Press Release

IACHR Presents Report on the Situation of Children in the Adult Criminal Justice System in the United States

September 27, 2018

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Washington, D.C. - The Inter-American Commission on Human Rights (IACHR) is presenting a report today entitled “The Situation of Children in the Adult Criminal Justice System in the United States.”

A very high number of children are being tried as adults in the US criminal justice system, and are being arrested and deprived of their liberty at adult penitentiaries, often in the same areas as adults, which is in violation of their basic rights to special protection and to be tried in a specialized juvenile system. The report examines the current status of children being tried within the criminal justice system and the conditions in which they are being held in adult prisons. Treating child criminal defendants as adults is mainly due to the failure to establish a federal legal definition for “child” that would allow the fundamental human rights of persons under the age of 18 to be protected.

Historically, the United States played an important role in promoting and establishing a specialized approach to youth within the criminal justice system, with the aim of rehabilitating, rather than simply punishing, young people who are convicted of an offense. The world’s first juvenile court was created in the US state of Illinois in 1899, and within 25 years all but two of the other states had followed suit and established similar juvenile justice systems.

However, the Commission notes with grave concern that this began to change in the 1980s. By 1990, many states across the US had passed regressive changes to their legislation and policy with regard to children who come into contact with the criminal justice system. These changes varied in terms of how they were implemented, but the overall trend was to restrict access to rehabilitative juvenile justice systems.

The Commission observes with concern that, as a result of state laws requiring or allowing young people in conflict with the law to be tried as adults, as of 2016, an estimated 200,000 children and adolescents were tried in adult criminal courts each year in the United States. Since then, these numbers have decreased significantly, even though the majority of US states still have laws, policies, and practices in place that enable them to incarcerate children in adult facilities. The rights of children and adolescents who are accused of committing crimes in the US are not duly protected during trials. In particular, the IACHR has received information regarding the absence of specialized legal counsel; children being allowed to waive their right to legal representation; the fact that children may spend long periods of time in prison waiting to hear the outcome of their cases; and the possibility of many young people ending up in the adult prison system as a result of plea bargaining agreements, which they enter into without fully comprehending the consequences of these.

Likewise, the report points out that all measures that the United States applies to children in conflict with the law must be consistent with the main objectives of a juvenile justice system, which are to rehabilitate children according to their specific developmental needs and to reintegrate them into society, enabling them to play a constructive role within it. All levels of state legislation should mandate that a child should only be deprived of liberty as a last resort and for the shortest period of time possible, in facilities that are operated in keeping with the rehabilitative aim of juvenile justice.

“The Commission reminds the United States that criminal proceedings against a child accused of crime must be conducive to their best interests and conducted in an atmosphere of understanding, allowing the young person to participate and express themselves freely at every stage of the proceedings,” said Commissioner Esmeralda Arosemena de Troitiño, IACHR Rapporteur on the Rights of Children. “Legislation and public policies on this issue should create and prioritize meaningful alternatives to the deprivatization of liberty which promote the social integration and success of children, adolescents, and young people. According to international law, no child shall be incarcerated in adult facilities. The United States must comply with this obligation,” she added.

The IACHR rapporteur for the United States and president of the organization, Commissioner Margarette May Macaulay, noted that “international human rights bodies have observed that strategies focused on harsh penalties and law enforcement are ineffective as ways to reduced juvenile crime and gang activity and also violate children’s rights. When addressing communities targeted by violence and criminal activity, states’ responses should be based on a holistic approach that seeks to identify the causes of delinquency and prevent it through measures that address both individual adolescents’ needs and their socioeconomic environments.”

The IACHR calls on the US Government to comprehensively reform those laws and practices that cause youths to be tried in the criminal justice system rather than the juvenile one, including adopting a federal definition of a child as being any person under the age of 18.

“This report contains specific recommendations for the United States government, which include providing children special protection appropriate to their age and stage of development, and adopting, as a basic human right, the fundamental commitment to protect children who are subject to its jurisdiction in accordance with the definition of a child that is set out in international law. This may require the enactment of federal legislation to establish a uniform definition of a child as any person under the age of 18,” President Macaulay added. “The IACHR will be monitoring compliance with all these recommendations.”

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 213/18