OP-ED: Year After UN Slammed US on Youth Criminalization, How Are We Doing?

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Chelsea Guffy

Chelsea Guffy

Tawakalitu Amusa

Tawakalitu Amusa

Cynthia Soohoo

Cynthia Soohoo

Last spring, the U.N. Human Rights Committee (HRC) called out multiple ways that U.S. treatment of youth conflicts with the International Covenant on Civil and Political Rights and violates human rights standards. The HRC review began a year of steady international criticism.

  • In September and December, U.N. Committees Against Racial Discrimination and Torture reiterated that the United States must reform its youth justice policies.
  • In March, the U.N. Special Rapporteur on Torture, Juan Mendez, issued a report emphasizing the use of alternatives to detention to protect children from torture and ill-treatment. The report singled out the U.S. as the only country that imposes life without parole sentences on children.
  • Last week, during the U.S.’ Universal Periodic Review (a peer review of the human rights record of each country in the U.N.), several countries emphasized that youth under 18 should not be in the adult criminal justice system and recommended that the U.S. end life without parole sentences for juveniles in all circumstances.

One year after the HRC review, CUNY Law School’s International Women’s Human Rights Clinic (IWHR) and its partners issued a Report Card to evaluate U.S. progress on youth justice issues. The Report Card found that the U.S. continues to be in violation of its human rights obligations and has not taken satisfactory action to respond to the recommendations. (For more in-depth information about state reforms read the Campaign for Youth Justice’s [CFYJ] State Trends report.)

The HRC’s recommendations, grades and current progress of the U.S. are listed below:

[The U.S.] should encourage states that automatically exclude 16- and 17-year-olds from juvenile court jurisdictions to change their laws.

Grade: C

In July 2014, New Hampshire passed a law requiring that all cases involving individuals under 18 originate in juvenile courts. Nine states, however, still exclude 16- and 17-year-olds from juvenile court jurisdiction.

Currently, there are legislative campaigns to raise the age in New York and North Carolina, the only two states that exclude both 16- and 17-year-olds from juvenile court jurisdiction. In New York, a governor’s task force recommended comprehensive juvenile justice reforms including expanding juvenile court jurisdiction, and the budget passed in April allocates $135 million towards the reform.

The North Carolina legislature is considering a bill that would allow the juvenile system to hear cases involving 16- and 17-year-olds charged with misdemeanors that, if passed, would reflect a small but significant step forward for the state.

[The U.S. should ensure] that juveniles are not transferred to adult courts.

Grade: C-

All states have transfer laws that allow or require youth under 18 to be tried as adults in certain circumstances. However, some states are working to decrease the frequency with which youth are tried as adults.

CFYJ reported that 14 states and Washington, D.C., engaged in legislative efforts to reform and limit the ways that youth can be transferred into adult courts in 2013-14. Two states, Nebraska and Indiana, passed legislation making it more difficult to try youth as adults for certain offenses. In Indiana, legislation was passed to give juvenile courts jurisdiction over youth charged with gang-related activity and to require that youth tried as adults serve their sentences in juvenile facilities.

[The U.S.] should also ensure that juveniles are separated from adults during pretrial detention and after sentencing.

Grade: C-

National standards promulgated under the Prison Rape Elimination Act (PREA) require that youth be separated from adults in jails and prisons. In 2014, only two states certified full compliance with these standards, and seven states and one territory refused to comply with PREA altogether. The majority of states (46 states and territories) submitted assurances that they are working toward compliance.

States were due to submit new certification forms last week. As of the Friday deadline, 10 states had submitted certifications of compliance and 36 states and four territories had issued assurances. Three states that refused to comply with PREA in 2014, Indiana, Florida and Nebraska, switched to assurances in 2015.

Although the switch and the increased number of certifications is a positive sign, there is continuing concern that there is no deadline by which states must come into compliance and that they can continue to issue assurances in perpetuity. Further, there are continuing attempts in Congress to change and potentially weaken the financial penalties imposed on states that fail to comply with PREA.

The [U.S.] should prohibit and abolish the sentence of life imprisonment without parole for juveniles.

Grade: C

Following the Supreme Court decisions in Graham v. Florida and Miller v. Alabama, the U.S. Supreme Court significantly limited the imposition of juvenile life without parole sentences. However, the Supreme Court decisions still allow states to sentence youth who are convicted of homicide crimes to be sentenced to life without parole if they have an individualized sentencing hearing (i.e. they are not given a mandatory sentence).

Last week Vermont passed legislation completely abolishing juvenile life without parole sentences. West Virginia and Hawaii passed similar legislation in 2014, bringing the total number of states that do not impose juvenile life without parole sentences for any offense to 14 states plus the District of Columbia. State courts continue to disagree about whether Miller should be applied retroactively. On March 23, the Supreme Court agreed to hear Montgomery v. Louisiana to resolve the retroactivity question.

[The U.S.] should impose strict limits on the use of solitary confinement … and abolish the practice in respect of anyone under the age of 18.

IWHR did not have comprehensive data about changes in solitary confinement laws and policies. However, the following positive developments have occurred in New York. In New York City, Rikers Island, the second-largest jail in the U.S., excluded youth under 18 from punitive segregation and is slated to extend the ban to youth under 21 as of Jan. 1, 2016, contingent on the provision of sufficient resources for staffing and programming alternatives.

The HALT Solitary Confinement Act is gaining momentum in the New York state Legislature. The bill would bar the use of solitary for youth under 21 as well as the elderly, pregnant women, LGBTI individuals and those with physical and mental disabilities and would ban extreme isolation for all populations beyond 15 days.

This year, there has been a steady stream of international criticism exposing U.S. youth justice practices that violate human rights. Although the U.S. continues to be in violation of international standards, there have been significant reform efforts at the state level.

Many of these efforts recognize that justice policies must respect the human rights of youth and have begun to explicitly push for reforms that meet our international human rights obligations.

For instance in New York, Assemblymember Daniel O’Donnell introduced a bill to reform solitary confinement that emphasized the need to comply with recommendations from the U.N. Committee Against Torture. Over the next year, we hope to see increasing activism at the state and federal level to bring U.S. youth justice policies into compliance with international human rights standards.

Cynthia Soohoo is the director of the International Women’s Human Rights Clinic at City University of New York Law School of Law. Tawakalitu Amusa is a recent graduate of CUNY School of Law and former student intern for the International Women’s Human Rights Clinic. Chelsea Guffy is a recent graduate of CUNY School of Law and a former student advocate for the International Women’s Human Rights clinic.

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