Youth justice in Germany is federally regulated. Throughout the 1900s, the practice of youth justice vacillated between rehabilitation and punishment in response to shifts in political power. Following World War I, Germany passed legislation to create a system that incorporated both philosophies. The Juvenile Welfare Act of 1922 addressed youths in need of care and the Juvenile Justice Act of 1923 targeted youth delinquents (Dunkel 2006). In 1940, the Nazi party mandated punitive measures in the youth justice system. Reforms emerged in the 1960s to address concerns over youth detention and institutional placement, but officials abandoned the reforms by the 1970s. In the 1980s, Germany reformed its youth justice system through practice.
German social workers and legal personnel initiated “reform through practice” by implementing alternative sentences and developing community-based programs that enabled courts to reduce incarceration. The reforms enabled Germany to shift from custody to intermediate sanctions and from formal proceedings to diversion (Albrecht 1997). There are four levels of youth diversion: complete diversion without intervention, diversion through non-legal entities (parents, school), diversion with intervention (apology, community service, fine), and diversion following court proceedings (Dunkel 2009).
Juvenile courts have expanded their use of diversion since the 1980s. By 2006, the diversion rate in juvenile cases was 69 percent, though this could in part reflect a growth in the reporting of petty offenses (Dunkel 2009). By expanding alternatives to imprisonment for young adults, the German youth justice system decreased the rate of youth imprisonment by 40 percent between 1983 and 1990 (Dunkel 2010). Juvenile courts also issued more suspended sentences. In the mid 1970s, youth courts ordered suspended sentences in less than 20 percent of cases. Youth courts currently suspend approximately 70 percent of juvenile prison sentences (Solomon and Allen 2009). The effectiveness of probation departments in working with youths on suspended sentence has enabled courts to increase the use of these measures.
German law distinguishes between four categories based on age. “Children,” those under age 14, are criminally culpable. “Juveniles” between ages 14 and 17 are the responsibility of youth welfare departments. At age 18, Germany considers “adolescents” criminally responsible. Persons age 21 and older are legal adults (Wolfe 1996).
Germany passed the Juvenile Justice Act in 1990. The Act called for the least restrictive interventions for youths, expanded diversionary options, and introduced community sanctions such as community service orders, social training, and mediation. Diversion is preferred over imprisonment, which courts are only to order as a last resort. For serious offending youths between ages 14 and 17, imprisonment lasts a minimum of six months and a maximum of five years. For very serious offenses, juvenile imprisonment can last 10 years (Dunkel 2006).
The Youth Court Law amendment of 1990 further enhanced youth rehabilitation. The amendment emphasizes the individual rather than the offense and mandates rehabilitation and education. Education is defined as the prevention of relapse and cannot entail manipulation of a youth’s attitude or behavior (Albrecht 1997). The amendment also abolished indeterminate prison sentences for juveniles, placed restrictions on sending juveniles to pretrial detention, and expanded diversionary and victim-offender mediation programs. Youth courts are prohibited from transferring juveniles to adult court. The opposite is far more likely. Youth courts sentence an average of 60 percent of young adults as juveniles (Albrecht 1997).
The Youth Court Law amendment specifies three categories of youth sanctions. Educational measures seek to improve youth socialization through community service, social training courses, victim-offender mediation, and vocational training. Disciplinary measures include judicial cautioning (formal verdict entered in criminal record), court-ordered conditions (community service, victim compensation, formal apology) and short-term detention. The third category is imprisonment. Courts can order imprisonment when educational sanctions and disciplinary measures have been ineffective in rehabilitating youths (Albrecht 1997).
Youth imprisonment has decreased over the last 30 years but the proportion of youths placed under judicial control has increased since the 1960s (Albrecht 1997). A possible explanation for this increase is that imprisoning a youth is cheaper (between 100 and 200 Euros per day) than placing a youth in a residential treatment facility (250 Euros per day) where they could receive more specialized treatment for a behavioral or mental health ailment (Dunkel 2010). Although most youth prisons have treatment programs, many prison facilities have demonstrated a minimal ability to effectively rehabilitate youths. Studies indicate that approximately 80 percent of juveniles released from a youth prison are later re-convicted of a criminal offense (Dunkel 2010).