FALSE HOPE

8CHILDREN AS YOUNG AS
YEARS
OLD
HAVE BEEN
PROSECUTED
AS ADULTS
as young as five years old have been removed from the classroom
in handcuffs for throwing temper tantrums. 162 Others
have been arrested for throwing an eraser at a teacher or
having rap lyrics in a locker. 163
This early and unnecessary police intervention puts kids
on a harrowing path. Juvenile prisons are not centers of
rehabilitation. As Vincent Schiraldi, former Commissioner
of the New York City Department of Probation, stated, even
in juvenile facilities, “horrific institutional conditions are
common, not exceptional.” 164 Removed from their families,
children in these prisons are denied a meaningful education
and adequate mental health treatment, have been held in
solitary confinement, and are sometimes physically and
sexually abused. 165
While these conditions are problematic in and of themselves,
many children are processed in the much harsher adult criminal
justice system, where they receive adult sanctions and,
once sentenced, can find themselves incarcerated alongside
adults. While there has been a critical shift against sentencing
children as adults over the past 10-15 years (including
but not limited to the declining use of juvenile life without
parole), many people who were sentenced as juveniles before
this shift took place are still trapped in prison, where they
grew up, with limited opportunities for release.
Years of research on youth incarcerated with and as adults
demonstrates that adult prisons do not provide young offenders
the range of services appropriate for their age and
level of development. Worse, they directly threaten the safety
of these children. Compared with children who are sent to
juvenile facilities, teenagers in adult prisons are 36 times
more likely to commit suicide in an adult facility than in a
juvenile facility; 166 are significantly more likely to be sexually
assaulted by other prisoners or staff; 167 are more likely to face
physical violence, including attacks with a weapon; 168 and
are more likely to commit increasingly violent offenses upon
release if housed with adults. 169 Policies that transfer young
offenders to the adult criminal justice system for violent
offenses, according to the Centers for Disease Control and
Prevention, “do more harm than good.” 170
For many young offenders, entering and growing up in prison
has been a traumatic experience that took years for them to
adjust to, even if rehabilitative programming was available.
Harold Kindle, a 43-year-old Black man serving a life sentence
in Texas for murder, recalls coming to the adult system
at age 16: “Being young you really had to fight; there were
people who preyed on weak individuals. At that age, you
aren’t mature enough to handle the manipulation.”
Jose Velez, a 53-year-old Latino man incarcerated in New
York, said that in his first few years in prison, being around
the violence made it hard to focus on his own growth: “I did
16 years in Green Haven and saw seven men murdered. I’m
here to be rehabilitated but all I’m seeing is violence.” 171 Mr.
Velez was 17 at the time of his offense.
Fourteen states have no
minimum age for when a child
can be prosecuted, tried, and
punished as an adult.
Eric Campbell, a 37-year-old Black man who was sentenced
to life for felony murder at 15 years old, recalls that even in
a facility with younger prisoners (where he was held until
he was 20), there was a lot of violence that affected him and
others. Mr. Campbell, who was convicted of murder in the
second degree for a felony murder during an armed robbery
in which he was not the triggerman, said this was his first
offense and that he had never been involved in any physical
fights until he went to prison:
They called it “gladiator school.” You have 15- to
20-year-olds in one facility, no library, nothing to
entertain you, and the violence—we fought for
everything. The officers didn’t make it any better.
Growing up, I never got into a fight, but I learned
to fight [in prison]. The first time you get hit, you
decide you never want that to happen again. You
never want to wake up with a black eye. And you
become aggressive. It becomes exhausting. 172
School helped, says Mr. Campbell, and he quickly got his
GED and enrolled at Ithaca Community College. “But after
school it was back to war. Back to a fighting zone,” says Mr.
Campbell. “A lot of friends never made it out mentally from
that experience.” 173
b. Youth in Adult Court, Facing Adult and Lifelong
Punishments
Fourteen states have no minimum age for when a child can
be prosecuted, tried, and punished as an adult. 174 Children
as young as eight years old have been charged and prosecuted
as adults for committing a crime. 175 Very young children
cannot generally be tried in adult court without a judicial
determination that the adult process and sanctions are appropriate.
But often that critical determination is made with
very limited process and, in some states, with a presumption
that the child will be treated as an adult. 176
Whereas in the majority of the United States, youth under
18 at the time of their offense are treated as juveniles, in nine
states—Georgia, Louisiana, Michigan, Missouri, New York,
North Carolina, South Carolina, Texas, and Wisconsin—17-
year-olds are automatically treated as adults in the criminal
justice system. 177 In New York and North Carolina, all
16-year-olds are automatically prosecuted as adults. There
is movement in some of these states to raise the age of
automatic adult criminal responsibility. For example, New
York’s governor, Andrew Cuomo, supports raising the age
of criminal responsibility to 18 years. 178 A measure to raise
the age to 18 in Texas failed to pass before the end of the
2015 biennial legislative session, despite strong momentum.
Advocates plan to renew their efforts for the 2017 session. 179
However, some of the proposed measures, including New
York’s and Wisconsin’s, would limit raising the age to individuals
charged with nonviolent offenses, 180 and these bills
would not prohibit the transfer of a child to adult court after
a hearing or other procedure. Thus, some 13- and 14-yearolds
will continue to be processed through the adult system,
and 16- and 17-year-olds charged with serious, violent offenses
will continue to receive the longest sentences in high
security facilities.
On the other hand, some states are beginning to recognize
that young people should not be treated as adults and that
even older teenagers deserve the benefit of a more rehabilitative
system. 181 For example, Connecticut is considering
raising the minimum age at which a person can be tried as
an adult to 21 years old. 182 In a recent unpublished decision,
one court in Illinois has also suggested that the Supreme
Court’s reasoning in Miller and Graham may apply to other
young offenders facing severe sentences. In considering life
without parole for a 19-year-old, the court observed:
Although the Court in Roper delineated the division
between juvenile and adult at 19, we do not
believe that this demarcation has created a bright
line rule. . . . Rather, we find the designation that
after age 18 an individual is a mature adult appears
to be somewhat arbitrary. 183
Similarly, a Washington state court held in State v. O’Dell
that an 18-year-old’s youth at the time of the offense was
a mitigating factor and supported a sentence “below the
standard range applicable to an adult felony defendant.” 184
These few experiments with raising the age at which a young
person receives the harshest punishments may be few and far
between in the United States, but around the world, appreciation
that young people involved in crime need help—not
the most extreme punishment—is gaining currency.
28 AMERICAN CIVIL LIBERTIES UNION FALSE HOPE: HOW PAROLE SYSTEMS FAIL YOUTH SERVING EXTREME SENTENCES
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