On December 14, 2015, Philip Chism, of Danvers, Massachusetts, was convicted of raping and murdering his high-school math teacher, Colleen Ritzer. Chism, now 16, was 14 when he committed the crime, but was tried as an adult due to a Massachusetts state law requiring juveniles 14 and older accused of murder to be tried as adults. Massachusetts has policies in place that prevent juveniles from being sentenced to adult prisons, policies meant to protect youth from the increased risk of sexual abuse, injury, and death they face when imprisoned alongside adults.
Juveniles constitute 1,200 of the 1.5 million people housed in federal and state prisons in this country, and nearly 200,000 youth enter the adult criminal-justice system each year, most for non-violent crimes. On any given day, 10,000 juveniles are housed in adult prisons and jails. These children lose more than their freedom when they enter adult prisons; they lose out on the educational and psychological benefits offered by juvenile-detention facilities. Worse, they are much more likely to suffer sexual abuse and violence at the hands of other inmates and prison staff. The National Prison Rape Elimination Commission described their fate in blunt terms in a 2009 report: “More than any other group of incarcerated persons, youth incarcerated with adults are probably at the highest risk of sexual abuse.”
The National Inmate Survey conducted by Department of Justice indicates that “1.8 percent of 16- and 17- year-olds imprisoned with adults report being sexually abused by other inmates.” Of these cases, 75 percent report having been victimized repeatedly by staff. However, due to the imbalance of power between children and adults, not to mention between children and prison staff, sexual abuse of juveniles in adult prison is underreported; fewer than one in 10 of the juveniles surveyed reported their abuse. Given the lack of services and safety, it’s hardly surprising that juveniles housed in adult prisons are 36 times more likely to commit suicide than juveniles housed apart from adult offenders.
The federal government has taken steps to protect juveniles from being housed with adults through two federal statutes: the Juvenile Justice and Delinquency Prevention Act of 1974 (JJDPA) and the Prison Rape Elimination Act of 2003 (PREA). Under JJDPA and PREA guidelines, juveniles must be housed separately from adult inmates. Despite these statutes, states continue to house juveniles with adult inmates, and a few have chosen to forfeit federal-grant dollars rather than comply with PREA.
PREA defines juveniles, or, in PREA language, “youthful inmates,” as “any person under the age of 18 who is under adult-court supervision and incarcerated or detained in a prison or jail.” PREA’s “youthful inmate” standard is the first time a federal statute has defined juveniles as anyone under age 18. The JJDPA, however, allows states to set their own definition of “juvenile” as they see fit, and exempts youths being tried as adults from the JJDPA. Nine states (North Carolina, New York, Missouri, Texas, South Carolina, Georgia, Michigan, Louisiana, and Wisconsin) set the upper limit for “juvenile” at 16 years of age; in New York and North Carolina judicial systems, youths are automatically considered adults at age 16. This discrepancy in age definitions has resulted in disagreement, discord, and ultimately, slow progress toward compliance with PREA’s youthful-inmate standard in many states. Texas recently agreed to comply earlier this year, albeit conditionally and with great reluctance, and in Utah, progress has stalled altogether.
In the Department of Justice’s annual report on the states’ progress toward PREA compliance, 11 jurisdictions (Arizona, Iowa, Maine, Mississippi, Missouri, New Hampshire, New Jersey, North Dakota, Oregon, Tennessee, and Washington) certify they are in compliance with PREA guidelines, up from two states in 2014. Most other jurisdictions have submitted assurances of their intent to comply with the guidelines. Alaska, Arkansas, and Utah have either ignored the guidelines or report they have no plans to comply, citing undue financial burden and the right of states to oversee their criminal-justice system.
Assurances do not equal compliance, however, and many of these states, such as Michigan, New York, Texas, and Florida, continue to house juveniles with adults, and as Florida has the highest rates of inmate-on-inmate sexual victimization and staff sexual misconduct, juveniles imprisoned in that state face a much higher risk of sexual abuse.
Recommendations under PREA are designed to ensure juveniles get the educational, psychological, and vocation services that only juvenile-detention centers can provide, but they also ensure physical separation between juvenile and adult prisoners when the state has no choice but to house juveniles at the same facility as adults. It requires that youthful inmates be housed apart from adults, share no common spaces, such as showers or day rooms, and where they do share facilities, there must be “sight and sound” separation between youths and adults.
Some states, citing a lack of PREA-compliant facilities, transfer juveniles to other states. Kansas, for example, sends its 16- and 17-year-old prisoners to Nebraska in order to keep them out of adult prisons. While this solution keeps juveniles safer from sexual abuse, it interferes with juveniles’ access to visits from friends and family and the emotional support they can provide—the American Academy of Pediatrics has advocated strongly for family involvement in any juvenile’s health-care treatment. Juveniles housed away from their home state or county can also lose access to their lawyers, rendering them even more powerless from a legal and emotional standpoint.
Access to legal counsel is not only guaranteed by the Constitution, it is also essential to guarding against abuses of power, argues Carmen Daugherty, who serves as the policy director for the Campaign for Youth Justice. “When youth are sent to prison outside of their counties or states, it makes it that much more difficult for that youth to access lawyers who can assist with complicated appeal issues. Instead, you have youth missing out on opportunities for review or opportunities to report prison abuses to attorneys who are often the only people able to visit inmates at any time,” Daugherty explained in a phone interview.
Housing youthful inmates in adult prisons is bad public policy, both for incarcerated juveniles and society at large, she argues. “The impetus behind transferring kids to the adult system has always been public safety, but research has shown the exact opposite. Kids who are placed in the adult system are 34 times more likely to recidivate than their counterparts in the juvenile system.”
Because these kids are less likely than their counterparts imprisoned in juvenile centers to get the vocational training and education they need in order to function after release in an adult prison, society is essentially setting them up to fail, and priming them for recidivism. Most juveniles, even those convicted as adults, are released while they are still young. “Approximately 80 percent of youth convicted as adults will be released from prison before their 21st birthday, and 95 percent will be released by their 25th birthday,” according to the Campaign for Youth Justice.
However, the United States maintain a separate legal system for children in this country for a reason, because American society believes in the goal of rehabilitation and treatment for juveniles. Given this goal, Daugherty argues, housing juveniles with adults is counterproductive. “We live in a society where we believe in redemption, that youth are redeemable. And if they are not, we place them in facilities that can treat them. Some of the offenses kids commit are violent, and atrocious, as in the Philip Chism case. However, the vast majority of kids are imprisoned for non-violent offenses, and we should be working to rehabilitate these youth while they’re still young, as opposed to throwing them away in the adult system.” Laurence Steinberg, the author of Age of Opportunity: Lessons from the New Science of Adolescence, agrees, adding,
Compared to adults, [juveniles] are more likely to be harmed by exposure to stress and trauma, but they are also more likely to benefit from rehabilitation. In view of what we know about conditions of confinement in correctional facilities, it’s no surprise that juveniles who are released from adult facilities are in worse shape, and are more likely to reoffend, than their counterparts with similar criminal histories who are released from facilities designed with adolescents in mind.
Daugherty suggests that it’s difficult to get people to care about the plight of juveniles in prison due to longstanding tolerance of prison sexual abuse. “The joke is that you go to prison, and learn quickly not to drop the soap. The assumption of prison sexual abuse has become so entrenched in American culture that it is assumed to be part of the punishment, but it’s not. You get sentenced to jail and prison, not to be raped and abused behind bars.”