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Integrating Young Adult Delinquents The German Approach 1 Department of Comparative Literature and Folklore Studies, Center for Law, Society & Justice.

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Presentation on theme: "Integrating Young Adult Delinquents The German Approach 1 Department of Comparative Literature and Folklore Studies, Center for Law, Society & Justice."— Presentation transcript:

1 Integrating Young Adult Delinquents The German Approach 1 Department of Comparative Literature and Folklore Studies, Center for Law, Society & Justice Ralph Grunewald, Ph.D., LL.M Assistant Professor

2 Outline Comparative Caveats Foundations of the German Juvenile Justice System Young Adults (YA) in the German Juvenile Justice System 2

3 Part 1: Foundations of the German Juvenile Justice System Roots and Development Framework 3

4 Roots January 1, 1908 First Juvenile Court (Frankfurt/M.) 1922: Juvenile Welfare Act 1923: Juvenile Court Act (JCA) Three innovative pillars: Education instead of punishment More discretion for prosecutors (partly abandoning principle of legality) Increasing age of responsibility from

5 Framework of the JCA 5

6 Crime-Age Distribution 6

7 Scope of the German Juvenile Justice System Dependency/ Neglect 1666 CC and/or KJHG Sole jurisdiction of Juvenile Court and Law Juvenile Court and either juv. or adult law Incarceration in institutions for juveniles

8 Scope, ctd. Section 1666 German Civil Code (Court measures in the case of endangerment of the best interests of the child ) (1) Where the physical, mental or psychological best interests of the child or its property are endangered by abusive exercise of parental custody, by neglect of the child, by failure of the parents for which they are not at fault or by the conduct of a third party, the family court, if the parents do not wish or are not able to avert the danger, must take the measures necessary to avert the danger. 8

9 Actors “Youth Court Assistant “ (Social Worker) Prepares report Mandatory participation in trial Defense Counsel As soon as juvenile is in pre-trial detention Judges and Prosecutors “Should have appropriate education and training as well as experience in the education and upbringing of youths.” (37 JCA) 9

10 Substantive Criminal Law and the JCA 10 Same Crimes, different reaction Section 242 Theft (1) Whoever takes moveable property not his own away from another with the intent of unlawfully appropriating the property for himself or a third person, shall be punished with imprisonment for not more than five years or a fine. (2) An attempt shall be punishable. Juvenile Court Act (JCA) Different goals, different interventions Most due process protections apply

11 Goals Main goal: “Erziehung” (Education) Mentioned throughout JCA but not defined. It includes: Education Childrearing Leading a life without crimes Individualization of any intervention/sanction Less (intervention) is more 11

12 Interventions of the JCA 12 Diversion: (informal sanctions, dismissal of the case) possibly in combination with conditions., §§ 45, 47 JGG Delinquent Act Formal (court) sanctions Principle of „subsidiarity“ (§ 5 II JGG): disciplinary measures and youth imprisonment only if educational sanctions are not sufficient Educational measures § 5 I JGG, § 9 JGG Disciplinary measures § 5 II JGG, § 13 JGG Imprisonment § 5 II JGG, 17 JGG Court directives § 10 JGG Welfare measures Location (Foster)family Job training Supervision Restitution/VOM Social Training Traffic instruction Etc. Warning Conditions Detention Restitution Apology Work Placement Payment to non-profit corp. “Spare time” (2 Max) Short term Long term (1-4 Weeks) combine Suspended Sentence Or Probation Sentence (10yrs max)

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14 Part 2: Young Adults (YA) in the German Juvenile Justice System For all practical purposes, the inclusion of Young Adults in the German Juvenile Justice System is a given 14

15 History Young Adults were first included in the JCA in 1953 JCA acknowledged the situation of the “fatherless generation” Law was kept unchanged because legislature saw importance of educative intervention in young adults 15

16 Implications Original and exclusive jurisdiction of Juvenile Court over Young Adults Juvenile Court applies either juvenile or adult law but never “waives” cases to adult court 16

17 Implications Even when adult law is applied, special regulations pertain to Severity of sentence (10-15 years max.) Institutionalization Goal: “Normalization” Juvenile Correctional Facilities, until age 24, (114 JCA) Only 10% of incarcerated are juveniles 50% of all incarcerated with migration background 17

18 When is a YA treated like a juvenile? 18

19 105 JCA Application of youth criminal law to young adults (1) Where a young adult engages in misconduct punishable under the provisions of general law, the judge shall apply the provisions applicable to a youth (…) if: 1. the overall evaluation of the perpetrator’s personality in the light of his environment demonstrates that at the time of the act he was still equivalent to a youth in terms of his moral and intellectual development, or 2. the type, circumstances and motives of the act indicate that it constituted youth misconduct. (2) (…) (3) The maximum period of youth penalty applicable to young adults shall be ten years. In the case of murder and particularly high culpability the maximum sentence is 15 years. 19

20 Juvenile Personality Overall evaluation of YA; delinquent shows features of juvenile character Marburg Guidelines: Lack of autonomous judgment Ability to plan future/life Emotion control (…) Credulousness Adventure seeking Living in the moment Example: 18 year old imports drugs, murder 20

21 Youth Misconduct Derailment due to developmental forces Spontaneous, careless, anger motivated behavior; overreacting (applies to both misdemeanors and felonies) Pranks, “joyriding”, theft on a dare, graffiti Not limited to minor violations: 20-year-old killed his 3-months-old baby because he couldn’t stand crying (BGHSt NStZ 1986, 549) Violent battery (including attempted homicide with knife) between two groups of juveniles/young adults (BGH 1 StR 261/00) 21

22 Inclusion of YA in Juvenile Law; percentage of convicted YA 22

23 Differences among States,

24 Differences in inclusion of YA according to different crimes,

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28 Explanations Street Crime = 70% of all violent crime These crimes are usually committed within same age group (supported by data on victimization) “Age-Typical Crimes” without serious injuries Data do NOT support actual increase in crime rate Dark figure studies Public more sensitive toward violence Increased willingness to report 28

29 Recidivism Informal reactions (Diversion) to juvenile delinquency does not produce higher recidivism rates Probation as effective as formal sanctions 29

30 Diversion and Recidivism 3-Year Recidivism Study (Spiess 2012, 37) 30

31 Recidivism 31

32 A Comparative Study: Bremen v. Denver The Effect of Juvenile Justice System Processing on Subsequent Delinquent and Criminal Behavior: A Cross- National Study Huizinga, Schumann, Ehret, Elliott (2004) 32

33 “The Bremen models for young adulthood clearly indicated that arrest has counterproductive impacts. Arrest was not only positively related to subsequent increases in delinquency but also inhibited its decline throughout this period. “ In Denver, arrest contributed to the persistence of illegal behavior. The tendency to commit offenses at a similar level as before is much stronger for arrestees than for delinquents who were not apprehended. Even the set of models covering the age span 18 to 21 restricted to high frequency offenders confirmed this result. At these ages, arrest experiences in the past, rather than an additional arrest in the prior year, significantly increased the propensity to persist and inhibited tendencies to decrease.” 33

34 Concluding remarks No evidence that treating YA as juveniles has any negative effects Diversion and non-custodial interventions for YA are very effective Cultural readiness for change Punitivity high in US Juvenile Justice promising area “Juveniles are different era” (Roper v. Simmons, 2005) 34

35 Thank you! 35


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