Chicago, my hometown, was the home of the world’s first juvenile court. We are very proud of our history in the pioneering of a separate and more rehabilitative court for children in the United States.
And so it comes as a shock to realize that children in the United States have fewer – significantly fewer – legal protections than children in other nations.
This fact hit home for me two weeks ago when I trained juvenile court judges across Morocco on alternatives to incarceration in the U.S. The judges in Morocco speak frequently of their nation’s compliance with international standards for children in conflict with the law. Indeed, these Moroccan judges refer to “children,” not “juveniles,” unlike the U.S. where some of our children are magically transformed into adults for purpose of trial and sentencing.
The U.S. practice of trying children as adults is contrary to international standards. Although Illinois, Connecticut and Massachusetts recently raised the age of juvenile jurisdiction to 18, 10 states remain below 18. Further, many children across the nation are still automatically tried in adult court for certain serious offenses where they receive disproportionately lengthy adult sentences. This practice is rare in most nations.
Since 2007, more than 50 juvenile prisons have been closed, but the United States remains the world’s leader in incarceration of children. Most similarly developed nations follow international standards that require incarceration to be a last resort for as short a time as possible within humane, homelike facilities. Our heavy reliance on incarceration for children in prisons that are frequently sued over inadequate education and unsafe living conditions, including brutal discipline and solitary confinement, is contrary to international standards and practice. It is also in direct conflict with our national research documenting that incarceration is by far the least effective sentence, leading to more repeat offending than any other sentence in juvenile court.
Across Europe, children cannot be questioned without a lawyer. In 2008, the European Court of Human Rights decided that children and adults must have an attorney when interrogated by police. The impact has been dramatic. A judge in France recently told me that all children in her nation receive the protection of an attorney during questioning – as well as the presence of a parent/guardian and recording. In contrast, Miranda warnings of right to counsel are given in the United States, but children are frequently questioned without an attorney, without videotaping, and even without a parent or guardian.
Our failure to provide the protection of counsel to children during questioning has a sad legacy, with numerous false confession cases eventually overturned at great cost. My hometown Chicago was recently called the false confession capital during a “60 Minutes” segment, which highlighted several juvenile false confessions. One case involved a 17-year-old who was imprisoned for more than two decades despite police records placing him in police lockup at the time of the offense.
The fundamental establishment of a minimum age for which children can be tried, is nearly unheard of in our country, but other nations follow this international standard recognizing a meaningful age for responsibility. In most European nations the minimum age for trial as a juvenile is 14. Morocco has a statutory minimum age of 12, as does our neighbor to the north, Canada. In Illinois – once the international forerunner – we still allow juvenile court trial and pretrial detention of children as young as 10. This practice of juvenile court trial for such young children must end.
And, finally, many nations have long recognized that childhood does not necessarily end at age 18 and thus extend juvenile protections and sanctions to the “emerging adult” population of age 18 through the early twenties. Since the 1950s, Germany has extended juvenile sentencing options available to judges in adult courts. Japan extended the age of juvenile jurisdiction to age 20 when it adopted juvenile law reforms back in the 1950s. These reforms predated our U.S. research documenting that adolescent brains do not fully mature until age 25.
U.S. Attorney General Holder recently spoke of reforms the United States is undertaking that “will help to bring our criminal justice system in line with our most treasured values: of equality, opportunity, and justice under law.” Among these reforms must be a commitment to join the rest of the world in implementing basic human rights for children in conflict with the law. The United States has begun the journey toward compliance by overturning the death penalty and raising the age to 18 for our juvenile courts, but we have miles to go to catch up to other similarly developed nations.
Our children deserve the same protections and rights as children across the globe. These human rights will make our children safer and less likely to reoffend and will afford less costly and more effective resources for our communities.
Elizabeth Clarke, is the founder and president of the Juvenile Justice Initiative in Illinois.