We have already mentioned that one of the premises of the Convention and also of the JCA is the promotion of deinstitutionalization by recourse to open regime measures. In order to confirm this is being done, it is necessary to verify the open regime measures legally established to avoid custody, and the use being made of the different regimes of custody. The next two sections describe the sentences judges may apply and their application in recent years. To this end, we have differentiated between community sentences and custodial sentences.
Community or noncustodial sentences realize the principle of deinstitutionalization in that they propose working with juveniles in their familiar environments, with their family, at their educational institutions and with friends. The greater the range of measures established, the greater the options the judge has to decide in accordance with the seriousness of the offense and according to the juvenile’s circumstances. The measures provided for in the JCA are as follows:
Probation: Young offenders must be subjected to the supervision and guidance of a ‘Probation Officer,’ within a time period that has been decided by the judge, usually not exceeding 2 years.
The probation officer’s role is of assistance, guidance, and care. These officers must promote the juvenile’s education and they work with parents or guardians, using community resources as much as possible. The main aim will be to improve the juvenile’s skills, abilities, and attitudes. The probation officer is appointed by the court and may be given instructions by the judge for their activities. They must report on the behavior of the juvenile at intervals specified by the judge, and they must inform the judge of any change in behavior.
While being on probation, the judge can require the juvenile to comply with the following conditions: attend school, participate in a training course (i.e., a social competence training or a professional course, etc.), abstain from going to specific places of public entertainment, obey the rules of the institution where the juvenile lives, as well as other obligations that the judge may impose that do not violate the juvenile’s constitutional rights.
Community service: applicable in those cases where young offenders have infringed the rights or well-being of the community. In order to enhance the educational factor, the nature of the activity should be related to the type of crime committed or to the damage inflicted to the community. If possible, the activities will be done during the offender’s leisure time and with the consent of the juvenile.
Socioeducative measures: The young offenders must do some educational tasks in order to achieve their rehabilitation. This measure attempts to satisfy some needs which are delaying the juvenile’s full development. The measure can be the obligation to attend a community activity that already exists or to create a specific activity for each specific case.
Community therapeutic treatment: Juveniles must periodically attend a center to follow a specific plan to treat their problem, which could be drug related or psychiatric. In this case it is necessary to have the juvenile’s consent.
Attendance at a ‘Day Center’: Young offenders are diverted to community centers to perform activities to improve their social competence. This measure attempts to provide a structured environment for young offenders. The educational activities try to compensate for family deficits. The young offenders continue to live at home.
Living with another person, another family, or educative group: provide the young offender with a positive socialization environment. The person, the family, or the educative group offer him/her the possibility to live in a family-like environment that tries to develop pro-social and affective responses in the juvenile.
Although the JCA has extended the community measures available to the juvenile court judge, as shown in Fig. 20.7, probation continues to be the most frequently adopted measure. Legal and social agents continue to feel that probation offers the greatest possibility of adapting the sentence to the psychosocial circumstances of the juvenile, bearing in mind the options offered by public and private resources in each autonomous community. Community service is the next most frequently applied measure, due to its implied connection with the offense
436 Esther Fernandez-Molina et al.
Figure 20.7. Community measures. Source: Spanish Public Prosecution Service.
committed. However, it is decreasing in importance due to the difficulties in its set-up and supervision. It can also be seen that a group of other measures has also grown as autonomous communities have developed the measures established in law.