Last week, the nation witnessed an abrupt reversal from the White House. After claiming for days that he did not have the authority to address the family separation crisis at the border, President Donald Trump appeared to do just that with the stroke of a pen.
Trump has purportedly put an end to the family separation policy, but he has also created a host of new issues to resolve. How and when will nearly 2,500 migrant children be reunited with their parents? How and where will families be detained together going forward? Even as these legal questions are being resolved, there is a persistent sense of outrage among most Americans.
How could there not be? In 2018, in a time of tremendous economic prosperity, the United States is keeping migrant children in cages, claiming that a policy of family separation deters future illegal immigration. The images of what this policy entails are horrific: terrified, confused children watching as agents search their mothers; parents pleading with agents to show mercy; children sleeping on mats inside wire cages covered with Mylar blankets. The sounds of this inhumanity are even harder to stomach: children calling for their mother and father, sobbing to the point of breathlessness.
Trump’s reversal this week is progress; it’s a step in the right direction away from the inhumanity that the nation witnessed at the border. But let’s also be clear: There are vulnerable kids in cages in every state across America whose cases will not be affected by the president’s new order. In fact, on any given day there are approximately 50,000 juveniles being held in American correctional facilities, thousands of whom are in adult jails and prisons.
“The United States today is an international outlier in the severity of its juvenile justice practices.”
Despite inventing the juvenile court model in the late 19th century, the United States today is an international outlier in the severity of its juvenile justice practices. Today, every jurisdiction has some provision that permits a child to be charged as if they were an adult, and 23 states set no minimum age for employing this legal fiction.
Juveniles convicted in adult court are subject to lengthy mandatory minimums that were drafted with adults in mind. Juveniles can be housed in adult correctional facilities despite being extremely vulnerable to the risks of sexual and physical assault in those locations. Youth are subject to conditions of confinement that were designed for the most dangerous adult offenders, including mechanical restraints and even solitary confinement. Until 2005, we were the only developed nation to execute people for juvenile crimes, and today we are the only country that sentences children to die in prison.
Just like the migrant children crossing the border with their parents, American youth accused of a crime are typically traumatized and vulnerable. Our juvenile justice practices have hit poor, minority communities the hardest. Black youth are five times as likely as white youth to be detained, even as overall detention rates have fallen.
Similarly, poverty shunts children into the criminal justice system who would never be there if they had the financial resources to avoid it. Not only are some kids directed to the juvenile system because state actors think it may address their social welfare needs, but once there, children in poverty often can’t afford diversion programs or even ankle bracelets that would allow them to live at home.
Among youth serving life without parole sentences, approximately half were physically abused and nearly 80 percent witnessed violence in the home. In short, by the time a child enters the criminal justice system, he or she has typically endured tremendous stress, abuse and neglect.
And of course youth incarceration is a traumatic event in its own right, one that can cause psychological harm and forever hinder a young person’s life prospects. Past studies have suggested that as many as two-thirds of confined youth have a diagnosable mental health condition, and in most cases those mental health needs go unmet in detention. Moreover, solitary confinement in juvenile correctional facilities is commonplace and tragic; it causes anxiety, hallucinations, rage, depression and decreased brain function, all of which contribute to an increased risk of suicide. Perhaps most irrational, while we spend billions of dollars a year to confine youth in detention centers, we do so knowing that it will limit their future educational and employment prospects and increase their likelihood of recidivism.
As we seek an end to family separation and the horrors of kids in cages at border facilities, we should also take a moment to reflect on our own domestic practice of keeping kids in cages. We should urge lawmakers to enact age-appropriate sentencing laws that reflect what brain science tells us: that juvenile brains really are different and that most kids simply outgrow delinquent tendencies. At the same time, we should offer education, substance-abuse treatment and therapy to those kids who enter the system rather than simply warehousing them and exacerbating their underlying trauma.
Just like the children of asylum-seekers crossing into America, juveniles accused of a crime are deserving of care and solicitude rather than condemnation and cruelty.
Cara H. Drinan is a law professor at the Catholic University of America in Washington, D.C., and the author of The War on Kids: How American Juvenile Justice Lost Its Way.