"A Strategy for Dismantling Structural Racism in the Juvenile Delinquency System,"by Edgar S. Cahn, Keri A. Nash & Cynthia Robbins March/April 2011 issue of Poverty & Race
Juveniles of color are more likely than their white counterparts to be arrested, referred to juvenile court rather than diversion programs, waived to adult court, detained pre-trial and locked up at disposition.
In 2008, the Racial Justice Initiative of TimeBanks USA (“RJI”)— www.RacialJusticeInitiative.org— developed a new social advocacy and litigation strategy focused on dismantling structural racism in the juvenile justice and child welfare systems as well as other public systems that affect vulnerable youth.
The data on the depth of the racial disparity and the resulting negative outcomes for youth of color have been well documented for years. This article provides some of the national data that underscore the extensive racial disparity that persists in the juvenile justice system. Second, the article will narrow the focus to Washington, DC, where the RJI is working more intensively in 2011 and beyond. Finally, the article sets forth how this strategy could be implemented to break through more than three decades of logjam on legal challenges to racial disparity in juvenile justice. Although Congress annually appropriates hundreds of millions of dollars to reduce the racial disparity in juvenile justice, more than 35 years after enactment of the seminal juvenile delinquency prevention act, results in most jurisdictions are barely discernible.
National Arrest, Prosecution and Incarceration Rates Reveal Substantial DisproportionalityWhile young people of all races commit delinquent acts, some receive treatment while others are arrested, funneled into the delinquency system, and too often, eventually incarcerated. According to the National Council on Crime and Delinquency, from 2002 to 2004, African Americans comprised only 16% of all youth in the United States, but constituted 28% of juvenile arrests; 30% of referrals to juvenile court; 37% of the detained population; 34% of youth formally processed by the juvenile court; 30% of adjudicated youth; 35% of youth judicially waived to adult criminal court; 38% of youth in residential placement; and 58% of youth admitted to state adult prison. There is incontrovertible evidence that race bias affects critical decisions leading to confinement, and that the consequences of this disparate treatment are devastating to juveniles of color.
Over the last 30 years, multiple studies have shown that disproportionate minority contact (“DMC”) afflicts nearly every processing point in nearly every juvenile justice system in the country. In Michael J. Leiber’s article,
tice system in the country. In Michael J. Leiber’s article, “Disproportionate Minority Confinement of Youth: An Analysis of State and Federal Efforts to Address the Issue,” he noted that 32 of 46 studies conducted by 40 states reported “race effects”—defined as “the presence of a statistically significant race relationship, with a case outcome that remains once controls for legal factors have been considered.” When African Americans, Latinos, Native Americans, Asian and Pacific Islanders constituted only 35% of the U.S. youth population, they comprised 65% of all youth who were securely detained pre-adjudication. Youth of color are four times more likely to be arrested for a drug trafficking offense, even though white teens’ self-reported experiences of using and selling drugs are at rates greater than that of African-American teens. The length of incarceration compounds both the disparity and the injury inflicted; on average, African- American and Latino juveniles are confined, respectively, 61 and 112 days longer than white youth. Additionally, as noted in a previous RJI publication—“An Offer They Can’t Refuse: Racial Disparities in Juvenile Justice and Deliberate Indifference Meet Alternatives That Work,” “minorities account for more than 58% of youth admitted to state adult prisons.”
In an attempt to eliminate DMC, federal law requires states that receive federal juvenile delinquency prevention funding to measure the rate of DMC at nine different decision points in the juvenile justice system: juvenile arrests; referral to juvenile court; cases diverted; cases involving secure detention; cases petitioned (charges filed); cases resulting in delinquent findings; cases resulting in probation placement; cases resulting in confinement in secure juvenile facilities; and, cases transferred to adult court.
Washington, DCWashington, DC is like many cities, a majority-minority city. However, that alone does not explain the depth of the racial disparity in the juvenile justice system. The RJI’s strategy can be implemented in any public system in this nation, but we focus on jurisdictions where the disparity is stark and the outcomes for youth of color are even starker. A brief display of some basic statistics of the disproportionate rate of system engagement for youth of color in DC provides a snapshot of the inequities manifest throughout the country.
In 2007, the youth population in the District of Columbia ages 10 to 17 was 49,394. It was comprised of: 38,131 (77%) African Americans, 9,848 (20%) Whites, and 1,415 (3%) Latinos/Hispanics. There were 3,410 (7%) classified as Latino/Hispanic, which overlaps with other racial categories because Latino/Hispanic was classified as ethnicity and not a race according to U.S. Census Bureau statistics. Indeed, youth of color constitute the majority, but we find an over-representation of youth of color at every decision point in the delinquency system, except for the most important decision at the outset: to avert involvement through diversion. In 2007, 3,279 juveniles were arrested, and African-American youth made up the majority, with 3,051 (93%) arrests. An African-American youth is approximately 19 times as likely to be arrested as a White youth in the District.
Data for Juvenile Delinquency Involvement in Washington, DCIn addition to the juvenile arrests, there was disproportionate representation at almost every other major decision point in the juvenile justice system. In 2007, 3,364 youths were referred to juvenile court, with 2,624 (78%) referrals for African-American youth; 637 (19%) referrals for Other/Mixed youth, 81 (2%) referrals for Hispanic youth, 17 (1%) referrals for White youth, and 5 (0.1%) referrals for Asian youth. The decision to divert youth from the system is the only decision point where the 582 youth arrested who were diverted was proportionate because the majority of youth diverted were youth of color.
There were 1,212 total cases involving secure detention, of which 1,173 (97%) were African-American, 29 (2%) were Hispanic, and 5 (.04%) were White. And 2,478 youth had cases petitioned: 1,940 (78%) were African-American, 458 (18%) were Other/Mixed, 63 (3%) were Hispanic, 12 (0.48%) were White, and, 5 (0.2%) were Asian. Also, 616 youth had cases that resulted in delinquent findings, with 589 (96%) African-American, 22 (4%) Hispanic. In addition, there was 1 White and 1 Asian youth who each had cases that resulted in delinquent findings.
At the deeper end of the spectrum of juvenile justice system involvement, the statistics show the same story of disproportionality. In 2007, 369 cases resulted in probation in placement, with 349 (95%) African-American youth, 16 (4%) Hispanic
youth, 2 (0.54%) White youth, and 1 (0.27%) Asian youth. There were 247 cases that resulted in confinement, with 240 (97%) African-American, 6 (2%) Hispanic and 1 (0.4%) Asian. There were no White youth sent to correctional facilities. Additionally, there were 80 juvenile cases transferred to adult court, of which 61 cases (76%) were African-American, 17 cases (21%) were Other/Mixed, 2 cases (3%) were Hispanic. Again, there were no cases of white youth transferred to adult court.
Helping to Move Public Officials to Use Effective Alternatives to Juvenile Delinquency System InvolvementAs noted, the RJI is a combination social advocacy and litigation strategy designed to combat structural racism in the juvenile justice system. In an earlier article by the RJI team in The Clearinghouse Review (Vol. 44, “Public Notice Forums: Choosing Among Alternatives to Confront the Intent Requirement”), we acknowledged that, “[l]itigation is not necessarily the best—or the only—way to create awareness of alternatives to prevailing practice, community engagement, support for leaders who seek change, or oversight of its implementation.” Litigation has heretofore not been an effective tool to combat structural racism because challengers have found it almost impossible to meet the obligation to prove intent to discriminate. However, in the social advocacy strategy developed by the RJI, we advocate use of Public Notice Forums, to mobilize the community and challenge the interpretation of the law on structural racism and raise the principle that public officials should be obligated to use what we know works.
Public officials seem to be the only category of people who are under no obligation to make use of knowledge in order to avoid injury to others. If doctors or lawyers fail to remain current on developments in their fields, they can be charged with malpractice. If plumbers or electricians fail to use known effective strategies to respond to a problem, they can be sued for negligence. Ever since 1932, there has been a widespread understanding that the obligation to exercise reasonable care includes the obligation to utilize new knowledge of how to avoid injury.
In fact, there is a famous case that stands for this proposition, The T.J. Hooper, 60 F. 2d 737 (2d Cir. 1932). Justice Learned Hand’s opinion remains gospel except when it comes to the obligation for public officials to stay abreast of innovations in the field and to implement them. In the Hooper case, the court upheld the trial court’s finding that the tugboat was unseaworthy because it did not have a radio set with which to receive weather reports even though such radio sets were not yet standard industry practice. Case briefs summarize The T.J. Hooper as standing for the proposition that there are precautions that are so imperative that even their universal disregard by the industry will not excuse their omission.
Public officials appear exempt from that obligation; they can and regularly do invoke official discretion and immunity from challenge when their actions and practices persist in ignoring the state of knowledge. Accordingly, public officials, such as those making the decisions to over-involve youth of color in the delinquency system, remain free to fail to use what we know works. These delinquency system officials persist in subjecting the public to wasteful expenditures and to predictable increases in crime based on their over-reliance on involving youth of color in the juvenile delinquency system, despite overwhelming evidence that doing so increases recidivism while imposing a great fiscal burden on the jurisdiction.
The RJI is founded on the premise that there is a possible exception to public officials’ immunity from an obligation to use known, effective practices, when it comes to violations of basic civil rights. In the past, judicial relief from racial disparity has not been forthcoming because the injured parties have been required to prove that the disparity was the result of discriminatory intent. That burden of proof has thwarted efforts to challenge structural racism stemming from the systematic practices and policies of governmental agencies. We propose to meet the intent requirement by shifting the focus from past to future.
In the United States Supreme Court case, City of Canton v. Harris, 489 U.S. 387 (1989), the Court’s decision said that intent can be inferred when government policymakers choose among alternatives to follow an injurious course of action, demonstrating a “deliberate indifference” to rights protected by the U.S. Constitution and federal laws. Under the RJI theory, based, in part, on the City of Canton case, when official decisionmakers have formal notice of alternatives that are less costly and yield significant, sustained effects which have been replicated or which experts regard as promising or exemplary, the failure to use these alternatives constitutes “deliberate indifference” to injury to the fundamental Constitutional rights of youths of color in the juvenile justice system. We believe that this strategy would at least shift the burden of proof from plaintiffs alleging discrimination to the institutional actors denying intent.
Public Notice ForumThe first step for communities seeking to employ the RJI strategy is to hold a Public Notice Forum or process. These forums provide formal notice to the public officials of the structural racism embedded in the decisions to disproportionately engage youth of color in the delinquency system. As important, the Public Notice process presents an opportunity for stakeholders to give public officials formal notice about “state of the art” alternative practices that are cheaper and more effective than present practice. Various stakeholders in the juvenile justice system, such as executive branch officials, judges, frontline workers at community-based programs, attorneys, and youth and families who have had entanglement in the delinquency system, can all share their unique knowledge and experiences on best practices to limit juvenile delinquency system involvement. Finally, this process also creates the record of public officials choosing from among alternatives, should it become necessary to file a lawsuit.
The Public Notice Forum strategy as a precursor to potential litigation changes the odds in challenging racial disparity in two ways. First, the strategy converts the “intent” requirement into a weapon to be used by those seeking to dismantle structural racism; it shifts the burden of proof to defendants to prove that their decision not to use alternatives that save lives and public resources does not violate the Constitution or federal law. Following a Public Notice Forum process, the public officials will bear the burden of explaining how this persistent disproportionality does not constitute intentional racism. Second, the strategy changes the forum and shifts the odds by giving legislators and other interested stakeholders the initiative to ask of public officials: “Why aren’t you using more effective and less expensive alternatives to delinquency system engagement?” Public Notice Forum processes also offer a sympathetic forum for system change advocates and the community, particularly the affected youth and their families, to put the system on trial before the very decisionmakers who control the budget and define the authority within which the system must operate.
How Do We Know What Works?An extensive body of knowledge has emerged over the past 35 years that would save vast amounts of money, reduce DMC and mitigate its most injurious manifestations: 1) the failure to use diversion, and 2) the overuse of detention and confinement of minority youth. This information can clearly, succinctly and formally be shared with officials through a Public Notice Forum process so that there is a record of putting the officials on notice that existing practices have a disproportionately injurious impact on youth of color.
First, recent research literature now distinguishes two types of programs: External Control Programs and Therapeutic Programs. The Georgetown University Center for Juvenile Justice Reform has recently released “A New Perspective on Evidence-Based Practice” (http://cjjr. georgetown.edu/pdfs/ebp/ebppaper. pdf), which provides a useful overview developed by a team headed by Mark Lipsey at Vanderbilt University.
They include in the first category the following illustrations:
Therapeutic programs include the following categories:
Second, there is increased demand for evidence-based programs and practices—with some important caveats and distinctions. Experts caution against equating “evidence-based” practices with “brand-name” model programs. They stress that while such programs generally show positive effects, they do not show notably better effects than the no-name programs that incorporate the same evidence-based practices.
Third, these experts in the field call for increased use of programs that have established a track record of success, but are careful to avoid stifling innovation or limiting funding to only those that have met a standard called “evidence-based.” Evidence-based programs tend to refer to programs governed by a specific manual or protocol, and have been demonstrated on separate client samples. There are also “research-based groups,” “theory-based groups,” and pilot programs which may become evidence-based.
Fourth, there is a general consensus that detention should be used only as a last resort and that, in general, it is now overused. Only a small fraction of youth confined in juvenile facilities have histories that actually warrant confinement.
Fifth, two national foundations, among many others the Juvenile Detentions Alternatives Initiative of Annie E. Casey Foundation (http://www. aecf.org/MajorInitiatives/Juvenile DetentionAlternatives Initiative. aspx) and the Models for Change of the John D. and Catherine T. MacArthur Foundation (http://www. modelsforchange.net/index.html), have made major multi-year investments in efforts to develop knowledge about what works and what does not work and also to support efforts to create alternatives that are less costly and more effective than prevailing practice. They each provide extensive bodies of documentation about those initiatives. In addition, the Office of Juvenile Justice and Delinquency Prevention of the U.S. Department of Justice (http://www. ojjdp.gov/) provides extensive analysis of programs and offers a web-based directory of alternatives for every stage of the process to assist states in shaping their juvenile justice systems.
Finally, TimeBanks USA (http://www.timebanks.org/) and the RJI would single out one element of effective programs that needs more specific emphasis and articulation: programs that provide an opportunity for youth to contribute and to gain self-esteem by efforts that make a difference for others. Two programs that have achieved great outcomes for youth while enabling them to give back are the Time Dollar Youth Court of Washington, DC (http://www.tdyc. org/) and the Youth Advocate Program, Inc. (http://www. yapinc.org)
The Time Dollar Youth Court is a diversion program where first-time juvenile offenders go before a jury of teenagers vested with authority by the DC Superior Court to impose sentences that may include an apology, restitution, writing an essay, participating in LifeSkills training, or jury duty for the Time Dollar Youth Court. After ten years, the program has handled 65-70% of non-violent misdemeanors by DC youngsters at a per person cost of less than $500, as compared with a cost of more than $2,250 for youth to go through the delinquency system even if eventually placed on probation in the community. Some 80% or more of the jurors are former offenders. Recidivism rates are below 10% and created a new cadre of youth leaders with exceptional capability and authenticity.
The Youth Advocate Program (YAP) focuses on youth contribution and youth as assets. YAP hires local residents and trains them as Advocates who become part of the extended family for youth who have a record of re-offending and who otherwise would be subject to involuntary institutional detention. With a 40-year success rate of over 80%, the YAP program starts with identifying the youth’s strengths and creating a program for that youth that defines him or her as a contributor with capacity to give back.
ConclusionWe are a nation that arrests and incarcerates a higher percentage of its citizenry than any other country. We do so in ways that undermine our national commitment to equality and justice. The RJI urges that we undertake to dismantle structural racism in the juvenile delinquency system by seeking ways to compel public officials to use what we know works. Wouldn’t it be wonderful if our public officials, responsible for disbursing scarce public resources and managing systems, such as the delinquency system that can make or break the future of vulnerable youth, and consequently of the community, were obligated to use the strategies and alternatives to system involvement that work? We know what works, we think it is about time for public officials to be compelled to use what we know works and to stop the use of practices that will lead to failure for young people and ultimately for the community as a whole.
Edgar S. Cahn is founder of Time Dollars and TimeBanks USA, co-founder of the Racial Justice Initiative of TimeBanks USA, co-founder of the National Legal Service Program and of the Antioch School of Law, predecessor to the UDC David A. Clarke School of Law. firstname.lastname@example.org
Keri A. Nash is Associate for Legal Research & Outreach of the Racial Justice Initiative of TimeBanks USA. email@example.com
Cynthia Robbins is co-founder & co-leader of the Racial Justice Initiative of TimeBanks USA and former chair of Public Defender Service of the District of Columbia. Cynthia@time banks.org
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