I would like to start by thanking Senators Regina Sousa and Paulo Paim, the President and Vice-President of the Human Rights and Participative Legislation Commission of the Federal Senate of Brazil for the invitation and the opportunity to be speaking before this audience.
Thanks everyone for your presence.
I am Zama Neff and I am the executive director of the Children Rights Division of HRW, an international nongovernmental organization dedicated to protecting the human rights of people around the world. We work in over 90 countries and have staff based in 59 different locations around the world, including São Paulo, and work with governments and civil society to uphold human rights and the rule of law.
Today the Brazilian Senate considers constitutional changes that would allow 16- and 17-year-olds to be tried as adults. From Human Rights Watch’s experience examining the treatment of children in conflict with the law in countries worldwide, we conclude that such a move would run counter to international legal trends and the most current research on adolescent brain development, violate Brazil’s international legal obligations, be deeply harmful to children, and fail to enhance public security.
There are 5 reasons not to lower not to try children as adults.
1. The proposed changes would violate international law
The proposed changes would erode the protections of the Statute of the Child and Adolescent (Estatuto da Criança e do Adolescente, ECA), legislation that has long served as a model for the Americas and beyond.
The ECA reflects the principles of the UN Convention on the Rights of the Child, which in the judgement of the Committee that interprets the Convention, requires parties to extend the protections of the juvenile justice system to all children under the age of 18.
Several UN human rights bodies and the Inter-American Court of Human Rights have repeatedly said that children under 18 should not be tried as adults but instead in juvenile justice systems. International law also prohibits incarcerating children with adults.
2. The proposal does not reflect current science on adolescent brain development
The requirement by international law that children be treated differently is not based on sympathy – it is rooted in science.
New research has improved our understanding of how the adolescent brain develops. We now know that impulsivity, risk-taking, susceptibility to stress and peer pressure, and orientation toward immediate rewards at the expense of future planning are hallmarks of adolescence. The brains of 17-year-olds make them predisposed toward impulsive, short-sighted decisions when under pressure or heightened emotion. Put more simply, 17-year-olds are physically unable to make the reasoned, responsible decisions we expect of adults.
In recognition of this reality, the US Supreme Court has concluded that the biological differences between adolescents under age 18 and adults makes those adolescents categorically less culpable than adults.
The nature of adolescence means that it is unlikely that the prospect of being charged as an adult is a deterrent to youthful crime. As one prominent researcher concluded, “laws that make it easier to transfer youth to the adult criminal court system have little or no general deterrent effect.”
The developing nature of the adolescent brain also means that adolescents are particularly amenable to rehabilitation and that the juvenile justice system can effectively address violent and other serious offenses: a US government-sponsored seven-year longitudinal study of juvenile offenders who had committed serious crimes found that over time, offending sharply decreased for most. The Illinois Juvenile Justice Commission, a federally mandated advisory group to the state government, concluded, “We now know that even felony-level 17-year-old offenders are very good candidates for juvenile court interventions.”
3. Sending children to the adult justice system is deeply harmful to the individual child
A study of children transferred into the adult system in the US state of Arizona found that adolescents in the adult system face disruptions in their social development, identity formation, education, the development of key skills, and healthy transition to adulthood.
Adolescents housed in adult jails and prisons are at increased risk of physical abuse, including sexual assault. While children under age 18 are a miniscule proportion of inmates in adult facilities in the United States, they make up one in five victims of substantiated incidents of inmate-on-inmate sexual violence.
4. The proposal goes against international trends
Globally, the trend now is to increase the age at which children are tried as adults, according to the Chamber of Deputies’ own expert in 2015. In South America, only Surinam, Bolivia, Guyana, and Paraguay allow juveniles to be tried as adults.
The experience of the United States is particularly relevant to the debate in Brazil because many US states moved in the 1990s to send more children into the adult criminal justice system, particularly those accused of violent offenses. More recently, the trend has gone the other way—an increasing number of US states have raised the age of juvenile court jurisdiction to 18.
5. Will not make Brazil safer
Finally, the proposed amendment is unlike to do what its proponents hope: make Brazilians safe. (Indeed, this is presumably a goal shared by everyone here.) While it’s tempting to think that harsher treatment will increase public security, the evidence from countries that have tried such approaches shows that is not so.
The United States has likely made the greatest use of measures like the proposal now before the Senate, and the outcomes of these policies have been rigorously researched. The studies make for sobering reading.
A 2007 task force of independent experts and US government officials found that trying juveniles as adults: “typically increases rather than decreases rates of violence” among the juvenile offenders. The task force concluded that trying children as adults is “counterproductive as a strategy for preventing or reducing juvenile violence and enhancing public safety.”
The US Department of Justice found in 2010 that processing children through the regular justice system “does not engender community protection” but instead “substantially increases recidivism.”
Most of these adolescents who are locked up, will eventually return to their communities, and will bring with them traumas experienced in incarceration. These have profoundly negative consequences for society.
Specifically children sent to the adult system are more likely to be rearrested than those who are kept in the juvenile system—34% more likely (US Centers for Disease Control). The reasons for this include the stigma of an adult felony conviction, exposure to adult criminals, the trauma of incarceration, the lack of rehabilitation in adult facilities, the lack of emphasis on family support as compared with the juvenile system, feelings of injustice, loss of employment opportunities after incarceration, and the associated decrease in lifelong earning potential.
In contrast, the general trend in the US of raising the age hasn’t hurt public safety. Youth crime in Connecticut and Illinois fell after those states stopped trying 17-year-olds as adults in 2012 and 2014, respectively. In IL, the number of children in juvenile detention is still down by 43%. In CT, it’s the lowest number in a quarter-century.
Instead of replicating failed policies that have been shown to harm children and society, Brazil’s lawmakers should consider ways to invest in and improve Brazil’s current juvenile justice system.