Until the 1990s, youth court judges had four methods of handling delinquent youths: formal caution, short-term custody, probation, and secure custody. A series of laws have influenced modern juvenile justice in Spain and shifted the system back and forth between punishment and rehabilitation.
The Organic Law (OL) of 4/1992, known as the Juvenile Court Reform Act, elevated the prosecutor to the primary decision-maker in the juvenile justice system. The prosecutor has the discretion to try youth cases or dismiss them if he or she believes it is in the best interests of the youth. The OL established two judges, an investigating judge and a sentencing judge, to ensure that sentencing for youths is as impartial as possible. In addition to setting up a hierarchy of authority, the OL called for minimal intervention in the lives of juveniles. To reduce youth custody, the OL placed limits on the duration of custodial sentences, prioritized the use of existing community-based sanctions for youths, and introduced new community sentences (Alberola and Molina 2003).
Spain has had a system of community youth sanctions for many years, but before the Organic Law of 4/1992, such sanctions were not firmly established in juvenile law. Judges generally issued formal cautions or probation as alternatives to custody. The OL expanded community sanctions and enabled judges to place youths with a trustworthy family, suspend their driving license, order community service, or require youths to participate in community-based therapeutic treatment (Alberola and Molina 2003).
There are several custodial placement options for youth delinquents, which obscure the fact that each option is a different form of confinement. Closed centers are the most restrictive and propose to instill social competence in youths. Half open centers are less restrictive in that they allow youths to leave periodically and receive community-based social services. Open centers are the least restrictive placement and enable youths to participate in a variety of community activities. Therapeutic centers provide mental health or substance abuse treatment. Weekend custody facilities enable youths to work or attend school during the week and spend weekends in custody (Alberola and Molina 2003).
The OL of 4/1992 requires judges to issue custodial sentences only when a youth commits a serious or violent offense or if there are no other appropriate sanctions available. Different regions of Spain use custodial sentences to different degrees so youth courts do not apply custody uniformly. In 2006, youth courts ordered custody in 27 percent of cases on average. However, some regions rarely issued custodial sentences and others ordered custody frequently (De la Cuesta et al. 2010).
The Organic Law of 5/2000, known as the Juvenile Criminal Act, was the next major development in Spanish juvenile justice. The OL of 5/2000 encouraged decriminalization of minor offenses by restricting the court’s use of custodial and prison sentences. It introduced new community sanctions including day centers, walk-in services, and socio-educative measures, which seek to improve social competency through education (De la Cuesta et al. 2010).
The OL of 5/2000 set up age-graded punishments so that as youths age they are held more accountable for their actions. Judges can sentence violent and serious offenders age 16 and 17 to five-year sentences while youth age 14 and 15 can only serve sentences of up to two years (Alberola and Molina 2006).
The OL of 5/2000 created a strict divide between punishments for minor and serious offenses. While it maintained that low-level offenses could never result in custody, the law restricted judicial discretion by requiring judges to impose minimum one-year custodial sentences for serious and violent youth offenders (Alberola and Molina 2003). Within six years of its passage, the Spanish government modified the OL of 5/2000 four times, making it more punitive by increasing the severity of sanctions for serious and violent youth offenders (De la Cuesta et al. 2010). However, during this time there was no increase in youth crime.
The OL of 5/2000 led to an increase in prosecutorial dismissals. Prosecutors dismissed an average of 40 percent of cases involving low-level and non-violent offending youths in recent years (De la Cuesta et al. 2010).
Spain passed the Organic Law of 7/2000 with the intention of responding to acts of terrorism. Part of the rationale behind passage of the new law was to satisfy the public beliefs that OL of 5/2000 was too lenient on youth offenders. The OL of 7/2000 increased the length of custody that judges can order for youths who commit serious offenses or terrorist acts (De la Cuesta et al. 2010). It also set limits such that judges cannot order a sentence that is harsher than what a prosecutor recommends. For minor and first-time offending youths, the OL of 7/2000 requires judges to issue a caution, restraining order, license suspension (hunting, driving), six months probation, or 50 hours of community service (De la Cuesta et al. 2010).
The OL of 5/2000 and the OL of 7/2000 increased the rate of both community and custodial sanctions. In 2000, judges ordered nearly 8,000 measures. Approximately 55 percent of the measures were community-based and nearly 19 percent were custodial. In 2002, of the 14,000 measures that judges ordered, more than 61 percent were community-based measures and more than 25 percent were custodial. The total number of custodial sentences more than doubled from 1,485 in 2000 to 3,512 in 2002 (Alberola and Molina 2006). One reason that both community-based sanctions and custodial measures increased between 2000 and 2002 is that judicial cautions decreased from 25 percent to 11 percent during that time (Alberola and Molina 2006). Overall, youth sentences became more punitive since enactment of the OLD of 7/2000.