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remains concerning what to do with juveniles who are incarcerated in either adult or juvenile
Although the judicial system has veered away from the harsh attitude prevalent in the 1980s
and 1990s, policymakers should take a serious look at alternatives to incarceration because of the
horrific conditions in adult and juvenile facilities, as well as the cognitive differences between
juveniles and adults.
II. INCARCERATION: PROBLEM OR SOLUTION?
An individual incarcerated in an adult prison in the United States will face extremely harsh
conditions, to put it mildly.45 Although juveniles fare better in juvenile institutions, the conditions
in these facilities are only marginally better.46 Data is now available showing that youth in juvenile
facilities between 1970 and 2000 experienced “excessive use of isolation or restraints, systemic
violence, and physical and sexual abuse” in thirty-nine states.47 A study from 2000 through 2011
found that these conditions were still prevalent in twenty-two states.48 It is likely that these
statistics do not accurately reflect the actual conditions in these facilities, because youth may fear
retaliation if they report abuse; they may have limited access to counsel and the media; and they
may not recognize that their rights are being violated because of a general ignorance of the law.49
Although juvenile facilities are not ideal, America’s youth face a much greater risk of abuse in
adult institutions, including risks of sexual and physical assaults.50 Juveniles are mentally and
45 Sara Taylor, Unlocking the Gates of Desolation Row, 59 UCLA L. REV. 1810, 1868 (2012).
46 See infra notes 47–54. To put the problem of juvenile incarceration into perspective, consider that the juvenile
violent crime rate in the United States is only slightly higher than many other nations; however, “America’s youth
custody rate (including youth in both detention and correctional custody) was 336 of every 100,000 youth in 2002—
nearly five times the rate of the next highest nation (69 per 100,000 in South Africa).” RICHARD A. MENDEL, NO
PLACE FOR KIDS: THE CASE FOR REDUCING JUVENILE INCARCERATION, 2 (The Annie E. Casey Found. 2011),
laceForKids/JJ_NoPlaceForKids_Full.pdf. The author concludes by saying, “In other words, mass incarceration of
troubled and troublemaking adolescents is neither inevitable nor necessary in a modern society.” Id. Mendel goes on
to cite six glaring problems with juvenile correctional facilities: these facilities are frequently “(1) dangerous, (2)
ineffective, (3) unnecessary, (4) obsolete, (5) wasteful, and (6) inadequate.” Id. at 4.
47 Levick et al., supra note 28, at 307. “We have to recognize that incarceration of youth per se is toxic . . . so we need
to reduce incarceration of young people to the very small dangerous few. And we’ve got to recognize that if we lock
up a lot of kids, it’s going to increase crime.” Mendel, supra note 46, at 4 (quoting Dr. Barry Krisberg, president of
the National Council on Crime and Delinquency).
48 Mendel, supra note 46, at 5–7. The evidence shows that America’s youth correctional facilities are accompanied
by: (1)“[w]idespread physical abuse and excessive use of force by facility staff,” (2)“[a]n epidemic of sexual abuse,”
(3)“[r]ampant overreliance on isolation and restraint,” (4)“[u]nchecked youth-on-youth violence,” and (5)“[f]requent
violence against staff.” Id. at 6–8.
49 Levick et al., supra note 28, at 307.
50 Shefi, supra note 2, at 664; see Neelum Arya, Using Graham v. Florida to Challenge Juvenile Transfer Laws, 71
LA. L. REV. 99, 108 (2010) (“[E]very year an estimated 200,000 youth are prosecuted, sentenced, or incarcerated as
adults across the United States instead of being adjudicated in the juvenile justice system.”); Andrea Wood, Comment,
Cruel and Unusual Punishment: Confining Juveniles with Adults After Graham and Miller, 61 EMORY L.J., 1445,
1451 (2012) (“[J]uveniles made up 7.7% of all victims of substantiated acts of sexual violence in prisons and jails
carried out by other inmates, even though they made up less than 1% of the total detained and incarcerated
population.”). An estimated 10,000 juveniles are held in adult facilities on any given day. Children in Prison, EQUAL
JUSTICE INITIATIVE, http://www.eji.org/childrenprison, (last visited Apr. 24, 2016).