of Juvenile Delinquency 1990 (Riyadh Guidelines), UN
Rules for the Protection of Juveniles Deprived of their Liberty 1990
(Havana Rules), UN Standard Minimum Rules for Alternative Penal
Measures 1990 (Tokyo Rules), and European Rules on Social Sanctions and
Measures 1992 (CER(92)16); for more detail see Vucković Šahović 2000,
145–9, 254–9; Krech 1997.
Also considered in the creation of the model were contemporary European
laws. In that sense, we consulted the following legislation: English, German,
Belgian, French, Austrian, Norwegian, as well as the current solutions in this
domain in the former Yugoslav countries. We also consulted professional lit-
erature (Mehlbye and Walgrave 1998; Jensen 1996) as well as research
results (among others, the survey carried out for the purpose of the project
on the professionals’ views in this domain).
After the year-long work on the project, the Draft Law on Juvenile Justice
was completed. In order to stress the importance of the criminal-legal posi-
tion of juveniles and younger adults, it contains both substantive and pro-
cedural criminal-legal provisions in one act. Such a solution we considered
logical and justified, and functionally connected with the need for the spe-
cial protection of juveniles, whether they are offenders or victims.
Of course, this included a proposal for amendments and supplements to
the existing substantive criminal legislation. In that sense, the legislative
bodies were presented with the new and redefined specific incriminations
contained in substantive criminal law, with the clear definition of crimes.
The model for the protection of child rights in family relations required
the construction of some new solutions in the domain of substantive and
procedural law, which would make the position of the child as a subject of
family relations comply with international standards and which would pro-
duce more comprehensive and efficient protection of his/her rights in the
legal system. Although the project focused on the protection of children
from abuse and neglect, this part, concerned with family law, was necessar-
ily supplemented by material concerning the definition of child rights in
family relations and the ability of the juvenile to exercise his/her rights,
parental responsibility and ways of exercising parental responsibilities and
rights, as well as the grounds and criteria for the intervention of the state in
these relations. Therefore, the draft of normative solutions included some
elements of substantive family law in parent-child relations, procedural
stipulations with regard to the organization and composition of a special-
ized family judiciary, and specific court proceedings for the protection of
child rights. It should be emphasized that the model is limited to the pro-
tection of personal rights of the child to health and development, endan-
gered or violated by parents. In that sense, we did not include the status
rights of the child in family relations, or the right to be maintained. This
was due to the primary focus of the project on the protection of the child
from family violence. Supplements were imposed by the need to place this
protection in a broader framework, which defines the legal status of the
child and the parent.
The model is primarily based on the concept of child rights contained in
the Convention on the Rights of the Child and the European Convention on
the Exercise of Child Rights, as well as other international human rights doc-
uments. In its creation, we consulted the solutions from comparative legal
systems, particularly of the countries that had adopted modern standards of
legal protection of child rights and family relations. Thus, we considered the
legislations of Norway, the U.K., Germany, Denmark and Hungary, as well
as Croatia and Slovenia, with which we share legal traditions.
The working groups (criminal-legal and family-legal) organized profes-
sional discussions in which they presented the results of the survey, the
Draft Law on Juvenile Justice, the proposed amendments and supplements
to the substantive criminal law (in the part concerning incrimination in
which the child is the victim) and the Draft Family Law (in parts concern-
ing parent-child relations, with corresponding procedural regulations). This
constituted the first phase of the project.
The second phase began upon completion of the first, in August 2002. It
ended in February 2003. In phase two the CRC working group undertook
two important activities:
(1) Writing up a business plan for the administration of juvenile jus-

tice, which would serve as a guideline for mainstreaming juvenile
justice into the justice sector reform program.
(2) Linking up with relevant working groups to provide advice on how
to incorporate the area of the administration of juvenile justice into
the justice sector in question.
The second group of activities in this phase focused on the CRC working
group liaising with other relevant working groups addressing reform of the
justice system, as well as on including the issue of the establishment of the
juvenile justice system in the justice system of the Republic of Serbia. This
involved liaising with the working group for the system of courts organised
as part of the Danish Centre for Human Rights project in Belgrade. In meet-
ings with experts of this group it was agreed that the proposed solutions of
the Child Rights Centre would be included in their activities, in the sense
of the competence and composition of courts in the proposed establish-
ment of the juvenile justice system in the Republic of Serbia.
It is important to emphasise that throughout the second phase of the proj-
ect, presentation of the Model to the relevant subjects (seminars, conferences
and in the media) as well as lobbying for its adoption was continuous. In
November 2002, we had the opportunity to present the Model at the annual
gathering of the Supreme Court of Serbia to all judges for juveniles in Serbia.
At the round table organised during this event, we had the opportunity once
again to emphasize the necessity and urgency of the proposed legal changes
in this domain. The family law draft was also presented at the same event
and a discussion followed on the problems that the justice system is facing
in this domain, particularly in relation to the issue of specialization.
Another important issue should be emphasized here—the problems that
were encountered in the realisation of this phase. After the final versions
were submitted to the Ministry of Justice of the Republic of Serbia, which
was directly involved in the implementation of the first phase of the project
through its representatives in working groups, the Ministry provided nei-
ther a positive nor a negative response to the initiative of the Child Rights
Centre. Consequently, all our lobbying activities were redirected to the
Council for the Rights of the Child of the Republic of Serbia, some mem-
bers of the Government of the Republic of Serbia and the Prime Minister.
In December 2002 our efforts were rewarded—we were invited to pres-
ent and explain the Model to the Council for the Rights of the Child. As a
result, the Council supported the Model and sent out a request to all com-
petent ministries of the Republic of Serbia for active involvement, with spe-
cial emphasis on the High Council for the Reform of the Justice System of
the Republic of Serbia (the Model is presented on the official website of the
Republic of Serbia).
It is also important to stress that the UNICEF Belgrade Office participated
very actively in all these activities and that they strongly support the Model.2
THE MODEL OF THE CHILD RIGHTS PROTECTION IN FAMILY

RELATIONS
A model for the protection of child rights in family relations implies the
design of some new arrangements in the field of substantial and procedural
law, whereby the child’s legal position, as a subject in family relations, is har-
monized with the international legal standards, which produces a more com-
prehensive and efficient protection of his/her rights within the judicial system.
Basic approach
The novelties of the proposed model are based on modern theoretical con-
cepts of family-legal relations, on international human rights and child
2 We need to emphasize, though, that during the organization of round tables and public
debates of this Model Law the following was pointed out: the need to modify certain things
and the need to introduce into the text of this legal act a section on execution of criminal sanc-
tions on children in conflict with the law. UNICEF Belgrade Office supports these activities.
rights instruments, and on practical experience. The key concepts used in

drafting this model were the concept of child rights and the concept of
parental responsibility. In that regard the structure of the model and the
order of its provisions were changed. The basic premises for defining this
model were the following:
(1) The rights of the child have been formulated as special rights, sep-
arate from the parents’ rights, with corresponding legal require-
ments regarding parents and state institutions.
(2) Parental responsibility towards children should be joint and it
implies active exercise of parental rights and duties.
(3) The child’s right to family life is essentially conditioned by the fam-
ily’s integrity and is secured through appropriate social support to
parents.
(4) The family’s autonomy presupposes strictly limited intervention on
the part of the state based on detailed legal requirements and con-
ditioned by the principle of the child’s ‘best interests’ or well-being.
The procedural operationalization of the new model of family-legal rela-

tions calls for changes to be made in the sphere of organizational and func-
tional procedural family law. The basic premises of the proposed
arrangements derive from the need to ensure lawful, effective and econom-
ical legal protection, to adapt the procedure as much as possible to suit the
characteristics of the legal matter at hand, and to enable the child, as well
as other family members, to have full procedural competence in all proceed-
ings in which their rights are being decided.
Proceeding from the fact that ‘law suits’ in the field of parent-child
relations are among the most complex legal matters and that there is an
evident need for the courts to become specialized, the Draft proposes that
a specialized chamber should conduct proceedings in these legal matters.
Such a chamber would be set up in both first- and second-instance
courts. Specialization would be achieved by appointing professionals,
specifically educated in family relations, as judges in trial chambers.
As for lay judges, they would have expertise and experience in family
problems.
General procedural rules also envisage a much more concrete principle of
urgency of proceedings, which is essential in all matters pertaining to the
protection of the child’s rights and ensuring his/her well-being. Since procla-
mation of the principle of urgency alone does not ensure the required prac-
tical expediency of proceedings, as evidenced by previous practice, it has
been proposed to give this procedural principle a more concrete form. This
could be achieved by prescribing a short term for scheduling the first hear-
ing in the first-instance proceedings and a term for reaching a decision in
second-instance proceedings.
One of the basic novelties of this Draft is a totally new concept of the
child’s procedural position and the legal representation of his/her rights in
court proceedings. Bearing in mind the fact that the child’s rights in matters
of parent-child relations are directly affected in each of the special court
proceedings, the child has been granted the status of a party to the proceed-
ings. Proceeding from the fact that the child’s interests cannot be automat-
ically identified with the interests of his/her parents, or his/her legal
representatives, or, for that matter, the interests of the state, whose repre-
sentative is the guardianship authority, it has been proposed to prescribe a
possibility for the court to appoint, ex officio, a special counsel for the child
as the independent legal representative of the child’s rights.
General provisions envisage the special representative’s authority, cre-
ated after the example of modern arrangements contained in comparative
law and international instruments (the Convention on the Rights of the
Child and the European Convention on the Exercise of Children’s Rights).
For the purpose of protecting the child and implementing his/her rights,
the child’s special representative shall have a duty, in addition to taking
actions during the proceedings, to provide the child with all relevant infor-
mation and explanations regarding the legal matter at hand and to explain
to the child the meaning, objective and consequences of procedural actions
before taking them, in a way suitable for his/her age and development
level, except when it is contrary to the child’s well-being. The special rep-
resentative will also be obliged to assist the child in expressing his/her
views and opinions, to explain to him/her the consequences that could
arise in case his/her opinion is accepted, and to inform the court of the
child’s opinion.
In order to make the modern concept of the child’s rights operational
and ensure full procedural competence in proceedings for the child whose
rights are being decided upon, the Draft proposes that a provision be
made for the court to have the duty to enable the child, in accordance
with his/her age and development level, to receive all relevant information
on the proceedings and legal matter at hand; to be consulted and to
express his/her opinion; to be informed of the consequences that could
arise from the acceptance of his/her opinion; as well as the possible con-
sequences of the court’s ruling. In line with this aim, the court should be
able to appoint a special service or person that will supply the child with
relevant information, consult him/her, find out his/her opinion, assist the
child to express his/her views and report to the court thereon. This would
create real conditions for the child, as a party to the proceedings, to imple-
ment his/her right to be informed and to express his/her own opinion in
the course of proceedings. It should also be necessary to envisage the
court’s duty to conduct an interview with the child, without the presence
of third persons, in a place and way suitable for the child’s age and evolving
capacities.
Specific approach
In the new Juvenile Justice Model, in the area of family law reform the
position of the child who is under the age of criminal responsibility (under
14 years), according to the proposed Draft Family Law, underwent a
change.
According to the proposed Draft law, fairly detailed criteria have been set
for the implementation of the child’s compulsory referral to an appropriate
institution or another family.3 This measure is to be implemented if the
child demonstrates a certain level of social deviation, which necessitates
special education and the child’s removal from its immediate living environ-
ment. Since this measure is of a repressive character and entails the child’s
separation from his/her parents, it is proposed that the existing competence
of the guardianship authority be replaced by that of a court in non-con-
tentious proceedings. The duration of the measure is limited, but the meas-
ure may be extended or the selected measure may be replaced with another
protective one. The court may institute proceedings either in the line of duty
(ex officio) or at the request of the Guardianship Authority, a parent or the
person entrusted with the child’s care. Just as with respect to the decision to
temporarily suspend the parent’s right to actual custody of the child, in this
case, too, the guardianship authority will make the decision on the child’s
referral on the basis of the court’s ruling.
The new Family Law was passed in 2004—this delineates many proce-
dural solutions that respect and recognize the various needs of the child,
provide for more adequate addressing of those needs, and ensure the child’s
active participation in accordance with his/her developmental levels and
abilities. The State should develop the mechanisms for its enforcement,
implementation, monitoring and evaluation.
3Article 43: ‘The court may decide in non-contentious proceedings to place the child in a
social care or educational institution or with another family under the following conditions:
1. when the child demonstrates social deviations;

2. when the level of that deviation necessitates special educational forms; and
3. when the child needs to be removed from his/her immediate living environment.
No decision on referral to an institution or another family may be imposed in respect of a

child who has turned 16 years of age.
The court may institute the decision-making procedure from paragraph 1 hereof, ex officio
or at the proposal of the guardianship authority, a parent, a guardian or a person entrusted
with the child’s care.
By its decision from paragraph 1 hereof, the court shall specify the duration of this measure
which may be imposed for one year at maximum. Prior to the expiry of the period specified
by the decision, the court may either ex officio or at the proposal of the guardianship author-
ity, the child or a parent prolong the duration of this measure or pronounce another measure
for the protection of the child’s right.
On the basis of the court’s decision as set out in paragraph 1 hereof, the guardianship
authority shall bring a decision on the child’s referral to an adequate institution or his/her
placement with another family.
The Ministry of Labour, Employment and Social Policy project

Integrated Reform of the Social Protection System produced documents
outlining specific, concrete steps to be taken in reforming the social protec-
tion system, specifically: creation of new standards of work in centres for
social work, transformation of residential institutions, integrated social
protection on the local level, development of foster care systems and
improvement of the system of adoption, and the protection of children
against abuse and neglect.
CONCLUDING REMARKS
Reform of the legislation in the above-stated areas represents only the first
step in improving the legal protection of child rights. An integral approach
in the realization of these rights requires a systematic development of the
legal, institutional and methodological bases of the matter, both in justice
and social care, police and other services participating in the process of pro-
tection. In that sense it is necessary to comply and complement the regula-
tions on social care, practice of law, execution of criminal sanctions,
internal affairs service, etc. However, a reform of the legal system can only
achieve the expected results if relevant standards of professional work are
developed simultaneously and if staff working on its implementation are
continuously educated.
REFERENCES
Freeman, M.D.A. (1983) The Rights and Wrongs of Children. (London,

Frances Pinter).
Jensen, M.F. (1996) Alternative Approaches to Juvenile Delinquency.
(Copenhagen, Association of Danish Lawyers and Economists).
Krech, R. (1997) ‘Implementation of UN Juvenile Justice Instruments’. In
Verhellen, E. (ed.), Understanding Children’s Rights. (Belgium,
University of Ghent).
Mehlbye, J. and Walgrave, L. (eds.) (1998) Confronting Youth in Europe:
Juvenile Crime and Juvenile Justice. (Copenhagen, AKF Forlaget).
Obretković, M. (1996) ‘The Rights of Equal Treatment in the Legal
System’. In Janjić Komar, M, Obretković, M., Prava deteta prava coveka.
(Beograd, Dosije).
Vucković Šahović, N. (2000) Rights of the Child and International Law.
(Beograd, Centar za prava deteta).
18
The Inherent Tension of Social
Welfare and Criminal Social
Control: Policy Lessons from the
American Juvenile Court Experience
BARRY C. FELD
E
VERY SOCIETY CONFRONTS similar problems when childhood and crim-
inality intersect. How should we respond when a child is a criminal and
a criminal is a child? How should we balance youth policy and crime
policy? In American juvenile courts, a tension has always existed between social
welfare and social control—between rehabilitating the young offender and
punishing her for the offence, between safeguarding children and protecting
society (Feld 1999a; McCord 2001). Resolving these tensions entails a choice
between policies of paternalism and protectionism or liberation and autonomy.
How should the legal system treat the criminal conduct of adolescents com-
pared with that of adults? In part, the answers reflect broader social structural
processes, political economic arrangements, media depictions and public per-
ceptions of youth, the politics of crime, and other legal policies that affect the
conditions under which young people develop and attain adulthood.
American juvenile courts focus primarily on youths’ criminal behaviour
and replicate many characteristics of the adult criminal justice system. The
juvenile court’s criminal law foundations and its relationship to the adult
criminal justice system implicate issues of both youth policy and crime pol-
icy and raise questions about its basic purposes (Zimring 1998). Is the juve-
nile court’s primary purpose to function as a rehabilitative social welfare
system and to intervene and change young peoples’ lives? In the alternative,
is its main function simply to divert youth from and to serve as a barrier
against the life-harming sanctions of the criminal justice system (Zimring
2000a)? Should the juvenile court function as a modified criminal justice
system, but one which recognizes young offenders’ reduced competency and
diminished responsibility, and which provides additional procedural safe-
guards and mitigates the harshness of penalties?
408 Barry C. Feld
During the past three decades in the United States, the public and politi-
cians have perceived a frightening increase in youth crime and violence.
Many people question juvenile courts’ ability to rehabilitate violent young
offenders and, simultaneously, to protect public safety. Sensational media
depictions of young criminals as a different breed of ‘super-predators’ fur-
ther heightened public anxiety and fanned a ‘moral panic’ (Feld 2003). A
politically popular desire to ‘get tough’ has provided the impetus to trans-
fer more youths to criminal courts for prosecution as adults and to increase
the severity of sentences juvenile courts impose on delinquents. Such a shift
has repudiated traditional assumptions of childhood blamelessness, disre-
garded adolescent immaturity, and punished youths as the moral equals of
adults (Scott and Steinberg 2003).
Since 1967, judicial decisions, legislative amendments, and administra-
tive changes have transformed the juvenile court from a nominally rehabil-
itative social welfare agency into a scaled-down, second-class criminal court
that provides young offenders with neither therapy nor justice (Feld 1993a;
1999a). This transformation occurred because of the migration of African-
Americans from the rural South to the urban North that began three-quarters
of a century ago, the macro-structural transformation of American cities
and the economy over the past quarter of a century, and the current link-
ages in the media, popular and political culture between race and serious
youth crime (Feld 1999b; 2003).
Two competing cultural and legal conceptions of young people have facil-
itated this transformation. On the one hand, law and culture view young
people as innocent, vulnerable, fragile, and dependent children whom their
parents and the state should protect and nurture. On the other hand, law
and culture perceive young people as vigorous, autonomous and responsi-
ble almost adult-like people from whose criminal behavior the public needs
protection. Policy makers selectively manipulate these competing social
constructs of innocence and responsibility to maximize the social control of
young people (Scott 2000). Most states’ juvenile justice systems provide nei-
ther special procedures to protect juveniles from their own immaturity nor
the full panoply of adult procedural rights. Instead, they treat delinquents
like adult criminal defendants when formal equality redounds to their dis-
advantage and use less-adequate juvenile procedures when those deficient
practices provide a comparative advantage to the state.
For the past three decades, states’ juvenile law reforms have used the
competing imagery of immaturity and responsibility to engage in a process
of ‘criminological triage’. At the ‘soft end’ of juvenile courts’ jurisdiction,
reforms have shifted non-criminal status offenders out of the juvenile jus-
tice system into a ‘hidden system’ of social control in the private-sector
mental health and chemical dependency industries. At the ‘hard end’, states
transfer larger numbers of youths into the criminal justice system for pros-
ecution as adults with no formal recognition of youthfulness as a mitigating
The Inherent Tension of Social Welfare and Criminal Social Control 409
factor. In the ‘middle’, juvenile courts increasingly punish those delinquents

who remain within a more criminalized juvenile system.
The first part of this chapter describes the transformation of the juvenile
court from a social welfare agency into a deficient criminal court over the
past three decades. It analyzes broader macro-structural, legal and political
forces that have abetted the transition to a more punitive juvenile system.
Although juvenile courts attempt to combine social welfare and penal social
control in one agency, these goals embody inherent contradictions. Juvenile
courts do both badly and subordinate the former to the latter because their
primary mission is crime control. By the late twentieth century, the
American juvenile court failed to provide child welfare, failed to protect
society, discredited the idea of rehabilitation, and undermined the image of
the child-offender as innocent and blameless (Scott 2000). If crime control,
rather than social welfare, is the main reason that juvenile courts intervene
in young offenders’ lives, then we need a different justification for a sepa-
rate juvenile justice system. Although recent research in adolescent develop-
mental psychology provides a strong foundation for constructing an
age-appropriate justice system, policy makers have not sufficiently availed
themselves of this information.
The next part analyzes developmental psychological research on adoles-
cent competence and culpability. It extracts from those insights a rationale
for an age-appropriate justice system for younger offenders. A justice sys-
tem for young offenders must take cognizance of developmental differences
in youths’ competence and criminal responsibility. Research on adolescent
competence suggests that youths should receive greater procedural protec-
tions than they currently receive in either the juvenile or criminal justice sys-
tems. Culpability entails a normative judgment about the degree of
deserved punishment for making blameworthy choices (Feld 2004).
Psychological research, criminal jurisprudence, and sentencing policy pro-
vide a rationale formally to recognize youthfulness as a mitigating factor
when judges sentence young offenders in either a juvenile or criminal jus-
tice system. And, as a political matter, only a separate justice system can
fully recognize differences in youths’ competence and culpability, provide
more youth-sensitive procedural rights and more humane sanctions, and
insulate adolescents from the harshness of the criminal justice system.
THE JUVENILE COURT
The juvenile court is the by-product of changes in two cultural ideas

that accompanied modernization and industrialization a century ago:
childhood and social control. The shift from an agricultural to an urban
industrial society and the separation of work from the home produced a
new social construction of children as innocent, dependent and vulnerable
410 Barry C. Feld
(Ainsworth 1991). Progressive ‘child-savers’ used the new imagery of

childhood to advance a number of reform agendas—compulsory school
attendance, child labor, and child welfare laws. A more modern, scientific
conception of social control embraced positivist criminology and adopted
medical analogies to treat offenders rather than to punish them for their
offenses. Positivism sought to identify the antecedent forces that caused
criminality and challenged the classic formulation of crime as the product
of blameworthy, free-will choices (Allen 1964; 1981). By attributing crimi-
nal behavior to external and deterministic forces, Progressive reformers
reduced actors’ responsibility for crime and focused on efforts to reform
rather than punish them. Juvenile courts combined the new conception of
childhood with a new model of social control to produce a judicial-welfare
alternative to criminal justice, to remove children from the adult process, to
enforce the newer conception of children’s dependency, and to substitute
the state as parens patriae. The juvenile court’s ‘Rehabilitative Ideal’
assumed the malleability of children and the availability of effective strate-
gies to intervene in their ‘best interests’.
Procedure and substance intertwine in the juvenile court. Because juve-
nile courts assumed that almost all delinquents lacked criminal responsibil-
ity, they avoided questions of juveniles’ legal competence and reduced
culpability (Bonnie and Grisso 2000). Procedurally, juvenile courts used
informal processes, conducted closed, confidential hearings, and employed
a euphemistic vocabulary to obscure the reality of coercive social control.
Substantively, juvenile courts used indeterminate, non-proportional dispo-
sitions, emphasized rehabilitative treatment and supervision rather than
punishment, and focused on offenders’ future welfare rather than past
offenses. Despite benevolent rhetoric, however, the Progressive ‘child-savers’
who created the juvenile court deliberately designed it to discriminate, to
‘Americanize’ immigrants and the poor, and to provide a coercive legal tool
to distinguish between ‘our children’ and ‘other people’s children’ (Feld 1999a).
Conceptually, punishment and treatment—crime control and social wel-
fare—are mutually exclusive penal goals and make markedly different
assumptions about the sources of delinquency and the nature of interven-
tions. Punishment assumes that responsible people make blameworthy
choices and deserve the sanctions assigned to their acts. The past offense
provides the basis for scaling proportional punishment. Rehabilitative treat-
ment or social welfare assumes a degree of determinism—antecedent factors
caused the undesirable behavior. Intervention seeks to alleviate the sources
of deviance in order to improve the offender’s future welfare. Because
circumstances differ, welfare dispositions are indeterminate and non-
proportional and reflect a diagnosis and prediction about the effects of
intervention on future behavior (Feld 1988).
In their pursuit of the ‘Rehabilitative Ideal’, Progressives situated the
juvenile court on several cultural, legal and criminological fault lines. They
juxtaposed binary conceptions for the juvenile and criminal justice systems:
either child or adult; either determinism or free-will; either immature or
responsible; either treatment or punishment; either social welfare or just
deserts; either procedural informality or formality; either discretion or the
rule of law. During the last third of the twentieth century, juvenile justice
policies witnessed a marked shift from the former to the latter of each of
these pairs in response to the structural and racial transformation of cities,
the rise in youth crime, and the erosion of confidence in rehabilitation
(Garland 2001).
The transformation of the juvenile court
During the 1960s, the Warren Court’s civil rights decisions, criminal due
process rulings, and ‘constitutional domestication’ of the juvenile court
responded to broader structural and demographic changes taking place in
America, particularly those associated with race and youth crime (Feld
1999a; 2003). In the decades prior to and after World War II, black
migration from the rural South to the urban North increased minority
concentrations in urban ghettos, made race a national rather than a
regional issue, and provided the impetus for the Civil Rights movement
(Lemann 1992). The 1960s also witnessed ‘baby boom’ increases in youth
crime that continued until the late 1970s. During the 1960s, the rise in
youth crime and urban racial disorder provoked cries for ‘law and order’
and provided the initial political impetus to ‘get tough’. Republican politi-
cians seized crime control as a wedge issue with which to distinguish
themselves from Democrats and crime policies for the first time became a
central issue in partisan politics (Beckett 1997; Feld 2003).
The Supreme Court’s due process decisions responded to macro-structural
and racial demographic changes, and attempted to guarantee civil rights, to
protect minority citizens, and to limit the authority of the state (Feld 2003).
In re Gault (1967) began to transform the juvenile court into a very differ-
ent institution from that contemplated by the Progressives. The Court
identified two crucial disjunctions between juvenile justice rhetoric and
reality: the theory versus the practice of rehabilitation, and the differences
between the procedural safeguards afforded adult criminal defendants and
those available to delinquents. Rather than uncritically accepting the
Progressives’ rehabilitative rhetoric, Gault examined the punitive realities
of juvenile justice—high rates of recidivism, the stigma of a delinquency
label, harsh conditions of confinement, and the arbitrariness of the process.
The Court mandated some basic procedural safeguards for delinquents
charged with crimes and facing confinement: advance notice of charges; a
fair and impartial hearing; a right to counsel; a right to confront and cross-
examine witnesses; and the privilege against self-incrimination (Feld 1984).
412 Barry C. Feld
In subsequent decisions, the Court further noted the criminal nature of

delinquency proceedings. In In re Winship (1970), it held that the state
must prove delinquency by the criminal standard of ‘beyond a reasonable
doubt’ rather than by lower civil standards of proof. It required the highest
standard of proof to protect against unwarranted convictions, to guard
against abuses of government power, and to ensure public confidence in jus-
tice administration. In Breed v Jones (1975), the Court held that the consti-
tutional prohibition against ‘double jeopardy’ precluded prosecuting a
youth as an adult after a delinquency adjudication for the same offense. The
Court posited a functional equivalence between delinquency and criminal
trials.
In McKeiver v Pennsylvania (1971), the Court declined to extend to juve-
niles all the procedural safeguards of adult criminal prosecutions. McKeiver
held that the Constitution does not require a right to a jury trial in delinquency
proceedings because ‘due process’ entailed only ‘accurate fact finding’, which
a judge could provide as well as a jury. McKeiver relied on the differences
between juvenile courts’ treatment and criminal courts’ punishment to justify
the procedural distinctions between the two systems, although the Court did
not analyze what the differences in purposes actually entailed. Unlike Gault,
which relied on procedural safeguards to ensure both accurate fact finding and
protection against governmental oppression, McKeiver denied that delin-
quents needed protection from the state, invoked the mythology of the pater-
nalistic judge, and rejected concerns that closed juvenile hearings actually
could prejudice the accuracy of fact finding (Feld 1999a).
Gault and its progeny precipitated a procedural revolution that eventu-
ally transformed the juvenile court from its original Progressive conception
of a social welfare agency into a more legalistic, and ultimately criminal,
one. Progressive reformers based intervention on a child’s ‘real needs’—
social circumstances, environment, need for treatment—and regarded proof
of a crime as secondary. Despite McKeiver’s denial of a jury trial, Gault and
Winship imposed an adversarial model—defense attorneys, privilege
against self-incrimination, criminal standard of proof—and required proof
of legal guilt as a prerequisite to state intervention. Even though juveniles
enjoy fewer procedural rights than adults, the Court’s emphasis on some
degree of criminal procedural regularity altered juvenile courts’ focus from
‘real needs’ to ‘criminal deeds’ and shifted delinquency proceedings’ focus
from a social welfare inquiry into a quasi-criminal prosecution. Formalizing
the connection between criminal behavior and delinquency sentences high-
lighted juvenile courts’ criminal law foundations. Providing delinquents
with some criminal procedural safeguards legitimated the imposition of
more punitive sentences. Once states granted youths even a semblance of
procedural justice, juvenile courts more readily departed from a rehabilita-
tive model. Although the Court provided procedural rights as part of its
civil rights agenda to protect minorities’ liberty interests, those safeguards
permitted punitive sanctions to escalate and ultimately to fall dispropor-

tionately heavily on minority offenders.
Juvenile Courts’ procedural deficiencies
Unfortunately, Gault constituted an incomplete procedural revolution and

a substantial gulf still remains between the ‘law on the books’ and the ‘law
in action’. States manipulate the fluid concepts of children and adults, or
treatment and punishment in order to maximize the social control of young
people. On the one hand, states treat juveniles just like adults when formal
equality results in practical inequality. For example, states use the adult
legal standard—’knowing, intelligent, and voluntary under the totality of
the circumstances’—to gauge the validity of juveniles’ waivers of rights
(Fare v Michael C. (1979); Feld 1984), even though juveniles lack the com-
petence of adults. Compared with adults, adolescents differ in cognitive
capacity, maturity of judgment, risk perception, susceptibility to peer influ-
ence, and future orientation, all of which cause them to make characteristi-
cally poorer legal decisions (Grisso et al 2003). Adolescents younger than
sixteen years of age are as seriously impaired as those mentally ill adults
whom clinicians deem incompetent to stand trial (Grisso et al 2003). The
research on youths’ lack of competence is consistent with research on juve-
niles’ waivers of Miranda rights (Grisso 1980) and waivers of their right to
counsel which also provide compelling evidence of the procedural deficien-
cies of the juvenile court (Feld 1989; 1993b).
Procedural justice hinges on access to and the assistance of counsel. In the
decades since Gault, the promise of legal representation remains unrealized
(Feld 1993b). In many states, half or fewer of all juveniles receive the assis-
tance of counsel to which the law entitles them (ABA 1995; GAO 1995;
Feld 1993b). Most juveniles appear without lawyers because juvenile court
judges allow and even encourage them to waive their right to counsel.
However, for youths fifteen years of age and younger, research strongly
questions their ability to make a ‘knowing, intelligent, and voluntary’
waiver of legal rights without consulting with an attorney (Grisso 1997).
However, a lawyer’s presence seems to aggravate the severity of sentences
that juveniles receive and calls into question the quality of representation
and the fairness of delinquency trials (Feld 1993b).
Even as juvenile courts have become more punitive, most states continue
to deny delinquents access to jury trials and other basic criminal procedural
rights guaranteed to adults (Feld 1988; 1995). As a result, juvenile courts
provide a procedural regime in which few adults charged with crimes would
consent to be tried. They provide neither procedural parity with adults nor
additional safeguards that fully recognize the developmental limitations and
limited competence of youth.
414 Barry C. Feld
Criminological triage
Despite their procedural inadequacies, the increased formality of juvenile

courts provided the impetus to adopt substantive ‘criminological triage’
policies. This process entails diverting non-criminal status offenders out of
the juvenile system at the ‘soft’ end, waiving serious offenders for adult
criminal prosecution at the ‘hard’ end, and punishing more severely the
residual, ‘middle’-range of ordinary delinquent offenders (Feld 1993a).
Status offenders
At the ‘soft’ end, policy makers’ disillusionment with juvenile courts’
responses to non-criminal youths led to diversion, deinstitutionalization and
decriminalization reforms (Feld 1999a). Deinstitutionalization reduced
access to secure facilities for non-criminal offenders, and provided the cata-
lyst to transfer many white, female and middle-class youths whom juvenile
courts formerly handled as status offenders into private sector mental health
and chemical dependency treatment facilities (Schwartz 1989). Most states’
civil commitment laws do not provide juveniles with the same procedural
safeguards as they do adults. Instead, states’ laws invoke the imagery of
immaturity and dependency to allow parents ‘voluntarily’ to commit their
children to secure treatment facilities based solely on a physician’s determi-
nation that such confinement is medically appropriate (Feld 1999a).
Serious and violent offenders

At the ‘hard end’ of juvenile courts’ jurisdiction, judges, prosecutors and
legislators transfer increasing numbers of younger offenders to criminal
courts for prosecution as adults (Snyder and Sickmund 1999). In the late
1980s and early 1990s, virtually every state enacted ‘tougher’ laws either
to simplify transfer of young offenders, or to require juvenile court judges
to impose determinate or mandatory minimum sentences on those youths
who remained within an increasingly punitive juvenile justice system
(Torbett et al 1996; Feld 1998). Both transfer and sentencing strategies
de-emphasize rehabilitation and the needs of offenders, stress personal and
justice system accountability and punishment, and base sentences on the
seriousness of the present offense and prior record. Cumulatively, these
changes reflect an inversion of juvenile jurisprudence and sentencing poli-
cies—from rehabilitation to retribution, from an emphasis on the offender
to the nature of the offense, and from concern with ‘amenability to treat-
ment’ and a child’s ‘best interests’ to public safety and punishment.
Sources of punitiveness
The sources of these changes in penal policies lay in broader social struc-
tural changes, media coverage of crime, and the politics of race (Feld 2003;
Garland 2001). Macro-structural changes in cities during the 1970s and

1980s led to the emergence of a racially isolated and impoverished black
underclass. These economic and racial demographic changes contributed
to the escalation of black youth homicide rates in the late 1980s, facilitated the
politics of crime, and produced more punitive juvenile justice policies in
the 1990s (Feld 1999a). One factor contributing to ‘get tough’ politics was the
epidemic of ‘crack’ cocaine and the gun violence and youth homicides that
accompanied the de-industrialization of the urban core and the emergence
of the black underclass (Blumstein 1995). A second factor was media
coverage that disproportionately put a black face on young criminals and
reinforced the white public’s fear of and racial animus toward Blacks (Feld
2003). The immediate source of the ‘crackdown’ was conservative politi-
cians who used crime as a ‘code word’ to make racial appeals for electoral
advantage (Mendelberg 2001).
Rise of the urban underclass

Between World War II and the early 1970s, semi-skilled high school gradu-
ates could get well paid jobs in the automobile, steel and construction
industries. Beginning in the 1970s, the transition from an industrial to an
information and service economy reduced employment opportunities in the
manufacturing sectors and produced a bifurcation of economic opportuni-
ties based on skills and education. In less than twenty years, the gap
between what high school and college graduates earned almost doubled
both because the former made less and the latter received much more
(Wilson 1996). However, only 13.1% of Blacks aged 25 to 34 had college
degrees compared with 24.5% of Whites, and the proportion of Blacks
aged 18 to 24 enrolled in college declined during this period while that of
Whites increased (Edsall and Edsall 1991).
During the post-World War II period, government highway, housing and
mortgage policies encouraged suburbs to expand around urban centers
(Massey and Denton 1993). The migration of whites to the suburbs, the
growth of information and service jobs in the suburbs, the bifurcation of
the economy based on education, and the de-industrialization of the urban
core increased racial segregation and the concentration of poverty among
blacks in the major cities and altered the political balance. The emergence
of the suburban population as a virtual electoral majority enables the pre-
dominantly white voters to satisfy most of their public service needs—
schools, parks, police and roads—through local and county tax
expenditures, weakens their ties to increasingly black cities, and reduces
Whites’ self-interest in state or federal programs which primarily benefit
Blacks and the poor (Hacker 1995; Edsall and Edsall 1991).
In the mid-1980s, the emergence of a structural underclass, the introduc-
tion of crack cocaine into inner cities, and the proliferation of guns among
416 Barry C. Feld
youth produced a sharp escalation in black youth homicide rates (Blumstein

1995). The increase in youth homicide provided the immediate political
impetus to ‘get tough’ on youth crime generally. States changed their juve-
nile waiver and delinquency sentencing laws in the late 1980s and early
1990s in response to two specific changes in patterns of youth crime and
violence—race and guns. Lethal violence and victimization are highly con-
centrated in interstices of social disadvantage and since the mid-1960s,
police have arrested black juveniles for violent crimes—rape, robbery and
aggravated assault—at a rate about five times greater than that of white
youths, and for homicide at a rate about seven times greater than that of
whites (Zimring 1998; Feld 1999a). Beginning in 1986, youth homicide
rates escalated sharply and the arrest rates of black and white juveniles
diverged abruptly (Cook and Laub 1998). Between 1986 and 1993, arrests
of white juveniles for homicide increased about 40% while those of black
youths jumped by 278% (Snyder and Sickmund 1999). Juveniles’ use of
guns accounted for most of the escalation in youth homicide, as arrests of
adolescents for homicide nearly tripled and firearms use by juveniles
accounted for almost the entire increase (Feld 1999a). Analysts attribute the
dramatic increase in black youth homicides to the violent drug industry that
‘crack’ cocaine spawned in large cities during the mid to late 1980s
(Blumstein 1995). The mass media depict and the public perceive crime and
juvenile courts’ clientele primarily as poor, urban black males. Politicians
exploited these racially-tinged perceptions with demagogic pledges to crack
down on youth crime, which has become a ‘code word’ for black males
(Beckett 1997).
Youth crime in the media

As a result of social and urban demographic changes since World War II,
most black and white Americans live more residentially segregated lives now
than they did a century ago (Massey and Denton 1993). Most Whites’
knowledge about Blacks comes from news reports about welfare, crime and
unemployment which tend to reinforce racial prejudice and stereotypes
(Edsall and Edsall 1991; Dorfman and Schiraldi 2001). Whites’ stereotypes
of Blacks function as a perceptual ‘screen’ that admits supporting negative
evidence and blocks contradictory positive data (Entman and Rojecki 2000).
Crime is socially constructed and ‘frames’ represent alternative ways of
understanding it and carry different policy implications (Beckett and Sasson
2000). The policy choice to ‘get tough’ on youth crime reflects the ascen-
dance of certain ways of interpreting and framing crime in the political and
media cultures and a decision to emphasize punishment and imprisonment
policies over other, more humane alternatives. In recent decades, the nature
and content of media coverage have reinforced conservative interpretations
of crime, put a Black face on it, and intensified public support for punitive
policies. News media coverage systematically distorts reality by over-report-

ing violent crime and over-emphasizing the role of minority youths commit-
ting violent crimes (Dorfman and Schiraldi 2001). The emphasis on
violence and race primes Whites’ stereotypes and prejudice, and amplifies,
rather than challenges, politicians’ claims about the need for harsher poli-
cies toward criminals.
The social construction of news is a complex process that reflects jour-
nalistic values and routine practices, the entertainment value of the content,
and the socio-political context of its creation. To increase audience shares
and advertising revenues, local news programs favor an ‘action news’ for-
mat which focuses on frightening and sensational violence because these
stories are concrete, visual, and emotionally powerful. A local crime news
standard script typically contain two elements (Gilliam et al 1996; Gilliam
and Iyengar 2000). The first element is that crime is violent—murder, rape,
robbery, or gang behavior. The second element features the ‘usual sus-
pects’—minority perpetrators. Combining images of violence and race
exerts a pervasive and cumulative effect on public opinion, because viewers
exposed to violent and racial imagery then tend to support more punitive
policies (Peffley et al 1996; Gilliam et al 1996).
Media depictions of crime do not accurately reflect real rates of crime,
the proportion of crime that is violent, or the proportion of crime that
minority youths commit (Dorfman and Schiraldi 2001). Local and network
television news and news magazines devote more coverage to violent crime
than they do to any other subject and disproportionately over-report the
rarest types of crime, such as murder—’if it bleeds, it leads’ (Entman and
Rojecki 2000). Moreover, the media typically depict violent crimes involv-
ing strangers even though acquaintances or intimates commit most violent
crimes and such coverage tends to reinforce a perception of criminals as
outsiders and predators.
Crime news coverage tends to be episodic rather than contextual, to
focus on individual stories rather than the broader social context, and
rarely to analyze neighborhood conditions or individual or community risk
factors that contribute to crime (Entman and Rojecki 2000). The lack of
reporting about context leaves a misleading impression that violence is
attributable exclusively to individual offenders’ bad choices rather than to
structural factors and thereby reinforces conservative interpretations of
crime. News coverage fails to provide the information the public needs to
make reasoned judgments or to evaluate politicians’ claims about crime and
justice policies (Dorfman and Schiraldi 2001).
The bias toward over-reporting violent crime reinforces the connection
between race and crime. While Blacks commit violent crimes at higher
rates than Whites, crime news features Blacks even more disproportion-
ately than their actual rates (Gilliam et al 1996; Hurwitz and Peffley
1997). Media reports portray black defendants arrested for violent crimes
418 Barry C. Feld
negatively—anonymously, spread-eagled or in police custody, and poorly

dressed—more often than they do white offenders (Entmann and Rojecki
2000; Peffley et al 1996). Conversely, crime news depicts victims dispro-
portionately as female, white and affluent, even though they are victimized
less often than other demographic groups, such as Blacks. Crime stories’
‘newsworthiness’ increases with white victims, decreases with black vic-
tims, and is strongest when crime is inter-racial (Dorfman and Schiraldi
2001). Such distorted coverage promotes pejorative stereotypes, reinforces
Whites’ perceptions of Blacks as dangerous and bolsters conservative inter-
pretations of crime and punishment (Gilliam and Iynegar 2000;
Mendelberg 2001).
Politics of race and crime

The adoption of laws to punish youth crime in the early 1990s culminated
the politicization of criminal and juvenile justice policies that began several
decades earlier. Social problems, such as crime, emerge in a process of social
construction with conflicting interpretations and different policy prescrip-
tions. Claims-makers, such as politicians, compete for public acceptance of
the interpretations or frames they advocate and the policies they prescribe
(Entman and Rojecki 2000). Over the past three decades, conservative
politicians have successfully influenced public perceptions about the threat
of crime, attributed the causes of crime to individuals’ bad choices rather
than to social structural forces, assigned responsibility for unacceptably
high crime rates to lenient justice system policies, and promoted campaigns
to ‘crack down’ on crime as part of a broader electoral strategy.
Divisions within the Democratic Party between racial and social policy
liberals and conservatives, and northerners and southerners first emerged in
1948. By the 1960s, the Civil Rights movement heightened the visibility of
Blacks in the south and forced the national Democratic Party to choose
between its white southern and black northern constituencies. Although
most Americans agreed in theory with norms of racial equality, many dis-
agreed with the specific means that the courts and regulatory agencies
developed to remedy inequality and the harbored continuing racial resent-
ments (Mendelberg 2001). Many of the remedies the Warren Court insti-
tuted to end discrimination and racial segregation and to grant legal and
procedural rights to unpopular groups such as criminal defendants became
associated in the public mind with the liberal agenda of the Democratic
Party. The ‘rights revolution’ and the associated social and cultural changes
disturbed and angered many members of the white ethnic working- and
lower-middle classes who bore the brunt of change—civil rights for minori-
ties, employment and reproductive rights for women, protection for crimi-
nal defendants, affirmative action and racial preferences in hiring (Edsall
and Edsall 1992).
During the turbulent 1960s, the sharp rise in youth crime and urban
racial disorder evoked fears of ‘crime in the streets’ and provoked cries for
‘law and order’. Republican politicians blamed escalating crime, campus
disorder, urban riots, and social upheavals on the Warren Court and liberal
Democratic policies. Crime and welfare policies became issues of partisan
politics and acquired a racial quality as conservatives cast Blacks and their
Democratic allies as the villains (Gilens 1999; Mendelberg 2001). The
polarization between Democrats and Republicans on issues of race became
explicit during the 1964 presidential contest between Lyndon Johnson,
whose leadership led to the passage of the 1964 Civil Rights Act, and Barry
Goldwater, a staunch conservative who opposed the law (Edsall and Edsall
1992). Democrats’ support for black civil rights alienated white southern
voters and presaged a racial realignment in American politics as voters
began to identify clear differences between the two parties on a host of race-
related public policy issues. Although the civil rights movement initially
focused on achieving basic citizenship rights for Blacks, such as the right to
vote and equal access to public accommodations, the post-1964 agenda
addressed broader goals of implementing rights and assuring equality of
outcomes for Blacks, often through the use of racial preferences.
Conservatives strongly opposed governmental actions to redistribute
public and private goods—jobs, education and housing—to achieve greater
racial equality. Negative media coverage of crime and welfare reinforced
public perceptions and political depictions of Blacks as criminals and unde-
serving (Edsall and Edsall 1992; Gilens 1999). The civil rights movement
changed perceptions of the Democratic and Republican parties and conser-
vative politicians used crime and welfare as racially-tinged ‘wedge issues’
with which to distinguish themselves from Democrats in order to woo
southern white and ethnic voters (Edsall and Edsall 1992).
In 1968, Richard Nixon’s presidential campaign attributed urban riots
and rising crime rates to liberal ‘permissiveness’ and criticized the Warren
Court for ‘coddling criminals’ and ‘handcuffing the forces of law and
order’. Nixon’s strategy effectively straddled the conflict between public
support for the abstract principle of racial equality and resistance to gov-
ernment-prescribed remedies to end inequality. Nixon articulated the views
of many white Americans who believed that it was wrong to deny Blacks
basic citizenship rights, but who also opposed government-imposed resi-
dential, employment and educational integration (Mendelberg 2001).
Republican political strategists found a responsive audience among white
southerners, suburbanites, socially-conservative ethnic Catholics and blue-
collar workers to foster a political realignment around racial issues. Pursuing
Kevin Phillips’ ‘southern strategy’, Republicans courted these constituencies
with racially-charged ‘code words’, such as ‘law and order,’ that indirectly
evoked racial themes without explicitly challenging egalitarian ideals
(Phillips 1969; Omi and Winant 1994). The Republicans’ ‘southern strategy’
420 Barry C. Feld
ruptured the Democrats’ New Deal economic coalition of the ‘have-nots’

and produced a party realignment around issues of race rather than socio-
economic class. As more progressive forces dominated the Democratic Party,
Republicans depicted them as liberal elitists bent on imposing an alien racial
and cultural agenda (Edsall and Edsall 1992). Because of the perceived asso-
ciation between race, on the one hand, and violence, disorder, crime, illegit-
imacy and welfare dependency, on the other, liberals failed convincingly to
address the increasingly conservative public attitudes spurred by rising crime
and welfare rates. The inability of liberals effectively to debate issues associ-
ated with race enabled conservative Republicans to propose simplistic, polit-
ically popular policies on many contentious issues and to push the debate in
a conservative direction (Mendelberg 2001). Only in the 1990s under Bill
Clinton, for example, could national Democrats respond to Republicans’
exploitation of the crime issue by embracing an equally tough rhetoric and
fostering a bi-partisan policy consensus for ‘law and order’ (Garland 2001;
Beckett and Sasson 2000).
‘Code words’ to appeal to anti-Black sentiments

It is ‘politically incorrect’ to express overtly racist sentiments and research
on ‘modern racism’ attempts to identify closely related, indirect indicators
of racial hostility such as anti-black emotional affect, resistance to Blacks’
political demands, and a denial that racial discrimination or racism persists
(Entman and Rojecki 2000). ‘Code words’—phrases that indirectly conjure
racial themes, but do not directly challenge egalitarian ideals—enable politi-
cians to appeal implicitly to racial resentment without providing clear evi-
dence of racism or an intent to discriminate (Omi and Winant 1994). In the
1970s, conservative politicians recognized that words like ‘law and order’
and ‘individual rights’ evoked racial understandings and, by the 1980s,
words like ‘welfare’ ‘fairness’ and ‘groups’ had acquired racial meanings as
a backlash against liberal policies (Edsall and Edsall 1992). Crime and wel-
fare serve as ‘coded’ issues that enable politicians implicitly to activate some
white Americans’ negative views about Blacks without explicitly playing the
‘race card’ (Gilens 1999; Mendelberg 2001).
For the past thirty years, ‘sound-bite’ politics, symbols and rhetoric
have shaped penal policies as politicians fear being labeled ‘soft-on-crime’
and avoid thoughtful discussions of complex issues (Beckett 1997). In this
unreflective environment, politicians exploit racially-tinged words and
perceptions for political advantage with promises to ‘get tough’ and
‘crack down’ on ‘youth crime’ which the public understands as ‘code
words’ for young black males. The use of ‘code phrases’ enables politi-
cians to convey a well-known but implicit meaning—such as an appeal to
whites’ racial hostilities—while being able to deny any racist interpretation
(Mendelberg 2001).
In this time, conservative politicians and the mass media have pushed
crime to the top of the political agenda by focusing on sensational and vio-
lent crime to promote more punitive policies for political purposes.
Politicians generate crime-news stories in order to shape public attitudes
and promote crime policies that they believe will provide them with a polit-
ical advantage. The 1988 Bush presidential campaign’s focus on Willie
Horton—a convicted black murderer released on furlough who burglarized
and stabbed a white middle class man and raped a woman—tapped voter
anger over criminal defendants’ and prisoners’ rights through the threaten-
ing archetype of the black male rapist of a white woman (Mendelberg
2001). By the early 1990s, ‘youth crime’ had acquired a coded meaning and
juveniles had become a symbolic ‘Willie Horton’ (Beckett 1997; Beckett and
Sasson 2000).
Punitiveness in juvenile transfer and sentencing policy

The politicization of crime policies and the media and public connections
between race and youth crime provided a powerful incentive to transform
juvenile justice jurisprudence (Zimring 1998). Questions about the effec-
tiveness and legitimacy of the ‘Rehabilitative Ideal’ that emerged in the
1960s increasingly eroded the treatment rationale of the juvenile justice sys-
tem and evoked a sense of failure among both practitioners and the public
(Zimring 2000a; Garland 2001). Political opportunism and an erroneous
perception that ‘nothing works’ fostered a greater legislative emphasis on
punishment. The overarching jurisprudential themes of these legal changes
include a shift from rehabilitation to retribution, from sentences based on
the offender’s needs to the seriousness of the offense, from ‘amenability to
treatment’ to public safety and accountability, and a transfer of sentencing
discretion from judges to prosecutors (Feld 1998; 1999a).
Within the past two decades, and particularly in reaction to the increase
in black youth homicides in the late 1980s and early 1990s, virtually every
state revised its transfer laws to facilitate the prosecution of more juveniles
in criminal court (Torbet 1996; Feld 1995; 1998). Juvenile justice policies
became especially punitive toward youths charged with violent and drug
crimes, the offense categories to which black youths contribute dispropor-
tionately. Statutory changes use offense criteria in waiver laws either as dis-
positional guidelines to structure and limit judicial discretion, to guide
prosecutorial charging decisions, or automatically to exclude certain
offenses from juvenile court jurisdiction (Torbet et al 1996; Feld 1998;
McCord 2001). The changes in waiver laws reflect a cultural and legal
reconfiguration of youth from innocent and dependent children to respon-
sible and autonomous adult-like offenders. Politicians’ sound bites—‘adult
crime, adult time’ or ‘old enough to do the crime, old enough to do the
time’—exemplify the reformulation of adolescence and represent crime
422 Barry C. Feld
policies that provide no formal recognition of youthfulness as a mitigating

factor in sentencing (Feld 1997). After controlling for the seriousness of the
offense, juvenile court judges are more likely to transfer minority youths
than white youths to criminal court and the disparities are greatest for
youths charged with violent and drug offenses (Poe-Yamagata and Jones
1999). Once states try youths as adults, criminal court judges sentence them
as if they are adults, impose the same sentences, and send them to the same
prisons (Feld 1998). On 1 March 2005, the U.S. Supreme Court, in a con-
troversial 5-4 decision, barred states from executing offenders for crimes
they committed while under the age of 18 (Roper v Simmons, 125 S.Ct.
1183 (2005)). The dissent in Simmons strongly criticized the majority for
relying on international law as authority for its decision and for citing
Article 37 of the United Nations Convention on the Rights of the Child,
which the United States has not ratified.
Sentencing delinquents
The jurisprudential shift from treatment to punishment that inspired
changes in waiver policies increasingly affects the sentences that juvenile
court judges impose on delinquent offenders as well. Progressive reformers
envisioned a social welfare system for youths that minimized procedural
safeguards and maximized discretion to focus on youths’ ‘real needs’. The
recent impetus to ‘get tough’ also impels juvenile judges to punish delin-
quents more severely and these harsher sanctions disproportionately affect
minority youths (Feld 1999a; Poe-Yamagata and Jones 1999).
Legislative preambles and court opinions explicitly endorse punishment
as an appropriate delinquency sanction. States’ juvenile codes increasingly
employ the rhetoric of accountability, individual responsibility, punishment,
and public safety rather than a child’s welfare or ‘best interests’ (Feld 1988;
1998). Half the states’ juvenile sentencing laws use some type of offense-
based criteria—determinate or mandatory minimum sentences—based on
the seriousness of the offense to structure sentencing discretion (Torbet et al
1996; Feld 1998; Sheffer 1995). Some use sentencing guidelines to impose
presumptive, determinate sentences based on age, offense, and prior record
(Feld 1998; Sheffer 1995). Others impose mandatory sentences that define
minimum terms of confinement or level of security placement based on age
and offense (Torbet et al 1996; Sheffer 1995). States’ departments of cor-
rections administratively have adopted security classification and release
guidelines that use offense criteria to specify proportional or mandatory
minimum terms of confinement (Feld 1998). All of these sentencing provi-
sions—determinate and mandatory minimum laws, and correctional and
parole release guidelines—base the length of time delinquents will serve on
the seriousness of the crime they committed rather than their ‘real needs’ or
future welfare (McCord et al 2001). Offense criteria achieve proportionality
in sentencing, increase the penal bite of sanctions, and allow legislators

symbolically to demonstrate how ‘tough’ they are.
In addition to formal changes in sentencing laws, two general findings
emerge clearly from empirical research evaluating juvenile court judges’ dis-
positional practices. First, the present offense and prior record account for
most of the variance in juvenile court sentences that can be explained. Studies
of sentencing practices report that judges focus mainly on seriousness of the
present offense and prior record when they sentence delinquents (Feld 1998).
Secondly, after controlling for legal variables, the individualized justice of
juvenile courts produces racial disparities in the sentencing of minority
offenders (Bishop and Frazier 1996). According to juvenile courts’ treatment
ideology, judges’ discretionary decisions should disproportionately affect
minority youths, because the Progressives intended judges to focus on youths’
social circumstances rather than simply their offenses and designed them to
discriminate between ‘our’ children and ‘other people’s children’.
Examining juvenile correctional facilities and evaluating their effective-
ness provides another indicator of the increased punitiveness of juvenile jus-
tice. Evaluations of juvenile correctional facilities in the decades following
Gault reveal a continuing gap between the rhetoric of rehabilitation and the
punitive reality (Feld 1977; 1981). Criminological research, judicial opin-
ions, and investigative studies of delinquency institutions and training
schools report staff beatings of inmates, use of drugs for social control pur-
poses, extensive reliance on solitary confinement, and a virtual absence of
meaningful rehabilitative programs (Feld 1998; Parent et al 1994). Despite
‘rehabilitative rhetoric’ and a euphemistic vocabulary, juvenile court judges
increasingly consign disproportionately minority offenders to overcrowded
custodial warehouses that constitute little more than youth prisons.
Evaluations of juvenile treatment programs provide little evidence that
training schools, the most common form of institutional treatment for the
largest numbers of serious and chronic delinquents, effectively rehabilitate
youths or reduce their recidivism rates (Feld 1998). Unlike training schools,
meta-analyses of other types of interventions report that some treatment
programs produce positive effects on selected clients under certain condi-
tions. A recent, comprehensive meta-analysis of 200 studies of treatment
programs for serious juvenile offenders reported significant and positive
effects that reduced recidivism by about 6%, from 50% to 44% (Lipsey and
Wilson 1998). Positive outcomes most often occur in small programs that
provide intensive and integrated responses to the multiple problems that
delinquent youths present. Favorable results occur primarily under optimal
conditions, for example, when mental health or other non-juvenile correc-
tional personnel provide services with high treatment integrity in well-run
programs. Even though some programs produce positive changes, most
states do not provide these services to delinquents generally and instead
confine them in euphemistically-sanitized youth prisons.
424 Barry C. Feld
The inherent contradictions of the juvenile court
Today, American juvenile courts punish rather than treat young offenders
and use procedures under which no adult charged with a crime would con-
sent to be tried. The fundamental shortcoming of the juvenile court reflects
a failure of conception and not simply a century-long failure of implemen-
tation. The juvenile court’s creators envisaged a social service agency in a
judicial setting, and attempted to fuse its welfare mission with the power
of state coercion. Combining social welfare and penal social control func-
tions in one agency ensures that juvenile courts do both badly. Providing
for child welfare is a societal responsibility rather than a judicial one.
Juvenile courts lack control over the resources necessary to meet children’s
welfare needs because of the social class and racial characteristics of their
clients and because the public fears ‘other people’s children’. In practice,
juvenile courts almost inevitably subordinate welfare concerns to crime
control considerations.
If we created a child welfare system ab initio, would we choose a court
as the best agency to deliver services and would we use criminality as the
criterion to define eligibility for benefits? If we would not initially choose
a court to deliver social services, then does the fact of a youth’s criminal-
ity confer upon it any special competence as a welfare agency? Many
young people who do not commit crimes need social services and many
youths who commit crimes do not require or will not respond to social
intervention. In short, criminality is an indiscriminate criterion upon
which to allocate social services. Because we fail to meet the welfare
needs of all young people, juvenile courts’ treatment ideology serves pri-
marily to legitimate judicial coercion of some youths because of their
criminality.
The attempt to combine social welfare and criminal social control in one
agency constitutes the inherent flaw of the juvenile court. The juvenile
court subordinates social welfare concerns to criminal social control func-
tions because of its penal focus. Legislatures do not define juvenile courts’
jurisdiction on the basis of characteristics of children for which they are
not responsible and for which effective intervention could improve their
lives. For example, juvenile court law does not define eligibility for welfare
services or create an enforceable right or entitlement based on young peo-
ple’s lack of access to quality education, lack of adequate housing or nutri-
tion, unmet health needs, or impoverished families—none of which is their
fault and all of which are risk factors for subsequent criminality (McCord
et al 2001). In all these instances, children bear the burden of their parents’
circumstances literally as innocent bystanders. Instead, states define juve-
nile court jurisdiction based on a youth’s criminality, a prerequisite that
detracts from a compassionate response. Unlike adverse social conditions
for which youth are not responsible, criminal behavior represents the one
characteristic for which young offenders do deserve at least some blame.

In short, juvenile courts define eligibility for services on the basis of the
feature least likely to elicit sympathy and compassion and ignore social
structural conditions and personal circumstances more likely to evoke a
desire to help. Juvenile courts’ defining characteristic strengthens public
antipathy to ‘other people’s children’ by emphasizing primarily that they
are criminals. Recent policies that stress punishment, accountability and
personal responsibility further reinforce juvenile courts’ penal founda-
tions and reduce the legitimacy of youths’ claims to humanitarian welfare
assistance.
COMPETENCE AND CULPABILITY: FOUNDATIONS FOR YOUTH

AND CRIME POLICY
For more than a decade, the John D. and Catherine T. MacArthur

Foundation has sponsored research on Adolescent Development and
Juvenile Justice. Despite American politicians’ embrace of punitive policies,
recent psychological and neuroscience research on how adolescents think
differently from adults, how they exercise rights less effectively than adults,
and the underlying neurobiological bases of these differences provide a
strong foundation for the creation of a developmentally appropriate youth
justice system (e.g. Grisso and Schwartz 2000).
States recognize that adolescents have different legal competencies and
greater potential for change than adults. Paternalistic and protective legal
policies that restrict youths’ rights to vote, drink, smoke, drive, enter a binding
contract, donate blood, and the like, reflect these insights. If states de-couple
social welfare from crime control and acknowledge that juvenile courts func-
tion primarily as youth-based criminal justice systems, then they need to
make similar modifications to accommodate the youthfulness of defendants.
The fundamental premise of a criminal justice system for youth is that
adolescents differ from adults in their legal competence and criminal
responsibility, and these developmental differences require substantive and
procedural modifications of the justice system to accommodate them.
Young offenders deserve less severe consequences for their misdeeds than
more mature offenders simply because they are young and have less capac-
ity for self-control (Feld 2004). A paternalistic youth and crime policy
would protect them from the age-linked developmental characteristics that
lead them to make poorer judgments (Scott and Steinberg 2003).
Substantive justice requires states formally to acknowledge youths’ dimin-
ished responsibility, to sentence them more leniently than older defendants,
and to provide them with greater opportunities for change (Feld 2004).
Procedural justice requires full procedural parity with adults and additional
safeguards to account for youths’ lesser adjudicative competence.
426 Barry C. Feld
Competence
As juvenile justice becomes more punitive and states transfer more youths
to criminal courts, difficult questions about immature youths’ ability to
understand the trial process and to make critical legal decisions have
emerged (Redding and Frost 2001; Bonnie and Grisso 2000). The welfare-
oriented juvenile court assumed an informal and co-operative process. But
as juvenile courts have become more adversarial and legalistic, they con-
front issues of youths’ competence. Waiver reforms to lower the age of
criminal responsibility to 14 years or younger present criminal courts with
larger numbers of youths whose developmental immaturity, rather than
mental illness, presents significant issues of competence (Grisso 1997b;
Feld 2000).
Competence refers to a person’s ability to understand the nature and
consequences of legal proceedings and to make decisions, to participate,
and to assist counsel (Grisso 1997b; Grisso and Schwartz 2000). More
commonly, mental illness or disability provide the primary reasons to
question defendants’ competence to stand trial and to doubt their ability
to understand proceedings and assist counsel—’sufficient present ability
to consult with his lawyer with a reasonable degree of rational under-
standing’ and a ‘rational as well as factual understanding of proceedings
against him’ (Dusky v United States (1960)). However, developmental
immaturity also may render juveniles incompetent to stand trial. States
adopt protective policies toward minors in most activities because they
assume that adolescents’ legal competencies—reasoning, understanding,
appreciation, decision-making, maturity of judgment—are not equal to
those of adults (Scott et al 1995; Grisso et al 2003). Juveniles’ diminished
understanding of rights, confusion about trial processes, limited language
skills, and inadequately developed decision-making abilities undermine
their ability effectively to participate or to assist counsel. Most youths
younger than 13 or 14 years of age lack the basic competence to under-
stand or meaningfully participate in their defense (Redding and
Frost 2001). Many youths younger than 16 years of age lack adjudicative
competence either to stand trial as adults or to make legal decisions
in juvenile court without the assistance of counsel (Steinberg and
Cauffman 1999). Juveniles’ lesser competence does not derive from men-
tal illness, as is the case for adult defendants, but rather from generic
developmental limitations—immaturity, lack of knowledge, attitude
toward risk, emphasis on short-term rather than long-term consequences,
susceptibility to peer and parental influences—which affect their
ability to communicate, to reason and understand, and to exercise judg-
ment and make sound decisions (Grisso 2000). Thus, states must provide
greater procedural safeguards in order to offset the inherent limitations
of youth.
Culpability and diminished responsibility
Despite a state’s desire or ability to treat miscreant youth, juvenile courts

function primarily as agencies of criminal social control. Youths experience
delinquency sanctions as punishment regardless of states’ benevolent
motives or the quality of treatment. Punishing young offenders rests on the
premise that adolescents possess sufficient moral reasoning, cognitive
capacity and volitional control to hold them partially responsible for their
behavior, although not to the same degree as adults. Developmental psycho-
logical research, jurisprudence and criminal sentencing policy provide rea-
sons to punish younger offenders less severely for their misdeeds than older
offenders (Feld 2004). Sentencing policies must recognize youthfulness as a
mitigating factor in both the juvenile and adult criminal justice system
(Scott and Steinberg 2003).
Deserved punishment entails condemnation and consequences for mak-
ing blameworthy choices and imposes sanctions proportional to the seri-
ousness of a crime (von Hirsch 1976; 1993). Penal proportionality limits
the state by restricting the exercise of power to deserved punishment com-
mensurate with blameworthiness and the seriousness of the offense. Two
elements—harm and culpability—define the seriousness of a crime. A per-
petrator’s age has relatively little bearing on assessments of harm—the
nature of the injury inflicted, risk created, or value taken (Scott and
Steinberg 2003). But, evaluations of seriousness also involve the quality of
the actor’s choice to engage in the criminal conduct that produced the harm.
Youthfulness and immaturity bear quite directly on the quality of choices
and the culpability of the actor. Criminal responsibility hinges on cognitive
and volitional competence. Youths differ socially, physically, and psycho-
logically from adults: they have not yet fully internalized moral norms,
developed sufficient empathic identification with others, acquired adequate
moral comprehension, or had sufficient opportunity to learn to restrain
their actions. They possess neither the rationality—cognitive capacity—nor
the self-control—volitional capacity—to equate their decisions and criminal
responsibility fully with that of adults. Adolescence is a period of rapid
growth and transition, and youths are ‘works in progress’ who have not
quite become the people they will be as adults. As a result, their bad deci-
sions reveal less about their character and blameworthiness than do the
criminal choices of adults. Adolescents differ from adults in their psycho-
social immaturity and greater responsiveness to external pressures that can
lead to criminal conduct (Scott and Steinberg 2003; Feld 2004). While
penal proportionality suggests shorter sentences for youth because of
diminished responsibility, a protective youth policy also must avoid life-
destructive consequences and provide ‘room to reform’ (Zimring 1982;
2000b). A youth policy should enable young offenders to survive the mis-
takes of adolescence with their life chances intact.
428 Barry C. Feld
Adolescence as a generic form of diminished culpability
Certain developmental differences distinguish the quality of decisions that

young people make from those of adults and justify a more protective stance
when states sentence younger offenders (Feld 2004). Psycho-social ‘maturity
of judgment’ and ‘temperance’ provide frameworks through which to exam-
ine adolescents’ competency and culpability (Cauffman and Steinberg 1995;
Scott 1992; Scott and Grisso 1997). Maturity of judgment can be assessed
across a variety of domains—responsibility, temperance and perspective—
that bear on blameworthiness, culpability and sentencing policy (Steinberg and
Cauffman 1996; 1999). Youths’ immature judgment contributes to a tendency
to make poor choices that ultimately may harm themselves and others.
Differences in judgment, self-control and criminal responsibility are attribut-
able to youths’ developmental differences from adults—breadth of experience,
short-term versus long-term time perspectives, attitudes toward risk, impul-
siveness, and the importance they attach to peer influences (Feld 1997).
Young people are more impulsive, exercise less self-control, fail adequately
to calculate long-term consequences and engage in more risky behaviors than
do adults. Adolescents are less risk-averse than adults in a wide range of
activities affecting health and safety—speeding, unprotected sex, the use of
drugs and alcohol, and criminal conduct. Adolescents may estimate the mag-
nitude or probability of risks differently from adults, use a shorter time-
frame, or reckon opportunities for gains rather than possibilities of losses
differently than adults (Furby and Beyth-Marom 1992). Young people may
discount negative future consequences because they have more difficulty than
adults integrating a future consequence into their more limited experiential
baseline (Gardner and Herman 1991). Disadvantaged youths, in particular,
feel a sense of ‘futurelessness’, fatalism and despair which inclines them to
discount future consequences even more than do other teenagers when they
make cost and benefit calculations (Grisso 1996). Adolescents’ disposition
toward sensation-seeking encourages them to seek exciting and novel activi-
ties, and causes them to take greater risks than adults. Impulsiveness may
stem from hormonal and physiological changes or mood volatility and may
compromise decision making (Cauffman and Steinberg 1996).
Adolescents respond to peer group influences more readily than adults
because of the crucial role that peer relationships play in identity formation
(Scott 1992; Zimring 1998). Most adolescents commit crimes in a group
context, and group-offending places normally law-abiding youth at greater
risk of involvement and reduces their ability publicly to withdraw. Because
of the social context of adolescent crime, young people require time, expe-
rience and opportunities to develop the capacity for independence and
autonomous judgments and to resist peer influence.
Developmental processes affect youths’ judgment and self-control, reduce
their degree of criminal responsibility and deserved punishment, and justify
a different youth sentencing policy. While young offenders possess sufficient

understanding and culpability to hold them accountable for their acts, their
crimes are less blameworthy than adults’ crimes because of diminished
responsibility and limited appreciation of consequences and because their
life-circumstances understandably limited their opportunities to learn to
make more responsible choices.
When youths offend, the families, schools and communities that nurture
them bear some responsibility for the failures of those socializing institu-
tions. Children depend on adults to care for them and to help them to
develop the moral capacity for constructive behavior. The ability to exercise
self-control is not simply a matter of luck, but a socially constructed devel-
opmental process. Community structures affect the conditions and contexts
within which adolescents grow and interact with peers. Many characteris-
tics of delinquents—lower intellectual ability, poverty, social disadvantage,
cultural isolation—hamper cognitive and moral development (Grisso
1996). Moreover, unlike presumptively mobile adults, juveniles’ depend-
ency limits their ability to escape from criminogenic environments (Scott
and Steinberg 2003).
Adolescence is a period of ‘semi-autonomy’ and youths require a ‘learner’s
permit’ that gives them opportunities to learn to make responsible choices but
without suffering fully the long-term consequences of their mistakes (Zimring
1982). The ability to make responsible choices is learned behavior and the
dependent status of youth systematically deprives them of chances to learn to
be responsible. A youth and crime policy must manage the risks that youths
pose to themselves and others while reducing the harmful consequences the
justice system inflicts on them as they negotiate the transition to adulthood.
Youths’ socially constructed life situation limits their capacity to develop
self-control, restricts opportunities to learn and exercise responsibility, and
supports a partial reduction of criminal sanctions (Zimring 1998).
Like other risky behavior, most adolescent criminality is normal and tran-
sitional, and does not indicate the onset of a criminal career. Adolescence is a
time of experimentation and exploration, and youths’ character remains
somewhat unformed and malleable. Penal policy must recognize the rapidity
of adolescence development and avoid consequences that destroy a youth’s
life-chances. Because of immaturity and diminished culpability, a youth sen-
tencing policy would entail shorter sentence durations than for older offend-
ers. Because incarceration disrupts normal development, a sentencing policy
also requires a higher seriousness threshold before states confine youths.
Policy and prescription
A justice system for youths must recognize adolescents’ limited competence

and diminished culpability, and avoid imposing life-destructive sanctions.
430 Barry C. Feld
States confront several policy choices when they devise such a justice sys-
tem. Should they create a separate juvenile justice system or adopt special
procedures and sentencing provisions within criminal courts? How should
they organize such courts? How should they balance welfare and crime con-
trol goals? If they create a separate juvenile court, should it exercise juris-
diction over non-criminal misconduct? What procedural safeguards are
necessary to compensate for youths’ limited competence? How should they
incorporate principles of penal proportionality into the justice system?
What is the appropriate age for criminal responsibility? How should crim-
inal or juvenile courts respond to the youngest offenders, those below the
ages of twelve or ten? Who should decide which youths to try in criminal
courts? Although the United States’ experience provides primarily caution-
ary answers to these difficult questions, developmental psychological
research provides the basis for better-informed decisions.
Separate juvenile court?
Should a state have a legally separate juvenile justice system or simply a

youth-adjunct of its criminal justice system? Scandinavian countries, for
example, eschew juvenile courts, deal with younger offenders exclusively
within the child welfare system, and try youths 15 years of age and older in
their criminal justice system with special procedures, sentencing provisions
and welfare dispositional options in lieu of criminal sanctions (Mehlbye
and Sommer 1998; Feld 1994; Tonry and Doob 2004). On the other hand,
most other western democracies create separate juvenile justice systems to
institutionalize the diminished culpability of most young offenders and to
insulate the juvenile system against the political pressures to punish
endemic in the criminal justice system (Mehlbye and Walgrave 1998; Tonry
and Doob 2004). A separate juvenile court may develop expertise in youth
development and create special institutions to respond to youths’ needs
(Zimring 2000b; Allen 1964). More importantly, a separate juvenile court
may protect youths from destructive penalties imposed in criminal courts.
While the public unknowingly may tolerate modest sanctions administered
to young offenders in low visibility delinquency proceedings, politicians
may baulk at acknowledging openly a policy of moderation and resist for-
mally recognizing youthfulness as a mitigating factor at sentencing (Scott
2000). Many elected officials prefer to demagogue about crime and posture
politically about ‘cracking down’ on youth crime rather than responsibly
educating the public about the realistic limits of the juvenile justice system
to control it.
With the erosion of juvenile courts’ historic rehabilitative and interven-
tionist rationales, the strongest argument for the juvenile court remains a
diversionary one—it is not a criminal court and it is not as susceptible to
political pressures for repression and disfiguring punishments (Zimring

2000a). The primary argument for diversion is one of doing less harm than
criminal punishment of the young. Because criminal courts presume the
competence and culpability of defendants, a separate juvenile court may be
a better venue in which to institutionalize the idea of reduced competence
and diminished responsibility (Steinberg and Cauffman 1999). The ultimate
policy question is one of ‘compared to what?’—in which venue are youth
consistently more likely to receive a less punitive and more humane out-
come?
Jurisdiction—age
Both minimum and maximum ages define a juvenile court’s jurisdiction. In

terms of minimum age jurisdiction, older children and younger adolescents
may lack the cognitive capacity to know the nature and consequences of
their acts or to conform to the norms of the criminal law. The infancy
defense of Anglo-American common law constituted an absolute defense
and excused from criminal liability younger offenders who failed to appre-
ciate the wrongfulness of their acts (Feld 1999a). Once states recognize the
punitive nature of the delinquency docket, then there must be some age
below which youths lack requisite criminal capacity. States should be able
to deal with children younger than 10 or 12 years of age in a non-criminal
social welfare setting and exclude them from the juvenile court.
In terms of maximum age of jurisdiction, a focus on diminished culpa-
bility encompasses more than simply cognitive capacity. The developmen-
tal psychology reviewed above indicates that by about 16 years of age
most youths cognitively understand the prohibitions of the criminal
law. However, it may take them several more years to develop sufficient
maturity of judgment, ability to resist peer influences, and capacity for
self-control to be fully criminally responsible (Feld 1999a; Zimring 1998).
Thus, the maximum age of juvenile court jurisdiction should extend until
at least 17 or 18 years of age.
Jurisdiction—dispositional age
The dispositional authority of a criminal justice system for youth should

continue for several years beyond the maximum age of jurisdiction, for
example until 19 or 21 years of age. Juveniles’ time remaining within the
dispositional jurisdiction of juvenile courts often provides impetus to
transfer them to the criminal court. Most youths whom juvenile courts cur-
rently transfer are 16 or 17 years of age and nearing the maximum age of
jurisdiction (Feld 1995). The availability of a delinquency disposition that
432 Barry C. Feld
extends several years beyond the jurisdictional age would reduce the pres-
sure to transfer all but the most serious and criminally responsible older
juveniles.
Jurisdiction—subject matter
Violations of the criminal law should be the exclusive jurisdictional basis of

a criminal justice system for youths (ABA-IJA 1980). Of course, criminal
violations may be found in statutes other than the penal code, for example,
major traffic offenses, municipal ordinances, and the like. However, juve-
nile court jurisdiction should encompass only conduct that would be a
crime if committed by an adult. It should not include so-called ‘status
offenses’—incorrigibility, indecent or immoral conduct, running away from
home, being beyond the control of parents, truancy, curfew, and the like.
The appropriate social and legal response to minor, nuisance and non-crim-
inal misconduct goes to the heart of the juvenile court’s mission and the
normative concept of childhood on which it is based. The debate pits advo-
cates of authority and control of youth against those who view intervention
as discriminatory, a denial of rights, and ultimately ineffective (Feld 1993a).
While helping troubled children in conflict with families and schools is
inherently attractive, little evidence supports the effectiveness of coercive
intervention to resolve these difficulties (Feld 1999a). States most appropri-
ately address these issues directly through the child welfare, social service
and educational systems rather than via the justice system and delinquency
institutions.
Procedural safeguards
Because a justice system for youth is first and foremost a criminal justice
system, youths should receive all of the procedural safeguards that adult
defendants charged with comparable crimes receive. Many states provide
summary procedures for simpler cases and more elaborate procedural safe-
guards for more serious offenses. If states create a youth-adjunct to the
criminal justice system, it would be easier initially to institutionalize proce-
dural parity with adults. If they create a separate juvenile system, then the
presumption should be for procedural parity and additional protections to
compensate for youths’ lack of adjudicative competence. This also includes
consideration of whether proceedings should be open to the public and
records sealed and confidential.
Procedural justice hinges on the delivery of effective legal services (Feld
1993b; ABA 1995). The first issue is simply to assure the delivery of legal
services to youths. In many states in the United States, for example, simply
providing defense representation remains highly problematic (ABA 1995;

GAO 1995). Many states fail to provide adequate funding for defense serv-
ices and others allow delinquents to waive their right using the adult waiver
standard even though youths lack adjudicative competence (Feld 1993b;
ABA 1995).
Once attorneys represent youths, defining their proper role poses a sep-
arate question. Because of the punitive and adversarial nature of delin-
quency proceedings, most professional organizations assume that a defense
attorney’s proper role is to advocate zealously on behalf of her client (e.g.
ABA 1995). However, delinquents experience considerable difficulty under-
standing either that they have legal rights or the role of counsel on their
behalf. The issues of adjudicative competence—understanding, verbal
communication, decision-making and participation—require lawyers to mod-
ify their adult-representation strategy when they serve younger clients and to
provide support and explanations to enhance their clients’ competence.
Sentencing as delinquents
Even as juvenile courts punish youths, they still must provide delinquents
with ‘room to reform’, impose sanctions that provide delinquents with
opportunities to change, and protect their long-term life chances (Zimring
1998; 2000b). While restrictions and unpleasant consequences are elements
of any sanction, punishment must not permanently disfigure or stigmatize
(Zimring 2000b). Delinquency sanctions that deter, incapacitate or punish
can still provide an offender with the opportunity to change. ‘Room to
reform’ has both prescriptive and proscriptive qualities. Affirmatively,
states must prepare a young person for adulthood and this includes educa-
tion, vocational training, and appropriate social services. Proscriptively,
delinquency sanctions cannot be so severe as to destroy any possibility of a
successful transition to adulthood.
The sanctions imposed in a criminal justice system for youth should be
proportional to the gravity of harm and the culpability of the actor. Unlike
a welfare-oriented disposition which is ‘future-oriented’, indeterminate and
non-proportional, penal proportionality imposes limits on the state and
provides for equality among similarly-situated young offenders. Within the
limits defined by proportionality, states should provide youths with oppor-
tunities to change. If a state fails to provide opportunities for growth and
further debilitates already disadvantaged youths, it guarantees that it will
incur greater long-term human, criminal and correctional costs. A sentenc-
ing and correctional policy that offers young offenders ‘room to reform’
does not covertly reinstate a treatment ideology but facilitates young
offenders’ constructive use of their time and the resources available.
Although the state bears an obligation to provide the means and incentives
434 Barry C. Feld
for personal change, the length of a youth’s sentence should not depend on
perceived treatment needs or responsiveness. Uncoupling social welfare
from criminal social control and divorcing treatment from punishment
means providing opportunities to change voluntarily.
Transfer to criminal court
Contrary to the recent American policy of transferring more and younger

offenders to criminal court based primarily on the seriousness of their
offense, judges, rather than prosecutors or legislators, have the greatest
institutional competence to make this difficult sentencing decision (Feld
2000). A judicial hearing conducted in juvenile court—guided by substan-
tive offense criteria, considerations of the offender’s amenability to a non-
criminal sentence, and subject to rigorous appellate review—constitutes the
‘least bad’ solution to the sentencing problems posed by serious offenders
(Feld 2000; Zimring 2000b). Evaluation of a youth’s maturity and culpabil-
ity would also include an assessment of adjudicative competence (Grisso
1997). Because the premise of a youth justice system is criminal social con-
trol, states should only consider waiver for those few youths whose present
offence, prior record, culpability and criminal participation deserve sen-
tences substantially longer than those available in juvenile court. In most
cases, this would involve only older youths charged with homicide (Zimring
2000b). An adversarial hearing at which both the state and defense can
present relevant evidence to a judge is more likely to produce accurate and
fair decisions than prosecutors make in their offices without access to crit-
ical information and subject to political considerations (Feld 2000; Zimring
1998). Juvenile court judges bring greater competence and youth perspec-
tive to these sentencing decisions than any other institutional actors.
At what minimum age should a youth be considered eligible for prosecu-
tion as an adult? The developmental psychological research reviewed above
consistently reports that youths younger than 16 years of age are qualita-
tively different from older adolescents and young adults in competence and
culpability (Scott and Steinberg 2003). Because of the unevenness of psy-
cho-social development, even as to these older youths, a transfer hearing
should include an assessment of adjudicative competence.
Sentencing as adult criminals
Following transfer to criminal court, both youth protection and diminished

responsibility sentencing policies should still shield young people from the full
penal consequences of their poor decisions and preserve their life chances
and ability to make more mature and responsible choices in the future
(Zimring 1982; 2000b). Such a policy holds young offenders accountable

for their acts and yet mitigates the severity of sanctions because of their
reduced responsibility. Sentencing policy that integrates youthfulness,
reduced culpability and restricted opportunities to learn self-control with
penal principles of proportionality would provide younger offenders with
substantial fractional reductions of adult sentences. If youths as a class
characteristically make poorer choices than adults, then sentencing policies
should protect them from the full penal consequences of their bad decisions.
To punish less responsible youths like adults would be disproportional and
impose a harsher penalty than the amount of culpability deserves (Steinberg
and Cauffman 1999).
Because youthfulness constitutes a universal form of reduced culpability,
states should treat it categorically as a mitigating factor, without regard to
nuances of individual developmental differences or to the nature of the
offense for which the youth was transferred. Youth development is a highly
variable process and chronological age is a crude measure of criminal
maturity and the opportunity to develop the capacity for self-control.
Despite the variability of adolescents, however, a categorical ‘youth dis-
count’ that uses age as a conclusive proxy for reduced culpability and
shorter sentences is preferable to an individualized inquiry into the crimi-
nal responsibility of each young offender (Feld 2004). There are no clini-
cal indicators of moral development or self-control that equate readily
with criminal responsibility and accountability. Once we recognize that
young criminal actors are only partially responsible, clinical testimony
aimed precisely at tailoring sanctions to culpability is not worth the bur-
den or diversion of resources that the effort would entail. Because dimin-
ished criminal responsibility is a legal concept, there is no forensic analog
to which clinical testimony would correspond. Rather, a youth discount
categorically recognizes that criminal choices by young people are qualita-
tively different from those of adults and constitute a form of diminished
responsibility per se. Because reduced culpability provides the rationale for
mitigation, younger adolescents are less responsible and deserve propor-
tionally shorter sentences than older youths (Feld 1997; 2004). With the
passage of time, age and opportunities to develop self-control, social toler-
ance of criminal deviance and claims for youthful mitigation decline.
Discounted sentences that preserve younger offenders’ life chances require
that the maximum sentences they receive remain substantially lower than
those imposed on adults. Capital penalties and mandatory minimum
terms, for example, life without parole, have no place when states sentence
presumptively less-blameworthy adolescents. Because of the rapidity of
adolescent development and the disruptive consequences of incarceration,
the rationale for a ‘youth discount’ also supports requiring a higher in/out
threshold of offense seriousness and culpability as a prerequisite for
imprisonment.
436 Barry C. Feld
Age-segregated youth prisons
Where states should confine youths and what services they should provide
are separate questions from those of criminal liability and accountability.
States should maintain separate age-segregated correctional facilities to pro-
tect both younger offenders and older inmates. Even though youths are
somewhat responsible for their criminal conduct, they are not the physical
or psychological equals of adults in prison. While some youths may be vul-
nerable to victimization or exploitation by adults, other youths’ lack of self-
control may pose a threat to older inmates.
Because all young offenders will eventually return to society, the state
must provide them with resources for self-improvement on a voluntary basis
because of its basic responsibility to its citizens and in its own self-interest.
A correctional policy that offers youths ‘room to reform’ opportunities and
resources does not reinstate a welfare or treatment ideology, but facilities
youths’ constructive use of their time. With maturity, most young offenders
develop a capacity for self-control. Youths require education, social and clin-
ical services, and economic and vocational training for their personal growth
and future life chances, regardless of the impact on recidivism rates.
CONCLUSION
A century ago, the transition from an agricultural to an industrial society

changed our cultural ideas about childhood and strategies of social control,
and led to the creation of the juvenile court. More recent structural changes
have eroded support for the ‘rehabilitative ideal’ and modified the social
construction of childhood (Feld 1999a; Garland 2001). The shift from an
industrial to an information and service economy, the migration of rural
southern blacks to cities and whites to suburbs, the deindustrialization of
the urban core, and the concentration of poverty among urban blacks have
changed the patterns and public perceptions of youth crime and the justice
system’s responses to it. States’ juvenile justice systems now emphasize per-
sonal accountability and punish young offenders rather than treat them. To
support more punitive policy, public officials invoke images of young
offenders as responsible and autonomous people, rather than as dependent
and vulnerable children. The depiction of delinquents as responsible offend-
ers has eroded the Progressives’ social construction of childhood innocence
and vulnerability. As a result, neither the ‘treatment’ nor ‘childhood’ foun-
dation remains and very little distinguishes America’s juvenile and criminal
justice systems’ ideologies and practices. Most of the remaining differences
put young people at a disadvantage because states provide an inferior jus-
tice system to maximize their social control and because policy makers do
not regard youths as ‘real’ people entitled to the same legal protections or
rights as other citizens.
States bring youths to the justice system because they committed crimes,
not because they need social services. Accordingly, states should uncouple
social welfare from social control. This would enable them to pursue child
welfare directly, unencumbered by penal considerations. A society that
cares for the welfare of its children does so by supporting families, commu-
nities, schools and social institutions that nurture all young people, and not
by cynically incarcerating its most disadvantaged children and pretending
that it is ‘for their own good’. Separating social welfare and social control
would also honestly acknowledge that the real business of juvenile courts is
crime control. Once we recognize that the child is a criminal and the crim-
inal is a child, we must make substantive and procedural modifications to
accommodate the youthfulness of some defendants. Only by doing so can a
state achieve justice and fairness for its children.
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—— (1993) Censure and Sanctions. (New York, Oxford University Press).
Wilson, W.J. (1987) The Truly Disadvantaged. (Chicago, University of
Chicago Press).
—— (1996) When Work Disappears: The World of the New Urban Poor.
(New York, Alfred A. Knopf).
442 Barry C. Feld
Zimring, F. (1982) The Changing Legal World of Adolescence. (New York,

Free Press).
—— (1998) American Youth Violence. (New York, Oxford University
Press).
—— (2000a) The Common Thread: Diversion in Juvenile Justice.
California Law Review 88, 2477–95.
—— (2000b) The Punitive Necessity of Waiver. In J. Fagan and F. Zimring
(eds.), The Changing Borders of Juvenile Justice: Transfer of
Adolescents to the Criminal Court. (Chicago, University of Chicago
Press).
Cases Cited
Breed v Jones, 421 U.S. 519 (1975).

Dusky v United States, 362 U.S. 402 (1960).
Fare v Michael C., 442 U.S. 707 (1979).
In re Gault, 387 U.S. 1 (1967).
In re Winship, 397 U.S. 358 (1970).
McKeiver v Pennsylvania, 403 U.S. 528 (1971).
Roper v Simmons, 125 S. Ct. 1111 (2005).
19
Conclusions: Themes, Trends, and
Challenges
ERIC L. JENSEN AND JØRGEN JEPSEN
SOCIAL CONSTRUCTIONS OF YOUTH AND

JUVENILE JUSTICE POLICY
S
EVERAL COMMON THEMES and related international trends become
obvious from the chapters in this book. First, the notion of a separate
justice system for juveniles is now and was at its origins grounded in
the social construction of childhood (see deMause 1974; Platt 1977). That
is, children or juveniles are perceived of as less cognitively and socially
developed than adults, and cannot be held to a standard of adult culpabil-
ity, or mens rea. Based on this conception of childhood, youth are in need
of nurturing and guidance to grow into responsible adults, and deserve a
chance to rectify their law violating actions short of feeling the iron hand
of criminal punishment—with the possible exception of those committing
extremely violent crimes. This was the underlying philosophy of the origi-
nal American juvenile court until the insertion of a crime control model in
the early 1980s.
Variations on the original social welfare model were also subsequently
adopted by many European countries from the early 1900s through the
1930s (see Dünkel in this volume; Edelbacher and Fenz 2002; Walgrave 2002;
Gelsthorpe and Kemp 2002; McAra 2002). These actions were inspired in
part by the international Criminalist Conferences and the coming into
power of the social democrats.
Setting the stage: changing constructions of youth in the U.S.A.
In reality, the traditional cultural construction of childhood has been some-

what mixed in the U.S. with children often suffering harsh treatment
throughout history (see Empey, Stafford and Hay 1999 for an overview). A
more modern conception of children arrived thanks to the efforts of the
Progressive Movement in the late 1800s. Cultural conceptions of children

and their treatment in practice seemed to improve with the social activism,
changes in law, and changes in social and educational policy that emanated
from the Progressives.
Growing out of these cultural conceptions of childhood were policies
that sought to minimize the stigma and resulting negative consequences
for youth who were involved in the juvenile justice system. While these
policies were the basis of the original juvenile court model, some had
effectively been laid aside in practice in the U.S.A. by the late 1960s. This
dereliction of least intrusive policies was brought to the national atten-
tion of juvenile justice professionals and scholars with the Gault case of
1967. In that case Gerald Gault was given an indeterminate sentence of
up to six years in a correctional facility for juveniles because he was
alleged to have participated in telephone call to a woman in which unde-
sirable language was used. The actions in this case caused many to re-think
the reality of the notions of minimal intrusion by the juvenile justice system
and proportionality under law for juveniles (see Jensen’s chapter in this
volume).
A movement in the late 1960s and 1970s in the U.S. initiated an attempt
to return the juvenile justice system to its roots (see the chapter by Jensen
in this volume). These renewed efforts were aimed at avoiding the stigma
associated with processing in the justice system. They included an active
campaign of utilizing the authority and funding resources of the federal
government to enforce least restrictive alternative policies including diver-
sion from formal juvenile justice system processing for minor violations of
law and status offenses, and the avoidance of incarceration whenever
possible. Thus, the policy direction of this era was an attempt to humanize
the system of juvenile justice which had changed over nearly eighty years
and return it to its philosophical origins.
Societal contexts, cultural values and norms change over time, however.
The efforts of these reform movements were based on the notions of the
modern cultural constructions of childhood. The construction of child-
hood has been changed by powerful political forces in the U.S.A. since the
early 1970s, however. The political agenda of the administration of
President Richard Nixon was to create a political strategy in American
society which would take the traditional voting blocks of the white work-
ing class in the Northern states and whites in the Southern states away
from the Democrat party (i.e. the Southern strategy). In their efforts to
enhance their personal political power and the long-term power of the
Republican party, the Nixon administration painted a picture of young
people—particularly young African Americans—as leftist political radicals
who were opposed to the war in Vietnam, users of illegal drugs, and
violent criminals.
Conclusions: Themes, Trends, and Challenges 445
Thus, the youth movements of the time, emerging minority self-empower-

ment movements, drugs, and crime became one-in-the-same in the minds of
many Americans. This was a clear example of scapegoating the problems of
society on various ‘dangerous classes’ of people ... in order to gain political
support. For example, Baum (1996: 13—emphasis added) quotes an entry
made by H.R. Haldeman, Nixon’s White House Chief of Staff, in his per-
sonal diary: ‘[President Nixon] emphasized that you have to face the fact
that the whole problem is really the blacks. The key is to devise a system
that recognizes this while not appearing to.’ (Jensen and Gerber 1998, 13).
Beckett and Sasson (2004, 54) have noted how this political strategy was
translated into popular discourse:
New sets of Republican constituencies were thus courted through the use of
racially charged code words—phrases and symbols that ‘refer indirectly to racial
themes but do not directly challenge popular democratic or egalitarian ideals’
(Omni and Winant 1986, 120). The discourse of ‘law and order’ is an excellent
example of such coded language, and allowed for the indirect expression of
racially charged fears and antagonisms.
These political claims-making activities instituted a change in the very cultural

conceptions of youth, and later, by extension, those of children. The most
important legacy of these claims-making activities of the Nixon administra-
tion is that this rhetoric has persisted in the minds of Americans for nearly
three decades, largely due to the crusading efforts of the neo-conservatives and
the uncritical distribution of these images by the mass media—not only in
news productions but also on ‘talk radio’ and ‘reality’ crime television pro-
gramming (Jensen and Gerber 1998, 13; Beckett and Sasson 2004 chapters 5
and 6; Cavender 1998).
The seeds were planted by the Nixon administration but this altered social
construction of young people re-emerged with the presidency of Ronald
Reagan, beginning in 1980. As shown in Jensen’s chapter in this volume, the
Reagan administration shifted public attention and federal juvenile justice
policy to a focus on youth violence—which was not supported by statistics
on crime, unbeknownst to the market-driven media and the misinformed
public. The neo-conservative image of youth was, and continues to be, of
adult-like persons who make rational decisions to commit a disproportionate
number of serious crimes. The modern social construction of the cognitively
developing child in need of nurturing and assistance was under attack by this
intense political claims-making. The public appears to have been increasingly
susceptible to this myth of youth dangerousness, due in part to the economic
crises of the late 1970s and early 1980s (see Wilson 1987). The acceptance of
this view of youth has also been reinforced by the substantial growth of the
religious right in the U.S.A. and their patriarchal, punitive worldview (see
Grasmick and McGill 1994; Jacobs, Carmichael and Kent 2005).
Several years after the Reagan claims about youthful violence, an epi-
demic of violence swept the nation, especially in low-income neighborhoods
of large cities. The rapid increase in murders coupled with the images of
dangerous youth spread by the Nixon and Reagan administrations and rei-
fied by the media resulted in a new social construction of teenagers and
changed ideas about appropriate legal punishments for them in the minds
of many Americans. When self-proclaimed experts on youth crime created
the image and label of ‘superpredator’ it was widely covered in the media
and firmly implanted in the minds of the public (see Bennett, Dilulio and
Walters 1996). This rapid increase in violence by youth coupled with a
changed cultural view of adolescents and the political dominance of the
neo-conservatives at the time, combined to lead to the enactment of harsh
penalties for serious youthful offenders and an explosion in the incarcera-
tion of juveniles for many forms of law violation—not only violence (see
Feld’s chapter in this volume).
Moral panics as social construction of youth crime: variations by nation
While it appears that these negative constructions of youth and concomi-

tant shifts toward harsher justice policies directed at young people began in
the U.S.A. some thirty years ago, these constructions have now spread to
other nations. As Estrada (2001, 639) has noted in the introduction to his
constructionist analysis of perceptions of youth violence, ‘As we enter the
new millennium, academics, the media, politicians and the public seem for
once to be in agreement, that the number of youths committing violent
offenses is increasing rapidly in Europe’ Estrada then goes on to demon-
strate that this perception is not supported by empirical reality in most
European countries.
Perhaps the first infusion of this ideology in Europe was under Margaret
Thatcher in the United Kingdom.
The Criminal Justice Act of 1982, which was passed by Mrs. Thatcher’s
Conservative party government, moved away from some elements of welfare and
treatment to more punitive elements as it severely attacked the principles of wel-
fare for juvenile delinquents that previous legislation had introduced [in 1963] ...
The dramatic politically motivated shift embodies many of the elements of a
crime control model. (Antonopoulos and Winterdyk 2003, 388)
Mrs. Thatcher’s punitive ideology regarding young law violators paralleled

the neo-conservative philosophy and policies in the U.S.A.
Why are some nations susceptible to the moral panic of youth crime
and violence and others not? This is a complex question and our under-
standing must be sought in the sociocultural, economic and political con-
ditions in these nations. Common themes that emerge are scapegoating
minority/immigrant/racial groups, and the insecurities caused by rapid

social change and economic decline.
One common theme that emerges in those nations covered in this book
that have experienced a moral panic regarding youth crime is a connection
to minority populations or immigrants. Indeed, the origins of the American
juvenile court have been closely linked with attempts to control immigrant
youth (Platt 1977). Feld (1999 and in the present volume) has shown a
strong connection between race and the recent use of crime control policies
in juvenile justice in the U.S.A.
After reviewing the situations in eight Western European nations and the
United States, Marshall (1997, 224–5) noted:
political and public debate on the link between criminality and

minorities/migrants ... is often highly politicized and volatile, sensitive, and emo-
tionally charged. More often than not, the ‘minority-crime’ connection is enthu-
siastically embraced by political extremists in Europe. Likewise, in the United
States, public and political discourse on native ethnic and racial minorities, ‘new
immigrants’, undocumented aliens, and foreigners (and crime) tends to be highly
controversial and emotional …
Often a kernel of truth exists in these claims that may lead to moral panics
(see Reinarman 2003). In general, street crime, interpersonal violence and
victimization occur at higher rates among marginalized populations, and in
nations with weak social welfare systems among the lowest income strata.
The research shows that the socio-economic living environments of the
marginalized are an important influence on the prevalence of law violation,
especially serious offenses (Jarjoura, Triplett and Brinker 2002; Elliott and
Huizinga 1983; Sampson 1995; Sampson and Groves 1989; Anderson
1999).
Marginalized populations are more likely to be immigrants or people of
color in the U.S.A. and Western Europe. As Feld (1999, 290) has pointed
out, a tendency exists to perceive the children of these marginalized groups
as different and more deserving of harsh punishments when they violate the
law. In addition, there is a tendency for politicians to make scapegoats of
these less powerful groups. Politicians often deflect attention from inequal-
ities in society and the resulting harmful consequences of these structural
problems to the life problems of less powerful groups in the society (see
Baum 1996; Jensen and Gerber 1998; Beckett and Sasson 2004).
In the U.S.A., Denmark, South Africa and the former West Germany, the
social construction of dangerous youth is firmly connected to images of
young people in non-white, marginalized populations. On the one hand,
this connection has been made rather covertly by politicians and the media
in the U.S. On the other hand, in Denmark the immigrant-crime connection
has been made quite openly and frankly by major national political figures.
In South Africa the image of the poorest, marginalized black street children
as the major source of youth crime appears to be thoroughly embedded in

the minds of the white minority.
We also observe a clear ‘sense of popular punitiveness’ in both the U.S.A.
and South Africa. The origins of this punitiveness are found in the individ-
ualistic ethos of the dominant cultures within these societies, and the racial
and social class tensions therein (see Austin and Irwin 2001; Beckett and
Sasson 2004). This situation has been exacerbated in American society by
thirty years of divisive claims-making activities by neo-conservative politi-
cians and the rise of the religious right.
Denmark has also experienced claims-making activities regarding youth
crime and violence which have resulted in some movement towards ‘get
tough’ legislation. As Jepsen points out in his chapter, from the late 1990s
through 2002 three factors were involved in the move toward more serious
sanctions: (1) a relatively minor increase in violent crime among youth
10–17 years of age up to 2002, and since then a clearer rise in serious vio-
lent youth crime; (2) the ‘Great Danish Rocker War’; and (3) xenophobic
reactions to increased immigration combined with several highly publicized
crimes of violence perpetrated by immigrant youth or second generation
immigrant youth. While a kernel of truth regarding increases in youth vio-
lence existed in Denmark, the media and politicians have greatly exagger-
ated the problem. These claims-making activities by the media and
politicians were further solidified into criminal policy under the Social
Democratic government in the late 1990s and 2000–1 in the form of two
consecutive and comprehensive ‘violence packages’. With the election of a
right-wing government in late 2001 a campaign was launched for anti-
immigrant and even anti-asylum policies (in particular influenced by the
Danish People’s Party). Since taking power, the new government has zeal-
ously pursued a ‘get tough on crime’ program with an emphasis on law vio-
lations by young immigrants and particularly young second generation
immigrants. Public concern regarding violence and crime actually decreased
from 1993 through late 2003, however, until the highly publicized murders
of two little girls and group rapes committed by second generation immi-
grant youth in mid-2003 stimulated increased concerns. Thus, public opin-
ion was not originally the driving force underlying these policy changes.
Political claims-making was the initial primary influence (see Jensen and
Gerber 1998).
Feelings of insecurity are also a major theme in the changing social con-
texts of several of the nations represented in this book. In this context,
Scheingold (1984, 87) has noted: ‘The politics of law and order thrive only
together with a more extended sense of social malaise, which drives the
public toward the consolations provided by the myth of crime and punish-
ment.’ Further, ‘punishment, as Durkheim has pointed out, provides an
unequivocal reassurance that the society’s norms and values are still
intact—fully supported by the powers that be’ (Scheingold 1984, 86).
South Africa is perhaps the most obvious case here with a sense of under-
lying fear following the move to democracy. Given the wide racial divisions
in South Africa and the insecurities of many elements of society with the
change to democracy, Skelton points to a regressive shift from a modern
developmental view of children to a ‘popular punitiveness’. She writes, ‘The
fears of the white minority about the myriad of societal changes they were
experiencing tended to be most effectively articulated in terms of fear about
crime’ (this volume). As in the U.S.A., political and media constructions of
youth—especially non-white youth—as dangerous and violent have been
influential in South Africa recently.
This growing fear of crime and violence among the public has led to ‘law
and order’ changes in the proposed South African juvenile justice legisla-
tion. What was initially a progressive, restorative justice and child rights-
based proposal has been partially transformed due to this fear and the sense
of ‘popular punitiveness’.
In the U.S.A., the economic position of the average family has steadily dete-
riorated since the mid-1970s. People sense their increasing insecurity but are
often not aware of the structural, and indeed global, sources of their frustra-
tions. Thus they are more susceptible to the politics of fear. In Denmark, one
of the most comprehensive social welfare systems in the world has been
slowly weakened over time. While these changes are at least in part due to the
baby boom generation approaching retirement and the anticipated increased
demands that will be made on the social welfare system in the near future, the
situation was exacerbated by claims-making in the tabloid media and politi-
cal campaigns of the right-wing focused on alleged abuses of the social wel-
fare system by immigrants. The Danish case reminds observers of the code
words and symbolic politics used so often by neo-conservatives in the U.S.A.
American society was suffering massive structural economic dislocations
in the 1980s when the neo-conservatives came into power. The unemploy-
ment rate was high, especially in the ‘rust belt’ Northeast, poverty rates
soared in large cities of the Northeast, and well-paid unionized, industrial
jobs were being moved to other nations or Southern non-union states by
major corporations. The neo-conservative politicians would rather make
issues of the myth of youth violent crime—at that time—and illicit drugs
than face the serious economic problems which the nation was facing. At
the same time, the public was hoping for a promise of stability and eco-
nomic well-being. As Scheingold (1984) has noted, these conditions are fer-
tile ground for ‘get tough’ crime policies.
Although Sweden was subject to claims-making activities about youth
violence from the mid-1980s through the mid-1990s, this nation resisted
the path taken by so many other countries (see the chapter by Sarnecki in
this volume). At least during the mid-1990s, Sweden was going through a
period of concern about immigrants and an economic downturn. More
recently, Sweden has returned to a position of economic strength in Europe.
The nature of reporting violent crime in the media has influenced public
opinion in Sweden to believe that youthful violence is on the rise, despite
research to the contrary. Despite the shift in public concern about youth
violence, the cultural values and the societal institutions of Sweden have
resisted massive movements toward demonizing youth and a related crime
control model—the basic welfare approach to delinquency has not been
altered. However, a special new sanction of ‘secure (closed) youth care’ has
been developed for the ‘hard end’ of the spectrum of Swedish juvenile
crime. At the same time, mediation and other community-based non-puni-
tive types of reactions have also been developed.
Poland has also experienced a moral panic regarding youth crime and
violence since the early 1990s (see Krajewski’s chapter in this volume). ‘Due
to growing problems with juvenile delinquency and foremost juvenile vio-
lence, or rather public perception that such processes take place, the public,
media, and politicians increasingly support a more punitive approach to the
problems of juvenile delinquency’ (emphasis added). Today Poland has the
highest unemployment rate among the major nations of Western and
Eastern Europe. When combined with reductions in benefits to pensioners
since the regime change and low wages for the employed, economic insecu-
rities and social malaise in Poland are rife.
Conservative political pressures have also been exerted in Germany to
move toward a crime control model. As elsewhere, feelings of insecurity
associated with a major transition in society (i.e. reunification) have been
exploited by most German political parties (except the Green party), with
law and order being hot topics. To date, however, these repressive efforts
have failed. Apparently somewhat unique to Germany, an organization of
juvenile justice practitioners has been quite influential in resisting the con-
servative push for ‘get tough’ policies.1
Socio-cultural constructions of youth and juvenile justice policy:

variations by nation
The factor that appears to differentiate the nations represented in this vol-
ume more than moral panics regarding youth crime are their respective
socio-cultural constructions of youth. This point became clear to the
authors when we heard reports of conditions in Malawi at the Oñati con-
ference, read the chapter on Nepal, and read drafts of chapters for the
Durban volume from Uganda and Tanzania (see Sørensen and Jepsen 2005).
These papers confirmed Jepsen’s observations while participating in pre-
appraisal missions to Africa as part of the DIHR juvenile justice program.
1 This situation is in sharp contrast to Denmark, where the new conservative government
has publicly criticized academic experts on criminal justice issues.

The manner in which children and youth are treated under the rubric of the
legal system in these nations reflects cultures that have not adopted
the modern social constructions of childhood and adolescence that were the
philosophical underpinnings of child welfare-based juvenile justice systems
and the Convention on the Rights of the Child. This situation is clearly
understandable since the modern constructions of childhood and adoles-
cence were reified with the movement from agricultural to urban, industrial
economies in Western societies (see Feld 1999). The developing nations are
presently moving towards a contemporary version of this structural socio-
economic transition experienced earlier by Western societies.
Sweden, Poland, the reunified Germany, Catalonia, and to some degree
Serbia, continue to hold to cultural traditions of treating youthful law vio-
lators as victims of their life circumstances and in need of support and assis-
tance due to their developmental stage of life. These sentiments are clearly
stated by Krajewski:
It [the social welfare approach] is based on the assumption that persons below a
certain age, because of their mental development, shall not and cannot be held
responsible for their wrongful acts in the same way as adults. This excludes …
retributive purposes of punishment ... Moreover, it is assumed that possibilities of
changing youthful law violators, or rehabilitating them, are, because of their
young age, much better than in the case of … adults. (this volume)
Achieving the tenets set out in the Convention on the Rights of the Child
requires cultural and by extension legal systems that recognize the special
needs of children (see Grisso and Schwartz 2000). On the other hand, power-
ful conservative political forces in many Western nations adhere to a model of
children and youth as simply little adults who are rational decision makers.
Speaking on crime, then President Reagan (1984, 886) said, ‘Choosing a career
in crime is not the result of poverty or of an unhappy child or a misunderstood
adolescence; it is the result of a conscious, willful choice made by some who
consider themselves above the law, who seek to exploit the hard work and,
sometimes, the very lives of their fellow citizens’. When applied to children and
adolescents, this philosophy is a regression toward cultural values that had
been replaced hundreds of years ago in Western cultures by a modern social
construction of childhood. This backward step has also occurred, at least in
juvenile justice policy, in South Africa, the United Kingdom (see
Antonopoulous and Winterdyk 2003), and recently in Denmark.
THE RESTORATIVE JUSTICE MOVEMENT
Another theme that runs through several of the chapters in this book is the
movement toward restorative justice concepts and alternatives to the tradi-
tional juvenile justice system. Restorative justice is an ancient practice.
Restorative justice has been the dominant model of criminal justice throughout
most of human history for perhaps all of the world’s peoples. ... Beyond the parts
of the globe ruled by European kings (among the Indigenous peoples of the
Americas, Africa, Asia, and the Pacific), restorative traditions persisted into mod-
ern times ... remaining today as a resource of cultural diversity that can be drawn
upon by European peoples whose justice traditions have been more homogenized
and impoverished by central state power. (Braithwaite 2002, 5)
Although the renewed attention to restorative justice principles and pro-

gramming in the West began in Canada with an experimental victim-
offender reconciliation program in the mid-1970s, some indigenous
peoples have continued to use this alternative to traditional justice prac-
tices to the present time (Braithwaite 2002). Thus, the West has learned
from the indigenous practices of non-western cultures. The most well-
known of these practices is family group conferencing in New Zealand.
This program grew out of the traditional Maori practices for handling
dispute resolution. The re-birth of traditional native justice practices in
Canada and the U.S.A. have also brought attention to the restorative jus-
tice movement. Thus, one of the founding questions behind the Oñati
conference was: what can the West learn from restorative justice practices
in developing nations?
As noted in the chapter by Mendenhall and Dumesnil, native communi-
ties in the U.S.A. and Canada are increasingly moving toward restorative
practices with juvenile law violators. Although the research on the effective-
ness of these programs is still in its initial stages, these practices appear to
be well-received by many stakeholders and residents of these communities
where they are established.
The South African Law Reform Commission has also worked intensively
to develop legislation and realistic policy objectives for a restorative-based
juvenile justice system. The process has been going on for several years, but
as noted in the chapter by Skelton, public fears and a moral panic reminis-
cent of those in the West have created obstacles to the passage of this pro-
gressive juvenile justice proposal. The original restorative-oriented work in
South Africa may inspire similar developments in other African nations
such as Malawi, and in other developing countries such as Nepal—a
partner in the DIHR juvenile justice program.
Today restorative justice is also a well-established movement in the West.
One of the first systems was set up in Norway, in part as a result of Nils
Christie’s work on ‘Conflicts as Property’ (Christie 1977; see also Miers
2001). Mediation boards became part of national legislation in Norway in
1991. Restorative justice policies were included in the 1990 German reform
law. These programs were implemented rather rapidly in the former East
Germany (Dünkel, this volume). As of the mid-1990s, there were at least
300 restorative justice programs in North America—with the majority in
Canada—and over 500 in Europe (Braithwaite 2002, 8). The U.S. federal
government has advocated the adoption of restorative justice models and

practices (see U.S. Office of Juvenile Justice and Delinquency Prevention
1998; Bazemore and Umbreit 2001; Umbreit 2000). These practices have
been comprehensively adopted in only a few jurisdictions in the U.S.A.,
however. Recent legislation in the United Kingdom, Canada, Poland and
Austria has also attempted to establish restorative justice practices for juve-
niles (see Antonopoulos and Winterdyk 2003; Löschnig-Gspandl 2001;
Krajewski, this volume).
Braithwaite (2002) reports support from both sides of the ideological
continuum for restorative justice alternatives:
In New Zealand, the country with the most developed programmatic commit-
ment to restorative justice, the mainstream conservative and social democratic
parties have been joined by Christian pro-family parties of the Right in their sup-
port for restorative justice. In New Zealand ... and Australia ..., the evidence is
surprising on how supportive of restorative justice can be the police, that tradi-
tional ally of law-and-order politicians. (Braithwaite 2002, 10)
Of course, the process of instituting new policies often faces obstacles dur-
ing implementation. The 1998 restorative juvenile justice model in the U.K,
for example, has experienced forms of punitiveness that would not be
expected from a truly restorative system. For example, restorative confer-
encing has become dominated by the police officer. In practice, the offender
and the victim play minor roles in the process. In addition, if the offenders
are not willing to comply with a reparation order, ‘the reparation order
automatically becomes punishment. In other words, “the offender may be
coerced into reparation”’ (Antonopoulos and Winterdyk 2003, 394).
Based on observational research on youth justice conferences in Australia
and New Zealand, Daly (2002, 72) stated, ‘there appears to be limits on
“repairing the harm” for offenders and victims’. On the one hand, juveniles
often lack the empathetic orientation toward others which is necessary for
a restorative process—often a developmental issue. On the other hand, the
victims are limited by ‘the capacity to be generous to lawbreakers and to see
lawbreakers as capable of change’ (Daly 2002, 72).
The state of Idaho in the U.S.A. formally adopted the Balanced and
Restorative Justice Model as the theoretical basis for its new juvenile justice
system in 1995 (see U.S. Office of Juvenile Justice and Delinquency Prevention
1998), yet long-term incarcerations of juveniles increased substantially follow-
ing the implementation of this legislation absent a clear indication of a rise in
serious youth crime (see Chinn Planning, Inc. 1998; Office of Juvenile Justice
and Delinquency Prevention 2004). An increase in long-term incarceration in
this case directly opposes Braithwaite’s (2002) view of restoration.2
2 These increases in the incarceration of juveniles following the adoption of a model intended
to be restorative parallel those of the ‘widening of the net’ phenomena experienced with some
programs in the American experiences with diversion.
Based on these observations in three societies, it becomes obvious that

attempts to implement restorative justice practices will face serious obsta-
cles in societies and communities with widespread sentiments of popular
punitiveness.
Outlining the basics of the restorative justice model, Strang (2002, 44)
states:
Restorative justice takes many forms, but usually refers to the restoration of vic-
tims, offenders, and community. ... Bazemore (1997) observed that restorative
justice encourages a shift towards less formal responses to crime that emphasize
the role of citizens, community groups, and other institutions of civil society.
Bazemore and Umbreit (1995) believe that in fact a core value in restorative jus-
tice is to balance offender needs, victim needs, and the needs of the community.
The Scandinavian welfare board includes several of the elements of the

restorative justice model outlined in this quotation: a less formal response
to crime than in the traditional juvenile court; a response that includes cit-
izens and specialists in the membership of the board; concern with offender
needs; and concern with the needs of the community (i.e. to reintegrate the
offender).
In Norway, the ‘conflict councils’ involve victim-offender mediation and
have been operating in all Norwegian communes for more than a decade as
a way of diverting minor cases from the criminal justice system. A similar
system was attempted in Denmark but only on a limited experimental basis.
On the other hand, Denmark has for several years elaborated a structure for
co-operation between the social welfare sector, schools and the police (the
‘SSP-system’). Denmark has also recently begun to introduce family confer-
encing as inspired by the New Zealand model.
Thus, only an emphasis on the needs of the victim remains to be inte-
grated into the Scandinavian model to make it a comprehensive restorative
justice practice. In fact, the Scandinavian municipal social welfare board
model is remarkably similar to community reparative boards, one of the
four restorative conferencing models discussed by Bazemore and Umbreit
(2001).
Such a synthesis of these models could represent a path for developing,
transitional and developed countries to pursue in designing, revising and
implementing juvenile justice systems: a Scandinavian-style community
social welfare board model with an added focus on meeting the needs of the
victim and taking care of the concern for the community through structures
similar to the Danish model for co-operation among schools, social services
and the police. This new model could result in balancing the needs of
offenders, victims and the community. In developing nations, traditional
culture-specific modes of restorative practices could be added to this new
model. Due process protections for the accused must also be included in this
model as per the Convention on the Rights of the Child by introducing an
element of judicial control. Such a model may overcome many of the recur-
ring disappointments experienced with both the social welfare models and
the crime control model, and assist in bringing reparation to victims.
IMPLEMENTING JUVENILE JUSTICE SYSTEMS
A major objective of both the conference at the International Institute for

the Sociology of Law in Oñati, Spain and this book is to assist practition-
ers, jurists, NGOs, etc. in developing and implementing humane, effective
juvenile justice systems within the principles set out in the Convention on
the Rights of the Child and other international instruments. It is obvious
from the cumulative empirical and practical knowledge represented in this
book that all nations can learn from the experiences of others. Developed
nations are learning from the traditional restorative practices being used in
developing nations and native communities of North America. Developing
nations and nations in transition are learning from the years of experience
and research on juvenile justice programming in developed nations. The
experiences of nations in transition and those of developed nations that
have recently undergone major changes in their juvenile justice systems may
provide guidance for developing nations in the legal, political and ‘how to’
(and ‘how not to’) realities of implementing new systems (e.g., by organiz-
ing and supporting regional co-operation—see Stapleton’s chapter in the
present volume).
In addition, responsible juvenile justice practitioners, researchers and
activists must be aware of the deleterious consequences of the widespread
moral panics about young people, youthful law violators and violence that
plague many Western nations and often become the ideological underpin-
nings of repressive practices. We can then work together to create strategies
to overcome this false information and the public fears associated with
these claims-making activities (see Herring and Ebner 2005 for a related
policy example).
Models of juvenile justice systems and specific programs can only be
effective in achieving the objectives set out for them if they are correctly
implemented (see Sherman et al 1997). As part of effective implementa-
tion, it is critical that all stakeholders are represented in the processes lead-
ing up to the creation and implementation of new or revised juvenile
justice systems. This may indeed be one of the most important contribu-
tions that a community-based restorative justice model can make to this
implementation process (see the chapters by Flindt-Pedersen and Stapleton
in this volume; Mashamba 2005; DeGabriele 2005). Effectively imple-
mented restorative justice models not only include the various stakehold-
ers in the community, but once operating also appear to receive the support
of nearly all stakeholder groups (see Braithwaite 2002). This unique appeal
of restorative justice principles and practices to interests at both the ‘soft’

and the ‘hard’ ends of the spectrum can be a crucial element in the devel-
opment of new human rights-based juvenile justice systems. The chapter
on Malawi in the present volume illustrates this process in practice.
As Jepsen (2005, 13–14) stated in the Durban volume:
It is worth noting that the push for reforms come not only from donors and for-
eign advocates of juvenile justice reform but also from national and regional
sources. It is important that juvenile justice reform is not pushed upon the less
developed countries by foreign donors. Programs of development are sustainable
only to the extent they build upon local partnerships in the participating coun-
tries. These partners include persons and institutions with actual and potential
standing and influence in the individual countries. It is therefore paramount to
include all major stakeholders in the reform process, both in relation to goals and
deciding on appropriate mechanisms. … The use of advocacy—for human rights
in general and for juvenile justice in particular—is an important element in these
efforts. Raising awareness about problems and solutions is a first and indispen-
sable element in the process of reform.
Successful implementation of juvenile justice practices also depends upon

basing policy and practice decisions on the extant empirical research. A
wealth of research on ‘what works’ or ‘best practices’ in juvenile justice pro-
gramming has accumulated during the past fifty years (see Sherman et al
1997; www.mstservices.com; http://depts.washington.edu/sdrg/index.html;
http://www.strengtheningfamilies.org/html; Armstrong’s chapter in this vol-
ume; Jensen and Eilers 2005). Although policy decisions are often made by
political officials based on their personal philosophies, advocates of
humane, human rights-based, effective juvenile justice policies must be inti-
mately familiar with the most methodologically rigorous research—or
engage consultants with this knowledge—and continually work for the best
programs possible.
We will conclude this statement of themes and future challenges with a
quotation from Barry Krisberg, president of the National Council on Crime
and Delinquency:
... it is patently clear that most of us would seek a justice system that is founded
on core principles of charity and redemption if it were our own children who
were in trouble. This, of course, is the key issue. If we recognize the truth that all
children are our children, the search for the juvenile justice ideal [of the original
juvenile court] is our only choice. (2005, 196)
Treating young law violators humanely and fairly is part of the effort to
secure the future of society and lies at the heart of the Convention on the
Rights of the Child. This instrument envisions delinquent youth as part of
society now and in the future as they mature, not as objects for punishment
and marginalization.
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Index
Abadinsky, H., 293 Poland, 156, 160

Abramson, Bruce, 25 South Africa, 74
adolescents: Spain, 100, 284–5
adolescence as diminished responsi- United States, 426, 431
bility, 428–9 variations, 2, 3
boys, 27–32 Albrecht, Hans-Jörg, 127, 147
psychology, 409, 425 Allen, D., 17
adversarial legal systems, 355, 364 Allen, F.A., 410
Africa: alternatives to prison
new ideas on justice, 54–60 see also diversion programs
penal reform, 52–4 Africa, 53
African Charter on the Rights and Denmark, 234–6, 249
Welfare of the Child, 74 Germany, 134
African Commission on Human Rights Zimbabwe, 53, 55
and Peoples’ Rights (ACHPR), 53, Altschuler, D.M., 294, 295, 297, 298,
58 299, 300, 301, 302, 305, 306, 307,
after-care 310, 319, 321, 330, 331
see also Intensive Aftercare Program American Indians:
balanced approach, 329–31 Bureau of Indian Affairs, 349–50
case management, 329 clash with European civilisation, 349,
effective strategies, 317–31 351–3
evidence-based treatment, 318–20 Commissioner for Indian Affairs,
medical model, 331 356
structural features, 320–9 community and family, 347
treatment/control mix, 317–18 complexity, 354–5
United States, 297–300 Courts of Indian Offences, 356, 366
age of criminal responsibility: due process, 367
and competence, 431 healing, 354, 361–3
Denmark, 216–17 interdependent society, 347
England and Wales, 147 lack of hierarchy, 353
European trends, 147 living cultural context, 348–53
Germany, 117 restitution, 355–6
Malawi, 373n restorative justice, 341–68, 452
Nepal, 265–6, 270, 277 Emmonak Elders Group, 358–60
Netherlands, 147 eradication, 346–7
462 Index
Hollow Water Healing Circles, diversion, 68, 271

361–3, 365–7 individualised justice, 72
Navajo peacemaking, 360–1 international standard, 5
philosophy and status, 363–7 juvenile justice, terminology, 45
review, 357–67 and Nepal, 267, 269, 271, 273,
social ills, 351 276, 278
traditional beliefs and crime preven- police training, 278
tion, 347–57 pre-trial detention, 269
tribal courts, 357, 360 separation from adults, 269–70
US justice administration, 357–8 and Serbia, 399
Wanbli Wiconi Tipi, 348, 350, 351 social inquiries, 276
and Western legal system, 355–7 and South Africa, 74
and Western science, 353–5 Benin, 60
Amnesty International, 30, 51 Bennett, W.J., 446
Anderson, C., 367 Bernard, Thomas, 2, 85, 156, 183
Andersson, T., 207 Beulke, W., 118
Andrews, D.A., 319 Beyth-Marom, Ruth, 428
Antonopoulos, G.A., 446, 451, 453 Bishop, D., 423
Aos, S., 93, 94 Blackmore, J., 294
Aries, Philippe, 84 Blue Thunder, Florentine, 348
Armstrong, Troy, 294, 295, 296, 297, Bluehouse, P., 355
298, 299, 300, 301, 302, 305, 306, Blumstein, A., 415, 416
307, 310, 316, 317, 319, 330, 331 Boldt, R.C., 368
asylum seekers, Denmark, 247 Bonnie, R.J., 410, 426
Austin, J., 448 Bonta, J., 319
Australia, 2, 28 Borum, R., 296, 318
Austria, 137–8, 453 boys, 27–32
Bradshaw, W., 356, 452
Bad Hand, Howard, 347, 350, 352, Braithwaite, J., 1, 341, 342, 345–6,
353, 354 453, 455
Bad Hand, Pat, 350, 351 Bratton, William, 68
balloon effect, 23–4 Brill, E.J., 364
Balvig, Flemming, 225, 226, 255 Brinker, G.P., 447
Banda, Hastings, 60 ‘broken window’ approach, 68
Bangladesh, 60 Brunk, C., 75–6
Bannenberg, B., 120 Bulger, James, 75
Barberton, C., 70 Bush, George H., 421
Barkun, M., 365 Bush, George W., 92
Barton, W.H., 316 Byrne, J.M., 295
Baum, D., 89, 447
Bazemore, G., 453, 454 Cairns, J., 353, 354
Beauliau, Lucien, 156, 184 Camerer, L., 67
Beckett, K., 89, 411, 416, 420, 421, Camichael, J.T., 445
445, 447, 448 Canada:
Beheler, John, 349 First Nations, 341, 357
Beijing Rules: Hollow Water Healing Circles,
children’s privacy, 273 361–3, 365–7
corporal punishment, prohibition, 344 public opinion, 183
Index 463
restorative justice, 452, 453 Convention on the Rights of the Child

capacity, legal capacity, 427–36 (CRC):
Carter, Jimmy, 89 best interests of children, 101
Catalano, R.F., 93, 94 better financing, 20
Catalonia, 110–11, 286, 288–9, 451 centrality, 15
Cauffman, E., 426, 428, 431, 435 changing attitudes, 18
Cavender, G., 445 child development needs, 19–20
Cerezo Mír, J., 107 coalition building, 17–18
Cesaroni, Carla, 156, 184 and corporal punishment, 344–5
chancery courts, 85 definition of child, 275
changing attitudes, CRC effect, 18 and Denmark, 219, 234, 249, 253–5
Chicago Women’s Club, 85 detention of juveniles, 208, 254, 376
child development: diversion, 271
and CRC, 19–20 due process, 5, 454–5
and legal competence, 428–9 impact, 16–21
promotion, 26 juvenile courts, 272, 274–5
child labour law, 19, 84 law reform, 20
child participation: and Malawi, 380
CRC principle, 19 and Nepal, 263, 265–6, 272, 273,
maximising, 61–2 274–5
Serbia, 391 new government structures, 18–19
child savers, 24, 83, 84, 86, 159, 410 participation of young people, 19
childhood, social construction, 24–5, philosophy, 451, 456
443–51 principles, 4–5, 455
United States, 84, 91, 408, 443–6 privacy of children, 273
children, definition, 25, 275 Protocols, 19
children’s rights: ratifications, 16
Convention see Convention on the separation from adults, 220
Rights of the Child (CRC) and Serbia, 392–3, 398–400, 403
international protocols, 19 and South Africa, 74
movement, 24–5, 32–4, 65 and Spanish system, 100, 109
Serbia, 392–4, 399–400, 402 US influence on, 88–9
Christiaens, Jenneke, 156 Cook, P.J., 416
Christie, Nils, 255 corporal punishment:
Clear, T.R., 296 international law, 344–5
Cline, F., 355 and restorative justice, 344
Clinton, Bill, 420 Cotran, E., 20
coalition building, CRC effect, 17–18 crime control model:
community service: Danish move to, 213–58
German system, 120, 137, 144, 146 German move to, 450
Malawi, 384 trend, 2, 4
Spain, 107 United States, 88–91, 410–11
Zimbabwe, 55, 56 v welfare model, 410–11
Conference of Heads of Correctional crime prevention, and traditional
Services in Central, Eastern and beliefs, 347–57
Southern Africa (CESCA), 51, 54 Croatia, 394, 395
Conforti, B., 20 Cruz, C.Z., 364–5
Conrad, J., 295 Cuello Contreras, J., 100
464 Index
Cuesta, J.L. de la, 99, 100, 105 cultural radicalism, 255

Cullen, F.T., 293 Danish People’s Party, 214, 217, 248,
Cunneen, C., 2 448
immigrants, 215, 447
Dahl, Tove Stang, 216, 253 insecurity, 449
Daly, K., 453 juvenile justice system, 2
Danida, 40 12–14 years old, 218, 226–8
Danish Institute for Human 15–17 years old, 218, 228–36
Rights(DIHR): 18–20 years old, 236–40
Conference on Juvenile Justice and age of criminal responsibility,
Human Rights, 44–6 216–17
international law framework, 4 backwards steps, 451
partner countries child welfare committees, 216
aims of implementation process, conflict councils, 242
43–4 and CRC, 219, 234, 249, 253–5
common problems, 48–9 criminal justice as gateway, 218–19
community-based infrastructures, 43 from welfare to repression,
CRC compliance, 41–2 213–58, 255–8
diversion programs, 45–6, 49, 50 gender statistics, 241
implementation of humane new sanctions, 240–5
systems, 39–50 no separate system, 218
information sharing, 50 pre-1973, 217–18, 252
law v practice, 45–8 prison
Malawi see Malawi 15–17 years old, 232–6
meaning, 39 alternatives, 234–6
Nepal see Nepal and CRC, 254
recommendations to, 42–3 pre-1973, 217–18, 252
research and monitoring, 47–8 Ringe Prison, 232
restorative justice, 452 punitive approaches, 48, 245–9,
Seminar on Juvenile Justice, 40–4 448
statistical information, 47 remand, 231–2
step-wise approach, 49 secure wards, 219–20, 223, 249,
and Serbia, 394, 400 257
Dean-Myrda, M.C., 293 sentences, 218–19
death penalty, 5, 435 separation from adults, 219, 220
Declaration on Prison Conditions in social welfare model, 213, 221–4
Africa 1996, 52 funding, 221
decriminalisation, US, 414 overlap, 218
Defence for Children International, reactions against, 224–5, 256–8
21–2 waivers of prosecution, 230–1,
DeGabriele, D.A., 455 243, 244, 245
deinstitutionalisation, US, 87–8, 414 welfare boards, 221–4
Deisler, Francis, 367n appeals against, 222
Delano, C., 349 youth contracts, 240–5
Delgado, R., 344, 345 Youth Sanctions, 249, 250–3,
DeMause, L., 443 256, 257
Denmark: modern Scandinavian country,
and Convention Against Torture, 253 214–15
Index 465
moral panics, 255 Sweden, 200–4

popular punitiveness, 448 United States, 87, 88, 294, 414
restorative justice, 454 Dólera Carillo, M.A., 109
right-wing swing, 214–15 Doleschal, E., 295
tolerance tradition, 214 Dölling, D., 142
youth crime, 215 Dolz Lago, M.J., 105
14–15 years old, 225–6 domestic violence, 127, 417
18–20 years old, 236–7 Doob, A.N., 430
1990s decrease, 242–3 Dorfman, L., 416, 417
ethnic migrants, 246–9, 250, 251, Doyle, R., 29
257, 447 Drenkhahm, K., 136
increased violence, 245 due process:
Rocker War, 245–6, 448 American Indians, 367
types of offences, 227 CRC, 5, 454–5
young children, 226 equality of arms, 62
Denton, N., 415, 416 German system, 121–2
Derzon, J.H., 319 Poland, 170–1, 184
detention of juveniles: Spain, 102, 285–6, 287
alternatives see alternatives to prison US juvenile courts, 86, 89, 91, 294,
Beijing Rules, 269 411–13, 432–3
and CRC, 208, 254, 376 Dünkel, Frieder, 120, 125, 126, 130,
Denmark, 218–20, 231–6, 254 132, 133, 134, 136, 137, 138, 142,
Germany, 117–18, 120, 122 145, 147, 148
Malawi, 382–3, 384–5 Durban Conference volume ix, x, xiii,
Nepal, 268–70, 274, 279 450, 456
Poland, 171–2 Durkheim, Émile, 448
preventive detention, 91
Spain, 103, 104, 107, 108, Eagle Hawk, Chris, 348
285–6, 291 Ebner, J., 455
Sweden, 198–9, 208 Edelbacher, M., 443
United States, 91, 423, 436 Edsall, T.B. & M.D., 415, 416, 418,
developing countries, 4 419, 420
Dilulio, J.J., 446 education:
diminished responsibility, 427–9 gender differences, 28–9
diversion programs: German educational care orders, 142,
Beijing Rules, 68, 271 143, 146
CRC, 271 right to, 33–4
criteria, 50 Serbian educational measures, 393–4,
developing countries, 4 397–8
inancing, 35 US school attendance, 84
Germany, 119–20, 126, 130–3 Einstein, Albert, 55
international law, 271 Eisenberg, U., 138
Malawi, 46, 48, 61, 374–5 Elliott, D.S., 297, 303, 447
Nepal, 270–1 Emmonak Elders’ Group, 358–60
Poland, 169 Empey, L.T., 89, 443
Riyadh Guidelines, 271 Entman, R.M., 416, 417,
South Africa, 68, 73, 74, 75 418, 420
Spain, 102–3 Espersen, Ole, 253
466 Index
Estrada, F., 11, 190, 191, 192, 194, Gendreau, P., 296
206, 207, 446 Geng, B., 120, 126, 136, 142, 145, 148
ethnic minorities: Gerber, J., 89, 445, 447, 448
and delinquency, 49 Germany:
Denmark, 246–9, 250, 251, 257, 447 age structure, 115–16
German juvenile delinquency, 122–6, Bochum study, 126–7
447 demography, 115–16
social construction, 447–8 domestic violence, 127
Sweden, 247 East European migrants, 125–6
United States, 94, 316–17, 415, East German Länder, 126, 130,
417–20 134–6, 144–5
anti-black code-words, 420–1 ethnic minorities, 122–6, 447
social construction, 447 insecurity, 450
Etxebarria Zarrabeitia, X, 99, 107 juvenile justice system
European Convention on the Exercise 1923 Juvenile Justice Act, 116–17
of Children’s Rights, 19 age groups, 121
European Rules on Social Sanctions and age of criminal responsibility, 117
Measures 1992, 5, 399 appeals, 121–2
experts: Brücke initiatives, 141–4
Spanish system, 105 community sanctions, 118, 120,
Sweden, 205 140–4, 147–8
US system, 92–4 East Germany, 144–5
community service, 120, 137,
Fagan, J.A., 90, 91, 92, 295, 303 144, 146
fair trial see due process detention, 117–18, 120, 122
Farrington, D.P., 207, 319 diversion, 119–20, 126, 130–3
Feijóo Sanchez, B., 100 due process, 121–2
Feld, Barry C, 2, 85, 88, 91, 94, 407, 408, educational care orders, 142,
409, 411, 413, 414, 415, 416, 421, 143, 146
422, 423, 425, 426, 427, 428, 430, generally, 115–48
431, 432, 434, 435, 436, 447, 451 historical background, 115–18
Fenz, C., 443 Mecklenbourg-Western Pomerania,
Finland, 214 122, 127, 130, 136–7, 140, 141
Francioni, F., 20 mediation projects, 142, 146
Frankowski, Stanislaw, 155 minimum intervention principle,
Frazier, C., 423 118, 120
Freeman, M.D.A., 398 mixed system, 115–18
Frost, L.E., 426 move to crime control model, 450
Funes Arteaga, J., 101 Nazi period, 117
Furby, Lita, 428 parens patriae doctrine, 117
political approaches, 145–8
Gaarder, E., 344 post-1970 reforms, 140–4
Gaberle, Andrzej, 158, 168 regional differences, 138–40
García Perez, O., 107 reparation, 119, 142–3
Gardner, William, 428 restorative justice, 142–3, 452
Garland, David, 207, 415, 420, 421, 436 rhetoric debate, 140
Gelsthorpe, L., 443 sanctions, 118–22, 153
gender, and juvenile justice, 27–32 sentencing practice, 128–37
Index 467
social training courses, 142, Hay, C.H., 443

143, 146 Healing Circles, 361–3, 365–6
suspended sentences, 133, Heinz, W., 119, 129, 130, 130–2,
134, 136 140, 141
victim participation, 119 Heitmeyer, W., 126
welfare model, 451 Hellman, Hal, 22
young adults (18-15), 134, Henggeler, S.W., 93
137–40, 141 Henri I, 355
migrants, 122–6, 447 Herman, Janna, 355, 428
regional differences, 127–8 Herring, L., 455
right-wing violence, 126, 144–5 Heyns, C., 20
social disintegration, 126, 129 Hirschi, T., 93
Turkish minority, 124 HIV/AIDS, 380
youth crime trends, 122–8 Hodgkin, R., 18
Ghana, 60 Hofer, H. von, 188, 207
Gibbons, A., 354 holistic approaches, 26–7, 35, 354, 361
Gies, S.V., 296, 318 Hollow Water Healing Circles, 361–3,
Gilens, Martin, 419, 420 365–7
Gilliam, Franklin, 417, 418 Holmberg, B., 18
Gisbert Jordá, T., 103 Holmberg, Lars, 246–7
Goldwater, Barry, 419 Hora, P.F., 368
Gómez Rivero, M.C., 103 horizontal legal systems, 365
Górecki, Piotr, 158, 173 Horner, Robert, 367
Gorman-Smith, D., 297 Horton, Willie, 421
Grasmick, H.G., 445 Horwitz, A., 293
Greenberg, D., 295 Howell, J.C., 92
Greenwood, P., 303 Huizinga, D, 447
Greve, Vagn, 216 human rights
Grisso, Thomas, 410, 413, 425, 426, see also children’s rights; due process
428, 429, 451 German juvenile justice, 121–2
Gross, B., 295 movement, holistic approach, 26
Groves, W.B., 447 Nepal Constitution, 264–5, 267–8
Guggenheim, M., 91, 92 Hurwitz, J., 417
Haberfeld, S., 345, 365 ILO Convention on the Worst Forms of

Habzda, Ewa, 159, 172 Child Labour, 19
Hacker, A., 415 imprisonment see detention of juveniles
Hagen, J., 295 independent tribunals, CRC, 5
Halderman, H.R, 445 indigenous people see American Indians
Hammarberg, T., 19 individualism, 355
Hamparian, D.M., 296, 297 information sharing, 50
Hansen, K.V., 297 insecurity, and punitive approaches,
Hart, R., 19 448–9
Hartstone, E., 295, 297 Intensive Aftercare Program:
Hartzell, M., 354, 355 background, 293–7
Havana Rules, 5, 399 community phase, 307, 323–4, 328
Hawes, J., 24 demonstration phase, 301
Hawkins, J.D., 93, 94, 303, 319 demonstration sites, 311–17
468 Index
Colorado, 313–14 Jayawickrama, N., 20

Nevada, 314–15 Jensen, Eric L, 89, 90, 445, 447, 448
Oregon, 316, 317 Jensen, G,F., 293
Virginia, 315 Jepsen, Jørgen, 11, 43, 450, 456
effective strategies, 317–31 Johnson, B.M., 294
balanced approach, 329–31 Johnson, Lyndon, 87, 419
case management, 329 Johnston, Basil, 353
control/treatment mix, 317–18 Jones, M.A., 422
evidence-based treatment, 318–20 Jones, S.J., 303
structures, 320–9 Juan, A., 101
generally, 300–9 juvenile justice:
implementation challenges, 309–11, balloon effect, 23–4
312 gender differences, 27–32
institutional phase, 307, 322 international reform agenda, 34–6
integrated theory, 303, 304 marginalisation, 23–36
model design, 302–7, 322–4 supporting mechanisms, 42
origins, 301 systems see juvenile justice systems
pilot sites, 294, 302 terminology, 44–5
pre-release planning, 307–8, 322 juvenile justice systems:
principles, 303, 304, 305 awareness of procedures, 42
program elements, 303, 304, 305–6 Denmark, 213–58
reintegrative continuum, 307 Germany, 115–48
service delivery areas, 303, 304, 306 implementation, 455–6
transitional phase, 307, 309, 322, Malawi see Malawi
325, 326–7 models, 2–4
International Centre for the Prevention Nepal, 263–80
of Crime, 30–1 Poland, 155–84
International Covenant on Civil and Serbia, 401–5
Political Rights (ICCPR), 16, 263, 344 South Africa, 65–78
International Covenant on Economic, Spain, 99–111, 283–91
Social and Cultural Rights (ICESCR), Sweden, 187–209
16 trends, 2, 4
international law United States see United States
see also specific instruments juveniles, terminology, 45
and corporal punishment, 344
and Denmark, 253 Kampala Declaration, 52
diversion, 271 Kelly, L., 295
dualism, 253 Kemp, V., 443
and Nepal, 263, 265–6, 268 Kent, S.L., 445
and Serbian law reform, 398–400 Kenya, 60
and South African courts, 74, 77–8 Kerrigan, F., 59
Irwin, J., 448 Kilchling, Michael, 183
Iyengar, Shanto, 417, 418 Kirstein, W., 120, 142
Koetting, M.G., 367
Jackson, A., 316, 317 Korcyl-Wolska, Marianna, 158, 167,
Jacobs, D., 445 168, 171, 182
Jarjoura, G.R., 447 Krajewski, Krysztof, 174, 175, 181
Jasinski, Jerzy, 174 Krech, R., 399
Index 469
Krisberg, Barry, 88, 92, 296, 456 McCold, P., 342–3

Krohn, M.D., 319 McCord, J., 297, 407, 421, 422, 424
Kröplin, M., 136, 141 McDowell, D., 90
Kúhlhorn, E., 190 McGill, A., 445
Kunkat, A., 126, 145 Machel Study, 19
Kyvsgaard, Britta, 216, 225, 226, 227, MacKenzie, D.L., 296, 299, 300
229, 231, 233, 234, 238, 240, 241, Mails, T.E., 353
242, 246, 247, 248 Malawi:
age of criminal responsibility, 373n
Lakota people (Sioux), 347, 348, 353, Centre for Legal Assistance, 379
354, 355 Centre for Youth Children’s Affairs
Landrove Díaz, G., 102, 104 (CEYCA), 40, 379, 381
Laub, J.H., 90, 92, 94, 416 community service, 384
Laurent, P.G., 18 Constitution, 385
law reform see penal reform and CRC, 380
legal competence: detention of juveniles, 382–3, 384–5
adolescence as diminished responsi- diversion, 46, 48, 61, 374–5
bility, 428–9 HIV/AIDS, 380
age see age of criminal responsibility institutions, 385
diminished responsibility, 427–8 issues in juvenile justice, 378–9
meaning, 426 juvenile justice system, 379–86
mental illness, 426 Kachere Prison, 381–3, 384–5
policy and prescription, 429–30 Kawale, 380–1
United States, 425–36 Lilongwe Juvenile Justice Forum,
Leggett, T., 73 375–86, 388–9
Lemann, N., 411 limitations of system, 386
LeResche, D., 355, 365 Malawi Human Rights Resource
Lilongwe Juvenile Justice Forum: Centre (MHRRC), 40, 379
activities, 377–8 Maula prison, 381–3, 384–5
case study, 379–86 Namibian model, 57–8, 373
challenges, 378–9 National Juvenile Justice Forum, 40,
establishment, 375 43, 50, 53, 58, 62, 373–5
generally, 375–86 NGOS, 379, 385–6
Monitoring Checklist, 388–9 Paralegal Advisory Service, 59–60,
objectives, 375–6 62, 374
structure, 376 Poverty Reduction Strategy Paper,
Lipsey, M.W., 207, 296, 300, 318, 386
319, 423 pre-trial procedures, 381–3
Lipton, B.H., 353, 354 presumption of guilt, 378
Liszt, Franz von, 148 prison conditions, 382, 384–5
Lithuania, 137–8 restorative justice, 452
Loeber, R., 207, 319 separation from adults, 378–9,
López Cabello, P., 109 381–2
López Martin, E., 101, 109 trials, 383–4
Lorca Martinez, J., 101 youth crime, 380–1
Zomba prison, 54, 58, 62
McAra, L., 443 Maloney, D., 330
McArthur Foundation, 425 Mandela, Nelson, 65
470 Index
marginalisation of juvenile justice: Navajo peacemaking, 360–1

causes, 23–32 Navajo people, 354, 355, 356,
criminality, 23 367, 368
gender differences, 27–32 Navarro Mendizábal, I, 105
indicators, 15, 21–2 Neihardt, J.G., 353
internal problems, 22 Nelson, K., 298
negative approaches, 25–6 Nepal:
overlapping systems, 23–4 birth registration, 277
rhetoric of ‘the child,’ 24–5 Children’s Act 1992, 263, 265–6
salami approach, 26–7, 34–5 children’s status, 263
solutions, 32–6 Conference on Juvenile Justice and
teenagers, 24, 25 Human Rights, 44–6
marginals, and delinquency, 49, 447–8 Constitution, 263, 264–5
Marshall, L.H., 447 human rights, 264–5, 267–8
Martí Sanchez, J.N., 103 juvenile justice system
Mashamba, J., 455 age of criminal responsibility,
Massey, D., 415, 416 265–6, 270, 277
Mbeki, Thabo, 73 and Beijing Rules, 267, 269, 271,
media, and US youth crime, 416–18 273, 276, 278
mediation: Chief District Officer, 273–4
German system, 142–3, 146 child rehablitation centres, 273,
Poland, 169 279
and restorative justice, 344 courts, 272–3
Spanish system, 103, 106 and CRC, 263, 265–6, 272, 273,
victim-offender mediation, 48 274–5
Mehlbye, Jill, 217, 221, 224, 399, 430 detention of juveniles, 268–70,
Melton, A., 364 274, 279
Mena Alvarez, F., 103 district courts, 272, 273
Mendelberg, T., 415, 418, 419, 420 diversion, 270–1
Metsger, L., 90 generally, 263–80
Meyer, J.F., 356, 365–6, 367 and international law, 263,
migrants: 265–6, 268
Denmark, 215, 246–9 investigation procedures, 267–71
German juvenile delinquency, 122–6 Juvenile Reform Home, 270, 273
marginalisation, 447–8 lack of information, 278
Spanish children, 287 lack of juvenile courts, 278–9
United States, 410 law and practice, 276
Millennium Declaration, 36 legal framework, 263, 264–6
Moore, David, 342 legal representation, 275
moral panics, 446–50 Office of the Attorney General,
Mukonda, Ricardo, 45–6 271–2
multisystemic therapy, 92–3 parental responsibility, 276
Muñoz Oya, J.R., 107 police, 266–71, 278
Muntingh, L., 68 problems, 276–9
quasi-judicial bodies, 277–8
Namibia, 53, 57–8, 373 separation from adults, 269–70
Native Americans see American social workers, 275–6
Indians Kathmandu School of Law, 40
Index 471
Maoists, 269 parental liability, Spain, 105

Muluki Ain 1963, 265 parental responsibility, 165, 402
prisons, 274 paternalism, 283–4, 407, 425
restorative justice, 452 Paterson, G.R., 319
street children, 275 patriarchy, 391, 392
Treaty Act 1990, 263, 265 Pedersen, Charlotte Flindt, 43
Netherlands, 138, 147 Pefley, M., 417, 418
Neubacher, Frank, 177 Peláez Pérez, V., 104, 105
New Zealand, restorative justice, 1, penal reform:
452, 453, 454 Africa, 52–60
Newell, P., 18 CRC impact, 20
NGOS: juvenile justice on international agen-
African networks, 51 da, 34–6
coalition building, 17–18 maximising participation, 61–2
Malawi, 379, 385–6 Ouagadougou Declaration, 53, 62
partnerships with prison services, 53 public opinion, 60, 63, 183, 207
specialisation, 33 resources, 62
traditional approach, 25–6 South African juvenile justice, 69–71
Nielsen, Beth Grothe, 217 starting new initiatives, 60–1
Niger, 60 visibility, 62–3
Nigeria, prisons, 54, 61 Penal Reform International (PRI), 4, 52,
Nixon, Richard, 89, 419, 444, 445, 446 52–3, 58–60
Norway: Peroff, N., 354
child welfare committees, 216 Petrén, A., 19
conflict councils, 242 Pfeiffer, C., 124, 126, 139, 141
crime rate, 214 Phillips. Kevin, 419
gender differences in education, 29 pilot schemes, 56, 59, 60, 294, 302
model of juvenile justice, 394–5 Platt, Anthony, 2, 83, 159, 443, 447
restorative justice, 452, 454 Poe-Yamagat, E., 422
Poland:
Oberwittler, Dietrich, 156 criminal justice approach, 158
Obretkovic, M., 398 juvenile justice system
Ojibway people, 353 adolescents, 162–3
Omar, Dullah, 69 age of criminal responsibility, 156,
Omi, M., 419, 420, 445 160
Oñati Conference, 1, 6, 455 arrest powers, 171
original forms of dispute resolution, care v reformatory proceedings,
365–6 172–4
Ortiz Gonzáles, A.L., 107 correctional centres, 165, 181
Osborn, S.G., 319 criticisms, 184
Ouagadougou Declaration on discretionary powers, 168–9
Accelerating Prison and Penal Reform diversion, 169
in Africa, 53, 62 due process, 170–1, 184
family courts, 165–6
Palacio Sánchez Izquierdo, J.R., 101 family judges, 166, 168, 170
Palmer, T., 294, 296, 300 flexibility, 163–4
parens patriae, 2, 85, 117 generally, 155–84
Parent, D.G., 423 history, 155–7
472 Index
investigation procedures, 167, psychology, adolescent psychology, 409,

168–72 425
juvenile measures, 157 public opinion:
categories, 163–5 lack of information, 63
grounds for application, 158–63 and new initiatives, 60
jurisdiction, 160–2 Poland, 183
punishable acts, 157, 159–62 Sweden, 207
social maladjustment, 158–9 United States and youth crime, 90,
Juveniles Act 1982, 155–6, 182–3 183
liberalisation, 180–2 punitive approaches:
meaning of juvenile, 158, 160–2 Denmark, 48, 245–9, 448
mediation, 169 and insecurity, 448–9
parental obligations, 165 popular punitiveness, 448
penalties, 161–2 trend, 48
police children shelters, 171 US, 48, 183, 295, 296, 408, 416–17,
preliminary measures, 171–2 421–3, 445–7
procedures, 167–74
public opinion, 183 Ramphele, M., 65
remand, 171–2 rape, South Africa, 73, 74
restorative justice, 169 Reagan, Ronald, 88–9, 445, 446, 451
statistics, 179–80 recidivism:
terminology, 157 causes, 303–4
trials, 167, 172–4 Hollow Water Healing Circles, 366
welfare model, 156–7, 159, US research, 293, 297
182–4 Redding, R.E., 426
liberalisation of criminal justice, 181 regional co-operation:
martial law, 155 Africa, 51–63
moral panic, 450 case studies, 57–60
restorative justice, 453 developing new ideas, 54–5
youth crime patterns, 174–82 overview, 51–2
police: penal reform in Africa, 52–4
Beijing Rules, 278 resources, 62
Nepal, 266–71, 278 spreading new ideas, 56–60
Spain, 283–91 starting initiatives, 60–1
Sweden, 193–4 Regnery, Alfred, 89
Polk, K., 88 rehabilitation:
Pollack, E., 191 American juvenile courts, 410–11
Pond, F.M., 294 effective strategies, 317–31
positivism, 216 medical model, 331
poverty, and delinquency, 49, 380, 451 and restorative justice, 346
Prescott, J.W., 351, 355 Spain, 100–1, 106, 109
Presser, L., 344 United States, 421, 423
preventive detention, US, 91 Reinarman, C., 447
prison see detention of juveniles reparation:
prison conditions: German system, 119, 142–3
Africa, 52, 53, 54, 61 Spanish system, 103, 106
Malawi, 54, 58, 62, 381–5 resources:
Nepal, 274 Nepal, 275–6
Index 473
penal reform, 62 welfare board model, 2, 214

Spanish system, 111 Schaffstein, F., 118
restorative justice: Schäpler, P., 130
American Indians, 355–68 Scheel, J., 130
communities, 342 Scheingold, S.A., 448, 449
and corporal punishment, 344 Schiraldi, V., 367, 416, 417
and courts, 342 Schma, W., 368
evaluation, 345 Schneider, A., 88
Germany, 142–3 school attendance, US laws, 84, 85–6
implementation, 455–6 Schüler-Springorum, Horst, 170
meaning, 342–4 Schulz, W., 26
and mediation, 344 Schwartz, I.M., 414, 425, 426, 451
micro-communities, 342–3 Schwerin-Witkowski, K., 144
movement, 1, 451–5 Schwind, H.-D., 126–7
Poland, 169 Scott, Elizabeth, 20, 408, 409, 425,
reservations about, 344–5 426, 427, 428, 429, 430, 434
restitution, 355–6, 360 segmentary lineage system, 365
South Africa, 68 Semmelweiss, Ignaz, 22, 25
value, 345–6, 368 Sennett, R., 25
rhetoric see social construction sentencing:
Richard González, M., 103 Denmark, 218–19, 230–40
Ridley, M., 353 German juveniles, 128–37
Ring, J., 189 Spanish system, 106–8
Rios Martin, J.C., 111 Sweden, 197–200
Riyadh Guidelines, 5, 74, 271, 399 United States, 422–3, 433–5
Roberts, C.F., 294 separation from adults:
Rocker War, 245–6, 448 Beijing Rules, 269–70
Rohde, Peter, 221, 224 CRC principle, 5, 219, 220
Rojecki, A., 416, 417, 418, 420 and Denmark, 219, 220
Rojek, D.G., 293 failure to implement, 21–2, 34
Ross, A.C., 353 Malawi, 378–9, 381–2
Ross, Rupert, 296, 342, 346, 347, 351, Nepal, 269–70
352–3, 353, 361, 362, 364, 366, 367 Spain, 104
Rubin, T., 360, 361 United States, 89, 436
Rudman, C.J., 295 Serbia:
alternative sanctions, 397
salami approach, 26–7, 34–5 Belgrade Child Rights Centre, 394,
Sampson, R.J., 90, 94, 447 396, 400
San Martin Larrinoa, B., 109 children’s rights, 392–4,
Sanchez Garcia de Paz. I, 106 399–400, 402
Sarnecki, J., 188, 190, 191, 192, Council for Child Rights, 396, 401
204, 206 and CRC, 392–3, 398–400, 403
Sasson, T., 89, 420, 421, 445, 447, 448 criminal prosecutions, 398
Scandinavia: DIHR support, 394, 400
co-operation, 214 domestic violence, 400
family courts, 165 educational measures, 393–4, 397–8
passport union, 214 juvenile justice, 391–405
restorative justice, 454 law reform project, 394–401
474 Index
draft law, 396, 397, 399 social control see crime control model
European models, 394–5, 399, 400 Social Development Research Group,
priorities, 395 92, 93, 94
problems, 401 Somalia, 16
research, 394–5, 399 Sommer, B., 430
second phase, 400–1 Sommers, C., 32
welfare model, 398, 451 Sørensen, J.J., 11, 450
new model of juvenile justice, 401–5 South Africa:
basic approach, 401–2 age of criminal responsibility, 74
information rights, 403 backwards steps, 451
legal representation, 403 balancing act, 67–8
principles, 402 Bill of Rights, 67
referrals, 404 Child Justice Bill, 2, 65–78
special representative, 403 politics, 71–6
specialized chamber, 402 pragmatism, 77
speedy procedures, 402 reform process, 69–71
overprotectiveness of children, 391, regulation v discretion, 72–3
392 children’s rights movement, 65
parental responsibility, 402 Constitution, 74
patriarchy, 391, 392 diversion programs, 68, 73, 74, 75
poverty, 391 Human Rights Commission, 51
sanctions, 393 immigrants, 447
youth crime, 393 insecurity, 449
Shannon, L., 295 minimum sentence for children, 73–4
Sheffer, J.P., 422 National Crime Prevention Strategy,
Sherif, A.O., 20 67
Sherman, L.W., 296, 455 NICRO, 53
Sickmund, M., 414, 416 popular punitiveness, 448
Siegel, D.J., 354, 355 rape, 73, 74
Simpson, G., 67, 68, 76 restorative justice, 1, 68, 452
Sinclair, Murray, 353 role of international law in, 74, 77–8
Singer, S., 90 transformation of criminal justice,
single parent families, 49 66–8
Sioux (Lakota people), 347, 348, 353, transition politics, 76–7
354, 355 Truth and Reconciliation
Skelton, Ann, 68, 73 Commission, 67
Sloth-Nielsen, J., 65, 70–1 urban street children, 447–8
Snyder, H., 414, 416 Southern Africa Human Rights NGO
social capital, 55 Network (SAHRINGTON), 51
social construction: Southern Africa Legal Aid Network
childhood, 24–5, 443–51 (SALAN), 51
United States, 84, 91, 408, 443–6 Spain:
crime, 416–17 Basque Country, 286
immigrants, 447–8 Catalonia, 110–11, 286, 288–9, 451
and moral panics, 446–50 Constitution, 284, 287
national variations, 450–1 juvenile justice system, 2
news, 417 14–16 years old, 102
youth crime, 446–50 16–18 years old, 102
Index 475
18–21 years old, 102, 137, 284 Stachowiak, Stanislaw, 158

2000 law reform, 284–6 Stafford, M.C., 443
age of criminal responsibility, 100, status offences, 2, 85–6, 87, 187,
284–5 414, 432
background, 99 Steenson, D., 296
best interests of children, 101, 105 Steffens, R., 144
conditional supervision, 107–8 Steinberg, L., 408, 425, 426, 427, 428,
CRC compliance, 100, 110 429, 431, 434, 435
detention, 104, 107, 108, Stevens, Hanne, 240, 244
285–6, 291 Stevens, John, 30
discretionary powers, 289–91 Storz, R., 132
diversion, 102–3 Stouthamer-Loeber, M., 319
due process, 102, 285–6, 287 Strang, H., 454
execution of measures, 109–10 Streng, F., 147
funding, 111 Stuart, J., 70
GRUME, 288 suicide, gender differences, 28
guardianship to treatment model, Swart, S., 68
283–4 Sweden:
hearings, 105–6 ethnic minorities, 247
and immigration law, 287 gender differences in education, 29
Judges of Minors, 102 juvenile justice system
juvenile courts, 283–4 anti-social behaviour, 202
juvenile police units, 286–9 closed youth care, 252–3
juveniles under 14, 101, 284 compulsory care orders, 203–4
mediation, 103, 106 detention, 198–9, 208
new system, 99–111 diversion, 200–4
parental liability, 105 drug offences, 202
paternalism, 283–4 generally, 187–209
penal law principles, 100 judicial system, 193–200
police relations with prosecutors, and leisure time, 206
289 mental health authorities, 205
proportionality, 100 pluralism, 207
provisional internment, 103, 104 police role, 193–4
provisional measures, 103–4 probation, 199–200
publicity, 106 prosecutions, 195–7, 200, 201
re-education, 100–1, 109 responses to youth crime, 192–206
regional governments, 110–11, 286 school experts, 205
reparation, 103, 106 school system, 204–6
sanctions, 106–8 sentences, 197–200
separation from adults, 104 social services, 192, 193, 194,
special procedures, 102–5 200–4
special sentencing rules, 108 status offences, 187
technical teams, 105 summary sanction orders, 197,
terrorism, 104, 107, 109 200, 201
victim participation, 104–5 suspended sentences, 199
levels of government, 286 terminology, 187
Penal Code, 284 trends, 208–9, 449–50
police services, 286–7 welfare model, 207
476 Index
young offenders’ institutions, UN Committee on the Rights of the

198–9 Child, 34
youth care facilities, 203–4 unemployment, and delinquency, 49
youth service, 200 UNICEF, 4, 31, 58, 374, 401
National Council for Crime United Kingdom:
Prevention (BRA), 189, 191, 199, backwards steps, 446, 451
203, 207 James Bulger case, 75
public opinion, 207 juvenile justice system, 2
public sector, 192, 206 Labour Party, 148
welfare model, 450, 451 restorative justice, 453
youth crime, 187–92, 206 United States:
responses, 243 adversarial legal system, 364
after-care programs, 297–300
Tanzania, 39, 40, 48, 60 effective strategies, 317–31
teenagers, 24, 25 examples, 300
terminology: IAP see Intensive Aftercare
child, 24–5 Program
juvenile justice, 44–5 innovations, 301
Poland, 157 Annie E. Casey Foundation, 92, 94
Sweden, 187 approaches to criminal justice, 68
terrorism: Chicago Women’s Club, 85
Nepal, 269 child labour laws, 84
Spain, 104, 107, 109 child-savers, 182
Thaler, D.S., 353, 354 Civil Rights movement, 411, 419
Thatcher, Margaret, 446 CRC, non ratification, 16
Thornberry, T.P., 319 Crouse case, 85
Tibatemwa-Ekirikubinza, Lillian, 40 death penalty, 435
tobacco use, and gender, 28 equality movement, 31
Tokyo Rules, 4, 5, 399 ethnic minorities, 94, 316–17,
Tolan, P.H., 297 417–18
Tomé García, J.A., 105 anti-black code-words, 420–1
Tonry, M., 430 black underclass, 415
Torbet, P., 414, 421, 422 immigrant juveniles, 410
Torstensson, M., 204 politics of race, 414, 418–20
torture, 5, 65, 267–8, 344 social construction, 447
Torture Convention, 18, 253, 344 IAP see Intensive Aftercare Program
Townsend, J., 345, 365 Indians see American Indians
traditional beliefs: insecurity, 449
and corporal punishment, 344–5 juvenile courts
and crime prevention, 347–57 experience, 407–37
living cultural context, 348–53 from welfare to deficient criminal
Trépanier, Jean, 156, 182, 183 courts, 409, 411–13
Triplett, R.A, 447 history, 85–6, 409–13
Trosten-Bloom, A., 365 inherent contradictions, 424–5
jury trials, 413
Uganda, 39, 42, 50, 60, 62 legal competence of juveniles, 410,
Umbreit, M., 356, 453, 454 413, 425–36
UN Commission on Human Rights, 35 legal representation, 413, 433
Index 477
procedural deficiencies, 413, status offences, 2, 85–6, 87, 414,

432–3 432
punishment v treatment, 410–11 strategies, 293–7
second-class criminal courts, 408 Native Americans see American
sentencing, 422–3, 433–5 Indians
separate courts, 430–1 neo-conservatives, 445
social control v welfare model, New Deal, 420
410–11 Progressive Movement, 84, 85,
subject matter, 432 410–11, 422, 444
transfers to adult courts, 90, restorative justice, 452–3
421–2, 434 school attendance, 84
juvenile justice system Seattle Social Development Project, 93
1960s rethink, 293–4 social construction of childhood, 84,
age of criminal responsibility, 426, 91, 408, 443–6
431 Social Development Research Group,
Amnesty International report, 30 92, 93, 94
Cook County model, 85, 283 training schools, 423
crime control model, 88–91 underclasses, 415–16
criminological triage, 414–23 urban migration, 411
decriminalisation, 294 Victims’ Rights Movement, 356
deinstitutionalisation, 87–8, 294 Violent Juvenile Offender inititative,
detention, 91, 423, 436 294–5
diversion, 87, 88, 294, 414 Warren Court, 411, 418, 419
due process, 86, 89, 91, 294, youth crime
411–13, 432–3 rates, 89, 90, 408, 411
ethnic minorities, 316–17 and the media, 416–18
experts’ role, 92–4
foundations, role, 92–4 Van der Spuy, E, 66, 68, 77
generally, 2, 83–94 Van Zyl Smit, D., 66–7
ideologically driven policies, 94 Ventura Faci, R., 104, 105
multisystemic therapy, 92–4 Vestergaard, Jørn, 217, 219, 224, 251,
negative outcomes, 93 252, 253
Office of Juvenile Justice and Vicenti, Carey, 363, 364
Delinquency Prevention, 91–2 victims:
origins, 83–6 victim-offender mediation, 48
popular punitiveness, 448 victim participation, 104–5, 119
positive outcomes, 93 Victims’ Rights Movement, 356
preventive detention, 91 and Western legal system, 355–7
public opinion, 90, 183 Viljoen, F., 20
punitive approaches, 48, 183, 295, Von Hirsch, A., 295, 427
296, 408, 416–17, 421–2, 423, Voss, R.W., 348
445–7 Vuckovic Sahovic, N., 399
recidivism, 293, 297
reforms, 86–8, 293–7 Wachtel, B., 342–3
rehabilitation, 410, 423 Waldram, J.B., 353
separation from adults, 89, 436 Walgrave, L., 217, 399, 430, 443
serious and violent offenders, 414 Walter, J., 125
sources of punitiveness, 414–15 Walter, M., 127, 147
478 Index
Walters, J.P., 446 Wilmers, N., 126

Ward. M., 190 Wilson, D., 296, 300, 423
Wasek, Andrzei, 155 Wilson, F., 65
Wasserman, M., 293 Wilson, W.J., 415, 445
Weijers, Ido, 156, 166, 182, 183 Winant, H., 419, 420, 445
Weiss, J.G., 303 Winck, B.J., 368
Welch, B.C., 94 Winterdyk.J.A., 446, 451, 453
welfare model: Wolff, J., 117
Europe, 443 Woll, Lisa, 21
Poland, 156–7, 159, 182–4 World Bank, 33–4, 55
Scandianvian welfare boards, 2, 214 World Youth Report, 31
Serbia, 398, 451 worst case scenarios, 75–6
Spain, 99
Sweden, 207, 450 Yazzie, Robert, 360, 364
United States, 443 Yugoslavia, 138
West, D.J., 319
Wexler, D.B., 368 Zambia, 60
White, R., 2 Zarb, J., 319
Whitney, A., 365 Zimbabwe, 53, 55, 56, 63
Widacki, Jan, 174 Zimring, F., 303, 407, 416, 421, 427,
Wiebush, R.G., 296, 310, 311, 321 428, 429, 430, 433, 434, 435
Wiederanders, M., 319 Zion, Jim, 341, 346, 347, 351–2, 354,
Wildcat.D., 354 355, 356, 363–4, 365, 367, 368

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JUVENILE LAW VIOLATORS, HUMAN

RIGHTS, AND THE DEVELOPMENT OF NEW

A SERIES PUBLISHED FOR THE OÑATI INSTITUTE

William LF Felstiner Johannes Feest

Board of General Editors

Rosemary Hunter, Griffiths University, Australia

Social Dynamics of Crime and Control: New Theories for a World in

Criminal Policy in Transition edited by Andrew Rutherford and Penny

Making Law for Families edited by Mavis Maclean

Adapting Legal Cultures edited by Johannes Feest and David Nelken

Rethinking Law Society and Governance: Foucault’s Bequest edited by

Rules and Networks edited by Richard Appelbaum, Bill Felstiner and

Women in the World’s Legal Professions edited by Ulrike Schultz and

Imaginary Boundaries of Justice edited by Ronnie Lippens

Family Law and Family Values edited by Mavis Maclean

Contemporary Issues in the Semiotics of Law edited by Anne Wagner,

The Geography of Law: Landscape, Identity and Regulation edited by Bill

Theory and Method in Socio-Legal Research edited by Reza Banakar and

OXFORD AND PORTLAND, OREGON

© The editors and contributors jointly and severally 2006

Hart Publishing, 16C Worcester Place, Oxford, OX1 2JW

British Library Cataloguing in Publication Data

ISBN-13: 978-1-84113-637-0 (hardback)

ISBN-13: 978-1-84113-636-3 (paperback)

Typeset Compuscript, Shannon

The present report on the international workshop entitled Juvenile Law

Morten Kjaerum, Director, DIHR

and practitioners) and participants from partner countries, including

Jørgen Jepsen and Eric L. Jensen

1. Eric L Jensen and Jørgen Jepsen: Introduction ....................................1

Section One: The Practicality of Human Rights-Based

2. Bruce Abramson: Juvenile Justice: The ‘Unwanted Child’:

Section Two: Juvenile Justice Systems......................................................81

6. Eric L Jensen: An Historical Overview of the

12. Kishor Silwal: Juvenile Justice in Nepal: An Overview....................263

Section Three: Learning from the Experiences of Diverse Models .........281

13. Lola Vallés: The Role of the Police within the

MODELS OF JUVENILE JUSTICE

The juvenile justice system was created in Western nations—the U.S.A.,

Table 1.1: The Age of Criminal Responsibility in Europe

Country Diminished criminal Criminal responsibility Legal

* criminal majority concerning juvenile detention (youth imprisonment etc.)

As illustrated by the examples cited above, nations working to revise a

THE CONVENTION ON THE RIGHTS OF THE CHILD AND

• the best interests of the child should be the primary consideration;

or negligent treatment, maltreatment, or exploitation, including

PLAN OF THE BOOK

In his chapter, Adam Stapleton discusses regional co-operation.

services, and the Scandinavian systems consist primarily of a social welfare

functioned as important guidelines for humanizing the system and counter-

The Practicality of Human Rights-Based

THE SEVEN WAYS IN WHICH THE CRC MOVEMENT IS

in this paper, is available at www.unhchr.ch.

The seven ways in which the CRC is having an impact

3 The one-stop-shop for information on the Convention is CRIN (Children’s Rights

Advocates on the CRC bandwagon are using the Convention to achieve

3. New governmental structures

4. Participation of young people

Conventions: All Council of Europe Conventions.