Progressive Prosecutors Look to Germany for Juvenile Justice Reform
Updated: Jul 8, 2022
In a policy brief released today, progressive prosecutors make the case for the German approach to youth justice, calling it a “particularly instructive” legal system “that responds to crimes committed by young people in ways that are developmentally appropriate, center on rehabilitation, and resort to incarceration only in limited circumstances and when absolutely necessary.”
“As we continue to operate in a way that criminalizes and incarcerates young people at rates and for lengths of time that are so dramatically different from other countries, we have to be willing to open our eyes and listen to other ways of thinking,” said Miriam Krinsky, executive director of Fair and Just Prosecution, a national nonprofit that produced the report.
In publishing its findings, Krinsky’s group aims to inspire policymakers and district attorneys nationwide to reform the way young people are treated in the U.S. justice system, even amid a rise in gun violence and newly emboldened calls for a law-and-order approach to youth justice. A bill this year in Louisiana, for example, considered whether to allow some older youth to be held in a jail or prison when facing serious charges.
“For far too long in the U.S., our response to young people who commit crimes has been rooted in false assumptions, a lack of attention to what data and science tell us, and racial bias,” states the Fair and Just Prosecution report, the culmination of two years of site visits and interviews with German justice officials. “For elected prosecutors who seek to shift this tide, Germany’s approach to youth justice illuminates a path toward a system that is instead centered on rehabilitation and aligned with the research on adolescent brain development.”
At its core, the German approach — as outlined in the policy brief — treats “kids like kids, and young adults more like kids.”
To be sure, the U.S. and Germany have pronounced differences. The U.S. is not only four times larger than the Central European country, but is also much more racially diverse. Nearly 75% of youth held in juvenile detention facilities in the U.S. are children of color.
Unlike in the U.S., German children 13 and younger cannot be prosecuted, and instead the country’s child welfare system provides services like counseling, foster home placements or treatment in a residential care facility. What’s more, no teen younger than 18 can be tried as an adult.
And, contrary to the way decisions are made in American courts about whether to try children as adults, when deciding such matters for older youth, German courts focus less on the seriousness of the offense and more on the young person’s “moral and psychological development” at the time the crime was committed. Judges consider a child’s maturity and educational background, whether the offense was peer-influenced or impulsive. The country’s juvenile justice system is also limited to those who have committed the most serious offenses, such as homicide, rape and assault, according to the brief.
A relatively small number of German youth are detained, according to the report released today. When they are locked up, roughly 85% of the time they’re held for two years or less, with a five-year confinement the most common lengthy term. Data suggests robust results: only about 30% of its juveniles and young adults come back to prison within three years.
This, too, stands in contrast to the U.S., where 53,000 children and teens were prosecuted as adults in 2019, according to the Sentencing Project. And while recidivism data in the U.S. is measured in different ways, about 75% of youth in the U.S. are rearrested within three years.
German detention facilities, the progressive DA group found, “are required to promote rehabilitation and self-respect, and are not permitted to be punitive environments.”
Youth prison guards, who must complete at least two years of training in topics such as psychology and conflict management, typically do not carry weapons, relying instead on communication to defuse challenging situations. “Nowhere was there the sense of fear and heavy correctional hardware, such as pepper spray, solitary confinement, and strip searching, that dominates the U.S. correctional landscape,” an American correctional expert who visited a youth prison in Germany told the researchers.
In recent decades, Germany has welcomed an increasing number of migrants, which now make up more than a quarter of its population. They are also more likely to be represented in its juvenile justice system. Unlike the U.S., though, Germany provides residents with a far richer array of government-run social services, housing and health care.
Germany’s approach to juvenile justice is enshrined in its 1953 constitution, written with the help of American forces after the atrocities of World War II. It was created in part “by compassion for a generation of young people whose fathers had been killed during World War II, and whose childhoods had been shaped by this absence,” the policy brief states. To support this fatherless generation, the system was designed to deploy “education before punishment.”
In a Zoom interview, a social worker with the Youth Welfare Office in Berlin said his country’s mandate to provide services rather than sanctions is the “cornerstone” of the German juvenile justice system.
Olaf Stürzebecher said as soon as police in his country identify a young person as a suspect in a crime, a social worker is assigned for the life of the case. Of his 135-person caseload, just six youth are currently incarcerated, he added.
He relies on adolescent brain science in his work, and draws on a robust array of social services.
“The German legal system acknowledges that youth don’t just have the capacity to change — they’re in the middle of pretty much the most changeable time of their life,” Stürzebecher said.
In a recent interview, one of the nation’s most high-profile DA reformers, Los Angeles County District Attorney George Gascón, hailed the German model. But he also noted that some aspects of its approach would be “politically unacceptable” here.
Last year, Gascón created a diversion program for teens who commit some lower-level felony offenses, allowing them to avoid incarceration by completing a community-based restorative justice program.
“The offense shouldn’t dictate how you intervene with the juvenile, but maybe how ready the juvenile is to be rehabilitated,” Gascón said. “So if you only do very low level offenses for diversion, we may never get to know how much of a difference we can make.”
Michigan’s Ingham County Prosecuting Attorney Carol Siemon, another supporter of the German approach, said another obstacle in the U.S. is a lack of social services that can serve as an alternative to lockups.
“If we don’t have appropriate options, then we pick less palatable, maybe more inappropriate options because we need to do something,” she said. “That is a really bad excuse, but it’s a very standard dilemma in our criminal legal systems.”
Yet in some parts of the U.S., the German approach is already being applied.
Former Connecticut Gov. Dannel Malloy (D) established a therapeutic young adult prison in 2019 after touring European prisons on a trip led by the Vera Institute of Justice. The Connecticut facility is modeled after Germany’s Neustrelitz prison, where residents convicted of violent crimes are provided with therapy, personalized rehabilitative programs and vocational training.
That humane approach has since been replicated in at least six states, and progressive prosecutors in Philadelphia and San Francisco have created special units to divert young adults from the justice system for low-level offenses. And next month, Vermont’s juvenile justice system will expand to include 19-year-olds for the first time — the only state to extend its jurisdiction that high.
Krinsky applauds such efforts.
“We need to be smarter about what we do when we find and prosecute young people who have done incredibly egregious things, but who also can be rehabilitated,” she said. “When we put young people behind bars for decades on end, and keep them there when they no longer pose a risk to the community, it comes at a large human cost and does not make communities safer.”
Written by Jeremy Loudenback
Jeremy Loudenback is a senior reporter for The Imprint.