Legal loophole leads to increase of youth in jails

Washington, D.C.—Despite a federal law that prohibits the incarceration of youth in adult correctional facilities, the number of young people held in jails across the country has exploded by 208 percent since the 1990s, according to a new report released at the national press club by the Campaign for Youth Justice.

States exploit a loophole in federal law, which was designed to protect youth from the proven dangers of adult jails, but only applies to youth in the juvenile justice system.

Congress is considering the reauthorization of the Juvenile Justice and Delinquency Prevention Act (JJDPA) this year, and advocates are asking that all youth younger than 18 be protected from incarceration in adult facilities.

Campaign for Youth Justice Executive Director Liz Ryan said: “Federal law exists to protect youth from being locked up in adult facilities, but too many youth are falling through the cracks. We want Congress to close the loophole, and make sure every young person is treated the same. No youth under 18 should end up in an adult jail before they’ve even had a trial—it’s bad for youth and doesn’t protect communities.”

The study, “The Consequences Aren’t Minor: The Impact of Trying Youth as Adults and Strategies for Reform,” presents research, statuary analysis and case studies to highlight the problems with the policies and practices that treat young people as adults in the justice system. The study examines the laws and data in seven key states, including California, Connecticut, Florida, Illinois, North Carolina, Virginia and Wisconsin.

An estimated 200,000 youth end up in the adult system each year, and 40 states allow or require the jailing of youth in adult facilities before they ever go to trial.

Youth prosecuted as adults are often held in adult jails for months before trial, even though the majority are charged with nonviolent offenses. In one prominent example, a 17-year-old Chicago boy was arrested for “armed robbery” after taking a schoolmate’s gym clothes and detained at the Cook County jail for several weeks.

In Illinois, all 17-year-olds charged in adult court await trial in the adult jail system unless they are able to post bond, no matter the nature of their alleged crime. An estimated 16,000 17-year-olds enter the adult system in Illinois annually.

Sending youth to the adult criminal justice system doesn’t work to reduce crime. In one study comparing the recidivism of youth waived to criminal court in Florida, with those retained in juvenile court, the research found that those in the “adultified” group were more likely to be rearrested and to commit more serious new offenses; they also re-offended more quickly.

The laws are not evenly applied, with youth of color and those without access to adequate legal counsel more likely to end up in adult correctional facilities. Nationwide, three out of four young people admitted to adult prison in 2002 were youth of color. Between 2000 and 2002, 99 percent of the youth automatically transferred to adult court were African-American or Latino. In Chicago, nine out of 10 young people in the county jail are African-American or Latino.

Juvenile judges are frequently excluded from the decision to prosecute youth as adults. Instead, prosecutors and state laws determine which youth end up in the adult system, no matter how minor the nature of the offense.

In 15 states, prosecutors, rather than judges, have the discretion to send youth to the adult system. In other states, including Illinois, laws have lowered the age by which a youth ends up in the adult court, or they are automatically transferred based on the nature of the charge.

Shay Bilchik, director of the Center for Juvenile Justice Reform and Systems Integration at the Public Policy Institute of Georgetown University, said: “As a former prosecutor and head of the Office of Juvenile Justice and Delinquency Prevention, I have had the opportunity to witness firsthand the impact of trying and sentencing youth as adults. While I once supported these laws, their virtual unbridled use has negatively impacted too many young offenders with whom the juvenile justice system could have done a better job in rehabilitating and promoting public safety and youth development. States need to seriously consider reforming these laws, providing strict guidelines and reintroducing the role of the judge in making these jurisdictional determinations.”

Adult jails are not designed to safely hold youth, who are either incarcerated in cells with adults, or separated in forms of isolation that can lead to depression or even suicide. Studies show that youth who are incarcerated in adult facilities are more likely to suffer abuse, become mentally and emotionally ill, and may be rearrested and commit more serious offenses than youth who benefit from the treatment, counseling and services available through the juvenile justice system.

A recent Zogby poll conducted for National Center on Crime and Delinquency finds seven in 10 respondents felt putting youth younger than 18 in adult correctional facilities makes them more likely to commit future crime.

Ned Loughran, executive director of the Council of Juvenile Correctional Administrators, said: “The problem is that we are sending too many youth to the adult court who can be safely and more effectively handled in the juvenile justice system. We have more information and evidence on what works than ever before. Now, we just need to keep this population in the juvenile justice system so they can benefit from all the advances in services and treatment.”

The report urges policy-makers to take advantage of the shift in public opinion and new adolescent brain development research that inspired the Supreme Court to end the death penalty for minors.

The report calls for a ban on the incarceration of youth in adult jails or prisons, and in the rare cases where the seriousness of a crime warrants consideration of prosecution in the adult system, a juvenile court judge should make the decision rather than prosecutors or state law.

Illinois has taken some steps in this direction. In Illinois, changes to the drug transfer statutes in 2005 reduced the number of youth automatically transferred by almost two-thirds. Illinois is considering legislation to raise the age of juvenile court jurisdiction to 18.

Roneka Jenkins, who is 16 years old and attends Thurgood Marshall Academy, said: “Young people need opportunities to turn their lives around, but these policies rob them of their futures. We need to give youth the education and skills to get good jobs and contribute to society. That’s best for everyone.”

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