Honey, I Incarcerated the Kids:

A Comparative Look at Juvenile Justice Approaches and Recidivism in the

United States and Sweden

Remington B. Naputi

The University of Oklahoma College of Law

 Table of Contents

I. Introduction............................................................................................................................3
II. Understanding the Problem...............................................................................................4
A. The Birth of a System...........................................................................................................4
B. Growing Pains......................................................................................................................5
C. The Modern System..............................................................................................................8
1. Alternative Programs........................................................................................................9
2. Probation.........................................................................................................................11
3. Residential Placement.....................................................................................................13
4. Key Takeaways...............................................................................................................16
III. The Solution(?)..................................................................................................................17
A. The Foundation...................................................................................................................17
B. Sentencing...........................................................................................................................18
1. Youth Service..................................................................................................................20
2. Probation.........................................................................................................................22
3. Closed Juvenile Care.......................................................................................................23
4. Criticisms........................................................................................................................25
IV. Limitations.........................................................................................................................26
V. Analysis & Considerations..................................................................................................27
A. The Varying Sentencing Philosophies................................................................................28
B. The Difference in Charging Decisions...............................................................................28
VI. Conclusion.........................................................................................................................29
VII. References..........................................................................................................................31
 I. Introduction

In a 2021 national poll, 78% of respondents—across the political spectrum—stated their

belief that the main focus of the American juvenile justice system should be crime prevention

and rehabilitationi. Moreover, within the same poll, 70% of respondents agreed that most

youthful offenders are capable of positive growth and changeii.

Despite this poll being a microcosm of public opinion, I would posit that most

Americans, with varying degrees of support, would answer in a similar manner. I would again

posit that the desire for a rehabilitative juvenile justice system is an intrinsic paternal and

maternal instinct that spans the political divide. While the problem is easy to identify, the

solution, often times, is not. Americans know that changes must be made to better accommodate

and support the developing mind of youthful offenders so as to mold them into productive

members of society. Despite this knowledge, a question lingers in the mind of juvenile justice

reformists: How?

It is my belief that the solution—or at a minimum a solution—to this problem may be

found within the Scandinavian country of Sweden. In bolstering this claim, this paper will

address the history of the American juvenile system, before examining it in a more modern

context. To this end, I will compare the most frequently used punishments in the United States’s

juvenile justice system with their corresponding recidivism rates, benefits, and detriments. Then,

the same analysis will be conducted within the context of Sweden’s juvenile justice system. By

this paper’s conclusion, I believe it will be made clear that serious deficiencies exist with the

United States’s juvenile justice system, and that the implementation of Sweden’s holistic

treatment approach is something that ought to be considered for implementation in the United

States.
 II. Understanding the Problem

Before we can arrive at a solution, we must first understand the problem. To this end, let

us first examine punishments available within the American juvenile justice system through its

philosophy and implementation.

A. The Birth of a System

Like many other areas of law, at the time of the United States’ conception, the Nation’s

approach to juvenile offenders mirrored that of English common law iii. Particularly, courts used

the doctrine of parens patriae to justify government intervention in the affairs of juvenile

offenders under the age of 18 when parental intervention was deficient iv. The doctrine of parens

patriae gave the government the authority to “protect” citizens who were unable to do so

themselves which, in the present instance, extended to vagrants and delinquents who the

government viewed as posing a danger to themselves or others v. During this time, there was little

to no distinction between the punishments imposed upon adults and juveniles. Indeed, adults and

juveniles alike were eligible for imprisonment, execution, and other forms of corporal

punishmentvi.

However, the 1800s brought with it a reformist movement which sought to differentiate

between adult and juvenile offendersvii. This movement began the popularization of reformatories

and rehabilitative centers to which juvenile offenders would be sentenced to. The philosophy

behind such a system is best espoused by the Pennsylvania Supreme Court in Ex Parte Crouse.

In Ex Parte Crouse, the court determined whether the doctrine of parens patriae was

constitutional and, thus, whether the government had jurisdiction over juvenile offenders. The

court, in upholding the doctrine, held that parental rights are not inalienable, and that when

parents fail, the government must step in for the betterment of society and the safety of the
juvenileviii. Further, the hope was that by sentencing juvenile offenders to reformatories, they

would separate the offender from corruptive associates, teach them a trade to earn a wage, and

instill moral and religious principles by which they would be rehabilitatedix.

From this case of novelty, we can see the foundations upon which the American juvenile

justice system was built. Parental rights are natural rights, indeed, but they are not unlimited.

When juveniles commit crimes, the government can, and should, exercise jurisdiction over the

child and punish them accordingly. It is this novel case which helped cement the government’s

power over juvenile offenders and conferred the ability to sentence them for crimes, resulting in

the first juvenile court being established in 1899 in Chicago, Illinoisx.

B. Growing Pains

With the rise of juvenile courts came the need for juvenile legal protections. Thus, from

the 1960s to the 1970s, there were a plethora of Supreme Court decisions that delineated the

rights and limitations thereof belonging to juvenile offenders when being adjudicated in juvenile

courtsxi. Such cases afforded the same due process rights afforded to adults to juveniles xii, while

others expanded the Fifth Amendment “Double Jeopardy” clause to forbid adult criminal

convictions after juveniles have been adjudicated xiii. Thus, at this point in the 1970s, the juvenile

justice system began to resemble what we recognize as the modern system.

The distinctions between the juvenile system and the adult criminal system by this point

were many. To begin, the juvenile system does not recognize legal guilt xiv. Except in rare

exceptions when juveniles are certified as adults (more on that to come), juveniles lack the

mental and emotional capacity to be found legally guilty. Instead, juveniles are “adjudicated

delinquent” in a process similar to adult criminal trials, but without the legal finding of guilt.
 When juveniles are adjudicated delinquent, they are typically punished less severely than

adults, even when committing similar crimes. Thus, juvenile sentences are shorter and the

purpose of said sentence is treatment rather than punishment xv. Lastly, in many states, juvenile

proceedings are private and sealed upon adjudication, meaning that only certain, authorized

individuals may access a juvenile’s adjudicative history. While these are not all the distinctions

that arose in the 1970s, they are the key differences which will help us better understand the

modern system.

At the end of the 20th century, amid what many perceived to be a “crime-wave”, attitudes

toward juvenile offenders (and adult offenders) began to shift from a desire for rehabilitation to

one for deterrence and retribution. Thus, nearly every state implemented new laws which

increased the severity of punishment for juveniles xvi. For example, 45 states passed legislation

that loosened the standards for transferring juveniles to criminal courts, while 47 states made

juvenile records and proceedings less confidentialxvii. These changes, and more, had the

consequence of changing the juvenile system from a rehabilitative model to that of a more

punitive based one. Thus, juveniles and adults alike faced a system that resembled one another.

Although the punishments grew harsher in nearly every facet for juveniles, there was one

area where progress was made. In 2005, amid international controversy and pressure, the United

States completely abolished the use of the death penalty for juveniles under the age of 18.

Pressure for such abolition had been building for decades, but it wasn’t until the late 80’s into the

early 00’s that change was made. In 1988, the Supreme Court held that the death penalty

constituted cruel and unusual punishment pertaining to juvenile offenders under the age of 16xviii.

In Thompson v. Oklahoma, at 15-year-old child was sentenced to death for the murder of

his former brother-in-law. In coming to its decision, the Court analyzed prior legislation and
decisions of juries in prior juvenile murder cases to explain why the juvenile death penalty fails

to conform with modern notions of decency xix. As for the legislative enactments, the Court

examined the laws of the 50 states which concerned the rights (or lack thereof) of minors, such

as the right to vote, drive, drink, serve on a jury, etc. xx. Furthermore, the Court addressed the

distinctions of law between juveniles and adults in contract law, tort law, and criminal law itself,

showing that because our legislature has differentiated between juveniles and adults in so many

avenues of law, there must be some inherent difference between the culpability of a 40-year-old

and that of a 15-year-oldxxi.

As for the Court’s analysis of jury decisions, a point was made that a juvenile under the

age of 16 had not been executed since 1948, and that only a handful of juveniles were executed

prior to this datexxii. In fact, through the history of our country, the Court pointed out that the

execution of juvenile offenders has been the exception, not the rule xxiii. Thus, it would seem

repugnant to reverse this trend after so much societal growth had occurred.

Based on these reasons, the Court determined that to allow the execution of a juvenile

under the age of 16 would controvert the societal and legal distinction that America has when

evaluating the culpability of juvenile and adult offenders. According to the Court, juveniles under

the age of 16 lack the experience, education, and impulse control to fully understand the

consequence of their actions, and thus should not be punished so severely for their youthful

ignorancexxiv.

While this prohibition on juvenile execution only applied to juveniles under the age of

16, this rule was later extended in 2005 to all juveniles below the age of 18 through another

Supreme Court case, Roper v. Simmonsxxv. The judicial reasoning for such a prohibition was

similar to that of Thompson, but the Roper decision also considered a controversial analysis of
international law and customs, showing that very few countries support the death penalty, and

even fewer for juveniles (particularly in Western Europe) xxvi. The relevance of these cases to the

present analysis is great, as they delineate the guide stones and limitations of our modern system.

C. The Modern System

Juvenile courts in America are first granted jurisdiction over juvenile offenders aged of 6-

12 (depending on state) and retain said jurisdiction until the juvenile is aged 16-17 xxvii. Paths of

entry into juvenile justice systems vary, with the discretion falling upon law enforcement and

prosecutors. Upon an offense being committed, law enforcement and prosecutors have several

options at their disposal, depending on the severity of the offense committed: (1) decline to

pursue any further action; (2) divert the juvenile away from the justice system and into an

alternative rehabilitative program instead; (3) enter the juvenile into the juvenile justice system;

or (4) prosecuting the juvenile in the criminal justice systemxxviii.

The first option, declining to pursue further action, is the simplest and is exactly as it

sounds—no formal or informal adjudication occurs. The second option, diverting the juvenile

away from the justice system, is how approximately 25% of cases are handled, and typically

results in law enforcement or the prosecutor assigning the juvenile to a rehabilitative program xxix.

The third option, entering the juvenile into the juvenile justice system, is how a majority of

juvenile cases are handled (60% to be exact), and often ends in the offender being sentenced to

complete alternative programs, a term of probation, or a term of residential placement xxx. Lastly,

prosecuting the juvenile in the adult criminal justice system, which is comparatively rare,

requires a hearing wherein the prosecutor must show that the case would be better handled by a

criminal court, and that the juvenile is unable to be rehabilitated in the juvenile system xxxi.
 Having progressed from the punitive model of the 1980s, most state’s current model is

focused on rehabilitation and restorative justice. Within this model, the purpose of punishment is

to show the offender the impact that their actions have on victims, and to rehabilitate any

emotional or mental disabilities that may exist within the offender so as to prepare them for

adulthood outside the criminal justice system xxxii. This philosophy applies in every instance of

punishment, including alternative programs, probation, and residential placement. This system,

in theory, implements numerous programs to help address the individual issues which cause or

encourage juveniles to offendxxxiii. In practice, however, the shortcomings of such a system will

soon be made apparent.

1. Alternative Programs

Generally, juveniles attend alternative programs prior to adjudication, and upon

successful completion of said program, the charges against them (if there are any) are dismissed

If the program is not completed, however, the juvenile will be adjudicated delinquent and

sentenced accordingly. In best case scenarios, offenders in alternative, diversionary programs are

granted mentors, teachers, therapists, and resources to help juveniles obtain employment and

become better prepared for adulthood, while also involving the juvenile’s family xxxiv. Such

programs should, ideally, be individualized to address different developmental and emotional

issues within offenders, such as learning and behavioral disordersxxxv.

However, these programs frequently lack the funding necessary to actualize such goals.

Instead, juveniles often receive either a half-baked version of these programs which fail to

effectuate any real progress or, worse still, juveniles simply abide by certain requisites (such as

drug-testing or attending school) set by the court or program, while checking in every few weeks

to ensure that the juvenile is not re-offendingxxxvi.

 i. Recidivism

Regardless, empirical data would suggest that despite some programs being better than

others, juveniles were much less likely to reoffend upon completion of any diversion program

than their residential placement or probationary counterparts xxxvii. To be specific, juveniles in

diversion programs were about 10.3% less likely to reoffend before adulthood than those in

residential placement facilities or probation. Interestingly, the procedural point in which a

juvenile attends a diversion program affects this rate of recidivism. Juveniles who attend

diversion programs before formal charges are filed or being adjudicated (caution programs), are

12.7% less likely to reoffend, while those who attend diversion programs after formal charges

are filed or having been adjudicated (intervention programs) are only 7.9% less likely to

reoffendxxxviii. Thus, it appears that the earlier a juvenile’s issues are addressed prior to being

introduced to the juvenile justice system, the better odds they have of being rehabilitated.

Overall, juveniles in caution programs had a recidivism rate of 26.8%, whereas juveniles in

intervention programs had a rate of 33.1% xxxix. Further still, juveniles who attend diversion

programs before the case is referred to prosecutors were 1.69 times less likely to reoffend than

those who had charges filed.xl

A common critique, however, is that the number of juvenile cases which are diverted into

alternative programs (~20%) has remained stagnant since the 1990’s xli. Thus, despite the juvenile

justice philosophy becoming more rehabilitative in nature, the fact remains that this system exists

only for a select group of juveniles, while the rest face the punitive-based system of the 80’s and

90’s. This then leads to another, adjacent critique: Those who need these alternative programs the

most (serious, violent offenders) are simply given probation or sent to residential placement

facilities which lack the resources and funding to effectuate comparable results xlii. Understanding
this, it becomes clear that a majority of the juvenile offender population is being left behind in

the current system.

2. Probation

Probation is a pernicious yet consistent part of the American juvenile justice system,

having bled over from the adult criminal justice system. Probation is the most common outcome

for juveniles who have been adjudicated delinquent. In fact, 71% of juveniles who were

adjudicated delinquent in 2020 received some type of probationxliii.

Depending on the jurisdiction and the resources within, probation can either be an

effective tool used to rehabilitate and reduce recidivism among juveniles, or, more likely, serve

as a way to keep tabs on juvenile offenders until they re-offend, at which point it becomes an

effective tool for incapacitating and detaining juveniles. Ideally, probation would look and

function similarly to alternative programs. Indeed, many jurisdictions incorporate the same

programs mentioned in the previous section into their probation plansxliv.

i. Recidivism

However, it is just as common, if not more so, to see probation plans which consist of

nothing more than checking in with a probation officer until the juvenile fails to comply with the

conditions of their probation plan, or the term of probation is completed xlv. In the latter scenario,

probation itself then becomes a tool of the state used to justify the juvenile’s confinement in

residential placement facilities, which fails to rehabilitate and reduce recidivism.

The recidivism rate for juvenile offenders sentenced to probation is higher than those who

participate in alternative programs, but lower than those who are placed in residential placement

facilities. To be specific, a study of the Los Angeles, California, juvenile system from 2003-2009

evaluated the effect that different probation programs had on recidivism. Los Angeles, like many
jurisdictions, has three different probation types: (1) At-Home; (2) Group Home; (3) Reform

Campxlvi. At-home probation occurs when an offender is placed on probation but is allowed to

remain living with family. Group home probation constitutes a juvenile being sent to live at a

staffed facility where rehabilitative measures are taken to address any emotional or mental

disabilities. Group homes differ from residential placement facilities in that they afford a greater

level of autonomy to the juvenile and are not as restrictive. Lastly, reform camps require juvenile

participants to complete a rigid program that affords a low level of autonomy and seeks to teach

values like accountability and respect to juveniles. Reform camps are by far the most constrictive

and punitive form of probation availablexlvii.

In analyzing the result of the study, it was found that, on average, 18.6% of participants

recidivated within a year of completing their probation program, with juveniles who attended

reform camps being twice as likely to recidivate than at-home probation participants xlviii. These

rates of recidivism grew with each passing year, culminating in a five-year recidivism rate of

50%xlix. At-home probation participants had the lowest rate at 39%, followed by group-home

participants at 47%, and reform camp participants at 65% l. Thus, from this study—whose results

mirrors those of similar studies—we can see that the more restrictive and punitive a probation

plan is, the more likely it is that participants will recidivateli.

From this data, we can see that the long-term benefits of alternative programs outweigh

even the best probation plans. Further, if jurisdictions are insistent on using probation plans, they

should be implemented in the least restrictive and punitive fashion possible. However, the effects

of even the most efficient probation plans should be known. As mentioned in the Alternative

Programs section, the earlier a juvenile is diverted from the juvenile justice system, the lower

their odds of recidivating are. Because probation is required after adjudication, the positive
effects of a good probation plan are arguably outweighed by the negative effects of introducing a

juvenile to the juvenile justice system. Thus, it appears clear that probation should be used only

when it’s absolutely necessary to monitor the juvenile’s progress.

3. Residential Placement

Having examined alternative programs and probation, let us now turn toward the most

problematic tool of the juvenile justice system—residential placement facilities or, put more

plainly, juvenile prisons. The United States incarcerates juveniles at a rate unlike any other

Western country. Indeed, in 2008, the United States incarcerated 336 juveniles for every 100,000

youth. For reference, during this same period, the Netherlands had a rate of 51.3, while Sweden

had a rate of just 4.1lii. For a more recent comparison, when analyzing the overall incarceration

rate of the United States (including adult offenders), the inclusion of juveniles raises the United

States incarceration rate by 11.2 incarcerated people per 100,000 of the overall population. At the

same time, including juveniles in the overall incarceration rates of Canada, Italy, and England

and Wales would raise their respective rates by 1.9, <1, and <1, using the same metrics liii. Thus, it

is clear that among comparative Western countries, the United States resorts to juvenile

incarceration at a rate far and above other countries.

i. Treatment & Abuse

While the sheer number of incarcerated juveniles is one cause for worry, the real issue

arises when examining the experiences had by these juveniles while incarcerated in residential

placement facilities. Because residential placement is typically reserved for only the most violent

and prolific juvenile offenders, there is an inherent risk in forcing young, violent boys and girls

to live within such close proximity to one another. However, often times, the people entrusted

with watching over the juveniles are just as violent as the juveniles themselves. From 2000 to
2011, 21 states had “clearly documented” violent or abusive conditions within their juvenile

residential facilitiesliv. The cause of these conditions is juvenile-on-juvenile violence and staff-

on-juvenile violence.

Just as prevalent, and perhaps more damaging to maturing juveniles, are the rates of

sexual abuse. In a first-of-its-kind 2010 report by the Bureau of Justice Statistics, it was

discovered that from 2008-2009, within the sample size of 9,198 incarcerated juveniles, 12.1%

of juveniles had experienced sexual victimization within the past year at the hands of staff or

other juvenileslv. Within this 12.1% of victimized juveniles, approximately 10.3% of instances

were staff-related, with 6.4% of instances being “consensual”. The remaining instances from the

12.1% figure were from youth-on-youth, forcible abuse. Extrapolated to a national estimate, this

would mean that over 3,000 juveniles are sexually abused by staff or other juveniles each year.

Unfortunately, these statistics do not reveal the whole picture of physical and sexual

abuse within these facilities, as many instances of violence or abuse go unreported and, even

when they are reported, are unpublicized. Despite this fact, these statistics make it clear how

harmful and counter-productive residential placement can be for a juvenile’s growth and

development. Further, even when a juvenile escapes physical and sexual abuse, the intrinsic

characteristics of residential placement facilities still hamper the maturation process of youthful

offenders.

ii. Academia & Rehabilitation

Although residential placement facilities have school-like programs to ensure that

juveniles do not fall behind academically, the efficacy of these programs is often questionable at

best. Indeed, in a 2001 study, researchers discovered that the average education level of

incarcerated youth was between fifth and ninth grade lvi. Further, over half of juveniles perform
below average in all academic areas by the time they’re in middle school. The implications of

such a fact are weighty, as incarcerated juveniles are 26% less likely to graduate than delinquent

juveniles s are not sent to residential placement facilities lvii. This, in turn, increases recidivism

rates for incarcerated juveniles, as delinquent juveniles that perform poorly in math and reading

are twice as likely to recidivate when compared to delinquent youth in generallviii.

While some of these educational deficiencies can be attributed to the high level of

learning disorders, personality disorders, and differences in educational attitudes among

incarcerated juveniles, poor academic programs within residential placement facilities only serve

to exacerbate the issuelix. In fact, when examining pedagogical methods of teachers in residential

placement facilities, it was found that their methods and practices lagged far behind that of their

public counterpartslx. The consequence of such defective teaching strategies is that teachers

within residential placement facilities serve as mere supervisors rather than educators.

Compounding on the violence, sexual abuse, and deficient academic system, is the fact

that behavioral and mental disorders often go untreated while juveniles are confined. Although

systems and programs exist to address these issues, said systems and programs are simply

overburdened by the sheer number of confined juveniles who require this special treatment.

More than half of the confined juvenile population reside within facilities that do not require

mental health assessments on all juvenileslxi. As a result, studies have yielded results that show

40% of youth in residential placement facilities received no mental health treatment during the

duration of their confinementlxii. Paradoxically, when youth do receive mental health assessments

and do have serious mental health issues (anger, suicidal ideation, hallucinations), they’re still

less likely to receive treatment than those who do not exhibit such issueslxiii.
 iii. Recidivism

As a consequence of these many shortcomings, it should come as no surprise that

juveniles in residential placement facilities recidivate at a rate much greater than delinquent

juveniles who are enrolled in alternative programs or given probation. Despite there being no

uniform, national data on the topic—a problem in and of itself—there exist plenty of data from

the various states which show just how harmful isolation and incarceration is.

Indeed, comparative studies of state data have shown that upon release from residential

placement facilities, 70-80% of juveniles will be rearrested within two to three years lxiv. On the

low end of the spectrum, about 68% of released youth are rearrested by year two and by year

three, the number averages out to 75% nationwide. As for new convictions and adjudications, on

average, 48% of juveniles will be re-adjudicated delinquent or convicted as an adult within two

years of release, with the number rising to 58.5% in year three lxv. Serving as a microcosm of the

national crisis, a long-term study in the state of New York produced alarming results. From the

time juveniles were released from residential placement facilities to the time they turned 28, 89%

of boys were rearrested, and 71% were incarcerated as adultslxvi.

4. Key Takeaways

From this data, we are able to better understand the problem with the American juvenile

justice system. Still today, we can see the effects that the early criminal justice system had on the

juvenile justice system. Harsh punishments, little emphasis on rehabilitation, and poor funding

all compound into the failure that is the modern juvenile justice system. Admittedly, the fault

does not fall entirely upon the government. The American culture is just as—if not more—

culpable as Uncle Sam. The fall of the nuclear family and lack of communal values has only

served to exacerbate the issue, although that is a topic for a different paper. Regardless, we can
see that the current incarceration-happy model is not a sustainable one if we wish to develop and

support our youth in their transition to adulthood.

Time and again, we’ve seen that incarceration and punishment only begets more

incarceration and punishment. Contrarily, treatment and rehabilitation (i.e., alternative

diversionary programs) breaks this causal chain, giving children the chance to be children and,

eventually, honest citizens. Don’t just take my word for it, however. Rather, let us look toward

one of the global leaders in juvenile justice, renowned for their humane and effective juvenile

justice system: Sweden.

III. The Solution(?)

Sweden’s juvenile justice system is, in some ways, more nuanced. Before we dive into

the deep end though, let us first lay a foundation of the modern system upon which the data will

be contextualized.

A. The Foundation

To begin, Sweden’s age of criminal responsibility does not begin until juveniles are aged

15lxvii. Thus, juveniles under the age of 15 may not be prosecuted. The reasoning behind such a

law is premised in the fact that juveniles lack the maturity and mental capacity to accept criminal

responsibility. Nonetheless, youth under the age of 15 may still be punished for wrongdoing, but

it will not be through prosecution or the juvenile justice system. Further, there is no formal

separation between the juvenile justice and criminal justice system lxviii. However, when

accounting for the various procedures, limitations, and punishments given to juveniles, a separate

de facto system is created. This unofficial juvenile system retains jurisdiction over juveniles and

young adults until the age of 21, at which point all special protections cease and the individual is

treated as an adultlxix.
 Furthermore, the Swedish system places upon prosecutors the duty of “obligatory

prosecution”lxx. This means that prosecutors do not have the same level of prosecutorial

discretion seen within the American system—if the Swedish prosecutor believes that sufficient

evidence exists for a conviction, they must prosecute the suspected offender. However, this is not

absolute. In cases involving juvenile offenders, the prosecutor may waive prosecution so long as

they can prove that the offense was a minor one or, in the case of 15 to 17-year-old offenders,

that the offender will be subject to youth service (community service) sanctions or that the

offense was committed due to mischief or immaturity lxxi. Even still, in instances where

prosecution is to be waived, permission must be granted by the “Social Welfare Board”, which

serves as a crucial governing body in juvenile justice affairs lxxii. Thus, while prosecutorial

discretion in America serves as a mighty shield (or sword, depending on how it is used) to

juvenile prosecution, Swedish prosecutors are much more restricted in their charging decisions.

B. Sentencing

When it comes to punishing juveniles, Sweden is typically very lenient in their

sentencing practices. The reasoning for this leniency is the same as their reasoning for setting the

age of criminal responsibility so comparatively high at 15 years old. Sweden views childhood as

a time for experimentation and mistakes—a time to learn independence and how to be a

productive member of societylxxiii. Thus, in practicing this autonomy, it is expected that juveniles

will sometimes slip up and violate the law to some extent. Along these lines, it is also understood

that children have less life experience, are less mature, and are more emotionally and

psychologically fragile than adults. Accordingly, it is seen as almost inhumane to severely punish

children, thereby stunting their maturation and development in society.

 As for the sentences themselves, there exist six avenues by which a juvenile may be

punished: (1) Fines; (2) Youth Service; (3) Closed Juvenile Care; (4) Probation; (5) Conditional

Sentence; and (6) Committal to Special Carelxxiv.

Fines, as one would imagine, require the juvenile to pay money to either the government

or the victim, if it is a victim-based crime. These are the most frequently used sanction, and scale

in accordance with the offender’s age (i.e., the younger an offender is, the less they pay and vice

versa)lxxv. Often time, fines are combined with other sanctions as well, such as community

service or probation.

Youth Service, or community service, is also among the most frequent sanctions given to

juvenile offenders. Youth service requires offenders to complete a certain amount of unpaid

service hours working for a non-profit organization or toward some other public good lxxvi. Often,

this is used as a step up from fine-only offenses.

Closed Juvenile Care (or, for the sake of practicality, imprisonment) is the least used

sanction, is reserved for the most serious offenses, and also scales with age. Thus, 15-year-old

offenders will receive only 1/5 of the prison sentence that a 21-year-old offender would receive,

while 18-year-old offenders receive 1/2 of the same sentencelxxvii.

Probation lasts for three years, with one year being supervised. While on probation,

offenders may be required to pay fines or restitution, complete community service hours, or

complete some specified treatment plan, similar to the alternative programs in the United

Stateslxxviii.

Conditional sentences, in practice, are similar to sentences of probation, but carry a few

important distinctions. Conditional sentences are reserved for individuals who are unlikely to

reoffend, last for two years, and are unsupervised lxxix. Thus, there is typically no substantial
burden placed upon the offender, and they are free to live their normal lives as if the offense

never happened. However, as the name infers, this sentence is conditional upon the offender not

committing any more crimes. If a new crime is committed, the sentence is subject to an increase

in length or, in extreme circumstances, imprisonmentlxxx.

Lastly, committal in special care is reserved for offenders with serious mental disorders

or addictions. This sentence often serves as a prison alternative wherein offenders receive

treatment for their disorders or addictions. Treatments plans are individualized and crafted by the

Social Welfare Board to help offenders learn how to minimize the impact that their disorder or

addiction has on their liveslxxxi.

Having delineated the different punishments available to Swedish prosecutors and judges,

now is as good a time as any to clarify a few things. Although this paper would ideally compare

the exact same punishments in an “apples-to-apples” approach, this is, unfortunately, not

feasible. Because Sweden has obligatory prosecution, there is no clear analogy to the alternative

programs used by the United States wherein a juvenile can avoid prosecution altogether.

Moreover, nearly every type of punishment in Sweden incorporates some type of program that

would be analogous to alternative programs in the United States. Therefore, to truly capture the

essence of the Swedish juvenile justice system, we will substitute alternative programs for youth

service—one of the most frequently used and least severe sanctions. Having leaped the biggest

hurdle, the remaining punishments exist in both countries and will thus be treated congruently

(i.e., probation in Sweden compared to probation in the United States).

1. Youth Service

Youth service is a relatively new sanction in Sweden, only coming into existence in 2007

amid a wave of juvenile justice reform. Previously, it was referred to as community sentence—a
term that the audience of this paper is likely much more familiar with. However, upon the 2007

reform wave, youth service was split from community sentencing, creating a distinct—albeit

similar—sentencing option for juvenileslxxxii.

Youth service is among the most popular punishments, with around 60% of cases

resulting in some kind of youth service, and 15-20% consisting solely of youth service lxxxiii. In

this program, juveniles volunteer with social welfare organizations and attend classes or

programs that aim to rehabilitate themlxxxiv. The purpose of youth service is to serve as an

alternative to probation, imprisonment, and closed juvenile care. In tandem with other measures

designed to reduce juvenile imprisonment, it appears that this desire has been realized, as

juveniles aged 15 to 17 are sentenced to youth service at a much higher rate than those aged 18-

20 and are sentenced to prison or closed juvenile care at a rate much less than young adults aged

18-20lxxxv. The most common crimes which received such a sentence in 2008 were theft and

assaultlxxxvi.

i. Recidivism

The recidivism rates for juveniles sentenced to youth service are sparse and incongruent.

Two reports show the one-year recidivism rates being around 14-16.5% from 1994-1999 lxxxvii.

Contrarily, a third report shows the three-year youth service recidivism at a shocking 65% lxxxviii.

Assuming that the trend of one-year recidivists continued, that would put the three-year

recidivism rate at 49.5% for the first two reports—still 15.5% less than the third report. Thus,

there is cause for concern in determining the efficacy of youth service. Even more worrying is

the lack of recent data on this matter. Despite persistent efforts and an email exchange with the

Swedish National Council for Crime Prevention, post-2007 data was unattainable. Put more

bluntly, recidivism data by sanction is not tracked, leaving it to independent researchers to

discern what recidivism rates might be for each sanction. It is quite likely that this fact explains

the inconsistency in recidivism rates for community service.

Nonetheless, these rates of recidivism are still considerably higher than those for

alternative programs in the United States (49.5-65% and 29.95%, respectively). Thus, it appears

that the diversionary approach employed by the United States may be even more beneficial than

previously thought. Indeed, this finding tracks with the conclusions found regarding alternative

programs in the United States—if a juvenile is diverted before ever entering the juvenile justice

system, they are much less likely to recidivate than juveniles who are introduced to the system,

even if the punishment is as lax as community service.

2. Probation

Probation in Sweden, as compared to the United States, is rarely given to juveniles aged

15 to 17. Offenders aged 18-20 are sentenced to probation at a greater rate, but even then, it is

still much less frequent than in the United State. Indeed, in 2001, only 132 (1%) of juveniles

aged 15 to 17 were sentenced to probation, while 1,087 (11%) offenders aged 18 to 20 were

sentenced to probation during the same time period lxxxix. Seven years later, in 2008, the rate of

probation usage had not increased for juvenile aged 15 to 17, and actually decreased for

offenders aged 18 to 20xc.

Unlike the American system, probation in Sweden is very treatment oriented. As

mentioned previously, probation typically lasts for three years, with the first year being

supervisedxci. Further, it is often combined with fines, youth service, or prison time. Most

interesting, however, is the holistic nature of the probation program when it pertains to juveniles

with drug addictions or a pattern of criminal behavior. Rather than simply monitor the offender
until they reoffend (as we are prone to do in the United States), juveniles are sentenced to

“contract treatment”.

Contract treatment is a contract entered into by the offender and the court, wherein the

offender promises to receive treatment for their addiction or criminal behavior in exchange for

avoiding jail or prison timexcii. If the offender fails to receive treatment or reoffends, the contract

is broken, and the probation sentence becomes a prison sentence. These contracts can last

anywhere between six months and two years and require that the offender spend part of the

sentence enrolled in either an in-patient or out-patient treatment program. The idea behind these

contracts being that once a juvenile completes the contract, they’ll have overcome their addiction

and, or, criminal behavior, and be prepared for a life in society.

i. Recidivism

Juveniles sentenced to probation or contract treatment had a one-year recidivism rate of

21.5% from 1994-1999xciii. Surprisingly, this is slightly higher than the 18.6% average of

juveniles receiving probation via at-home, reform camp, and group home programs in America.

Nonetheless, in Sweden, the rates of recidivism decline quickly with age. After one year of

completing their sentence, juveniles aged 15 to 17 reoffended at a rate of 29% xciv. Meanwhile,

young adults aged 18 to 20 had a one-year recidivism rate of 25%, while the general adult

population had a recidivism rate of 19% xcv. Thus, it seems that the older a juvenile becomes, the

less likely they are to reoffend. This trend seems to vindicate the Swedish philosophy regarding

juveniles, in that childhood is a time for experimentation and mistakes.

3. Closed Juvenile Care

As with probation, closed juvenile care is used as a tool of last resort for only the most

serious and prolific juvenile offenders. However, because Sweden takes the action of
imprisonment and deprivation of liberties so serious, the closed juvenile care system is tailored

to be as beneficial and humane as possible for the juveniles.

The punishment of “closed juvenile care” was introduced in 1999 xcvi. This sanction was

created to try to reduce—if not eliminate—juvenile imprisonment. Prior to 1999, approximately

85 juveniles per year were required to serve time at an adult prison facility. Since 1999, this

number has been reduced to an average of just four juveniles per year. These closed juvenile care

facilities are generally relatively open when compared to prisons and have a staff-to-inmate ratio

of 3:1xcvii. Further, juveniles may be placed in these facilities by court order or by order of the

Social Welfare Board. Institutionalization by the court requires a finding of guilt and a fixed-term

sentence ranging from 14 days to four years xcviii. Contrarily, an order by the Social Welfare Board

does not require a finding of guilt, but often stems from persistent anti-social or criminal

behaviorxcix. Because of this, these facilities are much more treatment-centric than those found in

the United States.

i. Treatment & Academia

The very purpose behind such a high staff-to-inmate ratio is to reduce the juvenile’s

feelings of isolation and help curb anti-social behavior. Upon entry, juveniles receive an eight-

week long mental health assessment by therapists, family assessors, care staff, and teaching staff,

to help determine what areas a juvenile needs help in the most c. Then, an individualized

treatment plan is developed to help address these problem areas. Treatment plans within these

facilities cover a wide range of topics, from issues with aggression and family trauma to issues

concerning gender identity and sexual health ci. Ultimately, the goal is to address any underlying

trauma within the juvenile in hopes of helping them learn to cope and prevent future criminal

behavior.
 In terms of academia, closed juvenile care facilities have a teacher-to-student ratio of 1:6,

allowing for more individualized lessons and closer relationship between the teacher and

studentcii. Further, the educational facilities and resources are on par with—if not better in some

cases—than those of traditional public schools in Sweden ciii. Students in these facilities follow

the national curriculum to ensure a smooth transition back into public school upon the

completion of their sentence.

As in the United States, juveniles sentenced to closed juvenile care facilities frequently

struggle with education. In a study of 124 female juveniles aged 16 to 20 at closed juvenile care

facilities, 67% of the juveniles surveyed had either dropped out of school before or during high

schoolciv. Further, 82% of juveniles reported having six or more problems with learning or school

itself. Thus, it seems apparent that the investment in educational resources at closed juvenile care

facilities is a necessary one. However, more research and data is needed to determine the efficacy

of these closed juvenile care programs.

ii. Recidivism

Recidivism rates in closed juvenile care facilities are fairly high, but no higher than those

in the Unted States. For pre-1999 data, one study tracked the one-year recidivism rates of

confined juveniles from 1994 to 1999, finding that 48% of juveniles aged 15 to 17 and 36% of

juveniles aged 18-21 had reoffended within a year of their releasecv.

However, post-2007 data indicates that the switch from prisons to closed juvenile care

may be working, to some degree. In 2003, juveniles as whole had a three-year recidivism rate of

78%cvi. Then in 2012, over a decade after the 1999 reform, juveniles in closed juvenile care

facilities had a two-year recidivism rate of approximately 66% cvii. Further, in that same study,

many juveniles reported that they felt they were in a better overall situation after release than
they were prior to conviction cviii. While it impossible to compare these trends in recidivism with

just this data alone, when evaluating it with the naked eye it does appear that juveniles are

recidivating at a slower rate now than prior to the 1999 reforms. Regardless, more research must

be conducted before this observation may be taken as fact.

When compared to the United States recidivism data, we see that Sweden has a higher

recidivism rate for confined individuals by 18% (48% and 66%, respectively). However, an

important consideration is that Sweden has obligatory prosecution, meaning that nearly everyone

who is arrested is prosecuted, provided that the evidence is sufficient. Thus, Sweden’s rate of

66% is likely a truer picture of the recidivism rate than the United States’s recidivism rate of

48%, wherein offenders are not always prosecuted despite committing the offense.

4. Criticisms

Despite the good intentions of these youth programs and sanctions, they are not without

critique. Since the imposition of closed juvenile care, more juveniles have been sentenced to

confinement than were previously sentenced to prisonscix. Further, the average length of

confinement has also increased from 5.4 months under the pre-1999 prison model to 9.5 months

under the modern closed juvenile care approachcx. Moreover, for those institutionalized by the

Social Welfare Board for non-criminal, anti-social behavior, there is a concern that out-of-home

treatment will only alienate the juvenile and thus exacerbate the issue cxi. There are also

complaints regarding the lack of evidence that shows whether these more lenient, treatment-

based programs actually reduce recidivism in any meaningful way cxii. Lastly, there is cause for

concern that Sweden’s holistic approach toward sentencing may result in disparate sentences

being given to different juveniles who have committed the same crimecxiii.
 IV. Limitations

There are, indeed, many limitations which hindered the research and scope of this

analysis. The biggest limitation is likely the compilation of—or lack thereof—data. While

researching this topic, it became apparent just how little data there is regarding juvenile

recidivism in both Sweden and the United States. Although Sweden tracks the overall juvenile

recidivism rate, they do not track recidivism rates by sanction, meaning that without independent

research, there is no concrete way to determine the efficacy of the various sanctions.

Even worse, the United States does not track juvenile recidivism as a whole. Instead, it is

left to the various states to decide whether they wish to keep track of this data. Further, among

the states that do keep tabs on this data, each one has different data criteria. Some states track

recidivism rates after one year while others track three-year recidivism rates. Thus, there is no

cohesion among the states that allows an easy determination of national recidivism rates among

juveniles. This proved to be a big hurdle in researching this topic, as many studies were forced to

track the recidivism rates in a few states and try to extrapolate this data just to get a glimpse of

what the national data might look like.

The second limitation in researching this topic was the language barrier. Many Swedish

resources are not translated to English, meaning that there is likely a bevy of untapped resources

that are not able to be easily accessed by American audiences. Thus, non-Swedish speaker

audiences are unable to learn from the Swedish system without translating software that is either

cumbersome or not easily obtained.

The last meaningful limitation in comparing the two counties’ systems is the cultural

difference. It is difficult, if not impossible, to determine the effect that culture plays on these two

systems. Put another way, there is no way of telling whether the United States’ implementation of
Sweden’s system would have the same effect that it has on Sweden when considering the

differences in culture and philosophy. Undoubtedly, the cultural differences between the United

States and Sweden are vast, meaning that what works in one country might not work in the other.

Thus, the purpose of this paper is not to demand the immediate implementation of the Swedish

approach in the United States. Rather, it is intended to serve as a recommendation for future

policy considerations. Although Sweden may not have all the answers, their philosophy is one

worth considering in addressing juvenile justice reform in the United States.

V. Analysis & Considerations

Herein, the Swedish and American approaches to juvenile justice have been analyzed and

compared. Although the comparison was not 1:1—as such a comparison is impossible

considering the stark differences between the two countries’ system—it does help put into

perspective just how punitive the American system is. Moreover, although the Swedish system

may seem to have similar recidivism rates as the United States, there are few considerations to

keep in mind.

A. The Varying Sentencing Philosophies

While the recidivism rates between Sweden and the United States might appear similar at

face value, this is not the case. In the United States, around 70% of juveniles are given probation

in any given yearcxiv. Meanwhile, in Sweden, its usage is much less prevalent among juveniles,

with probation being used in only 12% of cases in 2001, and even less in 2008 cxv. It is this fact

which explains the difference in recidivism rates for probation and prison.

Unlike the United States, probation and prison in Sweden are options of last resort,

meaning that juveniles are sentenced to probation in Sweden because it has been determined that

no other sanction will be appropriate for the offense committed or beneficial in treating the
offender. In short, only the most violent and most prolific offenders receive probation and

confinement. This means that the probation and prison system are facing an uphill battle in terms

of treatment and reducing recidivism. Contrarily, the United States sentences juveniles to prison

and probation for much less severe offenses, and for offenses that do not commonly have high

recidivism rates. This is likely part of the reason why the United States recidivism rates are

slightly lower than Sweden’s.

This postulation is further supported by Sweden’s overall recidivism rate. A majority of

convicted juveniles in Sweden receive fine-only sentences, which carries with it a low recidivism

ratecxvi. Sweden’s overall recidivism rate sits at 44% after three years for offenders aged 15-20,

which is only slightly worse the 29.9% one-year recidivism rate for American alternative

programscxvii. When calculating the American three-year recidivism rate, this number can be

expected to grow exponentially. Thus, the American program with the lowest recidivism rate is

only as good as—if not worse—than Sweden’s overall recidivism rate.

B. The Difference in Charging Decisions

The next consideration, that was previously mentioned, to keep in mind is the difference

in discretion between Swedish and American prosecutors. In America, prosecutors have near

unfettered discretion in deciding whether to prosecute an offender. In Sweden, they are bound by

the doctrine of obligatory prosecution. There are countless juveniles in the United States who are

arrested for offenses but are diverted from the juvenile justice system before re-adjudication for a

myriad of reasons, as indicated by the high rate of juvenile re-arrests after release from

confinement (70-80%)cxviii. In Sweden, however, if there is sufficient evidence, a juvenile must be

prosecuted. Because of this, Sweden’s recidivism paints a clearer picture of the percentage of
juveniles that reoffend than the United States’s recidivism rate. Thus, were the United States to

implement obligatory prosecution, it is quite likely that recidivism rates would be much higher.

VI. Conclusion

While no one system has all the answers, there are certainly things to be learned by

studying our international counterparts. It is clear that the American people believe in

rehabilitating youthful offenders. In spite of this belief, however, is the punitive nature of our

current juvenile justice system. As our juvenile and adult prisons become fuller and fuller, the

need for change will become all the more apparent. While a complete adaptation of the Swedish

system is utterly incompatible with the American sentencing philosophy, there are certainly

lessons to be learned. Sweden’s holistic approach to treatment and punishment is one which has

proven results in maintaining a low recidivism rate. Some of America’s own systems—despite

being criminally underfunded and underused—have proven results as well, as made evident by

the relative success of alternative program usage. Moreover, Sweden’s reluctancy toward

imprisonment is a mindset that America would be wise to copy.

As members of the legal community, there is a duty upon us all to learn from what works

elsewhere in the world, and advocate for change back home. It is this duty which serves as the

purpose of this analysis. Sweden’s juvenile justice system is not the solution to America’s

overincarceration of juveniles, or the high recidivism rates among these juveniles upon release.

However, I do believe that it is part of the solution.

VII. References
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xxxi
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