Incarcerating Children with Adults: US Human Rights Violation

Cindy Soohoo sends us this post written by two of her students.  Nell Hirschmann-Levy and Meghan McLoughlin consider the U.S. practice of incacerating children under age 18 with adult populations. 

Children’s Lives at Stake: U.S. Policies of Incarcerating Children in Adult Correctional Facilities

 by

Nell Hirschmann-Levy and Meghan McLoughlin 

Nationally, the U.S. Department of Justice reports that approximately 200,000 youth under the age of 18 are prosecuted as adults in criminal court every year. As a result, thousands of children under 18 are held in adult jails and prisons at any one time, and they are overwhelmingly children of color. Nationwide, African-American youth represent 17 percent of the overall youth population, yet they account for more than 50 percent of the youth sent to adult prisons. In adult jails and prisons, children often share cells with adults and are disproportionately subjected to solitary confinement.  Because these practices are clearly prohibited under international law, the U.S. has become the subject of increasing international scrutiny and criticism.

 Last month, the U.N. Human Rights Committee (“Committee”) criticized a broad range of U.S. laws and policies that treat youth under 18 as adults in the criminal justice system. The Committee’s statements were made in Concluding Observations issued following a two-day review of the U.S.’s compliance with the International Covenant on Civil and Political Rights. The Committee is composed of independent human rights experts from around the world.

In its Concluding Observations, the Committee expressed concern that youth under 18 can be tried in adult courts and incarcerated in adult institutions through various state laws. It emphasized that the U.S. should “ensure that all juveniles are separated from adults during pretrial detention and after sentencing and that juveniles are not transferred to adult courts.” The Committee went on to stress that “States that automatically exclude 16- and 17-year-olds from juvenile court jurisdictions should be encouraged to change their laws.”

The Committee also took a hard line on the extreme sentences and punishments that are imposed on youth in the adult criminal justice system. In the New York City jail system, over 25% of the adolescent population, 16-18-year-olds, are held in solitary confinement on any given day. The Committee reiterated the international human rights standard, demanding the U.S. abolish solitary confinement for anyone under 18.

The Inter-American Commission on Human Rights (“IACHR”), a regional human rights body for the Americas, has also criticized U.S. policies that conflict with international human rights standards.  Last spring, in response to a request from the International Women’s Human Rights Clinic(“IWHR”) at the City University of New York School of Law and the ACLU of Michigan Juvenile Life Without Parole Initiative, the Commission held a hearing on the human rights of youth incarcerated in adult correctional facilities. Following the hearing, the IACHR expressed deep concern over U.S. practices that result in youth being tried as adults and incarcerated in adult facilities.

Because of the IACHR’s concern about this issue, the Commission’s Special Rapporteur on the Rights of the Child visited New York earlier this month.  New York is one of two states in the country that continue to exclude 16- and 17-year-olds from the juvenile justice system. The Special Rapporteur met with state advocates, local youth activists, and government officials, and visited Rikers Island, the New York City jail.  The Special Rapporteur did not issue any formal findings or conclusions, but following the visit, the IACHR issued a press releaseindicating that it is committed to “continue to closely monitor this situation, until all States treat youth offenders under the juvenile justice system and stop the practice of incarcerating them as adults.”

When young people’s formative years are spent in the adult criminal system, we, as a society, risk destroying our children’s generation by denying them age-appropriate and rehabilitative programs that help them heal. Advocates hope that the recent international scrutiny can support the reform efforts at home as we continue to hold the U.S. accountable.