“On 11 December 1995, I was sentenced to 25 years in prison. The judge strongly recommended that I be placed at Crossroad, a private juvenile treatment facility where I could receive counselling. On 18 December 1995, I was taken to the Indiana Women’s Prison Indianapolis.NEXTBy March 1996, I was told by the DOC (Department of Corrections) commissioner that I would not be moved to Crossroad at Fort Wayne, but I would remain at the Women’s Prison. This was a shock to me.
Larry Hayes, an editorial writer for the Journal Gazette in Fort Wayne contacted people on my behalf. In June 1996, Larry met (lawyers) JauNae Hanger and Richard Maples. They reviewed my case and decided to take my case pro-bono [without fee]. I then filed a lawsuit against the DOC.
By September 1996, a judge decided that I would remain at the Women’s Prison. I appealed the decision.
The Appeals Court overturned the decision on 13 May, 1997. They said my rights had been violated by being housed with adult offenders. The decision to move me to Crossroad was made by the Governor and the State Attorney General.
On 9 June 1997, I was finally moved to Crossroad in Fort Wayne, Indiana. Crossroad is the best place for me.”
Letter to Amnesty International from Donna Ratliff, August 1998.
Donna Ratliff was aged 14 when she was imprisoned. Her legal action to be moved to a juvenile facility stated that she had been sexually propositioned and harassed by older inmates and she feared for her safety. In March 1998 the Supreme Court of Indiana decided that neither the law of Indiana nor federal law requires correctional authorities to house children separately from adults, although separation may be required to protect particularly vulnerable individuals.
The Indiana Department of Corrections has indicated that it will not seek to move Donna from Crossroad until she is an adult. However, 92 other children continue to be housed in adult prisons in Indiana, some in the general population, some with other young offenders. Throughout the USA, more than 2000 children are housed in the general population of adult prisons.
1. Background
Until the end of the 19th century, children in the USA who were accused of violating criminal laws were generally dealt with in the same courts as adults, were subject to the same penalties and were commonly confined in the same prisons and jails. The first juvenile court was established in Illinois in 1899 and in the following decades this model was adopted in other states. The system is responsible for dealing with the vast majority of children accused of violating the criminal law.
During the past 20 years, in response to public concern about the extent and nature of crimes committed by young people, US governments have significantly expanded the role of the general criminal justice system with respect to children and generally increased the severity of sanctions that courts may impose on children. One commentator has characterized the changes to the treatment of young offenders as a “War on Juveniles.”
According to the most recent data:
- about 200,000 children a year are prosecuted in general criminal courts;
- at any time, about 7,000 children are held in jails before trial and;
- more than 11,000 children are in prisons and other long-term adult correctional facilities.
The growing tendency in the USA to prosecute and punish children as if they were adults is inconsistent with the approach encouraged by international standards adopted by almost every country in the world, that governments should establish laws, procedures, authorities and institutions specifically for children.
2. Lack of separation from adults
“Judge Zintner, I have an important question to ask you! Would you please move me out of here? Please don’t leave me here with all these adults. I can’t relate to any of them. They pick on me because I am just a kid. They tease me and taunt me. They talk to me sexually. They make moves on me. I’ve had people tell me I’m pretty and that they’ll rape me... I’m even too scared to go eat... It’s too much for anyone my age to handle... Please help me with this.”
Letter from 15-year-old Paul Jensen, imprisoned in South Dakota State Penitentiary, to his sentencing judge, 1997. In September 1998, his mother told Amnesty International that he had not been moved from the prison.
Young people in prison are notoriously a target of sexual and physical assault by adult inmates. This phenomenon is widely acknowledged by governments and correctional authorities throughout the world, including the USA. In recognition of children’s vulnerability, the ICCPR and other international standards expressly state that children who are detained when they are awaiting trial or imprisoned following conviction should be kept apart from adult inmates.
When the US ratified the ICCPR, it reserved the right to treat juveniles as adults “in exceptional circumstances ”. The reservation includes its assertion of a right to imprison children with adults. In its 1994 submission to the Human Rights Committee on its compliance with the ICCPR, the US government defended the reservation by stating that the only exception to segregation occurred when “older” children were prosecuted and imprisoned as adults.
Contrary to the assurances of the US government, Amnesty International has found that in many US states is it common, not exceptional, for children who have been prosecuted in the general criminal justice system to be imprisoned with adults.6 Children as young as 13 have suffered such a fate.
In a 1998 survey of state correctional systems undertaken by Amnesty International, 38 states reported that they house children in the general population in adult facilities. There were more than 2,800 children in the prisons who were not separated from adults7. Most of the states that house children with adults reported that they do not provide special programs for young prisoners.
Within the USA, politicians have justified the imprisonment of children with adults as an appropriate manner to treat children who have committed serious violent crimes. This is not a justification accepted under international standards. Moreover, the practice of imprisoning children with adults is not restricted to violent offenders. In some jurisdictions, a child who has committed even relatively minor, non-violent offences may be imprisoned in the general population. In 1997, at the age of 16, Native American Yazi Plentywounds was convicted of shoplifting two bottles of beer. He was sentenced to two years at the adult state prison in Cottonwood, Idaho, because he had a prior conviction of “grand theft”: breaking a shop window worth $300 in order to steal cases of beer.
Recommendation All states should legislate to keep every detained and imprisoned child completely apart from adult inmates unless separation is considered not to be in the child’s best interest.
The US Congress should legislate to require states to segregate detained and imprisoned children from adult inmates.
3. Imposition of harsh, inflexible sentences
International standards for juvenile justice call on governments to place a high priority upon the best interests of the child in all aspects of justice systems and to seek to avoid imprisoning children.
However, the laws of some US states do not permit courts to actively consider the welfare and circumstances of individual children because they specify that children accused of specific crimes must be prosecuted in the general criminal court, as adults, rather than in a juvenile court, or they impose mandatory minimum sentences for certain offences, or both.
The penalties which courts in a number of states may impose on children include life imprisonment without possibility of release, and in some circumstances the penalty is mandatory. In California, there are currently 14 prisoners who were sentenced to life without parole at ages 16 or 17.
A sentence of life imprisonment without possibility of release does not provide any scope for rehabilitation, which the ICCPR states should be the aim of imprisonment generally, and the aim of criminal justice proceedings in the case of children specifically. The USA accepted an obligation to comply with these provisions when it ratified the treaty. The international community does not accept that children should be subjected to such a penalty: the Convention on the Rights of the Child prohibits it as a sentence for an offence that a person committed when they were younger than 18.
US politicians and commentators have asserted that laws to prosecute children as adults are required to deal effectively with children who commit serious violent crimes or are habitual offenders. However, it is common for these laws to include non-violent offences and some apply to children who do not have a lengthy history of offending. In 15 states, children accused of committing specified non-violent offences such as burglary, offences involving weapons and drug offences must be prosecuted in general criminal courts.
A large number of children who are prosecuted in general criminal courts are not charged with violent offences. In 1995, the most recent year for which data is available, fewer than half the cases that juvenile court judges transferred to be tried in general criminal courts involved violence against people. Members of a committee reviewing juvenile justice in Illinois recommended removing non-violent drug and weapons possession provisions from automatic transfer laws. One of the members, Juvenile Court Judge Hibbler, said that drug possession cases were particularly inappropriate for criminal courts because the juvenile system is able to provide better treatment and rehabilitation programs: “I think as a basic action to correct the behavior of kids, to send them to the adult court is going in exactly the wrong direction.” His recommendation has not been accepted.
Recommendation Federal and state governments should legislate to ensure that children are not mandatorily prosecuted and punished as adults. In particular:
children should not be subjected to harsh, fixed periods of incarceration, particularly life imprisonment without the possibility of release:
courts should be required to consider the well-being and circumstances of individual children when imposing sentences.
4. Failure to specify a minimum age of criminal responsibility
International standards for the protection of the human rights of children require governments to ensure that all elements of their justice systems take account of children’s physical and mental immaturity and need for special care. One of these elements is the determination of when children will be treated as responsible for their conduct under the criminal law, and subject to criminal prosecution and punishment. As reflected in Article 40, 3 (a) of the Convention on the Rights of the Child, there is now strong international support for the principle that there should be a legally established minimum age of criminal responsibility. Such a benchmark is an important safeguard to ensure that children in conflict with the law do not suffer cruel, inhuman or degrading treatment or punishment, but are treated in a manner which protects their well-being and dignity and promotes their reintegration into society.
US laws are inconsistent with the approach of the international community on this issue. Over half of US states have at least one offence for which a child of any age can be prosecuted in the general criminal court. A similar situation prevails with respect to the juvenile justice system. Only 15 states specify a minimum age below which children cannot be charged with being delinquent in a juvenile court. In North Carolina the minimum age is six; in Maryland, Massachusetts and New York it is seven.
Recommendation Federal and state governments should fix a minimum age of criminal responsibility that takes account of children’s emotional, mental and intellectual maturity.
5. Length of time before trial
International standards require the prompt adjudication of charges for both adults and children, particularly where the accused person is held in detention. Studies indicate that it is common for people to be held in jail for between six and nine months between their arrest and their trial in general criminal courts. Cases in the juvenile justice system are usually dealt with more quickly. The adverse impact of extended periods in detention must be considerable, particularly because many jails are not equipped to provide education and other services to children.
Recommendation The federal and state authorities should legislate to ensure that children accused of violating the law are tried as speedily as possible.
6. Lack of access to services
Pueblo, Colorado, January 1998 The District Court heard evidence from correctional officer Patricia Hill about the conditions for youths held at the jail. She was asked, “At this point, is the jail capable of handling the juveniles?” She responded, “Not really.... they are just warehoused.” Ms Patrici
Hill told the court that there was no money to hire a teacher for the children. Children were given recreation time “when somebody can kind of squeeze them in... I know there have been times that the juvies [juveniles] have been taken at one o’clock in the morning and two o’clock in the morning.”
International standards state that children deprived of their liberty are entitled to education and time for daily exercise and that they should have adequate space, installations and equipment.
In the USA, many children who are prosecuted as adults are incarcerated in adult facilities which are unable or unwilling to provide education or other services appropriate to the needs of children. In May 1998 an Amnesty International delegate visited a jail in Washington DC, where a staff member noted with considerable regret the lack of any educational program for the young inmates. He said some youths only reluctantly left their cells when the doors were open because there was little to do. He added that although he was not a teacher he would gladly run classes if he could obtain the materials.
Many jails do not have separate sections for children. As a consequence children are repeatedly kept in their cells for extended periods or confined to very small areas. The result can be the equivalent of solitary confinement. At the time Amnesty International visited the Washington DC jail, it held just one girl. She was allowed out of her cell only briefly when the female inmates were locked in their cells because there was only one area available. Amnesty International delegates who visited jails in Maricopa County, Arizona, in 1997 were told that 13 children in “close custody” were allowed out of their cells for only one hour a day. Others were allowed out for four hours a day. Four female children - the only females in the facility - were each confined to a small cell containing just a bunk, toilet and sink, which afforded no privacy and were open to view through the barred cell doors. It appeared that they spent virtually all day in their cells, without any recreational facilities, and it was unclear what access, if any, they had to educational programs.
Recommendation The federal, state and local governments should require detention and correctional authorities to ensure that children in custody have access to appropriate educational programs, and are provided with adequate time, space and facilities for exercise and recreation.