Journal of the Institute

B. The U.S. Justice Department’s Suit Against Mississippi

1. Introduction
By the time the Justice Department inspected Oakley and Columbia in 2002, Oakley had been subject to a federal district court order for twenty-five years for violating the constitutional and statutory rights of the juveniles confined there.⁶⁷ In 1977, the district court found that Oakley (1) confined non-violent, and sometimes suicidal, children around the clock in isolation units in dark, cold cells bare except for a hole in the floor for a toilet;⁶⁸(2) maintained understaffed medical and mental health facilities that denied children needed treatment;⁶⁹ (3) maintained overcrowded living units that denied children basic privacy;⁷⁰ and (4) provided little or no general or vocational education, and virtually no special education programs for the “extremely high percentage” of juveniles who were mentally retarded or otherwise required these services.⁷¹
2. The 2003 Justice Department Report
For a quarter-century, the federal district court order mandating corrective action at Oakley fell largely on deaf ears in the governor’s office, the legislature and the state Division of Youth Services.⁷² If anything, safety and other conditions at Oakley were still spiraling downward by the time the Justice Department arrived on the scene in 2002. So too were conditions at Columbia.⁷³

In its 2003 report, the Justice Department found that Oakley and Columbia still denied confined juveniles adequate mental health and medical care. Oakley still tolerated unsanitary conditions, and both institutions still denied required general and special educational services.⁷⁴ The Justice Department also focused on another violation not touched by the 1977 federal court order – the routine, unchecked beatings and other physical assault that staff perpetrated on children “with impunity” at both institutions.⁷⁵

Oakely and Columbia operated on a paramilitary model, Oakley for 336 boys and Columbia for 92 girls and 104 boys. Some of the confined youths were as young as ten, and most were nonviolent offenders.⁷⁶ Mississippi law required courts to commit mentally ill youths to rehabilitation facilities operated by the state Department of Mental Health and not to a prison-like training school, but a July 2001 study funded by two state agencies found that between 66 and 85 percent of juvenile offenders incarcerated in Mississippi “met . . . diagnostic criteria for a mental disorder.” “[M]ultiple, co-occurring mental health and substance abuse diagnoses were evident,” and 9% of the incarcerated juveniles had “suicidal thoughts and plans.”⁷⁷

The Justice Department found that children at Oakley and Columbia were hog-tied, pole-shackled, locked in mechanical restraints and isolation units, and routinely assaulted by staff. Staff also sprayed children with oleoresin capsicum (OC) spray, a form of pepper spray, as punishment for minor infractions. At Columbia, suicidal youths were sprayed for their suicidal behavior and gestures, and youths locked in isolation rooms were sprayed for banging on their cell doors. One suicidal girl was sprayed because she failed to remove her clothes before being placed naked in solitary confinement. Also sprayed were youths who failed to perform military exercises, including youths who had physical difficulty keeping up with others.⁷⁸

Two leading researchers from the University of North Carolina and Duke University warn that “[s]erious adverse health effects, even death, have followed the use of OC sprays. These sprays should be regarded as poisons and weapons and kept away from children and teenagers.”⁷⁹ The UNC/Duke researchers conclude that “[w]hen OC spray is used, officers must decontaminate those sprayed as soon as possible, continuously monitor them for evidence of serious adverse effects, and seek medical attention immediately if potentially life-threatening symptoms develop.”⁸⁰ Incarcerated children remain at particular risk because of their impaired mental or medical condition, and because monitoring rarely occurs in juvenile detention facilities such as Oakley and Columbia, where children are sometimes fortunate when they can see a physician or other health professional from one month to the next.

A hog-tied child is forced to face-down on the floor, and guards tie the child’s arms and legs together behind the back with rope, chains or shackles. A Columbia staff member confirmed incidents of hog-tying, which youths reported occurred while they were on suicide watch or when they failed to follow orders. Pole-shackled children had their hands and legs handcuffed around a utility pole as other juveniles and staff watched.⁸¹

Girls who were suicidal or acted out were sometimes stripped naked and hog-tied in Columbia’s “dark room” for periods lasting from three days to a week. The room was a locked windowless isolation cell stripped of everything but a drain in the floor through which the girls urinated and defecated but which they could not flush.⁸²

Of the fourteen girls confined in Columbia’s isolation unit when the Justice Department arrived, nine had been locked up in bare, extremely hot, inadequately ventilated cells for more than a week and one had been locked up for 114 days. The girls were often denied water, personal hygiene items, bathrooms facilities and sufficient mental health services, even though a significant number of girls in Mississippi juvenile facilities suffered from mental disorders, particularly separation anxiety disorder.⁸³

Girls reported being forced to eat their own vomit if they threw up while exercising in the hot sun.⁸⁴ Youths recommitted to Oakley were taken to an isolation room and punched and slapped by staff as punishment for being recommitted. Staff confirmed that one counselor choked a boy, and another boy reported that a staff member had shoved his head into a toilet. Girls as young as ten in Columbia’s isolation unit also reported being hit, choked and slapped.⁸⁵ Several girls alleged that a staff member forced girls to run and perform military exercises wearing tires.⁸⁶

The Justice Department found that youths with mental health concerns received only “haphazard and cursory” treatment. Many youths previously on psychiatric medications were not allowed to continue receiving their medication. Rather than receive counseling, rehabilitative treatment and education, suicidal youths were kept in bare isolation cells, sometimes naked, with no mattresses during the day on the concrete floor.⁸⁷ When the Justice Department arrived at Oakley, inspectors observed a 13-year-old boy locked in a restraint chair near the control room, reportedly to prevent self-mutilation:

No staff approached him, and he was not allowed to attend school or receive programming, counseling, or medication. This boy had been severely sexually and physically abused by family members and had been in several psychiatric hospitals . . . Just before our arrival, he had been locked naked in his empty cell. His cell smelled of urine, and we observed torn pieces of toilet paper on the concrete floor that he had been using as a pillow.⁸⁸
The Justice Department found both institutions’ paramilitary programs particularly unsuitable for four groups of children forced to participate in it – younger boys, girls, youths with developmental disabilities, and physically or emotionally fragile youths. “Many staff perceived that [younger boys were] non-compliant and anti-authority, when in reality, many of the boys are merely active third, fourth, and fifth graders with short attention spans.” Or boys with Attention Deficit Hyperactivity Disorder (ADHD) but denied their medication by the doctor.⁸⁹ “Harsh disciplinary practices . . . characterized as training” were meted out to girls, including one who was required to sleep one hour and walk one hour for two successive nights before she was forced to eat every meal standing for the next week. A staff member told the Justice Department that youths with learning or developmental disabilities “can’t make it” in the military program, but that these youths nonetheless served longer commitments because of their failures. Columbia staff made fun of a girl with physical and cognitive impairments who was just learning to read.⁹⁰ Military staff also singled out physically or emotionally fragile youths and “made [them] feel worse because of their fragility.”⁹¹

Medical and dental care at Oakley and Columbia were marked by professional staff shortages; incomplete health assessments; routine failure to continue medication and other medical regimens children followed before they were admitted; reliance on old rusty, dirty equipment; and inadequate dental examinations and treatment only for extractions. Columbia’s acting head nurse ignored youths’ illnesses and injuries, kept children from seeing the visiting physician.⁹² Youths at both institutions still did not attend school for several weeks after admission, and then generally did not receive state-mandated class time, appropriate placements or special education that met federal requirements.⁹³ Staff regularly removed children from class for work detail.⁹⁴

Twenty-five years after the federal district court ordered improvements at Oakley, the institution’s buildings were still unsafe and unsanitary. One medical clinic was in a decrepit building damaged by water leaks. The clinic had no sterilization equipment to clean medical equipment, and supplies were not properly stored to maintain any kind of sterilization. “The dental clinic had not been cleaned in many months” because the Justice Department inspection team “observed dirt, spider webs, mouse droppings, and dead roaches everywhere. It was apparent that the clinic has a major insect and rodent infestation.”⁹⁵

Oakley’s kitchen still had rodent and insect infestation, including mouse droppings in the food storage areas and live and dead cockroaches in the kitchen. Staff said they had to cover food while cooking because cockroaches would otherwise fall in from the hood above the stove. Youths also complained about finding roaches in their food. Dishes were not always clean.⁹⁶

Some of Oakley’s housing units still suffered from age and deterioration, broken urinals and showers, and poor lighting that invited accidents. Youths shared one bar of soap during showers. The fire marshal determined that most of the living units were fire hazards because the units had no operable fire alarm system, emergency generators required hand cranking, and staff generally had considerable difficulty finding the right key for fire extinguishers and fire exits.⁹⁷

Finally, procedures at Oakley and Columbia still discouraged children from maintaining contact with their families during their confinement, which lasted an average of two to three months, through some youths were confined for six months of more.⁹⁸ Youths could not make or receive telephone calls, and families could visit the children only on Sunday, and only for two hours that day. Many youths reported that as a practical matter, their families could not visit at all during the two-hour weekly window because the institution was so far from their homes.⁹⁹

When all the dust had settled, it was difficult to quarrel with this assessment of Oakley and Columbia from Mississippi children’s advocate: “These abuses are the kind of things you would hear about in some torture chamber in a Third World country. This is not how we treat our children in the United States.”¹⁰⁰
C. Missouri: A “Guiding Light For Reform”

Missouri put history’s lessons to work. By the end of the 1970s, Boonville and Chillicothe, the state’s last two training schools, were collapsing after eight decades of violence and decay. Missouri was ready to move in a new direction. We need to appreciate the times to understand just how profound and courageous the move was. The 1970s were “law and order” times, when many national leaders called on states and localities to meet violent crime with get-tough measures. America’s patience with violent crime, including juvenile crime, had worn particularly thin. This was not a national atmosphere that encouraged truly positive, innovative change in juvenile justice. But positive, innovative change is precisely what happened in Missouri.

The state closed Chillicothe in 1981 and Boonville in 1983. (The Tipton Negro Girls School had been closed in 1960.) The transformation of the Division of Youth Services (DYS) was guided by a 15-member, bipartisan Division of Youth Services Advisory Board comprised of respected judges, former legislators, officials and concerned citizens from all walks of life and all areas of the state. The board provided expertise concerning productive juvenile corrections policy and helped develop stable support for the Division’s innovations. Because DYS treatment programs proved successful, the agency has enjoyed bipartisan support from governors and the legislature ever since, and a budget that has quadrupled from about $15 million to $60 million in fifteen years.¹⁰¹

Throughout the 1980s, DYS replaced the failed reform schools with smaller regional, community-based facilities that enabled local staff to treat delinquent children near their homes in cooperation with local juvenile courts. While other states continued operating “overcrowded, understaffed, Dickersian warehouses¹⁰² of human souls,” the “cottage plan” finally become reality in Missouri.

DYS has divided the state into five regions with thirty-one residential facilities that provide intensive treatment to more than1300 delinquent children committed by the juvenile courts each year. The agency treats offenders in the least restrictive program that meets the child’s needs and provides necessary control. Most of the children are treated within thirty to fifty miles of their homes so their families and other sources of community support can remain involved in their lives.¹⁰³

Each of the five regions has a diverse range of residential facilities. DYS maintains group homes for ten to twelve youths under responsible adult supervision, proctor homes where youths live with college student mentor/role models, moderate care facilities that permit youths to interact with the community, and secure care facilities that provide the most serious offenders education, counseling and vocational guidance in groups of ten to twelve. Day treatment facilities provide youths a minimum of six hours of education, counseling and community service activities before they return home in the evening. The agency’s comprehensive aftercare program even helps youths find employment and proper direction when they are discharged.

Missouri’s about-face since closing Boonville and Chillicothe has catapulted the state squarely into the forefront of effective delinquency services nationally. In 1994, the National Council on Crime and Delinquency recognized Missouri’s national leadership by presenting Governor Mel Carnahan with its Award For Excellence in Adolescent Care. The Annie E. Casey ¹⁰⁴Foundation, which seeks to address the needs of vulnerable children and families, has named Missouri a model juvenile corrections system and has provided a grant to enable the state to showcase its program to other states. Bart Lubow, the foundation’s Director of Programs for High-Risk Youth, describes Missouri’s programs as “brilliant, thoughtful, creative” – and successful.

In 2001, Missouri’s emphasis on small residential community-based programs won lavish praise from the American Youth Policy Forum. The AYPF found that while spending one-third less than surrounding states on juvenile corrections, Missouri enjoys a recidivism rate one-half to two-thirds below that of most other states. Indeed, Missouri has the lowest juvenile recidivism rate in the nation, only about 11%. In other states, recidivism by youths released from training schools remains high, usually between 50% and 70% and sometimes greater than 90%.¹⁰⁵

The AYPF called Missouri a “guiding light for reform,” and found that the state’s “unconventional approach - - emphasizing treatment and least-restrictive care - - is far more successful than the incarceration-oriented systems used in most other states.” The report concluded that Missouri’s approach “should be a model for the nation” because “[i]ts success offers definitive proof that states can protect the public, rehabilitate youth, and safeguard taxpayers far better if they abandon incarceration as the core of their juvenile corrections systems.”¹⁰⁶

Missouri’s success has also caught the attention of juvenile court judges in other states. One is Judge Ramona F. John, who served on the juvenile bench in Harris County, Texas from 1989 to 1993 after eighteen years representing children in court. Judge John calls Missouri “a prime example” of a state “nationally recognized for . . . excellence” in rehabilitating delinquents. She calls Missouri’s low recidivism rate “astounding,” and lauds the state for emphasizing education and job training, strong counseling and mentoring, family involvement and aftercare.¹⁰⁷

Other states and localities now look to Missouri for guidance about effective juvenile corrections. In 2001, for example, a Washington, D.C. mayor’s commission toured DYS facilities to learn ways to improve that city’s programs. A year later, on the heels of their settlements with the Justice Department, Georgia and Louisiana both sent delegations of legislators, judges and juvenile corrections officials to inspect and study the DYS system and consider reforms. Georgia even hired a DYS staff member to help replicate Missouri’s system.

Unlike their counterparts in many other states, DYS facilities have had little violence or gang activity and no suicides. “At the Division of Youth Services, we focus first on the goals of community safety and youth accountability, but we do so in a way that engages young people and brings out the best in them,” says Mark D. Steward, DYS director since 1988 and a prime architect of the agency’s programs. “Our low recidivism rates demonstrate the troubled youth can be reached before incarceration in adult prisons becomes inevitable.”¹⁰⁸

IV. Conclusion: Lessons From Juvenile Justice History

History can be revealing, interesting, entertaining, even discomforting. Studying the past, however, is most worthwhile for lessons that help shape the future. Many threads running through the nation’s juvenile justice history remain discomforting to contemporary sensibilities. We cannot be proud today about the nineteenth century prisons that confined children under inhumane conditions with little thought for their future, and often for whether they had done anything wrong. Nor can we be proud of the twentieth century training schools that sacrificed rehabilitation while encouraging resentment and recidivism that compromised public safety.

Missouri’s unhappy experiences with training schools, however, demonstrate the true value of historical inquiry. Learning from years of frustration, Missouri closed the Boonville and Chillicothe training schools in the early 1980s while other states held stubbornly to the past. The result is a success story that remains the envy of states still searching for a juvenile justice compass. These states have not yet learned their lesson, and now they look to Missouri for the right answers. Willingness to learn from history goes a long way.

As we apply history’s lessons, we must recognize that managing delinquents is no easy chore. Delinquents are not angels. Crime has placed them in state custody. Statewide juvenile justice agency typically treats the hardest cases, delinquents who cannot readily be treated by local authorities. Some of these children are truly incorrigible and need secure detention, but Missouri has shown that the nineteenth century child savers were right – that most delinquent children can be rehabilitated steered toward a productive life and away from future crime that menaces the public safety.

The public interest suffers when states waste taxpayer dollars by incarcerating status offenders and non-violent youths who could be treated more effectively in less expensive community-based alternatives. And when states tolerate juvenile prisons that compromise public safety with recidivism rates exceeding 70% year after year. And when states maintain juvenile prisons where mentally ill children are beaten, denied needed treatment, and then released into the general population more debilitated than when they were admitted. We should have learned these lessons by now.

History suggests that juvenile justice systems serve rehabilitation and public safety best when reform reaches from top to bottom. “Missouri is a model we would all love to replicate,” the director of the Maryland Juvenile Justice Coalition said only three weeks ago, “but it isn’t a model you can replicate with legislation. What is unique about Missouri is the attitude and approach of the staff and the management.”¹⁰⁹

The nation needs to take a long, hard look at juvenile justice history. To learn from that history, and not to continue repeating its worst mistakes. Nearly two centuries of experience help point the way toward what works and what does not. Juvenile justice will serve its mission best when other states join Missouri in forging a better future for delinquent children and the interests of public safety.

Youth, Crime and Juvenile Justice in The Netherlands
Gerard de Jonge^*
The incidence and nature of juvenile delinquency in the Netherlands are first outlined: What are the trends? Who are those youngsters? Do ethnic minorities require special attention? What about the girls? Should parents be held responsible? This is followed by a description of the development of the Dutch juvenile justice system. The origins of the Dutch juvenile courts are traced from 1809 until the present. Subsequently, the focus is on the main features of substantive juvenile criminal law: What special penalties and measures may be imposed on juveniles? Is it possible to apply the criminal law for adults to juveniles? Another question discussed is the special procedural rules that apply in Dutch juvenile criminal procedure. The next topic is the legal position of juveniles who are deprived of their liberty, be it as suspects on remand or as convicted persons: What kind of treatment can they expect? What are their rights and duties? Can they complain about infringements of their rights? Can they get legal assistance? Who is supervising their treatment? In the final part of the presentation, attention is paid to international standards relating to juvenile justice, with special reference to the impact of the International Convention on the Rights of the Child on the administration of juvenile justice in the Netherlands.
1. Delinquency Among Dutch Youngsters
The good news is that the majority of Dutch youth are doing fine. The socio-economic, physical and mental condition of persons between the ages of 0-25 is monitored every two years by the Social and Cultural Planning Office in The Hague. The main outcome of this research is that out of approximately five million persons in the age group of 0-25 years (the total Dutch population is 16.4 million) the majority are doing well: they are healthy, attend school regularly, and liking it, do not worry or fret too much and have good relations with their parents. Eight in ten experience their lives as good to very good. The bad news is that about a quarter of a million youngsters are in deep trouble and some 500,000 – 700,000 are facing serious problems. Almost 20% of young people therefore need special care by welfare and justice authorities.

Not all youngsters in trouble, of course, resort to crime and, as we know, committing (minor) offenses is part of the process of growing up, of testing adult society. Only a small number of boys and girls offend repeatedly and constitute the hard core of juvenile criminality.

Presently, I will attempt to describe the criminal behavior of Dutch juveniles. But first let me be clear about who is considered a ‘juvenile’ or ‘child’ in the Netherlands. The legal definition of ‘child’ is found in the first article of the International Convention on the Rights of the Child, which reads as follows: ‘For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.’ This Convention entered into force for the Netherlands in 1995.

For obvious reasons, it is difficult to paint a complete picture of juvenile delinquency in the Netherlands. I will limit myself, therefore, to its main features. The data collected in the Netherlands is mainly based on police statistics. This data is combined with self-report and victim surveys. An update is presented every two years in a report entitled ‘Criminality and Law Enforcement’, published by the Ministry of Justice. Contrary to popular belief, the volume of youth crime (with the exception of an incidental peak in 1996) has remained rather constant over the past decade. Each year, about 47,000 young suspects in the age bracket from 12 to 17 are questioned by the police. More than 40,000 of these are boys. As to the nature of the crimes, as registered by the police, it may be observed that a) crimes against property form the bulk; b) boys, as always, commit most of the offenses, but that c) girls’ part in reported crime is growing steadily.

What has caused considerable concern over the past few years is a shift towards more reported violent crime. Much public debate regards ethnic minorities’ contribution to juvenile crime. It is difficult to gather reliable information on the subject, because the Dutch police usually do not register the ethnic origin of suspects. What is registered, however, is the country of origin of each suspect. Such registration reveals that approximately 1 out of every 4 juvenile suspects was born abroad. The ethnic minorities that feature disproportionately in youth crime statistics are first and foremost “the big four”; a term used to refer to youngsters of Turkish, Moroccan, Surinam and Antillean extraction. In recent years, criminal statistics have shown the emergence of new groups of migrant youths, such as Afghan and Chinese youngsters, whose delinquency hardly deviates from the average, but also – in declining order– an overrepresentation of young offenders from the former Soviet Union, the Democratic Republic of Congo, Sierra Leone, Angola, Somalia, the Sudan, the former Republic of Yugoslavia, Ethiopia, Eritrea, Iran and Iraq. This new influx presents the Dutch juvenile justice system with new problems in coping with cultural differences.

Two of the hottest issues in the current debate on youth crime prevention are a) the timely recognition of risk factors in the life of children and how to respond to these; and b) reasons for intervention and ways in which government officials may intervene in family life, when children are considered to be at risk. Often, the government intervenes when it is too late, that is to say, after a child has already had a run-in with the police, because of an offense committed. In such cases, as it is almost everywhere in the Western world, the Juvenile Criminal Justice System is expected not only to solve crimes and bring the offender to justice, but in so doing serve the best interests of the child, which, according to Article 3 in the Convention on the Rights of the Child must be a primary consideration with public or private social welfare institutions, courts of law, administrative authorities and legislative bodies.

2. The Emergence and Development of Specific Justice Aimed at Juveniles
The first Dutch national criminal code, which only applied from 1809 until 1811, when it was replaced by the French Code Pénal, provided for three age brackets: children under the age of twelve were not criminally responsible; youngsters from 12 to 15 could be incarcerated for a maximum of two months; and with young offenders between the age of 15 and 18, it was possible to mitigate punishment.

With the coming into effect of the Code Pénal, this child-friendly arrangement was discontinued. From then on, the courts had to ascertain whether offenders under the age of 16 had been conscious of the fact that they were committing an offence. If not, they were acquitted and possibly committed to a correctional institution until their 20^th birthday. If the court deemed the young offender to be doli capax, capable of committing the crime, the punishment was to be mitigated in view of his young age.

After the end of the French occupation of the Low Countries, the Code Pénal remained in force –be it frequently amended- until 1886 when a brand-new Criminal Code entered into force. It prescribed that juveniles under the age of ten were not criminally liable. It also provided that on application by the public prosecutor this category of offenders could be ordered by the civil court to take up residence in a government-run reformatory, which could last until his 18^th birthday. With regard to offenders between 10 and 16, the 1886 Criminal Code obliged the court to ascertain whether they had been conscious of the criminal nature of their acts. If not, the child was acquitted, but could be committed to a correctional institution. If he was regarded to have been conscious of the offense, the punishment applicable to adults was imposed, providing that the maximum sentence imposed was one-third less than that for adults. Where an adult could be sentenced to life imprisonment, a juvenile offender between 10 and 16 years could be sentenced to a ‘mere’ 15 years. The fact that the doli capax test was applied differently by different courts became more and more irritating: under what circumstances was a child considered to have offended intentionally and in what case to have acted merely carelessly? Neither legal practitioners nor academic lawyers proved to be able to provide a satisfactory answer.

Things changed once more with the introduction in 1905, of a special law that removed the minimum age for criminal responsibility and left it up to the courts to decide on the doli capax question in any given case. It took 60 years for the reintroduction, in 1965, of a minimum age for criminal responsibility, as part of a major reform of juvenile criminal law. A child under the age of 12 could not be prosecuted. This is still the case in the Netherlands.

For the first time in Dutch history, the 1905 law reform provided for special penalties and measures for juveniles. Retribution was no longer the principal aim; from then on, the main purpose of punishing juveniles was the correction of their behavior by imposing sanctions aimed at educating the young offender. Not only in substantive criminal law were children treated differently from adults, criminal procedure was amended to the advantage of children as well: juveniles were obliged to be present in court when their case was heard; court proceedings were no longer public and every minor was provided free of charge legal assistance for the duration of the proceedings.

One important thing still lacking was a special juvenile court. In 1922, during the interbellum, approximately one quarter of a century after they had been introduced in the United States, the Netherlands set up special juvenile courts. Another major change in juvenile law was the introduction of the special measure of ‘placement under supervision’ of young offenders. Government-funded ‘family guardians’ could be assigned by court order to supervise the upbringing of young offenders.

The rapid development, after the Second World War, of behavioral science, especially pedagogics, led to a renewed interest in juvenile justice. This interest was not immediately translated into new legislation, however. The criminal law relating to juveniles was revised as late as 1965, after two decades of expert debate. The minimum age of criminal responsibility was fixed at 12 years and new sanctions exclusively applying to juveniles were introduced: the penalty of arrest (juvenile detention for a maximum of 6 months) and the measure of committal to a specialized institution for pedagogic treatment, if necessary until the child’s 21^st birthday.

The most recent reform of juvenile criminal law took place in 1995. This year marks the legal recognition of young offenders as legal subjects instead of objects of more or less benevolent pedagogic treatment. It also reflects the principle of taking measures for dealing with juvenile offenders without resorting to court proceedings, as endorsed by the International Convention of the Rights of the Child in Article 40, par. 3b. The 1995 reform has given juvenile justice in the Netherlands the shape it has today.

3. Substantive Juvenile Criminal Law – Penalties and Measures
The present Dutch Criminal Code applies to all offenders twelve years and older. Only in respect of the applicable penalties and/or measures, does the Code differentiate between adults and youngsters. Decisive is the date and time at which the offense was committed. If the offender was between twelve and eighteen years of age, ordinarily, criminal sanctions for juveniles must be imposed. However, the juvenile court has several options in the case of youngsters, who were between sixteen and eighteen years of age at the time at which the crime was committed. It may opt for an adult criminal sanction. This could imply that a sixteen-year old is sentenced to life imprisonment; the maximum penalty in the Netherlands. Up to now, this is pure theory, but the law allows for it. This appears to be a violation of Article 37 CRC, which requires States Parties to ensure that no child is subjected to torture or other cruel, inhuman or degrading treatment or punishment, and neither capital punishment nor life imprisonment without the possibility of release is imposed for offenses committed by persons below eighteen years of age. The Dutch government is of the opinion, however, that, inasmuch as life imprisonment can be commuted into a penalty of a determinate period of time through the granting of a pardon, Dutch juvenile criminal law does not run afoul of Article 37 of the Convention. Since granting a pardon is not a right but – as Article 122 Dutch Constitution provides – rather a favor bestowed at the Crown’s pleasure, this is debatable, to say the least.

The juvenile court is not entirely free in its choice to apply adult sanctions to 16- and 17-year old youngsters. Three factors should be taken into account, alternatively, not cumulatively. They are: 1) the gravity of the offense; 2) the character of the offender and 3) the circumstances in which the offense was committed. As the Netherlands Supreme Court requires not much of a reasoning for such an important choice, juvenile courts have virtually a free hand in subjecting those children, who were 16 or 17 when they committed the offense, to adult sanctions. In practice, this judicial option is rarely used. Approximately 2.5 % of all youngsters convicted (12-18 years) receive adult penalties.

In addition, the juvenile courts have another choice. Offenders who have reached the age of 18 but not yet of 21 at the time at which the offense was committed, are to be sentenced as adults. However, if the court (not a juvenile court) deems the character of the suspect to be (and at the time of the trial still is) not yet fully developed, it may nevertheless impose penalties and measures applying to juveniles on those adolescents. This raises the question as to the kind of penalties and measures Dutch juvenile criminal courts (and sometimes adult criminal courts) may impose.


3.1 Out-of-Court Settlement
Before answering this question, I must dwell for a brief moment on ways to prevent that children have to stand trial. The CRC requires of the States Parties that, where possible, they deal with offending children without resorting to judicial proceedings. Appearing before a court is the last thing you would want a child to do.

In spite of the fact that children under 12 years of age cannot be prosecuted, the police can offer them, albeit with the consent of their parents, what is called a “STOP-response”, consisting of engaging in activities of pedagogic value for a maximum of 10 hours. The STOP-response is carried out by municipal agencies, called HALT-offices (an acronym of tHe ALTernative). The law authorizes the police to settle minor crimes committed by juveniles out of court, provided the minor agrees to community service or a remedial training project of not more than 20 hours. Parental consent is required in the case of children under 16. These alternative projects – mainly community service - are organized and carried out by the municipal HALT-offices referred to earlier. If the project is completed to the satisfaction of the police, the offense is not reported to the public prosecutor’s office and the case ends here. Each year, 16.7 out of 1,000 youngsters between the age of 12 and 18 are referred to the HALT offices for an out-of-court settlement. In absolute terms, this amounts to about 20,000 minors annually.

If the police are not satisfied with the way in which the youngster has participated in the alternative HALT-scheme or if the offense is deemed too serious for a settlement through HALT, the police report of the offense will be sent over to the prosecution service. It is then up to the public prosecutor in charge of juvenile cases to decide whether the young offender is summoned to appear in court or is given the opportunity to settle out of court, this time under the supervision of the prosecutor himself. To this end, he will call on the young offender and his parents to come to his office and offer him a chance to prevent conviction by the juvenile court by participating in community service or a remedial training project for not more than 40 hours. Since juvenile delinquency is dealt with at the lowest possible level, juvenile courts only judge the most serious cases.

There is no provision for free legal assistance to young offenders who are offered an out-of-court settlement by the police or the prosecutor, with one exception: if the prosecutor wishes the minor to do community service or comply with a remedial training order of over 20 hours, the president of the court is obliged, by law, to assign counsel to the youngster involved, free of charge.

I already told you that each year about 47,000 minors are questioned by the police as suspects and about 20,000 minors are referred by the police to the HALT-schemes for an out-of-court settlement. More than 27,000 files are sent by the police to the prosecution service. Almost 18,000 of these cases are dealt with by the prosecutors themselves and just under 9,000 cases are tried by the (19) juvenile courts.

In more than 33 % of the cases, juveniles are convicted and sentenced to detention; in over 42 % they are given a community service and/or remedial training order. Fines are seldom imposed (less than 7 %). Committal to a closed institution for treatment occurs in 2 % of cases heard by the courts. This data may serve to indicate that incarcerating juveniles is indeed a last resort.

Let us have a closer look now at the kind of juvenile penalties and measures the Dutch juvenile courts may impose. The law distinguishes between principal and additional penalties.
3.2 Juvenile Detention
The most drastic sanction for minors is detention. Minors who were between 12 and 16 years at the time at which the serious offense was committed, (detention is not a punishment in the case of misdemeanors) face up to 12 months of what is called juvenile detention; juveniles who were 16 or 17 at the time at which the serious offense was committed, may be sentenced to a maximum of 24 months. Dutch criminal law does not provide for mandatory sentences. In all cases, the general minimum is one day. In the case of juvenile detention, the courts are therefore free to impose detention ranging from one day to 12 or 24 months, depending on the offender’s age at the time at which the serious offense was committed. Sentences may be suspended in whole or in part. The duration of the probation period is a maximum of two years. If the person on probation commits a crime during the probation period, the prosecutor may apply to the court for a juvenile detention execution order. The juvenile court will comply with the application, unless in retrospect there are reasons to replace the sentence of detention by a community service and/or remedial training order. The juvenile court may order early release at any time, but such orders are rare.
3.3 Community Service and Remedial Training Orders

In the majority of cases, the courts impose community service and/or order the offender to undergo some form of training, sometimes combined with a (suspended) sentence of juvenile detention. Community service orders are limited to 200 hours; it may include participating in a project for non-profit institutions or, more specifically, repairing the damage caused. Remedial training orders entail participating in training with a special relation to the offense committed. In most cases, the youngster is ordered to receive training in social skills; aggression control and how to handle sexuality. Remedial training orders are also limited to 200 hours. If the court issues a combined order (part work and part remedial training) the maximum is 240 hours. Execution of these types of court orders is entrusted to the local Child Welfare Council, which must report to the prosecutor on the way the orders are complied with. Any sentence involving community service and/or remedial training orders also states the days or months the juvenile has to serve in detention should he fail to comply with such an order. In the event that the young offender fails to comply, the prosecutor may simply order the detention to be carried out. The young person in question has a right to appeal against such execution orders. If he lodges an appeal, the juvenile court will examine whether he actually has to be sent to a juvenile detention center or whether he will be given another chance to comply with the original court order.

3.4 Fines
The third major penalty the courts may impose is a fine. Since Dutch criminal law – as has been said earlier - does not provide for fixed penalties, the juvenile courts may punish any offense by a fine between a general minimum of Ä 2 and a maximum of Ä 2,250. The court may (but is not obliged to) impose a custodial sentence of a minimum one day and a maximum of three months if the fine is not paid or paid in full. It is also possible to substitute fines not (fully) paid with community service or a remedial training order. For obvious reasons, imposing fines on juvenile offenders is not very popular. Most children have little money and if a fine is paid, who knows where the money came from.

So much for the principal of criminal sanctions for juveniles. Juvenile criminal law provides for two additional sanctions: the forfeiture of property seized and (only in relation to certain traffic offenses) temporary disqualification from driving cars or any other motorized vehicle.

3.5 Punitive Measures – Treatment Order.
In lieu of or in addition to penalties, in some cases, Dutch juvenile courts may impose punitive measures, such as financial compensation for damage caused; the forfeiture of illegal gains; and withdrawal from circulation of objets seized, such as drugs and arms. The most far-reaching punitive measure a court may take, is committing a juvenile offender to an institution for treatment or putting him on a treatment order for a term of up to six years. The order is restricted to juveniles who: a) commit a serious offense; b) represent a risk for the general safety of persons or goods and c) need to undergo treatment for their own good. The court may only order such treatment after consulting at least two behavioral experts. The court, however, is not obliged to adopt their expert opinion. Treatment is imposed for a period of two years and – after due consideration by the juvenile court – is renewable for one or two years up to four years normally, but up to six years if the young person is mentally retarded or suffers from mental illness. Treatment orders may be combined with a sentence of juvenile detention, which is executed first in that case.
The sentence of juvenile detention and treatment orders are executed in closed juvenile institutions. I will come back to that later. First, let us have a look at the special provisions regarding criminal procedure for juveniles.
4. Juvenile Criminal Procedure