IACHR Presentation of the Report on Children and Adolescents in the United States’

Adult Criminal Justice System

By Alison Gordon
The Inter-American Commission on Human Rights (“IACHR”) held its 169th period of

sessions at the University of Colorado Law School from September 29 to October 5, marking the

first time the commission has held public hearings in the United States outside of its Washington,

D.C. offices, and the first time that hearings have been held at an American law school. Amongst Commented [bS1]: Nice intro

nearly forty sessions regarding alleged human rights violations throughout the Western

Hemisphere, topics included: “Reports of Harassment and Violence against Female Social Formatted: Font: Italic

Leaders in Bolivia”, “Rights of Indigenous Qéqchi Maya Families Affected by Forced Evictions Formatted: Font: Italic

in Guatemala”, and “Rights of Persons with Disabilities in El Salvador”. AndOon the evening of Formatted: Font: Italic

Thursday, October 4, the presentation topicwas of particular interest to juvenile defenders and

advocates for child welfare—the IACHR made the official presentation of the Report “Children Formatted: Font: Italic

and Adolescents in the Adult Criminal System of the United States.

Jefa de Gabinete (Chief of the Cabinet) Marisol Blanchard, President of the IACHR

Margarette May Macaulay, and the First Vice-President of IACHR, Commissioner Esmeralda A.

De Troitoño presented the report, which was prepared following a March 2013 hearing during

the 144th period of IACHR sessions, where the Commission addressed the impact of

incarcerating persons younger than eighteen in adult facilities. The resulting report addresses the

very high number of children who enter the criminal justice system for adults in the United Commented [bS2]: For adults or AS adults?

States, and the additional violations that transpire as they are confined in adult prisons. The

recommendation of IACHR was reiterated again at this giving of the report: that the states

strengthen efforts to respect and ensure rights of children who come into contact with the

criminal justice system. Juveniles within American borders are theoretically guaranteed special

protections, in addition to those of life, liberty, and due process, but once they are determined to
be treated as an adult, they lose these special protections. The report is concerned with children

stripped of rights following a subjective legal determination and the implications of that process

within the framework of international law.

The United States is one of only two countries who that has not ratified the Convention

on the Rights of Children, has failed to adopt the internationally recognized definition of juvenile

status—any person under age eighteen—within its laws, and has not recognized the rights and

guarantees granted to children as part of international human rights: a right to non-

discrimination, to be heard, and to full development. The Convention on Rights of Children Commented [bS3]: Maybe break this into 2 separate
sentences.
establishes that justice must specialize on rights of children, and the Universal Declaration on

Human Rights itself recognizes the need for special protections for children and adolescents.

The adult criminal justice system is not prepared to serve this population of juveniles; the

system will not provide the care these juveniles need while the juvenilesthey are locked up with

adults. Beyond the adult system’s inability to assist in their rehabilitation, it perpetrates active

harm upon them: jJuveniles incarcerated in adult facilities are five times more likely to

experience rape and/or abuse and two times more likely to experience abusive treatment by

guards, as compared to juveniles incarcerated in juvenile facilities. Children incarcerated with

adults are four to five times more likely to commit suicide than those in the juvenile system, and

children who enter the adult system demonstrate higher recidivism rates than those adjudicated

as juveniles.

How a child may enter the adult system differs on a state-by-state basis: direct file

jurisdiction allows criminal charges against children to be filed immediately into adult court at

the prosecutor’s discretion; transfer jurisdiction allows the matter to be filed into juvenile court

and sent to adult court by the judge’s discretion; and “once adult, always adult” statutory
schemes provide that a child who is tried in adult court once always remains an adult in the eyes

of the law. These mechanisms, which as turningtransform a child into an adult by way of a mere

legal fiction, are applied inequitably: bBlack children represent 16% of the total youth population

in the U.S., yet they comprise 28% of all youth arrested, 35% of youth transferred to adult courts,

and 58% of youth sentenced to confinement in adult prisons.

n were Civil Society RepresentativesBrian Evans, the State Campaigns Director at the

Campaign for Youth Justice, present as a Civil Society Representative, compared methods of

filing children into adult court: transfer jurisdiction, at least allows an hearing opportunity for a

hearing, unlike direct file. In the absence of a state that doesn’t transfer juveniles, states that only

use judicial transfer represent best practices: California, Hawaii, Kansas, Missouri, and

Tennessee. Thirteen states once tried all sixteen and seventeens-year-olds as adults, but that

practice now only occurs in four, and Vermont has raised juvenile court jurisdiction for

misdemeanors to age twenty. Pursuant to New York’s theirRaise the Age law, as of October 1,

2018, the state no longer automatically charges all sixteen-year-olds as adults, and in October

2019, will do the same for seventeen-year-olds. He cautioned that while amongst states, juvenile

justice is improving in some respects, stark racial disparities remain.

Civil Society Representative Andrew Stevenson, Attorney-Adviser at U.S. Department of

State, expressed his support for the Commission. Thomas Weatherall, an Alternate

Representative from the U.S. Mission to the OAS communicated the National District Attorneys

Association’s concern that focusing on the human rights of these juvenile leaves behind their

victims and threatens public safety. While some adolescents commit serious crimes, the

prosecution of children as adults occurs for lower crimes, such as property crimes. Weatherall

claimed that statistics regarding youth incarceration in adult facilities should clarify that less than
one hundred children are incarcerated in prisons, while about three thousand children are in jails.

The government attempts to address racial and ethnic disparities through The Office of Juvenile

Justice and Delinquency Prevention, which promulgates four core requirements for eligibility for

a formula grant funding prevention and intervention programs: reduction of disproportionate

minority contact; deinstitutionalization of status offenders; separation of juveniles from adults in

secure facilities; and removal of juveniles from adult jails and lockups.

Finally, the IACHR welcomed two youth speakers who brought a unique based on their

direct lived experiences. Anlyn Addis, who works with ACLU of Michigan's Juvenile Life

Without Parole Initiative, brought these youth to speak in collaborationive with her organization,

the Youth Justice Fund. Elvir Purovic was incarcerated in prison at the age of fifteen and told the

audience that “prison at fifteen means I had no human rights. I couldn’t get my GED until

sixteen but could be locked up with adults at fifteen. I lost my childhood at fifteen, I lost my

piece of mind, my serenity.” Dominic Passmore was fourteen when he was tried as adult for

armed robbery. He was sentenced to nine to fifteen years in adult prison, where he obtained his

GED, left prison on earliest release, and is now certified as a personal trainer. Dominic shared “I

used to stand inside my room, my cell, and see guys in suits. I used to think ‘maybe this guy is

important and we’re going to get some kind of change.’ But help never came.” Dominic said that

regardless of advances mitigating the conditions of juvenile confinement in adult facilities, “[i]t’s

still kids in prison—no matter what the stats say, the number of children in prison is ridiculous.”

Both Elvir and Dominic shared powerful spoken word poetry, speaking power to

struggles they’d overcome. Tearfully, the Commissioner Esmeralda A. De Troitoño asked if both

young men would provide their poems to put on the IACHR website, and concluded, “This

meeting was not just about the report; as members of society, we need to recognize the value of
all human beings…We must work to ensure that all souls together, regardless of race or color,

can reach love.”