Abstract
Evaluations of criminal justice policy focus mainly on effectiveness in reducing recidivism. Public policy evaluations use multiple criteria. For youth justice policy evaluations in particular, compliance with human and children’s rights in everyday practice can be a specific criterion. This article argues for the relevance of using compliance with children’s rights in the daily practice of youth criminal justice as an evaluation criterion, and an example evaluation is provided. In a case study of the Dutch Adolescent Criminal Law (ACL), indicators related to these rights are evaluated in ACL policy theory and practice.
Keywords
Introduction
On the first of April 2014, Adolescent Criminal Law (ACL) was introduced in the Netherlands. With ACL, the legislator aims to enable more flexible use of juvenile or adult criminal law and their sanctions. The maximum age limit for applying juvenile criminal law has been raised up to and including 22 years of age. The main rule for sanctioning young adult offenders is still adult criminal law; under specific judicial conditions juvenile criminal law can be applied to 18- to 22-year-old offenders (Criminal Code (CC) 77c Sr.). 1 This developmentally oriented approach to young adults, allowing them to be sanctioned according to juvenile criminal law, originates from observations that this age group is over-represented in crime statistics, their immaturity in neuropsychosocial development, and the pedagogical and resocialisation goal of juvenile criminal law (Kempen, 2014). 2
When a policy such as ACL is implemented, policy evaluation is a valuable tool to objectively and systematically examine its consequences. A central question in policy evaluations is whether these are effective (Ministry of Finance, 2016; 2018). For criminal justice policies, the question is mainly whether imposed sanctions and interventions reduce crime. However, crime is a ‘wicked problem’ and the results of a policy instrument on crime often remain unclear. With a focus on effectiveness, questions concerning how a policy works in practice (or does not), under what circumstances and for whom remain a ‘black box’ (Astbury and Leeuw, 2010; Pawson, 2013), nor can any insights into other consequences of the policy be obtained (Mickwitz, 2003; Pollitt and Bouckaert, 2004; Vedung, 1997).
In the public policy evaluation (PPE) tradition, a broader set of evaluation criteria is used (Table 1). General criteria, such as the relevance of the policy, its effectiveness and economic criteria (e.g. efficiency or goal attainment), are used in the standard set of criteria. Recently, there has been discussion about whether the standard criteria need revision, and whether policy-specific criteria need to be included (Patton, 2021; Potluka, 2023). Patton (2021) proposed transformative and sustainability criteria to deal with structural societal and environmental changes. Potluka (2023), meanwhile, proposed quality of life. Since criminal justice policy and related sanctioning affect the lives of those involved, we argue that compliance with human and children’s rights in the everyday practice of the justice process and sanctioning should also be added as a criterion in justice policy evaluations.
Public policy evaluation criteria.
In contemporary society, the level of attention paid to complying with human and children’s rights in governmental and organisational everyday practice is increasing (Braithwaite, 2022; Kilkelly, 2008; Weber et al., 2014), not only as a fundamental critique of the actions of totalitarian governments and organisations, but also concerning the everyday practice of governments in more advanced democracies (Weber et al., 2014). In a period in which distrust among civilians regarding governments increases (Foster and Frieden, 2017), a focus on complying with human rights in the everyday practice of governmental actions, organisations and professionals is needed. Human rights guarantee social, cultural and economic equality, as well as democratic freedoms and rights for citizens and groups thereof. At a time when mitigating risks and striving for security and governmental control are increasingly emphasised, human rights provide a theoretical and conceptual framework for posing critical questions about the actions and inactions of governments and non-state actors (Bullock and Johnson, 2012; Weber et al., 2014; Van der Laan, Pleysier and Liefaard, 2023). Evaluating whether the practice of criminal justice and sanctioning process complies with human rights is mainly left to inspections or human rights organisations. It is a very minor part of evaluation studies. Since criminal justice sanctions and interventions affect people’s rights, and individuals are subject to the power of the state, it is important to incorporate complying with human rights in everyday encounters as a policy-specific evaluation criterion for criminal justice.
The aim of this article is to present complying with human rights in the practice of criminal justice policy as an evaluation criterion, next to the standard set of evaluation criteria. An evaluation of ACL theory and practice is used as a case study. Under ACL, specific provisions of juvenile justice became available for young adults. This raises the question of whether, next to human rights in general, children’s rights also should apply to this age group. In the following, we first describe the relation between children’s rights and young adults’ needs. Next, we briefly touch on the relationship between complying with indicators of rights and everyday practice. Complying with rights in everyday encounters between professionals and suspects can improve the justice process. Due to limited space, this discussion is confined and certainly not exhaustive. Second, we evaluate ACL using a standard set of evaluation criteria as a case study. We add a focus on indicators of complying with human rights in ACL policy theory and practice. In the case study, two indicators of human and children’s rights (Indicators of Rights, IoR) are examined. Using interviews with professionals and court decision files, we analysed how these indicators were experienced in the practice of ACL. We examined whether the application of ACL was understandable, which addresses the right of a fair trial (Liefaard, 2015b). We also examined whether young adult offenders who receive juvenile sanctions were offered equal opportunities for resocialisation. This addresses the right to equality (van den Brink, 2021). The rights we studied relate to Articles 14 and 15 of the International Covenant on Civil and Political Rights (ICCPR), and to children’s rights as referred to in Articles 40 and 2 of the UN Convention on the Rights of the Child (CRC). We end with a brief conclusion on the relevance of incorporating complying with human and children’s rights in everyday practice in evaluation studies of youth justice instruments.
Children’s Rights and Young Adults’ Needs
Criminal justice sanctions interfere with offenders’ fundamental human rights (Liefaard, 2015b, 2020). Complying with human rights in the practice of youth justice is relevant for effective processes (Kilkelly and Pleysier, 2023; Liefaard, 2015b; Ward and Birgden, 2007). From a legal point of view, the age of 18 is a fixed one that distinguishes children from adults. This means, for young adults, human rights apply as in general. While the protection of children’s rights only applies to people who commit crimes below the age of 18 according to the UN CRC, various publications endorse young adults having a special position in the justice system. Schmidt et al. (2021) refer to the CRC committee notes in its original general comment on children’s rights (General Comment 10) where it states ‘that some State parties allow for the application of the rules and regulations of juvenile justice to persons aged 18 and older, usually till the age of 21’ (in Schmidt et al., 2021: 177). They continue, outlining that the CRC committee also points to major and rapid changes in development during adolescence and that this is a critical transitional phase. From a judicial perspective, it is, therefore, relevant that there is a specific juvenile justice policy that focuses on rehabilitation and reintegration. They recognise that, in the General Comments, ‘adolescence’ still mainly refers to people between 10 and 18 years of age (Schmidt et al., 2021: 178). According to the Committee of Ministers of the Council of Europe (2008), however, children’s rights also apply to young adults in countries that have separate provisions for that age group (see also Kilkelly, 2008; Schmidt et al., 2021). The Committee (2008: Part I A.17) stated that ‘Young adult offenders may, where appropriate, be regarded as juveniles and dealt with accordingly’. Following these arguments, justice processes should be age-appropriate and based on needs instead of calendar age. This also applies for young adults. Regarding the application of the child justice system, UN CRC General Comment 24, Article 32 states that the child justice system applies ‘to persons aged 18 and older whether as a general rule or by way of exception’. This is in line with neuropsychosocial evidence that shows that brain development continues into the early twenties (General Comment 24, Article 32).
From a neuropsychosocial developmental perspective on life course, young people mature after the age of 18 (e.g. Monahan et al., 2015; Prior et al., 2011). Social developmental studies have shown that contemporary young people reach adult roles, such as finishing high school, having paid jobs or marrying, at older ages in the young adult phase (Arnett, 2000). From a neuropsychosocial developmental perspective, there is no evidence for having a fixed boundary at the calendar age of 18. A needs-based approach is more appropriate. This needs-based approach is incorporated into ACL theory, which also attempts to put the needs and maturity of a young person before the calendar age in the application of juvenile or adult criminal law. The developmental needs-based approach to sanctioning also requires considering children’s rights being applied to young adults.
For children who come into contact with the police or justice system because they are suspected of a crime, specific children’s rights apply (Articles 37 and 40 CRC). 3 Crime prevention is paramount. Criminal offences committed by children should be dealt with outside the criminal justice process when possible (Article 40 CRC), which is a form of diversion (Kilkelly et al., 2023; Liefaard, 2020). In the justice process, the focus for children is on intervening minimally. Custodial sanctions are a last resort (Article 37 CRC). Separate guarantees apply in the judicial process due to age, development and specific needs (Committee on the Rights of the Child, 2019). For example, children have the right to a legal counsellor, contact with their parents or other legal care takers, and the right to care and education. Article 40 CRC also highlights the right to a fair trial (in accordance with Article 14 ICCPR; see Liefaard, 2015b, 2020). The protection under the CRC applies regardless of the circumstances under which a crime was committed or the severity of the offence (Lynch and Liefaard, 2020).
Children’s rights are interconnected and indivisible. In addition to the beforementioned specific rights, general rights also apply according to the CRC (Kilkelly and Pleysier, 2023; Liefaard, 2015a, 2020). With regard to general rights, the interests of the child come first (Article 3). Children’s rights apply to all children without discrimination (Article 2). This means equal treatment in a procedure, and that the decision-making process and outcome contribute to ensuring that children, given their capabilities, have equal opportunities to participate constructively in society (van den Brink, 2021). Children have the right to develop (Article 6) and to have a voicein decisions that affect them (Article 12). Children have the right to good health and healthcare (Article 24), to education (Articles 28 and 29), to play and leisure (Article 31), and to contact and support from their families (Articles 5, 7 and 18).
Rights and Consequences for Sanctioning
Human and children’s rights are not solely a legal issue that should only be incorporated in rules and guidelines. Compliance with indicators of human and children’s rights in daily encounters between professionals and offenders can be relevant to improve the functioning of criminal justice sanctioning, specifically when these indicators relate to behavioural mechanisms. For example, according to procedural justice theory (Tyler, 2003, 2010), offenders who experienced that they have been treated fairly and respectfully, were given voice and could express complaints (all indicators of the rights to a fair trial and to participation) appear to be more inclined to recognise the legitimacy of the professional and to show law-abiding behaviour afterwards. Conversely, perceived unfair treatment by authorities or perceived discrimination can lead to distrust, defiance and increased reoffending rates according to defiance theory (Sherman, 1993). This has been found in how people feel treated by the police, judges and by professionals while in detention (Harvey, 2007; Tyler, 2010).
Contemporary resocialisation theories, such as the Good Lives Model (GLM) (Ward and Birgden, 2007), state that professionals complying with human rights in everyday encounters is important for effective participation in the sanctioning process and for individual offenders to function adequately. According to the GLM, human rights outline the core values of adequate human functioning, namely, freedom and wellbeing. If people are restricted in shaping these values for themselves, such as in a criminal justice process, there is a governmental duty to guarantee these rights and to ensure that practitioners comply with these rights in their daily encounters. The criminal justice process and trial are important stages in encouraging offenders to adopt prosocial lifestyles. The everyday practice of the criminal justice process and the interaction with offenders can affect their wellbeing and resocialisation (Birgden, 2004).
Age-appropriate treatment in youth justice implies that all stages of the criminal justice process and its sanctions should be understandable for young adults too. Offering an understandable justice process is also related to the rights to a fair trial and participation (Kilkelly and Pleysier, 2023; Liefaard, 2015a). In literature, there are indications that, due to their immaturity, adolescents’ competence to stand trial is not sufficiently developed (Monahan et al., 2015). Minors (Grisso, 2000, in: Liefaard, 2015a) and young adult offenders often do not have the mental capacity to understand criminal justice processes (Monahan et al., 2015). They are less able to communicate with criminal justice officials and to understand the process, and are consequently less able to participate effectively (Loeber et al., 2012). This means the involved professionals need to be transparent about the process and explain the process in plain understandable and age-appropriate language to increase the chances of effective participation. Specialised divisions and experts that know about the developmental stages of adolescents and juveniles are important throughout the justice process (Andrews, et al., 2011; Kilkelly and Pleysier, 2023). A lack of understanding of the justice process may have short and long-term negative consequences. Young people who do not understand the process and trial may experience high levels of anxiety and stress, limiting their competence to stand trial (Rap and Weijers, 2014). In the longer term, not understanding the sanction and the sanctioning process can increase feelings of injustice and induce coping difficulties in prison (Kilkelly and Pleysier, 2023; Harvey, 2007).
These examples show that compliance with indicators of human and children’s rights can influence the functioning of the criminal justice process, sanctions and interventions. Consequently, compliance in practice can be seen as an important criterion in the evaluation of criminal sanctions or interventions, next to effectiveness. A multitude of rights are relevant when young people come into conflict with the law (see, for example, Kilkelly and Pleysier, 2023; Liefaard, 2015b, 2020), human rights as in general but, in youth justice systems with special treatment for young adults, children’s right can also apply. The rights can be translated into indicators related to everyday encounters of professionals with offenders. Table 2 provides some (non-exhaustive) examples regarding the right to equality or non-discrimination (Article 14 ICCPR, Article 2 CRC), the right to a fair trial (Article 40 CRC; Article 14 ICCPR) and the right to participate (Article 12 CRC).
Justice policy-specific criterion: indicators of compliance with human and children’s rights in practice (not exhaustive).
A Case Study
From the PPE perspective, an evaluation of a policy instrument that focuses on a wicked problem should not be limited to only looking at effectiveness (Astbury and Leeuw, 2010; Mickwitz and Hildén, 2006; Pollitt and Bouckaert, 2004). PPE distinguishes between standard criteria, like policy relevance, goal attainment and effectiveness, but also policy-specific criteria (Patton, 2021; Potluka, 2023) under which we also can include complying with human rights. We used multiple criteria for the case study evaluating the ACL. It is important to have a broad view when evaluating a policy instrument so one perceives not only intended consequences but also unintended ones. So, before describing in more detail how compliance with indicators of children’s rights was reflected in the ACL policy theory and ACL practice, we first present the overall evaluation of ACL (for a more comprehensive analysis, see Van der Laan et al., 2021).
In an initial set of studies (Van der Laan et al., 2019; Van der Laan et al., 2021 ), ACL was evaluated using a selection of general PPE criteria (see Table 3). The policy theory was reconstructed, and the assumptions of it were evaluated against scientific evidence (relevance). We also studied whether ACL goals were reached using key performance indicators of the involved organisations in the criminal justice process (goal attainment), and the effectiveness of ACL in reducing crime among young adults (effectiveness).
ACL findings regarding standard evaluation criteria.
According to ACL policy theory, the overrepresentation of adolescents in crime is related to immaturity in neuropsychological development (Kempen, 2014). By considering the maturity of a suspect and the circumstances under which the offence was committed, a court can impose tailored, age-appropriate sanctions and interventions. Forensic experts from probation services and the Netherlands Institute for Forensic Psychiatry and Psychology (NIFP) advise on the criminogenic risks and needs of the young adult, their maturity, whether a juvenile sanction is more appropriate than an adult sanction and what intervention fits best. The suspect must appear in court during the trial if the judge considers applying juvenile justice on the young adult. A juvenile judge should be involved. The pedagogical approach of juvenile criminal law offers an immature offender more opportunities for education and resocialisation than the more retaliation-oriented adult criminal law. Juvenile criminal law’s focus on resocialisation offers possibilities for desistance. 4
The assumptions of ACL theory are partially supported by scientific evidence. Adolescents are over-represented in crime statistics (Farrington et al., 2012; Loeber and Farrington, 2014), and the development of criminogenic factors continues into young adulthood (Monahan et al., 2013; Prior et al., 2011). Capacities like impulse control, risk aversion, resistance to peer pressure, sensitivity to rewards and the ability to be future-oriented mature in mid-adolescence (Monahan et al., 2015: 590). This development continues beyond the age of 24 too (Prior et al., 2011). Consequently, there is heterogeneity in risks and needs among young adults who come into conflict with the law. Adequate screening and sanctioning young adults should account for these differences. A valid screening of criminogenic risks and needs, and tailored interventions focussed on resocialisation are relevant to desist from crime (Andrews and Bonta, 1994; Lipsey, 2009). Sanctions aimed at resocialising and offering therapeutic care decrease recidivism more than sanctions aimed at deterrence (Koehler et al., 2013; Lambie and Randell, 2013; Loeber et al., 2012). On the other hand, the scientific evidence for some of ACL’s specific assumptions is limited. The concept of immaturity is complex (Prior et al., 2011; Prop et al., 2020). Little is known about the longitudinal relationship between immature neuropsychosocial development and the continuing of or desistance from a criminal career (Monahan et al., 2013; Prior et al., 2011), as well as regarding the consequences of sanctions and the sanctioning processes imposed on young adults (Dünkel and Pruin, 2012).
Before implementing ACL, predictions were made regarding the expected trends in key performance indicators of involved criminal justice organisations, such as the prosecution office, probation services and court (Jongebreur and Reitsma, 2014). As these predictions anticipated, the percentage of 18- to 22-year-olds for whom juvenile criminal law was requested, advised, applied and executed has increased over time. An increase from 3.2 to 10 per cent in the number of court sentences with a juvenile sanction among young adults was expected beforehand, particularly among those aged 18–20 years old (Jongebreur and Reitsma, 2014). Juvenile criminal trials among young adults did increase from less than 1 per cent in 2012 and 2.5 per cent in 2014 to 8 per cent in 2021. The increase mainly concerned 18- to 20-year-olds. There was a small increase in the application of juvenile criminal law among the group for which juvenile criminal law was recently introduced (from 0 to 2 per cent of 21- and 22-year-olds sanctioned). The results point to goal attainment in the application of ACL in accordance with expectations. However, regular adult criminal law was still applied in 92 per cent of the cases (Tollenaar and Van der Laan, 2023). Although goal attainment as set by the policy itself was achieved, one can wonder whether or not the bar has been set very low. The idea behind ACL is that young adults show developmental immaturity, increasing the odds they commit crime. Therefore, from a developmental perspective, one could argue that most young adults in conflict with the law should be tried under juvenile criminal law instead of a small minority. For example, in countries such as Germany and Austria, the percentages of young adults who receive juvenile sanctions are much higher (Pruin and Dünkel, 2015; Zeijlmans, Sipma and Van der Laan, 2021).
Whether ACL is effective was studied in a quasi-experimental study using observational data (Prop et al., 2023). Differential effects on recidivism and resocialisation indicators were found. Young adults who received a juvenile sanction in 2014–2016 were compared with a matched control group of young adults who received regular adult sanctions. The outcomes on recidivism were compared using propensity score matching (based on 16 characteristics related to demography, family, school and criminal career). The effects of a juvenile sanction on reducing recidivism 2 years after the sanction appeared to be neutral to negative. Without distinguishing in terms of the type of sanction (community order or detention), a juvenile sanction was associated with a higher percentage of recidivism. Focussing solely on detention, no differences were found in recidivism rates (Prop et al., 2023). In addition, Prop et al. (2025) found that the effect of juvenile sanctions on recidivism may be mediated by keeping conventional social ties (e.g. having a paid job or studying). Among young adults who receive juvenile detentions, mediation analyses showed that juvenile detention had positive effects on them keeping their paid jobs or remaining in study which, in turn, showed a small negative effect on recidivism 2 years after detention. Whereas the effects were small and nonsignificant, this could point to an indirect positive effect of ACL on recidivism via resocialisation.
To summarise, the use of standard evaluation criteria showed mixed results about the practice of sanctioning young adults with juvenile sanctions. The assumptions of the ACL policy logic are empirically based, and ACL offers opportunities for desistance from crime for young adults. While a quasi-experimental study showed no or adverse effects of ACL on recidivism, it also showed small positive effects of keeping conventional social ties when young adults were sanctioned with a juvenile sanction. Conventional ties can increase desistance from crime (Sampson and Laub, 1993).
ACL and Indicators of Human and Children’s Rights
Human and children’s rights are meant to be complied with in the everyday practices and interaction between professionals and offenders. We studied whether ACL offered possibilities to comply with two indicators of rights (IoR) in theory and in practice. Our research was limited to indicators of the right to a fair trial and the right to equality.
First, we studied whether ACL policy theory offers possibilities for compliance with indicators of a fair trial. We investigated whether stages in the criminal justice process could be understandable for young adults as an indicator of the right to a fair trial (Liefaard, 2015a). An understandable process and sanctioning are important so that offenders can effectively participate (Parkes, 2013). The right to a fair trial is derived from Article 14 ICCPR (Liefaard, 2015a). 5 Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) also describes effective participation as a condition for a fair criminal trial. 6 In the CRC, the rights of juveniles in contact with the law is set out in Articles 40 7 and 37. Being able to understand the process and sanctioning is part of a child-friendly justice system (Committee of Ministers of the Council of Europe, 2008: 17). In a fair trial, young people can participate effectively and are treated age-appropriately at every stage (Kilkelly and Pleysier, 2023; Liefaard, 2015b). This implies that young people should understand every stage of the process. It does not mean that every detail should be understood, but the general process and main decisions should be transparent and clearly communicated. A clear explanation of the justice process, forensic advice and judgement are important to participate effectively (Liefaard, 2015a). Specialised divisions within organisations and the specialisation of professionals can be important (Kilkelly and Pleysier, 2023). Professionals that know about the development of young adult offenders and the opportunities of juvenile criminal law are supposed to interact age-appropriate and to be able to explain the process in an understandable manner.
Next, we focussed on equal opportunities for resocialisation as an indicator of the right to equality (Van den Brink, 2021). The right to equality in the justice process follows from Article 14 ICCPR and Article 2 CRC. 8 Equality can be divided into ‘material’ and ‘substantive’ equality (Van den Brink, 2021: 3; Weber et al., 2014: 62). The first relates to non-discrimination of people or groups, and means that people must be treated equally regardless of sex, race, colour, social origin or anything else (Committee of Ministers of the Council of Europe, 2008). The principle of non-discrimination forbids ‘treating differently similar situations without an objective justification’ (Van den Brink, 2021: 2). Substantive equality focusses on the equal realisation of rights, which may require juveniles to be treated differently to achieve equal outcomes. Regarding youth in the criminal justice process, this can mean that each child or young adult should be given equal opportunities for resocialisation and to play a constructive role in society. This is possible when initial differences between individuals are objectively assessed and age-appropriate sanctions and interventions fit the risks and needs of the young offender (Van den Brink, 2021).
ACL Theory and IoR
The policy theory of ACL offers young adults a needs-based approach and possibilities to achieve an understandable process and equality in sanctioning. Depending on the judicial conditions, ‘personality of the offender’ and the ‘circumstances in which the crime is committed’, adult or juvenile sanctions and interventions can be imposed. In theory, ACL offers possibilities to explain the sanctioning process, advice and decision clearly to the young adult. The compulsory attendance of the young adult at the hearing and trial offers possibilities for the court to explain their judgement while considering the maturity of the young adult. The young adult is obliged to appear in court during the hearing. Legal assistance is offered from the beginning of the justice process. Competence to stand trial and maturity of an offender are related (Monahan et al., 2015: 591–593). Besides, a clear explanation of the process, including the imposed sanction and intervention, can be helpful in accepting the sanction so the adolescent can be motivated to start with an intervention (Ward and Birgden, 2007). These elements address the right of a fair trial.
Furthermore, the aim of ACL is to offer age-appropriate, tailored sanctions and care in order to increase chances for resocialisation. Young adults’ criminogenic risks, needs and immaturity have to be assessed pretrial in order to offer tailored sanctions or interventions. To offer age-appropriate justice processes and interventions, activities in the pretrial stage are emphasised. In their pre-claim, the public prosecutor should announce whether a regular adult process and sanctioning is intended, or whether a juvenile one is considered better suited (Article 63 Code of Criminal Procedure (CCP)). In case of the latter, specialised divisions from forensic institutions, such as the probation service and the NIFP are asked to advise on the risks, needs and maturity of the young adult. ‘ACL’ screening instruments have been developed, which can help forensic professionals of the probation service (Buysse and Scherders, 2015) and the NIFP (Vogelvang and Kempes, 2015) to assess the maturity and needs of the offender objectively, to advise the judge whether juvenile law should be imposed and what kind of intervention or care is necessary and available. The judge ultimately decides whether juvenile sanctions and interventions are imposed. These elements relate to substantive equality under which young adults are offered equal opportunities for resocialisation to develop a constructive role in society (in accordance with Article 2 CRC).
ACL Practice and IoR
The practice of ACL was investigated in three empirical studies. The data were collected between 2015 and 2022. In a first study, semi-structured interviews were held with professionals from probation service, NIFP, public prosecutors’ office, (youth and adult) court and (juvenile) detention institutions (Barendregt et al., 2018). In total, 62 professionals were interviewed. In a follow-up study (Van der Laan et al.,2021), professionals from the same organisations, plus the youth probation service, were surveyed and interviewed in focus groups. In total, 45 professionals completed the survey, and 33 participated in one of the six focus groups. In these studies, professionals were recruited via their national organisations; participation in the study was voluntary. Participants had to have experience with young adult offenders in their daily work. Since the aim was to evaluate how ACL in practice worked, we ensured distribution of professionals over all court districts in the Netherlands.
Topic lists were used in both studies to investigate the relevant stages of the justice process: prosecution, advice, trial and execution of sanctions, and interventions. Professionals were asked whether the stages of the claim, forensic advice, hearing, judgement and the implementation of juvenile criminal law were transparent for them and young adults. This question pertained to understandable processes. It was also asked whether ACL offered equal opportunities for young adults to realise a constructive role in society after the sanction.
In a third study, court files were selected of cases against young adults to whom juvenile criminal law was considered and/or applied in 2019 from the public web database of the Council of Judiciary. A query with the keywords ‘77c’, ‘adolescentenstrafrecht [adolescent criminal law]’ or ‘ASR [ACL]’ was used to select the files. A total of 159 verdicts were found and included in the study. We selected court files with full information regarding the arguments of all involved parties in the processes. In total, 60 cases were analysed. The individual and group interviews, surveys and cases were analysed inductively. The interview notes and verdicts were coded by one researcher using the programme MAXQDA; a sample of these verdicts was coded by a second researcher. Texts that provided insight into various facets of the functioning of the adolescent criminal justice system were marked and then analysed. 9
Our empirical case study has its limitations regarding the measurement of compliance with human rights in the everyday practice of ACL. The original aim was to investigate the functioning of ACL in practice and its effectiveness; not to study compliance with human rights. However, some unintended consequences found in the practice of ACL consisted of problems regarding being able to comply with human rights indicators. We have only highlighted a limited aspect of this based on professionals’ perspectives. We did not study the experiences of young people themselves. By design, the study was primarily focussed on effectiveness that could be studied retrospectively based on observational data, and on the process as viewed by professionals. The unintended consequences, such as those related to compliance with rights in practice, were discovered as bycatch, but it turned out to be relevant. However, this omission means that the findings cannot be generalised to compliance with other human rights in ACL, nor to the whole criminal justice process, nor to the experiences of young adult offenders themselves. In future research, it is, therefore, important to conceptualise and operationalise human or children’s rights in advance and by design to include juveniles and young adults to give them voice about their experiences throughout the criminal justice process.
An understandable process?
According to most of our respondents, the sanctioning process, advice and decisions made were far from clear for most young adults. ‘They often do not understand their case, and the process, what it is about, and how the justice process works’, according to a public prosecutor. One probation officer mentioned, ‘There is a lot going on for these young adults. They often do not know how it [the criminal justice process] works’. A public prosecutor said, ‘Maybe you can explain it to them, but the uncertainty [of the process and sentence] lasts long and makes it hard for them to understand’.
Some public prosecutors and lawyers mentioned that young adults often do not understand why they were taken into pretrial detention in a juvenile institution with pedagogical obligations. Probation officers stated that young adults do not understand why they receive a juvenile sanctioning process instead of an adult process. For example, young adults did not understand why they received help from juvenile probation service instead of adult probation service. One public prosecutor stated: ‘Young adults often do not understand the advantage of night detention with compulsory school attendance during the day, or an intervention in a juvenile detention centre compared to “doing nothing at all” in adult prison’.
In addition, officers and judges experienced conflicting forensic advice from probation service and NIFP about the development of young adults and the application of youth sanctions or interventions. Due to the use of jargon, the advice of forensic experts concerning young adults was sometimes ‘. . . even for judges hard to understand’.
In a third of the court files, we found judges explaining the criminal process and judgement in depth. In these written verdicts, judges described the case, claim, advice, imposed sanction and whether juvenile or adult law was imposed. A comprehensive written motivation by court for the sanction system to be applied, whether adult or juvenile law, is not legally mandated. An extensive motivation, including the motivation for the applied system, was mainly present when there was contradictory forensic advice from the probation service and the NIFP. In another third of the cases, the motivation was limited to mentioning the legal conditions (‘person of the offender’ or ‘circumstances of the offense’ Article 77c CC) without a further explanation for the applied sanction system. In the other cases, a written motivation of the judge was limited to the claim, judgement and sanction, or was not available at all.
Another aspect that can help to create an understandable justice process is the involvement of professionals who have specialised knowledge of adolescent development and the juvenile criminal process and sanctions. In ACL, it is stipulated that, at the start of the process, the public prosecutor must mention whether adult or juvenile law will be claimed (Article 65 CCP). In the latter, specialised services from youth probation and NIFP, as well as a juvenile judge, can get involved. According to ACL, it is obligatory for the execution of a sanction to follow the applied justice system (e.g. a juvenile justice sanction is followed by a placement in the juvenile system). However, in practice, we noticed also that adult probation services would get involved instead of juvenile probation services. When cases were dealt with by police courts, this would be an adult process. This means the ‘theory of law’ and the ‘practice of law’ are not always in line. According to most respondents we interviewed, knowledge of and experience with the possibilities of juvenile criminal law differed between professionals. This was related to professionals in all stages from claim and advice to trial. Because adult law is still the regular law for young adult offenders, most public prosecutors and judges deal primarily with adult criminal law. Their knowledge about maturity in adolescence is limited. They have limited experience with juvenile criminal law and are insufficiently familiar with the possibilities of juvenile criminal law and youth care for young adults. Their knowledge and experience vary nationally. In some districts, professionals who were specialised in adolescent development and ACL formed specialised ‘ACL knowledge’ divisions. In other districts, specialisation is limited, and specialised networks of professionals are absent.
Equal opportunities?
Following the line of substantial equality, equal opportunities can be given with an objective selection of offenders and tailored interventions. Objective selection requires an unambiguous description of the target group and the use of valid screening instruments focussing on needs. However, in the practice of ACL, there is no clear description of the target group of ACL. Juvenile criminal law is intended for young adults with immature neuropsychosocial development. 10 The characteristics of the target group are not specified by law nor in regulations derived from it. Several groups are mentioned in Parliamentary papers, such as frequent offenders, young people with mild mental disabilities, vulnerable young people 11 or young adults involved in offences that lead to pretrial detention. 12 The guidelines of the Public Prosecution Office, work regulations from the probation service and the NIFP do not provide a clear description of the ACL target group.
Because the use of ACL screeners by forensic experts is not mandatory, these were not always used in practice. No screening instruments were used in around half of all the pieces of advice given by the probation service in 2015–2019. Professionals have a broad discretionary remit in formulating their advice regarding the maturity of the young adult concerned, whether juvenile or adult criminal law should be imposed, and which intervention is needed. In interviews, it was mentioned that professionals mainly relied on their knowledge and experience when making a claim or writing an advice, instead of using the screeners. A judge said,
‘There is a major role for screening and application of the criteria. The criteria are not always used in the same way. There may be different [screening] lists, but the criteria are not clear enough for everyone. This can of course lead to inequality’.
According to the CRC, interventions and care for juveniles should be in line with their maturity. When imposed by a judge, young adults sentenced with juvenile sanctions can receive specialised forensic youth care due to their immaturity. However, for young adults facing juvenile sanctions, similar problems were present with youth receiving care as for minors. As a result of the implementation of the Youth Act in 2015, receiving youth care depends on the municipality in question (Bruning et al., 2018; Friele et al., 2018). Small municipalities cannot or can hardly provide or finance complex forensic youth care, nor are they always aware of the obligation to do so for young adult offenders. Forensic youth care was limited, not available on time or even unavailable in some regions. According to a judge,
‘It is still hard to find an appropriate place [for treatment], especially for young people with multiple problems. That is very much related to financing. Sometimes they do not have the right health insurance. And then you think: it is easier to try them as adults, because then there is treatment available’.
Adequate and available forensic youth care for young adults was found to be difficult. In the advisory phase, it was often impossible to refer the young adults to a juvenile care facility, because the probation service could not refer to them. Young adults could only receive youth care when it had already been imposed by a judge (art. 3.5 paragraph 4 Youth Act). In addition, providing suitable housing for young adult offenders, for which municipalities are responsible, was also difficult. These problems occurred more often in smaller municipalities where forensic youth care was limited.
ACL and Compliance with Rights in Practice
To summarise and conclude the case study on ACL, by evaluating it, we found that this youth sanctioning policy in theory was partly in line with a human and children’s rights perspective in the indicators on which we focussed (see Table 4). It is a developmentally oriented and needs-based approach that focusses on age-appropriate interventions. However, in practice, a variety of indications were found that hindered an understandable process or the offering of tailored sanctions or youth care to young adults. This indicates that, in the practice of ACL, it does not comply with indicators of the right to a fair trial or the right to equality. Consequently, the practice of ACL can limit the success of a policy. In addition, the limited extent to which ACL is applied does not contribute to an understandable process and equal opportunities for young adults. The limited number of young adults that receive a juvenile sanction is partly due to the fact that the application of the ACL is an exception by law. In the Netherlands, it has been decided that the regular application of sanctions for young adults remains adult criminal law, and that juvenile criminal law is only applied under certain conditions. However, from a developmental perspective, it could be argued that juvenile justice could apply to a much larger proportion of young adults, as happens in Germany or Austria (see Pruin and Dünkel, 2015; Zeijlmans, Sipma and Van der Laan, 2021). Second, if ACL is seen by the prosecutor as an option for a young adult offender, they may also have to deal with judges who have limited knowledge of or experience with adolescent and young adult development, maturity and juvenile sanctions. However, in practice, all kinds of training and knowledge networks have been created to improve this. This legal construction and practice not only limits the number of young adults who are tried under juvenile criminal law, but it may also contribute to the fact that the sanctioning process is not clear or cannot be explained clearly by the professionals involved because there is a lack of experience and knowledge about the treatment of young adults. As a result, ACL in practice may not be in line with the idea of the CRC or the vision of the Committee of Ministers of the Council of Europe (2008). The latter states that if a country has specific options in the sanctions system for young adults, it is preferable to use these in line with contemporary evidence on neuropsychosocial development of young adults. From this perspective, it would be advisable to have a second look at the legal construction and practices in other countries, such as Germany and Austria (see also Pruin and Dünkel, 2015; Zeijlmans, Sipma and Van der Laan, 2021).
ACL findings regarding compliance with indicators of human and children rights in practice.
Conclusion
Evaluations of criminal justice policy, sanctions and related interventions often focus on whether they are effective. This provides insight into whether a policy, sanction or intervention works, but it ignores other unintended consequences (Pawson, 2013), such as problems with compliance with human or children’s rights in everyday practice. In the PPE tradition, it is recommended to use multiple criteria in the evaluation of a policy instrument, including policy-specific criteria. In this study, it has been argued that compliance with human rights in practice is relevant as an evaluation criterion for the criminal justice policy, in addition to effectiveness. In a case study of the ACL in the Netherlands, we described the evaluation of this youth policy in theory and practice using multiple criteria, including two indicators related to compliance with human and children’s rights in practice. The human rights perspective provides criminal justice professionals with an ethical framework to use in everyday encounters that are responsive to an individual offender’s needs and criminogenic factors. It is also argued that for still-maturing young adult offenders, a development-oriented approach that focuses on needs is necessary. This implies that children’s rights with a focus on development and needs are appropriate for this age group. Compliance with children’s rights in everyday practice is in line with development-oriented sanctioning of adolescent offenders and thus contributes to the improvement of the justice process and sanctioning. Problems that arise in everyday practice, on the other hand, can have unintended consequences for the efficacy of the justice process on the life course of young people. In general, evaluations of youth justice policy instruments, including sanctions and interventions, should not be limited to standard evaluation criteria like effectiveness, goal attainment or efficiency. The evaluation of policy instruments using policy-specific criteria, such as compliance with rights in daily practice, can offer valuable insight into the unintended consequences of a policy. In this study, we have provided an example of how compliance with children’s rights in the daily practice of a youth criminal justice policy can be applied as an evaluation criterion, next to a standard set of criteria.
Footnotes
Acknowledgements
We would like to thank the editor professor Kilkelly and the anonymous reviewers of Youth Justice for their valuable comments on earlier drafts of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship and/or publication of this article: The research programme Evaluation of ACL is partly funded by the Dutch Ministry of Justice and Security. The funder has no role in the design, data collection, analysis or execution of the study.
Consent to participate
For the case study professionals were interviewed. Consent to participate was obtained through a written request to their organisations. Participation in the focus groups was voluntary.
