In a new report and interactive website, the Inter-American Commission on Human Rights (IACHR) has detailed flaws in the United States’ prosecution and incarceration of children, urging reforms to ensure that minors are not tried or sentenced as adults. IACHR, The Situation of Children in the Adult Criminal Justice System in the United States (2018). The report, released in September 2018, examines the legal framework that allows children to be tried in the adult criminal system in light of the State’s international legal obligations, the current status of children within the criminal system, and the conditions children face during their incarceration in adult facilities. See id. According to the IACHR, as of 2016, approximately 200,000 children were tried each year in U.S. adult criminal courts, and were held in adult penitentiaries in violation of their right to special protection and to be tried in a specialized juvenile system. [IACHR Press Release] While the U.S. has taken steps to reduce the number of children coming into contact with the adult criminal justice system, individual American states maintain laws and practices that allow children to be incarcerated in adult facilities. [IACHR Press Release] The report highlights the State’s failure to protect the rights of children in this respect, and recommends specific reforms. [IACHR Press Release]
Children & U.S. Criminal Justice System
U.S. Legal Framework Leaves Children Unprotected
The Commission highlighted the primary ways in which criminal statutes continue to funnel children into the adult system. These include limits to the jurisdiction of juvenile courts, in particular laws that exclude children that are 17 or 16 years old from their jurisdiction, automatically placing these children in the adult criminal system; transfer laws, which allow a minor to be prosecuted as as an adult based on specific exceptions, such as the nature of the crime, or at the discretion of a judge or prosecutor ; and hybrid sentencing laws, which allow minors to be sanctioned as adults in the event that they violate conditions imposed in the juvenile system. See The Situation of Children in the Adult Criminal Justice System in the United States at paras. 58, 59, 66,113. The Commission emphasized that treating children as adults in the U.S. is even more disconcerting given that the U.S. justice system “features a highly punitive response to crime.” See id. at para. 53.
Specifically, the IACHR noted, for example, that in 26 states, children between 10 and 14 years old are considered eligible for transfer to the adult criminal justice system and in 21 U.S. states and in the District of Columbia there is no specified minimum age of eligibility for transfer. See id. at para. 67. The IACHR also highlighted that 34 states have “once an adult/always an adult” laws, under which any child with a prior record in the adult system is automatically transferred to adult courts when charged with committing another offense. See id. at para. 124. While it noted that the U.S. Supreme Court has decided cases in recent years that require states to make legislative changes to guarantee that children are tried in a juvenile justice system, the IACHR focused on the fact that many U.S. states have yet to implement the necessary legislation to adequately protect the rights of children. See id. at paras. 31-35.
Due Process Rights of Children
In drafting its report, the Commission found that the rights of children and adolescents charged with crimes in the U.S. are not adequately protected at each stage of the proceedings. See id. at para. 150. Due process concerns include a lack of access to quality and specialized legal counsel, minors’ ability to waive their right to legal representation, long waiting periods prior to the disposition of their cases, the use of plea agreements when children may not be fully aware of the consequences, and a lack of policies requiring or facilitating the involvement of their families. See id. at paras. 150, 172. The Commission reiterated that children are entitled to all of the due process guarantees that adults are entitled to, and referenced its previous report on Juvenile Justice and Human Rights in the Americas to stress that these guarantees should be observed in “special ways…in cases involving children.” See id. at para. 151.
Increased Risk of Harm in Adult Detention Facilities
Based on available data, the report found that nearly 3,000 adolescents are held in the adult prisons and between 6,000 and 7,000 are detained in adult jails. See id. at para. 235. The IACHR observed that children and adolescents suffer severe violations of their rights in these facilities, primarily primarily because these facilities do not take into account the age and maturity of minor detainees and adapt their conditions. See id. at paras. Id. 240, 246. In adult facilities, children are subjected to inappropriate use of force by correctional staff, which creates a general climate of fear and dehumanization, and are routinely held in solitary confinement, depriving them of physical exercise, education, and human contact, as well as access to mental health services. See id. at paras. 274, 276.
Importantly, the report notes that domestic law does not require U.S. states to separate youth from adults in these facilities, which are unequipped to protect them from the heightened risks to their safety. See id. at paras. 243, 281. For example, the data indicates that youth are five times more likely to suffer sexual abuse or rape in an adult facility as compared to those held in juvenile facilities, are more likely to be abused by correctional staff and to witness or be the target of violence committed by other prisoners, and have a 50% higher chance of being attacked with a weapon. See id. at para. 281. Further, the report found that children exposed to these conditions are at a pronounced risk of suicide and self-harm. See id. at para. 295.
Racial and Ethnic Disparate Impact
The report exposes the disproportionate representation of minority ethnic and racial groups, particularly African American and Hispanic youth, in the criminal justice system. See id. at paras. 179-81. In its report, the Commission explained that laws, policies, and practices related to children in the criminal justice system have a discriminatory impact on African American and Hispanic youth, and noted in particular that law enforcement at all levels of government disproportionately targets persons of color, including children in school. See id. at 180-92. Further, the report notes that the rates of transfers to adult correctional facilities are highest among African America, Native American, and Hispanic youth, as compared to Caucasian youth. See id. at para. 331. These groups are not only overrepresented at all stages of the criminal justice system and at adult facilities, but are among those who receive the harshest treatment therein. See id. Data shows that of all minority youth, young African Americans continue to be at the greatest risk. See id. at para. 180.
IACHR Recommendations to U.S. Government
The IACHR issued 11 specific recommendations to the U.S. government. See id. at para. 382. Among other improvements, the Commission recommends the U.S. implement legislation guaranteeing access to all persons 18 or younger to the juvenile justice system, end the practice of detaining children with adults, ensure specialized procedures to protect the due process needs of children, and provide monitoring and protections in the interim for those children kept in adult facilities. See id.
More generally, the Commission highlighted the principle of the best interests of the child as an international standard that the U.S. must abide by; urged the U.S. to ensure the objectives of rehabilitation and societal protection are key features of all justice proceedings and detentions of children; called on the U.S. to implement a comprehensive system—uniform across the local, state, and federal levels—to ensure the protection of children’s rights within the criminal justice system; and emphasized the need for data collection to ensure the effective monitoring, evaluation, and protection of children’s rights in this context. See id. at paras. 365-79. Moreover, the Commission identified the need to develop public policies to protect public safety that do not rely on law enforcement agencies and the criminal justice system. See id. at para. 380.
International Standards on Minors’ Criminal Responsibility
International law recognizes people under the age of 18 to be children, as stated in Article 1 of the Convention on the Rights of the Child. However, under international law, the there is no set minimum age of criminal responsibility. For example, the United Nations Committee on the Rights of the Child has recommended that States set this age between 14 and 16 years of age. See Committee on the Rights of the Child, General Comment No. 10: Children’s rights in juvenile justice, UN Doc. CRC/C/GC/10, 25 April 2007, para. 38. The African Commission on Human and Peoples’ Rights recommends that the age of criminal responsibility be set at 15 years of age or older. See ACHPR, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003). The Parliamentary Assembly of the Council of Europe adopted a resolution in 2014 that set the age of criminal responsibility at 14 years of age. See ECtHR, Gülcü v. Turkey, no. 17526/10, ECHR 2016, Judgement of 19 January 2016, para. 63. The Inter-American Commission, for its part, has urged Member States to move towards 18 years of age as the age that children may be held responsible under a juvenile justice system. See IACHR, Juvenile Justice and Human Rights in the Americas (2011), para. 59.
In December 2014, the UN General Assembly called for a UN Global Study on Children Deprived of Liberty and an Independent Expert, Manfred Nowak, was appointed to lead this study. The Independent Expert is scheduled to submit a final report on the Study during the General Assembly’s 74th session in September 2019. See OHCHR, Children Deprived of Liberty – The United Nations Global Study. This study will perhaps help harmonize the age of criminal responsibility across regional and universal human rights bodies.
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