Annual Meeting

ABA House addresses treatment of children and youths in pair of resolutions

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The ABA House of Delegates addressed the treatment of children and youths in two resolutions at the ABA Hybrid Annual Meeting on Tuesday.

Resolution 505 urges all legislative bodies to pass laws that raise the minimum age for prosecution of children in juvenile court to age 14.

The resolution, put forward by the ABA Criminal Justice Section, the Section of Civil Rights and Social Justice and the Commission on Youth at Risk, also seeks to change the ABA’s Juvenile Justice Standards, so that 14 is the minimum age at which a juvenile court has exclusive original jurisdiction. Under Standard 2.1, which relates to juvenile delinquency and sanctions, it is currently set at 10.

“The failure to set a minimum standard of juvenile court jurisdiction results in the criminalization of childhood,” said Neal Sonnett, a Criminal Justice Section representative to the House of Delegates who introduced the resolution. “Raising the recommended standard to 14 by adopting this resolution and urging states to follow suit will promote consistency in addressing this critically important issue.”

Sonnett added that the recommended standard will better align with current research and science related to child development and on the realization that children younger than age 14 have diminished culpability.

“Many are not competent to stand trial or have any real sense of the legal system,” he said. “Raising the minimum age to 14 will reduce the number of youth who experience traumatizing detention but will not adversely affect public safety.”

Sonnett pointed out that states set varying minimum ages of juvenile court jurisdiction. Data from the National Juvenile Defender Center shows that most states did not have a statutory minimum age of juvenile adjudication or set their minimum at younger than 12 in 2019, according to the report that accompanies the resolution.

At that time, 13 states had a minimum age of 10, two states had a minimum age of 8, and one state had a minimum age of 6.

Follow along with the ABA Journal’s coverage of the 2021 ABA Hybrid Annual Meeting here.

As one example of how this has negatively affected children, the report refers to a case involving a 9-year-old boy with autism in Indiana—a state without a minimum juvenile adjudication statute—who was arrested after getting into a fight on the playground in 2017. After being charged with battery and criminal mischief, he was kept briefly at a juvenile detention center.

At the national level, there were 25,701 delinquency cases involving children who were younger than 12 in 2019, according to data provided by the Office of Juvenile Justice and Delinquency Prevention. Among these cases, 2,694 children were adjudicated as delinquents, and 2,907 children were detained.

The inconsistent statutory minimum ages of juvenile adjudication in the United States contrasts with those in several other countries, which fall in line with a 2019 United Nations General Assembly recommendation that nations set a minimum age of criminal responsibility at 14, the report also says. The Child Rights International Network lists Argentina, China and Russia among these countries.

The second measure, Resolution 506, urges governments at all levels to implement laws and policies that prohibit the use of chemical agents—such as pepper spray and tear gas—on young people who are in detention and correctional facilities.

The resolution, also sponsored by the Criminal Justice Section, the Section of Civil Rights and Social Justice and the Commission on Youth at Risk, encourages relevant groups, such as court systems, lawyers, law enforcement leaders, medical professionals, law schools and bar associations, to promote awareness of the harms of using chemical agents on young people in these settings.

In introducing this resolution, Sonnett explained that the ABA has long called for ending the harsh treatment of children and youths.

At the 2020 annual meeting, the House of Delegates passed a resolution urging governmental bodies to adopt and enforce legislation and educational policies that prohibit school personnel from using seclusion and mechanical or chemical restraints on students in preschool through 12th grade.

The association’s policymaking body also passed a resolution during last year’s annual meeting that called on governmental bodies to adopt policies and contractual provisions that prohibit strip searches of children and youths, except in exceptional circumstances.

Sonnett also told House members about some of the harms caused by chemical agents.

“Chemical agents irritate the eyes, nose, mouth and lungs,” he said. “They incapacitate people by inducing multiple psychological reactions, including a burning sensation, temporary blindness, body spasms and difficulty breathing. They cause negative physical reactions that can be exacerbated in the locked and often cramped quarters of secure facilities.”

There have been no studies on the effects of chemical agents on children and youths, who, according to the resolution’s report, are defined as people younger than 18 or younger than 22 but remain under the juvenile court’s jurisdiction.

The American Academy of Pediatrics, however, released a statement in 2018 in response to tear gas used against children at the southern border, saying that “a child’s smaller size, more frequent number of breaths per minute and limited cardiovascular stress response compared to adults magnifies the harm of agents such as tear gas.”

The 11th U.S. Circuit Court of Appeals at Atlanta and other federal courts have also ruled that using chemical agents in correctional facilities is unconstitutional. In its 2010 case, the 11th Circuit held that their use on inmates with mental illness and other vulnerabilities violates the Eighth Amendment’s ban on cruel and unusual punishment.

Additionally, several states, including Oklahoma, Mississippi and Florida, have stopped the use of chemical restraints in juvenile facilities in recent years, according to the report that accompanies the resolution.

Resolution 506 also seeks to replace a standard related to corrections administration in the ABA’s Juvenile Justice Standards, which were published in 1996. Standard 7.8(B) currently states that “in extreme situations, chemical restraints may be used under strict controls.”

The House of Delegates overwhelmingly passed both resolutions Tuesday.

See also:

ABA Journal: “ABA will advocate to end unreasonable restraints, seclusion and searches of children”

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