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A Bad Idea for Juvenile Justice

Published in: O Globo

Luiz is one of the adolescents who would be tried as an adult in Brazil if its Congress approves a Constitutional amendment to lower the age of criminal majority. He is 17 and was living on the streets of a city near São Paulo in January when he was arrested for drug dealing. He had grown up in the orphanage where his mother left him after birth. He said he felt addicted to marijuana with the first puff. “When I used marijuana, the sadness that was inside me starting coming out,” he told me.

Luiz has difficulty articulating and expressing his thoughts. Officials at the juvenile facility where he is confined believe he has an intellectual disability. He takes special-education classes.

To date, Brazil has respected and upheld international human rights standards, included in several treaties that it is has ratified, which require Luiz be held accountable for breaking the law, but under a system of rules for juveniles. The norm, as repeatedly articulated by several UN human rights bodies and the Inter-American Court of Human Rights, that children under 18 should not be tried as adults, is based on what is in the best interests of the child. But it is not simply better for children and their future; evidence shows that adhering to this human rights standard is better for society.

One way in which society benefits from respecting the right of children and adolescents like Luis not to be tried as adults is to realize this is the most likely path to move him away from crime. For data on this issue we can look at the United States, where each state has different practices, and one can compare the outcomes. Multiple studies there show that adolescents tried as adults are more prone to commit further crimes after they are released. They conclude that treating adolescents as adults is counterproductive as a strategy to reduce crime.

The proposed amendment says that 16- and 17-year-olds convicted of serious crimes would be kept “separate” from adults, but it does not clarify whether they would be in specific wings within prisons or juvenile facilities, or in new detention centers. Once they turn 18 in confinement, those adolescents would presumably be moved to the general prison population. Currently, people who break the law before 18 may remain in juvenile centers until they turn 21.

Just the experience of being tried as an adult, without being incarcerated, may have profound negative effects for adolescents and for society as well.  Research from the United States shows that recidivism rises for adolescents prosecuted as adults even if they are not sentenced to prison.

In Brazil, in violation of international standards, adult detainees routinely wait for many months to see a judge for the first time after their arrest, some have never met the public defender who is supposed to be handling their case, and thousands stay behind bars after their sentences end. This is the criminal system into which adolescents would be thrown.

Juvenile facilities in Brazil have many shortcomings, but they still potentially offer a better chance of rehabilitation than prisons. They must provide educational programs and substance-abuse treatment to all adolescents there. Those opportunities are not available to most prisoners in the adult system.  

Luiz said he likes the juvenile center where he is confined because there is food. Still, he wants to be released to go live with a brother. “I am thinking now about quitting the wrong life, and about valuing the family I have.”

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