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Thursday, Jan. 25, 2001

Rehabilitation, as a criminal justice ideal, has gone so far out of style in the United States that many Americans are apparently quite willing to relegate even young offenders to the ranks of the irredeemable. The passage last year of California's Proposition 21, which expanded the number of children who will be tried as adults and sent to adult prisons, was just the latest blow to the traditional distinction between juvenile delinquents and adult criminals.

Mesmerized by visions of the rampaging "youthful predator," legislators at both the federal and state levels have enthusiastically promoted these legal changes. Indeed, over the past several years, nearly every state has revised its juvenile justice laws to facilitate prosecuting minors as adults.

At present, more juveniles than ever before are incarcerated in adult prisons and jails in the United States. And, given the proven link between youth and vulnerability to prisoner-on-prisoner rape, these juveniles are also at much greater risk of violent sexual assault.

It is ironic, to say the least, that our society — so concerned with preventing child pornography, and protecting children themselves from material with sexual content — sets the scene for children to be sexually exploited in prison.

Youthful Offenders' Vulnerability to Prison Rape

I gained a personal awareness of this problem when, as part of Human Rights Watch's research into prison rape, I began receiving the occasional letter or collect call from a sixteen-year-old held in an adult prison in Arkansas. I had contacted him after a woman whose young son had been raped in prison told me that his even younger friend, whom I'll call Tom, had also been raped there.

Tom's letters, written in a truly childish scrawl, gave me a sense of what it is like to be a boy in a prison for men. They described the older inmates' continuing harassment and the correctional staff's indifference. One letter complained of an inmate that "wouldn't leave me alone when I was asleep," and said: "The [housing unit] I'm in now had 2 people come to me and put an ink pen to my neck and tell me that if I didn't let them jack off on me they were going to rape me. I told the officers but they didn't do any thing about it."

A Nebraska inmate, writing to me about juveniles like Tom, described their situation even more bluntly: "The kids I know of here are kept in the hospital part of the prison until they turn 16. Then they are placed in general population. At age 16, they are just thrown to the wolves, so to speak, in population. I have not heard of one making it more than a week in population without being 'laid.'"

Federal Efforts to Blur the Distinction between Juvenile and Adult Offenders

The 106th Congress, which ended in 2000, saw the introduction of several bills designed to subject juveniles to the same criminal procedures and penalties as adults. In a grim irony, some of the same co-sponsors of these bills also sponsored legislation to encourage states to incarcerate persons convicted of "child molestation," among other serious crimes. Apparently, to these legislators, child molestation is no longer a crime if it happens to occur in prison.

These bills' titles are crowded with code words like "accountability," meant to resonate with a public tormented by the belief that criminals have been getting off easy. Prominent among federal legislators enlisted in this crusade was then-Senator John Ashcroft, now in the spotlight as President Bush's choice for attorney general.

The "Protect Children From Violence Act," a cruelly misnamed bill introduced by Ashcroft in 1999, aimed to use federal block grants to encourage states to move juveniles into the adult system of criminal justice. As noted above, for many children such changes would be more likely to subject them to violence — in particular, to violent rape — than to protect them from it.

Why the Ashcroft Bill and Others Like It Are Wrong to Treat Children as Adults

The Ashcroft bill scapegoated the juvenile justice system, implying that its separation from the adult system was itself a cause of violent youth crime.

In fact, juvenile violent crime statistics have fallen in recent years, just as adult crime statistics have. Moreover, there is no evidence that treating children as adults reduces crime. A study comparing Connecticut, whose juvenile-to-adult transfer rate was the highest in the United States, with Colorado, which had the lowest rate of such transfers, found that the juvenile crime rate was the same in each state. Similarly, studies of violent juvenile crime in Idaho, Florida, and New York have found that making it easier to try youths as adults does not prevent violent juvenile crime.

Laws Treating Juvenile Offenders like Adults Should Be Repealed.

Regrettably, Ashcroft has had ample company in his misguided quest to roll juvenile justice norms back to those of a century ago. No doubt the 107th Congress, even without Ashcroft's participation, will persevere in such efforts — and Ashcroft, if he is attorney general, will harshly enforce the laws that are passed — unless the public finally begins to question the wisdom of these anti-rehabilitative policies.

One can only wonder when this will happen. In the minds of many Americans, child pornography and child sexual abuse represent perhaps the ultimate evil. Nothing triggers hysteria, or prompts special legislative remedies (such as Megan's Law), the way crimes against children do.

Child sexual abuse outside of prison ruins lives, as society has often recognized. But we seem to be blind to the fact that inside prison, it does the same — making rehabilitation all the more difficult for a young person who still has, but can lose, the capacity to change. Trying and incarcerating youthful offenders as if they were hardened adult criminals may be a self-fulfilling prophecy.

Joanne Mariner, a FindLaw columnist, is deputy director of the Americas division of Human Rights Watch. She is also the author of Human Rights Watch's upcoming report on prisoner-on-prisoner rape in the United States.

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