Young Adults in the German Criminal Justice System

I spent last week in Germany, visiting prisons and courts to study how they handle young adults. The Columbia University Justice Lab organized the trip for a group of legislators and practitioners from Massachusetts. Our German hosts were very generous with their time and candor. Their passionate commitment to rehabilitating young adults was inspiring.  This post collects my impressions from the trip and some questions for follow-up.

Justice — Process

For a practitioner steeped in our constitutional law and our criminal justice practice, it was an absolutely dizzying experience to watch a trial in a German court room. The judge and the prosecutor sat side-by-side wearing similar robes above the late teen defendant. The defendant had maliciously threatened a woman on the subway with a fake gun and had a prior record of similar behavior. He faced the possibility of some weeks or months of incarceration. Yet, he was alone before the court with no lawyer.  A social worker who had prepared him for the experience was present in the courtroom, but not near him. The judge and prosecutor heard from the victim. They asked the defendant questions and lectured him and determined that he appeared to be working and in a relationship. The judge ultimately sentenced him to pay a compensatory fine.

Both judges and prosecutors are life-tenured civil servants hired by the Ministry of Justice. The ministry hires judges and prosecutors at the completion of their legal training — four years of undergraduate legal education followed by an exam, then two or three years of legal apprenticeship then a second exam. The ministry hires high scorers on the exams. The judges and prosecutors we spoke with took great pride in their work — they were all deeply committed to finding truth and crafting appropriate dispositions.

The prosecutor has a supervisory role over the police in determining what cases should come before the court, but once the case is before the court, the judge  drives the trial process.  The judge can call witnesses and interrogate them.  In cases where there is a probability of a longer incarceration, the defendant is entitled to a lawyer, but the role of the defense lawyer is not to “get the kid off”, rather to assure that his version of truth is heard and considered and he gets a fair shake.

More serious cases may be heard by a panel of judges — two lay judges together with either one or, in the most serious cases, three professional judges. The lay judges are sometimes chosen by a random process remotely similar to our jury selection process, but people can volunteer for the part-time role and usually there are sufficient volunteers.

The German justice system, while allowing for some lay input, places its faith primarily in smart civil servants of high integrity. By contrast, American justice grows out of mistrust of the King’s justice. We put the truth finding function in the hands of a lay jury. We expect defense counsel to assert whatever available arguments that might lead the case to fall apart. Judges are senior lawyers who, during a trial, mostly referee the performance of the defense and the prosecution before the jury. If a judge has a perception of where the truth lies, it is their duty not to convey it to the jury.

Justice — Substance

At dinner one night I had the good fortune to be seated next to a judge with 20 years on the bench judging young adults. She effused about her efforts to craft just the right individualized disposition in each case — to understand the educational needs of the defendant, what drew him into crime and what would be most helpful in getting him on track.

The next day, her husband, a prosecutor, presented the case of a young Russian immigrant who had stomped his grandmother to death in a rage when she wouldn’t help him out financially. To the examining coroner, the victim’s body looked as if it had been retrieved from a plane crash. The court, with the prosecutor’s support, sentenced the young man to 6 years in prison. The judgment of the court was that 6 years would be enough to get the young man the help he needed to avoid future misconduct. Decades later, he has not committed a subsequent offense of that gravity.

He shared the case to emphasize the point that for juveniles under 18, the sole question in sentencing is what it will take to rehabilitate them.   The intervention should be as limited as possible. For adults (over the age of 21), protecting the public and defending the credibility of the enforcement process are legitimate reasons to impose a harsh sentence. For emerging adults (18, 19 or 20 years old), the court has to evaluate whether they were acting like a juvenile or as an adult, but in the large majority of cases, emerging adults are found to have been acting as juveniles and sentenced according to juvenile law.

The maximum penalty for any crime committed by a person under 18 (or a young adult under 21 who is treated as a juvenile) is 10 years.  Life sentences are available for adult defendants. However, as our Massachusetts Supreme Judicial Court has held for juveniles, the national German constitutional court has held that even adults should eventually have a chance at parole.

Children under 14 have no criminal exposure, but may be found to be in need of care.  Social service and health interventions may, in rare cases, involve secure detention, but children cannot be prosecuted.  In Massachusetts, the minimum age for prosecution is 7 and we may move it to 12 if our pending reforms are enacted, but we would still be below almost all European countries.  In theory, children in need of care may receive welfare assistance all the way to the age of 27, but, in practice, assistance is limited after age 18.

Although we couldn’t make a systematic apples-to-apples comparison, sentences appear considerably shorter than in  Massachusetts.  Collateral consequences are also much more limited.  Newspapers generally do not publish defendants’ names. Criminal records are expunged after 5 years of clean time or 10 years for the more serious offenses. Even before expungement, criminal records are private, although employers can ask a prospect to provide a transcript (which will not include youth court convictions unless incarcerated resulted).

Sex offenders may serve long periods of probationary supervision, but their names are never published.  Supervisory professionals expressed eagerness to intervene to prevent arrangements that might create opportunities for sex offenders to re-offend.  In our system, we do not ask potential victims to trust probationary supervisors.  We insist on disclosure so that people can make their own decisions about whether their contacts with a sex offender pose unacceptable risks.  Of course, the result in our system is that  convicted sex offenders have enormous difficulty finding housing and employment and may, in turn, be more likely to re-offend.

A theme that recurred in our conversations is the enormous independence of both prosecutors and judges — neither is ever required to face popular election and they take pride in making decisions based on science, the facts and the law, with no regard to public opinion.

Corrections — Prisons

We visited two youth prisons — one in Berlin and one in rural northern Germany.  We also spoke with probation officers and treatment providers in both areas.  Across the board, the commitment to rehabilitation of offenders was impressive.

An opinion of the German high constitutional court led to the passage of the Federal Prison Act of 1976 which set the following principles in stone:

Life in penal institutions should be approximated as far as possible to general living conditions.

Any detrimental effects of imprisonment shall be counteracted.

Imprisonment shall be so designed as to help the prisoner to reintegrate himself into life at liberty.

In other words, as explained by the leader of the rural correctional system, loss of liberty is punishment enough;  the daily conditions of incarceration should not add to the punishment; rehabilitation is a central goal.

These principles are echoed in the Youth Prison Acts in the states that we visited. According to our guides, these laws emphasize rehabilitation for youth. We could see that rehabilitation is strongly embraced by all who work in the system.   We did hear a polling result that 58% of the population perceive the youth justice system to be too lenient, but since the youth justice policies are based on high court opinions, there is no political movement to change direction.  We gathered that day-release policies were one area where prison officials had to play defense, regularly producing statistics to show that return rates are near 100% and crimes committed by people on release are exceedingly rare.

Correctional officers in young adult prisons get two years of training.  They like their job and believe that they are making a difference:  “We respect and value our clients and their self esteem increases.”  A  plan for programming and re-entry is designed for each inmate at the start of their sentence.

Both youth prisons required their convicted prisoners to engage in full days of group activity.  The emphasis, consistent with German education overall, was on vocational training — carpentry, metal working, agriculture, etc. — more so than on academic schooling.  The work they do inside the walls can be counted towards completion of required apprenticeships in the trades.

Behavioral health programming was also available, but not psychiatric medication.  In many Massachusetts facilities, psych meds are widely distributed.  Germans perceive Americans to be generally over-reliant on medication  and rarely distribute psych meds to inmates.  The most serious mental health cases are handled in a separate mental health system that we didn’t get a window into.

The facilities felt safe.  Many dangerous tools were accessible to prisoners and there appeared to be no concern that prisoners might use them for violence. At the facility in the rural area, staff and inmates dined together in a spacious dining room (shown below) with hanging plants and picture windows.  This was impressive since the majority of youths had been sentenced for violent offenses and most were in the volatile 19 to 25 age bracket (detained on longer sentences for offenses committed under the age of 21).

I didn’t see it, but others in our group raved about the accommodation for young mothers in the rural facility.  Mothers lived with their babies in rooms that were as cheerful as any apartment.  Children are not to be punished for the sins of their parents.  They are allowed to remain with the mothers until roughly 3 or 4, an age at which they might become aware that they are incarcerated.

The facility in the rural state was  new and very nice — the brutal East German communist facilities had to be completely demolished and replaced after reunification.  The facility in Berlin, while of similar program design, was older and less comfortable.  Although the politics in Berlin are more liberal and the state might be expected to invest in a better facility, the government has high debt levels after reunification and has experienced budget cutting pressure.

One thing that gave some of us pause was that in both prisons, the prisoners were confined to their rooms with solid doors.  The prison leaders felt that this was an issue of respecting the privacy of inmates.  The rooms were adequately sized and inmates could make themselves at home with radio and television.  One inmate serenaded us with a tune from his keyboard.   Certainly, the closed doors made the facility quieter and more orderly.  Yet, the amount of time locked-in appeared to approach 12 hours per day and the full isolation seemed potentially unhealthy and risky.  Inmates seemed to spend time struggling to communicate through their open exterior windows.

Another thing that gave us pause is that, at least in Berlin, visits are limited to 2 hours twice per month. Until inmates work themselves up to higher privilege levels through good behavior, they can only see family.  We didn’t it nail it down, but we informally heard numbers that suggested a higher rate of suicide than in comparable Massachusetts facilities.

We did not visit any adult prisons, but we understood that the emphasis on rehabilitation is much less.  Rehabilitation is  perceived as a worthy goal for adults, but the system chooses to invest finite rehabilitation resources in young people.

Corrections — Community

We met with probation officers and service providers in Berlin and in northern Germany.  There is a close partnership between community supervisors and the prisons.  If a person under community supervision is incarcerated, their supervisor will communicate with the prison to assure continuity of rehabilitation and education efforts.  Similar communication occurs at re-entry to assure a smooth transition back to the community.  We heard astronomical job placement rates — 70%.

The community supervisors were mostly trained social workers  The ratio of youth clients to youth probation officers appeared to be about 40 to 1 in Berlin — lower than in Massachusetts.  Supervisors seemed to fully own the challenge of positively motivating defendants to follow the program.  They treat their clients with respect and win their trust: “They know that I will stick with them.”  Incarceration for technical probation violations is rarely necessary. Community service providers projected the same sense of mission, seeking to form long-term supportive relationships and reintegrate their clients with other social structures.

They believe that most young people can be brought back on track with proper supervision:

They all want to be good persons with lucky, happy lives.  They need education.  Their families don’t support them.  No one at home tells them to go to school.

In our meeting with the community supervision group in Berlin, we pushed repeatedly on the question of whether they thought there were any reforms needed in their own system.  They seemed in good faith to be baffled by the question.  The only problem that they could really point to was the lack of affordable housing, driven by gentrification and rapidly rising costs.  In the rural state, we heard that municipalities should do a better job supporting youths, rather than leaving it all up to corrections.

We did hear that adults often choose to finish up terms in prison rather than be released early to community supervision.  It suggests that, even in Germany, probation is not an experience loved by all defendants.

The system makes extensive use of fines as a penalty.  However, fines are scaled and imposed as a number of days, where a day fine is 1/30 of a person’s after tax monthly income.  Juveniles are never fined.  Failure to pay fines may translate into detention for young adults and adults.  In Berlin, of 4047 incarcerated on March 31, 2014, 343 were held for fine defaults.  This seems like a substantial share of the incarcerated population.

Outcomes

Like the United States, Germany is a federation of states, each with their own criminal justice system, operating under the legal supervision of a national constitutional court.  We visited Berlin and Mecklenburg-Pomerania.  In both states, the incarceration rates are low.  In Berlin, they have a total of about 4000 people in some form of custody from a population of approximately 3.6 million.  In Masschusetts, we have approximately 20,000 in custody from a population of 6.6 million, putting Berlin’s incarceration rate at about 35% of ours.  And, of course, our incarceration rate is among the lowest in the United States.  In Mecklenburg-Pomerania, there are approximately 1100 held on a population of 1.6 million, for a rate only 23% of ours.

Overall, crime is not rising though and the youth prison population appeared to be trending down in both states we visited.  Guns are not widely accessible in Germany and gun violence is not perceived as a central problem.  The murder rate in Berlin is .85 persons per 100,000, roughly half the rate in Massachusetts.  Drug problems also appear to be less prevalent in Germany.  Cannabis and methamphetamines are used by some young people, but there is no perceived recent increase.  There is no perceived opiate problem.  Pain medications are not liberally prescribed in Germany — better to be able to feel the body.  Somehow, heroin and fentanyl have not gained a foot hold.

Comparisons are difficult to make across jurisdictions, but it appears that both Berlin and Mecklenburg-Pomerania have lower crime rates than Massachusetts and their incarceration rates are much lower.  It appears that they have lower incarceration rates even factoring in for the lower crime rates, but this is not something we can say with any confidence.  Certainly, from the examples we heard, sentences are shorter — the view seems to be that long sentences don’t send a stronger message to defendants and probably do harm.  We heard low recidivism rate statistics, which is impressive since low incarceration rates often mean that only the worst are held and recidivism rates are therefore higher.  But we couldn’t run the recidivism comparisons to ground.

In Berlin, non-citizen immigrants constitute fully 60% of the young adult prison population, while recent citizens constitute another 20%.  Native Germans are only only about 20%.  In the general population, the numbers are reversed with native Germans constituting 70% and the other categories about 15% each.  There is heavy immigration from Poland and Turkey as well as from the middle east and north Africa.  The incarceration rate for young adults among the non-citizen immigrant population in Berlin appears to be roughly 15 times the rate for native Germans.  The professionals we spoke with attributed this disparity to a combination of lack of knowledge of the rules, history of trauma and lack of social supports — some are unaccompanied minors. Additionally, it may be that young males are disproportionately numerate among the immigrants, which would mean the apparent disparity was overstated.  Steeped in our concern about American racial bias, some of us wondered whether anti-immigrant bias contributed to the contrast.  There were a couple of dinner comments we weren’t sure we understood, but none of the people we met embraced bias as an explanation for the contrast in incarceration rates.

Lessons learned

German justice differs fundamentally from American justice.  It is built around a high-level of trust for civil service professionals.  The professionals we met were all impressive in their intelligence, knowledge and sense of mission.

I think we have comparably impressive professionals in Massachusetts, yet our system does not give them the same independence and power.  Our judge cannot sentence a defendant until the prosecutor has overcome many procedural barriers and a jury has finally found the defendant guilty beyond a reasonable doubt.    Our elected prosecutor is directly accountable to popular opinion and will likely seek a harsh sentence.  The judge, although appointed for life, operates under the harsh glare of media scrutiny.  Ironically, although defendants have  greater procedural protection in our system, once convicted they will be sentenced more harshly and have less access to rehabilitation.

While we will never abandon the openness of our courts or the procedural protections that we have given to defendants, the German commitment to rehabilitation — so passionately shared by the well-informed professionals who give it meaning — was inspiring.  It especially raises the question of what more we can do for young adults — those not too far over 18 who still have a lot of maturity to gain and more potential to change direction.

We have gone through a long conversation about criminal justice reforms in Massachusetts, which will, I hope, very shortly result in the final passage of significant law changes.  Yet, from there, we will still need to maintain a sharp focus on what the system is actually doing to defendants and fund program improvements where appropriate.

The most obvious areas for improvement are in the re-entry process for all defendants and in the overall programming that we are giving to the young adults.  We thoroughly examined the re-entry process in our CSG process — the main issue on re-entry over the next few years will be funding of re-entry programs.

Here are some questions we need to consider about how to improve our response for young adults:

• Do we want to move young adults into the juvenile justice system by raising the age of adulthood up from 18?
  • Raising the age instantly gives young adults the benefit of the generally-acclaimed rehabilitative services of our Department of Youth Services.  However, many of the services offered by DYS are designed for younger defendants.  We need to think through carefully what kinds of changes would be needed in the operation of DYS to properly support older defendants.  The German example suggests that a single correctional system can handle both juveniles and young adults, but that doesn’t mean we wouldn’t need changes in DYS.
  • Raising the age also gives young adults the benefit of the higher  confidentiality of juvenile courts.  This is significant, but we could accomplish much of it by further changes in our CORI laws.  We did take steps in that direction in our Criminal Justice Reform Package.
  • Raising the age gives young adults the benefit of rehabilitation-oriented juvenile judges and probation officers.  Some prosecutors oppose the change for precisely this reason — they feel juvenile judges will be too lenient.
• Alternatively or additionally, should we create better programming for young adults in the adult correctional system.
  • The huge benefit of this approach is that it can be more easily extended to higher ages.  Serious late teen offenders who need longer prison terms could remain in rehabilitative programming well into their 20s. Additionally, people who commit offenses in their early 20s — many of whom may still be malleable — could receive rehabilitative programming.
  • One drawback of this approach is that it depends heavily on the fragemented county-level House of Corrections system which is run by our sheriffs.  Some sheriffs are already on their own initiative developing young adult programs, but others may not take to it.
• Who decides whether adult or juvenile programming is appropriate — prosecutors, judges or correctional officials?
  • Currently, for children 14 to 18, it is the prosecutor who decides whether adult sanctions might be applied by bringing a youthful offender indictment and the juvenile judge who ultimately decides on the appropriate sanction.  (For murder adult sanctions are always applied.)
  • We could give district court judges the ability to decide to send young adult defendants to the juvenile system pursuant to developmental criteria.  This is essentially the German approach as to defendants aged 18, 19 or 20.
  • Or we could leave correctional programming decisions to correctional officials.  We could, for example, give DYS and the sheriffs latitude to move prisoners back and forth between them.
  • There are many variations possible.
• What can we do in the way of system changes — methods of selection of officials, training requirements, etc. — that would create a stronger orientation to rehabilitation? Ultimately what was most impressive to me in Germany was the culture in the justice and correctional systems — the passion that everyone we met had for helping young people.
• We didn’t get a window into the German mental health and substance abuse systems, but behavioral health treatment has to be a huge part of our conversation in Massachusetts, especially given our opiate problem.

The criminal justice package which should shortly sit on the Governor’s desk for approval includes non-binding suggestions for both young adult probation officers and young adult correctional units.  It also creates a commission to broadly consider all of the questions of how we approach young adults.

Saippuakivikauppias

This word — the longest known single word palindrome — means “soap-stone dealer” in Finnish.  To steal a joke from Judge Volker Horstmann:  This post is also Finish.