Can Increasing Penalties and Punishing Families Be a Solution to Juvenile Delinquency?

Introduction

In recent years in our country, many incidents reflecting children's inclination toward violent crimes have been covered by the public media, requiring certain legislative amendments.[1] These changes have generally manifested as the ability to increase the penalties for juvenile offenders and the creation of certain offenses targeting families. It is necessary to evaluate where these revisions stand in light of the modern criminal law approach. I would like to state right away that something being modern does not mean it is the most correct method. Therefore, in this article, I do not use the concepts of classic-modern in the sense of 'bad-good'.

A) Why Are We Trying to Fight Crime by Increasing Penalties or Creating New Offenses?

Applying this method in the fight against crime stems from a simple logic and has been practiced for thousands of years. The logic is simple: 'If I give a light penalty to the offender, others will not fear the punishment. Therefore, I must give a heavy penalty – If I criminalize and punish the behaviors I do not want to happen, these behaviors will not occur because people will fear the punishment.'

Prior to the 18th-century Enlightenment reforms, deterrence was attempted by imposing very severe penalties and often executing these punishments in public squares as an example. During this period, the penalty for many crimes was death, and a significant portion of them involved death under torture. However, deterrence was not achieved through these brutal methods.

With the Enlightenment philosophy, a shift occurred from brutal punishments to humanist penal-execution methods and the prison system, believing that proportionate imprisonment itself would provide deterrence. The 'philosophy of enlightenment in criminal law', which began with Hobbes, aimed to achieve deterrence not through an archaic concept of setting an example, but through the pleasure-pain balance made in the free choice between the paths of crime and virtue by a human being endowed with reason and free will. What many thinkers like Hobbes, Bentham, Beccaria, and Feuerbach asserted was that the offender is a reasonable individual who would weigh the harm arising from the prison sentences specified in the laws against the pleasure to be derived from the crime, and thus refrain from committing crimes. The reasonable potential offender, capable of using reason and possessing free will, would see the law and its punishment and consequently choose the path of virtue over crime. However, crime could undoubtedly not be prevented through this method either.[2]

The fundamental problem in all these theories is the illusion that penalties provide deterrence—that is, general prevention. In reality, apart from professional criminals, most offenders do not weigh everything right and wrong in a metaphysical realm and choose the path of crime accordingly. The pleasure-pain balance established through reason or the deterrent example arising from a horrific penalty may indeed keep certain self-controlled individuals away from crime. However, such an effect does not occur in crimes committed under the influence of momentary impulses or in individuals who lack sufficient self-control. Therefore, serious problems exist at the foundation of the threat of punishment-deterrence relationship.[3]

B) Modern Criminal Law's Method of Fighting Crime

The modern criminal law approach rejects the metaphysical understanding regarding the threat of punishment-deterrence in preventing crimes. It has been concluded that dangerous offenders cannot be deterred from crime by the threat of punishment alone, as they do not possess enough self-control to overcome the sociological, biological, and environmental factors driving them toward crime. Therefore, in addition to penalties arising from culpability responsibility, indefinite security measures arising from social responsibility based on dangerousness are applied to them. Today, German, Belgian, and French legislation has adopted in many respects the doctrine of social defense (la défense sociale), based on dual-track indefinite sanctions, which transformed criminal law at its core about a century ago thanks to Prins and von Liszt.[4]

Classical criminal law is an 'act-based criminal law' system. If free will exists and is not diminished, the act and its result determine the penalty. Therefore, if the act and result are similar, the applied penalty will be similar for everyone. The offender serves a fixed-term prison sentence and, even if not rehabilitated, is released at the end of the term on the assumption that they have 'paid their retribution or been rehabilitated'. Generally, because they are considered 'cleansed' after serving their sentence, no additional measure can be applied to them. The problem is that while one person committing the same crime might be rehabilitated without ever being imprisoned, another might not be rehabilitated even if imprisoned for very long periods. The problem of recidivism arises partly from this exact point. Therefore, the solution lies in removing lower limits as much as possible, expanding alternative sanctions to imprisonment so as not to imprison non-dangerous individuals, and keeping dangerous individuals under supervision through indefinite security measures following execution. French criminal law legislation has largely implemented this reform.[5]

C) Application Regarding Juvenile Delinquency and the Situation in Turkish Law

1) Children Without Criminal Responsibility

A criminal law system containing an indefinite sanctions regime focused entirely on rehabilitation was first applied to juvenile offenders in many countries. In our country as well, the systematic approach in the Child Protection Law toward children who have 'no criminal responsibility' but have committed a crime is in this direction. Security measures will continue as indefinite measures as long as the child's dangerousness persists, until they reach 18 years of age. So, who are these children without criminal responsibility?

With an understanding of legal technique inherited from Rocco, the architect of the 1930 Italian Penal Code, the Turkish Penal Code accepts as a normative presumption that children who have not completed 12 years of age lack free will and therefore criminal responsibility. It is precisely for such children—and children under 12–15 years of age who are decided to lack criminal responsibility as a result of individual evaluations—that the Child Protection Law applies indefinite social defense measures 'until their dangerousness passes' when they commit a crime, attempting to rehabilitate them. At this point, our law includes treatment, housing support, social services support, internet regulations, the construction of a good school environment, and other elements aimed at eliminating the sociological and biological factors causing the crime to emerge.[6]

2) Children With Criminal Responsibility

For children who have completed 12 years of age and are accepted to have chosen the path of crime with their free will, the penalties in the TPC (Turkish Penal Code) are applied with reductions. Regarding security measures, the TPC is applied. The TPC, however, except for certain exceptions such as recidivists and organized crime groups, does not adopt a post-penalty security measure regime for those with criminal responsibility. In my view, this is a deficiency.

According to our law, when a child who is one day away from turning 18 and a 'youth' who turned 18 that very day commit a crime together as joint perpetrators, one is punished more severely than the other. This is because our criminal law employs legal technique here as well, accepting as a normative presumption that every child's free will must be slightly less than that of someone over 18. However, scientifically speaking, this may not be the case.

In my opinion, this system applied in the TPC toward children accepted to possess free will at the time of committing the offense is not correct when compared to the Child Protection Law's indefinite sanction regime. So much so that there are already milder execution regulations for children, and with sentence reductions, execution becomes even shorter. However, at least until the child turns 18, it should have been possible to apply the Child Protection Law's indefinite security measures to these children with criminal responsibility as well.

3) Recent Revisions in Turkish Criminal Law Regarding Juvenile Delinquency

I noted that the 'automatically applied sentence reduction' in the TPC for juvenile offenders accepted to possess free will was a matter of legal technique. However, at this point, with the recent revision, Article 31 of the TPC was amended, allowing for this reduction not to be applied in crimes of intentional murder and aggravated injury due to its consequences. This provision was introduced only for children over 15 years of age, while the possibility of penalty increases was introduced for those aged 12–15. In a system where penalties are reduced based on free will due to the culpability principle, these revisions somewhat shatter the thesis that juvenile offenders automatically commit crimes with 'a lesser degree of free will' and open the door to determinism. The problem here lies in continuing to look at the matter through the classical understanding—that is, the 'punishing-increasing penalties' approach.

Furthermore, the reduction rates in the law have also been decreased, which is an indicator of this approach. Instead, security measures could have been applied. Thus, there would be no need for a rehabilitated child offender to wait out the required time in prison under an aggravated sentence, and indefinite supervision for those who are not rehabilitated could have been established.

For instance, with the recent revisions, 'guidance measures' were introduced under Article 5/A of the Child Protection Law, and Article 23 was amended so that these could also be applied to children for whom a Suspension of the Announcement of the Verdict (HAGB) is granted. Although these are not indefinite like protective measures, they fall under the class of security measures aimed at rehabilitation and ending dangerousness. In my opinion, such practices are positive and far more successful in terms of preventive measures, rehabilitation of the offender, and defending society against criminals by preventing dangerousness, rather than relying on punishing and increasing penalties.

4) On Penalties Imposed on Families

With the recent legislative amendment, Article 13/A was added to Law No. 6136, stating: "Any person who, contrary to the duty of care and attention, causes a firearm to be obtained by a child through improper storage shall be punished with imprisonment from one year to three years, provided the act does not constitute another offense requiring a heavier penalty."

In fact, within the context of negligent liability for the intentional act of a third party, it is already possible to hold the family responsible at this point.[7] For this reason, to avoid violating the non bis in idem principle, the regulation includes the clause "provided the act does not constitute another offense requiring a heavier penalty." The lawmaker did not want to leave things to chance and, by establishing an abstract endangerment offense, regulated that parents showing carelessness will be punished whenever a child obtains a firearm, just in case. The purpose of this offense, which manifests when the child does not commit a separate crime with that weapon, is deterrence. In my opinion, a more effective fight against unregistered weapons and mandatory training processes for families and children would be a more effective solution in preventing crimes.

The second revision made in this field is the amendment to Article 233 of the TPC. The relevant article regulates the offense of breaching obligations arising from family law. Under this offense, punishment was imposed on 'parents who fail to fulfill their obligations of care, education, or support arising from family law—even if custody rights have been removed—and severely endanger the morals, safety, and health of their children as a result of material and moral lack of care due to habitual drunkenness, use of drugs or stimulants, or humiliating attitudes and behaviors.' With the new regulation, if the child commits the crime of intentional murder or aggravated injury due to its consequences as a result of these acts, the penalty for the parents will be increased up to two-fold.

In the older provisions of the article, the offender was held responsible for their own intentional omission. According to the latest addition to the article, however, parents are punished because 'the child commits intentional murder or aggravated injury due to its consequences as a result of the acts defined in the first and third paragraphs.' Whether a human mind can decide whether the child committed the relevant crimes due to this factor is, in my opinion, questionable. Furthermore, I would like to remind you that this norm is debatable within the context of the culpability principle and subjective responsibility. Therefore, instead of increasing penalties, if mandatory training and supervision processes were executed by applying security measures to those who fail to fulfill their obligations under family law, I believe far more successful results would be achieved.

D) Solution: As Few Penalties as Possible – As Many Measures as Possible

In the past, despite witnessing convicts executed through torture, people continued to commit crimes knowing full well that the same fate could befall them. In other words, no matter how much you increase penalties, I do not believe it will be a solution. The history of criminal law is proof of this.

What needs to be done is to adopt the social defense approach in criminal law: first, trying to keep children prone to crime away from the criminal path through administrative measures, and removing them from environments where they might commit crimes and from criminal tools they could access through such measures. For children who have already committed crimes, I believe priority should be given not to high penalties to keep them from recidivism, but to indefinite security measures that will take effect after a penalty lightened as much as possible, or that will be ruled directly.

Atty. Alp Öztekin

[1] https://cdn.tbmm.gov.tr/KKBSPublicFile/D28/Y4/KanunMetni/37b9adf5-a098-49ab-9ba2-62d9c6c12925.htm

[2] Alp Öztekin, Toplumsal Savunma Felsefesi (Philosophy of Social Defense), Seçkin, Ankara, 2025, pp. 43-44-58-59-330-331 et seq.

[3] Öztekin, pp. 335-336

[4] Öztekin, pp. 120-121-122 et seq.

[5] Öztekin, pp. 211-243-244 et seq.

[6] For children aged 15–18 who lack culpability, the security measures in the TPC are applied. (The regulation regarding deaf and mute individuals differs.)