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The State of Justice for Juveniles in the US

Litigation is leading to juvenile justice reform, but harsh sentencing and racial disparities still plague the system.

Litigation is leading to juvenile justice reform, but harsh sentencing, racial disparities and more still plague the system. (Image: Jared Rodriguez / Truthout)

Every year in the United States, nearly a quarter of a million young people are tried, sentenced or imprisoned as adults. Karter Reed was one of them, convicted of murder and sentenced to life in adult prison at the age of 16. Boy With a Knife, by Jean Trounstine, is Reed’s story. Get your copy of this book by making a donation to Truthout today!

If you ask youth justice advocate Xavier McElrath-Bey how the United States is doing in terms of assuring fair justice for juveniles, you’ll get a mixed response. He says that while the country has been able to achieve some important milestones in the way we try and sentence system-involved youth, all too often, “Children tried in the adult system don’t understand the laws. They go into courtrooms simply hoping for a good outcome.” In an interview with Truthout, McElrath-Bey said kids are often abandoned by the system.

McElrath-Bey came by this information the hard way. After being sentenced at age 13 to serve 25 years for his part in a gang-related murder of another teen, he ended up in the Illinois Department of Corrections at 17. “Incarceration is a trauma, an inhumane situation, and it reinforced negative behavior for me,” he said. “I got worse in prison.”

Even before his prison sentence, at 11, McElrath-Bey was accidentally shot in the face by his best friend. Instead of being treated as a gunshot victim, he was incarcerated in the Cook County Juvenile Detention Center and denied trauma therapy, community programs and the kind of follow-up that would have helped stabilize him. “Being a part of a gang was a natural reaction,” he said. In many ways, gangs can be surrogate families for kids; gangs offer approval, protection, reinforcement and a sense of belonging.

“Incarceration is a trauma, an inhumane situation, and it reinforced negative behavior for me. I got worse in prison.”

But McElrath-Bey was also saddled in 1989 with some of the major concerns that impact youth in conflict with the law: indigent defense, shackling, solitary confinement and juvenile justice meted out in the adult system. It took him years to straighten out his thinking because he was treated so harshly. He said the staff “used to make us face the wall for hours and they encouraged fights … I spent a year in the hole” (solitary confinement).

According to a 2014 report edited by Melissa Sickmund and Charles Puzzanchera of the National Center for Juvenile Justice, “In 2010, more than 2 million 16- and 17-year-olds were considered criminally responsible adults under the jurisdictional age laws of the states in which they resided.”

Today, McElrath-Bey is a strong believer that “unless someone is truly a danger to society, they should be kept in the community.” He has dedicated his life to helping kids, most recently through the Campaign for the Fair Sentencing of Youth and through the Incarcerated Children’s Advocacy Network or ICAN, which he cofounded. He advocates with others to stop harsh sentencing for juveniles.

Harsh Sentencing

Truthout wanted to know how the country is doing on practices with youth, and what the state of youth justice is today, particularly for those who commit violent crimes, but also for those who end up in adult prisons for nonviolent offenses.

“We now realize that the country has made a mistake over the past few decades and all sentences need to be dialed back.”

“More than 200,000 young people each year face the adult system,” said Marcy Mistrett, chief executive officer of the Campaign for Youth Justice, a Washington, DC-based nonprofit organization dedicated to ending the practice of trying, sentencing and incarcerating youth in the adult criminal legal system. In a telephone interview, she added that the juvenile system could handle these youth but we are essentially “overcharging them” — in other words, asking for longer sentences — and they end up in the adult system. As a country, she said, “We haven’t even started discussing what is developmentally appropriate sentencing.”

According to the Sickmund-Puzzanchera report, youth were involved in an estimated 800 murders in the United States in 2010 — 8 percent of all murders. These young people acted alone in 48 percent of those crimes, and acted with at least one adult in 43 percent of the cases. “To me what is significant,” Mistrett said, is that “this data shows the need for more sentencing reform.” In other words, it is unconscionable to give adults and children the same sentence.

Juvenile crime has gone down substantially since the 1990s. But at that time, influential newscasters filled the airwaves with predictions of a coming wave of “superpredators.” As Truthout recently reported, the dominant media mistakenly spread the word that crime would keep climbing, and fostered a myth that demonized youth, and in particular, Black youth. Some experts said we would soon see “radically impulsive, brutally remorseless” kids, many “who pack guns instead of lunches” and “have absolutely no respect for human life.” Due in part to the superpredator myth and its racial overtones, laws across the country were made harsher. The result, as researchers point out, was that “all states allow certain juveniles to be tried in criminal court or otherwise face adult sanctions.”

However, some positive developments have occurred recently, particularly at the level of the US Supreme Court. Karter Kane Reed, a formerly incarcerated Massachusetts citizen, and the subject of my book, Boy With a Knife: A Story of Murder, Remorse, and a Prisoner’s Fight for Justice, responded to recent Supreme Court decisions in an email:

The abolition of the death penalty for those whose crimes occurred before they reached the age of 18 (Roper v. Simmons); the abolition of Life without Parole for non-homicide offenses committed by those under the age of 18 (Graham v. Florida); the abolition of mandatory Life without Parole for those whose crimes were committed before they were 18 (Miller v. Alabama), and, most recently, the decision that Miller v. Alabama was a substantive ruling rather than procedural, meaning that it would have to be applied retroactively to nearly 2,000 juveniles who had been sentenced to what Professor Alfred Villaume has called ‘semantically disguised sentences of death’ (Montgomery v. Louisiana).

Speaking with Truthout by phone, Joshua Rovner, state advocacy associate at The Sentencing Project, said, “Supreme Court decisions have driven much of the conversation … It is an exciting time in juvenile justice. The big picture is that we now realize that the country has made a mistake over the past few decades and all sentences need to be dialed back.”

However, legislatures are sometimes slow to change state laws: This year, South Dakota and Utah have banned juvenile life without parole sentences; Maryland and Tennessee have both been trying to pass laws that provide for sentencing reviews for any juvenile sentenced to more than 15 or 20 years. However, some states have draconian bills in the works. One in Missouri would provide a mandatory minimum sentence of 50 years for 16-year-olds who commit murder (with a 35-year minimum if the juvenile is under 16). While there is pending legislation to raise the age, 17 is currently the age of adult criminal responsibility in Missouri.

For some activists, changing practices also involves “Raise the Age” campaigns. “The largest number of kids prosecuted as adults is because of the lower age of juveniles in jurisdictions,” Mistrett said. “Only nine states are left that haven’t raised the age,” she added, “and seven have pending legislation.” New York and North Carolina still consider 16 to be the age of adulthood for the purposes of the criminal legal system. Five states have raised the age of juvenile jurisdiction to cover those under 18. According to the Campaign for Youth Justice, “Connecticut started the trend in 2009, and Mississippi, Massachusetts, Illinois, and New Hampshire followed in 2010, 2012, 2013, and 2014, respectively.” However, for those accused of murder, some states automatically send those as young as 12 to adult courts.

The Campaign for Youth Justice’s Mistrett wrote that there is much that needs work: Legislatures in 29 states transfer large numbers of youth who commit crimes to adult court, 40 percent include nonviolent charges as part of their “statutory exclusion provisions” and 15 states let prosecutors file criminal charges against juveniles directly in adult courts. But there is pushback in states as seemingly different as California, Florida, Louisiana and Maryland to change harsh sentencing practices.

Mistrett pointed out that Connecticut, Vermont and Illinois are all talking about raising the age or giving “youthful offender protections” to young adults up to age 21. This is because of new scientific research on brain development, impulse control and response to peer pressure, and while there is no bright line between adults and teens, research is showing some differences that are becoming significant to the courts.

Racial Disparities

While crime rates, rates of smoking and youth pregnancy are down for youth, racial and ethnic disparities for system-involved kids of color are not. In fact, while juvenile crime has gone down 60 percent, racial disparities have gone up. Such are the conclusions of a recent report issued by The Sentencing Project and authored by Rovner: “Despite a drop in overall arrest rates nationally, Black youth are still twice as likely to be arrested as white youth,” according to the report. However, Black youth make up only 16 percent of all public school students.

When Truthout asked how he might account for such racial differences in sentencing and punishment, Rovner said, “I would be interested in knowing state by state, county by county how they are implementing juvenile justice reform. Where exactly is the segregation in suburbs and urban areas? Why is it that some communities have implemented reforms and others have not?”

Children imprisoned in the adult system can be kept in solitary for a long time: 30 days, 60 days, and even 360 days.

Across the country, Black kids are 21 times more likely to be shot dead than white kids, ProPublica reported in 2014. Stop-and-frisk policies were found unconstitutional by a federal judge in 2013 because of police officers’ use of racial profiling, and, according to the Guardian, instances “dropped from 685,000 in 2011 to 46,000 in 2014.” However, they also reported that local police increasingly moved off the streets, and surveillance migrated online.

It is clear that children of color also have a distinct disadvantage after any involvement with the punishment system. Per Rovner’s policy brief, “An adolescent who has spent time in secure detention is far less likely to attain a high school diploma or consistently participate in the labor force in the future. Two-thirds of juveniles are committed for nonviolent offenses (mostly property crimes, public order offenses, status offenses, and technical violations).”

Naoka Carey, executive director of Citizens for Juvenile Justice in Massachusetts, said in a phone interview that Massachusetts has some of the worst ethnic and racial disparities in the country. “Our racial disparities get much worse as you go deeper into the system,” she told Truthout. “If you rely on discretion to keep kids out of the system, the system can be subject to implicit bias … In a big city where kids of color live, more is going on and there’s more to do, more to deal with … Schools are more likely to use the courts.”

Indigent Defense

Indigent defense is a real problem for children across the country, said Marcy Mistrett of the Campaign for Youth Justice. Poor kids are not getting legal representation.

In the statement of interest filed in N.P. et al., v. Georgia, the US Department of Justice said every child who faces a loss of liberty has a right to an attorney. But ThinkProgress spelled out how children charged with crimes will suffer under Louisiana’s new budget shortfall. According to the Orleans Public Defender, charged with defending adults — including 17-year-olds who are considered adults under Louisiana law — and kids who have been funneled to adult court, there’s no money for attorneys.

“The Louisiana Center for Children’s Rights (LCCR) acts as the primary juvenile defense group in New Orleans,” wrote Carimah Townes, “handling approximately 1000 cases each year. In a worst-case scenario, LCCR will have to wait list 500 to 650 kids. Consequently, hundreds will be detained without any form of representation.”

Mistrett explained that there are just not enough public defenders, or in some states that hire “panel attorneys” to represent those without funds, they aren’t specifically trained in juvenile law. “In some places you get the right to defense late in the process, and it becomes more problematic to represent the kid,” she added. It’s not just Louisiana, but Southern states do seem to have more of a problem with indigent defense, according to Mistrett.

Solitary Confinement and Shackling

Amy Fettig, senior staff counsel for the American Civil Liberties Union’s (ACLU) National Prison Project, said in an interview that we must use “a developmental lens which tells us that kids are uniquely vulnerable.” She added that the country is getting a greater awareness that solitary confinement is not acceptable for youth.

In an interview with NPR, Venida Browder — the mother of Kalief Browder, the 16-year-old who spent three years in Rikers Island prison in New York City without being convicted of a crime — said she lost her son twice: First to the lockup at Rikers, and then to suicide. “Solitary confinement is what destroyed my son,” she said.

In the juvenile justice system in most jurisdictions, solitary is called “room consignment” and the amount it can be used varies from state to state. The new juvenile detention alternative standards from the Annie E. Casey Foundation say that there should be no use of punitive solitary, Fettig told Truthout. Of course, all bets are off if kids are sent to the adult system where they are treated as punitively as adults (not that adults should be subjected to solitary or harsh punishment either, but youth are particular susceptible to mental health issues when isolated).

Fettig added that kids who end up in the adult system often end up in solitary because they are put in protective custody. Systems will place them there to supposedly “keep them safe, but that inflicts its own kind of damage on them. Kids who are in the adult system and have behavioral issues will break prison rules because they are children and act like kids and get sent to solitary as a result.” Children imprisoned in the adult system can be kept in solitary for a long time: 30 days, 60 days, and even 360 days. If kids are subject to long-term solitary and then, if they continue to act out, they can get more charges. “It is never-ending,” she said.

This past year, President Obama banned solitary in federal prisons for juveniles. More restrictions on the shackling of kids have been implemented too. Naoka Carey said indiscriminate shackling of kids was banned in 2009 in Massachusetts. Twenty-one states have reformed shackling, but that only means indiscriminate shackling. All you have to do, say advocates, is cite something and a police officer or a school officer can still shackle a child. ProPublica reported that in the 2012 school year, three-quarters of the students restrained nationwide had physical, emotional or intellectual disabilities.

The Future of Justice for Juveniles?

Many of the people with whom Truthout spoke said the country is seeing a lot more comprehensive reform efforts. “There are more bills, and the number of states has increased and we’re just tackling more,” Mistrett said. For example, the Prison Rape Elimination Act has had some success in addressing sexual violence against juveniles. However, Mistrett added, “We still haven’t changed minds and hearts to help kids get a real second chance.”

McElrath-Bey said that had he been put in a “positive embrace” as a child, and if the country had recognized that kids can grow and have a sense of humanity, we would realize that “they want to care and not to destroy.”

For, as James Baldwin said, “these are all our children. We will all profit by, or pay for, whatever they become.”

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