Särbehandling genom tiderna - En rättshistorisk uppsats om särbehandling av unga lagöverträdare vid straffmätning och påföljdsval

Sammanfattning: Young offenders between the ages of 15 and 21 are treated differently compared to adults in the Swedish penal system. They get their sanction reduced and can be subject to other kinds of sanctions. This essay examines how the penal system for young offenders has developed since 1864: both by describing the changes of the positive law and by analysing the influence from different penal theories. This historical background enables an understanding of the recent proposal to make the penal system for offenders between the ages of 18 and 21 more similar to the one for adult offenders. During the first part of the 20th century several different sanctions for young offenders under the age of 21 was imposed. By the time the Swedish penal code was introduced there were already some limitations on sentencing offenders under the age of 18 to prison. This limitation then came to include offenders between the ages of 18 and 21 as well, although in a less extensive way. The development has since then revolved around making the sanctions for young offenders more proportionate to the crime. The sanction reduction has gone from only including offenders under the age of 18 to become more extensive and include everyone under the age of 21. Particularly the Marburg or sociological school, the rehabilitation idea and the classical theory have influenced the penal system for young offenders. Some ideas from developmental and life-course theories can also be found. During the earlier parts of the 20th century the sociological school had a growing impact. The influence from the rehabilitation idea and the sociological school grew stronger from the 1930s and peaked when the Swedish penal code came into force in 1965. Since then most changes have been motivated by classical principles. These principles were also used to argue for the recent suggestion to treat offenders between the ages of 18 and 21 less different compared to adult offenders. The latest proposal can be explained by how different layers of the law influence each other. One explanation as to why it might be easier to change the penal system for offenders between the ages of 18 and 21 has to do with them being treated differently for a shorter time than offenders between the ages of 15 and 18. The principle of treating this group different has sedimented less to the deeper levels of the law than the same principle for offenders between 15 and 18 years. However the criticism towards the proposal show how the legal culture can limit the positive law which has in turn led to a less extensive proposal.