HUMAN RIGHTS WATCH 1630 Connecticut Avenue, N.W. Suite 500 July 30, 2008 Washington, DC 20009 Tel: 202-612-4321 Fax: 202-612-4333 The Honorable Patrick J. Leahy Email: [email protected] Chairman, Committee on the Judiciary

United States Senate US PROGRAM 433 Russell Senate Office Building David C. Fathi, Director Carol Chodroff, Advocacy Director Washington, DC 20510-4502 Alice Farmer, Aryeh Neier Fellow Jamie Fellner, Senior Counsel Thomas Gilchrist, Associate Ashoka Mukpo, Associate The Honorable Alison Parker, Deputy Director Sarah Tofte, Researcher Ranking Member, Committee on the Judiciary A DVISORY COMMITTEE Catherine Powell, Chair Catherine Albisa 711 Hart Senate Office Building Preeta Bansal Ann Beeson Washington, DC 20510-3802 Jeff Bleich Stephen Bright Tanya Coke David Cole Re: Human Rights Watch opposes Senator Kyl’s amendment to Mike Farrell Vanita Gupta S. 3155, the Juvenile Justice and Delinquency Prevention Reauthorization David Keller Lulie Haddad Act of 2008 Wendy Patten Bill Quigley Bruce Rabb Steven Shapiro Dear Chairman Leahy and Senator Specter: Alexandra Stanton Julie Stewart Dorothy Thomas Robin Toone Human Rights Watch writes in strong opposition to Senator Kyl’s Human Rights Watch proposed amendment to S. 3155, which would give prosecutors Kenneth Roth, Executive Director Michele Alexander, Development & Outreach Director unfettered and unreviewable discretion to prosecute juveniles aged 16 or Carroll Bogert, Associate Director Emma Daly, Communications Director 17 as adults for certain listed offenses. Barbara Guglielmo, Finance & Administration Director Peggy Hicks, Global Advocacy Director Iain Levine, Program Director Suzanne Nossel, Chief of Operations Under current federal law, as outlined in the Juvenile Delinquency Act, 18 Dinah PoKempner, General Counsel Joe Saunders, Deputy Program Director USC §§ 5031 - 5037, a juvenile may be transferred to the adult criminal James Ross, Legal and Policy Director Jane Olson, Chair, Board of Directors justice system only after judicial consideration of enumerated factors, and a formal finding on the record that the transfer would “be in the interest of justice.”1 The factors for consideration include the age and social background of the juvenile; the nature of the alleged offense; the extent and nature of the juvenile’s prior delinquency record; the juvenile’s present intellectual development and psychological maturity; the nature of past treatment efforts and the juvenile’s response to such efforts; and the availability of programs designed to treat the juvenile’s behavioral problems.2 In considering the nature of the offense, the court must also consider the extent to which the juvenile played a leadership role in an organization, or otherwise influenced other persons to take part in criminal activities, involving the use or distribution of controlled substances or firearms.3

1 18 USC § 5032. 2 Ibid. 3 Ibid.

BERLIN·BRUSSELS·CHICAGO ·GENEVA·LONDON·LOS ANGELES·MOSCOW · NEW YORK · SAN FRANCISCO · TORONTO · WASHINGTON Human Rights Watch to Senators Leahy and Specter Opposing Sen. Kyl’s Proposed Amendment to S. 3155, JJDPA Reauthorization July 30, 2008, Page 2 of 4 Senator Kyl’s proposed amendment would eliminate judicial evaluation of these factors. It would amend the juvenile transfer law by granting the Attorney General the authority to prosecute 16 and 17 year olds as adults for certain enumerated offenses. His amendment would also prohibit any judicial review of the determination to prosecute a juvenile as an adult.4 The amendment would further broaden the transfer of juveniles to the adult criminal justice system by granting the Attorney General the unfettered authority to prosecute as adults children who engage in inchoate offenses, including attempt and conspiracy to commit kidnapping, rape and murder, and the related lesser included offenses.5

By increasing the transfer of youth into the adult criminal system and eliminating judicial review of the transfer decision, Senator Kyl’s amendment flouts widely accepted scientific research and basic principles of criminal and juvenile justice.

In 1999, Human Rights Watch addressed the issue of juvenile transfer in the report, No Minor Matter.6 In that report, we stated:

The national movement to charge more youth in the adult criminal system is premised on the inaccurate assumptions that juvenile crime is on the rise and that trying children as adults will reduce crime. In fact, juvenile crime has declined steadily even as the proponents of harsh juvenile sentencing have predicted an onslaught of adolescent offenders. In addition, studies in at least five states have concluded that laws that make it easier to transfer children to adult courts do not measurably reduce violent crime.7

Since that report was released, research has demonstrated that youth who are transferred to the adult criminal justice system are more likely to commit additional crimes in the future. A recent report from the US Centers for Disease Control and Prevention (CDC) addressed the issue of juvenile transfer. This report found that children who are tried as adults are, on average, 34% more likely to commit future crimes than similarly situated youth retained in the juvenile justice system.8 The report also revealed that transferring youth to the adult system resulted in an increase in pretrial violence against and victimization of youth, and elevated suicide rates among juveniles in adult facilities.9 The CDC Task Force concluded

4 Senator Kyl’s proposed amendment reads: “The decision whether to prosecute a juvenile as an adult under this subsection is not subject to judicial review in any court.” Senator Jon Kyl, Proposed Amendment to S. 3155, p. 2, lines 23-25. 5 Ibid., pp. 2-3. 6 Human Rights Watch, No Minor Matter: Children in Maryland’s Jails (New York: Human Rights Watch, 1999), http://www.hrw.org/reports/1999/maryland. 7 Ibid., p. 2. 8 Centers for Disease Control and Prevention, “Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice System: A Report on Recommendations of the Task Force on Community Preventive Services,” vol. 56, no. RR-9, November 30, 2007, http://www.cdc.gov/mmwr/pdf/rr/rr5609.pdf (accessed July 30, 2008). 9 Ibid. Human Rights Watch to Senators Leahy and Specter Opposing Sen. Kyl’s Proposed Amendment to S. 3155, JJDPA Reauthorization July 30, 2008, Page 3 of 4 by recommending against “laws or policies facilitating the transfer of juveniles from the juvenile to the adult judicial system.”10

Senator Kyl’s amendment is also inconsistent with US treaty obligations under international law. As Human Rights Watch has emphasized in previous letters to this Committee in connection with S. 3155, international law requires separation of detained juveniles from adults, and the provision of treatment and rehabilitation appropriate to a youth’s age and stage of development.11 Increasing juvenile transfers and eliminating judicial discretion to evaluate a youth’s development and individual situation would be incompatible with US treaty obligations under the International Covenant on Civil and Political Rights.12

There is no question that juveniles who commit crimes must be held accountable. But no disposition for a youthful offender, regardless of the offense, should ever include abuse, mental health deterioration, or victimization. Nor should it increase crime. Federal juvenile justice policies should be consistent with US treaty obligations under international law, reflect the reality that children are different from adults, and ensure that the prosecution of a juvenile reflects his or her age, level of development, and greater potential for rehabilitation.

Human Rights Watch has already expressed strong support for S. 3155, the Juvenile Justice and Delinquency Prevention Reauthorization Act of 2008 (JJDPA), and the strengthening amendments to provide enhanced mental health services and to eliminate the institutionalization of status offenders. Senator Kyl’s amendment, however, would undermine the basis for our support of this bill.

For the foregoing reasons, Human Rights Watch urges the Senate Judiciary Committee to oppose Senator Kyl’s amendment to S. 3155.

Thank you for your consideration, and please feel free to contact me if I can provide any further information.

Sincerely,

Carol Chodroff Advocacy Director, US Program

10 Ibid. 11 For more information on US obligations under international law in connection with the Juvenile Justice and Delinquency Prevention Reauthorization Act of 2008, please see the letters Human Rights Watch submitted to this Committee on July 3, 2008 (http://hrw.org/english/docs/2008/07/03/usdom19284.htm) and July 18, 2008 (http://hrw.org/english/docs/2008/07/14/usdom19359.htm). 12 Ibid. Human Rights Watch to Senators Leahy and Specter Opposing Sen. Kyl’s Proposed Amendment to S. 3155, JJDPA Reauthorization July 30, 2008, Page 4 of 4 cc: Senate Judiciary Committee Members Senator Edward M. Kennedy Senator Joseph R. Biden, Jr. Senator Herb Kohl Senator Senator Russell D. Feingold Senator Charles E. Schumer Senator Richard J. Durbin Senator Benjamin L. Cardin Senator Sheldon Whitehouse Senator Orrin G. Hatch Senator Charles E. Grassley Senator Jon Kyl Senator Jeff Sessions Senator Senator Senator Senator Tom Coburn