By William Tipton, CFYJ Policy & Research Fellow and Terri Poore, MSW, Policy Director at the National Alliance to End Sexual Violence.

April is Sexual Assault Awareness Month. This month, the National Alliance to End Sexual Violence (NAESV) and the Campaign for Youth Justice (CFYJ) are partnering to highlight those vulnerable youth living in adult jails and prisons across the country as well as those laws and policies that can protect and support incarcerated youth if properly implemented.

By Catie Armstrong, Juvenile Justice Fellow

March 21, 2017 marks the fifty-first anniversary of Kent v. United States, 383 U.S. 541 (1966).  In Kent, 16 year-old Morris Kent was arrested in Washington D.C. for various charges.  Kent was placed in police custody for 24 hours, and while in custody he was questioned repeatedly about the alleged offenses.  He eventually admitted to some of the offenses.  Kent’s mother hired an attorney to handle his case, and together they prepared to enter the juvenile court system.  But what happened next would unexpectedly define a generation of due process rights for youth waived to the adult criminal justice system.

By Anne-Lise Vray, Communications Associate

Today, we wear red to stand in solidarity with our young justice-involved women. March 8 marks the 2017 edition of International Women’s Day, yet another occasion to remember that girls and women in the U.S. and across the world continue to face grave disparities and dangers in many – if not all - areas of society. When it comes to the justice system, girls are among the most vulnerable groups. They are the prime victims of the sexual abuse to prison pipeline, a term used to describe the pathways of gendered violence that lead girls into the juvenile justice system. And the numbers are terrifying. Reported rates of sexual abuse are more than four times higher for girls in the system than for boys. Rights 4 Girls cites that 1000 American children are arrested each year for prostitution and that 73 percent of girls in the juvenile justice system have histories of sexual and physical abuse, while 80 percent meet the criteria for a mental health diagnosis. Additionally, girls are twice as likely as boys to report five or more Adverse Childhood Experiences (ACES), traumatic or stressful periods during childhood that may impair the brain’s ability to function (ACES, i.e emotional, physical or sexual abuse, emotional neglect, household substance abuse etc). ACES may cause children to mistrust adults, have difficulties learning and/or making friends; all of which make young people vulnerable, including over-representation in youth-serving systems such as child welfare, juvenile justice and/or mental health systems.

By Aprill O. Turner, CFYJ Communications Director

As we begin another Black History Month, it is time to celebrate the contributions and history of African Americans in this country.  Along with the celebration of progress, it’s also a time to reflect on areas for improvement. How young Black boys are treated in the criminal justice system is one of those areas.

We are in a national crisis. Across the country our justice system is marked by disparate racial outcomes at every stage of the process — especially for those who are most vulnerable, young Black boys. The racial and ethnic disparities that exist in our criminal and juvenile justice systems do not measure up to the standard of treating everyone equitably.

By Anne-Lise Vray, Communications Associate

Human Rights are defined by the Office of the United Nations High Commissioner for Human Rights (OHCHR) as “rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status.” Such rights are protected by the law, including international treaties like the Convention on the Rights of the Child, which the US has signed in 1995 but failed to ratify since then.

A recent survey conducted by the James Madison Institute and the Charles Koch Institute gives deep insight of Floridians’ thoughts on criminal justice reform in their state. The survey results couldn’t have come at a more perfect time. Recently, Florida prosecutor, Angela Corey, lost her chance at reelection in the primary. Corey was notorious for pursuing harsh sentences. She is notorious for failing to get a conviction on George Zimmerman, the man who killed Trayvon Martin. She did a number of other injustices during her eight years in office.  Corey charged a 12 year old boy named Cristian Fernandez with first degree murder of his 2 year old brother, David. Cristian, David, and their other brother and sister had been left at home, without supervision, while his mother was at work. That’s when David received a serious head injury and died. Cristian’s mother came home and took Cristian to school. She would wait eight more hours before taking David to the hospital. While the details around how David was injured are still foggy, Corey immediately deemed Cristian the perpetrator. Cristian was held in an adult jail until his conviction where he sentenced to life without parole. Corey would later fight Cristian’s transfer to a juvenile facility. Corey doubled the number of felony cases in Florida where minors were charged as adults. It would be one of Cristian’s lawyers who challenged and defeated Corey.

So what does her losing the election have to do with this survey?

For one, they show a drastic change in attitude with the Florida population. 72% of Floridians believe that it is time to reform the criminal system in Florida and 64% believe that there are too many nonviolent offenders serving time. The opinions show the possibility that kicking out hard prosecutors means that Floridians want different sentencing practices.  62% of Floridians also said they trust judges over prosecutors to decide if a minor should be charged as an adult. That contradicts Angela Corey’s efforts to increase the number of felony cases for minors charged as adults.

The survey is on par with changing laws in Florida. Recently, the state legislature repealed the “10-20 Life” law that required judges to give mandatory sentences to gun involved offenses. Unfortunately, this repeal will not apply to offenders currently incarcerated, even though 63% of Floridians agreed that it should apply to those already in jail. However, this is still a major step for Florida’s criminal justice reform. Another more preventive law Florida has passed a law regarding mental health and Medicare. This plan requires Medicare to offer comprehensive treatment plans for patients diagnosed with a mental illness. Because people with mental illnesses will have better access to treatment, in the long run, the number of mentally ill people with a criminal record will decrease. Still in discussion in the Florida state legislature is the Direct File bill. This bill would limit the power prosecutors have when deciding to charge a juvenile as an adult. Currently, the law states that if a juvenile, no matter the age, commits a certain offense, such as murder or sexual battery, the prosecutor can send them straight to adult court. Under the new bill, state attorneys can only use direct file for juveniles between the ages of 16 and 18. And the prosecutor can only direct file if it involves the 21 offenses listed in the bill. While the first goal of the bill was to make transfers only to be decided by a judge, supporters of the bill had to compromise in order to move it along. The Human Rights Watch found that Florida has more juveniles transferred into the adult court than any other state. The Florida government has been slow to keep up with public opinion. With new legislation being introduced and passed, hopefully criminal justice reform will begin to take effect.

As I scan social media this week, I’m met with many “milestone” pictures of children on their way back to another year of school.  There are many common threads among these photos,—new shoes, new uniforms, new hairstyles, new smiles with missing teeth, new teachers to learn from and new friends to meet, new books to read and new school buildings to navigate.  But to a tee—all the pictures signify the start of something new and exciting-with parents who tenderly comment on how hard it is to watch their children grow up so fast.

Interspersed among these delightful “back to school” pictures, a quieter and unhappier thread is also unspun.  It’s the stories of children who won’t be returning to school this week; those who have been locked up as adults and housed in facilities where rehabilitation and their future aren’t a priority; where punishment reigns over childhood. It’s the story of Miriam Abdullah in Arizona, who died of suicide in an adult jail shortly after her 18th birthday-she had been there since she was 16-and in isolation since March.  It’s the headline that Brendan Dassey’s case was reversed, after ten years of incarceration and being locked up in an adult facility since he was 16.  It’s the finding from an appellate court in Wisconsin that upholds the decision to try the two young girls (age 12 at arrest) as adults who acted on auditory hallucinations of a fictional character, Slenderman, telling them to harm their friend. 

Juvenile justice systems were created to rehabilitate children, which means their staff are trained to work specifically with youth.  It is a system, that when run well, balances public safety with rehabilitation—an approach that is supported by the vast majority of people across the country.  It means that children under the care of the juvenile justice system have access to education and recreation while incarcerated; that family engagement is considered part of treatment; that mental health and substance abuse treatment is provided to those youth who need it.  That the system sees their role as temporary, and understands the real work of changing lives takes place in the context of home and community.

This is not so in the criminal justice system, that was created to punish adults for breaking the law.  Youth who are transferred to criminal court do not fare well.  Beyond their exposure to violence and vulnerability to sexual and physical assault or lengthy isolation, children in adult facilities lack access to even basic education.   In the rare case that education is offered (11% of jails offer education opportunities) in the months or years that youth are pending trial, it is often only GED preparation; while if they were held in a juvenile facility, they could continue earning high school credits.  For those who managed to finish high school before their arrests, they could use PELL Grants to take a college class if detained in a youth facility—outside of a small handful of pilot programs, this opportunity would not be provided to youth in the adult system.  Despite the fact that research has shown that access to education is a key factor in reducing recidivism, youth who sit in adult jails and prisons receive no such benefit.  

In December 2015, President Obama signed the Every Student Succeeds Act (ESSA), which includes new provisions to strengthen correctional education for youth in juvenile facilities and eligible adult correctional institutions.    Under ESSA, State Education Agencies will receive federal funding if they submit a complete state plan with procedures to evaluate the educational needs of youth in these facilities, better coordinate the transfer of student records and credits, improve reentry planning, and help youth re-enroll back into school or an alternative program upon release.  Unlike juvenile facilities, adult correctional facilities are a lot less likely to meet ESSA eligibility requirements, because far fewer adult facilities provide at least 15 hours of educational programs to youth. 

So, as we start another school year, I ask state governors and legislatures to review their transfer and certification laws in order to serve youth in the juvenile justice system where they are guaranteed greater access to appropriate services.  I also ask citizens to contact their State Education Agency and their State Board of Education, and demand a strong education plan and sound procedures for incarcerated youth under Title I Part D of ESSA.    Research shows that keeping justice-involved youth engaged in their academics reduces recidivism and results in better reentry outcomes. Not only will action on this issues keep your communities safer, but you will provide a second chance to a young person.  In the famous words of the UNCF, “a mind is a terrible thing to waste.”

By Marcy Mistrett

As we approach 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 on the eve of Independence Day. With nearly 95,000 children incarcerated in adult jails and prisons each year, the vast majority of whom being children of color, we have a responsibility to question this concept of liberty in the shadow of our carceral state.

Liberty, defined as “the state of 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 grotesque unequal application in our country: it certainly wasn’t a protected right for slaves, women, or children, nor was it promised to numerous other special populations--immigrants, the disabled, LGBT communities, Indigenous peoples to name a few--at the birth of our country.  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, yet egregious, obstruction of liberty is incarceration.

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, getting married, etc.). This inconsistency begs the question, Is incarceration itself the punishment, or are we sanctioning further punishment once children are incarcerated? Sadly, the answer lies in the latter. 

Our country has become so reliant on punishing law-breakers, that we have decided that the deprivation of liberty is simply not enough.  Instead, we subject these young children to extensive punishment—to long periods of solitary confinement, repeated exposure to violence, sexual assault, and physical abuse involving pepper spray, Tasers, or prolonged shackling, and sexual assault, all on top of decades and 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, when 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 healthcare, for phone privileges, and for  buying 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% will be released by the time they are 25), they continue to face “oppressive restrictions” to their liberty.  As we cite 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 tenant 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

In May, the Oregon Supreme Court made an exemplary decision when they reversed a 2015 ruling made by the state’s Court of Appeals in the State v. J.C.N.-V. case. In State v. J.C.N.-V., the appeals court upheld the initial decision to transfer a 13 year old, J.C.N.-V, who was charged with aggravated murder, from juvenile court to circuit court for criminal prosecution. State law in Oregon permits the juvenile court to waive its jurisdiction and hand over cases to the jurisdiction of the circuit court if it finds the youth to be of “sufficient sophistication and maturity to appreciate the nature and quality of the conduct involved.” This happened to J.C.N.-V., whose case was originally transferred to the circuit court for criminal prosecution, and whose transfer was affirmed by the Court of Appeals.

Enter Marsha Levick, Deputy Director and Chief Counsel at Juvenile Law Center, and Angela Sherbo, J.C.N.-V.’s attorney from Youth, Rights, and Justice. They successfully argued a reversal of the transfer in the state’s Supreme Court, which responded with an avowal that the “sophistication and maturity” of a child is too simplistic a measure for determining whether a transfer from juvenile court to circuit court is warranted. The Court urged the legislature to use a more nuanced approach in dictating the guidelines for any potential transfers.

A couple weeks after this decision, District Attorney of Oregon’s Multnomah County, Rod Underhill, announced that his office will no longer automatically prosecute teens ages 15 to 17 in circuit court for certain Measure 11crimes. Unlike the defendant in State v J.C.N.-V., children charged with Measure 11 crimes do not have the benefit of a hearing before a juvenile court judge; instead they are automatically prosecuted in the adult criminal justice system.  Furthermore, if convicted, they serve the same mandatory sentences that would apply to adults; however, they can begin serving their sentence in a youth prison until they are age 25.

District Attorney Underhill has agreed that if certain considerations are met, his office will be willing to start some Measure 11 cases in juvenile court.  Examples of these considerations include: Whether the teen has no past criminal record, whether he or she didn’t seriously hurt anyone, or whether he or she wants to get treatment or turn his or her life around.  Cases that will now originate in juvenile court would then be bound by the ruling in J.C.N.-V, and judges would have to consider the “sophistication and maturity” of the child before determining whether or not to transfer the child to the adult system.

While the Campaign for Youth Justice advocates that all children’s cases should originate in juvenile court, these are still steps in the right direction, and nice examples of the ways that litigation and practice interface forpositive reforms.  All these efforts combined will hopefully set an example for other states to come around on this issue.

By Anne-Lise Vray, Juvenile Justice Fellow

June is Children’s Awareness Month. One would typically think of a child as a 10 year-old in the prime of his/her life, happily going to school, swinging on the playground with friends, helping parents around the house, growing and learning more every day. Unfortunately, for many American children this is not the reality. In 22 states and the District of Columbia, children as young as 7 can be prosecuted as adults. In fact, fourteen states have no minimum age for trying children as adults. Some states set the minimum age at 10, 12, or 13, which is still way too young.  As the U.S. Supreme Court has found 5 times in the past decade, children are not the same as adults, and Courts need to ensure they are considering the age, maturity, and brain development before issuing adult punishments.  

Children’s Awareness Month is a great occasion to remember these too often forgotten children, and to act on their behalves in order to end the harmful practice of trying, sentencing and incarcerating youth as adults. Instead we should invest in age appropriate approaches that work and tend to the underlying trauma that so many of these youth are exposed to before they ever come in contact with the law. This failed policy of treating children like adults is contradicted by neuroscience leads to poor outcomes for public safety, since youth prosecuted as adults are 34% more likely to recidivate than those handled by the juvenile justice system.

All children deserve to be children, and provided the opportunity to correct bad decisions and afforded second chances.