In recent years, the Children’s Defense Fund has received horrifying reports of the physical and sexual abuse of children and teens in juvenile correctional facilities. There are accounts of children being forced to eat their own vomit, of children being left naked for weeks in small isolation cells with nothing but a hole in the floor for a toilet, and of children being hog-tied–placed face down on the floor with their shackled hands and feet drawn together–for 12 or 13 hours. We have learned of many disturbing accounts of boys and girls being sexually abused and of some dying while in the custody of the state juvenile justice system.

This nationwide abuse of incarcerated youths is a moral outrage. One need only look to the recent scandals plaguing the Texas Youth Commission and Mississippi’s Columbia Training School for evidence of how vulnerable incarcerated youths are to being abused. A recent Associated Press survey found more than 13,000 claims of abuse were identified in juvenile correction centers around the country from 2004 through 2007. Many experts feel that this number represents significant underreporting. In July 2005, the U.S. Department of Justice released a report declaring that state-operated juvenile facilities had the highest rates of alleged staff sexual misconduct when compared to state and federal prisons. Youths detained in adult jails are also at high risk of becoming victims of physical and sexual assault.

Despite these disturbing facts, federal law places a significant burden on the thousands of incarcerated children and youths that face abusive conditions of confinement. In 1996, Congress passed the Prison Litigation Reform Act (PLRA) to limit the number of “frivolous” prisoner lawsuits. The stated goal of the measure was to “help restore balance to prison conditions litigation and ensure that Federal Court Orders are limited to remedying actual violations of prisoners’ rights.” One of the PLRA’s provisions prohibits prisoners from filing lawsuits for mental or emotional injury without demonstrating a “physical injury.” And prisoners must exhaust all administrative remedies before they can file a suit in federal court. The law also put restrictions on attorneys’ fees in prisoner cases. The effect of these provisions has been to reduce the number of prisoner abuse complaints that reach federal courts. The “success” of the PLRA, however, comes with problems as civil liberties and youth advocates charge that the act’s requirements pose insurmountable barriers to adults and youths filing legitimate claims in federal court.

There are good reasons why children and teens should be excluded from the requirements of the PLRA. First and foremost, children do not file frivolous lawsuits. Many incarcerated children and teens lack adequate legal representation to assist them if they allege abuse or violation of other rights. Children and teens are far less capable than adults of following the difficult and often convoluted administrative processes they must adhere to in order to comply with the PLRA. Most importantly, it is unacceptable for children and youths to be forced to report abuse to either their abusers or subordinates of their abusers.

The law’s requirement that they exhaust all administrative remedies could mean a youth detainee would have to take her complaint to the prison guard who rapes her in hopes that the head of the detention center, who winks at the guard’s behavior, does something about it. Many youths fear or actually risk retaliation if they file an administrative complaint. The fact that most children and teens cannot overcome these hurdles effectively insulates correctional facilities from accountability for deplorable detention and correctional facility conditions.

On April 22, 2008, I submitted testimony before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security urging the panel to take the necessary steps to exclude children and youths from the requirements of the PLRA. Passage of the Prison Abuse Remedies Act of 2007 (H.R. 4109) would do that and eliminate some of the barriers that prevent young people from accessing our federal courts for relief if they are abused behind bars.

We’ve all seen movies that depict the tenacious and savvy adult prison inmate who spends hours in the penitentiary library poring over law books. He constantly sends communications to the warden, penal officials and courts. It is unreasonable for our nation to expect the same from incarcerated children and teens. We must not look away while children and teens are abused. Allowing this abuse to persist unchecked contradicts the rehabilitative mandate set out for the juvenile justice system. It is impossible to expect incarcerated children and teens to be rehabilitated and become successful adults in these kinds of conditions. Our nation’s juvenile detention system is in desperate need of massive reform. Passing the Prison Abuse Remedies Act of 2007 would be a good start.

Source: Edelman, Marion Wright, “Congress Must Act to Protect Young Detainees from Abuse” (May 19, 2008). Huffington Post. Available at: http://www.huffingtonpost.com/marian-wright-edelman/congress-must-act-to-prot_b_102430.html

The city said that in the year since the program began, fewer than 35 percent of the 275 youths who have been through it have been rearrested or violated probation. By treating them in the context of their families and environments rather than in isolation, officials found that recidivism was usually less than half that of residential correction programs. ….at roughly $17,000 per child, such in-home therapy programs cost a fraction of the annual expense of keeping a child in secure detention, which can be $140,000 to $200,000.

• NY Times: A Home Remedy for Juvenile Offenders

Consider the story of one boy reported in the Times:

On the afternoon of Sept. 19, 2006, two deputies knocked on Andrea Macdowell’s front door and asked to see her 11-year-old son, Bryce. Standing on the porch of her Palm Harbor home, deputies accused the boy of spray-painting graffiti on a Dumpster. The mother told them they had been at a family gathering in Clearwater on the night of the crime. But a deputy didn’t buy it. “He said, ‘Your son is a (expletive) little punk,’” Macdowell recalled. “At that point I said, ‘We’re done.’ Bryce and I went inside and shut the door and they left. You don’t stand on my porch and degrade my son.”

The next day, the same officers — Cpl. Stanley Schneider and Deputy James Brueckner of the Pinellas County Sheriff’s Office — showed up at Palm Harbor Middle School and took Bryce to a small office. No school administrators were present, and a substitute school resource officer stood outside the room.Under pressure, Bryce made what deputies called a confession. They arrested him on misdemeanor charges of criminal mischief and took the boy to a juvenile detention center. Then they called his mother.

The judge threw out the confession and the case was dropped. It doesn’t always work out that way of course. Consider another disturbing statistic noted in the report - according to the Florida Supreme Court “[h]alf of all juveniles went without a lawyer in Pasco and Pinellas counties in 2005, as did three-quarters of those in Sarasota, Manatee and De Soto counties…”

Children who commit acts which would ordinarily be dealt with at school are now being processed through the legal system without the assistance of counsel at extraordinary rates. That’s a recipe for disaster. The criminal records generated here can follow them well into adult life. As one judge eloquently puts it -

“They won’t be able to get a job, they won’t be able to go to college,” said Judge Robert Evans of the 9th Judicial Circuit. “They’re screwed for life.”

• St. Petersburg Times: When students are suspects, lines blur, Police in Florida sometimes go beyond their legal authority when interrogating suspects while they are in school.
• James Taranto, Wall Street Journal, ‘Zero Tolerance’ Makes Zero Sense School discipline goes mad.
• Marsha L. Levick & Robert G. Schwartz, Changing the Narrative: Convincing Courts to Distinguish between Misbehavior and Criminal Conduct in School Referral Cases, 9 U. D.C. L. Rev. 53 (2007)
• Education on Lockdown: The Schoolhouse to Jailhouse Track (.pdf)
• Derailed: The Schoolhouse to Jailhouse Track (.pdf)

Michael Lindsey* is a local consultant who has worked extensively with the Casey Foundation and is the organization’s point man here. He said this country’s get-tough policies on crime spilled down to have a devastating effect on children and teens. “The attitude basically became: ‘Lock ‘em all up and let God sort ‘em out,’ ” he said. Unfortunately, the approach backfired and juvenile detention became like the farm team for adult prisons – with way too many kids making it to the majors.

Mike Griffiths, director of the Dallas County Juvenile Department, points to the voluntary adoption of the Juvenile Detention Alternatives Initiative as an indication that local officials are looking for alternatives to avoid recidivism and ease the burden on detention facilities.

The Juvenile Detention Alternatives Initiative, funded by the Annie E. Casey Foundation, is aimed at “reducing the unnecessary confinement of youth in our country.” Since its inception in 1992, the project has had some notable successes in reducing detention rates and time spent in detention, reduction in the overall amount of youth crime in the affected area and reducing racial disparity in juvenile corrections settings.

* In the interests of disclosure it should be noted that Michael Lindsey is a Fellow at the Center for Children, Law & Policy.

• Dallas Morning News: County’s youth detention program offers ray of hope
• Annie E. Casey Foundation: Juvenile Detention Alternatives Initiative