Juvenile Justice Report Card

In the days and months following the Supreme Court Decision for Miller and Jackson, many states have been debating, contemplating and trying to find their way forward.  It seems that at the point of victory all of the momentum stopped.  There are discussions about retroactive sentence reductions, prospective sentence reforms and what to do with kids who come in conflict with the law.  

Defense attorneys, advocates and juvenile experts have been lobbying for the kinds of sweeping changes that COULD come from all of the recent rulings, exoneration's
and the medical findings.  We seemed to have lost our nerve....at the time of the last battle we dissolved into confusion.   However, changes continue to happen abroad as countries began to reform their juvenile practices.  Below is a report on international children's rights from the International Juvenile Justice Observatory: (emphasis in red, mine)  Also follow this link to view "TALKING JUSTICE: TALKING SENSE"

The International Juvenile Justice Observatory held its Fifth Biennial Conference earlier this week, and the trends are encouraging.
I. Deincarceration
The fiscal crisis, combined with an expanding awareness and understanding of human rights, is propelling a dramatic reduction in the use of confinement for children in conflict with the law in the U.K. and in Russia, according to a summary by Dr. Frieder Dunkel. This reduction in the use of confinement mirrors the growing deincarceration movement in the U.S. Specific trends include:

• U.K. – 40% reduction in the use of incarceration in the United Kingdom over the past five years. Notably, the youth riots a year ago did not overturn these reforms,
• Almost no youth incarcerated in Sweden,
• In Germany the majority of violent and sex offenders receive a suspended sentence (probation) with good results on reoffending,
• And a stunning 87% reduction in Russia – down from 18,677 in 2001 to 2,400 in 2012 for youth age 14-18. This was fueled by an intentional deincarceration strategy.

In Central and Eastern Europe these deincarceration trends are accompanied by a new vision, a welfare oriented approach toward children in conflict with the law.

Nations struggle with common issues as they reduce reliance on incarceration:

• Reforming laws and practices to ensure proportionality of sentences with incarceration used only as a last resort for as short a time as possible
• Shifting savings from prison downsizing to community alternative services to ensure a comprehensive continuum for prevention and intervention
• Expanding the use of evidence based practices
• Expanding the use of diversion at the earliest stage
• Sustaining reforms through documentation of outcomes
• Humanizing conditions of confinement for those few children who meet the last resort standard 

II. Age of Jurisdiction - 18 – and higher.
It’s worth noting again and again that the U.S. stands alone in its widespread practice of trying and sentencing children as adults.
The international standard of 18 as the age of majority is in full force in comparable “developed” nations. While there is some pushback to create exceptions, there is also a vigorous debate over the need to expand the concept of Child to include youth in the upper teens and early twenties.
What is a matter of debate is the age of lower jurisdiction, which is not specifically defined in the CRC. An emerging consensus is settling on the age range of 14 or higher, as recommended in the European Rules.
Of course, it goes without saying that if a nation does not try its children in adult court, then adult sentences are also eliminated as possibilities. The U.S. stands alone in its widespread use of natural life sentences and other extreme adult sentences.

III. Counsel for Children in Conflict with the Law
One emerging trend is a movement of specialization of lawyers for children in conflict with the law. This was a discussion in Italy two years ago. In France, all youth court workers – judges, lawyers, educateurs – must receive specialized training.
In France, the law states that every child must be represented by counsel – this requirement under laws in place since February of 1945. There is a well-organized children’s defense movement in France, begun in 2002. The defense lawyers mobilize against repressive measures, with specific concerns over measures like “correctional courts” for minors age 16 and older.

Counsel during interrogation - further – nations take seriously the right to counsel at all stages – including the initial stage of interrogation.

A decision from the European Court of Human Rights, ruling in the case of Saldez v. Turkey, on access to counsel during interrogation notes, includes reference to Article 37 of the Convention on the Rights of the Child, and notes in part :
...an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused ...http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-89893#{"itemid":["001-89893"]}

The court held the lack of legal counsel during police custody constituted a violation of Article 6, Section 3 of the European Convention on Human Rights.

The U.S. stands increasingly alone in its practice of interrogating children without a lawyer.
The U.S. stands increasingly alone in its practice of using a confession gained without counsel to try a child in adult court.

IV. Ombudsman with 24/7 access to address concerns over Conditions of Confinement for those meeting the Last Resort standard.
Concerns over inadequate conditions of confinement were widespread. The U.K. former ombudsman (Sir Albert Aynsley Green, Former Children’s Commissioner for U.K.) recommended that each nation legislatively create an ombudsman with right of 24/7 access to all youth facilities, and further encouraged national ombudsmen to organize to develop uniform practices and standards.

V. Concerns over private funding of community based alternatives for prevention and intervention.
A particularly lively discussion was held over the variety of private funding schemes under consideration, particularly in the U.K. (note – similar schemes are emerging in the U.S.).

One presenter described the Marketization of youth justice products. He noted this is a big movement in the adult system, and emerging in youth systems.

The private funding schemes essentially involve utilizing savings from reductions in reoffending to pay independent providers to further reduce reoffending. Two schemes described included Payment by Results and Social Impact Bonds. Essentially, private investors take the risk by providing funding upfront for diversion programs – if the reoffending reduction levels are met the payoff is substantial, but if not met then the investor loses.

While the impetus for these schemes is to promote greater efficiency with an emphasis on outcomes, concerns were expressed that this could widen the net through pressure from investors to meet reoffending marks by serving low risk youth.

While these private funding schemes may be emerging, public funding continues. There does seem to be an expanding array of publicly funded prevention and intervention services in the U.K. thanks to the hard work of the Youth Justice Board, and an interest in public reinvestment and realignment similar to reforms including Reclaim Ohio and Redeploy Illinois in the U.S.

VI. Ratification of the Convention on the Rights of Child nearly universal
The U.S. failure to ratify the Convention on the Rights of the Child (ratified by every nation except Somalia, South Sudan, and U.S.), is unfathomable to the rest of the world, and undermines our commitment to human rights.

Our U.S. reliance on youth incarceration (5 times the rate of any other nation) and our widespread use of adult trial and sentencing of youth as adults are such flagrant violations of fundamental international concepts of human rights for children in conflict with the law that they are shocking to much of the world.

To clarify our standing in the international community, the delegate from Argentina reporting on trends in South and Central America suggested the UNICEF representative should not be from the U.S. since we do not ratify the CRC.

We must reinvigorate the movement in the U.S. to Ratify the Convention on the Rights of the Child.

We must move forward with retroactive legislation to rehabilitate and release juvenile offenders who have received life sentences and long term sentences equivalent to life.  

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