Crime Prevention,Support or Punishment? Introducing an Ambiguous System of Youth Justice in Denmark

Abstract

International research on youth justice systems has highlighted diversion as a key element in early crime prevention and deterrence. In Denmark, a youth justice reform was introduced in 2019 that restructured how the justice system responds to children and youths who are suspected or convicted of a crime. With the introduction of a Youth Crime Board (YCB) and a Youth Probation Service (YPS), the new reform aims to increase the speed and intensity of system responses to offences committed by children and youths. Based on legislation, policy papers, hearings on the new reform and the first evaluations of the reform, we analyse three key elements: the YCB, the sanctions and the YPS. We find that the 2019 youth justice reform constitutes an ambiguous system of youth justice with elements of diversion and punishment, and we argue that the reform integrates punitive elements into the delivery of treatment and support.

Keywords

child welfare criminal justice diversion Nordic punishment

Introduction

The Nordic welfare states are known for their low crime rates, low incarceration rates for minors and child welfare systems that offer free and extensive services to children and families (Enell et al., 2022). The Nordic approach to youth justice is based on the principles of early and generalised crime prevention, diversion into child welfare and lenient sentencing of minors, and the age of criminal responsibility is 15 years throughout Nordic countries (Enell et al., 2022). These features reflect the concept of Nordic penal exceptionalism (Pratt and Eriksson, 2014), which designates a criminal justice system that centres on rehabilitation and humane forms of custodial punishment.

Nordic penal exceptionalism differs significantly from the punitive approaches of many other European juvenile justice systems. For decades, many European countries followed a trend towards harsher sentencing and a greater emphasis on punishment and control in response to issues such as public safety concerns (Goldson and Muncie, 2006; Snacken, 2010). However, these measures have been criticised as ineffective for reducing youth crime or promoting positive outcomes for young people. Some scholars, such as Snacken (2010) and Haines et al. (2013), have called for alternative approaches that prioritise the rights and well-being of young people. In recent years, several Western countries have taken a more lenient stance on youth crime in a move away from the decades of tough-on-crime policies for youth (Motz et al., 2020). In the United States, for example, the Supreme Court ruled that juveniles are less culpable than adults (Scott et al., 2015). Following this ruling, a number of states changed their legislation concerning the transfer of youth from juvenile to adult court and raised the age of criminal majority (Loeffler and Grundwald, 2015). In Europe, Scotland raised the minimum age of criminal responsibility from 8 to 12 years in May 2019 (Scottish Government, 2019). Moreover, in the United Kingdom, a turn towards a voluntary, child-centred perspective has led to a number of diversion schemes, such as the Swansea Bureau in Wales, which is designed to divert low-risk and first-time offenders out of formal processing in the UK Youth Justice System (Haines et al., 2013).

In the current era of international development towards less punishment in youth justice, legal scholars argue that Denmark has embarked on a different, more punitive path (Larsen, 2018; Storgaard, 2013). In 2019, Denmark introduced a reform under the heading ‘All actions have consequences’ with the intention of reducing youth crime (Ministry of Justice, 2017). The reform establishes a new system comprised of a Youth Crime Board (YCB) and a Youth Probation Service (YPS) for children between 10 and 17 years of age who are suspected of or involved in violent crime or serious, repeated offending. In this article, we discuss how the reform results in new and increased contact with the justice system for children aged 10–17 years, including through court-like proceedings, mandated interventions, and supervision by the YPS. We argue that this legislative reform and the related measures constitute a punitive turn in Danish youth justice (see also Larsen et al., 2023).

The Danish reform has been criticised by several organisations, including the Institute for Human Rights, children’s nongovernmental organisations, and the Crime Preventive Council (The Danish Justice Committee, 2018). Critiques highlight the de facto lowering of the age of criminal responsibility and the potential for such a system of punishment and control to contribute to the criminalisation of children and young people. Prior to the reform, children under the age of 15 years were not charged with crimes or subject to any kind of court proceeding. Concerns have been raised regarding the introduction of court-like proceedings for children as young as 10 years old, the general lack of legal safeguards and due legal processing, and the limited access to the appeals system. These concerns all relate to obligations inscribed in the Convention of the Rights of the Child (UNCRC, 1989) and General Comments No. 24 (UNCRC, 2019), which state that legal guarantees should also apply to children in the justice system, states should not lower the age of criminal consent, and the recommended minimum age is 14 years. While Denmark has ratified the UNCRC, it has not been incorporated as a law but rather by norm harmony (Hartoft, 2019). The reform does not directly breach the principles of the UNCRC, but the Danish Institute for Human Rights has recognised a need to strengthen children’s rights (Laursen et al., 2022).

The 2019 reform followed two decades of policy changes that gradually established more severe sanctions for young offenders in Denmark (Kyvsgaard, 2004; Storgaard, 2013). Two earlier reforms in particular – one in 2010 that lowered the minimum age of criminal responsibility from 15 to 14 years and another in 2001 that introduced the youth sanction¹ – are examples of the punitive turn. The decision to lower the minimum age of criminal responsibility from 15 to 14 years was communicated to the public as a way to ‘“be tough on crime” and “make youth think twice before committing crime”’ (Damm et al., 2017: 3). While the 2010 reform was abandoned in 2012,² the 2001 reform is still applicable to young offenders aged 15–17 years who have committed a serious crime. In addition, other reforms have increased tariffs for violent crime, removed lenient sentencing for minors from several offences, and designated temporary zones where tariffs for carrying weapons are doubled. International scholarship is divided on the implications of such responses. On one hand, strict and consequent system responses to crime can have deterrent effects (Nagin et al., 2018); on the other hand, children and adolescents are impulsive, take risks, and have low self-control (Steinberg, 2014), and early contact with the criminal justice system can have criminogenic and labelling effects (Motz et al., 2020).

In this article, we draw on legislation, policy papers and guidelines, responses and hearings on the 2019 youth justice reform, and the first evaluations of the reform. We use these sources in combination with international debates on youth justice and diversion to analyse three key elements of the new youth justice system in Denmark. First, we examine the introduction of the YCB. Then, we examine the sanctions with a focus on the role of the improvement programmes. Finally, we address the YPS introduces new control measures. The article concludes by discussing how the new youth justice system in Denmark can be understood in light of broader debates and international scholarship on diversion and youth justice.

Multiple Understandings of Diversion

The concept of diversion is omnipresent in the practical field of youth justice and encompasses a wide range of measures for preventing children and youth from entering the criminal justice system or pursuing a criminal career. However, the term ‘diversion’ lacks a clear, unitary definition in both the research literature and in practice (Kelly and Armitage, 2015). Diversion programmes can include schemes for preventing contact with the criminal justice system, typically by diverting first-time offenders or cases of less serious crime away from court proceedings and custodial sentencing. Diversion can also be used in cases of more serious offending by, for example, diverting youth in pre-trial remand to secure institutions in child welfare (Enell et al., 2022; Goldson, 2005) or applying provisions for surrogate imprisonment or alternative sentencing (e.g. electronic monitoring, community penalties, mandatory drug treatment). Therefore, diversion covers a range of different processes and practices. Richards (2014) has tellingly called for more conceptual clarity and a discussion of the overall purposes and aims of diversion. In line with this call, Kelly and Armitage (2015: 119) have argued for a distinction between five understandings of diversion within academic and policy discourse: (1) ‘diversion from prosecution/court’; (2) ‘diversion from custody’; (3) ‘diversion from the youth justice system’; (4) ‘diversion into alternative services’; and (5) ‘diversion from crime’. While these understandings are not always clear-cut in discussions concerning diversion, they all point to the central question: diversion from what, and to what?

Diversion programmes build on multiple and even competing logics (Muncie, 2006; Smith, 2021). Diversion can be legitimated by the discursive construction of children as being vulnerable and having diminished responsibility due to their limited understanding of the consequences of their actions. This line of thinking about children and crime is in accordance with the UNCRC (1989) and UN General Comments No. 24 (2019), which recommend considering diversionary measures in all cases. From a children’s rights perspective, punishment and confinement are considered harmful to the development and health of children (Nowak, 2019). In the United Kingdom, this perspective has manifested in several diversion schemes that address children’s engagement in decision-making and offer child-centred support with the aim of reintegrating the children and young people into society instead of implementing specialised interventions for them (Haines et al., 2013).

Some diversion programmes fundamentally view youth crime as a transitional and relatively ‘normal’ youth behaviour. Thus, they favour diversionary measures that caution children against reoffending and refrain from criminalising ‘normal’ youth behaviour by subjecting it to formal criminal justice proceedings. This approach is theoretically informed by the finding in life-course criminology that most young people who commit crimes in their early teens will desist from crime even if they are not subjected to an intervention (Motz et al., 2020). Finally, youth diversion programmes can aim to reduce the risks of stigma, labelling and increased recidivism that accompany early contact with the criminal justice system. Drawing on labelling theory, studies have found that even brief encounters with criminal justice (e.g. a night in detention, being charged with a crime) or court proceedings can contribute to the stigmatisation of young people and increase their risk of repeated offending (Arthur, 2017; McAra and McVie, 2007, 2010; Petrosino et al., 2010). In their study of the Scottish system, McAra and McVie (2007) have shown how labelling processes serve to ‘recycle’ certain categories of children into the youth justice system, while other serious offenders avoid the formal system altogether. They concluded that the key to reducing offending lies in minimal intervention and maximum diversion.

While diversion is often viewed as a positive alternative to prosecution and custodial sentencing, concerns have been raised regarding the punitive experience that is inherent to alternative system responses to youth offending. Studies have demonstrated how interventions at the intersection of youth justice and child welfare can result in ‘blurred practices of protection, treatment and punishment’ (Henriksen and Prieur, 2019: 1161) often characterised by diffuse objectives and an indeterminate duration (Cox, 2013; Holmboe, 2017). Moreover, a study of young people’s experiences of court-ordered drug treatment in Norway has identified punishment as an unspoken yet significant aspect of the programme logics and practices, which also involved elements of care, counselling, and control (Sandøy, 2020). In line with these findings, a study on community penalties in the United States has regarded such penalties as a form of modern confinement wherein supervision and counselling limit the autonomy of the affected young people over an extended period of time (Cox, 2013). From a Foucauldian perspective, diversion schemes have been found to include more subtle forms of disciplinary power which are often framed by neo-liberal logics of individualisation and responsibilisation for change (Arthur, 2017; Franzén, 2015; Henriksen, 2018). This perspective destabilises the dichotomy between welfare as benevolence and criminal justice as punishment, and it highlights elements of informal coercion, control, and regulation as characteristics of ‘punitive welfarism’ (Garland, 2001).

Following these insights, diversion can be viewed as a new form of social control in which youth justice overlaps with child welfare in a continued net-widening and mesh-thinning process that enables new and more refined ways of regulating youth behaviour (Cohen, 1985). In many cases, diversion is not diversion from punishment but actually diversion into more subtle forms of punishment and control that shape the lives and social relations of young people and their families in significant ways.

In this article, we draw on these perspectives on diversion and youth justice to analyse the recent Danish youth justice reform. The existing literature informs our critical reflection on the objectives of the 2019 reform as well as its unintended effects, which include new forms of punishment and criminalisation of children and youth. Inspired by Kelly and Armitage (2015), we ask how the reform diverts children and young people (i.e. from what and into what) and how it shapes the autonomy and social inclusion of children and young people in vulnerable positions.

The 2019 Danish Youth Justice Reform and the Punitive Turn

The youth justice reform was introduced under the heading ‘All actions have consequences’ (Ministry of Justice, 2017). The reform aims to ensure a more ‘swift and effective’ response for children and young people who commit a violent or serious crime and have a high risk of reoffending (Ministry of Justice, 2017: 12). While youth crime declined by almost 50 per cent from 2006 to 2017, the target group of the reform is a group of approximately 700 children (equivalent to 1% of a cohort) who have been charged with 40 per cent of all crimes committed by children and young people (Ministry of Justice, 2017). By including children under the minimum age of criminal responsibility, which is 15 years, the reform seeks to extend early crime prevention by creating a fast, well-coordinated system response. It also aims to remedy two challenges faced by the previous system: the reluctance of child welfare services to initiate interventions and the lack of motivation to engage in them among children and young people involved in serious and repeated crime (Ministry of Justice, 2017).

The reform introduced the YCB to adjudicate on cases of violent crime or serious repeated offending committed by children and youth between 10 and 17 years of age. Children between the ages of 10 and 14 are referred to the YCB by police, and youth between 15 and 17 years of age can be referred to the YCB if they are found guilty in court. It is mandatory for children and young people to attend YCB meetings and comply with the sanctions, which may include either an ‘immediate response’³ or an ‘improvement programme’. If the YCB decides that a child needs to undergo an improvement programme, that child is also subject to supervision by the YPS, which is responsible for monitoring programme compliance of the child, parents, child welfare services, and service providers. Even though an improvement programme is a sanction, it is not registered in criminal records.

From 2019 to mid-2022, approximately 3000 cases were adjudicated under the new system and 45 per cent of the cases involved children aged 10–14 years, and approximately 85 per cent of the children were boys (Ministry of Justice, 2021b). Violent crime was involved in 90 per cent of the cases, with 45 per cent being cases of ‘simple assault’ (i.e. threats, pushing, kicking, or hitting without inflicting injury that requires medical attention) defined in accordance with Section 244 of the Danish Criminal Code (Ministry of Justice, 2021b). In 2021, the YCB adjudicated on 1037 new cases, of which 26 per cent did not lead to any sanction. Almost all the remaining cases were given an improvement programme (only 5 cases led to a so-called immediate response) (YCB Report, 2022). These figures suggest that the reform has affected children and young people beyond the originally intended target group of children and young people involved in serious and repeated offending.

More substantive empirical evidence is needed to determine which children enter the justice system, their experiences with the system, and its results. Here, we analyse three key elements of the 2019 reform – the YCB, the improvement programme, and the YPS – which introduce new forms of system contact, decision-making, and supervision into the everyday lives of children and young people who are registered or found guilty of an offence. We analyse these key elements to illustrate how the reform represents a significant shift in system responses to children and young people in conflict with the law that reflects a punitive turn in the Danish justice system.

The court-like setting of the YCB

The YCB is not a court, which means that children are not protected by the legal guarantees prescribed by the UNCRC and General Comments No. 24. A legal analysis has concluded that the YCB does not qualify as a court as defined by the UN but is court-like and, in practice, challenges children’s rights, such as participation (Laursen et al., 2022). This section unpacks the court-like setting of the YCB and describes the process of decision-making in this context.

Before a case is presented to the YCB, the municipal child welfare service prepares an assessment and recommends one of three options: an immediate response, an improvement programme, or no sanction. The YCB adjudicates based on this information and a meeting in which the child and the child’s parent(s) must participate. The YCB meeting takes place in a court building, and the participants, including the child or youth in question, are often required to pass through a metal detector upon entry. They may also share the waiting room with adults who are awaiting court proceedings (Ministry of Justice, 2021a). The YCB consists of three members: a judge, a representative from the local police, and a representative from child welfare services. In cases where the child is younger than 15 or has special needs, a child specialist will assist the board by, for example, asking the child questions or providing specialised knowledge in the adjudication process. Between 12 and 16 people are present during the meeting, which may include a probation officer from the YPS, the child welfare case manager, a mentor or residential care worker, the child’s parents, an advocate or and/or lawyer, an interpreter, and a representative from the YCB secretariat who records the meeting minutes. Participants are usually seated around a large meeting table, and the board members sit together opposite the child or young person and their parents. The meeting is led by the judge, who is also the head of the YCB, and the participants take turns presenting their perspectives on the child’s life situation, including their concerns about risk and crime involvement. Meetings usually last between 30 minutes and 2 hours, which includes a deliberation and short presentation of the decision (Ministry of Justice, 2021a).

The YCB resembles a court process because the meeting is held in a court building, and a judge heads the process. At some level, the authority of the court is extended to the YCB, and the message communicated to the children (and their parents) is that legal transgressions are met with serious system responses. However, the YCB meeting does not follow the typical procedure of a court process; rather, it aims to enable dialogue with and about the child regarding criminogenic needs and risks. The child is not granted the legal rights embedded in a court process, and the issue of guilt is not assessed or discussed. This aspect is particularly important in cases involving children aged 10–14 years, who are referred to the YCB based on a suspicion that they committed an offence. Such suspicion is based on the police’s assessment that the evidence would be substantial enough to warrant a sentence if the child was above the minimum age of criminal responsibility (Ministry of Justice, 2021b). The goal of the YCB meeting is therefore to assess how to prevent future crime. With this forward-looking perspective, the criminal offence and the issue of guilt are not given priority.

In cases where the YCB is considering placement outside the home, the child and the parents are entitled to a lawyer and can only appeal decisions about the placement outside the home. Other forms of intervention, such as an improvement programme including mandatory interventions and supervision by the YPS, cannot be appealed and tried by a second authority. This lack of appeal options has been criticised by the Danish Institute for Human Rights. In its report, the Institute concludes that children’s access to the appeal system has deteriorated under the new law in comparison to their rights pursuant to the Act on Social Services (Laursen et al., 2022). The same report criticises the lack of a right to be exempted from participating in the YCB meeting, as children with a cognitive impairment or mental illness, such as autism or post-traumatic stress disorder, are vulnerable to stress induced by such court-like proceedings.

When the YCB was introduced in 2019, a key intention was to guarantee children and young people a quick and effective response in cases where they are suspected or convicted of repeated or serious crime. However, the first data presented on the processing time show that, for children between the ages of 10 and 14, the average wait time for their YCB meeting is almost 4 months from the time of committing the offence. For 15–17-year-olds, the wait is even longer – 7 months on average – because their case must be processed in the legal system before it can be tried by the YCB (Ministry of Justice, 2021b). Furthermore, any alteration of the intensity or form of an intervention requires an adjudication of the YCB either administratively or in a new meeting. On average, it takes 2–3 months to make an alteration, which can be problematic in cases where an intervention needs to be adjusted due to, for example, the child being unhappy in their placement in out-of-home care or not having their treatment needs met. Thus, the YCB has resulted in new system responses that are not conducive to meeting the changing needs of children in vulnerable situations.

The introduction of a court-like proceeding is a significant change for children under the age of 15 years, as this age group was not previously subject to any kind of legal processing. It also marks a change for young people aged 15–17 years because it adds a quasi-legal process after their prosecution in court. According to the typology of diversion presented by Kelly and Armitage (2015), the YCB results in increased contact with prosecution or a court-like proceeding for all children and young people. The influence of the reform on recidivism has yet to be determined, and it will be interesting to see if the court-like design of the meeting and quick service delivery has been effective to achieve deterrence for children and young people who are involved in crime. Other international contexts show that early contact with the criminal justice system can increase recidivism (Petrosino et al., 2010), and the establishment of youth courts can diminish the focus on protection as well as increase the responsibilisation of the individual child or young person (Arthur, 2017).

Improvement programmes

The most common adjudication by the YCB is to issue a mandatory improvement programme for the child or young person, their parents, and child welfare services. An improvement programme usually includes two to three interventions and has a fixed duration. The maximum length of a programme is 4 years for children aged 10–14 years and 2 years for youth aged 15–17 years. In 2021, 25 per cent of the programmes were less than 12 months, 37 per cent had a duration of 1 year, and 38 per cent of improvement programmes lasted 13–24 months (YCB Report, 2022). A programme can consist of both specialised and non-specialised interventions. Specialised interventions may include placement outside the home in an open, semi-secure or secure facility, the assignment of a mentor for 6–10 hours per week, or drug treatment. Non-specialised interventions can include school attendance, participation in a youth club, or a home curfew, all of which are managed by the child’s parents. The aim of the programme is to provide support for the child or young person to prevent future offending. Child welfare services are responsible for effectuating the interventions in accordance with the programme, and they must be initiated within 1 month of the YCB adjudication.

In some cases, the improvement programme consists of interventions which are already in place, such as continued placement outside the home or mentoring. About one in four YCB cases concern children or young people who are placed in out-of-home care, and half of the cases involve children and young people who are already receiving at least one intervention. In two out of three cases, the child was already known by child welfare services prior to their referral (Ministry of Justice, 2021c). In such cases, when the child is sanctioned with an improvement programme, these interventions typically continue and sometimes increase in intensity. They become mandatory and have a fixed timeframe, and the child is subject to supervision by the YPS to ensure compliance and continuity.

The improvement programme can impose multiple forms of restrictive measures in the everyday life of the child or young person. For instance, sanctions can include confinement in a secure or semi-secure facility, but the reform does not generally appear to increase the use of custodial sentencing. However, the intensity of the support measures and activities in the improvement programme may consume most of the child’s or young person’s time, thus minimising their availability for other activities, such as working, sporting, or being with friends. In some cases, this is an intentional strategy to ensure that the young person has less time to become involved in criminal activities. For children and young people whose improvement programme includes a home curfew, any deviation requires permission from their case manager and probation officer. Curfews can result in exclusion from pro-social events, such as birthday parties, family vacations, or overnight school trips. For the duration of the improvement programme, the autonomy of the child or young person is restricted in their daily life. Autonomy and everyday decision-making help to develop children’s skills in structuring their time, prioritising activities, and making independent decisions (Munro, 2001). Thus, the improvement programme serves to support the child or youth in desisting from crime, yet it can hinder the development of pro-social skills and everyday decision-making.

While improvement programmes constitute a diversion into child welfare services, they impose multiple forms of restrictions on everyday life and often result in a prolonged duration compared with court sentencing. These findings resonate with those of Cox (2013), who has suggested that probation can be experienced as a form of modern confinement. The mandated interventions of support in the improvement programmes in Denmark depend on ambiguous logics of care, treatment, and control and ultimately on punishment if the child or young person fails to comply. These logics are in line with the findings of Sandøy (2020), who has argued that mandated treatment can include elements of punishment and control that are embedded – and, to some extent, disguised – in practices of care and rehabilitation.

Youth Probation Service

An improvement programme always includes supervision by the YPS. The YPS is therefore a central part of the 2019 reform, as it supervises the compliance of children, parents, and professionals with the programme issued by the YCB. The content and frequency of meetings and other YPS activities are regulated by legislation (YPS Guideline no. 9967, 2019). The YPS monitors whether child welfare services initiate the intervention(s) within a 1-month timeframe and contacts the case manager every 2–4 weeks to obtain an update on the progress. The interventions are monitored by the YPS on a weekly basis, and probation meetings take place regularly. The first meeting is held within 7 days of the YCB meeting, and subsequent meetings occur every 2 weeks and eventually monthly. Parents or other adults in close contact with the child or young person must participate in the meetings. Thus, a child following an improvement programme that consists of three interventions will be subject to approximately 10 monthly controls by the YPS for the duration of the programme.

The objective of the probation meeting is to monitor the compliance of the child or young person with the plan of improvement. The meetings usually last between 10 and 30 minutes and are based on a set of standard exercises designed to facilitate conversation about the progress and desistance from crime. Since there are currently only five YPS offices throughout the country, some children and parents must travel up to 150 kilometres to participate in the probation meeting. The five YPS office locations are extensions of existing criminal justice parole and probation offices for adults but have separate entrances and staff.

The YPS contacts the various service providers every second week to monitor whether the child is complying with the requirements of their improvement programme. Furthermore, parents, teachers, and residential care staff must report the child or young person to the YPS if they fail to comply with the requirements of the improvement programme. As a result, the YPS extends into most of the significant adult relations in the child’s life, and the intensity of these control mechanisms carry the inherent risk of damaging the relationships between the child and the adults they trust.

The non-compliance of a child or young person with their improvement programme results in a warning from the YPS that can ultimately result in the child being referred to the YCB again. In such cases, the YCB then decides whether the improvement programme needs to be intensified, reduced, or otherwise altered. A total of 29 per cent of cases have been reassigned, and repeated warnings and reassignment to the YCB have sometimes resulted in the termination of the programme. In the event of a termination, the child or young person is usually referred back to the municipal authority and interventions pursuant to the Act on Social Services (Ministry of Justice, 2022).

The reform has a significant impact on the everyday life of children and young people living in care outside the home. These children risk violating their improvement programme if they fail to comply with house rules, abscond, use drugs, or have conflicts with staff or other children and young people living in the residential facility. According to the Act on Adult Responsibility (law no. 764), which regulates the use of restrictive measures for children in care, threats or violence against residential care staff must be reported to the police. Consequently, children in out-of-home care are at a high risk of being referred and reassigned to the YCB due to new charges of violent crime, non-compliance with their improvement programme, or both. According to an evaluation by the Municipality of Aarhus, while children in out-of-home care may be within the target group of the reform, their repeated referral to the YCB is counter-productive to their process of development (Municipality of Aarhus, 2019).

Most of the children and young people who are presently in contact with the YPS would not have been in contact with probation services previously. For this reason, the YPS cannot be defined as diversion. For children between 10 and 14 years of age, their contact with the YPS constitutes a new form of system contact, and 12 per cent of young people aged 15–17 years are subject to supervision by both the general (adult) probation service and the YPS (Ministry of Justice, 2022). The YPS monitors the child or young person for the duration of their improvement programme, which, over the course of a year, can amount to more than 100 controls. In principle, there is no limit to the number of times a programme can be prolonged if the child or young person fails to comply with the terms of their improvement programme or commits a new crime. The frequent meetings and practices of the YPS aim to motivate young people to build a life without crime and hold them accountable for their choices through warnings and reassignment to the YCB. This aspect resonates with previous findings that new forms of social control often centre on neo-liberal logics of individualisation and responsibilisation (Arthur, 2017; Franzén, 2015). This logic assumes that both crime and desistance are choices rather than the result of childhood adversities and structural inequality.

Concluding Discussion: A New Punitive System of Ambivalent Diversion

In Denmark, child welfare and the criminal justice system have a long history of interconnection and collaboration towards preventing youth crime. Before the 2019 reform, when a child under the age of 15 years was suspected of committing a serious crime, the police would notify child welfare services in addition to the child’s parents, which usually resulted in a meeting and occasionally an intervention decided in collaboration with the child and their parents. Meanwhile, young people aged 15–17 years would be (and are still) prosecuted in the criminal justice system, where, depending on their offence, minors would receive a lenient sentence in the form of a suspended sentence, placement in surrogate custody in a (secure) residential institution or the offering of a ‘youth sanction’ instead of a custodial sentence (see also Storgaard, 2005, 2009) Thus, diversion was and still is an integral part of Danish youth justice. However, with the 2019 reform, the systems have become increasingly integrated and extend to a new age group of children aged 10–14 years.

According to the typology of diversion developed by Kelly and Armitage (2015), the new system reinforces previous diversion schemes in the mainstream and alternative services and diversion from crime through early and timely interventions. However, the reform also involves diversion into a prosecution or court-like system and into the youth probation system of the YPS. This new system increases system contact by introducing a court-like setting that is new to children below the minimum age of criminal responsibility, and it creates additional proceedings for young people between 15 and 17 years of age (Larsen et al., 2023). The YCB meetings are court-like in several ways: they take place in a court building, a judge heads the process, and the vast majority of the issued sanctions cannot be appealed. At the same time, they differ from a court process in that the adjudication process is based on principles of conferencing and dialogue rather than formal legal processing. The YCB is an example of a quasi-legal set-up which provides children with limited legal guarantees while issuing sanctions that substantially restrict their everyday autonomy.

The use of an improvement programme is an example of diversion into child welfare services. However, most of the children and young people who receive an YCB sanction have already received interventions through child welfare services. For these children, the most significant change is that the interventions are no longer voluntary and have fixed timeframes once they become part of an improvement programme. Because the programme is always mandatory and subject to supervision by the YPS, it carries many similarities to a court sentence. The intensive supervision targets not only the child but also their parents and the professional system surrounding the child or young person, which results in pervasive control over their everyday life. Although the new reform in Denmark includes elements of diversion into the welfare system through school and youth clubs, it simultaneously increases children’s and young people’s contact with a specialised probation system that focuses on control and crime prevention. By limiting the autonomy of children and young people for an extended period of time, the reform integrates punitive elements into the delivery of treatment and support. Our analysis demonstrates how the reformed youth justice system involves less diversion than the previous system as well as increases contact with criminal justice elements and specialised interventions.

The Danish child welfare service has a long tradition of taking a holistic approach to children and families. In this tradition, social problems are understood within the broader context of the children’s lives (Villumsen, 2018). From a holistic perspective, crime is a symptom of dysfunction in a child’s everyday life and a response to or consequence of other social problems, such as dysfunctional family relations or developmental problems. While this holistic approach is still prevalent in social work practices, the 2019 reform has hastened the shift towards a focus on crime prevention and the assessment of criminogenic risk factors. With the reform, the police have assumed a more prominent role in screening and referring children to the YCB and occupy one in three seats in the YCB. Furthermore, the criminal justice system has been assigned a more prominent role in early crime prevention, as evident from the decision to place a judge at the head of decision processes and from the introduction of the YPS. Whereas the aim of the child welfare service is to secure children’s well-being by focusing on social integration and broader needs for support or treatment, the police and criminal justice system are prone to focusing on criminogenic risk and needs. The reform opens the Danish youth justice system to an approach that separates involvement in crime from wider social disadvantages and the complex adversities in the lives of vulnerable children.

The 2019 Danish reform for preventing youth crime is under evaluation, and it is too early to comprehensively assess its impact. The 2019 reform will need to be followed and evaluated to determine its relative punitiveness and how this effect is mitigated by the practitioners and professionals involved. When the minimum age of criminal responsibility in Denmark was lowered from 15 to 14 years in 2014, an evaluation revealed negative effects of processing 14-year-olds in the criminal justice system based on criminal and educational outcomes (Damm et al., 2017). Studies inspired by labelling theory have suggested that even brief encounters with the criminal justice system, such as spending a night in detention (Petrosino et al., 2010) or being placed in a secure institution (McAra and McVie, 2007), can have a negative impact on recidivism and result in institutional labelling. Considering the elements of ambivalent diversion which have been highlighted in this analysis, it is possible that the reform will lead to an increase in youth crime and poor outcomes in other key areas, such as education, system contact, and well-being.

The new youth justice system reform advances the punitive turn in Danish criminal justice that has been affecting youth justice since the turn of the century (see Larsen et al., 2023; Storgaard, 2013). This punitive turn implies a tension between competing logics in the governance of children and young people in conflict with the law. In line with the first logic, which builds on securing the welfare of all children, the reform gives child welfare services a key role in the service delivery of improvement programme interventions. The inclusion of general and specialised social services extends an approach centred on rehabilitation and support that has been a trademark of youth justice in the Nordic welfare states (Enell et al., 2022). The second logic, which builds on neo-liberal logics of individual responsibilisation, is present in the introduction of the YCB and YPS. These new institutions communicate to children that ‘all actions have consequences’, even for children, whose cognitive development or impairment diminishes their capacity for understanding consequences and taking responsibility for change (Arthur, 2017).

The 2019 youth justice reform in Denmark is not a legal violation of the UNCRC or the principles present in General Comments No 24. However, in practice, the reform has implications for children that are not in line with the intentions of these legal frameworks. First, the reform introduces quasi-legal processing of children aged 10–14 years, which denies adequate legal guarantees for children, such as the right to legal representation, access to a complaints system, and the principle of innocence until proven guilty. Second, the reform de facto lowers the minimum age of criminal responsibility to 10 years, which is contrary to recommendations in General Comments No. 24. Children are not formally sentenced, but they are subject to mandatory programmes and intensive control by the YPS for a considerable length of time. Third, the reform limits the participation of children in decisions regarding their everyday life (Article 12). It introduces court-like decision-making processes that may cause children to feel anxious and intimidated by court buildings and large meetings with unfamiliar adults, and it issues sanctions that regulate the everyday lives of children and restrict their autonomy. A key concern that has also been addressed by Rap and Weijers (2014) in their analysis of youth justice procedures in Europe is that proportionality, guilt, and responsibility are not addressed, and the lack of the child’s participation will weaken their autonomy.

Youth justice constitutes an institutional space for enabling social control of troublesome populations (Cohen, 1985). Indeed, the Danish reform enables social control of a large segment of potentially troublesome children who are in conflict with the law. However, the system affects not only the intended target group – defined as 1 per cent of a cohort that is involved in 40 per cent of all crimes perpetrated by youth (Ministry of Justice, 2017) – but a larger, more diverse group of children. It is an example of net-widening (including children below the age of criminal responsibility) and mesh-thinning (including children suspected of and sentenced for minor offences) in an expanding nexus of care and control. With the new system, youth justice and child welfare services are increasingly intertwined in areas of adjudication, service delivery, and supervision, which permits new forms of social control disguised as support and care. As Sandøy (2020) has observed, alternatives to punishment often rest on a strong undercurrent of control and a rhetoric of punishment that is significant for how diversion programmes are experienced by children. While Nordic penal exceptionalism (Pratt and Eriksson, 2014) continues to be true for some jurisdictions or forms of sanctions, the Danish youth justice reform is an example of a more punitive path. Given that Sweden recently commissioned a working group to assess the possibilities of introducing a youth justice system in Sweden based on the Danish reform (Department of Social Affairs, 2022), Nordic youth justice may be embarking on a new path defined by a punitive stance on children’s offending and crime prevention.

Footnotes

Acknowledgements

The authors would like to thank Senior Researcher Britt Østergaard Larsen for her continuous help and detailed reading. They also wish to thank the two reviewers for helpful comments and suggestions on how to strengthen the article.

Funding

The authors disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: from Trygfonden

ORCID iD

Ann Karina Henriksen

Notes

Author biographies

Ann Karina Henriksen has a MA degree in anthropology and a PhD in welfare studies. She is engaged in qualitative research related to children and young people in vulnerable positions such as children living in out of home care, in psychiatric care or involved in crime.

Tea Torbenfeldt Bengtsson is PhD in Sociology and Professor at VIVE and Aalborg University. Her research is in the fields of childhood and youth studies, social work and youth justice. She has extensive experience in conducting qualitative studies with children and youth experiencing vulnerabilities and social problems and has published books and articles in a variety of journals.

Theresa Dyrvig Henriksen, PhD, is a Postdoctoral Researcher at VIVE – The Danish Center for Social Science Research. Her research primarily concerns vulnerable youths and adults and she has extensive experience in conducting qualitative research among marginalized groups, for instance, incarcerated youth, sex workers and sugar daters. One of her current research projects focuses on young offenders’ encounters with the criminal court.

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