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The implementation of youth imprisonment and constitutional law in Germany

University of Greifswald, Germany

Dirk van Zyl Smit

University of Nottingham, UK

This article considers the impact that constitutional law can have on penal policy through an analysis of current developments in the law governing youth prisons in Germany. It sketches the emergence of constitutional guidelines for the development of German prison law generally and then pays close attention to a recent decision of the German Federal Constitutional Court on the constitutionality of current provisions on the implementation of youth imprisonment. The implications of the judgment of the Court for future German legislation in this area are outlined. Particular attention is paid to the emphasis that the legislator is expected to place on international minimum standards and to the role research on treatment plays in setting limits to legislative discretion. The conclusion considers the wider implications for penal policy of combining a formal rule that constitutionally guaranteed rights of prisoners can only be restricted by primary legislation, with substantive constitutional requirements for the objectives of penal legislation and for how these objectives should be met. It argues that such a rule is potentially applicable not only in Germany but also in other countries with similar constitutional traditions.

Key Words: juvenile justice • penal policy • youth imprisonment

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