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Juvenile Justice

Throughout the world in 1998 children continued to be subjected to judicial proceedings and conditions of confinement that violated applicable international standards. These international standards for children in the justice system included Article 40 of the Convention on the Rights of the Child, Articles 10 and 14 of the International Covenant on Civil and Political Rights, the Standard Minimum Rules for the Administration of Juvenile Justice (known as the Beijing Rules), the U.N. Rules for the Protection of Juveniles Deprived of Their Liberty, and the U.N. Guidelines for the Prevention of Juvenile Delinquency (the "Riyadh Guidelines").

In its investigations between 1994 and 1998, Human Rights Watch documented fundamental challenges for juvenile justice systems worldwide. Far too often children were locked up, sometimes with adults, sometimes for very minor offenses or no offense at all. Many countries failed to use more effective and less costly alternatives to incarceration, such as day treatment, release to parents with restrictions on activities, or shelter care in small group homes. Further, in the 1990s at least six countries were known to have executed persons who were juveniles at the time of their offenses, in violation of international standards.

In countries as varied as Brazil, Bulgaria, Guatemala, India, Kenya, and Rwanda, Human Rights Watch found that state authorities failed to provide juveniles with fair hearings and arbitrarily and unlawfully deprived children of their liberty. Many of these cases involved street children who were ostensibly brought before the courts for their own protection. In Kenya, for example, Human Rights Watch’s 1996 investigation 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. In Bulgaria, Human Rights Watch discovered in 1996 that over 85 percent of the boys held at one penal institution were in some form of pretrial detention; although Bulgaria’s Code of Criminal Procedure placed a two-month limit on pretrial investigation, the prosecutor’s office could renew the time period by ordering “further investigation,” with no limit on the number of renewals.

Rwanda’s efforts to punish the perpetrators of genocide generated particular juvenile justice concerns. The dilemma of dealing with children accused of genocide illustrated the complexity of balancing culpability, a community’s sense of justice, and the best interests of the child. Four thousand children languished within the Rwandan justice system, held for years in overcrowded prisons and communal detention centers under abysmal conditions while they awaited adjudication of their cases. Confronted with an understaffed and undertrained judiciary, a lack of resources and political will, and a crippling backlog of cases, these children were likely to be adults before their cases were heard. The severity of the charges facing them did not justify abridging the fundamental rights and legal safeguards accorded to children under the Convention on the Rights of the Child. Maintaining these rights and safeguards was arguably all the more important under circumstances such as those that prevailed in Rwanda, when fundamental rights were more likely to be ignored.

Incarceration of children continued as a nationwide sentencing trend in the United States, even as the number of violent juvenile offenders fell. In 1996, according to U.S. Federal Bureau of Investigation statistics, less than 5 percent of juvenile arrests were for violent crimes. Between 1995 and 1996, violent crime arrests of all juveniles fell by nearly 6 percent; arrests of juveniles under fifteen years of age dropped by over 7 percent for the same period. Despite the declining percentage of violent juvenile offenders, and in spite of the fact that incarceration was shown to be more expensive than the use of community placements and less effective in reducing future delinquency, most U.S. states continued to incarcerate high numbers of children for nonviolent offenses. A 1994 study by the National Council on Crime and Delinquency concluded that less than 14 percent of young inmates in twenty-eight state juvenile corrections systems were in detention for serious violent crimes. Indeed, the U.S. Department of Justice’s Office of Juvenile Justice and Delinquency Prevention reported that in 1995, over 8 percent of detained juveniles nationwide were held for status offenses, acts which would not be crimes if committed by adults. As Mark Soler, president of the California-based Youth Law Center, commented, “We have seen juveniles locked up for repeated truancy, running away from home, violating curfew, possession of alcohol, possession of marijuana, shoplifting, and missing even a single meeting with a probation officer.”

In the United States, as well as in some other countries, there was an increasing tendency to try children as adults; to commingle children with adults in detention; and to confine children in inhumane conditions. In the United States, as well as in only a few other countries, young people were executed for acts committed before the age of eighteen, in violation of international standards.

Children Tried as Adults
Driven by tragic, high-profile cases of school shootings and by modern-day legends of juvenile “superpredators,” U.S. lawmakers increasingly abandoned efforts to rehabilitate child offenders. Instead, the increasingly common response to a perceived outbreak of juvenile violent crime was to move juveniles into the adult criminal system. Between 1992 and 1998, at least forty U.S. states adopted legislation making it easier for children to be tried as adults. Forty-two U.S. states detained juveniles in adult jails while they awaited trial, in violation of international standards.

All too often, the trial of juveniles as adults in the United States failed to provide children with the special safeguards and care to which they were entitled under international law. The adult criminal system deprived children of the variety of rehabilitative dispositions that were available in juvenile adjudications; in particular, children charged as adults could expect to spend a minimum of six months in jail even before their cases came to trial, with no real alternatives to institutional care available to them. Adjudication in the adult courts also denied children their right to have their privacy respected in all stages of the proceedings against them. Further, the decision to send children into the adult system was frequently criticized as arbitrary and discriminatory.

Children Held with Adults
Despite the directive of Article 37(c) of the Convention on the Rights of the Child that “every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so,” children continued to be held with adults in many parts of the world. Human Rights Watch opposed the commingling of children and adults in detention because contact with adults was almost never in the children’s best interest. Children in adult facilities rarely received educational and vocational training appropriate to their needs. Worse, conditions in many adult facilities were extremely abusive, often exposing children to serious overcrowding, unsanitary conditions, hunger, and physical and sexual abuse far worse than they would have experienced in juvenile facilities.

In Kenya, for example, Human Rights Watch observed during its 1996 fact-finding mission that the commingling of childrenand adults in detention was the norm. Despite official statements that “[c]hildren should not be mixed with adults unless it is something that cannot be avoided,” the Kenyan Human Rights Commission reported in 1998 that arrested children continued to be locked up with adults with frequency. Children held in Kenya’s adult remand prisons were forced to live in appalling circumstances, sleeping on bare floors with vermin-infested blankets in rooms pervaded by the stench of overflowing toilets. Given insufficient food to begin with, children consistently reported that older juveniles or adults stole from them. “They might beat you up, or sell your clothes to buy cigarettes, or take your food,” reported one boy. When he refused to have sex with an older boy, the older inmate took his clothes away and smeared excrement over his body.

Similar conditions prevailed in the Dominican Republic, Honduras, Mali, and Nicaragua. In South Africa, despite a November 1997 national program intended to keep children out of prisons, the minister of welfare reported in May 1998 that approximately 1,000 children were still detained in prisons with adults. Even where the detention of juveniles in adult facilities was the exception rather than the rule, housing minors with adults had potentially serious consequences. One youthful inmate in Venezuela recounted to Human Rights Watch in 1996 that he had been gang-raped at the age of seventeen by a group of older inmates. To protect himself from further abuse, he moved into disciplinary segregation, a dark, dank area of the prison with no outdoor access, spending a year there before transferring back to the general population.

In at least forty-two U.S. states, children charged as adults were held in adult jails pending trial. The juveniles held in many of these facilities had daily contact with inmates twenty and thirty years older, many of whom were repeat offenders. Most adult jails offered incarcerated youth little or no education or other programming, virtually abandoning any effort to rehabilitate these youth or to assist them “to assume socially constructive and productive roles in society,” as required under Article 26 of the Beijing Rules.

All but a handful of U.S. states incarcerated children in adult correctional facilities after sentencing. The U.S. Bureau of Justice Statistics reported that from midyear 1990 to midyear 1995, the number of inmates under the age of eighteen in state and federal correctional facilities rose from 3,600 to 5,309, an increase of nearly 50 percent. According to these data, Florida, Connecticut, New York, North Carolina, and Texas had the highest number of children incarcerated in adult correctional facilities at midyear 1995.

Conditions of Confinement
Prompted by Human Rights Watch’s 1996 report, Modern Capital of Human Rights?: Abuses in the State of Georgia, the U.S. Department of Justice (DOJ) concluded a year-long investigation of the state’s juvenile detention facilities in February 1998. The DOJ identified a “pattern of egregious conditions” that violated children’s rights, including overcrowded and unsafe conditions, physical abuse by staff and excessive use of disciplinary measures, and inadequate educational, medical, and mental health services. Its investigators also found that three-quarters of the children in detention were nonviolent offenders, sometimes held for offenses such as painting graffiti, making harassing telephone calls, or disobeying a parent’s rules. These children were incarcerated in jail-like facilities, where they were shackled to cell furniture for being too noisy, were physically or sexually abused by other detainees or staff, and stripped naked and shackled to a toilet for showing signs of suicidal behavior.

The DOJ directed Georgia to take sixteen specific remedial measures within a forty-nine day period in order to avoid a federal lawsuit. In March 1998, the state and the DOJ signed an agreement that required the state to make extensive improvements, including expanded staffing, new positions and policies to improve educational, mental health, and medical programs, expanded alternative placement options, and new procedures to investigate allegations of abuse. The agreement also mandated the appointment of an independent monitor to oversee the implementation of the agreement. In June, the DOJ and the State of Georgia agreed to designate the National Council on Crime and Delinquency as the independent monitor.

The DOJ’s investigation of conditions in secure juvenile institutions in Louisiana, also prompted by a Human Rights Watch investigation and report, continued in 1998. The DOJ has not yet resolved the case with Louisiana authorities, and in August filed with the federal District Court a second report, as damning as the first, on current conditions. In September the judge ordered Louisiana and the DOJ to hold settlement talks. A trial date has been set for February 8, 1999, in case settlement talks fail.

The DOJ concluded at least two other investigations of juvenile facilities in 1998, finding violations in the county detention centers in Owensboro, Kentucky, and Greenville, South Carolina. In each of these facilities, the DOJ found evidence that staff employed excessive force against juvenile inmates. Each facility failed to provide adequate medical and mental health care to children in detention. Juveniles in both facilities received little or no education even though many were housed in the detention centers for extended periods of time.

In Pakistan, the May 1998 custodial death of fourteen-year-old Ghulam Jilani ( see Pakistan chapter) and the resulting public protest led to a rare judicial inquiry into the case. Far more often, police abuses against juveniles went unreported and unpunished. A study published in 1997 by a team of Pakistani physicians found that over three-quarters of the children in Karachi’s juvenile jail had been tortured while in police custody. In addition to custodial abuse, Pakistani children continued to face prolonged detention without trial and overcrowded jails that were ill-equipped for their rehabilitation. The vast majority of imprisoned children—some 92 percent in February 1998—were still awaiting trial, a situation caused by the failure of police to complete timely investigation reports, the setting of prohibitively high bail amounts, the frequent postponement of hearings (often stemming from a failure to compel production of witnesses), and an understaffed and underutilized parole and probation department. According to the Pakistani NGO AGHS Legal Aid Cell, only about 13 to 17 percent of the juvenile intake actually resulted in convictions.

The Execution of Juveniles
Despite the unequivocal international condemnation of the use of the death penalty for juvenile offenders, six countries—Iran, Nigeria, Pakistan, Saudi Arabia, the United States, and Yemen—were known to have executed juvenile offenders in the 1990s. Theimposition of the death penalty on persons who were under eighteen years of age at the time of their offense violated the provisions of several international and regional human rights instruments, including the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child, the Beijing Rules, and the American Convention on Human Rights.

The United States led the list with nine executions between 1990 and 1998, fully one-half of the known worldwide total for the period. Two such executions took place in 1998 in the state of Texas, following a five-year period during which there had been no executions of juvenile offenders in the United States. The third execution in 1998, was Virginia’s first since the state reinstated the death penalty in 1976. More than seventy juvenile offenders were on death row in the United States as of July 1, 1998.

Elsewhere in the world during 1998, Iran and Nigeria’s courts imposed death sentences in proceedings that were not fair and public or otherwise did not comply with the minimum guarantees of Article 14 of the ICCPR. Although precise figures were unavailable, it was believed that many children were included among those sentenced to death. As an example of proceedings conducted without adequate due process protections, Nigeria’s special tribunals for armed robbery offenses provided for relaxed rules of evidence, were usually conducted without defense lawyers, and permitted no appeals. In addition, Nigerian police were implicated in summary executions of alleged criminals, including juveniles.