Home Law International Handbook of Juvenile Justice
COURTS AND JUVENILES
Minors are not taken to courts if they could have been punished if they were older. However, children who commit acts that were punishable will often be seen as in need of help, support, or directions from an authority which will be the social welfare system. Normally this will be a mentor or a family advisor, extra support for schoolwork or a strict structure for the time after school. But a placement in another family or an institution may also be chosen. It is preferred that those noninstitutional approaches will be accepted by the child and the parents but if this is not possible they may be dictated by the social welfare. This is also true for placements outside the home. In reality almost all placements in families or institutions take place after consent. It is sometimes argued that the parents dare not deny to consent because they fear that this may lead to a total separation from the child.
In the public debate it is sometimes argued that the social welfare system is too reluctant to decide to take a child out of the home and that the child is developing too far in the direction of crime before action is taken. These viewpoints are important but complicated to test.
Juveniles are taken to courts. As there are no juvenile courts in Denmark there are also no specific criminal courts. Apart from the Maritime and Commercial Court the Danish court system has only one system. In the local courts (city courts) civil cases as well as criminal cases are heard by the same judges in the same courtrooms. The same is true for the superior courts of which there are two in Denmark and for the supreme courts of which there is one.
In the next section, the main types of penalties will be described. More attention will be given to a few Danish penalties with a specific juvenile orientation. After this follows an overview of the sentencing, this is also focusing on juveniles.
The courts evaluate the evidence that is found by the police and presented in court by the prosecutor, who evaluates the evidence before trial. Based on the evidence the court decides if the accused is guilty. The case is treated in accordance with the same legal principles and procedural rules as criminal case against adults. But when it comes to sentencing the age of the individual charged plays an important role. Compared to comparable crimes and criminal records both the prosecutor and the judge will tend to more actively look for another solution than ordinary imprisonment as long as the person is under 18 years old.
As a consequence of the tradition of not having a specific juvenile justice system there is also not a penalty system only for juveniles. However a few policies that are solely applicable to youth do exist. Below follows a brief introduction for general penalties and penalties solely for juveniles.
The Criminal Law, § 31 introduces the ordinary penalties as fine and imprisonment. But this also allows for a wide range of different solutions not all of which are within the field of imprisonment. Starting from the mildest end of sanctions/ penalties there is withdrawal of charges. This solution is not part of the Criminal Law but regulated in the Administration of Justice Law, § 722. There are a few more possibilities of using withdrawal of charges for juveniles compared to adults. That is, for instances in cases of theft of a bike which for an adult rather would lead to a fine. There is a specific juvenile variant of withdrawal of charges for cases of a little more seriousness. This is a so-called withdrawal of charges with a Youth Contract which was introduced in 1998. The aim was to introduce a quicker and more adequate reaction to crimes which had not caused personal harm and were committed by juveniles who did not already have a substantial criminal record. By including not only the offender but also the parents and the social authorities in the preparation and signing of a contract before having it approved by the court, it was hoped that all parties (especially the parents) would feel more committed to the conditions of the contract. Like all noncustodial measures the youth contract always contains a standard condition of not re-offending within a certain period of time. Furthermore it puts individual obligations on the juvenile to participate in certain activities. These may include requirements to finish school and go through a social training program. If the juvenile fulfils the period and the obligations of the contract the measure will be deleted from his or her criminal record 1 year after the contract was signed, i.e., practically in the moment it is fulfilled. “Normally” withdrawal of charges are deleted from the general record after 2 years. According to an old evaluation the youth contract did neither speed up the process markedly nor lower recidivism (which was already low after an ordinary withdrawal of charges) (Kyvsgaard 2004).
The prosecutors are instructed to propose a Youth Contract in cases that involve property crime, including burglary, but not in cases where assault or robbery is involved (Instruction 4/2007 with changes of December 2012 from the superior prosecutor. Part 4.2. (Rigsadvokaten)).
A fine is normally seen as a less severe penalty. Fines are not used very often for juvenile offenders compared to adults but when they are used the main rule is that compared to adult convicts the fine for a juvenile should be lower, roughly half of that for an adult. In the case of drunken driving that is resolved with a fine, the fine in such cases cannot be reduced due to young age. Fines are in general an option in cases of shoplifting and other minor property crimes (Instruction
4/2007 with changes of December 2012 from the superior prosecutor. Part 4.1. (Rigsadvokaten)).
Imprisonment may be imposed in a conditional and an unconditional form. Apart from these forms the courts may impose a combination of a conditional and unconditional sentence, which is mainly meant for cases where more than one type of crime is involved and where each would lead to each one variant of a prison sentence. Combinations are not used that often and of no specific relevance here.
A sentence to conditional imprisonment is the most lenient of the more serious penalties and such sentences range from conditional imprisonment to conditional imprisonment with the condition of community service. Between community service and unconditional imprisonment is another specific juvenile oriented punishment, the Youth Sanction and after that follows unconditional imprisonment. Unconditional imprisonment may for juveniles be served under different conditions, as described below.
Conditional imprisonment is used in cases where it is not seen as necessary that the sentence is executed immediately, Criminal Law § 56, and the sentence may be combined with different conditions which are seen as relevant in the specific case. For juveniles the conditions are mainly that the offender follows the instructions from the social welfare about school, job, training, etc. This is not different from the way conditional sentences are applied to adults apart from other conditions being put and the juveniles being supervised by the social welfare system whereas adults are supervised by the probation service.
Community Service was introduced in the beginning of the 1980s. Historically it was not used much with juveniles. But over time this was changed a bit. The reluctance was based on a fear that juveniles were too immature and would not follow the conditions. Community Service is a conditional sentence with a stronger condition than other conditional sentences, namely the duty to work unpaid for a specified number of hours—as many as 300—after a specific schedule agreed upon with the employee. The work is not allowed to be dangerous or to increase profit for private companies and it must be scheduled in accordance with the main duties of the convict such as school or job. Community service is meant to be used in cases which do not lead to an ordinary conditional sentence. It is hard to prove, though, that there is no net widening effect in this penalty. Community service is often used in cases with car theft, where juveniles are sometimes involved. It is also used in cases about drunken driving and in those cases there are very few juveniles involved. The newest statistics show that for 2014 there were 1397 sentences to community service for road traffic offences and 2251 cases of violation of the criminal law (Ministry of Justice 2015b).
In all cases (except in case of a fine) where unconditional imprisonment is avoided, that is withdrawal of charges, conditional sentences with or without Community Service Orders and electronic monitoring (see below) the mandatory condition is to lead a law-abiding life for a specified period. In addition, other conditions such as a duty to comply with a number of conditions concerning residence, school, job, leisure-time activities, etc. will often be seen. Supervision which is seen as a combined control and support is normally carried out by social welfare in juvenile cases. The only exception from that is in community service cases where the probation service is the supervising service.
Not to be confused with the Youth Contract (mentioned above), Denmark introduced the Youth Sanction by an amendment to the Criminal Code in 2001, § 74a. Contrary to the Youth Contract the Youth Sanction is meant for juveniles with a more substantial criminal career and a need for pedagogical training. The Youth Sanction is imposed by the courts but carried out by the social authorities. Youth Sanctions include deprivation of liberty without ordinary imprisonment. It does not exclude pretrial imprisonment though.
The implementation of the Youth Sanction was the result of a strong political demand for action against serious offences committed by juveniles who have not reached the age of 18 at the time of the crime. If the juvenile turns 18 in during the 2 year long period of the sanction they will still be eligible for this sentence. The sanction is composed of three phases which altogether last 2 years. The first period must take place in a secure social welfare institution; next is a period in an open residential institution. Both types of institutional accommodations are managed by the social welfare system and not by the prison and probation service. In this context the aim is less to impose a punishment and more to help the juvenile. The total time in secured and open residential institutions may not exceed one and a half year and there is a maximum of 1 year to be spent in secure institution. The last phase, the duration of which must be at least 6 months, is aftercare or supervision not in confinement. As the length of a Youth Sanction is always 2 years, the exact length of the last period of supervision depends on how much time has been spent in institutions (Kyvsgaard 2004; Storgaard 2004).
The Youth Sanction did not receive a warm welcome by practitioners or academic experts. Among other things it was criticized as being out of proportion compared to the alternative sentence, it also ceded wide discretionary powers to the social institutions. Further, there was a concern that the juvenile spent time in pretrial prison. This time is not deducted from the 2 years of the sanction like it will be in the time to be spent in prison after a prison sentence (Clausen and Kyvsgaard 2009; Kyvsgaard 2004; Storgaard 2009; Vestergaard 2004).
Some of the criticisms have been addressed over time. The “main-rule” is now that the period in a secure institution is to be 2 months and that it must be assessed if it is longer. It is also now a specific condition that in case the juvenile did spend a pretrial period in a secure institution as an alternative to custody and if the institution recommends so the juvenile can go directly to open residential care after the court hearing. Before this change juveniles had been transferred to open care during the pretrial time but were redirected to secure regime to start the formal Youth Sanction in accordance with the legal instruction.
The Youth Sanction is used in relatively serious cases where a juvenile of 15-17 years old committed a crime for which he or she (in spite of their young age) is eligible to 3-12 (18) months of imprisonment and he or she at the same time is in need of pedagogical support. If the crime is not serious enough or too serious and/or there is no need for pedagogical support the Youth Sanction is not indicated (Instruction 4/2007 with changes of December 2012 from the superior prosecutor (Rigsadvokaten)).
Unconditional imprisonment is seen as the last resort for juvenile offenders. Until 2010 there was a specific time limit for prison sentences for juveniles of 8 years. This was removed from the Criminal Law in 2010; hereafter the only codified difference between the time limits is that imprisonment for lifetime is not an option for juveniles (Storgaard 2013).
There are still guidelines for the courts to bear in mind the young age of a convict in the sentencing (Criminal Law § 82). It is not easy to prove what role this plays in sentencing practices. But after court the juveniles who are sentenced to unconditional imprisonment may be transferred to different institutions depending on their crime record, developmental level, needs, etc.
There are no prisons in Denmark only for juveniles but there is one high security and one low security prison each with a juvenile unit. It is not legally prohibited for juveniles to go to a prison other than one of those. But efforts are made to find an appropriate prison. Apart from that there is a legal option that a juvenile (and others) serve the sentence (partly) in an appropriate institution (Code of Execution of Penalties, § 78). For the juveniles the secure social institutions are most obvious. But by the end of the sentence there is also a chance for the juvenile to serve in a so-called pension, which is located near to the place where he is expected to stay after prison. The pensions are a kind of transition places, where prisoners or parolees stay while they attend school or job in the society but are obliged to check in afterwards.
Finally there is an option for the majority of those (including juveniles) who receive an unconditional prison sentence for up to 6 months to apply for electronic monitoring as an alternative to going to prison (Code of Execution of Penalties, § 78 a-f). The decision on this matter is not within the power of the courts but in the hands of the prison and probation service. The monitoring is also called “prison at home” and implies the duty of getting out of the home in the morning for school or job and back in the afternoon. The schedule only leaves appropriate time for transportation. After having returned in the afternoon the person in electronic monitoring is not allowed to leave home except after special allowance from the probation service. If the schedule or conditions (for instance not drinking alcohol) are broken the person is taken in to serve the sentence behind bars immediately.
Danish courts can impose imprisonment for lifetime; this is not an option for juveniles. Another liberty depriving punishment is a sort of preventive imprisonment which is not imposed for a fixed time; this is in practice not used to juveniles below 18.
Between 2005 and 2014 the total number of court decisions concerning juveniles in the age group 15-17 years old decreased from 5526 to 3354, with an exception of 1 year (2009). As for the relative numbers, i.e., court decision concerning juveniles per 1000 inhabitants in the age group the development was constant or decreasing every year from 29 in 2005 to 16 in 2014. The trend is similar for boys and girls. But per 1000 boys aged 15-17 there were 45 sentences in 2005 and 22 in 2014. Concerning girls there were 13 sentences in 2005 per 1000 girls against 9 sentences in 2014.
As for the specific crimes the overall trend is also downwards. The numbers for rape and homicide are too small to talk about a trend. For a few specific crimes the trend is not completely uniform but small—not interrelated—deviations are seen, such as shoplifting increasing in 2014 after 9 years of decrease or robbery increasing in 2009 and 2010 but in 2014 being below the 2005-level (Ministry of Justice 2015a).
Even if the Youth Sanction is now 15 years old it still has some attention in Denmark and the Ministry of Justice follows thoroughly the development in its use compared with the use of the alternative, namely unconditional imprisonment for between 30 days and 18 months.
The newest report on this (Ministry of Justice 2015c) shows a decline in these sentences paralleling the downward trend in reported juvenile crime. Between 2005 and 2010 the trend was one of general declines, but for 2010-2014 it is a steady decline. The Youth Sanction is used more rarely than the alternative prison sentences. Out of the total number of sentences studied, the Youth sanction was used in 13 % of the cases in 2011. The following 2 years the share increased a bit but went down to 15 % of all the sentences included in the study in 2014. In absolute numbers Youths Sanction was used 43 times in 2014 and the comparable prison sentences were imposed 239 times. The youth sanction is more rarely used in the capital, Copenhagen, than other parts of the country.
The courts tends to use imprisonment instead of Youth Sanction more often if the offender is 17 years old than if the offender is 15 or 16 years old. Sixty- one percent of the juveniles who were sentenced to imprisonment were 17 years old and only 7 % of those who had a Youth Sanction had reached that age. Only 5 % of the prison sentences were imposed on girls in comparison 14 % of the Youth Sanction sentences imposed on girls. Sixty-three percent of the Youth Sanctions and 41 % of the prison sentences were imposed on persons of Danish origin.
Generally speaking, a bigger share of those with a Youth Sanction is convicted for serious crimes (53 %) than those who had a prison sentence (38 %). But there is no information about the actual lengths of the prison sentences, so a rather big share of them may be very low, i.e., 30 or 40 days.
To conclude the discussion regarding the sentencing options and practice for juveniles, there are many options and variations compared to the number of convicted juveniles. This is a practice that is followed intensively. Among others the research office in the Ministry of Justice is always updated on the newest development.
Efforts are made to keep juveniles out of prisons even if for the time being there is opposition from politicians who clamor for more consequence (meaning tougher on crime) and experts and practitioners on the other side arguing for crime prevention to an amount that reaches the most vulnerable groups.
|< Prev||CONTENTS||Next >|