Juvenile Crime and the Justice System in Sweden
4
Juvenile Crime and the Justice System in Sweden
Anna Hollander and Michael Tärnfalk
Introduction
Youth crime is very much a topic of discussion in public, political and legal debates both in Sweden and internationally. Youth criminality is problematic for many reasons. The literature on juvenile justice is largely concerned with offenders, but young people come to the attention of the justice system also as victims. For example, many of the runaways and other status offenders apprehended by the police are victims of abuse or neglect, which may be why they ran away (Chesney-Lind and Pasko 2004). This is rarely the main cause of the justice system’s involvement with youth, however (Finkelhore, Pascall and Hashima 2001). In Sweden as in other counties in Europe, throughout the last decade, children have been focused on as ‘offenders’ first and ‘children’, or children in need, second. It seems as if both the ideology, policy and practice is less interested in supporting children than accusing them, although this view is fundamentally against the principles on children in welfare and child protection legislation, and in the UN Convention on the Rights of the Child (Goldson 2000; Levin 1996; Muncie 1999; Proposition 1997/98:96). By contrast the UN Convention (Article 3) and the principle of the best interest of the child are of major importance for the social welfare system in Sweden in that this Article was implemented into the Social Services Act in 1998 and in the Compulsory Care of Young Persons Act in 2003 (Proposition 1996/97:124; Proposition 2002/03:53).
The extent of youth crime is difficult to measure. As no country is perfect in terms of its use of statistics, it is difficult to compare nations in terms of official statistics (Barberet 2001; Estrada 1999, 2001; Hofer 1998). The definition of what constitutes a crime varies between countries, as do the lower and upper age limits for juvenile status, police practices and differences in the administration of justice. There are also legal, linguistic and other cultural differences (Barberet 2001). Because of these differences in how the statistics are compiled, it is easier to compare trends than levels (Hofer 1998).
Youth crime trends are difficult to describe for the same reason. Whether juvenile crime is increasing or decreasing is a constant topic of debate in Sweden (Ahlberg 1992; Estrada 1999, 2001; SOU 2004:122). Some Swedish criminological studies show that youth crime has both increased and become more violent since the 1970s, whereas others suggest little change since the Second World War (Ahlberg 1992; Knutsson 1993; Tham 1995). In Sweden, studies on self-reported crime show no increase in juvenile crime since the 1970s (SOU 2004:122).
When we speak about youth crimes we mostly mean crimes committed by boys. Girls are as good as invisible in this context, a circumstance that has worked to the detriment of girls and young women; this situation creates difficulties in developing resources to address the problems girls experience (Chesney-Lind 2001).
For girls the most common crimes are shoplifting and theft. However, girls’ crimes are described as becoming more violent and more frequent (Chesney-Lind and Pasko 2004). The most common types of crime committed by boys in Sweden are pilfering, criminal damage, car theft, burglary, physical assault and minor thefts such as shoplifting. Although there have been only a few changes in the number and types of reported youth crimes, there have been important changes in the last 10–15 years in terms of the way the criminal justice system has responded to youth offenders (BRÅ 2000a).
In this chapter we give an overview of the youth justice system in Sweden, where different sets of legal rules are applied for persons under 15 years of age, between 15 and 17 years of age, and between 18 and 21 years of age. Our main focus is the 15–17 age group, which has received most attention in recent national strategies and legislation. In Sweden, co-operation between the social services and the criminal juvenile justice system is crucial throughout the whole legal process, from the preliminary investigation to the final decision in court. As King and Piper (1995) describe it, the welfare and justice perspectives have significance for everyone involved in the decision-making that concerns children. They also point out that both welfare and justice are dualistic concepts (King and Piper 1995). From a Swedish perspective, social services interventions can mean both voluntary (consensual) and coercive interventions/sanctions, and justice can mean both social and legal justice. Generally, when referring to the social services in this connection, it is mostly in terms of voluntary and care-orientated interventions, but recent changes in the criminal justice system have imposed new duties on social welfare authorities to provide ‘appropriate sanctions’ to handle youth offenders in a credible way (Proposition 1997/98:96; SOU 2004:122).
Welfare and justice
A long-standing theme in the debates on youth crime is the extent to which the sanction system should be the same for youths and adults. Diverting offenders from the criminal courts – for example, by issuing cautions – has traditionally been used for young boys and girls rather than for adults because the legal process itself is thought to harm children. It first became legally possible in 1902 to replace punishment for a crime by treatment provided by the social services authorities (Kumlien 1997). Since then there has been a recurrent conflict between proponents of welfare-orientated and formal justice-orientated approaches to reducing youth crime (Bramstång 1964; Levin 1996; SOU 1993:35). There is a long-standing principle, though, in the Swedish model whereby the courts are generally expected to surrender offenders between 15 and 17 years of age to the social services system. This is one of the fundamental pillars of the Swedish youth justice model and it has remained intact despite recent legislative reforms (Proposition 1962:10; Proposition 1979/80:1; Proposition 1997/98:96). The goal in both the Social Services Act 1998 and in the Compulsory Care Act 2003 is to provide protection, help and support for abused or neglected children as well as children with criminal behaviour and other social problems (Proposition 2000/01:80; Proposition 2002/03:53). The legal prerequisites of children in need, though, are almost the same today as they were in the first Child Act in 1902 (Bramstång 1985; Hollander 1985; Mattson 2002). It is the local social services board – a municipal, political, organ – that decides about care for children and families according to the Social Services Act. If consent to care is not given by the child’s guardians, or by the young person if the person is 15 years of age, the Compulsory Care Act can be applied. In such situations the local social services board applies to the County Administrative Court to decide whether the conditions set out in the Compulsory Care Act have been fulfilled (Hollander 1985; Mattson 2002; Proposition 1989/90:28).
Young persons who commit crimes can also be dealt with under the Criminal Code (CC), which includes more coercive measures for youth crime, such as custodial youth care, introduced in 1989. However the local social services boards will still have the main responsibility for young offenders (Proposition 1997/98:96; SOU 2004:122). Actual and proposed reforms during the last decade have aggravated the conflict between dealing with young people who commit crimes as ‘children in need’ or as ‘young offenders’.
As in many other western welfare states, the trend has been away from the welfare approach and towards more control, more punishment and the notion of ‘just deserts’ (Garland 1991, 2001; Goldson 2000; Littlechild 1997). The offence is given priority at the expense of the young person’s circumstances and needs. Strong demands have been made for the social services authorities to follow new punitive strategies and standards concerning young offenders (Proposition 1997/98:96; Proposition 2002/03:53). At the same time, the Criminal Code concepts of proportionality and consequences have been strengthened when deciding about interventions in relation to the crime rathert hen in relation to the child’s needs (Proposition 1997/98:96; SOU 2004:122).
The social services have long been criticised for being both too weak and too vague in their plans and interventions for young offenders (Proposition 1997/98:96; SOU 1993:35). Care and treatment used by the social services authorities have not been accepted as suitable in relation to criminal justice. On the other hand, it is stressed by the government that young persons who commit crimes shall be kept outside the criminal justice system for as long as possible (Proposition 1997/98:96; SOU 2004:122).
The swings of the pendulum between different values and strategies used by the social services authorities and the justice systems – care, rehabilitation or sanctions – make an interesting study, but the consequences for young offenders are not easy to discern. The changes are mainly driven by ideology and make little difference to the behaviour of young offenders. However, the changes can distance juveniles in trouble from ordinary child and family policy and social work, and separate them from the welfare domain. This consolidates the label of the ‘dangerous criminal child’ (Goldson 2000; Levin 1996).
Responses to youth crime
In Sweden, children under 15 years of age are not subject to legal sanctions (CC 1:6). The age of criminal responsibility is relatively high in Sweden compared with other countries in Europe where the age of responsibility varies between 7 and 18 years (Jareborg and Zila 2000). There are many contradictions in the reasoning behind the setting of different age limits and the determination of children’s competence and maturity (e.g. if young children actually have the capacity to understand that they have committed a crime, and the consequences of it) (White 2001).
Children, unlike adults, are perceived as lacking legal competence, and therefore particularly vulnerable and in need of special protection. This view of children as being innocent and in need of protection is, however, of recent origin, which indicates that our understanding of children is historically and culturally relative (Hollander 1998). Children’s competence is also very much a question of their lack of power in society (John 2003). Variable competence is an idea towards which the varied legal treatment of children might aspire (Minow 1986).
It seems more reasonable to interpret children’s competence according to their life conditions in that, for children as for adults, competence is a mutual question of how well one manages life. The great majority of criminal or violent children come from problematic social environments (Chesney-Lind and Pasko 2004; Garbarino 2000). In ascertaining a child’s legal competence, it is a delicate task to find a balance that takes into account the child’s life situation, the crime committed and his or her need of protection and care.
Proportionality and legality
In the criminal justice system the principle of proportionality and the concept of culpability have taken on added importance as a result of reforms introduced in 1989 to criminal policy. These were based on the principle that the sentence must reflect the severity of the crime: the more reprehensible the crime, the harsher the punishment or sanction (Proposition 1987/88:120). Since 1999 this principle has been applied to a greater extent in the youth justice system as well, with the aim of bringing sanctions towards young people who offend more in line with the justice system for adults (Proposition 1997/98:96; SOU 2004:122). The principle of legality is also of great importance (CC 1:1). All reactions to a crime must be grounded in law and it is the prosecutor’s task to substantiate the criminal charge before a court of law (Wennberg 2000).
This has always been the case but renewed emphasis on legality has highlighted the ambiguity of the role of the local social services. They are expected to prepare a report about the young offender to the prosecutor before the decision is made in court about both facts and, if proven, consequences (Proposition 1997/98:96). This means that the social worker has to suggest a plan for the young person based on an assessment of her/his situation and needs before it is decided if he or she is guilty of the crime. It is not unusual that the young person denies any involvement in the crime he or she is accused of.
Youth justice sanctions
Sweden does not have special youth courts. All cases of crime by young people aged 15 years and over are prosecuted in the same criminal courts used for adults, in a similar legal process. There are five sanctions that can be imposed for young offenders who have been proved guilty:
1.fine (CC 25)
2.conditional sentence (CC 27)
3.probationary sentence (CC 28)
4.imprisonment (CC 26) and
5.youth custody (CC 31:1a).
These represent a hierarchy, with fines expected to cover the least serious offences, while probation and conditional sentences are seen as alternatives to custody.
Youth custody was introduced in 1999 for young people between 15 and 17 years of age. It represents a combination of punishment and care. Usage depends on the severity of the crime, yet it is carried out with treatment aims under the social services, which retain the main responsibility for the young person and run the closed institutions according to the Enforcement of Custodial Youth Care Act 1998 (603). The minimum time juveniles may serve in closed care is 14 days, and the maximum four years.
The government intended this sanction to be used as sparingly as a sentence of imprisonment would be. In the 1999 reform, youth custody was made equivalent to imprisonment and is thus considered an equally strong punishment (Proposition 1997/98:96). Evaluation of youth custody has shown that it has been used more frequently than expected, instead of both imprisonment and a probationary sentence. This has been explained as partly due to changes in the types of crime committed by young people but also as a result of a policy shift towards greater use of institutions (SOU 2004:122). A major dilemma is that this form of closed institutional care is also a form of treatment/sanction within the social services system (Compulsory Care Act, Section 12). The Compulsory Care Act can be applied because of a young person’s criminal behaviour but also because of drug abuse and other situations that place the child’s health and development at serious risk. Consequently, young people may be placed in youth custody not only by a criminal court but also by the social services board or an administrative court.
Hence, young people in closed institutional care have come there via both criminal and welfare procedures. This results in confusion for the children as well as social services as to the balance of care functions and punishment embodied in the institutional practices (Tärnfalk 2001).
Ironically, youth custody was introduced partly due to Sweden’s ratification of the Child Convention with the aim of avoiding the imprisonment of children alongside adults. At the same time, it was intended to create a more credible criminal sanction for the courts compared with the social services’ interventions in cases of more severe crime. Young people under 18 years of age can be sentenced to prison only under very special circumstances and their age alone warrants a less severe sentence than for adults (CC 29:7; CC 30:5). In Sweden the maximum punishment for crimes is life imprisonment, but for convicted offenders under the age of 21, the maximum sentence is ten years’ imprisonment (CC29:7; CC30:5).
Special care measures
A court considering any crime committed by a young person aged 15 and over can impose measures of special care instead of a criminal sentence (e.g. fine, probation, custody). This means that the court can decide to give the social services authorities the responsibility to provide care or treatment for the convicted young offender. This decision can be made only if the social authorities have submitted a written report to the prosecutor or the court describing what interventions will be carried out if the young person is placed in their care. The Criminal Code requires the court to determine the nature and length of the social intervention according to the concept of culpability, the severity of the crime and the convicted person’s prior criminal record, if any (CC 31:1). The suggested intervention can be compulsory or voluntary institutional care or supervision. If the court regards the intervention as insufficiently severe, it can combine this measure with a fine or with youth service. Youth service is a form of programme with a restorative or rehabilitative purpose (CC31:1).
From the government’s perspective, this sentence of surrender to special care challenges the social services authorities on the one hand, and the prosecutors and courts on the other, to collaborate in ways that meet the young person’s welfare needs while also addressing the offence with an element of punishment or reparation (SOU 2004:122).
Stages in handling youth crime
From the moment a crime is reported until the final decision has been taken, there is a long chain of events. Increasingly, policy-makers stress the importance of a prompt response so that young people can more easily see the link between the law-breaking incident and the associated decision.
No action
The police officer, as the crime investigator, has the option of not reporting the crime to a prosecutor if it is considered ‘less serious’ and if the sanction would probably be a fine. The most common crime where this option is used is shoplifting. However, most cases remain unsolved because of a lack of investigative resources. In consequence, the number of unsolved shoplifting cases has increased in the last ten years (Lindström 1998).
Preliminary criminal investigation
The preliminary investigation is an important element in both care and protection and the youth justice system (Proposition 1997/98:96; Clevesköld and Thunved 2001). The prosecutor has a duty to complete the criminal investigation within six weeks, and sooner if possible. If the investigation is complicated because of the severe nature of the crime, or if there are many suspects or different crimes are involved, the time limit can be extended at the discretion of the chief prosecutor (Provision Act, Section 4). There are special demands on the investigator in youth cases to take account of the child and family circumstances (Section 2, 1st LUL (Act on Certain Provisions Concerning Youthful Offenders); Proposition 1994/95:12). In practice, though, few prosecutors have received education or training about children or children’s issues.
Both the child’s parents as custodians and a social worker are to be informed about the investigation and they are expected to be present at the child’s hearing (Provision Act, Section 5–7). From a welfare perspective it is important that both the parents and a social worker are informed at an early stage so that they can participate actively in the investigation and gain better knowledge of the process. The aim of the regulations is to ensure that they assume responsibility for the child and lend their full support (Provision Act, Sections 5–7).
The child should be asked about his or her attitude towards the parents being present at the child’s hearing, although there must be a very strong reason not to allow them to be present. There are situations, however, when parental participation can be prohibited by the investigator – for example, where there is a severe conflict between parent and child, or if the parents attempt to impede the investigation (Clevesköld and Thunved 2001). The child cannot stop a social worker being present at the investigation, as he/she is obliged, by law, to be there (Provision Act, Section 5). There are very strong restrictions on taking a child between 15 and 17 years of age into custody during a criminal investigation (Provision Act, Section 23). In such situations the social welfare officer has the opportunity to intervene on the child’s behalf (Compulsory Care Act, Section 6). If the case goes to trial, the child has the right to a lawyer.
The social welfare officer’s report
The social services are, as mentioned above, obliged to submit a report concerning the young person to the prosecutor before a decision is taken as to whether or not to prosecute. The report must provide concrete information about the plans for the young person (Proposition 1997/98:96; Provision Act, Section 11). This has a dual function. From a criminal justice perspective, it is important that, by means of the statement, the court is able to foresee the type of intervention being planned and the relation it bears to the crime. From a social welfare perspective, it is important that the child’s needs have been properly assessed; it is the young person’s current situation and prognosis for development that must be taken into account, not the crime itself.
Actions by the prosecutor
When the investigation has been concluded the prosecutor must choose between three types of decision:
1.no legal action
2.summary penalty, and
3.prosecution.
The first type of decision may occur if the crime is considered less serious and the juvenile has confessed. A decision not to press charges may also be accompanied by the imposition of a fine and registration of the child for the offence. Prosecution applies when the crime is more severe or the juvenile denies responsibility for it (Provision Act, Sections 15–17).
During the last decade, there has been a substantial change in the types of decisions made by prosecutors with respect to young people. Children are brought before criminal court twice as often today, but the option of ‘no prosecution’ has decreased by nearly 50 per cent. During the same period the use of surrender to special care by the court has increased from 35 to 54 per cent of all court decisions, and is now the most common sentence for young offenders between 15 and 17 years of age (BRÅ 2000b, Sweden’s official crime statistics). One reason for this increase is that the social services are more focused on the crime and therefore suggest interventions seen as more acceptable to the prosecutors and the courts. Research also shows an appreciable rise during the 1990s in the number of children taken into custody by the local services boards and the administrative courts (Lundström and Vinnerljung 2001; SOU 2004:122).
Protection of the child – protection of society
One of the aims of the Swedish social welfare reform of 1982 was to ensure that interventions for young offenders would be motivated solely by the child’s need for care. The intentions of the legislation introduced then were to change the earlier emphasis on repression and the protection of society that had earlier dominated child welfare legislation concerning young offenders (Proposition 1979/80:1). Actions taken for the sake of the child’s care and protection may be an indirect way of protecting society because a child who has committed a crime can still be taken into custody compulsorily. Nevertheless, while protecting society may be an effect, it is not itself the aim of child welfare legislation (Bramstång 1985; Proposition 1979/80:1; Clevesköld and Thunved 2001).
By contrast, the 1990s reforms were passed to bring the sanction system for young offenders aged 15 and over more in line with that for adults, while the existing law remains applicable in the case of younger offenders. One tension is that the criminal legislation focuses on events that occurred in the past, whereas child welfare legislation focuses on the child’s current situation and prognosis for development in the future. This situation creates a difficult role for social workers, prosecutors and the courts when dealing with young offenders. The government’s official aim is to encourage more consultations, co-operation and co-ordination between the social services and the juvenile justice system in order to bring about a common strategy that ensures their public responsibility for young offenders has been fulfilled. However, the youth justice system plays the dominant part in this situation and the UN Convention, ratified by Sweden in 1990, has not changed the situation for young offenders in that respect (Proposition 1997/98:96; Proposition 1999/00:137; 2002/03:53; SOU 2004:122).
Conclusions
The youth justice system encompasses a broad range of perspectives on both welfare and justice, and these vary from jurisdiction to jurisdiction. In Sweden, where the social welfare system is deeply integrated in the criminal justice system, it is difficult to separate these considerations. The debate among lawyers, criminologists and social workers in Sweden has for a long time been concerned with divergent approaches of the social welfare and justice systems. Today the conflict between them is more evident and more complex than ever before. There is an inherent conflict between the different systems in terms of how to deal with young offenders. This became evident from a recent study on how prosecutors and judges perceive the option of surrendering young offenders to special care by the social services. The majority of both prosecutors and judges assumed that, in the statements submitted by social workers to the prosecutor, due regard had been paid to the principles of proportionality and culpability in the planning of interventions for young people prosecuted for criminal offences. The implication is that the social workers’ interventions should be in proportion to the culpability of the crime (BRÅ 2002). This implies that the social welfare system should correspond with the criminal justice system both in judging the severity of the crime and in imposing the sentence. This highlights the difficulties involved in correctly apprehending what are the responsibilities of the social services system when dealing with young offenders. Social work plans therefore have to combine responses to welfare need with judgements about appropriate sanctions for the crime. The difficulty of reconciling these considerations is exacerbated by the timing of reports, as the report made by the social welfare officer is submitted to the prosecutor before the suspect’s guilt has been proved. If guilt has not clearly been proven, how can the report reflect the severity of the crime?
By intertwining the social welfare with the criminal justice system it becomes more difficult for all involved to decide on what grounds interventions should be made. There is an apparent risk that interventions are generated from the crime rather than from the needs of the child. There are truly challenges facing welfare and justice research to develop theories and methods that could be credible options in the cases of children who commit crimes.
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