Bhavya Dore I Scroll.in I Dec 23, 2015

On Tuesday evening, the Rajya Sabha passed a bill that, among other things, will allow juveniles between the ages of 16 and 18 years to be tried as adults in some cases of so-called heinous offences. One of the arguments marshalled by supporters of that move was that some western countries have done exactly this.

However, in a trend ignored by many people, the United States has actually been working to undo the very system India on Tuesday decided to put in place. In recent years, 23 US states have passed 40 pieces of legislation moving in precisely the opposite direction: trying to disentangle juveniles from adult justice systems.

In the past six years, five out of 14 US states that allowed children under 18 to be fixed with criminal responsibility have now brought the limit back up to 18. These were Massachusetts, Illinois, New Hampshire, Mississippi, and one of these – Connecticut – is even considering bringing the age up to 21 years. Of the remaining nine states, eight are in the process of introducing legislation to bring it back up to 18.

“The US has found this [trying juveniles as adults] to be a failed public policy,” said Marcy Mistrett, chief executive officer of Campaign for Youth Justice, which studied laws across US states and how they were being amended. “We would encourage India to learn from our mistakes."

Looking at the research

In the 1990s, following a rise in youth crime, 47 of the 50 US states made changes to their laws lowering the age of criminal responsibility from 18. However, with the increase in scientific studies and brain research, the tide has been turning in the past few years.

The Campaign for Youth Justice, a US organisation working on ending the system of prosecuting children under the adult system, studied the changes across American states between 2011 and 2013. Their report said that 11 states (Colorado, Idaho, Indiana, Maine, Nevada, Hawaii, Virginia, Pennsylvania, Texas, Oregon, and Ohio) had by 2013 passed laws limiting states’ authority to hold young people in adult jails. Twelve states (Arizona, Colorado, Connecticut, Delaware, Illinois, Nevada, Utah, Virginia, Washington, Ohio, Maryland, and Nevada) changed transfer laws – making it more likely for children to stay in the juvenile system. Eight states (California, Colorado, Georgia, Indiana, Texas, Missouri, Ohio, and Washington) changed sentencing laws to take into account developmental differences between adults and children. This is addition to the five that have once again raised the age of culpability to 18.

Mistrett said that keeping children in the juvenile justice system helped deter crime and enabled reform. “The more you apply the rehabilitative approach, the less likely children are to get into a life of crime,” she said. “By deterring them from a life of crime [by keeping them in the juvenile justice system] it is more effective in the long term.”

Children tried as adults have suffered enormously in US jails – they have been at higher risk of suicide, and vulnerable to sexual abuse and assault. “What we know is, it has not been effective,” Mistrett told Scroll.in on the phone from Washington DC. “It is a failed public policy.”

Broken system

The US has the largest prison population in the world. It is also estimated that 200,000 or more children are prosecuted, sentenced and imprisoned as adults every year. “With 23 states enacting 40 pieces of legislation in the last eight years, it is clear that policymakers, advocates, youth, and families are coming together to recognise that kids are different and require different considerations when contemplating punishment,” said the Campaign’s 2013 report. “Yet, while many states took great strides in improving its justice system, there is still work to be done and many opportunities to effectuate change in the coming years.”

Three US Supreme Court decisions in the past decade relying on the latest findings on adolescent brains said that children are different, and further strengthened the national conversation on the existing policies.

Research has found that brains aren’t fully developed by the time someone is 16 or 17, and that the decision-making and impulse-control functions are yet to be completely strengthened. “If children are put into the adult system like in the US, that often worsens the situation,” said Sumantra Chattarji, head of the Centre for Brain Development and Repair at the National Centre for the Biological Sciences in Bangalore. “Once you are in an adult criminal environment, just surviving that harsh system becomes an added challenge that works against reforming the convict. The only way to cope is to become a hardened individual who can fight back and survive."

Indian experts speak

Experts in India have highlighted the very issues that the US is now trying to work out. "[The US] has seen how it has played out,” said Swagata Raha, a legal researcher with Centre for Child and the Law, National Law School of India University in Bangalore. “And to do the same here would be a costly mistake for us. In the long-term, it has led to spikes in crime and recidivism and compromised public safety.”

In the west, the focus is increasingly on restorative, rather than punitive justice systems. Australia and New Zealand for instance, are actively pursuing this – helping victims heal by bridging the gap between perpetrators and victims through dialogue. “From 2005 onwards, there has been a packing up of the punitive approach,” said Ved Kumari, a Delhi University professor of law, former chairperson of the Delhi Judicial Academy, and an academic with years of expertise on juvenile justice issues. She asked whether after several years of incarcerating juveniles, we would be building a better system.

She also pointed out that this was the first time that India would be backtracking after ratifying an International Convention. The country is signatory to the UN Convention on the Rights of the Child, which mandates that all children below the age of 18 be treated equally. “Now,” she said, “we will be shamed before the world.”

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