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June 25, 2018

"Outraged By Kids In Cages? Look At Our Entire Juvenile Justice System."

The title of this post is the headline of this notable new HuffPost commentary authored by lawprof Cara Drinan, who is the author of The War on Kids: How American Juvenile Justice Lost Its Way (and who will be guest-blogging here come this August). Here are excerpts:

Last week, the nation witnessed an abrupt reversal from the White House. After claiming for days that he did not have the authority to address the family separation crisis at the border, President Donald Trump appeared to do just that with the stroke of a pen....

Trump’s reversal this week is progress; it’s a step in the right direction away from the inhumanity that the nation witnessed at the border. But let’s also be clear: There are vulnerable kids in cages in every state across America whose cases will not be affected by the president’s new order. In fact, on any given day there are approximately 50,000 juveniles being held in American correctional facilities, thousands of whom are in adult jails and prisons.

Despite inventing the juvenile court model in the late 19th century, the United States today is an international outlier in the severity of its juvenile justice practices. Today, every jurisdiction has some provision that permits a child to be charged as if they were an adult, and 23 states set no minimum age for employing this legal fiction.

Juveniles convicted in adult court are subject to lengthy mandatory minimums that were drafted with adults in mind. Juveniles can be housed in adult correctional facilities despite being extremely vulnerable to the risks of sexual and physical assault in those locations. Youth are subject to conditions of confinement that were designed for the most dangerous adult offenders, including mechanical restraints and even solitary confinement. Until 2005, we were the only developed nation to execute people for juvenile crimes, and today we are the only country that sentences children to die in prison.

Just like the migrant children crossing the border with their parents, American youth accused of a crime are typically traumatized and vulnerable. Our juvenile justice practices have hit poor, minority communities the hardest. Black youth are five times as likely as white youth to be detained, even as overall detention rates have fallen....

As we seek an end to family separation and the horrors of kids in cages at border facilities, we should also take a moment to reflect on our own domestic practice of keeping kids in cages. We should urge lawmakers to enact age-appropriate sentencing laws that reflect what brain science tells us: that juvenile brains really are different and that most kids simply outgrow delinquent tendencies. At the same time, we should offer education, substance-abuse treatment and therapy to those kids who enter the system rather than simply warehousing them and exacerbating their underlying trauma.

Just like the children of asylum-seekers crossing into America, juveniles accused of a crime are deserving of care and solicitude rather than condemnation and cruelty.

June 25, 2018 at 12:44 PM | Permalink


Will this lawyer be addressing the feminist lawyer war on the black family, and its defeat?

Posted by: David Behar | Jun 25, 2018 10:19:05 PM

Adult Alien Migrants (AAM) escorting Minor Alien Migrants (MAM) across a U.S. border w/o authority of law are manifestly culpable for any adult/minor separation near the border.

🤔The easy "fix" ?!🤔
AAM ➡️STOP⬅️ such escorting of MAM😁

Posted by: Docile in Oregon | Jun 26, 2018 3:43:42 AM

I have written for years about the use of cages in Eastern and Central Europe (Bulgaria, Czech Republic, elsewhere) for children in psychiatric hospitals, and how such use of cages have "been roundly condemned by the United Nations Human Rights Commission and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)" . See e.g., my article, International Human Rights Law and Comparative Mental Disability Law: The Universal Factors, 34 SYRACUSE J. INT’L L. & COMMERCE 333, 344-45 (2007), and my book INTERNATIONAL HUMAN RIGHTS AND MENTAL DISABILITY LAW: WHEN THE SILENCED ARE HEARD 93-94 (Oxford University Press, 2011). Although I have written critically about much of what Prof. Drinan discusses in this piece -- see e.g., “Yonder Stands Your Orphan with His Gun”: The International Human Rights and Therapeutic Jurisprudence Implications of Juvenile Punishment Schemes, 46 TEXAS TECH L. REV. 301 (2013)-- I see what we are doing now is even closer to what the UN has condemned as torture in the European cases than I thought five years ago.

For those interested in more, check out the country reports done regularly by the US-based NGO Mental Disability Rights International.

Sadly, Michael (with thanks to Prof Drinan for this piece)(for those keeping score at home, I was a "real lawyer" for 13 years, during which time I represented juveniles in the criminal and mental disabilty law systems; am now a professor emeritus, having taught for 30 years plus)

Michael L. Perlin, Esq.
Professor Emeritus of Law
Founding Director, International Mental Disability Law Reform Project
Co-founder, Mental Disability Law and Policy Associates
New York Law School
185 West Broadway
New York, NY 10013

Posted by: Mchael Perlin | Jun 26, 2018 7:46:09 AM

If some juvenile murders me, please cage them, thanks.

Posted by: Ben Frank | Jun 26, 2018 10:31:00 AM

Separation of a violent, repeat offender or of an active addict from his children is a tremendous benefit to these children.

Posted by: David Behar | Jun 26, 2018 4:15:22 PM

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