Life sentences for juveniles

The US Supreme Court has just agreed to take up the issue as to whether juveniles can be sentenced to life without parole (LWOP).  The issue relates to a 2004 case, Roper v. Simmons, in which the Court decided to end the use of the death penalty for juveniles.  The victory in Roper was signficant, of course, and there has been a subsequent national movement to address the cruelty of sentencing teenagers to prisons for the rest of their lives.  Those who oppose the use of LWOP for juveniles cite international standards for justice, including the UN Convention on the Rights of the Child, in making their arguments against these severe punishments for children.

I do not object to this movement, but as someone who works daily with young people who are in trouble with the law, and encounter sentences as short as probation, but which often end up imprinting them for life, I hope that the national discussion can begin to focus on the onerousness of our criminal sentences in general, for adults and for juveniles.  Not only are the sentences for murder in this country particularly harsh–and Professor Jonathan Simon of Berkeley has been doing work recently to point this out–including those for young people who aren’t necessarily serving life without parole, but who in New York, where I work, have indefinite sentences ending in life.  What I’m discovered now is that the sentences for even the most minor crimes–punching someone in the nose, for example–can enmesh a young person in the juvenile justice system for years.  They emerge from childhood having experienced the harshest of our state institutions–psychiatric hospitals, group homes, foster homes, residential treatment centers, prisons–with few resources and little human capital to survive in the world on their own.

Kids jailed for Cash on 20/20

20/20 aired a special on Friday night about the Judges who jailed young people in exchange for money from a private detention facility.  The show can be viewed here.  This show, and an article that appeared in the New York Times this week, highlight young people’s voices and experiences about this controversy.  They offer a starkly different perspective than we are used to in the public forum about young people charged with crimes, one which suggests that there should limits set on the way that we punish young people who violate norms.

Take Action in New York State

The Governor of New York is currently considering his budget, and there is an opportunity to re-direct funds from youth prisons into community-based programs.  The Citizens Committee for Children has created a site where you can contact key lawmakers in New York to ask for these changes.  That site can be found here.

Resource

The Campaign for Youth Justice, an advocacy organization based in Washington, DC, has published an excellent report called ‘The Consequences Aren’t Minor: The Impact of Trying Youth as Adults and Strategies for Reform,” which includes an excellent analysis of the harms caused to young people tried in the adult court system, as well as some in-depth profiles of particular state laws.

See the report here.

Malign neglect on Rikers Island

A small story was published in the New York Daily News last week which I’m sure went unnoticed by many.  It reads:

Teen found dead in Rikers cell

By Simone Weichselbaum and Alison Gendar
DAILY NEWS STAFF WRITERS

Monday, October 20th 2008, 1:25 AM

The NYPD is investigating the murder of an 18-year-old inmate found dead in his Rikers Island jail cell, officials said Sunday. Christopher Robinson was discovered faceup in his cell Saturday morning, his body covered by welts and bruises, police sources said.

City Correction Department officials worked to revive him, but he was declared dead at 11:58 a.m., sources said.

Detectives were poring over Rikers’ security tapes for hints at what might have happened, a police source said.

“He was given a beatdown, a fatal one,” another police source said.

The city medical examiner will determine a cause of death, but detectives from the 41st Precinct in the Bronx are investigating Robinson’s death as a homicide, police sources said.

I had actually heard word about this story through someone at my old office, who represented a young man who was in the same facility where this teenager died.  According to the young man, Christopher Robinson was first badly beaten, then left by himself in a cell by staff.  Whatever the facts are, what seems clear to me is that this is a case of neglect, and one which sadly happens every day at Riker’s Island.  The city can easily blame the ‘gang culture’ at the youth facility, the dangerousness of other young men, their inherent violence, or any other cause, but the simple fact is that when a young person enters that facility, it should be the responsibility of the staff at that facility to keep him–and all of the other young men held there–safe.

According to the Daily News, an internal investigation is taking place, and two officers have been placed on modified duty as a result of the incident.  Additionally, three teenagers are being sought in the young men’s murder.  However, I wish that there could be a more systematic challenge made to the system’s perspective on care in general.  It is outrageous–and criminal–that such a heinous act takes place behind the prison doors in this city, and in particular with the consequences focused almost entirely on the boys who participated in the beating, rather than the system more broadly.

UN report on violence against children in institutions

The UN has produced an excellent report on violence against children in institutions (both punitive and ‘care’ institutions).  It is a wide-ranging assessment of the issues involved in institutionalizing children globally, and provides some cogent and important recommendations.

New Legislation in New York

The New York State legislature has just passed a ‘bill of rights’ for incarcerated youth which, at least in spirit, offers a real opportunity to hear youth input on the conditions of confinement. The text of the bill is below

A09070 Memo:

BILL NUMBER:A9070B TITLE OF BILL: An act to amend the social services law, in relation to residential programs for children PURPOSE OR GENERAL IDEA OF BILL: The purpose of this bill is to outline specific rights afforded to youth in OCFS residential facilities; and establish a youth advisory board within these facilities. SUMMARY OF SPECIFIC PROVISIONS: *outline a bill of rights for youth in secure and non-secure residential care *require the publication of such rights and distribution to residents upon orientation at the facilities *require the creation of “youth advisory board(s)” within OCFS residen- tial facilities EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER: S462-b of the Social Service Law is renumbered section 462-d. Two new sections are added 462-b and 462-c. JUSTIFICATION: In December 2006, staff members of the New York State Assembly conducted site visits to three Office of Children and Families( OCFS) residential facilities which included: The Tryon boys, Tryon girls residential facility and the Lansing residential facility. Staff met with youth and members of the staff at each of these facilities to hear their concerns about living conditions, educational opportunities, and the residents overall interaction with Youth Developmental Aides (YDA). After listening to issues raised by residents, The staff recommended that legislation be drafted to require the Office of Children and Family Services to inform residents upon orientation, their rights under exist- ing law. In addition, one of the concerns that youth raised during the meetings with Assembly staff was the inability to offer input to manage- ment staff at OCFS facilities as it relates to their care. This bill will require that OCFS establish a youth advisory board that will give youth in care an opportunity to convey concerns and suggestions to to management staff within OCFS facilities. PRIOR LEGISLATIVE HISTORY: New bill. FISCAL IMPLICATION FOR STATE AND LOCAL GOVERNMENTS: None. EFFECTIVE DATE: Immediately.

Immediately.

Resource

The Sentencing Project has put together a good report on the state of criminal justice sentencing reform in 2007.  This report has a small section on changes in juvenile justice policies across the states.

The report can be found here:  Sentencing Project report

Resource

The following is a report, written by various human rights and juvenile justice advocacy groups in the USA, addressing the many ways that the juvenile justice system is racially discriminatory.  The report is a response to the omission, by the US Department of State, of any discussion of this impact in their report the UN on the Convention for the Elimination of All Forms of Racial Discrimination.

CERD final report

Important letter from human rights groups about Omar Khadr

February 1, 2008

Robert M. Gates
Secretary of Defense
Department of Defense
1000 Defense Pentagon
Washington, DC 20301

Related MaterialThe Omar Khadr Case: A Teenager Imprisoned at Guantanamo Background Briefing, June 1, 2007 More of Human Rights Watch’s work on Military Commissions Thematic Page US: Guantanamo Judge Allows Military Commissions to Proceed in Khadr Case Press Release, November 8, 2007 US: Stop Unfair Trial of Guantanamo Youth Press Release, February 1, 2008 Free Email Newsletter

Via Facsimile

Dear Secretary Gates:

We write regarding Omar Khadr, a Canadian citizen whom the United States government has detained at Guantanamo Bay, Cuba, for more than five years, since he was 15 years old. On February 4, 2008, a military commission at Guantanamo will consider whether the United States may proceed in prosecuting Khadr for war crimes and other offenses before the commission. If the proceedings go forward, Khadr will become the first person in recent years to be tried by any western nation for alleged war crimes committed as a child.

Throughout Khadr’s lengthy detention, the United States has flouted international juvenile justice standards that provide for children to be treated consistent with their unique vulnerability, capacity for rehabilitation, and lower degree of culpability. The United States should not compound these violations by prosecuting Khadr before a military tribunal that is not equipped to meet juvenile justice standards as well as other fair trial requirements, and in a manner inconsistent with its legal obligations to assist in rehabilitating former child soldiers within its jurisdiction.

Accordingly, if the United States is not prepared to prosecute Khadr in a judicial system that incorporates fundamental standards of juvenile justice and other fair trial rights, it should promptly release Khadr and repatriate him to Canada for appropriate rehabilitation.

Background

According to allegations made by the United States, Omar Khadr’s father introduced him to al-Qaeda leaders when Khadr was just 10 years old, then sent him to receive military training from al-Qaeda members at age 15 and out to the battlefield shortly afterwards.

On July 27, 2002, Khadr was captured by US forces after a firefight in Afghanistan that resulted in the death of US Army Sergeant First Class Christopher Speer, as well as injuries to other soldiers. Khadr, who was seriously wounded, was initially detained at Bagram Air Base in Afghanistan and transferred to Guantanamo Bay in November 2002, where he remains today.

Khadr was not provided an attorney until he had been detained for over two years. In the third year of his detention, Khadr was charged with crimes under the initial military commissions authorized by President George W. Bush. Those charges were dismissed when the Supreme Court ruled the commissions unlawful in the 2006 case of Hamdan v. Rumsfeld. In 2007 the United States charged him under the commissions authorized by the Military Commissions Act with murder in violation of the laws of war, attempted murder in violation of the laws of war, conspiracy, providing material support for terrorism, and spying.

Khadr has reported to his lawyers that he has been subjected to abusive interrogations, as well as prolonged periods in solitary confinement while incarcerated at Guantanamo.

Failure to Comply with International Standards for Juvenile Detention

First detained at age 15, Khadr now has been held by the United States at Guantanamo Bay for more than a quarter of his life. The US government’s failure to properly treat Khadr as a child in detention violated US legal obligations under the laws of war, the International Covenant on Civil and Political Rights, and international juvenile justice standards. International standards allow for detention of juveniles only as a last resort and require prompt determination of juvenile cases; however, Khadr was detained for more than two years before being provided access to an attorney, and for more than three years before being charged before the first military commission.

Further, despite international legal requirements that juveniles in custody be treated in accordance with their age, and that juveniles and adults be segregated from each other, Khadr has been incarcerated with adult detainees, even when other child detainees his age were being housed together in Guantanamo’s Camp Iguana.

In Guantanamo, Khadr has been held in prolonged detention in solitary confinement. He has told his lawyers that he was also subjected to abusive interrogation. He said his interrogators shackled him in painful positions, threatened him with rape, and used him as a “human mop” after he urinated on the floor during one interrogation session. Such treatment of a detainee, particularly one who was a child, violates Article 7 of the International Covenant on Civil and Political Rights, which prohibits torture and other cruel, inhuman, or degrading treatment or punishment, and analogous provisions of other treaties to which the United States is a party. These abuses during detention, coupled with the lack of fundamental safeguards required for the treatment of juveniles in custody, raise serious concerns about the voluntariness of any statements that Khadr may have made and which may be used against him at his trial.

Failure to Comply with the Optional Protocol on Children in Armed Conflict

International law recognizes the special situation of children who have been recruited or used in armed conflict. The Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflict (“Optional Protocol”), which the United States ratified in 2002, requires that all states parties provide for the rehabilitation of former child soldiers within their jurisdiction, including “all appropriate assistance for their physical and psychological recovery and their social reintegration.”

In its 2007 Initial Report to the United Nations pursuant to the Optional Protocol, the United States declared that it is “committed to continue to develop rehabilitation approaches that are effective in addressing” the problem of child soldiers and that it “espouses the principle that family reunification and community reintegration are both goals and processes of recovery for former child combatants.”

During the time that Khadr was detained at Guantanamo without charges and otherwise in violation of basic juvenile justice protections, the United States funded millions of dollars to programs dedicated to the rehabilitation of child soldiers, including $4.5 million to a major initiative launched by UNICEF in 2003 to rehabilitate and reintegrate former child soldiers in Afghanistan.

Yet in its handling of Khadr, an alleged child combatant in its custody, the United States has ignored its professed commitments and its legal obligations under the Optional Protocol. It has failed to provide him with access to education, vocational training, counseling, a family or community environment, or other assistance that is essential to successful rehabilitation and social reintegration.

Failure to Incorporate Juvenile Justice Standards in Military Commission Proceedings

The military commissions created by the United States to try unlawful enemy combatants for war crimes and related offenses do not meet international standards for fair trials. Of particular concern, the commissions allow the use of evidence obtained through abusive interrogations so long as a judge finds the evidence “reliable.” Moreover, the Military Commissions Act (MCA) permits prosecutors to shield interrogation methods from the defendant and his lawyer, making it virtually impossible for a defendant to demonstrate that testimony was obtained through such abusive techniques. This lack of adequate due process safeguards are particularly harmful to child offenders, given the increased risk that they will be unduly influenced by coercive methods.

The MCA lacks any explicit juvenile justice safeguards. It has no provisions requiring that judges have expertise in juvenile justice to preside over the trials of children. This is particularly important given the likelihood that the judge will be asked to decide the reliability of statements Khadr gave while he was still just a child. Similarly, there is no indication that the military commissions will appropriately consider Khadr’s age at the time of the alleged offenses in making its sentencing determination. The United States’ failure to comply with international juvenile justice standards or provide any rehabilitation assistance to Khadr throughout his detention provides little assurance that his special circumstances will be taken into account in the future.

In short, because the military commissions fail to provide key due process protections and are not equipped to take into account Khadr’s juvenile status, they are not an appropriate forum for proceedings against Khadr.

Ensure Khadr’s Basic Rights Are Protected

Unless the US government will prosecute Khadr in accordance with international juvenile justice and fair trial standards, the United States should promptly release Khadr and repatriate him to Canada for rehabilitation. A fair and appropriate prosecution would require that Khadr be charged within a judicial system suited to address juvenile justice standards and therefore able to assess Khadr’s culpability relative to his need for rehabilitation. At all times the United States must treat child soldiers in its custody in accordance with the Optional Protocol. None of these requirements can be met by the current US proceedings against Khadr before the military commissions at Guantanamo Bay.

Sincerely,
Human Rights Watch
Human Rights First
Coalition to Stop the Use of Child Soldiers
Amnesty International