Human Rights Watch writes in strong opposition to Senator Kyl’s proposed amendment to S. 3155, which would give prosecutors unfettered and unreviewable discretion to prosecute juveniles aged 16 or 17 as adults for certain listed offenses.

July 30, 2008

The Honorable Patrick J. Leahy
Chairman, Committee on the Judiciary
United States Senate
433 Russell Senate Office Building
Washington, DC 20510-4502

The Honorable Arlen Specter
Ranking Member, Committee on the Judiciary
United States Senate
711 Hart Senate Office Building
Washington, DC 20510-3802

Re: Human Rights Watch opposes Senator Kyl’s amendment to S. 3155, the Juvenile Justice and Delinquency Prevention Reauthorization Act of 2008

Dear Chairman Leahy and Senator Specter:

Human Rights Watch writes in strong opposition to Senator Kyl’s proposed amendment to S. 3155, which would give prosecutors unfettered and unreviewable discretion to prosecute juveniles aged 16 or 17 as adults for certain listed offenses.

Under current federal law, as outlined in the Juvenile Delinquency Act, 18 USC §§ 5031 - 5037, a juvenile may be transferred to the adult criminal justice system only after judicial consideration of enumerated factors, and a formal finding on the record that the transfer would “be in the interest of justice.” The factors for consideration include the age and social background of the juvenile; the nature of the alleged offense; the extent and nature of the juvenile’s prior delinquency record; the juvenile’s present intellectual development and psychological maturity; the nature of past treatment efforts and the juvenile’s response to such efforts; and the availability of programs designed to treat the juvenile’s behavioral problems. In considering the nature of the offense, the court must also consider the extent to which the juvenile played a leadership role in an organization, or otherwise influenced other persons to take part in criminal activities, involving the use or distribution of controlled substances or firearms.

Senator Kyl’s proposed amendment would eliminate judicial evaluation of these factors. It would amend the juvenile transfer law by granting the Attorney General the authority to prosecute 16 and 17 year olds as adults for certain enumerated offenses. His amendment would also prohibit any judicial review of the determination to prosecute a juvenile as an adult. The amendment would further broaden the transfer of juveniles to the adult criminal justice system by granting the Attorney General the unfettered authority to prosecute as adults children who engage in inchoate offenses, including attempt and conspiracy to commit kidnapping, rape and murder, and the related lesser included offenses.

By increasing the transfer of youth into the adult criminal system and eliminating judicial review of the transfer decision, Senator Kyl’s amendment flouts widely accepted scientific research and basic principles of criminal and juvenile justice.

In 1999, Human Rights Watch addressed the issue of juvenile transfer in the report, No Minor Matter. In that report, we stated:

The national movement to charge more youth in the adult criminal system is premised on the inaccurate assumptions that juvenile crime is on the rise and that trying children as adults will reduce crime. In fact, juvenile crime has declined steadily even as the proponents of harsh juvenile sentencing have predicted an onslaught of adolescent offenders. In addition, studies in at least five states have concluded that laws that make it easier to transfer children to adult courts do not measurably reduce violent crime.

Since that report was released, research has demonstrated that youth who are transferred to the adult criminal justice system are more likely to commit additional crimes in the future. A recent report from the US Centers for Disease Control and Prevention (CDC) addressed the issue of juvenile transfer. This report found that children who are tried as adults are, on average, 34% more likely to commit future crimes than similarly situated youth retained in the juvenile justice system. The report also revealed that transferring youth to the adult system resulted in an increase in pretrial violence against and victimization of youth, and elevated suicide rates among juveniles in adult facilities. The CDC Task Force concluded by recommending against “laws or policies facilitating the transfer of juveniles from the juvenile to the adult judicial system.”

Senator Kyl’s amendment is also inconsistent with US treaty obligations under international law. As Human Rights Watch has emphasized in previous letters to this Committee in connection with S. 3155, international law requires separation of detained juveniles from adults, and the provision of treatment and rehabilitation appropriate to a youth’s age and stage of development. Increasing juvenile transfers and eliminating judicial discretion to evaluate a youth’s development and individual situation would be incompatible with US treaty obligations under the International Covenant on Civil and Political Rights.

There is no question that juveniles who commit crimes must be held accountable. But no disposition for a youthful offender, regardless of the offense, should ever include abuse, mental health deterioration, or victimization. Nor should it increase crime. Federal juvenile justice policies should be consistent with US treaty obligations under international law, reflect the reality that children are different from adults, and ensure that the prosecution of a juvenile reflects his or her age, level of development, and greater potential for rehabilitation.

Human Rights Watch has already expressed strong support for S. 3155, the Juvenile Justice and Delinquency Prevention Reauthorization Act of 2008 (JJDPA), and the strengthening amendments to provide enhanced mental health services and to eliminate the institutionalization of status offenders. Senator Kyl’s amendment, however, would undermine the basis for our support of this bill.

For the foregoing reasons, Human Rights Watch urges the Senate Judiciary Committee to oppose Senator Kyl’s amendment to S. 3155.

Thank you for your consideration, and please feel free to contact me if I can provide any further information.

Sincerely,

Carol Chodroff
Advocacy Director, US Program

cc: Senate Judiciary Committee Members
Senator Edward M. Kennedy
Senator Joseph R. Biden, Jr.
Senator Herb Kohl
Senator Dianne Feinstein
Senator Russell D. Feingold
Senator Charles E. Schumer
Senator Richard J. Durbin
Senator Benjamin L. Cardin
Senator Sheldon Whitehouse
Senator Orrin G. Hatch
Senator Charles E. Grassley
Senator Jon Kyl
Senator Jeff Sessions
Senator Lindsey Graham
Senator John Cornyn
Senator Sam Brownback
Senator Tom Coburn