III CHILDREN PROSECUTED IN THE JUVENILE JUSTICE SYSTEM

“We have seen juveniles locked up for repeated truancy, running away from home, violating curfew, possession of alcohol, possession of marijuana, shoplifting, and missing even a single meeting with a probation officer.” Mark Soler, lawyer with the Youth Law Center, a national US legal assistance and policy agency for children.

1. Background

Children in the USA who are accused or convicted of violating criminal laws may be dealt with in the “juvenile justice system” that deals specifically with children, or in the general criminal justice system that deals primarily with accused and convicted adult offenders.

All states of the USA have a juvenile justice system which deals with the great majority of children arrested on suspicion of violating the criminal law. It comprises courts, programs and services, and residential facilities (including secure institutions in which a child may be held and from which they cannot leave without permission). The terminology of the US juvenile justice system is different from that of the general criminal justice system. For example, when a juvenile court judges that a child has committed an offence, the child is described as an “adjudicated delinquent” rather than “convicted” and the court makes a “disposition” decision rather than passing a sentence. However, key elements and outcomes of the juvenile and the criminal justice systems are similar. Children accused of breaking laws for which they could be prosecuted in a general criminal court may be arrested by the police and detained before trial. If they are found guilty, the court can order them to be placed in custody where they can be held for years.3 In view of the similarity between juvenile justice and general criminal justice systems, this report uses the more commonly known terms of the latter system, such as “convicted” and "sentenced", for both. On 15 February 1995 more than 84,000 children were in custody as accused or convicted offenders.4

Between 1986 and 1995, the number of children confined in custody before their cases were heard or following conviction grew by more than 30 per cent. In many jurisdictions, the increase in the number of children who are held in custody has outstripped the increase in resources that are available to house the children and provide services for them. The most recent survey found that 40 per cent of facilities around the USA housed more children than they were designed to accommodate.

Overcrowding is directly linked to some of Amnesty International’s concerns about the treatment of children in the US juvenile justice system, which are described below.

2. Excessive use of incarceration

“Liberty” is one of the fundamental human rights enshrined in international human rights standards and US law. International standards require authorities to avoid depriving children of their liberty unless there is no appropriate alternative. The incarceration of children is a matter of grave concern not only because liberty is a fundamental human right but because incarceration has inherent risks to the physical and mental integrity of children and may expose them to negative influences rather than promoting their rehabilitation. The harm that children suffer as a consequence of incarceration may be permanent.

Various sources of evidence suggest that many children in the USA are detained when they are accused of committing offences and incarcerated following conviction when other options were or should have been available.

The most striking evidence is individual cases reported from around the USA. For example, an investigation of juvenile facilities in Georgia in 1997 found: an 11-year-old boy detained for threatening his teacher; a 12-year-old boy detained for making a harassing telephone call; a 14-year-old girl detained for painting graffiti on a wall; numerous youths detained after relatively minor fights at school; a 16-year-old girl detained for transgressing her father’s rules (throwing objects in her room and not attending school); a 13-year-old girl detained for stealing $127 from her mother’s purse; children who had run away from troubled homes; and children who were held on charges of “terroristic threat,” which often involved swearing at a teacher.

The records of children incarcerated in various states show that many children who were not persistent offenders have been placed in custody for minor offences. For example, a study that examined the records of more than 50,000 children in 28 state juvenile correction systems found that over half had been committed for property and drug offences and were experiencing their first confinement in a state institution.

Why incarceration is used excessively
A number of reasons have been identified for the excessive incarceration of children.

One is that in some jurisdictions incarceration is regarded as an appropriate punishment for even minor infringements of the law by very young children, such as fighting in school. This punitive attitude towards children has been fuelled by growing community fears about the extent and nature of youth crime in the USA, and media reports of “super predators flooding the nation’s streets” and “teenage time-bombs”.

Another factor is the inadequate community-based programs for both accused and convicted children. As a consequence, it is reported, judges order children to be held in custody when that option is neither in the child’s best interest nor essential to protect the community. In the words of a juvenile court judge from Georgia, “I really have only two major choices. I can place these kids in incarceration, where they will learn to become better criminals, or I can send them home on probation, back to where they got in trouble in the first place.”

Reports from around the USA also suggest that there is a shortage of services for children that might keep them out of the juvenile justice system altogether, particularly mental health services. For example, a recent report by Louisiana state officials acknowledged that secure facilities held many children who had been “discarded” from the mental health, educational, child welfare and other systems of care. Social workers in a number of states have instructed desperate parents to have their children arrested in order to get services because community health services are so scarce. In Dallas, Texas, a mental health professional reported in 1998: “I had a 15-year-old girl who was hallucinating and psychotic and a staff member from Mental Health and Mental Retardation agreed she needed hospitalization. But then she said they were over budget for the year, so couldn’t I find an offense that would get her arrested, like an assault?”

Recommendation State and local governments should review their legislation, policies and practices to ensure that children who are accused or convicted of violating the law are not deprived of their liberty except as a last resort. In particular, all authorities should:

Juvenile justice systems should as a matter of course assess children to determine whether they should receive specialized care and rather than be placed in a detention or correctional facility.

3. Cruel use of force and restraints

In recent years, there have been many reports that staff in juvenile facilities around the USA have punched, kicked, shackled, sprayed with chemicals and even used electro-shock devices against children in their care. The reports include:

South Carolina 1998 - residents of a juvenile correctional facility initiated legal action against the company operating it, alleging that staff had sprayed children with gas to enforce orders, and punched, choked and kicked children.

Kentucky 1998 - a US Department of Justice investigation of the juvenile section of the Daviess County Detention Center found that staff regularly used stun guns and pepper spray to control uncooperative youths and to break up fights. Children detained at the facility also reported that they were hit by staff.

Maine 1998 - the mother of a boy at a juvenile correctional facility reported: “While sleeping, he was physically removed from his bed in only his boxer shorts and taken to a private room in his cottage. There, the guard interrogated him about a rumour of a riot while verbally and physically assaulting him. When my son tried to defend himself, he was taken to another building and put in solitary confinement. When he was not found in his bed the next morning, inquiries were made to his whereabouts. When he was finally located, there were fresh bruises and a hand print found on his back and my son had a story to tell. I have seen changes in my son but they are not the type of changes brought upon by solid rehabilitation and education programs, but rather fear and hopelessness resulting from verbal and physical abuse from untrained and impatient staff. Each Sunday I visit my son, but it is not only his pain and helplessness I see. I overhear horrible stories of the past week’s violence as the children try to explain fresh cuts and bruises to their parents.”

Some reports of the excessive use of force concern what appear to be isolated incidents. However, a significant number of other reports describe acts committed by numbers of staff over an extended period and would seem to reflect major organizational deficiencies as well as personal misconduct. Litigation and research suggest the following as particularly important:

The use of restraint chairs and chemical agents
In its recent report on human rights violations by law enforcement and adult correctional agencies, Amnesty International expressed concern at the use of restraint chairs, chemical agents electro-shock weapons, and recommended that the federal and other authorities should take action.5 Amnesty International’s research on children also indicates significant grounds for concern about the use of restraint chairs and chemical agents in juvenile detention and correctional facilities. US juvenile justice experts who are preparing new guidelines for facilities warn that there is a substantial risk that chemical restraints may become a first rather than a last resort to control confined youth. The experts accordingly urge facilities that do not now use chemical restraints to refrain from introducing them in the future.

The fact that the great majority of facilities seem to function satisfactorily without the use of chemical restraints suggests that alternative methods can address the needs of facilities effectively without the inherent risks of abuse and injury that chemical restraints present. The experience of these facilities demonstrates that the use of force can be significantly reduced by concertedly addressing the underlying causes of children’s misconduct, which may relate to the children themselves (such as emotional disturbance) or the organization (such as staff training), or both.

The use of electro-shock weapons in juvenile facilities appears to be uncommon. However, while there is no demonstrable need for their introduction, there is the risk that facilities will acquire them. Amnesty International urges authorities to act decisively before that occurs, and prohibit the use of the weapons in juvenile facilities.

Recommendations
1.Preventing the abusive use of force and restraints State and local governments should:

2.Inquiries US federal authorities should conduct inquiries into the use of chemical restraints and restraint chairs in juvenile detention and correctional facilities.

3.Electro-shock weapons State and local governments should prohibit the use of electro-shock weapons in juvenile detention and correctional facilities.

4.International scrutiny The US federal government should require state and local governments to establish comprehensive standards for juvenile detention and correctional facilities that are consistent with international standards and monitor the implementation of this requirement. The USA should report on measures to prevent torture and other cruel, inhuman or degrading treatment or punishment in the report it is due to submit to the Committee Against Torture on its implementation of the Convention Against Torture. (Note: The first US report was due in November 1995).

The authorities should also improve mechanisms to detect and deal with abuses as recommended in Part VII of this report.

4. Solitary confinement

The use of solitary confinement to punish children is prohibited by international standards on the grounds that such confinement is cruel, inhuman or degrading treatment that may compromise children’s physical or mental health.

Solitary confinement is a common punishment in juvenile facilities in the USA. A national study of the use of isolation calculated that in 1992 there had been 435,000 occasions when facilities had used isolation for a period of one to 24 hours and 88,900 occasions when it had been imposed for more than 24 hours.

Nicholaus Contreras was incarcerated at the Arizona Boys Ranch, a juvenile corrections facility, in 1998. While there, he was repeatedly placed in solitary confinement for such transgressions as talking to staff without permission and carrying cleaning fluid to his assigned work area (9, 10, 11, and 12 February). He was again isolated on 23, 25, 27 and 28 February for "lethargic effort in exercise" and complaints of feeling ill and tired. On 2 March he was isolated for failing to listen to staff about his attitude to exercise; later that day, Nicholaus died while staff “assisted” him to do push-ups.

In several cases, US courts have decided that children may only be placed in isolation when they pose an immediate threat to themselves or to other people and that they must be released as soon as they have gained control of themselves. However, these decisions do not have national force. Most US jurisdictions and the majority of facilities permit the use of isolation to punish children who have breached the rules of custodial facilities. Some facilities have allowed it to be imposed without time limit. The policies of many facilities allow them to deny isolated children access to education, exercise and counselling and there are recent reports of this occurring in several states.

Recommendations State and local governments should:

The USA should report on the use of isolation to punish children in the report it is due to submit to the Committee Against Torture on its implementation of the Convention Against Torture.

5. Inadequate services for children with mental health problems

International standards, US laws and national correctional standards explicitly provide that children deprived of their liberty are entitled to physical and mental health care services. The importance of mental health screening and services is particularly great, because surveys of children confined in juvenile justice institutions have found that a far greater proportion suffer from mental health problems than children in the general population.

Recent reports indicate that many facilities have not provided adequate mental health services and some have responded brutally to the behavioural problems posed by troubled children. For example:

Georgia 1997: a US Department of Justice investigation of 22 detention centres found that children were being systematically denied access to adequate mental health care. Both the quality and quantity of mental health services were found to be seriously deficient. The investigation reported that in certain facilities, mental illness was addressed almost solely through “correctional responses”, including isolation and the use of mechanical and chemical restraints.

Virginia 1996: a study of juvenile facilities found that there were only 2.5 psychologists to see 300 children, although around 40 per cent of the children were identified as having mental health or suicide watch needs. Because of the number of juveniles that had to be seen, a supervisor told his staff that they could not see a child more than three times a month unless they indicated that the child would die if he or she was not seen more often.

Louisiana 1996-97: a US Department of Justice investigation of the state’s secure correctional facilities for juveniles reported that there were serious inadequacies in mental health care. At one facility, children with extensive psychiatric histories who self-mutilated or threatened suicide had never been referred to a psychiatrist.

Several federal agencies are undertaking projects to enhance the delivery of mental health services to children in the juvenile justice system. Federal funding is also being provided for the development of standards for juvenile detention and correctional facilities; among these are standards for the detection and treatment of health problems, including mental health and substance abuse problems. However, facilities will not be required to adopt the standards.

In mid-1998, the US Senate adopted a legislative proposal to allow states to use federal prison construction funds to assess and treat the mental health needs of incarcerated children and adults. The proposed law would also require states that use the funds to develop mental health treatment programs for offenders with mental illnesses and conduct a study of mental illness in correctional facilities. States will not be required to participate in the program.

Amnesty International welcomes the various initiatives to improve the provision of mental health services to children who are being dealt with in the juvenile justice system. However, the recent record of appalling inadequacies in many facilities suggests that more concerted measures are required to ensure that all children in need receive such critically important assistance. Governments must require facilities to deliver the services and provide adequate funds for them to do so; in turn, facilities must be rigorously accountable for the manner in which they discharge their responsibility.

Recommendation State and local governments should:

NEXT