Law, Diversion, and Community Sanctions in Juvenile Justice Research Paper

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Most criminal justice systems today have introduced alternatives to imprisonment. The general idea behind diversion and alternative sanctions is to keep the offender within society and to save him from the socially detrimental outcomes of imprisonment. This research paper aims to give an overview about diversion strategies and alternative sanctions in juvenile justice systems which can in many countries be seen as pioneers for law reforms in the adult criminal justice systems.

Fundamentals Of Juvenile Justice Systems

Generally speaking, the common idea of juvenile justice systems is that minors or juveniles should be dealt with differently than adults. According to criminological research results worldwide, juvenile delinquency and crime are episodic and regularly disappear in early adulthood.

Consequently – and in line with Art. 40 (4) of the United Nations’ Convention on the Rights of the Child (CRC) and many subsequent international instruments – justice systems have introduced special regulations for juvenile offenders which provide educational measures and sanctions instead of imprisonment as responses to youth criminality. The intention is to avoid compromising the developmental process of young persons in the transitional stage from youthfulness to adulthood. This development and the many international recommendations and conventions in the field of juvenile justice can be seen as the major achievement in modern juvenile criminal policy worldwide.

Justice systems differ in their approaches to youth offending. Parts of the juvenile justice systems are more justice oriented, which can mean that they sentence young offenders based on notions of punishment and accountability but also on the idea of proportionality, thus limiting interventions in order to avoid disproportionate sanctions. The idea of education and rehabilitation which is inherent also to justice-oriented juvenile justice systems is implemented by giving priority to diversion and community sanctions (“subsidiarity” of punishment or “education instead of punishment”). Therefore, in justice systems like in Canada or some European states, we find justice-oriented criminal procedural laws for juvenile offenders, oftentimes with extensive modifications compared to those for adults but by nature based on criminal law. Those are regularly focused on the offender rather than the offence, and the aim of rehabilitation plays a special role. Other juvenile justice systems are more oriented at family or youth welfare law. This includes that the offence is rather seen as a sign for the “need of help” of the juvenile and therefore leads to welfare or family law measures (e.g., in Poland or Bulgaria), and in some countries, family conferences play an important role in the practice of juvenile justice (e.g., New Zealand, Northern Ireland, or Canada). As more or less pure welfare-oriented systems do not provide for criminal sentences they allow for sometimes far-reaching transfers of juvenile offenders to adult criminal courts as in the United States.

Nowadays, as a result of manifold developments, we can hardly find a pure welfare or justice approach in one country. Systems that combine welfare as well as justice elements and that have introduced even more and different approaches to responding to young offenders are more common (Winterdyk 2002; Doob and Tonry 2004; Cavadino and Dignan 2006; Goldson and Muncie 2006; Junger-Tas and Decker 2006; Hartjen 2008; UNICEF 2008; Dunkel et al. 2011a). They differ in their scope concerning the age groups or the behavior they encompass (e.g., in many systems status, offences can open the door to juvenile justice, in others only “criminal” behavior can lead to reactions from the youth court; see for an overview Doob and Tonry 2004; Pruin 2011). However, due to the requirements of the CRC and their subsequent international instruments, many juvenile justice systems have managed to introduce procedural safeguards to make sure that the state reactions remain proportional to the seriousness of the offence.

Diversion

Definition And Functions Of Diversion

One state reaction which is usually used more extensively in juvenile justice compared to adult criminal justice systems is the possibility of diverting young offenders from trial.

In the context of criminal justice, diversion is seen as a headword for decisions, measures, and strategies which aim to avoid formal penal prosecution, trial, and sentences (Koffmann and Dingwall 2007). A more concrete definition of diversion can be as follows: Diversion is the dismissal of the case when the offence is of minor gravity and if formal proceedings do not seem to be appropriate. Diversion follows the procedural principle of “expediency” (in contrast to a strict principle of “legality” which obligatorily requires formal proceedings and court decisions in any case) and its main aim is to avoid stigmatization through formal court proceedings (Dunkel et al. 2011b, p. 1651). In the juvenile justice systems, different forms of diversion are to be found: Diversion can be unconditional or conditional; furthermore, it often means the referral of juvenile offenders to health or social services or to mediation schemes instead of judging them in criminal court proceedings.

Diversion is regularly a decision of the prosecutor at a pre-court level. In many countries diversion can also be adjudicated by the judge, if after an accusation the case seems to be appropriate for a dismissal (e.g., because of reparation efforts by the offender that have been performed in the meantime). In some countries even the police are competent to divert juvenile offenders and therefore to avoid criminal proceedings more or less completely (e.g., police cautionings or warnings in Anglo-Saxon countries).

Particularly in the field of juvenile justice, since the mid-1980s many international recommendations have emphasized that diversion should be given priority as an appropriate and effective strategy of juvenile crime policy (e.g., Convention on the Rights of the Child of 1989, Article 40 (3) b), emphasized by Comment No. ten on Children’s Rights in Juvenile Justice from 25 April 2007; the United Nations Standard Minimum Rules for the Administration of Juvenile Justice [Beijing Rules] of 1985, Rules No. 11.1–11.4; the United Nations Guidelines for the Prevention of Juvenile Delinquency [Riyadh Guidelines] of 1990, Rules No. 5 and 6; the United Nations Standard Minimum Rules for Non-custodial Measures [Tokyo Rules], Rule No. 5 and on the European level; the Council of Europe’s Recommendation on “New ways of dealing with juvenile delinquency and the role of juvenile justice” of 2003 [Rec 2003 (20)], Rules 7, 8, and 10; and the European Rules for Juvenile Offenders Subject to Sanctions or Measures [ERJOSSM, Rec (2008) 11], Rules 5, 10, and 12).

The concept of nonintervention (or better avoiding formal prosecution) was developed in combination with decriminalization (particularly of so-called status offences) and deinstitutionalization (from youth custody and residential homes). Since the 1960s particularly in North America and across Europe, tendencies in juvenile criminal policy have emerged that are based on the notions of the principles of “subsidiarity” and “proportionality” of state interventions against juvenile offenders (Dunkel 2009). More specifically, these developments also involve the expansion of procedural safeguards on the one hand and the limitation or reduction of the intensity of interventions in the field of sentencing on the other. One major element of this philosophy was the idea of diversion, i.e., to avoid possibly stigmatizing state interventions in favor of a more lenient and – with regard to future social integration – more appropriate approach.

In spite of heavy criticism in the early 1980s, blaming “net-widening” effects and informal social control that would even surpass formal social control of the youth courts (Austin and Krisberg 1982), diversion has continued its “triumphant” expansion due to national and international developments in juvenile crime policy in the 1980s. Nowadays, apart from the aim to avoid (unnecessary) stigmatization, diversion in juvenile justice is based on the idea that education should be prioritized over punishment. From the perspective of sociology of law, the advantage of nonintervention or less severe punishment (e.g., probation instead of imprisonment) lies in the increased expectations of future norm conformity, which are expressed by the competent punishing authority to the offenders in question. The violator of the norm is under the pressure of a special (informal) obligation as he has been given a “social credit” which contributes to better compliance with the norm (see D€unkel et al. 2011b, p. 1628 with further references.).

Furthermore, the use of diversion is oftentimes related to the pragmatic consideration of reducing or limiting the courts’ caseload (see in general Jehle and Wade 2006). It can be shown that an increase of cases in the criminal justice system needs to be compensated by diversionary or other bureaucratic strategies that make the “input” manageable.

Types Of Diversion

Types of diversion can be distinguished by the different authorities who are competent to decide on the dismissal of the case (diversion). Diversion can be initiated by the police, the prosecutor, or the judge.

A young offender’s first contact with the justice system is mostly the police. This is why police diversion is generally recommended by the international instruments (see, e.g., No. 11.2 of the Beijing Rules or No. 5.1 of the Tokyo Rules). The advantage of diversion at this early stage of the procedure is that the police can react promptly, so that there is immediacy between committing the offence and the justice system’s response. On the one hand, a swift reaction is seen positively from a pedagogic point of view (if the police act cautiously and with respect). On the other hand, the amount of time during which the offender could be stigmatized is reduced. The police have a lot of discretional power in such a system. The resulting dangers could be prevented through the condition that the police have to undergo specific training on contact with young offenders.

Consequently, many juvenile justice systems, mostly in countries where the role of the public prosecution service is not very strong, introduced the possibility of “police diversion.” “Police diversion” can mean that the police, to whose attention an offence committed by juveniles has come, is competent to simply take no further action because the behavior in question is viewed as being very minor, petty, and unimportant (e.g., Cyprus, England/Wales). In other systems the police can issue informal or formal warnings or can refer the juvenile to special diversion schemes in close cooperation with the Social Services (e.g., Northern Ireland, Ireland, the Netherlands).

Other countries strictly follow the procedural principle of “legality.” Originally the principle of legality means that a human conduct must be declared as a crime by a specific statute or law before it can be considered as a criminal act. The strict consequence from this principle is that a special prosecution service must bring a charge against any criminal offender. If the laws in these countries provide for any form of pre-court diversion, usually the prosecution services, consisting of lawyers, are competent to decide about dismissing the case or to refer it to a special diversion scheme. Usually the decisions of the prosecution services are conditional. This means that the prosecution service offers to close the criminal proceedings when the offender has fulfilled special obligations like repairing the damage or participating at anti-aggression trainings.

In some countries, diversionary decisions can also be made by a judge at the court level. Such court diversion makes sense particularly in cases when the juvenile has paid reparation or has otherwise resolved the conflict with the victim after the prosecutor has submitted the indictment to the court, which gives the judge the impression that further prosecution would not be appropriate or necessary. Especially the countries following the traditional welfare model have facilitated diversionary strategies on a court level because of the wide discretionary power of the juvenile judge.

In consideration of the different competent authorities, juvenile justice systems generally introduced a way to divert a case and combine the conditional dismissal of the case with educational measures or interventions. The systems for this kind of “interventionalist diversion” vary.

In many countries, minor offences can be dismissed after educational measures have taken place (e.g., mediation, victim-offender reconciliation, reparation, apology to the victim). The idea is that if the conflict is already solved within the society, there is no need to further stigmatize the offender or to spend much money on costintensive criminal procedures. So, for example, if in Germany at the time of the beginning of the prosecution the offender has already apologized and paid for the damage he produced, the public prosecutor can dismiss the case without any further conditions (the German Juvenile Justice Act even encourages the prosecutor to regularly do so; see Sect. 45 al. 2 JJA).

A similar approach is followed in countries where diversion in combination with (minimum) educational interventions is seen as a possible option. One alternative is that the prosecutor or the judge can suspend the case for a certain period of time. The case will be dismissed after the offender has fulfilled special obligations, like community work or reparation of the damage or participation at certain “training courses.” A comparable approach is quite common in Eastern European countries with the so-called release from criminal liability, which can be combined with educational measures.

In some countries, diversion can be combined with a referral to the Social Services (Sweden) or special administrative authorities/bodies, like the “Children’s Hearings System” (Scotland) or the “Juvenile Commissions” in Bulgaria, Estonia, or Russia. These bodies can partly issue and partly negotiate the fulfillment of special educational obligation. The transfer of responsibility and sanctioning power to administrative bodies makes it important to guarantee that juvenile justice standards are respected on this level as well. According to the international recommendations, these kinds of administrative authorities likewise have to avoid each form of deprivation of liberty as a reaction to criminal behavior. Questionable is if “Juvenile Commissions” as they can be found in Eastern and Central Europe constitute an appropriate way of diversion. Not always the commission’s decisions are subject to judicial review, even if they may include the placement of a juvenile in a closed institution (UNICEF 2008, p. 25). An interesting approach in this sense is the idea of introducing conferences to divert juvenile offenders from criminal proceedings which is apparently most developed in New Zealand: The police have to refer all juvenile offenders who have not been arrested and charged to a family group conference. If the conference can resolve the matter, there will be no further public reaction. The youth court is required to refer all cases coming to it for a family group conference as well (Maxwell and Morris 2006, the European approaches for the introduction of family conferences are described by Doak and O’Mahony 2011).

Efficiency Of Diversion

Measuring the efficiency of sanctions is one of the most complicated issues in criminological research. Usually different sanctions are applied for different kinds of offences and offenders. This leads in practice regularly to a selection bias which makes it almost impossible to ascribe recidivism (or legal behavior) to the inefficiency (or efficiency) or the sanction (validity). Reducing a desired behavior to a special sanction is only possible with the help of studies using random assignment or quasi-experimental design (standards for evaluations were developed by Sherman et al. 1998). Most study designs do not follow these standards, as it is in a criminal justice system difficult to allocate one or another sanction randomly.

With regard to diversion, there are at an international level study results which indeed used random assignment or quasi-experimental design which predominantly arrived at the conclusion that recidivism rates after diversion are lower, or at least not higher, than after formal court procedures and convictions. According to German studies, the strategy of expanding informal sanctions has insofar proved to be an effective means, not only to limit the juvenile court’s workload, but also with respect to special prevention (see Heinz 2005; Dunkel 2011).

According to German data, reconviction rates of offenders who were “diverted” instead of being formally sanctioned are significantly lower (reoffending rates after a risk period of 3 years were 27 % vs. 36 %, see Dunkel 2011). Even for repeat offenders the reoffending rates after informal sanctions were not higher than after formal sanctions (see Heinz 2005, p. 306). Another study demonstrates that the increase in the use of diversion in Germany during the 1980s and 1990s does not correspond to an increase of juvenile delinquency rates. On the contrary, the recidivism rates of comparable delinquents (for different typical juvenile delinquent acts) were significantly lower when diverted as compared to those formally sanctioned by the youth court (see Dunkel et al. 2011b, p. 1639 with further references). The evident methodological problems of comparing different sanctions (concerning the seriousness of different crimes, previous convictions, etc.) were addressed by British empirical research which strictly controlled the different “sanction groups” for key variables such as age, sex, and previous criminal history. The research results demonstrate that conditionally discharged offenders had lower reconviction rates (39 %) than those sentenced to fines (43 %), probation (55 %), or community service (48 %, see Moxon 1998, p. 91). The metaanalysis of Whitehead and Lab supports the findings that diversion has the best prognosis with regard to recidivism. As far as can be seen, only the study of Morton and West (1983) could not find any reduction in recidivism from the use of youth diversion as opposed to youth courts (in Canada).

Looking at the costs and the impact of different sentences and interventions, it is evident that informal warnings and cautions are the least expensive measures. Further research on “what works, with whom under which circumstances” including serious control of the selection bias needs to be continued in this context.

Community Sanctions

Definition And Functions Of Community Sanctions

If a case is not diverted but reaches the level of the court, many juvenile justice systems provide a lot of different dispositions as well. The so-called community sanctions define all sanctions and measures which do not lead to deprivation of liberty in any form (see Beijing Rules, No. 18). They are important as a basis to comply with the principle that no child shall be deprived of liberty except as a “last resort,” as required by Article 37(b) of the Convention on the Rights of the Child. The reform movement to widen the scope of community or alternative sanctions started in the 1970s in the United States and England and later developed in the 1980s in many other juvenile (and adult criminal) justice systems. The base for the introduction of community sanctions is seen as twofold: On the one side a shift in people’s attitude towards punishment emerged which tried to make criminal justice more humane (Junger-Tas 1994, p. 1). On the other hand, there was the problem of overcrowded prisons in many countries which forced to find and to use alternatives (e.g., Bala and Roberts 2006, S. 37). If we look at today’s different juvenile justice systems, we do find many differences regarding the extent and types of community sanctions.

Types Of Community Sanctions

As a general rule, the applicable sanctions and measures follow a certain hierarchy that is based on the order in which priority shall be given to the most educational, most appropriate sanction. This regularly opens up the possibility to combine several educational measures or sanctions with each other. We can find the following levels of sanctioning, ordered from the least to the most intrusive:

1. Warnings, reprimands, conviction without sentence, educational “directives”
2. (Day) fines, community service, reparation orders, mediation
3. Social training courses and other more intensive educational or supervision sanctions
4. Mixed sentences, combination orders (which can be characterized as a more “repressive” (intrusive) way of dealing with juvenile offenders)
5. Suspended sentences without supervision by the Probation Service
6. Probation
7. Suspended sentences with supervision by the Probation Service, electronic monitoring
8. Educational residential care, youth imprisonment, and similar forms of deprivation of liberty

The least invasive sanctions are warnings or reprimands (verbal sanctions) and followed by a wide range of alternative sanctions that exert more or less influence on the life of the offender. Many sanction systems provide educational measures (such as educational “directives” in Austria and Germany) either as independent sanctions or as complementary elements of other sanctions like probation or suspended prison sentences (e.g., Denmark). The aim of such educational directives is always to improve the educational impact on the one hand and to reduce the impact of risk factors in the juvenile’s daily life on the other. The laws should confer a certain degree of discretionary power on the judge to enable him or her to find the most appropriate directive.

In between we find the possibility to impose a day fine on juvenile offenders which is theoretically possible in many, albeit not all juvenile justice systems. Indeed, one may question if fines could be seen as educational sanctions, facing the fact that juveniles will often be unable to pay for fines with their own money.

Restorative justice elements like victim offender mediation for juveniles do often play a special role in juvenile justice. Yet, in some (European) countries, mediation is never or only seldom practiced due to a lack of organizational infrastructure at the local level, as reported by the Czech Republic, Poland, Romania, and Serbia (Dunkel et al. 2011a). Such kinds of “restorative justice orders” can be manifold and creative in aiming at compensating the victim.

In many countries, community service combines slight “punishment” with reparative and rehabilitative elements. The offender shall offer “a ‘payback’ to the community via unpaid work” (Goldson 2008, p. 78). Some countries have special age limits for the imposition of community service: For example, in England and Wales, Ireland, and Northern Ireland, community service can only be imposed on juveniles aged 16 or older. Huge differences can be observed with respect to the maximum number of hours: The limit lies between 30 h in Belgium and 250 h in Canada, 300 h in Denmark, or even 400 h in New Zealand. The differences in legislation are partly due to different approaches and settings for community service orders: For example, in Finland a high number of hours (regularly only for young adults aged 18–20) will replace a sentence of up to 8 months of unconditional imprisonment (Dunkel et al. 2011a, p. 1647).

Different from community service is the sentence of “corrective labor,” which can be found primarily in Central and Eastern Europe. Corrective labor may be imposed on a juvenile offender at the place of his/her regular employment for a particular length of time. In the course of corrective labor, deductions from the offender’s earnings shall be made in favor of the state in the amount specified in the court ruling within a certain limit (UNICEF 2008, p. 30).

Many countries have successfully implemented creative and constructive measures such as social training courses (Germany) or so-called labor and learning sanctions or projects (the Netherlands), where the juveniles can learn to deal with their aggressive potential or where they can be trained according to their personal skills.

Some countries have introduced high intensive supervision or educational orders, e.g., special “centers” to which juvenile offenders can be sent for a few hours a day. In England and Wales, the attendance center order requires a young person to be present at a (usually) police-run institution on Saturday afternoons, where juveniles engage in physical education and other activities designed to inculcate a sense of discipline or social skills, for sessions up to a maximum of 36 h. In Kosovo, the court can commit a minor to a disciplinary center for a maximum of 1 month (for up to 4 h per day) or for a maximum of 4 days of a school or public holiday (for up to 8 h per day). In France, the law of 5 March 2007 created a new educational measure, activities during the day (mesure d’activite´s de jour), in which the juvenile is involved in vocational or school insertion activities at a public or qualified private institution or agency. In Italy, the magistrate can order the minor to carry out study or work activities in special working groups. Looking at the strict definition above it may be questionable if these measures fall into the scope of “community sanctions.” However, because they are used in practice to avoid imprisonment or comparable forms of deprivation of liberty in predominant closed institutions, they deserve to be listed within this category. This is not the case for short-detention centers, where juveniles can be sent to for some days or weeks with the aim to deter the offender via a “short sharp shock.” Even if some jurisdictions try to avoid “real” imprisonment with the introduction of this short-term incarceration, this however falls within the definition of deprivation of liberty as it takes the juvenile out of his social surroundings and endangers him with the negative aspects of stigmatization and other negative outcomes of imprisonment.

In many countries, supervision or surveillance orders play a special role as alternatives to imprisonment. In most countries, the Social Service or the Probation Service is responsible for the execution of these measures, but in some countries, juvenile offenders are usually supervised by the legal representative, normally the parents (e.g., “house arrest” in Italy). The aim is to avoid isolating the minor from his/her familiar and social surroundings in order to prevent disturbances to his/her personal development.

In Finland the Juvenile Punishment Order consists of work programs, supervision, and activity programs that aim to promote social adjustment, the person’s sense of responsibility, and his/her social relations. There is a strict requirement that this sentence can only be issued in high-risk cases. This requirement may prevent net-widening effects as the Juvenile Punishment Order is definitively only applied in cases of repeat offenders who have already been sentenced to conditional imprisonment.

Contrarily, in England and Wales the introduction of the so-called referral order could well be having a net-widening effect, since it is more invasive and rigorous than the conditional discharge that it has essentially replaced in practice. “Action plans” or “referral orders” in contrast to the Finnish “Juvenile Punishment Order” follow a more punitive approach (D€unkel et al. 2011a, p. 1651 with further references).

In some juvenile justice systems, it is possible to confiscate a person’s driver’s license or to issue a prohibition from driving a vehicle as independent sanction or measure. In these cases the courts have to consider a certain susceptibility to unequal treatment, because there are special groups of juveniles or young adults who are more dependent on driving a car than others (due to work obligations, poor local infrastructure, etc.). There are serious reservations against the temporary withdrawal of a driver’s license as a standalone sanction, especially if it is used for other than only traffic-related offences. The future integration of juveniles is often more difficult when their mobility is hampered. Therefore, educational efforts should be made to allow juveniles to participate in traffic in a responsible manner. Social traffic training courses seem to be the appropriate answer, rather than excluding juveniles from mobility – particularly when they live in rural areas (Dunkel et al. 2011a).

Many juvenile justice systems provide suspended juvenile prison sentences that frequently go hand in hand with supervision by the Probation Service or a similar service with a social work approach. The “Continental European Model” of suspended sentences implies the imposition of a youth prison sentence, the execution of which is not immediate. Should an offender fail to meet the conditions of probation, suspension (as a last resort) can be revoked and the juvenile serves the term of imprisonment set at the first trial (e.g., in Austria, Bulgaria, Germany, or Spain). Other criminal systems like in the United States or the states of the United Kingdom introduced probation as a special sanction. This sanction is – as its name indicates – always connected with support from and control by the Probation Service. Contrary to the “Continental European Model,” in these countries no term of detention is fixed. Therefore, where an offender fails to comply with his or her probationary requirements, the term of imprisonment is determined in a second sentencing trial. Here one finds another explicit example for how the same terms can mean different things in international comparative analyses: Many countries use the term “probation” to describe the “Continental European” approach of “suspended sentences with supervision.”

Apparently no juvenile justice system has managed to totally avoid imprisonment or detention for juveniles. Many different forms of deprivation of liberty with corresponding institutions can be found worldwide, like youth prisons, detention centers, closed educational care, or schools “for juveniles with special needs” (see Dunkel and Stan´ do-Kawecka 2011).

Especially researchers and practitioners from Central and Eastern European countries claim that oftentimes the laws in their countries do provide a lot of alternative sanctions, but the judges or prosecutors do not apply them. The reason mostly lies in the lack of infrastructure.

The law might allow for victim-offender mediation – but if no organization or no service is available to offer mediation, this promising new approach will gain no importance in practice. Another problem related to the implementation of alternative sanctions is oftentimes that the question of funding is not responded or clear.

Efficiency Of Alternative Sanctions

Research results on the efficiency of alternative sanctions are not as clear as for diversion (see above) and share the same problems with respect to the selection bias. However, there is some evidence that alternative sentences “work” better than liberty-depriving sentences with regard to recidivism, but the results request for differentiations: For example, Latimer et al. (2001) or Sherman and Strang 2007 showed that restorative justice programs can reduce recidivism, but there is a wide variation in their effects. In general, international results show that positive effects rather are to be expected from programs comprising behavior therapy, oriented towards social learning, and tailored to the needs of the offender than from punitive sentencing and/or imprisonment (e.g., Murphy et al. 2010 with further references). In contrast, programs focusing on discipline or deterrence through fear of consequences showed negative or minimal positive effects (Lipsey and Howell 2012, p. 517 with further references). Not surprisingly alternative sanctions have proven to be cost-effective compared to the immediate and belated costs of imprisonment (Aos 2006; UNODC 2007).

The Relevance Of Diversion And Community Sanctions In Practice

Oftentimes the country’s “law in the book” does not correspond to the “law in practice.” To investigate whether the countries use their manifold possibilities in sentencing juvenile offenders is not always an easy task: Apart from the general problems that arise when working with statistical data about crime and reactions to crime in a large number of countries (e.g., offences are in some countries registered in relation to the offence, in other countries in relation to the offender), the collection of data about sentencing in a juvenile justice system varies a lot. Sometimes an absence of reliable statistical records can be observed (see Goldson and Muncie 2006, p. 2), and even where statistical records do exist, practice of how crimes (and clear-ups) are recorded varies greatly (see Cavadino and Dignan 2006, p. 4). Thus, comparability can only be achieved through lots of interpretation. This makes an international comparison of statistical data difficult enough. The above-described wide variety of alternative sanctions in the different juvenile justice systems complicates matters further, and the different age groups that are covered by the different juvenile justice systems all over Europe additionally hinder comparability. With regard to the use of alternative sanctions in practice, it is possible to present some structural tendencies (for Europe see Dunkel et al. 2011b). Diversion has experienced a triumphant expansion in many European countries such as Austria, Germany, Ireland, the Netherlands, Northern Ireland, Romania, Slovenia, Spain, and Sweden, where more than 50 % and up to 70 % (Germany) or even about 80 % (Northern Ireland) of cases involving juvenile offenders are diverted. Other countries like New Zealand, Scotland, or Sweden regularly refer juvenile offenders to special institutions, conferences, or social services.

Many of those countries who do not make extensive use of diversion, primarily apply courtbased community sanctions, e.g., in the Czech Republic, Spain (Catalonia), and Switzerland. Slovenia is an extreme case as in 98 % of court decisions educational measures are applied. The same is true for Serbia (95 %). In many Central and Eastern European countries, the suspended prison sentence is still the predominant community sanction, often because of a lack of infrastructure for other, more educational alternatives (e.g., in the Czech Republic, Hungary, Latvia, Russia, and Slovakia). The United States are infamous to sentence young offenders rather based on notions of punishment and accountability than rehabilitation, but alternative sanctions are still seen on the rise (Bishop and Decker 2006, p. 29).

Still there are countries where custodial sentencing is obviously seen as a promising answer to juvenile offending and of considerable importance in practice. Bulgaria, Lithuania, Romania, Russia, and Spain (particularly Catalonia) could be classified as belonging to this group. In Bulgaria traditionally 80–90 % of court disposals had been sentences to imprisonment, but after the law reform of 1999, the proportion of prison sentences for juvenile offenders dropped to “only” 47 % (2005). In Romania and Russia, however, compared to the Soviet time, decreasing proportions of custodial sanctions are evident. In Spain increasing numbers of custodial sanctions have been imposed only recently. As indicated above, some countries, mainly from Central and Eastern Europe, report that they have introduced a wide variety of alternative sanctions which are not in use to a greater extent in practice due to the missing infrastructure and unclear funding.

Conclusion

Juvenile justice systems reveal numerous possibilities to divert juvenile offenders from the criminal justice system or to offer them alternative sanctions. In many countries lawmakers and practitioners seem to be convinced that juveniles shall be saved from the socially detrimental outcomes of imprisonment, and the international recommendations which request the use of custodial sanctions only as a last resort demand the criminal justice systems to seek for effective alternatives.

As available research results allow for the gently conclusion that diversion “works” in means of the reduction of recidivism, data records on the efficiency of alternative sanctions do not allow for entirely clear positive conclusions. However, is it the correct way to ask the alternatives to imprisonment to proof their efficiency when we definitely know that imprisonment or comparable ways of custodial sanctions/measures are not at all adequate to reduce recidivism? Alternative sanctions violate human rights less than imprisonment does and are to be preferred due to the minimum intervention principle (UNODC 2007). And even if research shows that the cost-effective sanctions are not always superior in preventing reoffending, it is true that it is attractive for criminal justice systems to make a wide use of alternative sanctions from an economic point of view as well. This is why diversion and alternative sanctions should be extended or, where available, used more frequently in practice. Further research with random assignment or quasiexperimental design would be desirable to support the triumphal procession of alternatives to imprisonment in juvenile justice systems.

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