March 27, 2018. This is the second of the blog post series “Reflections on how Europe handles emerging adults in trouble with the law ”by Vincent Schiraldi.
My colleague Lael Chester, Director of the Justice Lab’s Emerging Adult Project, and I recently spent two days in Rotterdam and The Hague touring the Dutch justice system as part of our exploration of how Croatia, Germany and the Netherlands work with young, court-involved adults (Lael and I, along with Harvard Kennedy School student Sibella Mathews, will be publishing a more formal article on those three countries later this year). We focused on the Netherlands’ approach to sentencing young people up to age 23 under juvenile law and, on the rare occasions they are incarcerated, confining them in juvenile facilities.
During our tour we interviewed a Professor from Erasmus University Rotterdam’s School of Law who is also a part time judge (Jolande uit Beijerse); a full time juvenile judge (Lian Pit); a Rotterdam-area probation official (Ruben Laats); a prosecutor (Rolan van Dongen); a juvenile correctional administrator (Marijke van Genabeek); a defense attorney (Luns Van der Velden) and a group of researchers led by Andre van der Laan, PhD, from the Ministry of Security and Justice. We toured a youth correctional facility in which young people could be confined for crimes they committed up to age 23. We also had the opportunity to sit in on the trial of an emerging adult and to chat with him before.
Everyone was incredibly gracious; never before have I consumed so much tea and cookies in a 48-hour period. Professor uit Beijerse was particularly generous with her time, shepherding Lael and I around for two packed days.
The Netherlands has had a separate juvenile code and judiciary for juveniles since the beginning of the 20th Century and has debated special treatment for young adults since the 1950s. In 2011, conservative Dutch State Secretary of Security and Justice Fred Teeven proposed to raise the age at which emerging adults could be treated as juveniles. After several years of debate, the Adolescent Criminal Law passed in 2014, allowing youths whose crimes occurred prior to their 23rd birthday to be included in the juvenile system. Ironically, this wasn’t much of a legal change; it has been possible to sentence youth up to age 21 under Dutch juvenile law since 1965, but in practice this provision was rarely used.
Due to a quirk in adult vs. juvenile court funding, cases of youth over age 18 originate in adult, rather than juvenile court, which has limited the impact of the law. Some of those we interviewed seemed to consider the opportunity to sentence emerging adults under juvenile law as being limited to youth who demonstrated special immaturity, often through borderline IQ levels; “juvenile” type offenses behavior; and other indicators of immaturity like living with one’s parents, still being in school, and not yet attaining stable employment.
Dutch emerging adults are specially evaluated by probation and forensic psychologists who recommend whether they should be handled under adult or juvenile law. These evaluations were especially valued by several interviewees.
A range of “educational” options are available for young adults including specialized probation caseloads and rehabilitative programming. And, as mentioned above, if they are treated under juvenile law, they may be incarcerated in juvenile facilities.
A change in state vs. local funding for juvenile programs was enacted in 2015 which may be limiting the impact of the law by making accessibility of programs for juveniles, as one interviewee put it, “a pain in the ass.” Several of those interviewed agreed, if more gently.
It’s still early so there’s not much data on outcomes (but thankfully, van der Laan and his colleagues are conducting quasi-experimental research on the Adolescent Criminal Law’s impact). Although only .9% of those 18 through 20 were tried under juvenile law prior to 2014, that percentage has steadily risen to 7.3% by 2016. Meanwhile, 1.1% of those 21-23 were sentenced as juveniles in 2016.
Dutch youth age 16 and 17 can be tried in adult court for more serious offenses, but that rarely happens. An argument against raising the age beyond 18 in the U.S. is that crossing that line might make it easier for policy makers to cross the line the other way and try more juveniles as adults. A counter-argument is that the presence of older youth in juvenile court may promote more leniency for 16 and 17-year-olds who were formerly considered older and more serious in juvenile court.
Early results in the Netherlands – and they are early – seem to support the latter argument. Two-tenths of a percent of 16 and 17-year-olds were prosecuted as adults in 2016, down from 2.1% in 2014, a 90% decline in two years.
Put another way, in 2014, 3.1% of 18- to 23-year-olds in the Netherlands were tried as juveniles, while 2.1% of 16 and 17-year-olds were tried as adults. By 2016, only .2% of 16 and 17-year-olds were tried as adults while 4.7% of 18 to 23-year-olds were tried as juveniles.
The Dutch we interviewed were divided as to whether a system that more resembled the German system (where cases of emerging adults up to age 21 originate in juvenile court and two-thirds stay there) is better. Some felt more young adults should be treated in juvenile court, others were comfortable with such treatment being exceptional, while still others were waiting for the evidence to come in. We’ll be paying close attention.
One final point…
There are about 400 youth incarcerated in public or private, non-profit facilities in the Netherlands, a nation of about 17 million people. That number is dwarfed by the 53,000 youth incarcerated in the U.S., a nation of 326 million.
The number of Dutch juvenile institutions has decreased dramatically from fifteen facilities with 2,600 beds in 2007, to only five with 500 beds in 2016. Juvenile institutions are now under review nationwide, with the intention to switch to a customised system of local, small-scale facilities located near the youths’ own social network, combined with a few national facilities with specialized care and higher security. A small-scale pilot was launched in Amsterdam in 2016 providing places for youth who attend school and/or work during the day and return to the shelter in the evening and on weekends.
I’ll write more from our next stop, Croatia, soon…
A version of this blog piece, Raising Age to 23: It Works for the Dutch, was published on The Crime Report, on March 27, 2018.
