Congress Must Act to Protect Young Detainees from Abuse

by Marian Wright Edelman

Posted May 19, 2008

In recent years, the Children's Defense Fund has received horrifying reports of the physical and sexual abuse of children and teens in juvenile correctional facilities. There are accounts of children being forced to eat their own vomit, of children being left naked for weeks in small isolation cells with nothing but a hole in the floor for a toilet, and of children being hog-tied--placed face down on the floor with their shackled hands and feet drawn together--for 12 or 13 hours. We have learned of many disturbing accounts of boys and girls being sexually abused and of some dying while in the custody of the state juvenile justice system.

This nationwide abuse of incarcerated youths is a moral outrage. One need only look to the recent scandals plaguing the Texas Youth Commission and Mississippi's Columbia Training School for evidence of how vulnerable incarcerated youths are to being abused. A recent Associated Press survey found more than 13,000 claims of abuse were identified in juvenile correction centers around the country from 2004 through 2007. Many experts feel that this number represents significant underreporting. In July 2005, the U.S. Department of Justice released a report declaring that state-operated juvenile facilities had the highest rates of alleged staff sexual misconduct when compared to state and federal prisons. Youths detained in adult jails are also at high risk of becoming victims of physical and sexual assault.

Despite these disturbing facts, federal law places a significant burden on the thousands of incarcerated children and youths that face abusive conditions of confinement. In 1996, Congress passed the Prison Litigation Reform Act (PLRA) to limit the number of "frivolous" prisoner lawsuits. The stated goal of the measure was to "help restore balance to prison conditions litigation and ensure that Federal Court Orders are limited to remedying actual violations of prisoners' rights." One of the PLRA's provisions prohibits prisoners from filing lawsuits for mental or emotional injury without demonstrating a "physical injury." And prisoners must exhaust all administrative remedies before they can file a suit in federal court. The law also put restrictions on attorneys' fees in prisoner cases. The effect of these provisions has been to reduce the number of prisoner abuse complaints that reach federal courts. The "success" of the PLRA, however, comes with problems as civil liberties and youth advocates charge that the act's requirements pose insurmountable barriers to adults and youths filing legitimate claims in federal court.

There are good reasons why children and teens should be excluded from the requirements of the PLRA. First and foremost, children do not file frivolous lawsuits. Many incarcerated children and teens lack adequate legal representation to assist them if they allege abuse or violation of other rights. Children and teens are far less capable than adults of following the difficult and often convoluted administrative processes they must adhere to in order to comply with the PLRA. Most importantly, it is unacceptable for children and youths to be forced to report abuse to either their abusers or subordinates of their abusers.

The law's requirement that they exhaust all administrative remedies could mean a youth detainee would have to take her complaint to the prison guard who rapes her in hopes that the head of the detention center, who winks at the guard's behavior, does something about it. Many youths fear or actually risk retaliation if they file an administrative complaint. The fact that most children and teens cannot overcome these hurdles effectively insulates correctional facilities from accountability for deplorable detention and correctional facility conditions.

On April 22, 2008, I submitted testimony before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security urging the panel to take the necessary steps to exclude children and youths from the requirements of the PLRA. Passage of the Prison Abuse Remedies Act of 2007 (H.R. 4109) would do that and eliminate some of the barriers that prevent young people from accessing our federal courts for relief if they are abused behind bars.

We've all seen movies that depict the tenacious and savvy adult prison inmate who spends hours in the penitentiary library poring over law books. He constantly sends communications to the warden, penal officials and courts. It is unreasonable for our nation to expect the same from incarcerated children and teens. We must not look away while children and teens are abused. Allowing this abuse to persist unchecked contradicts the rehabilitative mandate set out for the juvenile justice system. It is impossible to expect incarcerated children and teens to be rehabilitated and become successful adults in these kinds of conditions. Our nation's juvenile detention system is in desperate need of massive reform. Passing the Prison Abuse Remedies Act of 2007 would be a good start.

Marian Wright Edelman, Child Watch(r) Column (Washington, D.C.: Children?s Defense Fund, 2008). Retrieved from www.childrensdefense.org.