“Do you want to learn how to lock up as many children as possible?!” This was the rather cynical response that I heard on several occasions when I told people – both Dutch and American – that I was planning a research trip to the United States to learn about their juvenile justice systems and to gain inspiration for my doctoral research on the pre-trial detention of juveniles in the Netherlands. Of course, there is a legitimate reason for this. The United States is still the leading country in the world by far when it comes to the detention of juveniles; on any given day approximately 70,000 (!) youths are detained in a facility in the United States (Aizer & Doyle, 2013).
At the same time, there are also lots of efforts to reform juvenile justice systems in order to decrease juvenile detention rates in the United States. A prime example is the Annie E. Casey Foundation’s Juvenile Detention Alternatives Initiative (JDAI), which has over 200 reform sites throughout the entire country. In fact, many of the JDAI reform efforts happen to be quite successful.
Therefore, the Dutch juvenile justice system might very well benefit from the JDAI reform strategies for reducing juvenile pre-trial detention. After all, under the case law of the European Court of Human Rights the Netherlands is obliged to safeguard that the pre-trial detention of juveniles is only used as a last resort and for the shortest possible period (Korneykova v. Ukraine, §44). So, I went to the United States last month.
My Research Trip to the United States
During my three-and-a-half week stay in the United States in September 2013, I visited five, so-called ‘high crime’ cities in the Eastern part of the country – Chicago, New York City, Philadelphia, Baltimore and Washington DC – to learn about their response to juveniles in conflict with the law, and more particularly about the use of (alternatives to) detention. In order to do so, I visited youth courts, juvenile detention centers and projects meant as alternatives to juvenile detention, such as community-based shelter homes and evening reporting centers. In addition, I attended several meetings and a symposium on juvenile justice reform at Northwestern University School of Law, Chicago.
So, what have I learned? More importantly, which findings could be useful for the juvenile justice system in the Netherlands? I will limit myself to three main ‘lessons’.
Lesson 1: Controlling the Front Gates; Objective Decision Making
One of the main objectives of the JDAI reform efforts is obtaining juvenile pre-trial detention reduction through what they call ‘controlling the front gates’. In other words, JDAI aims at safeguarding that only high-risk juveniles – in terms of reoffending or absconding – in severe cases will enter the juvenile detention system.
An important strategy to achieve this, is by replacing subjectivity and inconsistency with objective decision making at the front gate. This implies that the outcomes of the risk assessment at the detention intake (i.e. immediately after the arrest) are leading in the intake officer’s decision on whether a juvenile should stay in custody until the first pre-trial detention court hearing.
The Dutch juvenile justice system does not have a similar objective, risk-based filter at the front gate. According to Dutch law, juveniles can be remanded in custody until the first pre-trial court hearing when the (assistant) prosecutor decides this is ‘in the interest of the (police) investigation’ (Art. 57(1) CCP). In my view, this rather vague and subjective criterion does not, as such, sufficiently safeguard the human rights principle that the pre-trial detention of juveniles should only be used as a last resort.
Therefore, JDAI’s objective, risk-based approach to juvenile detention admissions can be a source of inspiration. In fact, the recently introduced Landelijk Instrumentarium Jeugdstrafrechtsketen – and particularly its pre-selection risk assessment tool – could provide new opportunities for a move towards a more risk-based approach in early pre-trial detention decisions in Dutch juvenile justice.
Lesson 2: Alternatives to Pre-trial Detention
As part of JDAI reform efforts, several juvenile justice systems in the United States have developed an extensive continuum of alternatives to pre-trial detention based on a juvenile’s risk level, ranging from a placement in a shelter home or home detention for high risk youths to community monitoring by probation staff for mid and low-risk youths. This continuum implies that the court should always use the least restrictive alternative to detention that is considered appropriate to moderate the juvenile’s risk level.
In the Netherlands, the law provides for a wide variety of alternatives to juvenile pre-trial detention as well. In the Dutch system these alternatives have the form of special conditions that can be attached to the suspension of pre-trial detention. In addition, the Dutch juvenile justice system also prescribes that the court should always use the least restrictive alternative to detention (the principle of subsidiarity).
Yet, Dutch law does not explicitly link the restrictiveness of alternatives to pre-trial detention to the juvenile’s risk level. In fact, the law provides hardly any guidance to judges as far as decisions regarding the use of alternatives to pre-trial detention are concerned. In my view, the development of a risk-based continuum of alternatives to pre-trial detention could provide judges with more guidance regarding their pre-trial detention decisions and provide an additional safeguard against arbitrariness.
Lesson 3: Data-driven, Collaborative Juvenile Justice Reform
When visiting various JDAI sites in the United States, I was pleasantly surprised that reform efforts to reduce juvenile detention actually appear to be taken seriously by almost all stakeholders within the juvenile justice system.
In the Netherlands, attempts at juvenile justice reform are often limited to NGO’s or legal scholars publishing reports with recommendations to the legislator or judiciary, based on the hope that some stakeholders take these up and take action. Or individual politicians who suddenly come up with new and, in their opinion, more effective interventions for dealing with troubled juveniles.
JDAI, in contrast, takes a well-structured, data-driven and collaborative approach to juvenile justice reform. It shows how reform can be successfully organized by indicating and addressing flaws within a system through extensive data collection, followed by the establishment of active collaboratives of divergent key stakeholders within the juvenile justice system – e.g. the judiciary, bar, probation, police, youth agencies – to tackle these flaws.
Notwithstanding the abovementioned promising reform efforts in the United States, it should be emphasized that there is still a world to win. During my research trip, I came across several issues of major concern. Socio-economic issues, such as the extreme poverty and (gun) violence in certain disadvantaged neighborhoods. But certainly also issues within the juvenile justice systems themselves. For example, systems in which children from the age of seven (!) can be held responsible for their delinquent behavior and systems in which sixteen and seventeen year-olds are automatically tried as adults are still not uncommon in the United States. Besides, issues of overpopulation in juvenile detention facilities and disproportionate minority confinement are still very much present.
Nevertheless, I hope to have clarified that there are promising developments going on within several juvenile justice systems in the United States; developments from which the Dutch juvenile justice system could potentially benefit. I regard it as one of my challenges for the coming years to translate some of these promising American ‘best practices’ to the Dutch juvenile justice context within my doctoral research. To be continued…