Yonder Stands Your Orphan with His Gun: The International Human Rights and Therapeutic Jurisprudence Implications of Juvenile Punishment Schemes

In the last decade, the US Supreme Court has ruled that the death penalty, a life sentence without possibility of parole (LWOP), and mandatory LWOP for homicide convictions violate the Eighth Amendment when applied to juvenile defendants. These decisions were premised, in large part, on findings that "developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds," and that those findings both lessened a child's "moral culpability" and enhanced the prospect that, as the years go by and neurological development occurs, his "deficiencies will be reformed." These decisions have, by and large, been welcomed by juvenile justice advocates, as "game-changing landmarks," and as reflecting "a positive result for juvenile justice." However, none of these cases speaks directly to the case of the juvenile with mental illness or mental retardation who is incarcerated either in adult facilities or in juvenile facilities for lesser crimes or for less severe sentences than life-without-parole. Such incarceration, in many instances, violates international human rights law, and may violate the Eighth Amendment as well. In its juvenile death penalty/LWOP cases, the Supreme Court stressed that international human rights (IHR) law supported its decisions. However, the Court has, as of yet, not had the opportunity to consider the IHR implications of either (1) the routine housing of juveniles in adult jails and prisons, or (2) the disproportionate number of incarcerated juveniles - both in juvenile and in adult correctional facilities - with mental disabilities. In 2008, the UN Convention on the Rights of Persons with Disabilities (CRPD) was ratified. The Disability Convention furthers the human rights approach to disability and recognizes the right of people with disabilities to equality in most every aspect of life, calling for "respect for inherent dignity" and "non-discrimination." This paper explores the relationship between the incarceration of juveniles with mental disabilities and international human rights law, especially the CRPD, and concludes that our current system - of warehousing juveniles with mental illness in juvenile detention facilities and reformatories, and in prisons following pre-adjudication transfers - violates international human rights law, including, but not limited to, the CRPD. It first considers data available on the mental status of incarcerated juveniles, with special attention to issues of race and gender. It next considers conditions of confinement faced by such juveniles, looking at how jails and detention facilities are increasingly relied upon to provide mental health services, albeit meager services and often counter-productive services, a deficiency exacerbated by current transfer/waiver policies. It then reviews the important international human rights documents that apply to the questions under discussion. Finally, it considers all these issues through the prism of therapeutic jurisprudence, with an eye towards specific remedies that might ameliorate the situation with which we are faced.