THE CHILD IMPRISONMENT CRISIS

BY ALENA WESLEY

ENGL 138T – 008

APRIL 14, 2019

Abstract

The United States incarcerates more juveniles than any other country. 1 As a result, 10,000

juveniles are housed in adult jail facilities on any given day.2 In the United States, 13 states have

no minimum age for trying children as adults. If states do have a minimum age set, this age is

often at age 10, 12, or 13.3 The United States government has laws and acts in place, like The

Juvenile Justice and Delinquency Prevention Act of 1974 (JJDPA) and the Prison Rape

Elimination Act of 2003 (PREA), to protect children from being placed in adult prisons and jails.

Despite these laws and acts being in place, many states still continue to house juveniles with

adult inmates.2 This type of imprisonment leads to incarcerated children being raped and abused,

suffering from untreated mental illnesses, and having no access to proper education or vocational

training. In order to protect incarcerated children from the dangers of being held in adult jails and

prisons, both the federal and state governments need to reform criminal facilities, further enforce

current laws in place, and create new laws that increase the minimum age for being tried as an

adult and keep incarcerated adults and children separated.

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The Growing Issue of Children Jailed with Adults

Every year, around 250,000 children are prosecuted in adult criminal courts and handed

adult sentencing.1 Some of these children are not even teenagers yet. Consequently, many of

these children end up being housed in adult jails and prisons, as 39 states require juveniles

charged as adults to be held in an adult jail before their trial. This then comes to an astonishing

number of 10,000 juveniles, on any day, being housed in adult criminal facilities.2 This occurs

due to the current lax laws surrounding youth imprisonment and a lack of state compliance with

current federal law. In the United States, 13 states have no minimum age for trying children as

adults. When there is a minimum age set, this age is often at age 10, 12, or 13. 3 As a result,

children as young as eight have been tried in the adult court system.4 Many of these children will

then end up being held with convicted adults, putting them at a great risk for sexual and mental

abuse and trauma.

This child imprisonment

crisis has gotten significantly

worse in recent years. Between

1990 and 2010, the number of

juveniles in adult jails rose by

almost 230 percent.2 Youth

imprisonment has been on the

decline, but part of this is due to

Fig. 1. Troilo, Maddy. Locking Up Youths With
juveniles aging out of the statistics, Adults.5

meaning they have exceeded the age of 18. Even with such a decline, there are still more

juveniles in jail than there were in 1990.5 In order to protect incarcerated children from the
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dangers of being held in adult jails and prisons, both the federal and state governments need to

reform criminal facilities, further enforce current laws in place, and create new laws that increase

the minimum age for being tried as an adult and keep incarcerated adults and children separated.

Consequences of Youth Imprisonment in Adult Jails and Prisons

When children are held in adult jails and prisons, they are constantly subjected to sexual

abuse and assault by the adult inmates. According to the National Prison Rape Elimination

Commission, juveniles in adult criminal facilities are at a higher risk for sexual victimization

more than “any other group of incarcerated persons.” These children are five times more likely to

be sexually assaulted in adult facilities than they would be in juvenile facilities. Juveniles are

often sexually assaulted within their first 48 hours of incarceration in an adult criminal facility.2

However, sexual assault and abuse of juveniles in these adult facilities are frequently

underreported, and even covered up, because of the imbalance of power and prison staff. The

National Inmate Survey by the Department of Justice found that 75 percent of juveniles who

reported being sexually abused in adult jails and prisons said they had been repeatedly victimized

by the prison staff itself. In reality, the rate of sexual abuse by adult inmates and prison staff on

juveniles is much higher, as these statistics only come from reported cases. Less than one out of

10 juveniles actually report their abuse.6 When sexual assault is reported, prison staff often face

minimal punishment, and usually keep their job position.7 This ultimately creates a cycle of

sexual abuse against juveniles, as there are not severe enough consequences to prevent such

actions from occurring.

Children in adult jails and prisons experience a substantial amount of traumatic

experiences, from being isolated in a cold, unfamiliar place without friends or family to being

sexually abused by their fellow inmates. These traumatizing experiences lead to a multitude of
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mental health issues. Unfortunately, juveniles housed in adult jails and prisons do not have the

resources available to them to help them through their mental illnesses. Their mental health only

worsens when being incarcerated. 65 to 70 percent of youth in the criminal justice system suffer

from a mental illness, and most suffer from more than one. Unfortunately, fewer than 10 percent

get the sufficient treatment they need.4 As a result, juveniles housed with adult offenders in

prison are 36 times more likely to commit suicide than those housed apart from the adult

offenders.6 Juvenile systems have more mental health services available than the adult facilities

do, which can allow incarcerated children to get the proper counseling and health services they

need to deal with their mental illnesses.2

Juveniles in adult facilities also do not have the proper educational and vocational

resources they need to better their lives once they are released. A 2005 survey found that 40

percent of adult jails and prisons had no educational services. This survey also found that only 7

percent provide vocational training.2 Such a lack of these resources sets up incarcerated children

in adult facilities for failure due to the fact that they are then less likely to return to school or find

a job once released from jail. They are also at an increased risk for recidivism, being 34 times

more likely to return to the criminal system than they would be if they were held in juvenile

facilities.6

Benefits of Juvenile Facilities

When juveniles are properly held in juvenile institutions, they are able to reap the

educational and psychological benefits that these institutions provide, which cannot be found in

regular adult criminal institutions.6 The juvenile system has programs designed specifically for

how children learn and think and has shown to be more effective at rehabilitating youth. 8

Juveniles in these facilities are entitled to educational and therapeutic programing while
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incarcerated. Juvenile facilities recognize that the brain continues to develop into the mid-

twenties, and therefore work to develop incarcerated juveniles into healthy and productive

adults.9 A 17-year-old in jail in Missouri stated “If I were kept in the juvenile system, I would’ve

already been home with a trade or a college degree in child counseling, showing I can be a good

citizen in society. Instead, I’m being labeled and wrote off as a lost cause.” 10 There are

incarcerated children all over the country who are being deprived of opportunities to better their

lives that a juvenile facility could easily provide. The main goal of the juvenile justice system is

rehabilitation, while the adult criminal system is mainly focused on incarceration. Thus, this

rehabilitation decreases the chance of incarcerated juveniles returning to the criminal justice

system.6 It is evident that juvenile facilities provide the critical guidance and supervision

juveniles need to get their life back on track.9

Current Federal Law and Lack of Compliance

There are currently federal laws and acts in place to prevent children from being housed

with adult inmates. The Juvenile Justice and Delinquency Prevention Act of 1974 (JJDPA) and

the Prison Rape Elimination Act of 2003 (PREA) were both passed to protect convicted

juveniles. These federal laws state that “youth transferred from juvenile facilities to the adult

system must be separated by sight and sound from adult inmates.”2 The JJDPA specifically bans

states from housing children in adult jails, even if they are charged as an adult.11 However, many

states have refused to follow these laws, with the only consequence being having to forfeit

federal grant money. Other states have said they will comply with the laws but have yet to take

the action to do so because the federal government has not taken any action to ensure they go

through with such laws.2 Adding to these flaws, the JJDPA allows states to choose what defines

a “juvenile,” that is, what age juveniles become adults. Therefore, states that comply with JJDPA
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can still technically try juveniles as adults, as long as they lower the age limit. For example, in

New York and North Carolina, juveniles are considered adults at 16, and can therefore be held in

adult criminal jail facilities at this age. On the other hand, PREA defines juveniles as anyone

under the age of 18. Unfortunately, such inconsistency and disagreement on the age cut-off has

slowed progress towards compliance with PREA’s age standard for juveniles, as only 11 states

currently comply with this act.6

The United States Supreme Court has rules that ensure adults being tried before a

criminal court are competent and can be properly defended. When it comes to children being

criminally prosecuted in court, there are no guidelines currently set to protect them. This leaves

children particularly “vulnerable and at great risk” when attending court as the defendant. The

Equal Justice Initiative states that young children are “developmentally incapable of exercising

the judgement, maturity, and knowledge necessary to competently defend themselves against

criminal prosecution in adult court.”3 Children are not fit to be alone in adult court, and even

more so in adult jails and prisons. The absence of a federal law regarding the rights of children in

adult criminal courts can leave them feeling helpless and confused about their own trial. This

practice is not only unfair, but dangerous and harmful towards the child’s mental and physical

wellbeing.

Forced Compliance with Federal Law

Currently, there are no legal consequences given to states when they do not comply with

the federal laws and acts regarding JJDPA and PREA. States can simply opt out of following

JJDPA and PREA, with the only consequence being that of losing federal funding for their state

jails and prisons. This consequence is obviously not enough to eliminate the issue of youth

incarceration in adult prisons. For example, Alaska, Arkansas, and Utah have either not complied
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with these federal laws and acts or have reported that they have no plan to do so in the future. In

response to being accused of noncompliance, these states have come forward and stated that the

federal government is “citing undue financial burden” and taking away the “right of states to

oversee their criminal-justice system.” Some states believe it should be unconstitutional for the

federal government to enforce these laws.6 However, the laws and acts are being passed so that

incarcerated children are no longer subjected to the unconstitutional abuse and trauma of adult

criminal facilities.

If states were forced to follow these federal laws, and threatened with harsher, legal

punishments when they do not, children in adult jails and prisons could be placed in proper

juvenile facilities. A simple punishment would be if states do not comply, their prison or jail with

juveniles and adults housed together will be shut down, and the juveniles can be relocated to a

proper juvenile facility that complies with the law. If all states were to comply with PREA and

other similar acts, states could avoid the issue of having to relocate inmates and suffer the

financial burden of having a prison shut down. If a prison or jail were to be shutdown, the ability

to relocate inmates could be brought up for concern. However, according to the Equal Justice

Initiative, “every state in the country maintains juvenile facilities or could segregate juveniles

from adults, but many refuse to do so.”3 States are currently able to separate juveniles and adults,

there are simply no consequences harsh enough to start this change. As a result, states will

continue to practice the housing of incarcerated juveniles with adults until they ultimately have

no choice but to separate them. The federal government needs to hold their ground with these

laws and acts in order to protect juvenile inmates.

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Increased Minimum Age for Trying Children as Adults

The minimum age for being tried as an adult varies from state to state, with some being

as low as 10-years-old, while others simply do not have a minimum age set at all. The Equal

Justice Initiative states that “children under the age of 14 are protected in virtually every area of

the law, except when it comes to the criminal justice system.” However, the Equal Justice

System still has the goal of raising the minimum age of being tried as an adult to 18. Adolescent

development experts have explained that young children cannot be fairly prosecuted as adults. 3

Even at the age of 18, the brain is still years away from being completely developed, so those

under that age should not be subjected to the harsh punishments, conditions, and experiences of

adult courts and jails.5 Legally, children become adults at the age of 18, and should therefore not

be tried as an adult until reaching said age. All children under the age of 18 should be prosecuted

in juvenile court and thus kept in juvenile facilities. Raising the minimum age of being tried as

an adult to 18 years of age would ensure that no child would end up in an adult criminal facility

in hopes of a decreased risk of sexual abuse, increased mental health services, and access to

proper education and vocational training provided in juvenile facilities.

The “Raise the Age” movement has been spreading across the nation advocating for

legislation that specifically prevents 16- and 17-year-olds from being automatically charged as

adults. Citizens are encouraged to sign petitions in order to get their state governments to pass

the “Raise the Age” law.8 In the states that have passed this law, youth incarceration has seen a

steady decline. For example, Massachusetts passed the “Raise the Age” law in 2013, and since

then, there has been a decrease in both detained and committed youth.10 However, after reading

into the fine print of the law, it becomes apparent that the law states that 16- and 17-year-olds

accused of a felony will still be tried in an adult court. According to the New York State Division
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of Criminal Justice Services, in

2016, 3,445 juveniles were tried

in an adult court as a result of

committing a violent felony

under the new “Raise the Age”

law.12 Therefore, under this law,

thousands of juveniles can still be

tried in an adult court and end up in

Fig. 2. Ashton, Paul. Raising the Age: Shifting to a
an adult prison or jail. Despite the Safer and More Effective Juvenile Justice System.10

drawbacks of this law, the “Raise the Age” movement is working towards the right direction to

raise the minimum age of juveniles who can be tried as an adult. Pushing for and supporting

movements like this one can encourage both federal and state governments to make reform to the

criminal justice system regarding the age a juvenile becomes an adult.

Stricter Requirements and Monitoring and Harsher Punishments for Prison Staff

It is essential that prison staff are trained to properly handle and prevent the abuse of

juveniles, should they end up being held in adult criminal facilities. It is also critical that trusted

and professional individuals are hired to guard jails and prisons. Prison staff physically and

sexually abusing inmates has been a continuous problem that has resulted in many assaults going

underreported or covered up, with juveniles being particularly vulnerable.6 When assaults are

reported, they are often “met with only marginal inquiry and minimal prosecution from

authorities.”7 To address such issues, John Kiriakou, an associate fellow at the Institute for

Policy Studies, suggests to “put cameras absolutely everywhere in prisons, and to vet and train

guards much more thoroughly.”13 Currently, if an assault is not caught on camera, it is the
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juvenile victim’s word against the prison

staff member’s word, and the juvenile tends

to lose this battle. Even if another inmate

witnesses an assault, they can be easily seen

as untrustworthy to the court system, and

thus their testimony is deemed unreliable.7

Having additional cameras in prisons will

provide concrete evidence if an assault were

to occur, so that it can be addressed and

Fig. 3. Ptacin, Mira. Guards vs. Inmates:
Mistreatment and Abuse in the US Prison dealt with properly. Unfortunately, additional
System.14
cameras could be seen as an invasion of

privacy. In this case, prisons must understand that the safety of their inmates should be their

primary concern, so if increased surveillance is what is needed to decrease sexual assault, then

that is what should be done.

Assault by prison guards should also be met with harsher consequences, to show others

that such behavior is never tolerated. There is currently an arbitration process that decides if

prison staff accused of sexual assault should keep their jobs and what punishments should be put

into place. Many times, these arbitrations result in a split decision and end up “returning abusive

employees to the very environment where they do not belong.” Those involved in deciding the

punishment for sexual assault are also often reluctant to “push aggressively against fellow law

enforcement entities,” leading to sexual assault cases being pushed to the side and resulting in no

clear, effective punishment. The former governor of New York suggests that the prosecution of

violence in prisons should be handled by a statewide special prosecutor or the federal

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authorities.7 Such a change would further ensure there is no division in decision on how to deal

with sexual assault accusations and that sexual assault cases are not covered-up or only handled

with a light, ineffective punishment. Having a third-party deal with these situations would

provide an unbiased decision on punishment, so victims can be protected and receive the justice

they deserve.
 Wesley 11

References
1“Youth Incarceration.” American Civil Liberties Union, The American Civil Liberties Union

Foundation, www.aclu.org/issues/juvenile-justice/youth-incarceration.
2Curley, Caitlin. “Juveniles Tried As Adults: What Happens When Children Go to

Prison.” GenFKD, YoungAmerica.org, 11 Nov. 2016, www.genfkd.org/juveniles-tried-

adults-happens-children-go-prison.
3“All Children Are Children.” Equal Justice Initiative, Equal Justice Initiative.
4Vargas-Smith, Adriana. “Juveniles.” Prisoner Health, The Center for Prisoner Health and

Human Rights, www.prisonerhealth.org/educational-resources/factsheets-2/juveniles/.

5Troilo, Maddy. “Locking up Youth with Adults: An Update.” Prison Policy Initiative, Prison

Policy Initiative, 27 Feb. 2018, www.prisonpolicy.org/blog/2018/02/27/youth/.

6Lahey, Jessica. “The Steep Costs of Imprisoning Juveniles With Adults.” The Atlantic, Atlantic

Media Company, 13 Jan. 2016, www.theatlantic.com/education/archive/2016/01/the-

cost-of-keeping-juveniles-in-adult-prisons/423201/.
7Spitzer, Eliot. “How to Deal with Prison Brutality.” The Marshall Project, The Marshall

Project, 5 Oct. 2015, www.themarshallproject.org/2015/10/05/how-to-deal-with-prison-

brutality.
8“RAISE THE AGE NC.” Youth Justice North Carolina, Youth Justice Project,

youthjusticenc.org/raise-the-age-nc/
9“Youth in the Justice System: An Overview.” Juvenile Law Center, Juvenile Law Center,

jlc.org/youth-justice-system-overview.
10Ashton, Paul. “Raising the Age: Shifting to a Safer and More Effective Juvenile Justice

System.” Justice Policy Institute, Public Welfare Foundation,

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www.justicepolicy.org/uploads/justicepolicy/documents/raisetheagesummary_final_3_6_

16.pdf.
11“Major Juvenile Justice Bill Bans States From Holding Children in Adult Jails.” Equal Justice

Initiative, Equal Justice Initiative, 3 Jan. 2019, eji.org/news/new-bill-bars-holding-

children-in-adult-jails.
12Hager, Eli. “The Fine Print in New York's Raise the Age Law.” The Marshall Project, The

Marshall Project, 14 Apr. 2017, www.themarshallproject.org/2017/04/14/the-fine-print-

in-new-york-s-raise-the-age-law.
13Kiriakou, John. “How To Stop The Endemic Problem of Prisoner Abuse in Federal

Prisons.” Institute for Policy Studies, Institute for Policy Studies, 27 Jan. 2016, ips-

dc.org/stop-endemic-problem-prisoner-abuse-federal-prisons/.
14Ptacin, Mira. “Guards vs. Inmates: Mistreatment and Abuse in the US Prison System.” Vice,

The Marshall Project, partners.vice.com/starz/starzpowers4/news/guards-vs-inmates-

mistreatment-and-abuse-in-the-us-prison-system/.