Frontline (PBS) just did a fascinating and heartbreaking documentary on mentally ill prisoners, following them after their release from prison.  The show can be viewed here.

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.

The New Yorker recently published an article by Atul Gawande, the surgeon and writer, about the phenomenon of solitary confinement in US prisons.  Gawande describes the extraordinarily negative psychological and physical symptoms that occur in individuals who have experienced solitary confinement, and the widespread use in prisons in the United States.  It is a compelling and devastating article.

What Gawande doesn’t talk about is the extent to which the process of solitary confinement, usually called ‘room confinement,’ is used in juvenile detention and residential facilities across the United States.  In the New York City jails, young people are locked up as much as 23 hours a day in ‘room confinement’ or in the ‘bing,’ which is the Rikers Island facility where youth who have commited an infraction are sent.  Though they are supposed to receive their school work in these facilities (which they don’t consistently receive), they have few other rights or opportunities afforded to them.  In these places where boredom already hampers their agency and impacts on their well-being, this experience of confinement — which could last for the entire time they are incarcerated — is soul destroying.

In a recent report released by the Office of Juvenile Justice and Delinquency Programs, researchers found that 62% of juveniles who committed suicide in confinement had experienced room confinement, and half of those who committed suicides had been on room confinement at the time of their death.

It may be important to begin to document some of the uses and experiences of solitary confinement amongst young people, and whether the deleterious effects documented by Gawande may manifest themselves differently amongst young people, and may have longer-lasting consequences.

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.

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.

Illinois has joined “37 other states, the District of Columbia, the Federal Government and and nearly every other nation in the world” in raising its age for exclusive juvenile court jurisdiction from “prior to his or her 17th birthday” to “prior to his or her 18th birthday.” Effective January 1, 2010, any 17 year-old charged with a misdemeanor will be heard in juvenile court. Any 17 year-old charged with a felony but is only convicted of a misdemeanor must be sentenced under the Juvenile Court Act. Also enacted was the creation of a “Juvenile Jurisdiction Task Force” to report to the Illinois legislature by January 1, 2010 whether 17 year olds charged with a felony should also be referred to juvenile rather than criminal court. If approved, those children would be petitioned to juvenile court beginning January 11, 2011. The full text of the bill is available here.

Below is a statement on juvenile justice by the Council of Europe Commissioner, Thomas Hammarberg:

There is a disturbing trend in Europe today to lock up more children at an earlier age. The age of criminal responsibility is already very low in some countries, such as the United Kingdom. Suggestions to lower the age limit to 12 years old have recently been made in France, while a similar law has been adopted in Georgia. In my opinion the time has come to move the argument away from fixing an arbitrary age for criminal responsibility and find a more childfriendly solution to juvenile justice.

A caring society responds promptly, resolutely and fairly to juvenile offences. Juveniles are certainly not helped by a laissez-faire response if they violate the law. It is imperative that young persons are taught to take responsibility for their actions.

However, experience has shown that criminalisation, and in particular imprisonment, tends to undermine efforts to assist juveniles in reintegrating positively into the community. Criminalisation and periods spent in juvenile detention centres may have the reverse effect of turning these juveniles into adult criminals.

Young offenders are children first and foremost and should be protected by all the agreed human rights standards for children. This is one of the messages of the United Nations Convention of the Rights of the Child (“CRC”) which calls for a separate system of justice for children. Under the CRC, which has been ratified by all European countries, children are defined as those who are under 18 years old.

This point has been stressed by the European Network of Ombudspersons for Children (ENOC) in a position statement issued in 2003. These experts urged States “to review their juvenile justice systems against the requirements of the CRC and European human rights instruments”.

We need to separate the concepts of “responsibility” and “criminalisation”. It is essential to establish responsibility for conduct which contravenes the law. Where responsibility is disputed, there has to be a formal process to determine responsibility in a manner which respects the age and the capacity of the child. However, this does not have to be a criminal process nor involve the criminalization of children.

Once the facts of an offence are established, there would need to be a multi-disciplinary assessment of what is required to ensure awareness of the offence by the child. Such an assessment would also determine how best to respond to the needs of the victim and prevent the child from re-offending. Such measures would, where necessary, be compulsory. The proceedings would not identify the child publicly and would not be formally linked to the adult criminal justice system.

Imprisonment should generally be avoided. Any arrest or detention of a child should only be used as a measure of last resort and for the “shortest appropriate period of time”. The only justification for detaining children should be that they pose a continuing and serious threat to public safety. This requires frequent periodic review of the necessity of detention in each case. The conditions of any detention must be humane and focused on rehabilitation. Schooling should be provided as set out in the 2008 European Rules for Juvenile Offenders.

In many of my assessment reports, I underline the importance of keeping juveniles separate from adult offenders. A recent judgment of the European Court of Human Rights against Turkey highlights the possible dire consequences of not respecting that important principle.

Guidelines on child-friendly justice are currently being discussed within the Council of Europe. The debate on the reform of the juvenile justice system should include the desirability of avoiding criminalisation and putting the best interests of the child at the forefront of the discussion.

In promoting such policies and procedures which respect the human rights of young offenders, the rights and concerns of victims are not neglected. Victims must receive appropriate reparation and support from the State. But victims’ interests – and those of the wider society – are not served by a system which fails to rehabilitate offenders.

During my visits to European countries I have met a number of juvenile inmates in prisons and detention centres. Many of them have suffered neglect and violent abuse within their own families and have received little support from society at large. Understanding the origins of violence and serious offending in children does not mean condoning or sympathising with it.

An effective and humane policy would put strong emphasis on prevention. Social workers are more important than prison guards in this context. Certainly, broader reforms for genuine social justice have to be part of a strategy to tackle the problem of youth offending.

Unfortunately, this has not been the focus of the public debate in several countries. Instead, people’s justified concerns about juvenile behaviour have been exploited for populist political purposes: children and young persons have been demonised and described as major threats to society.

The CRC encourages a minimum age to be set for criminal responsibility. Below such an age, it is presumed that a child does not have the capacity to infringe the penal law. Children in Scotland can be held criminally responsible at the age of eight years old. In England, Wales and Northern Ireland the minimum age is 10. In many of the Nordic countries the age for criminal responsibility is set at 15 and in Belgium it is 18 years old. The Council of Europe’s European Committee of Social Rights (which monitors State compliance with the European Social Charter), the UN’s Committee on the Rights of the Child and other UN Treaty Bodies have all recommended substantial increases in a number of member states.

I would like to move the debate on from fixing an arbitrary age for criminal responsibility. Governments should now look for a holistic solution to juvenile offending which does not criminalise children for their conduct.

The United Nations Guidelines for the Prevention of Juvenile Delinquency, while adopted 19 years ago, still provide the right benchmark. “Labelling a young person as ‘deviant’ or ‘delinquent’ or ‘pre-delinquent’ often contributes to the development of a consistent pattern of undesirable behaviour by young people…”.

Yes, it is in all our interests to stop making children criminals. We should therefore treat them as children while they are still children and save the criminal justice system for adults.

Thomas Hammarberg

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.

I just saw a wonderful film about young women in New York City who have been sexually exploited. It features the work of a fantastic organization, GEMS (Girls Education and Mentoring Services) that offers alternative to incarceration programs, counseling, and housing for young women involved in the sex trade. The move is a powerful portrayal of the violence that these young women experience, and I think powerfully conveys the coincidence of poverty, structural inequality, and violence. It is appearing on Showtime all of this month.
To read more about the film, go to the GEMS website, and consider making a donation to their organization, as your money will go far.

I just read an important report by New York City’s Youth Justice Board, which is a group of young people who are charged with researching and assessing key issues of importance to young people in contact with the legal system.  This group of young people assessed the permanency planning process in New York City’s Family Court, and made some key recommendations for improving the system for the young people whose lives are being planned.  Their recommendations are concrete and useful, but more importantly, they reflect a real deficit in the system, which is the role of young people in the process.  These young people rightly point out that they are rarely present — physically, emotionally, or intellectually –in the planning process that actually impacts their lives in such a critical way.  What is striking to me about this report is that these young people point out the kind of chasm that exists between what the system feels is important for young people and what young people think, and the complete lack of input on the part of young people, whose very lives are being determined by this system!  You can access the report on the Youth Justice board’s website.