At our country’s 240th birthday, I am reminded of our forefathers’ preamble to the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
While history has uncovered the blatant shortcomings of this dictate, the rights to one’s liberty, or freedom, seem particularly important to highlight now. With nearly 95,000 children incarcerated in adult jails and prisons each year, the vast majority of them children of color, we have a responsibility to question this concept of liberty in the shadow of our carceral state.
Liberty, defined as being free within society from oppressive restrictions imposed by authority on one's way of life, behavior, or political views, has a long history of grotesquely unequal application in our country: It certainly wasn’t a protected right at the birth of our country for slaves, women or children, nor was it promised to numerous other special populations — immigrants, people who are disabled, LGBT communities, indigenous peoples to name a few. Yet, as many scholars have noted, as unique populations have gained access to liberty through the courts, other structures of oppression have emerged to stifle their ultimate achievement of freedom. Perhaps the most well-known and egregious obstruction of liberty is incarceration.
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For our children who sleep in adult jails and prisons, the deprivation of liberty extends far beyond the restrictions on their movement. Despite being treated as adults in the criminal courts, children under 18 who are prosecuted as adults are hypocritically denied the freedoms granted by adulthood (voting, serving in the military, living independent of their parents, completing compulsory education, etc.). This inconsistency begs the question: Is incarceration itself the punishment, or are we sanctioning further punishment once children are incarcerated? Sadly, the answer is the latter.
Our country has become so reliant on punishing law-breakers, we have decided the deprivation of liberty is simply not enough. Instead, we subject young children to extensive punishment — to long periods of solitary confinement, repeated exposure to violence, sexual assault and physical abuse involving pepper spray, stun guns or prolonged shackling — all on top of decades of incarceration. We prohibit them from visiting with their families if they face a long time in prison; they go to the bottom of the waitlist for school, vocational training and mental health treatment — services that are considered necessary for those returning back to society.
And then, as if this punishment isn’t enough, we also punish them economically: Before they are legally allowed to establish credit, we set about eroding their finances. We charge them fines; when they can’t pay, they accrue penalties. We charge them for their health care, for phone privileges and for a bag of Cheetos. And then we ask, “Is this enough punishment? Have we deprived them of enough of their liberties?”
And still, the answer is no. For the vast majority of youth who come home after a period of adult incarceration (95 percent will be released by the time they are 25), they continue to face oppressive restrictions to their liberty. As we write in our collateral consequences report, children who return home from a period of adult incarceration retain that conviction for the rest of their lives.
This can (and does) prevent them from furthering their education, securing housing, finding a job, serving in the military, voting and thousands of other activities that define the “liberty” of adulthood. Furthermore, as conditions of their release, they are often told that they can’t congregate on certain community blocks or interact with certain people (including members of their family).
They are restricted from using alcohol, and are under surveillance for anywhere from one to five years, or, in some cases, for the rest of their lives. We have heard others refer to this as “perpetual punishment,” but it can also aptly be referred to as loss of liberty.
And, because we have found it acceptable to treat not only adults this way, but also children who are younger than 18, we have effectively undone a core tenet of our country’s founding principles.
Marcy Mistrett is CEO of the Campaign For Youth Justice, a national initiative focused entirely on ending the practice of prosecuting, sentencing and incarcerating youth under the age of 18 in the adult criminal justice system.
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