CUSTODIAL RULES FOR JUVENILES (DETENTION, PRISON, MIXING JUVENILES WITH ADULTS)
Youth imprisonment covers the age groups of 14-17-year-old juveniles, 18-20-year-old young adults and adults aged 21-24 who were sentenced by juvenile courts as juveniles or young adults. The German juvenile justice legislator does not follow a clear separation of juveniles and (young) adults as required by the CRC and other international standards. The reason for this is that German juvenile courts deal with 14- to 20-year-old offenders. If they impose a youth prison sentence, it is felt that it would be better to keep the young adult inmates within the juvenile prisons in order to prevent negative effects of prisons for adults. The internal structure of youth prisons in Germany, however, provide for separate living groups in different buildings. Often, special living groups for inmates under 18 are organized.
As mentioned before, the duration of sentences to youth imprisonment ranges from 6 months to 5 years. In serious felony cases or in cases involving young adult offenders, the maximum limit is 10 years. The average sentence to be served is between 1 and 2 years; therefore, the average stay in a youth prison is slightly more than 1 year.
The legal situation for young prisoners changed at the beginning of 2008. Before 2008 only a few general legal provisions existed in the JJA and in the Prison Act for adult prisoners. There had not been a differentiated legal framework covering the legal rights and duties of young prisoners. The Federal Constitutional Court (Bundesverfassungsgericht) outlawed this missing primary legislation as being unconstitutional, as in Germany any restriction of fundamental human rights has to be based on regulations in law. Administrative rules are deemed an insufficient basis. The Federal Constitutional Court obliged the legislators of the Federal States to pass primary legislation before the end of 2007. In September 2006, a general reform of the legislative competences came into force, transferring the competences for prison legislation to the Federal States (“Lander"). The new State Laws in the Federal States vary to some extent and express different political orientations on what is to be seen as the primary goal and the basic principles of youth imprisonment, and what are viewed as being the most promising concepts of rehabilitation. Nevertheless, there is a strong consensus that the organization of youth prisons, even more than in adult prisons, must be oriented towards rehabilitation and education. Furthermore, the unanimous opinion is that youth prisoners shall be accommodated in small living groups and individual cells during the night. All youth prisons should also provide a variety of school and vocational training programs, special (social) therapeutic units, and a system of progressive preparation for release (including leaves of absence, early release schemes and continuous care and aftercare). Although the competence of youth prison legislation has been transferred to the Federal States, legislation concerning prisoners’ complaints rights and procedures are still Federal Law. The reform law of 13 December 2008 brought major improvements, guaranteeing juvenile and young adult inmates an oral hearing as well as regular legal advice when complaining to the court.
The actual situation in German youth prisons can be described as follows: In 2014, there were approximately 5000 young people aged between 14 and 25 in youth custody (31 March 2014: 4910), 181 (or 3.7 %) of them female. Further 1908 (of them 51 females) had been sentenced according to the JJA, but were transferred to adult prisons because of reaching the age of 25 or due to better treatment offers in adult prisons after reaching the age of 18 (see § 89b JJA; they are counted as “youth prisoners” in the following Fig. 15.6).
Youth imprisonment rates differ considerably across the Federal States. They are higher in the East, partly because there was more violent crime in the eastern regions. The case of Schleswig-Holstein is interesting in this respect: the imprisonment rate there (2015: 36 per 100,000 of the 14-25 age group) has been reduced to a level less than half of that of many other states; in neighboring Mecklenburg- Western Pomerania, for example, it was 120 per 100,000 (see Fig. 15.6 below). This reflects an explicit criminal policy of opting for different types of sentences and alternatives to custody.
In the last 10 years, a reduction in the rates of youth imprisonment has been observable in almost all Federal States (see Fig. 15.6). With the exception of Berlin an even stronger decrease can be seen for the rates of juveniles and young adults in pretrial detention. The overall pretrial detention rate for 14- to 20-years-old alleged young offenders fell from 47 per 100,000 of the age group in 2000 to 2013 in 2014 (= -51.6 %>). The youth imprisonment rate altogether decreased by 21 % in the last 5 years since 2010, which is to a large extent the result of a strong decline of youth offending rates, in particular violent youth crime.
Strictly speaking, youth custody in Germany does not necessarily imply prison for juveniles: very often, it is prison for young adults aged over 18. This reflects the fact that the system of criminal law for juveniles includes young adults aged 18-20 into the jurisdiction of juvenile courts. As a result, youth custody facilities house many young adults aged up to 24, who are serving custodial sentences. Only 9.4 %> of the total population of 5518 youth prisoners (31 March 2013) were “real juveniles” aged 14 to 18. 90.6 %o of “youth” prisoners in Germany in 2013 were young adults between 18 and 24 years of age (46.2 %o aged 18-20, 44.4 %> 21-24, see also Dhnkel 2011a: 600; Ostendorf 2016: 21 f.).
Most young detainees are serving sentences for offences involving violence: in 2013, the figures were 23.6 %> for bodily harm/assault; 32.4 %> for robbery; 3.8 %>
Figure 15.6. Young offenders in German juvenile prisons. Source: Federal Statistical Office (Ed.): Strafvollzugsstatistik 1992-2015 (own calculations).
Figure 15.7. Youth prison population in Germany, 1980-2013, according to the type of offence. Source: Federal Statistical Office (Ed.): Strafvollzugsstatistik 1980-2013 (own calculations).
for homicide; and 4.1 % for sexual offences. Drug-related offences including drug trafficking accounted for 3.6 %>. These figures have changed considerably over the last 25 years (less simple property and more violent offenders, see Fig. 15.7).