See No Evil, Hear No Evil: Applying the Sight and Sound Separation Protection to All Youths Who Are Tried as Adults in the Criminal Justice System

November 2, 2019

American law treats youths within the criminal justice system with contrasting impulses. In some cases, the law deems youths worthy of special protections and places them within the juvenile justice system. In other situations, however, it views youths as posing distinct dangers and funnels them into justice systems designed for adults. So long as youths remain under the jurisdiction of the juvenile justice system, they are afforded the protections of the Juvenile Justice and Delinquency Prevention Act (JJDPA). One of the JJDPA’s core protections, sight and sound separation, aims to prevent youths from having any visual or spoken exchanges with incarcerated adults when they are held in an adult facility. The reauthorization of the JJDPA in December 2018 significantly strengthened sight and sound separation protection for youths tried as adults in the criminal justice system, affording them separation protections that are relatively similar to those afforded to their counterparts tried within the juvenile justice system. However, instead of immunizing all youths tried in the criminal justice system from sight and sound contact with incarcerated adults, the new statutory language includes a loophole for a presiding judge to deem a youth ineligible for sight and sound protection if it is “in the interest of justice” to do so.

The current application of the sight and sound separation protection thus may leave a significant portion of the youth population vulnerable and exposed to the dangers of adult facilities. A presiding judge can now look to factors such as age, mental maturity, delinquency history, and more to determine the rights of an incarcerated youth in an adult facility instead of automatically providing him or her with complete protection. Therefore, this Note argues that sight and sound separation’s statutory application should be made even more comprehensive by providing for the unqualified inclusion of all youths who are charged and tried as adults within the criminal justice system. Using judicial discretion to deny certain youths sight and sound separation is discordant with the current legal understanding of the emotional, physical, and cognitive vulnerability of youths, as demonstrated in recent U.S. Supreme Court decisions. Therefore, the law should mandate unconditional protection of all youths, as this may decrease the victimization of youths and mitigate other negative consequences from a youth’s interactions with incarcerated adults.

November 2019

No. 2