Vicente R., sent to Guatemala’s Zone 18 detention center when he was sixteen
In the ten years since the adoption and near-universal ratification of the Convention on the Rights of the Child, a growing number of countries have modified their juvenile justice laws to guarantee children the rights set forth in the convention and in other international instruments.
This trend has been most evident in Latin America, where many countries have enacted reforms to bring their legislation into compliance with the convention. Brazil, one of the first to reform its national laws comprehensively in response to the convention, adopted its Children’s and Adolescent’s Statute in 1990. Ecuador and Peru passed Juveniles Acts in 1992, Mexico adopted its Law on the Treatment of Juvenile Offenders in 1991, El Salvador enacted a new juvenile justice law in 1995, and Nicaragua adopted a Children’s Legal Code in 1998. Grounded in the principle that all children possess rights which must be respected by the state, these reform efforts represent a significant departure from earlier legislation directed exclusively at “minors” in “irregular situations” and in need of protection.
In other countries, reforms are under consideration but have not yet been enacted into law. And a large number of countries in the region and elsewhere in the world must still take action to bring their legislation into compliance with the convention.
Where they have taken place, legislative reforms are positive first steps toward greater recognition of the human rights of children. Even so, the gaps between law and practice are often vast. Many children are denied due process, detained under appalling conditions, subjected to violence at the hands of guards and police, and some are even put to death.
Far too often, children around the world are brought to trial and sentenced in ways that violate their rights under the convention (particularly article 40). Human Rights Watch has documented systemic failures to guarantee children legal representation and otherwise provide them with fair hearings in Brazil, Bulgaria, Guatemala, India, Jamaica, Kenya, Pakistan, Russia, and the United States. Of particular concern are sentences that violate the international principle that deprivation of liberty should be a measure of last resort and for the shortest appropriate period of time, and the use of torture or cruel, inhuman, or degrading treatment.
In many cases, children are deprived of their liberty arbitrarily or indefinitely on the basis of vague legal provisions. In Kenya, Human Rights Watch found that street children were committed for years to juvenile correctional institutions after they were found “in need of protection or discipline” in summary proceedings with no legal representation. Similarly, in Paraguay and other countries in the Americas that have not brought their laws into conformity with the convention, children may be detained on the ill-defined basis that they are in a “state of danger.”
In other instances, state authorities simply flout laws intended to protect the due process rights of juveniles. Our 1996 investigation of Bulgaria found that children were often detained in police lockups far longer than the legally permissible periods, without being formally charged, and without any judicial review. In India, we found that police regularly detained street children without charging them with any offense and failed to bring them before magistrates in the time period required under India’s Juvenile Justice Act; beatings are a common feature of police treatment of children in detention. In a 1999 investigation of police practices in Russia, adolescents in various cities told Human Rights Watch that police routinely violated Russian law and international standards by interrogating them in the absence of attorneys.
In Jamaica, Trinidad and Tobago, and elsewhere in the English-speaking Caribbean, juvenile court judges may impose sentences of flogging for certain crimes. In addition, children in detention in these countries may be subjected to corporal punishment as a method of discipline. Similarly, Pakistan’s Hudood Ordinances permit judges to include whipping, usually between fifteen and thirty lashes, as part of children’s sentences; in practice, however, that portion of the sentence appears to be routinely overturned on appeal. In Kenya too, corporal punishment by cane or rod is authorized by law as judicial sentences for children, and as disciplinary measures in correctional institutions for children.
Throughout the world, children are subjected to appalling conditions of confinement that violate international standards, in particular article 37 of the convention. Often held with adults and subjected to violence at the hands of guards and other inmates, children in confinement are frequently denied adequate food, medical and mental health care, education, and access to basic sanitary facilities. These children eventually return to society, meaning that the failure to prepare them for their return is shortsighted as well as cruel, carrying enormous social costs.
The practice of holding children in adult facilities is common in many parts of the world, and exposes children to abusive conditions – including physical and sexual abuse – far worse than those they would have experienced in juvenile facilities. It also violates the convention’s requirement that children deprived of liberty shall be separated from adults. In Cambodia, for example, children are housed indiscriminately with adult inmates and reportedly sexually abused and subjected to other forms of physical and psychological violence at the hands of adults. In Guatemala, Human Rights Watch interviewed children commingled with adults who reported that adult detainees beat and raped them, forced them to give up their clothing, or compelled them to pay money in order to get a place to sleep.
In the United States, between 1992 and 1998, at least forty U.S. states adopted laws making it easier for children to be tried as adults; the U.S. Congress has considered adopting similar measures for juveniles charged with federal offenses. An increasing number of children in the United States now face trial as adults and the prospect of spending six months to a year in pre trial detention in adult jails and prisons, even if ultimately found innocent. Human Rights Watch found that youth held in adult jails in the states of Colorado and Maryland were subjected to violence at the hands of other juveniles, and from adult inmates. They also often did not receive age-appropriate medical and mental health care, adequate recreation, or educational opportunities as required by state laws.
Some countries have taken positive steps to acknowledge and correct abusive conditions of confinement. The South African government initiated a program in November 1997 to keep children out of the country’s prisons, although delays in implementing the program limited its effectiveness. In Bangladesh, the government has readily accepted the need for improvements in conditions of confinement for children in conflict with the law, in particular noting in its 1997 supplementary report to the Committee on the Rights of the Child that “Too many minors are held in jails and police stations alongside adult offenders.” In Jamaica, following the July 1999 release of a Human Rights Watch report condemning the practice of detaining children in filthy and overcrowded police lockups, the government announced that it would move all detained children to juvenile facilities. And in the United States, Human Rights Watch reports prompted the U.S. Department of Justice to investigate conditions in juvenile detention centers in the states of Georgia and Louisiana, resulting in some improvements.
Article 37(a) of the convention unequivocally condemns the use of the death penalty on juvenile offenders, those who were under the age of eighteen at the time of their crimes. Nevertheless, six countries – Iran, Nigeria, Pakistan, Saudi Arabia, the United States, and Yemen – are known to have executed juvenile offenders in the 1990s.
The ten executions of juvenile offenders in the United States during this period represent more than half the known worldwide total, making it the worldwide leader in executing juveniles. Five executions took place in the U.S. state of Texas; the states of Georgia, Louisiana, Missouri, Oklahoma, and Virginia each executed one juvenile offender in the same period. Sean Sellers, executed in Oklahoma in February 1999, was the first offender who was sixteen at the time of the crime to be put to death in the United States in forty years. Seventy juvenile offenders were on death row in the United States as of July 1, 1999.
In positive developments, the highest court of the U.S. state of Florida ruled that the imposition of the death penalty on sixteen-year-old offenders is cruel and unusual punishment in violation of the state constitution; and effective October 1, 1999, the state of Montana abolished the death penalty for those under eighteen at the time of their crimes. As a result, nineteen of the forty U.S. states that permit capital punishment now prohibit the execution of offenders who were sixteen years old and younger at the time of their crimes; fifteen of the remaining twenty-one states restrict that punishment to adult offenders.
Around the world, the law acknowledges the immorality and injustice of imposing death, a uniquely cruel and irreversible punishment, for crimes committed by children. Respect for the rights of children demands that this appalling practice be abolished once and for all.
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| 1) All governments should ensure that children in conflict with the law are deprived of their liberty only as a last resort and for the shortest appropriate period of time. 2) Conditions of detention and incarceration should meet international standards. Children should never be detained with adults. They should be permitted regular contact with their family members, legal representatives, and others from the outside world and should be given access to education, health and mental health care, adequate food, and sanitary facilities. 3) Countries that retain the use of the death penalty should end the practice immediately and amend their legislation accordingly. |