A New Juvenile Justice System

Total Reform for a Broken System

Nancy E. Dowd

• Publisher: NYU Press
• Year: 2015
• Print ISBN: 9781479898800
• eBook ISBN: 9781479843893
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

A New Juvenile Justice System aims at nothing less than a complete reform of the existing system: not minor change or even significant overhaul, but the replacement of the existing system with a different vision. The authors in this volume—academics, activists, researchers, and those who serve in the existing system—all respond in this collection to the question of what the system should be. Uniformly, they agree that an ideal system should be centered around the principle of child well-being and the goal of helping kids to achieve productive lives as citizens and members of their communities.





Rather than the existing system, with its punitive, destructive, undermining effect and uneven application by race and gender, these authors envision a system responsive to the needs of youth as well as to the community’s legitimate need for public safety. How, they ask, can the ideals of equality, freedom, liberty, and self-determination transform the system? How can we improve the odds that children who have been labeled as “delinquent” can make successful transitions to adulthood? And how can we create a system that relies on proven, family-focused interventions and creates opportunities for positive youth development? Drawing upon interdisciplinary work as well as on-the-ground programs and experience, the authors sketch out the broad parameters of such a system.





Providing the principles, goals, and concrete means to achieve them, this volume imagines using our resources wisely and well to invest in all children and their potential to contribute and thrive in our society.

Part I

Setting the Agenda

1

Child Well-Being

Toward a Fair and Equitable Public Safety Strategy for the New Century

James Bell

Introduction

At the beginning of the twenty-first century, the social and economic indicators for children in neighborhoods of intense poverty were bleak, and public policy was seemingly bereft of innovative ideas. Policies such as “zero tolerance,” “stop and frisk,” and gang injunctions reflected worn and tired approaches to youthful misbehaviors by pathologizing neighborhoods and criminalizing normal adolescent behavior under the guise of protecting public safety. During this same period, while income and health disparities grew, graduation rates declined and incarceration rates increased for young people of color.

Advocates, organizers, philanthropists,1 and others resisted these hostile headwinds with bold analyses of structural racism’s impact on youth justice. Research and scholarship revealed that low-income communities were forced into a set of choices that inevitably led to poor outcomes.2 Approaches and solutions to structural impediments were created, were diligently vetted, and slowly formed a counternarrative that highlighted the inherent values, cultural stability, and vitality of people in these neighborhoods. Sound ideas existed to transform neighborhoods.

A new vision requires civil society to see itself as a champion of human potential whose mission is to shape minds, touch souls, and motivate bodies. Václav Havel told us that hope is not optimism over pessimism but an orientation of the spirit.3 We must use humanity, restoration, and equity as an orientation of the spirit to change the conversation toward child well-being, allowing us to achieve equity and excellence as the preferred strategy for true public safety.

A major structural impediment to this vision is the existing juvenile justice system. This is a system that has failed youth and failed society. We incarcerate more youth and adults than any other country in the world. Our incarceration addiction is expensive, with costs increasing four times from 1988 to 2008, to $47.3 billion.4 Our youth incarceration rate is just as high as that for adults and is even more dramatically higher than the rate in any other country in the world.5 The juvenile justice system has failed to achieve greater public safety; to the contrary, the system’s overreliance on incarceration generates greater recidivism, as well as the likelihood of more serious criminal activity and adult criminal justice involvement. The system does not rehabilitate most kids. This failure is disproportionately placed on youth of color, who are disproportionately represented at every phase of the juvenile justice system and are most likely to experience the most severe outcomes. The juvenile justice system, therefore, fails both youth and society. It particularly burdens youth of color, undermining our core principles of justice and equality.

It is a fundamental principle of our democracy that justice be administered fairly and equitably. The notion that skin color, income, residence, gender, or identity can heighten or determine deprivation of liberty violates the underpinnings of our system of jurisprudence. Indeed, constitutional and federal law demands that race and ethnicity receive additional scrutiny to determine if significant differences in treatment are discriminatory.

This chapter examines disparities by race and ethnicity in the juvenile justice system and deconstructs the drivers of disparities in order to craft more appropriate and just responses for children, families, and communities of color. A system that serves youth of color is a system that would serve all children, a system delinked from a history and tradition of systemic oppression and instead centered around child well-being.

Because our existing failed system has its roots in the historical treatment of youth of color in the U.S. youth justice system, that history is the subject of section 1, demonstrating that current disparities in treatment draw from this historical legacy. Section 2 provides an overview of current thinking about racial and ethnic disparities and the role federal policy has played in defining this issue. For 25 years, we have engaged in “adoration of the question” of racial and ethnic disparities, studying and gathering data, without gaining much ground. Section 3 fleshes out a new vision for juvenile justice, consistent with the research of scholars and activists, that is grounded in child well-being for all children. This vision requires well-functioning systems of mental health, health care, and education, as well as a juvenile justice system structured to serve children’s needs and to support rehabilitation. In this re-visioned system, we would break our incarceration addiction and permit the use of incarceration only in limited circumstances as a last, uncommon resort.

I. Disparate Treatment Then and Now

Our existing juvenile justice system, laced with racial and ethnic disparity, is a logical link in a long history of race-conscious policies dictating that the detention of youth of color would be different than that of White youth coming into contact with the penal system for the same categories of offense. Especially in the nineteenth century, the exclusion of Black youth from White juvenile facilities created in that century often resulted in the placement of Black youth in adult prisons. Black children were also incarcerated younger than White children, had fewer opportunities for advancement upon discharge, and suffered a disproportionately higher death rate.

The overrepresentation of youth of color in the early penal system served as a convenient solution for labor needs in the post–Civil War South. A significant reason for opening the Baltimore House of Reformation for Black Children in Maryland, for example, was articulated as “the need for agricultural labor through [the] state, as well as the great want of competent house servants.”6 The demand for cheap labor after the Civil War was quickly satisfied through widespread arrests of Blacks for minor violations under Jim Crow laws to fuel “convict leasing,” which has been described by Pulitzer Prize–winning historian David Oshinsky as a system “worse than slavery.”7 This practice continued through the twentieth century.

During the same period, Native American tribes not yet displaced by federal policies were attempting to maintain restorative justice practices such as family meetings and talking circles.8 But in 1885, Congress passed the Major Crimes Act, essentially obliterating centuries-old restorative justice approaches to youth misbehavior and replacing them with a punitive model that persists today on and around Indian reservations.9

The problems that many youth advocates confront today were present even in the earliest days of the juvenile court. Just before the turn of the twentieth century, Jane Addams and other child advocates established the first juvenile court in Chicago. From its inception, Black children represented a greater percentage of the court caseload than their overall population and were substantially underrepresented in the agencies and services contracted to assist youth. These practices were first documented four decades after the establishment of the juvenile court by researcher Mary Huff Diggs. In her review of 53 juvenile courts, Diggs reported, “It is found that Negro children are represented in a much larger proportion of the delinquency cases than they are in the general population. . . . An appreciably larger percent of the Negro children came in contact with the courts at an earlier age than was true with the white children.”10 Diggs also observed, “Cases of Negro boys were less frequently dismissed than were white boys. Besides, they were committed to an institution or referred to an agency or individual much more frequently than were white boys.”11

It is important to recount this history to fully understand the entrenchment of racial and ethnic disparities in today’s youth justice system. In its early history, the inequitable treatment of youth of color in the youth justice system was the result of intentional and blatant race-based policies. Today, our policies are allegedly race neutral but remain steeped in the same legacy of structural racism.

II. Racial and Ethnic Disparities

A. From DMC to RED

1. Race, Ethnicity, and Shifting Demographics

Racial and ethnic disparities represent one of the most intransigent and disturbing issues facing youth justice in the United States. While constituting approximately 38% of the population eligible for detention, youth of color represent almost 70% of juveniles in secure confinement, a huge increase over the past decade.12 This startling overrepresentation and increase in the degree of overrepresentation occurred while arrest rates for serious and violent crimes declined by 45%.13

Traditionally, the discussion of overrepresentation of young people of color in the youth justice system has been mainly devoted to Black and White youth. It is critical that the analysis include Latinos, Asians, Pacific Islanders, and Native Americans to accurately represent the patterns in the system. Rather than refer to these patterns as disproportionate minority representation (DMC), it is more accurate to identify them as racial and ethnic disparities (RED) to capture the broader reality of the patterns within the juvenile justice system, particularly as demographically we are moving to a majority-minority demographic.

According to the most recent data, African American youth are treated more harshly at all stages of the juvenile justice system, resulting in a cumulative disadvantage. While only 16% of the African American youth population is of sufficient age for detention, they represent 28% of juvenile arrests, 37% of detained youth, and 58% of youth admitted to state adult prison.14

Similar disparities exist for Latino youth, although the number of cases contained in local and national data sets is a significant undercount. The National Center on Juvenile Justice analyzed 2005 data from the National Juvenile Court Data Archive and was able to provide limited data on Latino youth, because only 13 of 42 jurisdictions consistently reported ethnicity data.15 Nevertheless, the data accounted for approximately 63% of the nation’s Latino youth population. The data revealed that Latino youth represented 29% of the juvenile population (ages 0–17), 27% of delinquency cases, and 56% of the cases that were petitioned; and of those cases that were petitioned, 78% were adjudicated delinquent.16 A refined analysis of the data to expose contact points where disparity emerges found that Latino youth as compared to White youth were 4% more likely to be petitioned, 16% more likely to be adjudicated delinquent, 28% more likely to be detained, 41% more likely to receive an out-of-home placement, and 43% more likely to be waived to the adult system.17

As of the 2000 census, Latinos are the largest minority group in the U.S.18 Latinos, 52 million strong as of July 2012, are, in addition, the fastest growing group of Americans.19 Between 2005 and 2050, the Latino population is projected to triple, while the White population is projected to grow just 4%.20 According to U.S. Census Bureau projections, by 2050, one in three Americans will be Latino.21

As a group, the Latino population in the U.S. is a young population. In 2009, ...

Table of contents

• Cover
• Title Page
• Dedication
• Contents
• Foreword
• Acknowledgments
• Introduction: Re-visioning Youth Justice
• Part I. Setting the Agenda
• Part II. Core Components
• Part III. Essential Perspectives
• Part IV. Critical Actors
• Part V. Support Systems