The Dutch ‘Adolescent Criminal Law’:
Information in verdicts about the application of juvenile criminal law on young adult offenders
Masterscriptie Forensische Orthopedagogiek Graduate School of Child Development and Education Universiteit van Amsterdam Marthe Jansen 10009833 Begeleiding: Dr. C. S. Barendregt (eerste beoordelaar), Dr. A. M. van der Laan & Prof. Dr. G. J. J. M. Stams (tweede beoordelaar) Onderzoeksinstelling: Wetenschappelijk Onderzoek- en Documentatiecentrum (WODC) Amsterdam, juli 2016
Abstract
On April 1st 2014, the ‘adolescent criminal law’ came into force. Key-point of this law is that
the age limit for sentencing young adult offenders according to juvenile criminal law is increased from 21 to 23 years. This explorative study examined 73 verdicts (processed by a three-judge panel) of young adult offenders (18 to 23 years old), that got sentenced according to juvenile criminal law in the first year after the ‘adolescent criminal law’ came into force. A few irregularities in the process of sentencing young adults according to juvenile criminal law were found. Nine of the young adult offenders were in pre-trial detention in an adult
penitentiary while they were sentenced according to juvenile criminal law in the end. In 5 cases, the public prosecutor’s pre-trial claim was to sentence according to adult criminal law, while at the court hearing he or she claimed to sentence according to juvenile criminal law. There also appeared to be a small difference between the advice of the probation office and of the psychiatrists and psychologists of the Netherlands Institute of Forensic Psychology and psychiatry (NIFP). The probation office advised more often to sentence according to adult criminal law than the NIFP. Finally, in most of the verdicts the court used arguments about the personality of the offender in its motivation for a specific sentence, arguments concerning the criminal history of the offender were used the most. The present study contributes to a larger evaluative study of the ‘adolescent criminal law’.
The Dutch ‘Adolescent Criminal Law’
Information in verdicts about the application of juvenile criminal law on young adult offenders
In this study verdicts are examined of young adults that got sentenced according to juvenile criminal law, since the recently introduced ‘adolescent criminal law’ (in Dutch: Wet adolescentenstrafrecht) came into force. Young adults commit more crimes than children or older adults (van der Laan, van der Laan, Hoeve, Blom, & Lamet, 2012). This phenomenon is also known as the ‘age crime curve’ and refers to the fact that in general the prevalence of crime peaks during mid to late adolescence (Loeber, 2012). The definitions of adolescence in terms of an age-range vary widely, but adolescence is the time between childhood and
adulthood. In this period adolescents exhibit riskier behavior, such as experiencing with drugs and/or alcohol and initiating sexual activities (Luciana, 2013). One possible explanation for this phenomenon is that the brain is still developing and that its development continues throughout adolescence and early adulthood (Crone & Dahl, 2012). The prefrontal cortex, which controls executive functions, such as controlling impulses and realizing the
consequences of your own actions before acting upon an impulse, matures gradually until young adulthood. With the development of this region in the brain, the connections between the prefrontal cortex and other brain regions also develop over time, positively affecting impulse control and emotion regulation (Bonnie & Scott, 2013). This raises the question whether or not adolescents and young adults are responsible for their behavior until the brain regions are fully developed.
Up until the age of 20, peers have the greatest influence on the risk-taking behavior of adolescents. After the age of 20, however, the most significant brain development occurs with respect to autonomous decision-making. At this stage, young adults are able to make
immature brain of adolescents increases the risk of them acting out in criminal behavior. Not only being an adolescent but also individual differences in the developmental trajectories of adolescents should be taken into account when looking at changes of behavior (Crone & Elzinga, 2015). Another explanation for the age-crime phenomenon can be found in identity development. Between the end of childhood and the beginning of adulthood, the identity usually consolidates. There are different kinds of identity development statuses, as described by Marcia (1993). Individuals who have reached the identity achieved status, are among other things characterized by high levels of self-esteem and achievement motivation, low
neuroticism, low use of defense mechanisms, high levels of internal locus of control, they can function well under stress and they use rational and logical decision-making strategies
(Kroger, 2006).
In other words, some of the antisocial and risky behavior that adolescents exhibit can be explained by their immature brain functions and their identity that is still developing. In line with this is the thought that some of the young adult offenders can not yet be seen as
responsible adults. Their behavior is more similar to that of an adolescent and they should be sentenced like one (Weijers & Dronkers, 2014). Although adolescence is considered to be a period in life distinct from childhood and adulthood, this often is not represented by separate laws for adolescents (Bonnie & Scott, 2013). To reduce delinquency and recidivism among these young adult offenders, the bill ‘adolescent criminal law’ was presented to the Dutch House of Representatives in 2012.
To ensure that individuals are sentenced according to their developmental level and to help reduce recidivism within this high-risk group, the ‘adolescent criminal law’ was brought into effect on April 1st, 2014. The term adolescent refers to a young adult aged 18 to 23 in this
study. A distinction can be made between early adolescence (the period between 16-17 years old) and late adolescence (this period reaches from 18 to 23 years old). The ‘adolescent
criminal law’ is not an independent type of criminal law, rather the term is used to indicate several changes in the enforcement of the existing Dutch juvenile criminal law. By extending the use of juvenile criminal law up to the age of 23, it creates more flexibility in the
sentencing of young adults in accordance with their developmental level (Kempen, 2014). In the Netherlands, the juvenile justice system is initially designed for young delinquents: individuals from 12 to 18 years old. Children below 12 years of age cannot be held
responsible for their criminal behavior yet (Christiaens & Weijers, 2015). Generally, young adults of 18 years and older who have committed an offense are sentenced according to adult criminal law. However, since the enforcement of the ‘adolescent criminal law’, it is possible to sentence young adults until 23 years of age according to juvenile criminal law. To
understand the Dutch ‘adolescent criminal law’, first a short international comparison of juvenile- and adult criminal law will be described.
In the Netherlands it was already possible to sentence juveniles of 16 or 17 years old according to adult criminal law before April 1st 2014. It is comparable but not similar to the
judicial waiver in the United States of America (USA). ‘Judicial Waiver’ is an American term meaning that a juvenile court judge can waive a delinquent to the adult justice system,
keeping in mind the severity of the offense and his/her record of earlier committed crimes (Podkopacz & Feld, 1996). By waiving a juveniles’ case to the adult court, the judge decides to transfer the delinquent based on an examination of characteristics of the individual
(Reddington & Sapp, 1997). In Belgium there is no separate type of juvenile criminal law but there is a ‘youth-protection law’. Only measures from this protection law can be imposed on minors in Belgium, they can not get criminally convicted. However, it is possible to apply adult criminal law sanctions on 16- and 17 year olds in severe cases (Weijers, 2014). In Germany it is possible to sentence 18 to 21 year-old adolescents according to juvenile criminal law, for reasons quite to the contrary of the judicial waiver in the USA. Juvenile
criminal law can be applied on young adults if their moral and psychological development is comparable to that of a juvenile or if the circumstances of the offense are similar to a typical crime for juveniles. Young adults in Germany are more often sentenced according to juvenile criminal law than to adult criminal law. In 2008, 66 percent of the young adult offenders got sentenced according to juvenile criminal law in Germany (Dünkel & Pruin, 2012).
In the Netherlands; under specific conditions, sentences from adult criminal law can also be used on a delinquent’s case. Contrary to regulations in the USA, the delinquents are not transferred into the adult court system. The Dutch juvenile court judge can, however, use sentences from adult criminal law on delinquents aged 16 or 17 based on the severity of the offense and the circumstances in which the offense was committed. However, the hearing of 16- and 17 year olds always happens in private and is always handled by a juvenile court judge. Another essential difference between the American judicial waiver and sentencing delinquents according to adult criminal law in the Netherlands is found in who gets to decide when it is necessary to sentence a delinquent according to adult criminal law. In the
Netherlands the only person who can use sanctions from adult criminal law on delinquents is a juvenile court judge1. In the USA this is often decided by the public prosecutor, in certain
cases it is even included in law if a delinquent should be transferred to an adult court (Weijers, 2014).
However, the key point of the ‘adolescent criminal law’ is that young adult offenders, under specific conditions, can be sentenced according to juvenile criminal law. With the introduction of the ‘adolescent criminal law’ this age limit is increased from 21 to 23 years of age. In short, the premise remains that 16- and 17-year-olds are sentenced under juvenile criminal law, and individuals aged 18 years and older are sentenced under adult criminal law. However, under specific conditions regarding the personality of the offender, the severity of
the offense and the circumstances under which an offense is committed, a delinquent (16 or 17 years old) can be sentenced according to adult criminal law and young adults (18 to 23 years of age) can be sentenced according to juvenile criminal law. The latter concerns mostly adolescents whose developmental stage is comparable to that of a minor, but many other aspects are taken into consideration as well (Kempen, 2014).
Naturally, the terms personality of the offender and the circumstances under which an offense is committed can be interpreted in different ways. In the Dutch criminal law, it is common for advisers of the probation office and/or the psychiatrists and psychologists of The Netherlands Institute of Forensic Psychiatry and Psychology (NIFP) to investigate the terms mentioned above: personality and circumstances. This is done by order of the public
prosecutor or the supervisory judge. Within this advising course, the NIFP is asked among other things to give insight in the development of the suspect and to give advise on which interventions are recommended for the offender and in which judicial framework these interventions could be achieved. With the enforcement of the ‘adolescent criminal law’, the psychologists and psychiatrists are explicitly asked whether sentencing according to juvenile criminal law is advisable (NIFP, 2014b). Their advice translates into an advisory report, which serves to inform the judge about the personality of the offender, the circumstances under which the offense was committed and an advice to sentence according to either juvenile or adult criminal law. To assist the probation officers, and psychologists and psychiatrists in this consultation process, two ‘adolescent criminal law assessment tools’ (in Dutch:
Wegingskader for the probation office, and Wegingslijst for the NIFP) (Vogelvang & Kempes, 2014).
The importance of these advisory reports that inform the judge for his/her decision to sentence according to juvenile or adult criminal law, lies in the differences between these two types of criminal law. Although several differences between juvenile and adult criminal law
exist, I will describe three of them. The first important difference is noticeable at the court hearing. Juvenile court hearings are held in private2, to protect the privacy of the delinquent.
Adult court hearings on the other hand, are held openly and are accessible for the public at large3.
Secondly, there is a difference in the maximum sentences in juvenile- and adult criminal law. The maximum temporary sentence in adult criminal law is 30 years of imprisonment, followed by a life sentence (Rijksoverheid, n.d.a). In juvenile criminal law, however, the maximum duration of an imprisonment sentence is 2 years (Rijksoverheid, n.d.b). Then there is also the custodial ‘Placement in Institution for Juveniles-measure’ (PIJ, in Dutch: Plaatsing in een Inrichting voor Jeugdigen). This is not a punishment but a measure accompanied by regulatory juvenile detention, which can last longer than two years. A PIJ measure is imposed for three years (of which one year is conditional) and can be prolonged to a maximum of seven years under specific conditions, since the ‘adolescent criminal law’ was brought into effect4.
Finally, the Dutch juvenile court is characterized by an educational fundament in contrast to the adult criminal court. Both are aimed at retribution, albeit the juvenile court to a lesser extent (Wermink, Johnson, Nieuwbeerta, & de Keijser, 2015). The educational
fundament of juvenile criminal law focuses more on rehabilitation than adult criminal law. This makes the juvenile criminal law more pedagogic in nature. When an adolescent breaks the law, the pedagogical component of the juvenile criminal law compels that the sentencing will not only be punitive but also in service of the upbringing of the juvenile (Bruning et al., 2011). This pedagogical characteristic is embedded in the Convention for the Rights of the Child (UN General Assembly, 1989) and is reflected in the Dutch juvenile criminal law. For example, receiving education is a mandatory part of the daily program in Juvenile Justice
2 According to Article 495b of the Code of Criminal Procedure (Wetboek van Strafvordering)
3 According to Article 362 paragraph 1 of the Code of Criminal Procedure (Wetboek van Strafvordering) 4 See Article 77s paragraph 7, and Article 77t paragraph 2 of the Criminal Code (Wetboek van Strafrecht)
Institutions (DJI, n.d.), just like there are also special measurements for young and adolescent offenders, such as the behavior influencing measure (In Dutch: Gedragsbeïnvloedende
Maatregel, in short: GBM). This measure is based on the idea that a criminal sentence is more effective when it focuses on treatment, reeducation and influencing the behavior of the
adolescent offender (Buysse, Maarschalkerweerd, Loef, & Hilhorst, 2010).
Role of the public prosecutor
With the enforcement of the adolescent criminal law, the period between the arrest and the final court hearing became very important (Kempen, 2014) because this is the period in which information is gathered that could possibly result in sentencing according to juvenile criminal law. Gathering information (in the form of the advisory reports of the probation office and/or the NIFP) about the personality of the offender and the circumstances under which the offense was committed already commences when a young adult is arrested.
The public prosecutor and the supervisory judge play a central role in the process of claiming pre-trial detention of 18 to 23 year olds. Considering applying juvenile criminal law on a young adult’s case demands of a public prosecutor to reconsider if, and how pre-trial detention is claimed. The public prosecutor can ask the supervisory judge to order pre-trial detention if after 72 hours in police custody it is still deemed necessary to keep the juvenile in detention for a longer period of time. Normally, when pre-trial detention is necessary, a young adult offender will be kept in pre-trial detention in an adult prison until the date of the trial. However, when a public prosecutor considers applying juvenile criminal law, he or she can express his/her claim to sentence according to juvenile criminal law to the supervisory judge. This decision is often based on the earlier mentioned advisory reports of the probation office or the NIFP. In that case, young adults should await the court hearing in pre-trial detention in a juvenile detention institution. This is in agreement with the “Juvenile Justice Institutions
Act” (In Dutch: Beginselenwet Justitiële Jeugdinrichtingen5), which states that placement in a juvenile detention institution is intended for individuals who were under 23 years old at the time of committing the offense, for which the public prosecutor claimed pre-trial detention and expressed to claim according to article 77c of the Dutch Criminal Code. It is not possible for the examining judge to place a young adult offender in a juvenile justice institution when the prosecutor did not announce his/her expectation to claim use of the juvenile criminal justice system in his pre-trial claim.
Later on, at the court hearing, the public prosecutor again claims whether to apply juvenile criminal law or adult criminal law. This claim during the court hearing is often based on newly acquired information, such as more extensive reports made by psychologists or psychiatrists about the development of the offender and thus can differ from the first pre-trial claim. The question that arises is to what extent the public prosecutor’s claim for applying juvenile criminal law or adult criminal law regarding the pre-trial detention, coincides with his/her claim presented at the final court hearing. Finally, the judge decides about sentencing according to juvenile criminal law. Although judges are not obligated to motivate their decision to sentence young adults according to juvenile criminal law (De Rechtspraak, 2012), a motivation is often written in the more extensive verdicts belonging to the more complex and severe cases.
Since the ‘adolescent criminal law’ has only been effective for slightly over two years, it is important to study how and to what extent this law is executed. By identifying this, the effects of the law can be studied and policy recommendations can be made to even further help reduce recidivism among adolescents. This study aims to make a small contribution to this larger evaluation of the ‘adolescent criminal law’ by answering the following three research questions: Firstly, to what extent does the pre-trial claim of the public prosecutor
coincide with the claim at the court hearing, regarding claiming juvenile criminal law. Secondly, to what extent does the decision of the court and the advice of the probation officers, psychologists and psychiatrists regarding sentencing according to juvenile or adult criminal law coincide with each other. And thirdly, to what extent does the court use
information on specific personality traits of the young adult offender in their verdicts in order to motivate the decision for sentencing according to juvenile criminal law.
Method
This study is part of a larger study carried out by the WODC (the Dutch abbreviation for Wetenschappelijk Onderzoek- en Documentatiecentrum, in English: Research and Documentation Centre) on behalf of the ministry of Security and Justice. The larger study focuses on the monitoring and evaluation of the ‘adolescent criminal law’ (WODC, n.d.). Study population
Inclusion criteria were: 1: the young adult offender had to be between 18 and 23 years old at the time of committing their offense (in case of offenders who committed more
offenses; at least one of the offenses had to be committed after the offender turned 18 years old) 2: sentencing was according to juvenile criminal law, and 3: at least one of the offenses had to be committed between April 1st 2014 and April 1st 2015. To answer the research
questions, 73 verdicts6 of young adult offenders aged 18 to 23 that got sentenced under
juvenile criminal law by a three-judge panel between April 1st 2014 and April 1st 2015, were
examined. There were more unique verdicts than unique offenders, which indicates that one of the young adult offenders had more than one verdict in this particular year. The selection of verdicts was made by using the following indications: juvenile criminal law (in Dutch:
jeugdstrafrecht) and juvenile sanction (in Dutch: jeugdsanctie) in RAC-min, the database of the Public Prosecution Service. In total, 272 public prosecutor’s office reference numbers (in
6 There were 73 public prosecutor’s Office Reference Numbers, linked to 72 verdicts. This means that in one verdict two different cases of the same offender were joined. We will speak of 73 verdicts from now on, since one of the verdicts had two public prosecutor’s Office Reference Numbers.
Dutch: parketnummers) were acquired. These were all the reference numbers for verdicts of adolescents aged 18-23 that got sentenced under juvenile criminal law between April 1st 2014
and April 1st 2015 that could be found in 2015. Due to the long processing time in the
criminal justice system, in 2016 more reference numbers were found, those verdicts will be examined at a later time. Verdicts belonging to these reference numbers were then requested at the Council for the Judiciary. Out of these 272 public prosecutor’s Office reference numbers that were expected to be juvenile criminal cases, in 14 cases adult criminal law was sentenced and in 258 juvenile criminal law was sentenced. This leaves a total of 258 reference numbers in which juvenile criminal law was applied on adolescents aged 18-23 in the first year after the introduction of the ‘adolescent criminal law’, that could be found in 2015.
All verdicts were either handled by a Police Magistrate, a juvenile court judge or a three-judge panel. Because more severe offenses and more complex cases are handled by a three-judge panel, these verdicts are usually more extensive than the other verdicts, often including advisory reports of the NIFP and the probation office, as well as more information about motivations behind the sentencing according to juvenile criminal law. This kind of information is rarely included in the verdicts handled by a Police Magistrate or juvenile court judge. Cases that are handled by a Police Magistrate are less complex and severe than cases handled by a three-judge panel. A Police Magistrate can judge cases for which the public prosecutor can not claim more than one year of imprisonment. Examples of offenses that are handled by a Police Magistrate are: theft, criminal threat and assault (Openbaar Ministerie, n.d.). Since this study focuses on what is written about the application of juvenile criminal law in verdicts, only the 73 remaining verdicts processed by a three-judge panel were examined for this study.
Characteristics study population
This study focuses on the 73 verdicts relating to 71 young adult offenders, all processed by a three-judge panel. See Table 1 for the sample characteristics. In most of the cases the offender was male (95.9%). The mean age at the first offense was 18.5 years (min 17 max 22; SD = 1.0). The mean age of the young adult offenders at the date of their last committed offense was 18.6 (min 18, max 22; SD = 0.9). Most of the young adult offenders were born in the Netherlands.
Procedure
The required data (such as the characteristics of the offenders, verdicts and
information about pre-trial detention) were requested from the chain partners of the ministry of Security and Justice: The probation office (in Dutch: de 3 reclasseringsorganisaties), the NIFP, the Public Prosecution Service (in Dutch: Openbaar Ministerie), the Magistrate (in Dutch: Zittende Magistratuur) and the Custodial Institutions Agency (in Dutch: Dienst Justitiële Inrichtingen). In this study, only the information gathered from the verdicts is used. In the beginning of 2015 all parties agreed to cooperate and gave permission to use the acquired data for the monitoring and evaluation of the ‘adolescent criminal law’.
After the Dutch Council for the Judiciary agreed to cooperate, the retrieval of the verdicts corresponding to the 272 public prosecutor’s reference numbers was requested, on which the Council of the Judiciary asked the courts to supply these particular verdicts. The acquired verdicts were anonymized and scanned by two researchers who were sworn-in registrars. The anonymization and processing of the verdicts took place at the Council of the Judiciary itself. The scanned and anonymized verdicts were then taken to the WODC with a secured USB stick.
To obtain all necessary information and to ensure the scoring was valid and reliable, a coding system was developed. This document specified what information from the verdicts
should be scored into an SPSS file. The codebook gave a description of all 90 variables. If it was unclear how to score a variable, the problem was written down and discussed with other colleagues to draw conclusions at a later time. In a separate file these conclusions were bundled with the case numbers and specific text of the verdicts in question, so when a similar problem would be encountered in the future, it could be scored in the same way.
Operationalization
To answer the research questions all verdicts were recoded. For research question 1 about the claims of the public prosecutor, it was examined what is written in the verdicts about pre-trial detention; whether the young adult offender was in pre-trial detention and if so, in a juvenile or adult penitentiary (see Table 3 for the description of the coded variables). If a young adult is in pre-trial detention, the verdict often reads: “currently resides in (name of detention center)”. However, it is not always mentioned in the verdicts whether an individual is in pre-trial detention or not. Since the focus of this study is on information about sentencing according to juvenile criminal law in the verdicts, the pre-trial detention claim is measured this way. It is highly possible that more young adult offenders were in pre-trial detention than appears in the verdicts.
If it is necessary that a young adult offender aged 18 to 23 will be held in pre-trial detention, the general rule is that all individuals aged 18 years and older will be in detention in an adult penitentiary. The only exception to this rule is that the public prosecutor can express the expectation to later on claim sentencing according to juvenile criminal law at the court hearing. When the latter is the case, the young adult offender will undergo the pre-trial detention in a juvenile detention center. This means that in the case of the 27 verdicts stating that the offender was in pre-trial detention in a juvenile justice institution, the public
prosecutor must have expected to claim sentencing according to juvenile criminal law when he/she claimed the pre-trial detention. Thus, if a young adult was in pre-trial detention in a
juvenile justice institution, it was assumed that the public prosecutor expressed the
expectation to sentence according to juvenile criminal law in his/her pre-trial claim. In the verdicts also the claim of the public prosecutor at the court hearing was examined; does he/she claim to sentence according to juvenile criminal law or adult criminal law.
For the second question regarding the advice of the probation officers and the NIFP, it was coded whether something was mentioned in the verdict about if the probation office recommended sentencing according to juvenile criminal law or adult criminal law. The same was coded regarding the advice from the NIFP. Sometimes there were two reports of the NIFP mentioned in the verdict, one made by a psychologist and one by a psychiatrist. In none of the cases the two reports contradicted each other concerning the advice on sentencing according to juvenile or adult criminal law.
The third question pertained to the use of personality traits of the offender in the arguments of the court for a specific sentence. To score the motivation of the court in a meaningful manner the clusters of the earlier discussed NIFP criminal law assessment tool were used. In different variables was scored whether the judge said something about the offender in his/her motivation to sentence according juvenile criminal law and his/her motivation for a specific sentence that could be categorized in the clusters operational skills, pedagogically influencable, judicial history, psychopathic traits, criminal lifestyle and
pedagogical impossibilities. These are clusters based on the indications and contra-indications of the adolescent criminal law assessment tool developed by the NIFP (NIFP, 2014). This list is used because it is especially developed as an instrument to help the psychiatrists and psychologists working with the NIFP to form an advice on the choice to apply juvenile or adult criminal law on young adults. In total 90 variables were scored in SPSS using the above mentioned codebook. In Table 3 the relevant variables for this study can be found. The background characteristics that were analyzed were: date of birth, place of birth and gender.
Analysis
The purpose of this study was to get insight in the process of sentencing young adult offenders according to juvenile criminal law, because with the introduction of the ‘adolescent criminal law’ the age limit for sentencing young adult offenders according to juvenile
criminal law was increased from 21 years to 23 years of age. To get this insight, first the extent to which the pre-trial claim of the public prosecutor coincides with the claim at the court hearing regarding the application of juvenile criminal law was explored. By doing this, it could be determined if public prosecutors changed their opinion on what the best applicable type of criminal law is, after the more extensive advisory reports were written by the
probation office and/or the NIFP. The data of young adults in pre-trial detention and of the public prosecutors’ claim at the court hearing were obtained through the verdicts. Because only the young adults who are sentenced according to juvenile criminal law were selected, sentencing according to adult criminal law was not claimed by the public prosecutor or advised by the NIFP/probation office in the majority of cases. A direct consequence of this, however, is that because of the low cell count the research questions are answered not with the help of statistical tests, but rather in a different manner: numbers of the public
prosecutor’s pre-trial claim and claim at the court hearing were obtained by requesting a cross table in the statistical computer program SPSS 21.0 for windows. These cases that deviate from the ones in which juvenile criminal law was advised are of importance when evaluating the process of the ‘adolescent criminal law’ nonetheless.
To answer the second question that focuses on to what extent the decision of the probation officers coincide with the psychologists and psychiatrists of the NIFP regarding sentencing according to juvenile or adult criminal law, frequencies and cross tables were generated in the statistical analysis program SPSS 21.0 for Windows. A Fisher’s Exact test
was conducted to examine a possible relation between the advice of the probation office and the NIFP.
For the third question, which focuses on to what extent the court uses information about specific personality traits of the young adult offender in the verdicts in order to
motivate the decision for sentencing according to juvenile criminal law, also frequency- and cross tables were generated in SPSS.
Results Pre-trial claim and claim at the court hearing
In 69 of the 73 verdicts, the claim of the public prosecutor at the court hearing was mentioned and in the remaining 4 verdicts the claim is not mentioned, so it is unknown
whether the public prosecutor claimed sentencing according to juvenile- or adult criminal law. Of these 69 verdicts, in 31 verdicts nothing was mentioned about the offender being in pre-trial detention or not, in 1 verdict the offender was residing in a residential care institution and in 1 verdict it was clear that the offender was not in pre-trial detention (see Figure 1). The offenders of the remaining 36 verdicts were in pre-trial detention. For 27 of them (75%), the public prosecutor’s pre-trial claim was to sentence according to juvenile criminal law, that is why they did undergo their pre-trial detention in a juvenile justice center. The offenders of 9 of the verdicts (25%) did undergo their pre-trial detention in an adult penitentiary, so the Public prosecutor did not (yet) announce that he/she expected to claim sentencing according to juvenile criminal law at the court hearing.
Later in the criminal justice process, the number of claims of the public prosecutor to sentence according to juvenile criminal law increased to 32 claims (88.9%), with a reduction in claims to sentence according to adult criminal law to 4 claims (11.1%). This change was a consequence of five of the pre-trial claims for sentencing according to adult criminal law changing into sentencing according to juvenile criminal law. Thus, in total the offenders of 9
of the public prosecutor’s reference numbers were in pre-trial detention in an adult
penitentiary, while they were sentenced according to juvenile criminal law at the final court hearing.
Advisory reports of the probation office
Out of the 73 verdicts, for 40 verdicts an advisory report of the probation office including advice on sentencing according to either juvenile or adult criminal law was mentioned in the verdicts (see Figure 2). For 11 verdicts an advisory report of the probation office was mentioned, although it did not include any advice regarding sentencing according to juvenile- or adult criminal law. Finally, for 22 verdicts no advisory reports by the probation office were mentioned in the verdicts.
Advisory reports NIFP
Out of the 73 verdicts, in 31 verdicts an advice of the NIFP was mentioned regarding sentencing according to either juvenile or adult criminal law (see Figure 2). In 6 verdicts an advisory report of a psychologist and/or psychiatrist was mentioned, but it did not include any advice regarding the use of juvenile-or adult criminal law. Finally, in 36 verdicts, no advisory reports of psychologists and/or psychiatrist were mentioned.
Similarity in advice NIFP and probation office
In the 40 verdicts in which an advisory report of the probation office is mentioned, in 33 of the cases (82.5%) the advice is to sentence according to juvenile criminal law and in 7 cases (17.5%) the advice is sentencing according to adult criminal law. For the 31 advisory reports of the NIFP in which there was mention of which type of criminal law to use on the other hand, in 30 cases the advice was to sentence according to juvenile criminal law and in only 1 case the advice was to sentence according to adult criminal law (see Figure 2). There were 19 verdicts in which advice of the probation office was mentioned as well as advice of the NIFP. The NIFP advised to sentence according to juvenile criminal law in 18 of these
verdicts, and to sentence according to adult criminal law in 1 of the verdicts. The probation office on the other hand advised to sentence according to juvenile criminal law in 15 of these verdicts, and to sentence according to adult criminal law in 4 of these verdicts. The
association in advice between the NIFP and the probation office was not significant (p = .211, Fisher’s Exact test).
The differences between the conclusions of the probation office and the NIFP were further examined to see whether the given advice deviated for the same cases. There appeared to be a difference between the advice of the probation office and the NIFP in 3 verdicts, where in all 3 of the cases the probation office advised sentencing according to adult criminal law and the NIFP advised sentencing according to juvenile criminal law. The content of the advisory reports of these 3 different verdicts will be discussed in the next paragraph, together with details about the offenses to which the advisory reports relate.
The first verdict concerns extortion and possession of a weapon. The concluding advice of the probation office is: “to impose a (partly) suspended prison sentence on the suspect”7 but they also state that they await the results from a personality screening to decide if a clinical placement is indicated for the suspect. The same verdict mentions two
psychological advisory reports, one by a child- and youth psychiatrist and one by a child- and youth psychologist, both dated a couple of months later than the advisory report of the
probation office. Both advised to sentence according to juvenile criminal law. A quote from the conclusion of the advisory report of the psychiatrist is: “The suspect is not able to form his/her life independently, but he/she can not ask for help when help is needed. The indictment is an attempt to get out of this impasse. Besides the substance abuse of the suspect, especially the loneliness and hopelessness of his/her existence is what contributed to the robbery.” The
court decides to sentence according to juvenile criminal law, in the light of the findings of the psychiatrist and psychologist.
The second verdict concerns an attempt at theft, preceded and accompanied with violence against individuals. In the verdict is stated that the probation office believes intensive coaching and monitoring of the suspect is indicated, and they advise to: “(…) impose a
(partly) suspended prison sentence with mandatory contact with the probation office for adults, as well as participation in a cognitive behavioral training.” In an advisory report of a psychologist, the following was said regarding the advice to sentence according to juvenile criminal law: “(…) The psychologist advised to sentence according to juvenile criminal law because the suspect appears to be younger in contact than his/her age according to his/her birth certificate, and he/she often acts out without thinking it through. In addition, the suspect has had an open attitude towards pedagogical influence during the supervision of the
probation office. Finally, there are no contra-indications [for sentencing according to juvenile criminal law].” The court too believes the young adult offender should be sentenced according to juvenile criminal law, based on the young age of the offender at the time of the offense, and based on the conclusions of the psychological report in which the psychologist states that some indications that plead for sentencing according to juvenile criminal law were found, while no contra-indications were found.
The third verdict concerns an attempt at manslaughter. In the verdict is stated that the probation office beliefs that the suspect is independent enough to be guided by the probation office for adults and that sentencing according to juvenile criminal law is unnecessary. The psychologist of the NIFP on the other hand, believes that the suspect can not yet be seen as an adult yet and that sentences within the juvenile criminal law are best suited with the
developmental stage of the suspect. The court concludes that there are no contra-indications for sentencing according to juvenile criminal law. Besides, the court says, the youth-probation
office and probation office for adults both agree about the treatments they advise. The treatments that they advise are not mentioned in the verdict.
Motivation of the court
In 6 of the 73 verdicts, no motivation of the court for a specific sentence or for sentencing according to juvenile criminal law was mentioned (see Table 2). In 7 verdicts a motivation was given but nothing within the context of the clusters of the ‘adolescent criminal law assessment tool’ was mentioned. This leaves a total of 60 verdicts that include the
personality of the offender in the motivation of the court for a specific type of sentence or for the use of juvenile criminal law.
Indications for sentencing according to juvenile criminal law
In 19 verdicts the operational skills of the young adult offender were mentioned in the motivation of the court as an indication for sentencing according to juvenile criminal law (see Table 2). An example of the cluster operational skills is that the suspect acts without thinking. An exemplary sentence from a verdict in which the court motivates why the suspect will be sentenced according to juvenile criminal law is: “the consequences of the offense are very far-reaching for the suspect. He/she did not think about the consequences in advance.” A
frequently given motivation from this cluster is that the suspect has a (slight) intellectual disability or has an inadequate development.
In 9 verdicts something about the offender being pedagogically influencable was mentioned in the motivation. An exemplary sentence relating to this cluster from one of the verdicts is: “The statement of the psychologists about the suspect having an inadequate social-emotional development and that he/she is susceptible to a pedagogical approach, is decisive.”
Contra-indications for sentencing according to juvenile criminal law
In 23 verdicts something about the criminal history, which is a contra-indication for sentencing according to juvenile criminal law, was mentioned (see Table 2). In most of these cases the court stated that the criminal record of the suspect was taken into account in their decision for the duration of the sentence. If the suspect already has a criminal record, this will be to the disadvantage of the suspect concerning the duration of the punishment, and vice versa.
In 3 verdicts something about psychopathic traits was mentioned. The information regarding psychopathic traits that the court uses in its motivation for the specific sentence varies from the suspect having an anti-social or narcissistic personality disorder to that the suspect only thought about him/herself without caring about the victim. In two of the three verdicts in which arguments were used from the psychopathic traits cluster, the court used these arguments to impose a PIJ measure. There were no verdicts in which the court used arguments of the criminal lifestyle and pedagogical approach is impossible clusters in its motivation to impose a specific punishment or sentence according to juvenile criminal law.
Discussion
This explorative study examined 73 verdicts of young adult offenders of 18 to 23 years of age that got sentenced according to juvenile criminal law by a three-judge panel in the first year after the ‘adolescent criminal law’ came into force in the Netherlands. It was found that a small group of the young adult offenders that were sentenced according to juvenile criminal law, was in pre-trial detention in an adult penitentiary instead of a juvenile justice institution. Moreover, the public prosecutor changed his/her pre-trial claim from sentencing according to adult criminal law, to sentencing according to juvenile criminal law at the court hearing in 5 cases. Although relating to small numbers, it was also found that in the advisory reports mentioned in the verdicts, the probation officers advised more often to
sentence according to adult criminal law than the psychologists and psychiatrists of the NIFP. Finally, it was examined to what extent the court uses arguments about the personality of the offender in its motivation for a specific sentence, by specifically looking at the six clusters of the NIFP law assessment tool. Arguments were used regarding the operational skills of the offender and regarding whether the offender is pedagogically influencable though not as often as arguments about the criminal history of the offender. In the next paragraphs, these results will be interpreted and possible explanations for the differences that were found are given.
In a few cases, the pre-trial claim of the public prosecutor was to sentence according to adult criminal law, while his or her claim at the court hearing was to sentence according to juvenile criminal law. One possible explanation for this difference is that the public
prosecutor considered sentencing according to juvenile criminal law to be more appropriate after reading the more extensive advisory reports written by the probation office and/or the NIFP. When a suspect is in police custody, the probation office can write an early
consultation report (in Dutch: vroeghulp rapportage) concerning the suspect. An early consultation report is especially of importance for the question whether further pre-trial detention is necessary. If such a report is presented to the public prosecutor, he or she is obligated to take note of this report before he or she claims pre-trial detention (Nauta & de Jonge, 2008). The public prosecutor can also ask for more extensive advisory reports written by the probation office of by psychiatrists and psychologists of the NIFP. It seems plausible that the difference between the pre-trial claim and the claim at the court hearing of the public prosecutor is based on the newly acquired information in the more extensive advisory reports.
Regarding the advisory reports of the probation officers and the psychologists and psychiatrists of the NIFP, a small difference in advice of the probation officers and the NIFP was found. The advice of the probation office differed from the NIFP in 3 verdicts, in all three of them the NIFP advised sentencing according to juvenile criminal law while the probation
office advised sentencing according to adult criminal law. These results are based on the given summaries of these advisory reports in the examined verdicts, not on the complete advisory reports itself. When looking at the three specific verdicts, two possible explanations for the differences present itself. In the first verdict, the probation office states that they advise sentencing according to adult criminal law but at the same time they await a more extensive personality screening. Indeed, the advisory report of the NIFP on the same offender is dated a couple of months later. Although the verdict does not specify what kind of advisory report this specific report of the probation office was, it is probable that the advisory report was a before mentioned early consultation report since it was dated a few months before the advisory report of the NIFP. The fact that the probation office had already written an advisory report before the personality of the offender was screened, could explain the difference in advice. In the third verdict, the court says that the probation office for adolescents and the probation office for adults agree on what treatments are advisable. In this verdict these advised treatments are not mentioned. What is mentioned, however, is that the probation office for adults believes sentencing according to juvenile criminal law is unnecessary, while the psychologist of the NIFP and the probation office for adolescents believes that the
offender should be sentenced according to juvenile criminal law. This seems to be
contradictory, but possibly the advisory reports of the probation and the NIFP itself could give more insight in the differences than summaries of these reports in the examined verdicts. Although the advice of the probation office differed from the advice of the NIFP in only 3 verdicts, these differences are still striking because usually the probation officers,
psychiatrists and psychologists discuss the findings with each other during the research process (Van Esch, 2012). Moreover, interviews with public prosecutors show that contradictory advisory reports can complicate lawsuits, because this means that judicial authorities need to make a decision about something they are usually not educated in (Nauta
& de Jonge, 2008). In conclusion, in most cases the advices of the probation office and NIFP regarding sentencing according to juvenile criminal law coincide with each other and in three cases it does not.
Regarding the final results concerning the motivation of the court, the court did not always provide a motivation for a specific sentence. In 2008, the so called ‘Promis’ method was introduced nationally in the Netherlands. The purpose of this method was that the public, offenders and family of the offenders could understand the court decision more easily, by improving the motivation of the court in verdicts (De Groot-van Leeuwen, Laemers, & Sportel, 2015). In 2014, 73% of all verdicts were drafted according to the Promis-method (De Rechtspraak, 2014), which means in these verdicts a relative easy to understand motivation was given for the specific sentence. In the present study, in 6 of the examined verdicts no motivation for a specific sentence was mentioned. This means that in 67 (92%) verdicts a motivation for the imposed sentence was given, which exceeds the national percentage of verdicts drafted according to the Promis method. This makes the amount of verdicts in which no motivation was given seem rather small. In the other verdicts where the court did motivate the specific sentence, arguments that could be categorized in the cluster criminal history (which is a contra-indication for sentencing according to juvenile criminal law) were used the most. The most used argument concerning the criminal history of the offender in the
motivation of the court is that the young adult offender has (or has not) already been
convicted earlier for a crime according to his or her criminal record. This argument does not have to be in disadvantage of the offender, it could even be in favor of the offender if he or she has not already been convicted earlier. Within this study no distinction was made between whether the court says something about the criminal history of the offender in favor of- or to the disadvantage of the offender. For example, if the court said that the offender has not been convicted before, this is still coded as “something about the criminal history of the offender is
said in the motivation of the court”. The other notable result is that the contra-indication psychopathic traits is used to argue for sentencing according to juvenile criminal law in 3 verdicts, while according to the law assessment tool this is a contra-indication for sentencing according to juvenile criminal law. In 2 of these 3 verdicts a PIJ-measure was imposed by the judge partly based on the argument that the offenders had an antisocial personality disorder. The PIJ-measure is the most sever measure in the Dutch criminal justice system (van der Laan & Stams, 2008). In short, the judge used arguments about psychopathic traits of the offender not as a contra-indication for sentencing according to juvenile criminal law, but to impose the most severe measure from the juvenile criminal law.
Although the present study gives a first insight in the process of sentencing young adult offenders according to juvenile criminal law by examining verdicts processed by a three-judge panel, it should be noted that this study has a few limitations. All data in this study is gathered from the verdicts. This could be a limitation because important data could be missing, for example not the advisory reports of the NIFP and the probation office were examined but the summaries the court gave in the verdicts. On the other hand, this gives insight in what information is included in verdicts processed by a three-judge panel. In line with this, the amount of young adult offenders that were in pre-trial detention in a juvenile justice institution according to the verdicts, does not entirely add up to the data gathered through the Custodial Institutions Agency. The conclusion that can be drawn from the latter is that the precision of registering data in the criminal justice system could be improved. Finally, this study aimed to examine all verdicts handled by a three-judge panel of offenses committed in the first year after the ‘adolescent criminal law’ came into force, by offenders aged 18 to 23 that were sentenced according to juvenile criminal law. Due to the long processing times in the criminal justice system, not all public prosecutor’s Office Reference Numbers were found in time to include these verdicts in the present study. As a consequence of the small sample
size of this study, no significant association or differences could be proven. However, the WODC will continue to score and examine these verdicts for future research.
A recommendation for future research would be to include two comparison groups: a group of young adult offenders aged 18 to 21 that got sentenced according to juvenile criminal law before the ‘adolescent criminal law’ was introduced in 2014, and a group of young adults aged 18 to 23 that got sentenced according to adult criminal law. The WODC is currently working on research including these comparison groups. Another recommendation for future research is to investigate the term: circumstances under which the offense was committed. Together with the personality of the offender and the severity of the offense, the circumstances under which the crime was committed is one of the conditions that are important for the decision to apply either juvenile or adult criminal law. However, it is not quite clear what exactly these circumstances are. In the Explanatory Memorandum the example is given that when an offense is committed in a group context in which adolescents under and over 18 years old are included, the age-limit should not be so strict to avoid huge differences in sentences (Memorie van Toelichting, 2012). Future research could focus on what the other circumstances are that are not specified in the Explanatory Memorandum, and to what extend information about the circumstances of the offense is mentioned in the
verdicts. The final recommendation is to study the effect of the ‘adolescent criminal law’ on recidivism, since one of the main purposes of this law is to reduce recidivism by sentencing adolescents according to their developmental level.
This explorative study is a first step in studying the process of how young adults get sentenced according to juvenile criminal law since the recently introduced ‘adolescent
criminal law’. With the enforcement of this law, the preliminary stage before the final verdict became important, including the pre-trial claim of the public prosecutor and the advisory reports of the probation office and/or the NIFP. By examining extensive verdicts of young
adult offenders that were processed by a three-judge panel, information about sentencing according to juvenile criminal law was obtained, focusing on the pre-trial claim of the public prosecutor, the advisory reports of the probation office and/or the NIFP and the motivation of the court. This study is a first step to further evaluative research of the ‘adolescent criminal law’.
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Appendix Table 1. Descriptive Characteristics
Note. Numbers based on verdicts, not on individuals.
N %
Verdicts processed by the Three-Judge Panel 73 100% Gender Male 70 95.9% Country of birth the Netherlands 64 87.7% Pre-trial detention Juvenile Penitentiary 29 39.7%
Adult Penitentiary or other institutions 9 13.7%
Table 2
Clusters of the NIFP law assessment tool mentioned in the motivation of the judge Clusters Mentioned in motivation Operational skills Pedagogical influencable Criminal history Psychopathic traits Criminal lifestyle Pedagogical impossibilities Mentioned 19 (26%) 9 (12.3%) 23 (31.5%) 3 (4.1%) - - Not Mentioned 48 (65.8%) 58 (79.5%) 44(60.3%) 64 (87.7%) 67 (91.8%) 67 (91.8%) Motiv. absent 6 (8.2%) 6 (8.2%) 6 (8.2%) 6 (8.2%) 6 (8.2%) 6 (8.2%) Total 73 73 73 73 73 73
Note 1: Absence of motivation in the verdict does not mean the court did not have a motivation.
Note 2: The court is not required to include a motivation about the specific sentence and/or sentencing according to juvenile criminal law in the verdict.
Figure 1. Difference between the pre-trial claim and the claim at the court-hearing of the public prosecutor (PP)
Note 1: Pre-trial detention in a juvenile justice institution is interpreted as the pre-trial claim to sentence according to juvenile criminal law (JCL).
Note 2: Pre-trial detention in an adult penitentiary is interpreted as the pre-trial claim to sentence according to adult criminal law (ACL).
Figure 2. Advice on sentencing according to juvenile criminal law (JCL) or adult criminal law (ACL) of the probation office (PO) and the NIFP.
Note. This information is based on what is mentioned of the advisory in the verdicts, not on the advisory reports itself. The verdicts often have a summary of the advisory reports set up by the probation office and/or NIFP.
Table 3. Relevant variables of the codebook
Variable labels + instruction Format Value labels
Sex of young adult Numeric 0 Male
1 Female 999 unknown
Date of Birth dd.mm.yyyy Date 01.01.1900 unknown
Country of birth String 888 n/a
999 unknown
What type of verdict Numeric 1 Oral Judgment Note (in Dutch: Aantekening Mondeling Vonnis) 2 Extensive verdict
3 Shortened verdict
4 Recovery verdict (in Dutch: Herstelvonnis)
5 Disposal 888 n/a 999 unknown What type of court Numeric 1 Police Magistrate
2 Three-judge panel 3 Appeal
4 Supreme Court 5 Juvenile court judge 999 unknown
Is the young adult offender in pre-trial
detention? Numeric 1 Juvenile Justice Institution 2 Adult Penitentiary 3 Other Institution
4 Not in Pre-trial detention 999 unknown
If the offender is in pre-trial detention,
where? Numeric 1 Juvenile Justice Institution 2 Adult Penitentiary Is the claim of the public prosecutor as
described in the verdict to sentence according to juvenile criminal law or adult criminal law?
Numeric 1 Juvenile criminal law 2 Adult criminal law 999 unknown
Advice of the probation office in the verdict regarding sentencing according to juvenile/adult criminal law
Numeric 1 No 2 Yes
What is the content of the advisory
Advice of the NIFP in the verdict regarding sentencing according to juvenile/adult criminal law
Numeric 1 No 2 Yes
What is the content of the advisory
report of the NIFP String 888 n/a 999 unknown Is the motivation of the judge to
sentence according to juvenile criminal law or motivation for a specific sentence mentioned in the verdict
Numeric 0 No 1 Yes
Is something mentioned in the motivation of the judge that could be covered by the operational skills cluster
Numeric 0 No 1 Yes 888 n/a 999 unknown Is something mentioned in the
motivation of the judge that could be covered by the pedagogically
influencable cluster
Numeric 0 No 1 Yes 888 n/a 999 unknown Is something mentioned in the
motivation of the judge that could be covered by the criminal history cluster
Numeric 0 No 1 Yes 888 n/a 999 unknown Is something mentioned in the
motivation of the judge that could be covered by the psychopathic traits cluster
Numeric 0 No 1 Yes 888 n/a 999 unknown Is something mentioned in the
motivation of the judge that could be covered by the criminal lifestyle cluster
Numeric 0 No 1 Yes 888 n/a 999 unknown Is something mentioned in the
motivation of the judge that could be covered by the pedagogically
approach impossible cluster
Numeric 0 No 1 Yes 888 n/a 999 unknown
