I. Background: Kids in an Adult System
[C]hildren are constitutionally different from adults … [J]uveniles have diminished culpability and greater prospects for reform … [and] are less deserving of the most severe punishments … [C]hildren have a lack of maturity and an underdeveloped sense of responsibility[;] … [c]hildren are more vulnerable . . . to negative influences and outside pressures[;] … [a]nd … a child’s character is not as well formed as an adult’s.
—Miller v. Alabama, United States Supreme Court, 2012 (No. 10 ‐ 9646, slip op. at 8 (2012)).
For much of the last century, people under the age of 18 who came into conflict with the law in the United States were detained (when necessary), tried or adjudicated, and held accountable in the juvenile justice system. In rare cases, and if in the best interests of the child and the public, juvenile court judges could waive a delinquency case into the adult criminal justice system. But this was far from common.
Though they have since declined, in the late 1980s and through the mid-1990s, rates of some categories of juvenile crime, particularly serious violent crime, increased significantly. Concern about this development led to a proliferation of new legal mechanisms for subjecting children to criminal trial and punishment as if they were adults. The stated goal of most of these policies was deterrence through retributive punishment: “adult time for adult crime.”
As a result, each year tens of thousands of adolescents are now treated as adults. How young people come to be charged, detained, and punished as adults, however, is a function of a complex thicket of state and federal law and policy. There is no single approach within or among states. Yet the consequences for young people treated the same as adults are profound.
Youth Charged as if Adults
Nationally, young people held in adult facilities are charged and convicted of offenses ranging from drug and property crimes to the most serious violent crimes. The most common mechanisms for imposing “adult time for adult crime” include offense-based exclusion from the juvenile justice system, prosecutorial “direct-file” of youth cases in the adult system, and “once an adult always an adult” laws. For many young people, entering the adult criminal justice system is a path of no return, as not all states have mechanisms to transfer or waive jurisdiction back to the juvenile system, or to impose a blended sentence of punishments in both the juvenile and adult systems. Yet some evidence suggests that many adolescents charged as if adults are not actually sentenced to time in prison.
Racial and socioeconomic disparities are pervasive within the criminal justice system. As Human Rights Watch has documented, in California, Connecticut, and Pennsylvania, black adolescents are significantly more likely to be serving a sentence of life without parole than white adolescents. Other studies have found that minority adolescents receive harsher treatment than similarly-situated white adolescents at every stage of the criminal justice system. Within the juvenile and adult criminal justice systems, young people of color are disproportionately represented at every stage, from arrest to sentencing.
People with scant financial means are also often unable to afford bail, and as a result end up spending lengthy periods in pre-trial detention. Consequently, economically disadvantaged adolescents, including those who are never convicted, can endure substantial adult jail time. These racial and socioeconomic disparities are interconnected: in New York City in 2010, blacks and Hispanics constituted 89 percent of all pretrial detainees held on bail of $1,000 or less.
Many of the young people interviewed for this report were accused, tried, or convicted for serious crimes, even homicide. Human Rights Watch and the American Civil Liberties Union interviewed more than a dozen young people serving life without parole for murder or felony murder. But Human Rights Watch and the American Civil Liberties Union also interviewed young people arrested, tried, or convicted of non-violent offenses, drug, and property crimes. For example, of the 26 young people interviewed in Florida prisons, five were convicted of non-violent offenses, such as burglary or drug possession.
Yet, regardless of their conduct, it is well established that adolescents have a potential for development and rehabilitation that is distinct from that of adults. In addition, adolescents deprived of their liberty have significant developmental needs and rights that are distinct from those of adults.
Youth Are Different
The cornerstone principle of the juvenile justice system in the United States is the idea that young people are different from adults. This is a reflection of psychological and physiological facts about how adolescents and their needs grow and change, as they become adults; it is also a principle of international and domestic law. The juvenile justice system seeks to rehabilitate young people and facilitate their development so that they may be reintegrated into society. The adult criminal justice system, with its focus on punishment, does not unequivocally prioritize rehabilitation, though the law of some states and international human rights law mandate it.
Young people have needs that differ in nature and degree from those of adults because they are still developing physically and psychologically. These include specific physical needs for exercise and a balanced diet; as well as special psychological, social, and emotional needs. “As a transitional period,” reports one study, “adolescence is marked by rapid and dramatic [individual] change in the realms of biology, cognition, emotion, and interpersonal relationships and by equally impressive transformations in the major contexts in which children spend time.”
Physiological Differences and Needs
During adolescence, the body changes significantly, including through the development of secondary sexual characteristics. Boys and girls gain height, weight, and muscle mass, as well as pubic and body hair; girls develop breasts and begin menstrual periods, and boys’ genitals grow and their voices change. The American Academy of Pediatrics therefore recommends a spectrum of age-differentiated examinations and assessments for adolescents related to physical, dental, and vision care. This includes developmental screenings (and health care needs) that differ from early, middle, to late adolescence.
Psychological Differences: Impulsivity, Capacity for Change, and Developmental Needs
Recent scientific findings revealing that the human brain goes through dramatic structural growth during teen years have overturned earlier assumptions regarding the completion of brain development at early adolescence. These findings have significant implications for our understanding of teenagers’ volition and culpability, their capacity to change and develop, and their psychological needs.
The most dramatic difference between the brains of teens and young adults is the development of the frontal lobe. The frontal lobe is responsible for cognitive processing, such as planning, strategizing, and organizing thoughts and actions. Researchers have determined that one area of the frontal lobe, the dorsolateral prefrontal cortex, is among the last brain regions to mature, not reaching adult dimensions until a person is in his or her twenties. This part of the brain is linked to “the ability to inhibit impulses, weigh consequences of decisions, prioritize, and strategize.” As a result, teens’ decision-making processes are shaped by impulsivity, immaturity, and an under-developed ability to appreciate consequences and resist environmental pressures.
The malleability of an adolescents’ brain development implies that teens through their twenties may be particularly amenable to change and rehabilitation as they grow older and attain adult levels of development. This malleability also raises questions about the effects of stress and trauma on adolescent development during this formative period.
As detailed in section II, the particular physical and psychological characteristics of adolescents make solitary confinement particularly detrimental to healthy development and rehabilitation.
Adult Detention Regimes
In the United States, many of those accused or convicted of criminal offenses are held in jails or prisons. Prisons generally hold only those convicted of crimes and sentenced to more than a year of incarceration. Based on the available data, Human Rights Watch and the American Civil Liberties Union estimate that in the last 5 years, more than 93,000 young people under age 18 were held in adult jails and that more than 2,200 young people under age 18 were held in adult prisons every year (see Appendix 1 for detailed information and additional numbers). While some young people turn 18 before they enter prison, others are not sentenced to spend time in prison, making the high numbers of young people held in jail particularly alarming.
State Law and Practice - Jails
Once charged in the adult criminal justice system, adolescents in many states are taken to adult jails. Some states, such as Wisconsin, mandate that all individuals charged in criminal court be detained in adult jail pre-trial. Once detained in adult facilities, some states require that young people under 18 be kept separate from adults in pre-trial facilities (often mandating separation by “sight and sound”). Other states leave it to individual facilities to sort out how and whether young people need to be protected. Some facilities separate young people of certain ages from adults. In some jails in Michigan (where 17 year olds are considered adults in the criminal justice system), for example, 16 year olds are generally separated from adults while 17 year olds are held with adults.
Federal law—the Juvenile Justice and Delinquency Prevention Act (JJDPA)—creates financial incentives for states to treat young people differently from adults, including by diverting young people subject to the jurisdiction of the juvenile justice system (and certain categories of misdemeanants) from adult facilities.  Adolescents who are protected by the federal law must either never be held in adult facilities (in the case of status offenders  ) or be moved from adult facilities within 6 hours (and must be sight and sound separated from adult inmates while there).  However, this law is not currently interpreted to cover adolescents who are charged with felonies in the adult system, leaving youth protected only by state law. 
State Law and Practice - Prisons
In most states, young people who are convicted as if adults and sentenced to more than a year of incarceration are then sent to prison. Some state prison systems have special “youthful offender” facilities that serve some proportion of the youth admitted to prison who are under a certain age (such as under the age of 22 in Pennsylvania). In some states, such as Florida, judges and corrections officials can designate young people as “youthful offenders” for the purposes of admission to these specialized programs; in other states, young people convicted of some serious offenses are sometimes excluded from eligibility. In some states, a portion of young people under age 18 in the prison system are held in the general adult population.
In some states, adult criminal courts have the authority to blend the sentences of young people convicted of crimes such that they begin their sentence in the state system designed to house juveniles, but can be transferred into adult prison in certain circumstances. The federal government, by contrast, makes arrangements to hold all adolescents post-conviction in facilities overseen by the relevant juvenile justice system.
Risks and Harm to Youth in Adult Facilities
Doing time in jails and prisons is hard for anyone. Jails and prisons are often tense and overcrowded facilities in which all prisoners struggle to maintain their self-respect and emotional equilibrium in the face of violence, exploitation, extortion, and lack of privacy; stark limitations on family and community contacts; and few opportunities for meaningful education, work, or other productive activities. But doing time in jail or prison is particularly difficult for young people, who often constitute a very small proportion of the population.
Adult jails and prisons that house adolescents face significant obstacles to keeping adolescents safe and ensuring that they receive developmentally appropriate services—even the limited services that some states mandate by law—when using staff trained and facilities designed to manage adults. Jail and prison recreation yards are designed for adults; doctors and mental health professionals are rarely specialized to treat children. The lack of age-appropriate services and facilities is further compounded by the limited availability of education or rehabilitative programming available in jails and prisons.
Young people held in the same facility as adults face a very high risk of physical or sexual abuse. Studies suggest that adolescents who enter adult prison while they are still below the age of 18 are “five times more likely to be sexually assaulted, twice as likely to be beaten by staff and fifty percent more likely to be attacked with a weapon than minors in juvenile facilities.” Some have argued that the increased exposure of young people to violence in adult facilities may increase the likelihood that they will exhibit violent behavior upon release. While causation is difficult to establish, some data suggests that recidivism rates are significantly higher when young people are held with adults. A report published by the Centers for Disease Control found that “[a]vailable evidence indicates that transfer to the adult criminal justice system typically increases rather than decreases rates of violence among transferred youth.”
 Even when youth crime rates were at their highest, in the early 1990s, judicial waiver never exceeded 2 percent of all delinquency cases. United States General Accounting Office, “Juvenile Justice: Juveniles Processed in Criminal Court and Case Dispositions,” August 1995, http://www.gao.gov/assets/230/221507.pdf
 Many commentators warned against the rise of the so-called “‘super-predator” youth. John DiIulio, How to Stop the Coming Crime Wave (New York: Manhattan Institute, 1996), p. 1. The analysis of data on crime rates is complicated. See, for example, James P. Lynch, Office of Juvenile Justice and Delinquency Prevention, US Department of Justice, “Trends in Juvenile Violent Offending: An Analysis of Victim Survey Data,” October 2002, https://www.ncjrs.gov/pdffiles1/ojjdp/191052.pdf (accessed June 7, 2012).
 For more information about the variety of mechanisms to try youth, see Office of Juvenile Justice and Delinquency Prevention, US Department of Justice, 1999 National Report Series, “Challenging the Myths,” https://www.ncjrs.gov/pdffiles1/ojjdp/178993.pdf.
 “P.A. Legislature: House to Weigh Bill on Violence,” The Vindicator, October 24, 1995. In the summer of 1993, for example, Colorado legislators wrote, debated, and passed a broad overhaul of criminal laws in just 10 days during an extraordinary session, and radically transformed the state’s criminal justice system as it related to youth. This was dubbed the “summer of violence.” “Young Guns: Growing Number of States Get Tough,” Associated Press, October 21, 1993; “Summer of Violence Leaves Denver Demanding Answers,” Associated Press, July 29, 1993. Wisconsin and New Hampshire lowered the upper age of juvenile court jurisdiction, deeming adulthood to begin at 17, not 18, for purposes of criminal prosecution. Patricia Torbet et al., Office of Juvenile Justice and Delinquency Prevention, US Department of Justice, “Juveniles Facing Criminal Sanctions: Three States that Changed the Rules,” April 2000, https://www.ncjrs.gov/pdffiles1/ojjdp/181203.pdf (accessed June 7, 2012), pp. xi-xii. By 1997, all states but three (Nebraska, New York, and Vermont) had changed their laws to make it easier and more likely that child offenders would stand trial and be sentenced in adult criminal courts. Howard N. Snyder and Melissa Sickmund, Office of Juvenile Justice and Delinquency Prevention, US Department of Justice, “Juvenile Offenders and Victims: 1999 National Report,” September 1999, http://www.ncjrs.org/html/ojjdp/nationalreport99/toc.htmlp. 15.
 Patrick Griffin et al., Office of Juvenile Justice and Delinquency Prevention, US Department of Justice, “Trying Juveniles As Adults: An Analysis of State Transfer Laws and Reporting,” September 2011, https://www.ncjrs.gov/pdffiles1/ojjdp/232434.pdf (accessed June 7, 2012). Offense-based exclusion laws subject youth to the original jurisdiction of the adult criminal justice system on the basis of the charged offense (sometimes but not always with an additional age minimum). For example, Pennsylvania charges all homicide cases in adult criminal court, regardless of the age of the offender. Prosecutorial direct-file laws usually give charging officials the (sometimes unlimited) discretion to decide whether to file charges in juvenile court or in adult court (sometimes with age restrictions). Colorado recently raised the age minimum for direct-file eligible offenses (such as homicide) from 14 to 16, but other states, such as Florida, have no minimum age for a broad range of offenses. Finally, in some states, like Florida, once a youth has been convicted of an offense in adult criminal court, all subsequent offenses (even minor ones) are treated as if committed by an adult; for many offenses over which the juvenile court retains original jurisdiction, states have reduced the discretion of judges to prevent the case from being transferred to adult court.
 Pennsylvania just created an avenue to transfer youth back to the juvenile justice system; Michigan allows “blended” sentencing of youth.
 Campaign for Youth Justice, “Jailing Juveniles: The Dangers of Incarcerating Youth in Adult Jails in America,” November 2007, http://www.campaignforyouthjustice.org/documents/CFYJNR_JailingJuveniles.pdf (accessed August 27, 2012), pp. 20-21.
 Human Rights Watch and Amnesty International, The Rest of Their Lives, p.5.
 Alex R. Piquero, “Disproportionate Minority Contact,” The Future of Children, vol. 18, no.2 (2008), p. 66, citing National Council on Crime and Delinquency, And Justice for Some: Differential Treatment of Youth of Color in the Justice System (Oakland: National Council on Crime and Delinquency, 2007); Neelum Arya and Ian Augarten, Campaign for Youth Justice, “Critical Condition: African-American Youth in the Justice System,” September 2008, http://www.campaignforyouthjustice.org/documents/CFYJPB_CriticalCondition.pdf (accessed August 27, 2012).
 Piquero, “Disproportionate Minority Contact,” The Future of Children, p. 62, citing National Council on Crime and Delinquency, And Justice for Some: Differential Treatment of Youth of Color in the Justice System.
 Human Rights Watch, The Price of Freedom: Bail and Pretrial Detention of Low Income Nonfelony Defendants in New York City, December 3, 2010, http://www.hrw.org/sites/default/files/reports/us1210webwcover_0.pdf, p. 20.
 Ibid., p. 48.
 As Human Rights Watch has documented elsewhere, some youth convicted of felony murder serving life without parole played a minor role in the crime. Indeed, in some jurisdictions, as many as half of youth offenders serving life without parole were convicted without having physically committed the underlying offense. See Human Rights Watch and Amnesty International, The Rest of Their Lives: Life without Parole for Child Offenders in the United States, October 12, 2005, http://www.hrw.org/reports/2005/10/11/rest-their-lives-0, pp. 27-28.
 A total list of crimes of conviction for these five youth (some of whom were convicted of a combination of these offenses) include burglary, grand theft, property damage/criminal mischief, attempted armed burglary, drug possession, and possession of a concealed weapon.
 Human Rights Watch has documented the broad failure of adult jails and prisons (as well as shortcomings in the US juvenile justice system) to care for youth and other vulnerable populations, such as the elderly or persons with mental or intellectual disabilities. For examples see: Human Rights Watch, No Minor Matter: Children in Maryland’s Jails, November 1, 1999, http://www.hrw.org/legacy/reports/1999/maryland/; Human Rights Watch and American Civil Liberties Union, Custody and Control: Conditions of Confinement in New York’s Juvenile Prisons for Girls, September 25, 2006, http://www.hrw.org/sites/default/files/reports/us0906webwcover.pdf; Human Rights Watch, The Rest of Their Lives: Life without Parole for Child Offenders in the United States, October 11, 2005, http://www.hrw.org/sites/default/files/reports/TheRestofTheirLives.pdf; Human Rights Watch, No Escape: Male Rape in U.S. Prisons, April 1, 2001, http://www.hrw.org/legacy/reports/2001/prison/report.html; Human Rights Watch, Old Behind Bars: The Aging Prison Population in the United States, January 28, 2012, http://www.hrw.org/sites/default/files/reports/usprisons0112webwcover_0.pdf; Human Rights Watch and American Civil Liberties Union, Deportation By Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System, July 25, 2010, http://www.hrw.org/sites/default/files/reports/usdeportation0710webwcover_1_0.pdf; Human Rights Watch, Against All Odds: Prison Conditions for Youth Offenders Serving Life without Parole Sentences in the United States, January 4, 2012, http://www.hrw.org/sites/default/files/reports/us0112ForUpload_1.pdf.
 Laurence Steinberg et al., “The Study of Developmental Psychopathology in Adolescence: Integrating Affective Neuroscience with the Study of Context,” in Dante Cicchetti and Donald Cohen, eds., Developmental Psychopathology (Oxford: John Wiley & Sons, 2006), p. 710.
 Sedra Spano, Research Facts and Findings, ACT for Youth Upstate Center for Excellence, “Stages of Adolescent Development,” 2004, http://www.actforyouth.net/resources/rf/rf_stages_0504.pdf; National Institutes of Health, Medline Plus, “Adolescent Development,” http://www.nlm.nih.gov/medlineplus/ency/article/002003.htm.
 American Academy of Pediatrics, “Recommendations for Preventive Pediatric Care,” 2000, http://pediatrics.aappublications.org/content/105/3/645.full.pdf+html. The Academy also has issued a detailed set of guidelines for addressing physical and mental health in the context of detention in juvenile facilities. American Academy of Pediatrics, Policy Statement, “Healthcare for Youth in the Juvenile Justice System,” 2011, http://pediatrics.aappublications.org/content/128/6/1219.full.pdf+html.
 American Academy of Pediatrics, “Bright Futures: Guidelines for Health Supervision of Infants, Children, and Adolescents,” 2008, http://brightfutures.aap.org/pdfs/Guidelines_PDF/1-BF-Introduction.pdf.
 National Institute of Mental Health, National Institutes of Health, “Teenage Brain: A Work in Progress,” 2001, http://wwwapps.nimh.nih.gov/health/publications/teenage-brain-a-work-in-progress.shtml (accessed November 25, 2007).
 Steinberg et al., “The Study of Development Psychopathology in Adolescence,” p. 710.
 Jay N. Giedd, “Structural Magnetic Resonance Imaging of the Adolescent Brain,” Annals of the New York Academy of Science, vol. 1021 (2004), p. 83.
 Steinberg et al., “The Study of Development Psychopathology in Adolescence,” p. 710.
 Campaign for Youth Justice, “Jailing Juveniles,” pp. 20-21.
 Wis. Stat. Ann. § 938.18(8) (“When waiver is granted, the juvenile, if held in secure custody, shall be transferred to an appropriate officer or adult facility”); 938.183(1m) (providing for the detention in adult facilities of youth subject to original criminal jurisdiction); 938.209(3). But see Wis. Stat. Ann. § 938.183(1m) (“If the juvenile is under 15 years of age, the juvenile may be held in secure custody only in a juvenile detention facility or in the juvenile section of a county jail.”).
 Michigan’s Code of Criminal Procedure, Mich. Comp. Laws Ann. § 764.27a(3); Ohio’s Revised Code, Rev. Code Ann. § 2152.26(f)(1).
 Mich. Comp. Laws Ann. § 764.27a(3); Human Rights Watch telephone interview with Ann Russell, Corrections Administrator, Oakland County, Michigan, March 23, 2012; Human Rights Watch telephone interview with Michelle M. Sanborn, Jail Administrator, Macomb County, Michigan, March 9, 2012.
 Juvenile Justice and Delinquency Prevention Act, 42 USC 5633(a)(11).
 Status offenses are those that are based solely on a person’s age at the time of certain conduct, such as a curfew violation.
 Human Rights Watch email correspondence with Elissa Rumsey, Compliance Coordinator, US Department of Justice Office of Juvenile Justice and Delinquency Prevention, June 28, 2012; Substantive Requirements, Code of Federal Regulations, 28 CFR 31.303(d)(1)(i).
 Human Rights Watch email correspondence with Elissa Rumsey, June 28, 2012; Definitions, US Code, 42 USC 5602 (26) (“the term ‘adult inmate’ means an individual who (A) has reached the age of full criminal responsibility under applicable State law; and (B) has been arrested and is in custody for or awaiting trial on a criminal charge, or is convicted of a criminal charge offense”).
 As noted above, in most states those sentenced to less than one year of incarceration often serve out their sentences in jails.
 Human Rights Watch telephone interview with Eric Bush, Superintendent, Secure Correctional Institution Pine Grove, Pennsylvania Department of Corrections, Pine Grove, Pennsylvania, June 21, 2012.
 Youthful Offenders, Florida Statute, Title 47, Ch. 958. 03-04, http://www.flsenate.gov/Laws/Statutes/2012/Chapter958/All.
 Federal Bureau of Prisons, “Statement of Work, Contract Secure Juvenile Facility,” amended February 2004, revised July 2011, http://www.bop.gov/locations/cc/SOW_Secure_Juvie.pdf (accessed August 27, 2012).
 In 2005, for example, youth under the age of 18 made up less than 1 percent of all inmates in US jails, yet comprised 21 percent of all victims of substantiated incidents of sexual abuse involving inmates. National Prison Rape Elimination Commission, “National Prison Rape Elimination Commission Report,” June 2009, https://www.ncjrs.gov/pdffiles1/226680.pdf (accessed August 27, 2012), p. 42, citing Howard N. Snyder and Melissa Sickmund, Office of Juvenile Justice and Delinquency Prevention, US Department of Justice, Juvenile offenders and victims: 2006 National report (Washington, D.C.: US Department of Justice, Office of Justice Programs, 2006) and Allen J. Beck and Paige M. Harrison, Bureau of Justice Statistics, US Department of Justice, “Sexual Victimization in Prisons and Jails Reported by Inmates, 2008-09,” August 2010, http://bjs.ojp.usdoj.gov/content/pub/pdf/svpjri0809.pdf (accessed August 27, 2012). Youth under 20 experience the highest rates of sexual abuse by staff of any prison age demographic, and the highest rates of sexual abuse by other inmates of any jail age demographic. Beck and Harrison, “Sexual Victimization in Prisons and Jails Reported by Inmates, 2008-2009”; In contrast, approximately 2.6 percent of youth in juvenile facilities reported a sexual incident involving another youth, while 10.3 percent reported an incident involving facility staff. Allen J. Beck, Paige M. Harrison and Paul Guerino, Bureau of Justice Statistics, US Department of Justice, “Sexual Victimization in Juvenile Facilities Reported by Youth, 2008-2009,” January 2010, http://bjs.ojp.usdoj.gov/content/pub/pdf/svjfry09.pdf (accessed August 27, 2012), p. 1 (analyzing statistics gathered by the Bureau of Justice Statistics).
 Jeffrey Fagan, Martin Forst, and T. Scott Vivona, “Youth in Prisons and Training Schools: Perceptions and Consequences of the Treatment-Custody Dichotomy,” Juvenile and Family Court, vol. 40 (1989), p. 9. See also Jason Ziedenberg and
Vincent Schiraldi, “The Risks Juveniles Face When They Are Incarcerated with Adults,” Justice Policy Institute,
July 1997, http://www.justicepolicy.org/images/upload/97-02_REP_RiskJuvenilesFace_JJ.pdf (accessed August 27, 2012).
 Fagan, Forst, and Vivona, “Youth in Prisons and Training Schools,” Juvenile and Family Court, p. 10.
 Robert Hahn et al., Centers for Disease Control, “Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice System: A Report on Recommendations of the Task Force on Community Preventive Services,” vol. 56, no. RR-9, November 30, 2007, http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5609a1.htm (accessed August 27, 2012).