Article 37 (A) – (D) of the Convention of Childs Rights Abstract
This article in four sub-sections clearly demands and declares the universal need for the acknowledgment and application of basic human rights for children under the age of eighteen who have been apprehended, incarcerated, and or convicted of criminal activity. The areas of emphasis among all four articles are clarified in the following order. Section (A) clearly implies and declares that no society or culture should deem it necessary to apply cruel, inhuman, or torturous activities against youth. This section also declares that youth should not be subjected to sentences that are for the entire life of the youth without parole or that the death penalty should also be exempt from being applied to those under the age of eighteen. Section (B) clearly indicates the need for the society in which the youth lives, to use incarceration, detention or arrest as a last resort. The incarceration, detention, or arrest of the youth must be according to the laws of such a society with the intent of the shortest amount of time possible. Section (C) indicates the need to treat all youth with the dignity and respect of the human person, with the understanding of treating that person according to their developmental needs. This acknowledges the need for a subjective perception. The article continues with the emphasis to keep separated youth from adults in regards to incarceration, detention and arrest; unless it is in the child’s best interest not to do so. The child should also be able to have continuing contact with family through correspondence or visitation. Section (D) emphasizes a child’s right to prompt legal services, the right to challenge any accusations or criminal wrong doing, and the right to have a prompt resolution to the accusation. All four sections clearly mandate the need to acknowledge and implement policies, laws, and procedures that will bring protection, provision and participatory rights available for children around the world.
After careful analysis regarding the rights of children under the age of eighteen and their subjection to treatment within the United States legal system, I have uncovered large amounts of startling information. Currently I have substantiated that the United States is doing a reprehensible job in regards to complying with, and the supporting of the U.N. Convention on the Rights of the Children. In particular for the purpose of my analysis Article 37, sections (A) – (D) have become of significant interest.
Currently 192 countries have accepted the Convention of Childs Rights; however, the United States and Somalia are the only two who have not accepted these Rights as a priority for their societies (Human Rights Watch & Amnesty International, 2005). Interestingly enough, the United States also incarcerates more individuals than any other country in the world (Hartney, 2006). Currently the United States has 2.2 million persons incarcerated (Hartney, 2006). The U.S. incarcerates four to seven times higher than western nations and up to 32 times more than nations with lower incarceration rates (Hartney, 2006). According to Woolard, Odgers, Lanza-Kaduce & Daglis (2005), there are no clear estimates to the amount of all juveniles under the control of Federal, State and local authorities. However, there are clear and startling facts in which violate Article 37 of the Child Rights Convention. According to Human Rights Watch & Amnesty International (2005), “Excessive punishment becomes cruel, inhuman, or degrading if its severity or length is greatly disproportionate to the crime or to the culpability of the offender (p 96).” Clearly the acceptance by the United States to tolerate convictions equating “life without parole” and “mandatory life without parole” is a violation of subsections (A) and (B) of the Childs Rights Convention (UNCRC, 1989). According to Human Rights Watch & Amnesty International (2005), “in eleven out of the seventeen years between 1985 and 2001, youth convicted of murder were more likely to enter prison with a “life without parole” sentence than adult murder offenders (p 33).” As equally concerning there seems to be states with high amounts of youth violence but low “life without parole” sentences, and there seems to be states with equal or low amounts of youth violence that represent high amounts of “life without parole” sentences, (Human Rights Watch & Amnesty International, 2005). Michigan’s rate of youth violence is nearly equal to New Jersey’s, yet Michigan currently has 306 youth offenders 14 to 17 yrs of age, vs. New Jersey who currently has 0 (Human Rights Watch & Amnesty International, 2005). Pennsylvania currently holds 332 youth for “life without parole” sentences vs. Ohio who only has 1 (Human Rights Watch & Amnesty International, 2005). These disparities in part are due to inconsistent laws between states for which youth can be charged with a crime and sentenced to “life without parole.” These policies are not only fragmented between states ensuring less equity and justice for all individuals, but the fact that they exist clearly violates the CRC sub-sections (A) and (B), (UNCRC, 1989). In comparison, according to Human Rights Watch & Amnesty International (2005), there are “at least 132 countries that reject “life without parole” for child offenders in domestic law or practice (p. 5).” Within the fifteen states of the European Union not a single state allows the sentencing of youth to “life without parole (Human Rights Watch & Amnesty International, 2005).” Thirty one countries of the African Continent prohibit “life without parole” within their penal laws; however, Kenya and Tanzania continue non-compliance (Human Rights Watch & Amnesty International, 2005). To bring greater focus on the significance of the violation of subsections (A) & (B), globally, there is approximately a dozen youth who currently serve sentences of “life without parole”, however in the United States there are estimated to be 2,225 children under the age of 18 sentenced to “life without parole”, and of these young lives there lies a disturbing discriminating formulation; 29% are white and as much as 60% are African American (Human Rights Watch & Amnesty International, 2005). With this vast difference between the United States and other countries, problematic variables give understanding to why these intolerable policies and laws have developed. According to Human Rights Watch & Amnesty International (2005), some primary reasons for the increase in “life without parole” sentences are connected to systemic processes and policy changes within the justice system that have not been structured to apply sentences as the UNCRC (1989) sub-section (B), declares as a “measure of last resort and for the shortest appropriate period of time (p 10). Currently in many states prosecutors have more power through the discretion to directly file charges against children and transfer the child from juvenile court to adult court for criminal prosecution rather than clearing this process through an elected judge (Grisso, 1997). Inconsistency is rampant. Some states have no minimum age; Colorado declares that 12 yrs old is proper, and Vermont declares that 10 yrs. old is appropriate; Wisconsin also supports 10yrs of age (Human Rights Watch & Amnesty International, 2005). This transferring of power and lowering of the age of eligibility seems to indicate a reduction in appropriate checks and balances, due process and the rights and powers so valuable for children to get a fair and equitable trial, thus violating Article 37 sub-section (D) (UNCRC, 1989). Mandatory “life without parole” sentences further alienates the United States as the most intolerable and insensitive global system. This process clearly violates every sub-section of Article 37, and mandates for some crimes a mandatory sentence of “life without parole”, disallowing judges to make subjective decisions based upon every child’s circumstance (Human Rights Watch & Amnesty International, 2005).
In response to sub-section (C), and its requirement to acknowledge the needs of detained youth, the need for children to be contained separate from adults, and the need for actions and implementations by the court to be in the best interest of the child, the United States has failed miserably in all areas. Currently the needs of children have not been efficiently addressed. The current legal process of shifting children from juvenile to adult courts for criminal prosecution ignores the subjective position and developmental position of the child. According to Grisso (1997), there are specific abilities required for a competent defense. First, “competence to assist counsel” which is the defendant’s ability to understand and assist with his or her own defense (Grisso, 1997). The second ability needed is “decisional competence” which is a defendants reasoning process and ability to make clear judgments based upon counsel input (Grisso, 1997). Grisso clearly identifies the point that children, especially 13 yrs. of age and younger represented a significant problematic performance outcome on court competency test in regards to having abilities in being competent, and making reasonable decisions regarding their defense (Grisso, 1997). According to Grisso (1997), not only do these adolescents have less of an ability to make effective decisions, but their cognitive capacities are more vulnerable to stress and intense emotional influences, as with a criminal trial. This is significant due to statistics that express there are many states that allow the adult criminal conviction and a “life without parole” conviction for those 13yrs of age and younger. Neuroscience also continues to prove through MRI imaging and Positron Emission Tomography that the pre-frontal cortex areas of the brain which assist in judgment and decision making are not fully developed until early adulthood; thus proving that the United States is clearly holding thousands of young minds in criminal conviction for their natural immaturity (Brownlee, Hotinski, Pailthorp, Ragan & Wong, 2002).
In regards to the improper incarceration of youth; the United States violation of section (C) is evident. According to Woolard et al., (2005), nearly 10,000 youth each year are incarcerated with adults for given periods of time and nearly 80% are processed under adult courts. These statistics are staggering when comparing the entire incarceration rate of Hong Kong at 11,521 or Ecuador’s at 12,251 (Hartney, 2006). According to the Hartney (2006), there has been a 208% increase in the number of youth under the age of 18 serving time in adult jails between 1994 and 2004. New research has shown that confinement is not only more likely to reinforce delinquent behavior in those youth already at-risk, but also has them picking up more delinquent skills than if they are treated individually (Tyler, Ziedenberg & Lotke, 2006). According to Human Rights Watch & Amnesty International (2005), in 1997 the Department of Justice found that only 13% of prisons surveyed maintained separate cells for youth within adult prisons. Roberts (2000) reveals that children in adult jails are not only worse off, but subjected to behaviors and acts which scar them for the rest of their lives. Children in adult facilities are 5 times more likely to be assaulted than those in juvenile facilities (Roberts, 2000). Roberts (2000) claims that these children are twice as likely to be beaten by staff and 50% more likely to be attacked with a weapon. These children are also, eight times more likely to commit suicide than children in juvenile facilities. These facts clearly announce that the U.S. is in violation of Article 37, sub-section (C) by incarcerating these young children within an environment that has been proven to not be in the child’s best interest and a counter to meeting the child’s needs (UNCRC, 1989).
The United States continues to move away from traditional foundational principles of rehabilitation that the Juvenile Court originally established in Illinois in 1889 (Human Rights Watch & Amnesty International, 2005). This shift continues even with significant evidence that community placements rather than prison are less costly and more effective than incarceration (Human Rights Watch, 1999). According to Human Rights Watch & Amnesty International (2005), rehabilitation is not a priority for those serving “life without parole”, because many do not qualify for any educational / rehabilitative programs when incarcerated, because they will never be released. The human cost for this political and systemic ignorance from the loss of human capital and the inability to never again contribute to society is insurmountable. According to Tyler et, al., (2006), the building of new incarceration facilities can cost 100,000 per cell and an operation cost of 60,000. However, many community based programs such as wrap around programs, drug treatment and counseling services rarely exceed 15,000 initially and cost approx. 5,000 yearly (Tyler et al., 2006).
It is clear that in every instance of Article 37 sections (A) – (D) the United States has failed miserably and should be held accountable globally with the same measure of mercy and judgment that our Nations leaders themselves have shown our victimized youth.
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Brownlee, S., Hotinski, R., Pailthorp, B., Ragan, E., & Wong, K., (1999, August, 9). Inside the Teen Brain; Behavior can be baffling when young minds are taking shape. U.S. News & World Report, LP.
Grisso, T., (1997). The Competence of Adolescents as Trial Defendants. American Psychological Association; Psychology, Public Policy & Law, Vol 3, No. 1, 3-32.
Hartney, Christopher. (November, 2006). U.S. Rates of Incarceration: A Global Perspective. January, 2007, from [http://www.nccd-crc.org/nccd/pubs/2006nov_factsheet_incarceration]. pdf
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