guiding principle leads to an inequality in verdicts between different young offenders.
punishment as a response to youthful misbehaviour. It introduced a basic division of responsibilities between the social services and the judiciary: up until the age of 15, social services had responsibility, while the judiciary was responsible for young offenders between 15 and 20, with gradually increasing judicial involvement as the young offender’s age increased. However, the Acts of 1902 rejected a juvenile court and relied instead on the common sense and experience of the trusted men of the parish, guided by the vicar.387
When the master’s right to flog his subordinates was abolished in 1920, the legislature was taking more interest in the possible damages to a child that an intervention might cause and focused more on preventive measures. In line with this shift of focus, a report by the Child Welfare Commission388 led to the Barnavårdslag (SFS 1924:361)389 in 1924. This Act required all municipalities to establish a barnavårdsnämnd. The authority of these bodies was gradually extended: at first, they covered children up to the age of 15, then children up to the age of 18, and finally even young adults up to the age of 21 who were deemed to be pursuing a reckless, lazy, or immoral way of life and whose rehabilitation required special social measures.
However, it was not until the 1940s that the general authoritarian approach was softened and oriented more towards treatment, guided by evidence from the behavioural social sciences. In the 1950s, more emphasis was placed on avoiding incarceration. In 1982, the municipalities and their social services390 took over responsibility for the institutional treatment of children and young people in residential institutions (reformatory schools), as part of an attempt to deal with the increases in delinquency among young people in these institutions.391
In 1962, the Swedish parliament passed the BrB, which entered into force in 1965. It replaced the Criminal Act of 1864, and it was strongly influenced by twentieth century ideals of treatment: it was characterized by an individualized
387 See Janson (2004), 396.
388 Barnavårdskommitténs betänkande SOU 1956:61 “Ny barnavårdslag”.
389 “Child Welfare Act” – my translation.
390 My translation of “socialtjänsten”.
391 See Janson (2004), who shows that because reformatory care was used as a last resort when all other attempts had failed, the remaining clients became progressively more antisocial and difficult to manage (399).
focus when it came to legal consequences, for young and adult offenders alike.392 As an expression of this ideal, treatment measures for young offenders were mainly carried out by the juvenile care system. However, there was no separate law for young offenders. Since a recurring theme in juvenile legal thinking is the detrimental impact that appearing in court might have on a young person, prosecutors were, as early as 1944, authorized to refrain from prosecuting juveniles between the ages of 15 and 17 who had confessed to the offence and instead hand them over to social services.
In the first post-war decades, optimism about the possibilities for changing young offenders into law-abiding citizens endured. In criminal law, a welfare approach prevailed.393 The aim was to minimize the damage caused by punishment and to provide the offender with care that would help him or her to turn into a law-abiding citizen.394 Focus was placed on the individual offender.
Interventions by the authorities were seen as being intrinsically harmful, creating problems rather than solving them. The labelling theory, which had become influential in the social sciences, pursued this line of thought and fitted well with the radical critical ideology of the times.395 Its assumptions led to the view that the labelling of young offenders occurred mainly within formal institutions, such as the judicial system, social services, and the education system. If this was right, the policy implications appeared almost inevitable: to protect individuals from being labelled, a conscientious social worker had to keep them away from the police, courts, and social services.396
In 1964, for the first time a specific law dealing with young offenders, the Lag (1964:167) med särskilda bestämmelser om unga lagöverträdare,397 entered into force, following complaints that juvenile perpetrators were not facing serious enough legal consequences for their actions. This law outlined to the police and
392 See Martin Borgeke and Catharina Månsson, “Den nya lagstiftningen om påföljder för unga lagöverträdare,” (Svensk Juristtidning (SvJT) 2007: 181–203), 181. For adults, the individual–
preventive focus has been gradually abandoned, but for young offenders it has remained.
393 This approach also prevailed in social welfare reform.
394 See Janson (2004), 408.
395 See ibid. and, for example, the outcome of the study undertaken by Börjeson (1966), 214–15.
396 See Janson (2004), 408. However, in the 1980s, this version of labelling theory began to become less influential.
397 “Act on Special Provisions for Young Offenders” – my translation; henceforth: LUL.
public prosecutors how to deal with young offenders, and it remains in force today.
In 1977, the approach to juvenile justice shifted away from treatment and the offender towards “neoclassicism”.398 Criticism of the existing system had to do with its neglect of the harm caused by the offence, the unpredictable duration of measures, and the lack of proportionality between the offence and its consequences.399 A criminal policy task force from the Brå recommended that principles of justice and proportionality between crime and punishment should be applied irrespective of the perpetrator’s personal needs for treatment.400 These suggestions led to one of the most striking signs of the turn away from treatment-based criminal law: the sentence of “juvenile prison” was abolished in 1980; from then on, young offenders had to be incarcerated in normal prisons.401 Neoclassical thinking also underlay the 1979 Commission of Imprisonment’s402 recommendations, which stated that sanctions should reflect the severity and reprehensibility of the criminal act.403 Furthermore, a reform of
398 Other expressions employed in this context are, for example, “just desert” or “restorative justice”, the latter of which contrasts with “reparative justice”. I have chosen to use the term
“neoclassicism” in the framework of this thesis to describe the shift away from the focus on treatment towards a stricter focus on the offence and more traditional justice considerations and principles, since it is the term most often employed in the Swedish literature. The term is related to the “classicist” criminal law school of the eighteenth century (which included, for example, Anselm von Feuerbach and C. J. A. Mittermaier), based on the ideas of Cesare Beccaria, who claimed that the individual who subordinates him- or herself to a sovereign has a philosophical right to just punishment – an early expression of the principle of legality that even emphasizes the principle of proportionality. I will not got go deeper into these roots; for further reading, see Cesare Beccaria, Dei delitti e delle penne - Om brott och straff. Translated by Paul Enoksson (Stockholm and Rome 1977) and, for an overview, Christian Häthén, Straffrättsvetenskap och Kriminalpolitik. De Europeiska Straffteorierna och deras betydelse för Svensk Strafflagstiftning 1906-1931: Tre Studier (Lund: Studentlitteratur, 1990), 42, 61–2.
399 See Haverkamp (2010), 1329; also Jareborg and Zila (2014), 99.
400 See Brå Report 1977:7; see also Nordlöf (2012), 195-6.
401 Note here that at the same time the application of the “juvenile discount” (see section 4.3.2.1.) was extended from 18 to 21 years of age to avoid young adult offenders between 18 and 20 suffering exceedingly harsh punishments, for they would previously have been eligible for the legal consequence of “juvenile prison”; see prop.1978/79:212, 65. In 1988 it was generally emphasized that criminal conduct committed by an offender under the age of 21 should lead to a reduced prison sentence; see prop.1987/88:120, 98.
402 My translation of “Fängelsestrafkommittén”.
403 See SOU 1986: 13–15, 30.
legal consequences404 revised the whole system of the selection of legal consequences. The new law, which now can be found in chapter 29 and 30 BrB, entered into force on 1 January 1989 and can be considered another expression of the move away from the emphasis on treatment towards the priority of the principle of proportionality and equivalence.405
The Commission on Juvenile Delinquency,406 which was appointed in 1990, observed the shift from individual prevention towards a focus on the offence itself and acted in light of this general development. The commission proposed adapting the system of legal consequences for young offenders to the principles applicable for adult perpetrators (even if lack of maturity should still be taken into account on humanitarian grounds).407 But this led to the austere conclusion that the practice of referring a young offender to the social services for care should be abandoned because it was inconsistent with the notion of a connection between sanction and offence. Responsibility for supervision should be handed back to the courts.408 This can be seen as an attempt by the judiciary to take back some of the authority it had lost to social services.409 However, with the reforms of 1999, the new Social Democratic government left social services in charge of the care and protection of juveniles.410 It passed a new law, based on investigation SOU 1993:35, “Lag (1998:603) om verkställighet av sluten ungdomsvård” (LSU),411 which took effect on 1 January 1999. The newly
404 Påföljdsbestämningsreform of 1988, based on SOU 1986:13–15, followed by prop.1987/88:120.
405 See Per-OleTräskman, “Påföljd, proportionalitet och prioritering av samhällsstraff,” (Svensk Juristtidning (SvJT) 2003a: 173–94), 174. Another expression was the change in the LUL in 1988 that introduced the demand for “skötsamhet” (“orderliness” – my translation. §22 LUL as well as prop.1987/88:135, 18–20) as a precondition for dismissing a case against a young offender. A second reform undertaken in 1995 strengthened the preconditions for a dismissal further by stipulating that a dismissal should generally not be granted to repeat offenders (see prop.1994/95:12, 76–7 and Brå Report 2000:7, 9).
406 My translation of “Ungdomsbrottskommittén”.
407 See Brå Report 2000:7, 7.
408 See SOU 1993:35, 209.
409 See Janson (2004), 409.
410 See prop.1997/98:96, 138.
411 “Act on Closed Institutional Treatment” – my translation.
created closed institutional treatment was to be carried out by the SiS412 in cooperation with social services. It was to be a substitute for prison for 15- to 17-year-old offenders for most cases, but not all.413 Nevertheless, it was emphasized in the preparatory works that fundamental principles like justice, proportionality, and predictability should henceforth shape the choice of the legal consequence.414 Yet, in a 2002 report assessing the 1999 reforms, Brå pointed out that, in the case of young offenders, there are difficulties in combining the principles of care and need with the principles inherent to criminal law.415 This is a straightforward expression of the welfare/justice clash.
Since 1 January 2007, the rules regarding specific juvenile legal consequences have been gathered together in chapter 32 BrB. This legislation is based on the report of the Investigation into Juvenile Delinquency416 and is designed to focus on and protect juveniles. The aim of the 2007 juvenile justice reforms was to create a system of state responses to juvenile offending that would be more clearly geared towards the reduction of recidivism while also reducing the use of fines and prison sentences.417 Further, up until 2007, the main sanction in Sweden for young offenders aged 15–17 was transfer to social services. This was criticized for a lack of transparency and predictability, since social services had more or less free rein to decide on treatment needs.418 To overcome these difficulties, juvenile care and community service for juveniles were introduced.
412 In 1993, the Statens institutionsstyrelse (SiS, the National Board of Institutional Care – my translation) was established, and it began operating on 1 April 1994. It is a public authority administering and running compulsory care for juveniles and adult addicts. It took over responsibility for the so-called “section 12 homes”. §12 Lag (1990:52) med särskilda bestämmelser om vård för unga (LVU - “Act on Special Provisions about Care for Juveniles” (my translation)) states that there shall be special institutions/homes for young persons who need treatment under especially close supervision.
413 As intended, a prison sentence for young offenders has become the exception but can still be unavoidable in some cases, for example if the seriousness of the offence requires a longer incarceration than the four years closed institutional treatment can provide. See further section 4.1.2.5.
414 See prop.1997/98:96, 140–51 and Borgeke and Månsson (2007), 183.
415 See Brå Report 2002:19, 41.
416 Ungdomsbrottsutredningens betänkande “Ingripanden mot unga lagöverträdare” – SOU 2004:122.
417 See prop. 2005/06:165, 1.
418 See Lappi-Seppälä (2011), 221.
While community service for juveniles was originally only an additional legal consequence, since 2007 it has been an independent legal consequence.419 All these developments illustrate that the Swedish juvenile criminal justice system has one foot in the adult criminal justice system and one in child welfare – two systems based on fundamentally different principles.420 As mentioned in section 1.2., the ideology of justice (as the guiding ideology of the adult criminal justice system) and the ideology of welfare (as the guiding ideology of child welfare) aim in fundamentally different, even diametrically opposed, directions.421 The shifts and combinations I have described in this section demonstrate the welfare/justice clash.