In Germany, It’s Hard to Find a Young Adult in Prison

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Kreuzberg, Berlin. Photo by westport 1946 via Flickr

Germany is probably the “grandfather” of special treatment for emerging adults in all of Europe. In 1953, German law was changed to allow youth up to age 21 when they committed their offense to be tried as juveniles.

Responding to the “fatherless generation” of young people following World War II, German leaders decided not to institutionalize youth in great numbers; but rather to rehabilitate and shield them from some of the harsher aspects of their adult system.

But the most far-reaching changes have emerged slowly.

Initially, the percentage of youth ages 18, 19 and 20 retained in juvenile court hovered at around 20 percent, while the rest were sentenced as adults. That was similar to today’s figures in the Netherlands and Croatia—the two other nations we visited on our European tour.

But steadily, over the years, as German judges and prosecutors gained more faith in this approach, they used the juvenile system more and more frequently for emerging adults who had committed more serious offenses.

By the time we visited, 66 percent of emerging adults who ran afoul of the law were sentenced as juveniles, including over 90 percent of those who had committed homicide and rape. The highest rate of sentencing these young people as adults was for traffic offenses, which often result in fines.

Under the juvenile law, young people can receive sentences of up to 10 years. But they rarely do. Fewer than one percent receive sentences of five to 10 years; fewer than five percent receive sentences of between three and five years.

Parenthetically, Germany’s adult system is still a moderate one by comparison to the US, both in terms of their incarceration rate (76 per 100,000 vs. 693 per 100,000) and prison conditions.

Youth under age 14 are not considered criminally responsible and, prior to age 18, youth can never be tried or sentenced under adult law. This higher minimum age is not unusual in Europe. Age 12 is the international standard and is the Dutch age of responsibility, while in Croatia, the minimum age is 14 like Germany.

Interestingly, the Massachusetts minimum age will rise to 12 if pending legislation (see below) is signed by Gov. Charlie Baker, making it the highest minimum juvenile court age in the US.

This combination of factors essentially pushes the entire German youth justice system upward to be more of an older juvenile/young adult system, with younger youth either diverted or handled by lighter touches administered by social services.

Neustrelitz prison

The working farm in Neustrelitz youth prison, Photo courtesy the Ministry of Justice, Mecklenburg-Western Pomerania

For example, in one of the youth prisons we visited, the vast majority of youth were older than 18. While it is technically possible for 14- or 15-year-olds to be sentenced there, everyone we interviewed said they are a rare sight. Their mixing with the older adolescents was not considered a problem, even among the youth we spoke to.

The German system prioritizes diversion and minimized interventions, mediation and restorative practices, and educational community sanctions. Community service and direct payments can be geared to repaying victims through labor or even direct compensation. Deprivation of liberty is a last resort.

In a hearing our delegation witnessed, a young adult with several prior involvements with the law fired a realistic-looking starter pistol while drunk in the Berlin subway system on New Year’s Eve around 15 months ago. The courts attempted mediation with the victim—a woman who was nearby when he fired the shot which halted her train—but she had moved her residence and was unavailable.

This took time, during which the youth was at liberty getting his life together and staying on the straight and narrow.

The victim attended the hearing, a combination of trial and sentencing, during which she testified. The youth had no representation. In cases unlikely to result in youth imprisonment, representation is not required.

The youth was convicted and fined several hundred Euro; the judge took his income into account in setting the fine. The victim was offered, but turned down, 100 Euro in compensation for pain and suffering. By all appearances, she harbored no ill will towards the youth being tried; they actually entered the courtroom together chatting in a friendly manner. Instead of directly compensating the victim, the judge ordered a portion of the youth’s fine to go to a victims’ compensation fund.

The mission of the German system is clear.

Children (under 14 years), juveniles (14-17) and young adults (18-20) have the right to support and education and to be protected in their personal development by the child and youth welfare agencies. Youth services are established at the local community level, where priority is given to private non-profit organizations which must be accredited by the state-level youth welfare departments of the ministries of social affairs⸺analogous to our state child welfare agencies.

The data and relevant legal codes above were provided to us by our gracious host, Prof. Frieder Dünkel of Greifswald University. Dr. Dünkel arranged meetings with judicial, correctional, legal and community officials and was our guide, interpreter and source of information throughout the trip.

He also co-authored an excellent article about European approaches to working with emerging adults, a must-read for anyone interested in this subject.

The Neustrelitz Youth Prison

The German system’s educational and rehabilitative ethic also holds true when youth are incarcerated. According to Germany’s Youth Courts Law, when a youth is confined, it should “arouse the youth’s sense of self respect,” “be structured in an educational manner” and “help the youth to overcome those difficulties which contributed to his commission of the criminal offense”.

Neustrelitz

The Young Offender Institution of Neustrelitz (Prison) Photo from the Ministry of Justice, Mecklenburg-Western Pomerania

The rehabilitative ethic of Germany’s youth system was on full display when we toured the Neustrelitz Youth Prison accompanied by Joerg Jesse, Director General of Prisons and Probation for Mecklenburg-Western Pomerania.

Director General Jesse can be seen on this 60 Minutes segment discussing the adult prisons he manages.

Staff there and throughout the German system are required to undergo two years of training prior to working as correctional officers.

As noted above, the population of the facility was the rough equivalent of a US prison incarcerating young adults, rather than a juvenile facility, even though the youth in it were all incarcerated pursuant to juvenile law. Eighty-five percent of the youth were older than 18 and their average age was 20.

Since it’s not easy for a youth to get a prison term in Germany, young people tended to be incarcerated for more violent offenses than youth in U.S. juvenile facilities. Care needs to be taken in cross-national comparisons; violence, particularly gun violence, is far less prevalent in Germany than in the US, for example.

The staff were highly professional, and treatment of the young people was very much normalized, particularly when compared to US adult prisons where many of these young people would likely be if they similarly offended in America. The level of vocational programming was astonishing, with professional woodworking, metal working, culinary instruction and farming (including award-winning rabbit husbandry) dominating the youths’ daily programming.

The level of freedom offered young people was extraordinary by US standards. For example, youth in the facility served us a tasty meal shortly after arrival with real knives and forks. Sharp equipment in the vocational shops was everywhere; and nowhere was there the sense of fear and heavy correctional hardware, such as pepper spray, solitary confinement, and strip searching, that dominates the US correctional landscape.

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Room/Cell at Neustrelitz Photo courtesy the Ministry of Justice, Mecklenburg-Western Pomerania

Clearly, not only were the Germans incarcerating fewer of their young adults, but they were incarcerating them in better conditions than our adult systems.

What was remarkable to me was how much these predominantly young adult facilities resembled some of the more well-run juvenile systems in the US. The Massachusetts system, for example, has a long history of running decent and rehabilitative juvenile facilities, reserving secure care for youth with the most serious offenses and a continuum of community programs for those with less serious offenses/prior records.

Massachusetts Department of Youth Services (DYS) Commissioner Forbes, a member of our delegation, informed us that the state had about 100 youth in locked secure custody—in a state of 6.9 million—mostly in small living units, at the time of our delegation.

Having toured the Massachusetts system and Neustrelitz, the culture and rehabilitative ethic were strong in both. I have little problem imagining DYS being able to work with emerging adults in Massachusetts either in community programming or secure care, especially since they already have youth up to age 21 in their custody. Having the capacity to beef up their vocational programming would be important, as the numbers of older youth would grow.

Final Thoughts

Emerging adults are more immature than their older counterparts. They’re greater risk-takers, less future-oriented, and are more volatile in emotionally charged settings, especially around their peers. Putting further strain on their developmental immaturity, adult roles that help young people, particularly young males, mature out of criminality–through marriage and steady work–are available much later than they were for previous generations; certainly much later than they were for my generation in the late 1970s.

About one out of every five people entering US prisons are young adults. They have the worst outcomes. Racial disparities in prison roles for them exceed even the outrageous disparities that plague U.S. incarceration overall.

This is a population that needs special attention.

Perhaps that’s why the Council of Europe recommends to its constituent nations:

Reflecting the extended transition to adulthood, it should be possible for young adults under the age of 21 to be treated in a way comparable to juveniles and to be subject to the same interventions.

Several jurisdictions, including and perhaps especially Massachusetts, are looking into special treatment for emerging adults when they break the law, ranging from raising the juvenile court age; to special facilities, courts and caseloads; to special programming.

Clearly, there are substantial cultural differences between the US and Europe, just as there are substantial differences between US states. No one expects to go to Croatia, Germany and the Netherlands and borrow their systems wholesale, any more than people expect the systems in Massachusetts, Texas and Wisconsin to be the same.

But that doesn’t mean that such delegations have nothing to teach their visitors.

When we debriefed at the end of our journey and participants were asked to give their thoughts on what we had witnessed, one respondent said simply, “possibilities.” By this, he explained that while no system could be adopted whole cloth, the tour had opened his eyes to possibilities that we need to explore for this population, a population that is both challenging and full of opportunities.

I hope this series has opened up similar possibilities to those who have read through it. I’m happy to answer any questions, if I’m able.

A Note About Massachusetts

When Lael Chester and I completed our three-country tour, we did so with a delegation of 20 representatives from the Massachusetts legislature, judiciary, prosecution, defense, law enforcement, executive branch, youth corrections, advocacy and treatment community.

Interestingly, they are busy positioning the Commonwealth to become the “grandmother” of emerging adult reforms in the US, although they’re vying with several other jurisdictions in doing so.

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Visiting Massachusetts delegation with Judge Tobias Kaehne, Director of the Berlin Youth Court, at the courthouse in Berlin: Photo courtesy the Justice Lab at Columbia University

This was as smart, hard-working and decent a group of officials as one could ask for. They were and are involved in innovating with this population of young people in myriad ways. Since 2015, after the Harvard Kennedy School Program in Criminal Justice issued a report I co-authored with Bruce Western examining the US response to emerging adults, Roca’s CEO Molly Baldwin and I have been convening key stakeholders to foment innovation in this space, many of whom came on the Germany trip.

Also in 2015, MassINC issued a report on emerging adults and held a forum I spoke at along with Sen. Will Brownsberger, who co-chairs the Judiciary Joint Committee. Senator Brownsberger joined us in Germany; check out his excellent blog post about Germany’s approach. The Senator and I have had ongoing conversations about this population each time we’ve run into one another since the MassINC event.

A host of potential reforms have flowed from—or at least corresponded with—this vibrant set of convenings, as well as from Mass leaders’ own creativity:

  • the Chief Justice of the Massachusetts Supreme Judicial Court Ralph Gants announced at a MassINC event last year plans to create specialized court sessions in the District Courts for emerging adults (Paula Carey, Chief Justice of the Mass Trial Court, joined the Germany delegation);
  • Middlesex County Sheriff, Peter Koutoujian recently opened a specialized living unit in the Billerica House of Correction in consultation with the Vera Institute of Justice, and Suffolk County Sheriff Steve Tompkins (who was on this trip) is also planning to open a specialized unit in his jail later this spring; and
  • The non-profit Citizens for Juvenile Justice (whose executive director, Naoka Carey, joined the trip) has a state-wide advocacy campaign geared towards raising the age of juvenile court to 21. Meanwhile, the Commonwealth’s Department of Youth Services, or DYS, (whose Commissioner, Peter Forbes, participated in the trip) already allows youth who “age out” to voluntarily continue receiving services beyond the expiration of their terms. Programs like Roca and UTEC (Yotem Zeira and Gregg Croteau, respectively, represented those organizations on the trip) exclusively service an emerging adult population.

This year, the Massachusetts Legislature, six of whose members joined the Germany tour, grappled with several bills to raise the age of juvenile court to either 19 or 21. Literally the day before leaving for Germany, a conference committee of the Massachusetts House and Senate announced a 121-page criminal justice bill, the most sweeping reforms in Massachusetts in decades, which they passed overwhelmingly the week after returning from Germany!

While raising the upper age of juvenile court past 18 did not make it out of committee (although it had passed the Senate), the committee’s provisions affecting emerging adults included allowing youth up to age 21 to expunge their felony and misdemeanor records if they remain crime-free for 7 or 3 years, respectively.

The committee also formed a task force to study and make recommendations specific to emerging adults – an age cohort with whom a recent report found the Massachusetts criminal justice system has its worst outcomes (for more about that bill, check out this Boston Globe editorial which ran while we were in Germany and which mentions the trip).

To say that this group was focused on this issue is a gross understatement.

Vincent Schiraldi

Vincent Schiraldi

Vincent Schiraldi is senior research scientist at the Columbia University Justice Lab. He has served as New York City Probation Commissioner and director of juvenile corrections for Washington, DC. This is the final installment of a series of columns reporting on a trip taken with his colleague to explore the innovative ways three European countries–Croatia, the Netherlands and Germany–respond to offending by emerging adults. To read his earlier columns, please click here. Readers’ comments are welcome.