Caught in the Middle? : Young offenders in the Swedish and German criminal justice systems

Sammanfattning: How should we respond to a criminal offence committed by a young person? It is obvious that this is a very complex question. Multiple factors play important roles: the offence itself, but also the juvenile’s background in terms of education, socialization, prior convictions, etc. Every case is unique, but the criminal legal system has to follow the principles of legal certainty and predictability. A legal response to juvenile offending is a consequence of the criminal action, but it also has to consider the lesser maturity and greater vulnerability of young offenders. This dualism makes a trial against a young perpetrator complicated. The ideology of culpability and punishment emphasizes the seriousness of a certain offence. The ideology of welfare accentuates the social situation of the young offender and his or her individual needs. Juvenile criminal justice systems seem to face contradictory demands: from the law in a strict sense and from society at large. They are caught in the middle: between the culpability for the offence and the best interests of the young person. This thesis investigates the tension(s) between “welfare” and “justice” that the juvenile criminal justice system has to deal with (the “welfare/justice clash”) in Sweden and Germany. After exploring the differences between young and adult offenders which underlie the welfare/justice clash, the project presents an in-depth investigation of the Swedish and the German juvenile criminal justice systems. Thus, this study is comparative in its approach. To illustrate the different forms the welfare/justice clash takes in the Swedish and the German juvenile criminal justice systems, I focus on these systems’ guiding principles, legal responses and sentencing rules, procedural rules and safeguards, and on the figures in the juvenile courtroom. The investigation is not limited to a doctrinal study. I also present an empirical study, in the form of participant observations in the juvenile courtroom and semi-structured interviews with judges and public prosecutors from both countries, to gain insight into legal practice. The study of the two juvenile criminal justice systems shows that the theoretical welfare/justice clash is visible in books as well as in action, irrespective of the different approaches towards young offenders these countries pursue. However, this does not appear to give rise to any major problems in legal practice, as surprising as this may be. The practitioners in the juvenile courtroom seem to be able to balance and respect both ideologies. In the analysis, I suggest an explanation for the ability of the juvenile criminal justice systems in Sweden and in Germany to function in spite of the tensions highlighted in the previous chapters. Here, I switch perspectives from an internal view of the juvenile criminal justice system to an external view. I suggest abandoning the purely legal dogmatic (justice) approach and the purely welfare-based or social approach and instead combining elements of them in an approach to juvenile criminal justice that understands it as a system in its own right.