I have structured my thesis as eight chapters, including this introduction. In the second chapter, I approach the question of why there is a welfare/justice clash in relation to young offenders, which connects to the first sub-question of my research questions. I investigate the roots of the clash by looking closely at the distinctive stage between childhood and adulthood. I show that the reasons that most Western legal systems treat young offenders differently from adult perpetrators have to do with the nature of this specific time in life.174 This
174 However, Jörg-Martin Jehle, Christopher Lewis and Piotr Sobota, „Dealing with Juvenile Offenders in the Criminal Justice System,“ (European Journal on Criminal Policy and Research 2008: 237-47), point out that there are differences between countries in terms of the procedures used (237).
chapter covers biological and psycho-social aspects and considerations as well as legal ones.
In chapters 3 to 6, I seek to understand the forms the welfare/justice clash takes in the juvenile criminal justice systems of Sweden and Germany, which relates to the second sub-question of my research questions. These chapters contain in-depth studies of the Swedish and the German juvenile criminal justice systems from a legal dogmatic perspective. Within each chapter, a descriptive part is followed by an analysis from both a welfare and a justice perspective for each section. The chapters are divided up as follows: in chapter 3, I start out with a rough overview of the history of the juvenile criminal justice systems in Sweden and Germany and engage further with the guiding principles of each. Chapter 4 consists of detailed studies of each system’s specific legal consequences for young offenders, including possibilities for dismissing and diverting cases, as well as sentencing aspects. In chapter 5, I focus on the procedural specifics and protective safeguards regarding young offenders. Chapter 6 contains an investigation of the figures in the juvenile court. Each chapter starts out by investigating the German system. Though it might be seen as a courtesy to Sweden – the country that made this research possible – to start out by examining the Swedish system, I have nevertheless chosen Germany as my starting point. The reason is simple: as a lawyer trained in Germany, I am more familiar with the German system. This also means that to some extent I measure the Swedish system against the German system.
Chapter 7 contains the empirical part of my study: law in action. In this chapter, I present the findings from the observational study and the interviews. Here, again, I start out in each section with a descriptive part, followed by analyses from both the welfare and justice perspectives in order to investigate the welfare/justice clash.
Chapter 8 contains the overarching analysis that builds on the earlier findings.
This chapter connects to the third sub-question, and it suggests an explanation for the ability of the juvenile criminal justice systems in Sweden and in Germany to function in roughly similar ways, notwithstanding their differences in dealing with young offenders and the aforementioned tensions. It contains an introduction to autopoietic systems theory, which serves as my analytical tool and should enable the reader to follow my reasoning as I develop my account of the juvenile criminal justice system. I present my idea of the juvenile criminal justice system as an autopoietic sub-system, and I apply this concept to the juvenile criminal justice systems of Sweden and Germany.
Chapter 2
Between childhood and adulthood
The phase during which a young person transforms from a child below the age of criminal capacity to a juvenile, a young adult, and finally an adult175 is a very special period, and its effects are visible in, for instance, the physical changes of the body in size and shape. In this chapter, this transitional phase is labelled
“adolescence”. Despite the possibility that this might invite confusion, I choose to employ this term since it is the term found in the non-legal scientific literature this chapter engages with.
When young people reach a certain age, they are assigned legal and criminal capacity, even though they are not yet adults. The ability to be governed by norms that prescribe certain kinds of behaviour is not innate but develops with age and is learned in the education and socialization process, which can happen faster or slower depending on the conditions encountered by the individual.176 This chapter investigates the phase between childhood and adulthood and how it might bear on the (juvenile) criminal justice system. It aims to answer the first sub-question of my research questions, namely: in which ways do young offenders differ from adult offenders? This means that this chapter engages with the very basis of the welfare/justice clash. Why do welfare considerations have such weight when it comes to young offenders? In other words, this chapter seeks to answer the question: how can we explain the welfare/justice clash?
The following factors provide a useful framework for understanding what is distinctive about adolescence. On the one hand, there are cognitive factors:
young persons’ capacity to assess and appreciate the harmful consequences of their criminal actions is less developed (I describe these as “biological factors”
and take these to include hormonal changes). On the other hand, there are
175 See the definitions in section 1.3.
176 See Alexander Böhm and Wolfgang Feuerhelm, Einführung in das Jugendstrafrecht (München:
C.H.Beck, 2004), 26.
factors relating to volitional control: for example, young persons have had less time to develop impulse control and to learn to resist peer pressures to offend (I label these “psychosocial factors”).177