Racial Disparities in the Juvenile Justice System
Racial Disparities in the Juvenile Justice System
- Henrika McCoyHenrika McCoyJane Addams College of Social Work at University of Illinois at Chicago
- and Emalee PearsonEmalee PearsonJane Addams College of Social Work at University of Illinois at Chicago
Racial disparities in the juvenile justice system, more commonly known as disproportionate minority contact (DMC), are the overrepresentation, disparity, and disproportionate numbers of youth of color entering and moving deeper into the juvenile justice system. There has been some legislative attention to the issue since the implementation of the Juvenile Justice and Delinquency Prevention Act of 1974 (JJDPA) and most recently with attempts in 2017 to reauthorize the Act. Originally focused solely on confinement, it became clear by 1988 there was disproportionality at all decision points in the juvenile justice system, and the focus changed to contact. DMC most commonly is known to impact Black and Hispanic youth, but a closer look reveals how other youth of color are also impacted. Numerous factors have been previously identified that create DMC, but increasingly factors such as zero-tolerance in schools and proactive policing in communities are continuing to negatively impact reduction efforts. Emerging issues indicate the need to consider society’s demographic changes, the criminalization of spaces often occupied by youth of color, and gender differences when creating and implementing strategies to reduce DMC.
- Criminal Justice
- Race, Ethnicity, and Culture
Racial disparities in the juvenile justice system have been easily identifiable for decades. The terminology has varied, and the phenomenon has been named disproportionate minority confinement, minority overrepresentation, and racial and ethnic disparities; however, it is most commonly referred to in research, policy, and practice as disproportionate minority contact (Developmental Services Group [DSG], 2014). Regardless, each term is meant to capture the overrepresentation, disparity, and disproportionate numbers of youth of color entering and moving deep into the juvenile justice system (DSG, 2014; Soler, 2014).
According to the Juvenile Justice and Delinquency Prevention Act of 1974 (JJDPA), disproportionate minority confinement occurred when the proportion of confined or detained minorities in secure detention facilities exceeded the proportion of minorities in the general population (Children’s Defense Fund, 2000). In 1988, the Disproportionate Minority Confinement Mandate was included with the reauthorization of JJDPA (DSG, 2014). By 2002, Congress had changed the language in the statute from disproportionate minority confinement to disproportionate minority contact (DMC).1 This change was made to accurately reflect that the disproportionate involvement of minority youth was occurring throughout every stage of the juvenile justice decision-making process, not just at confinement (Office of Juvenile Justice and Delinquency Prevention [OJJDP], n.d.c).
By definition, DMC occurs when the percentage of minority youth at any stage of the juvenile justice system is greater than their percentage in the general population (OJJDP, 2012). To determine whether DMC exists, disproportionality is assessed at the nine decision points in the juvenile justice system: arrest, referral, diversion, detention, petitioned/formal charges filed, delinquent findings, probation, secure correctional facility confinement, and transfer to adult court (OJJDP, n.d.a). Each decision point is distinctly different and as a youth passes from one stage to the next the consequences become more severe. DMC can occur at one, more than one, or all decision points.
Arrest occurs when law enforcement has contact with, apprehends, or stops a youth for a suspected delinquent act (OJJDP, n.d.a). A referral is when a youth, who has been identified as possibly delinquent, is legally processed by juvenile court, family court, or a juvenile intake agency following a complaint by a citizen or school, or another action is taken by law enforcement (OJJDP, n.d.a). Youth who receive diversion have been referred to juvenile court, screened by an intake department, and had their case proceed without formal charges being filed (OJJDP, n.d.a). Juveniles remanded to detention are typically waiting for court processing and possibly the court’s disposition, and may be held in secure detention, jail, or lockup; however, they cannot be held in a non-secure facility like a shelter or group home (OJJDP, n.d.a). When formally charged, or petitioned, a juvenile’s delinquency case appears before the court in response to a petition filing, complaint, or other legal means, asking the court to adjudicate the youth as a status offender or delinquent, or waive the youth to criminal court (OJJDP, n.d.a). For such a petition to occur, a juvenile court intake officer, prosecutor, or another official has determined the case should be handled formally, versus informally (OJJDP, n.d.a). During adjudicatory hearings a youth is adjudicated and can be found legally responsible for the action before the court; this process is similar to an adult being convicted in criminal court (OJJDP, n.d.a). Once adjudicated, a juvenile proceeds to a disposition hearing where the outcome can include probation, commitment to a residential facility, community service, or another sanction (OJJDP, n.d.a). When a youth receives probation it is court-ordered, or formal, supervision (OJJDP, n.d.a). Youth confined to a secure residential or correctional facility are restricted in where they can be placed; thus it cannot be in a shelter, group home, or mental health treatment facility. Finally, some youth are transferred to adult court after a judicial finding in juvenile court.
Historical Background and Current Practices
Steps to acknowledge and address DMC have been gradual. In 1986 there was testimony by Dr. Ira Schwartz, director of the Center for the Study of Youth Policy, before the House Subcommittee on Human Resources about the disproportionate numbers of youth of color who were being held in custody when compared to the number of crimes they were in fact committing (Davis & Sorenson, 2013). In 1987, Huzinga and Elliott encouraged the examination of factors related to arrests, court referrals and processing, and sentencing decisions such as the official responses to minority youth. In that same year, Krisberg and colleagues published an article focused on the disproportionate incarceration of minority youth in juvenile correctional facilities. They noted that youth of color were being incarcerated at rates three to four times greater than White youth, were more likely to be confined in secure, public facilities than White youth, and over time their overrepresentation was becoming pronounced (Krisberg et al., 1987).
Beginning in 1988, the JJDPA began to require any state participating in the Formula Grants Program to determine the level of disproportionate minority confinement in its system and create and implement strategies to reduce that disproportionality (Devine, Coolbaugh, & Jenkins, 1998; Snyder & Sickmund, 1999a). That same year the National Coalition of State Juvenile Justice Advisory Groups (NCSJJAG, 1989), now known as the Coalition for Juvenile Justice, compiled A Report on the Delicate Balance and presented it to Congress, the president, and the administrator of OJJDP. The report indicated that differential processing of youth of color was occurring, not due to higher rates of committing crimes, but because of the conscious and unconscious convergence of prejudice, racism, economics, societal forces, and the juvenile justice system. At the conclusion of their report the authors made a number of recommendations.
To the president they recommended his office classify disproportionality as a national social disaster and treat it as it would any other natural disaster. They encouraged the president to use his authority to examine the impact of: government cutbacks in domestic spending, increasing unemployment, declining revenues in urban areas, and a lacking educational system on communities of color. They also suggested a focus on strengthening education, increasing opportunities for youth of color, and engaging experts from wide-ranging fields to create potentially long-lasting, impactful strategies.
They made two recommendations for Congress. First, they thought it important to hold public hearings to identify which factors were influencing the differential treatment of youth of color. Second, they encouraged the appropriation of additional funding for the restructuring of juvenile correction. They suggested making smaller facilities, creating a strengths-based approach atmosphere, and requiring the development of community based alternatives.
Their remaining recommendations were for the administrator of OJJDP. The Coalition advocated an increase in research focused on the impact of police engagement and practices with youth. Their goal was to increase the level of understanding about the causes of differential treatment experiences for, and the impact of disparate treatment on, youth of color. OJJDP was encouraged to take a lead role in: (1) developing training curricula for juvenile justice system personnel focused on addressing personal prejudices that might impact their interactions with minority youth, (2) developing and expanding the use of highly trained juvenile focused personnel, (3) ensuring diverse service personnel, (4) identifying jurisdictions with a history of successfully implementing innovative approaches that positively impact disproportionality and providing assistance for states that want to learn from those experiences, and (5) researching, creating, and promulgating educational opportunities for youth of color via a partnership with the Department of Education.
In 1991 in an effort to assist states in becoming compliant with JJDPA, OJJDP created the DMC Initiative, a three-year pilot project whose first participants were Arizona, Florida, Iowa, North Carolina, and Oregon. The states spent the first 18 months determining the extent of disproportionate minority confinement in their jurisdictions (Devine et al., 1998) by collecting data that would allow them to analyze their decision-making processes (Roscoe & Morton, 1994). They used the remaining 18 months to create and implement a corrective plan (Devine et al., 1998). A second amendment to JJDPA in 1992 required states to address disproportionate minority confinement in order to be eligible for additional funding (Hsia & Hamparian, 1998). By 1994, there was a requirement of the JJDPA Formula Grants Program for all states to determine whether disproportionate minority confinement was a problem in their state (Roscoe & Morton, 1994). If disproportionate minority confinement was identified, a state had to take four steps: identify the cause, create a corrective action plan, implement the plan (Leiber, 2002), and ensure ongoing monitoring of the plan (Crane & Ellis, 2004). Those requirements led to the government providing almost 80 technical assistance grants between 1997 and 2002 to states so they could address disproportionate minority confinement in their system (Hsia, Bridges, & McHale, 2004).
In 2002 in an amendment in recognition that race directly and indirectly impacted juvenile court decisions across decision-making points the term disproportionate minority contact (DMC) was adopted (Roscoe & Morton, 1994). The amendment allowed the reauthorization of the Formula Grants Program to support state and local delinquency prevention, intervention strategies, and juvenile justice system improvements (Hsia et al., 2004). By 2008, 25 states were funding detention alternative programs to reduce DMC at the confinement stage and 15 states were conducting cultural competency trainings or assessments within their juvenile justice systems (OJJDP, 2009). Other states created early intervention programs focused on crime and delinquency prevention, rehabilitative interventions for youth who committed particular offenses, specialized courts, altered sentencing guidelines, and recommended sanctions (Mears, 2002).
By 2009, OJJDP added to its website the Disproportionate Minority Contact Technical Assistance Manual, 4th Edition (Soler & Garry, 2009). The goal was to provide guidance regarding how to reduce DMC and information regarding how local systems should prepare locally to address DMC (Soler & Garry, 2009). Included were details for identifying, monitoring, assessing, intervening with, and evaluating DMC, as well as strategies regarding how to address the media’s coverage of and the public’s attitudes about crime, race, and youth (Soler & Garry, 2009).
In May of 2017, the House passed the bipartisan House of Representatives Bill 1809—Juvenile Justice Reform Act of 2017 and in August of 2017, the Senate passed the Juvenile Justice and Delinquency Prevention Reauthorization Act of 2017. H.R. 1809 is designed to modify and reauthorize JJDPA. Through FY 2022, it reauthorizes OJJDP and programs and activities under Title II of JJDPA, including the State Formula Grant Program. It also:
1) repeals the Juvenile Delinquency Prevention Block Grant program, 2) revises and expands the purpose areas of the JJDPA, 3) expands membership on the Coordinating Council on Juvenile Justice and Delinquency Prevention to include the Assistant Secretary for Mental Health and Substance Use and the Secretary of the Interior, 4) expands requirements for the OJJDP's annual report on juveniles in custody, 5) modifies the required components of a state's juvenile justice and prevention plan, 6) modifies the four core requirements with which a state must comply to receive a full allocation of funds under the State Formula Grant Program, 7) revises, restructures, and reauthorizes through FY2022 programs under title V of the JJDPA, including the Incentive Grants for Local Delinquency Prevention Program, 8) requires the Government Accountability Office to evaluate the OJJDP's performance and audit selected grant recipients, 9) subjects juvenile justice grants to accountability provisions, and 10) reauthorizes through FY2022 programs and activities for missing and exploited children, under title IV of the JJDPA and runaway and homeless youth, under title III of the JJDPA.
On August 1, 2017, the U.S. Senate approved the bipartisan Senate Bill 860, the Juvenile Justice and Delinquency Prevention Reauthorization Act of 2017. It amends JJDPA and provides reauthorization through FY2021. The bill:
1) revises and expands the purpose areas of the JJDPA, 2) expands membership on the Coordinating Council on Juvenile Justice and Delinquency Prevention to include the Administrator of the Substance Abuse and Mental Health Services Administration and the Secretary of the Interior, 3) expands requirements for the Department of Justice's Office of Juvenile Justice and Delinquency Prevention (OJJDP) with respect to the annual report on juveniles in custody, 4) modifies the required components of a state's juvenile justice and prevention plan, 5) modifies the four core requirements with which a state must comply to receive a full allocation of funds under the State Formula Grant Program, 6) broadens the authorized grant purposes under the Incentive Grants for Local Delinquency Prevention Programs to include evidence-based or promising programs on mentoring, parent training and support, or in-home family services, 7) subjects juvenile justice grants to accountability provisions, 8) requires the Government Accountability Office to evaluate the OJJDP's performance and audit selected grant recipients, and 9) amends the Omnibus Crime Control and Safe Streets Act of 1968 to condition a state's receipt of funds under the Juvenile Accountability Block Grant program on compliance with the core requirements of the JJDPA applicable to the detention and confinement of juveniles.
Very little difference exists between the two bills. House of Representatives Bill 809 was given to the Senate on May 24, 2017, read twice in the Senate, and has been placed on the Senate Legislative Calendar under General Orders Calendar No. 303. Senate Bill 860 was passed to the House on August 4, 2017, and has been held without further movement.
Prevalence and Incidence
Being a youth of color increases the likelihood of contact with the juvenile justice system at all decision points (Bechtold, Cauffman, & Monahan, 2011; National Research Council and Institute of Medicine, 2001). It also means overrepresentation, disparate treatment, unnecessary entry, and deeper movement into the system (Soler, 2014). The Relative Rate Index (RRI) is used by OJJDP to compare level of contact with the juvenile justice system as experienced by different groups of youth (OJJDP, n.d.b). To assess DMC using RRI, the rate of whichever decision point is being assessed (such as referrals) for youth of color is divided by the rate at the same decision point (such as referrals) for White youth (McCarter, 2014).2 If the RRI is equal, there is no disproportionality, if the RRI is less than 1 youth of color are underrepresented, and if the RRI is greater than 1 youth of color are overrepresented (McCarter, 2014).
OJJDP encourages the use of quantitative and qualitative methods when jurisdictions complete the required assessment to ascertain the existence of DMC (Vessels, 2015b). Qualitative data is viewed as valuable for providing context for the quantitative data that is collected (Vessels, 2015b). Data should be obtained from varied sources including law enforcement, juvenile courts, and juvenile justice agencies, keeping in mind that the quality of the assessment is impacted by the quality of the data (Vessels, 2015b). Assessments should include recommendations regarding how to address the mechanisms identified as contributing to DMC (Vessels, 2015b). Examples from prior assessments have included: providing staff development related to cultural sensitivity; increasing data capacity and instituting quality improvements; conducting further research about contributing factors impacting youth of color; reviewing policies, practices, and legislation that might be impacting fairness; implementing targeted programs to meet youth needs; engaging in interagency collaborations; and implementing structured decision-making tools that can provide expanded options for level of system involvement (Vessels, 2015b).
The type of data published in OJJDP reports has varied each year. But, typically national estimates of the total number of delinquency cases, detention, residential placements, and transfers/waivers to adult court per year are provided. Prior to 2005, data was not sufficiently collected about Hispanic youth and reports that mentioned them counted them as White youth (Hockenberry & Puzzanchera, 2017a). Beginning in 2014, OJJDP reports began to include statistics for Hispanic and Latino youth, and in that report provided retrospective analyses to 2005 to disaggregate Hispanic youth (Hockenberry & Puzzanchera, 2017a).
Challenges With Identifying DMC
Historically DMC has been viewed as an issue that impacts only Black youth; however, DMC impacts all youth of color depending on context (see Motivans & Snyder, 2011; Umemoto et al., 2012). This lack of focus can be partially attributed to the lower number of Asian and American Indian youth in the system when viewed through the national estimates provided in OJJDP reports and the counting of Hispanic youth as White.3 However, upon closer examination each of those groups has been undercounted in some way.
For example, in Hawaii, DMC clearly impacts native Hawaiian youth across decision points (Umemoto et al., 2012). Between 2000 and 2010, native Hawaiian youth represented 42% of all arrests, more than the next highest three groups who were arrested combined (Umemoto et al., 2012). Furthermore, as cases moved deeper into the system (from Family Court to adjudication to probation to incarceration) the proportion of cases increased from 42% to 54% (Umemoto et al., 2012). Between 2007 and 2009, Native Hawaiian youth experienced DMC at every decision point when compared to White youth (Umemoto et al., 2012). The Office of Hawaiian Affairs (2010) proffered that the disproportionality, as with other youth of color, could possibly be attributed to over-policing and differential processing of cases. Unfortunately, the significant levels of DMC for this group diminish when added to the national counts (Umemoto et al., 2012) because Hawaiians represent only 0.2% of the larger U.S. population (Hixson, Hepler, & Kim, 2012).
Ascertaining DMC related to American Indian youth is complex. States are required to report about DMC only when the group’s youth population numbers are greater than 1% of the overall youth statewide population (Vessels, 2015a), and the population distribution of American Indians is not consistently above 1% in every state. Approximately 85% of the entire American Indian population live in 12 states, with approximately 20% residing on reservations or tribal lands (Norris, Vines, Hoeffel, 2012); 24 states have a population of less than 1% American Indians (Rovner, 2014).4 However, when rates of contact are examined DMC is clear. Research shows that across the United States, American Indian youth are more likely than White youth to be arrested, adjudicated, and incarcerated in the juvenile justice system (DSG, 2016). In 2013, nationwide reports indicated that American Indian youth were 3.7 times more likely to be committed than White youth, which was an almost 50% increase from 2003 (Rovner, 2014). American Indian youth are also disproportionately represented in federal court which is data not captured by OJJDP (Motivans & Snyder, 2011).5 In 2008, of the 152 juvenile cases handled in federal court, 70 were American Indian youth (Motivans & Snyder, 2011). During that same year, 91% of cases involving American Indian youth resulted in a conviction, and American Indian youth served an average of 26 months, more than double the maximum sentence of 12 months from the tribal justice system at that time (Motivans & Snyder, 2011). Notably, those youth are more likely to be housed in federal facilities far away from the tribal lands where they were likely arrested (DSG, 2016).
DMC at Decision Points
To better interpret whether there is DMC at each decision point, it is important to know the population counts for youth under the age of 18 during the relevant time period.6 In 1996, the general population numbers for White youth was 80%, Black youth 15%, and Other youth 5% with Hispanic youth counted among White youth (Snyder, 1997). By 2005, White youth were 57%, Black youth 17%, Hispanic youth 20%, Asian youth 4%, and American Indian youth 1% (Kids Count Data Center, 2017). In 2014, the general population numbers for youth were as follows: White (56%), Black (15%), Hispanic and Latino (23%), Asian (5%), and American Indian (1%; Hockenberry & Puzzanchera, 2017a).
The number of delinquency cases handled in the juvenile court system more than doubled between 1960 and 2014 from approximately 400,000 to almost 975,000; equating to approximately 1,100 cases handled daily in 1960 and 2,700 a day in 2014 (Puzzanchera & Hockenberry, 2017). Between 1987 and 1996, the number of delinquency cases increased across all racial groups; however, rates were higher for Black youth than for all other youth (Snyder & Sickmund, 1999a). By 1996, when the number of delinquency cases processed reached its peak at 1,757,600 (Snyder & Sickmund, 1999a) Black youth were 30% of all delinquency cases whereas White youth were 66% of all delinquency cases (Snyder & Sickmund, 1999b).
In 2014, estimates based on race were expanded and Hispanic youth were separated into their own category. A part of the expansion was to also retrospectively examine prior estimates to 2005 and re-categorize Hispanic youth where possible (Hockenberry & Puzzanchera, 2017a). The adjustment primarily impacted White youth because the majority of Hispanic youth had been previously counted as White, although some were also moved to the other three racial categories as deemed appropriate. With the re-categorization, in 2005, the total number of delinquency cases for White youth was reduced from 1,071,000 to 806,200 (Hockenberry & Puzzanchera, 2017a) and 175,900 delinquency cases were attributed to Hispanic youth (Hockenberry & Puzzanchera, 2017b). Thus, of the approximately 1.7 million delinquency cases in 2005 (Sickmund, 2009) White youth represented the largest share at 48%, Black youth composed 33%, Hispanic youth 16%, and American Indian and Asian youth each composed 1% (Hockenberry & Puzzanchera, 2017a).
Furthermore, the total number of delinquency cases decreased across racial groups; yet, underrepresented were White youth at 43%, Hispanic youth at 18%, and Asian youth at 2% (Hockenberry & Puzzanchera, 2017a). Black youth were over-represented at 36% (Hockenberry & Puzzanchera, 2017a).
Between 1987 and 1996, detention rates for all youth increased (Snyder & Sickmund, 1999a). Despite those increases, Black youth were more likely than all other youth to be detained, including twice as likely as White youth; while overall rates also remained the same for Black youth and declined for all other youth (Snyder & Sickmund, 1999a). Thus, in 1987 Black youth were 36% of the detention caseload and by 1996 they were 45% (Snyder & Sickmund, 1999b). In comparison during that same time period, White youth experienced a decline from 60% to 51% and the percentage for other youth remained steady at 4% (Snyder & Sickmund, 1999a). Those trends continued, and by 2014 Black youth represented 42% of all detained youth while White youth were 35%, and Hispanic or Latino youth were 19% (Hockenberry & Puzzanchera, 2017; Sickmund, Sladky, & Kang, 2017).
In 1996 Black youth were 49% of all youth in residential placement (Snyder & Sickmund, 1999b). In 2015, Black youth accounted for 42%, Hispanic youth for 22%, White youth for 31%, and American Indian and Asian youth (Other) for 5% of youth held in residential placements for delinquency and status offenses (Hockenberry, 2018). There were also clear differences in the rates of placement by type of disposition. Detention placement rates for youth of color were significantly higher than for White youth.7 The rates for White youth were 25 per 100,000, Black youth 153 per 100,000, Hispanic or Latino youth 50 per 100,000, and American Indian youth 74 per 100,000 (Hockenberry, 2018). Commitment placement rates also showed significant differences between White youth and youth of color.8 White youth were committed at a rate of 60 per 100,000, Black youth 275 per 100,000, Hispanic or Latino youth 89 per 100,000, and American Indian youth 185 per 100,000 (Hockenberry, 2018).
Transfer/Waiver to the Criminal Justice System
Between 1987 and 1996, the cases waived to criminal court by a judge were also disproportionately those of Black youth. In 1987, 59% of cases were White youth and 41% were Black youth, whereas in 1996, 51% were White youth and 46% were Black youth (Snyder & Sickmund, 1999a; 1999b). For felony cases, White youth were 31% of all cases whereas Black youth were 67% of all cases (Snyder & Sickmund, 1999a). In 2008, Black youth experienced a spike, surpassing White youth, and their numbers have remained the highest of every group since that time (Hockenberry & Puzzanchera, 2017a; Sickmund, Sladky, & Kang, 2017). In 2014, of the cases waived, White youth were 33%, Black youth were 53%, and Hispanic youth 12% (Sickmund, Sladky, & Kang, 2017).
OJJDP Identified Mechanisms Leading to DMC
The calculation of the RRI across decision points can demonstrate whether or not disproportionality exists, but not the source of the bias (OJJDP, n.d.b). It is the sources of bias that are often debated. OJJDP (2009) has identified eight possible mechanisms by which DMC occurs: (1) differential behavior, (2) mobility effects, (3) indirect effects, (4) differential opportunities for prevention and treatment, (5) justice by geography, (6) legislation, policies, and legal factors, (7) accumulated disadvantage, and (8) differential processing or inappropriate decision-making criteria.
Differential behavior (offending) accounts for the overrepresentation as occurring because youth of color simply commit more crimes (Dawson-Edwards, Tewksbury, & Nelson, 2017; Umemoto et al., 2012). Mobility effects explain DMC as the ease of which youth can move from one community to another thus increasing the opportunity for them to be processed in another jurisdiction (OJJDP, 2009). Their movement might be due to seasonal changes, local attractions, immigration and migration-related mobility, or the housing of youth in residential or detention settings in communities (OJJDP, 2009). Indirect effects broadly reflect numerous risk factors that are often linked with race and ethnicity such as economic status, poor academic performance, disorganized neighborhoods, and family structure (OJJDP, 2009). Differential opportunities for prevention and treatment are reflected in a lack of access to needed treatment, a failure to meet eligibility requirements, an unwelcoming environment where treatment is provided, and ineffective services due to a lack of cultural adaptation for youth of color (OJJDP, 2009). Justice by geography occurs when youth, particularly youth of color, are treated differently based on whether they are in urban, suburban, or rural settings where there are varied definitions of accountability leading to higher rates of processing of youth of color (OJJDP, 2009). Policies via legislation can lead to disadvantages for youth of color such as those that target certain types of offenses, locations, or mandate certain legal responses (OJJDP, 2009). Accumulated disadvantage is reflected by the cumulative impact that can be experienced by youth of color when they have repeated contact with the juvenile justice system, which can impact later dispositions and lead to harsher penalties (OJJDP, 2009). Finally, differential processing (treatment) or inappropriate decision-making criteria is characterized as the system treating youth differently, perhaps due to intentional or unintentional bias or common case processing practices within a jurisdiction, because they are youth of color, (Bishop, 2005; Dawson-Edwards, Tewksbury, & Nelson, 2017; McCarter, 2014; OJJDP, 2009).
The Specific and Identifiable Impact of Race and Economic Disadvantage
The idea that race could be causing disparate treatment in the juvenile justice system has been in existence as long as there has been a recognition of disparate treatment. Racial bias from decision makers within the juvenile justice system, including law enforcement officers and judges, has been used to explain the occurrence of DMC within the juvenile justice system across the various stages (Armour & Hammond, 2009; Bishop, 2005). For example, research has shown youth of color have been negatively impacted by negative stereotypes, being from a single-parent home, and living in less affluent neighborhoods, risk factors for increasing the likelihood of arrest and movement through the juvenile justice system (Bishop, 2005). For Black youth, coming from a home that is less safe and structured can result in harsher penalties (Morrow, Dario, & Rodriguez, 2015). If a Black youth’s home has fewer economic resources it increases the likelihood that they will have their cases formally processed, or be removed from their homes, when compared to White youth from middle income homes (Bishop & Frazier, 1996).
Notably, the delinquent behavior of Black youth has often been attributed to defects of character, the youth’s personality, or personal values, whereas for White youth delinquent behavior has been attributed to external factors such as unfortunate circumstances, peer pressure, or a bad environment (Bishop, 2005; Bridges & Steen, 1998). It has also been shown that harsher more punitive treatment responses are given when young Black and Hispanic youth are compared to their White counterparts and perceived to be in more control of their actions (Morrow, Dario, & Rodriguez, 2015). The perception that Black and Latino youth simply engage in more criminal behavior, while rejecting the possible influence of bias or racism prevents DMC from being addressed and allowing change to occur (Dawson-Edwards, Tewksbury, & Nelson, 2017). It is also not uncommon for courts to place youth of color in more restrictive placements when the community a youth is returning to is economically disadvantaged, perceived as high risk, and has higher rates of drugs, gangs, and crime because it is perceived to have a negative influence on youth (Rodriguez, 2013). Notably, this perception and outcome disproportionately impacts Black youth. When families are homeless, parents are struggling financially, resources such as transportation are limited, or the family frequently moves, youth are also often penalized and placed in confinement (Rodriguez, 2013).
Cross-System Involvement as a Contributing Factor
The disproportionality of youth of color in the juvenile justice system has been linked to the overrepresentation of youth of color in the child welfare system, and for some youth the child welfare system is viewed as a pathway for juvenile justice system involvement (Ryan, Chiu, & Williams, 2011). Those youth, called crossover or dually involved youth, are often involved simultaneously in both systems (Herz et al., 2012). Research has shown that children in child welfare are much more likely to be in the juvenile justice system than those in the general population (Ryan & Testa, 2005). Furthermore, of youth in the child welfare system, Black youth are more likely than White youth to be involved in the juvenile justice system (Center for the Study of Social Policy, 2009; Halemba, Siegel, Lord, & Zawacki, 2004; Huang, Ryan, & Herz, 2012; Ryan & Testa, 2005). That likelihood of a youth in the child welfare system being in the juvenile justice system is so much greater that it is likely that if the number of arrests for youth in child welfare decreased, the disproportionality in the juvenile justice system could also potentially decrease (Ryan, Chiu, & Williams, 2011).
The relationship between child welfare and juvenile justice can be attributed to a number of factors. Many children in child welfare are there due to a history of abuse and neglect, both of which are risk factors for engaging in delinquent behavior (Ryan, Chiu, & Williams, 2011). For youth in child welfare for a lengthy period, it is not uncommon for them to act out, which can bring them to the attention of the juvenile justice system (Marshall & Haight, 2014). When youth do become dually involved, they likely have complex needs, which are often not met in the juvenile justice system, and the related challenges they experience can push them deeper into the system (Ryan, Herz, Hernandez, & Marshall, 2007).
A youth’s history in the child welfare system can result in harsher outcomes or treatment in the juvenile justice system than youth without a history of child welfare involvement (Ryan et al., 2007). It is not uncommon for them to be placed in a residential facility, a correctional facility, or a group home versus a foster home (Ryan et al., 2007). Unfortunately, for crossover youth there is also an increased risk of recidivism (Herz, Ryan, & Bilchik, 2010; Huang, Ryan, & Herz, 2012; Ryan et al., 2007), which keeps them cycling into the juvenile justice system.
The negative relationship between the education and juvenile justice systems, often called the school-to-prison pipeline (Christle, Jolivette, & Nelson, 2005), has been characterized as encompassing policies and procedures used in educational settings that often lead to a juvenile being arrested (Mallet, 2016). Youth who are receiving special education services are at a higher risk of juvenile justice system contact. They are expelled and receive out-of-school suspensions at much higher rates than youth who are not receiving services (Kang-Brown, Trone, Fratello, & Daftary-Kapur, 2013). Notably, youth who receive special education services are also more likely to recidivate once they are in the juvenile justice system (Barrett, Katsiyannis, & Moore, 2015). Unfortunately for Black youth, whether they are receiving special education services or not, they have an increased likelihood of being expelled or suspended when compared to White youth, and their expulsions or suspensions serve as risk factors for contact with the juvenile justice system (Barrett, Katsiyannis, & Moore, 2015).
Zero-tolerance policies grew throughout the 1990s and the impact of their implementation remains problematic (Green & Allen, 2017). They have led to many behaviors that were previously managed by a teacher and the school to become classified as criminal requiring the involvement of law enforcement (Hayes & Ward, 2014; Rovner, 2014). Implementing and continuing to use zero-tolerance policies has criminalized the typical adolescent (Kang-Brown et al., 2013; Mallet, 2013). Such policies have often been instituted in low-performing schools, located in areas with high rates of poverty, and with inadequately prepared staff to enforce the policies (Hayes & Ward, 2014). Thus, their creation and utilization has led to negative outcomes for youth of color via suspensions, expulsions, and in-school arrests (National Council of La Raza [NCLR], 2011). Each of those outcomes creates race and ethnic disparities in school systems and cause youth of color to be marginalized (NCLR, 2011). There is no single definition for zero-tolerance policies, but they often mandate specific consequences for student behaviors that a school defines as unacceptable or unsafe (Mallet, 2016). Typically their application does not include: (1) considering the context in which an event occurred or (2) exploring why a student behaved in a particular way (Mallet, 2016). That intersection increases the likelihood of DMC (Peck, 2018) because of the higher policing in neighborhoods where youth of color reside (Bishop, 2005).
Their implementation has also led to the increased involvement of law enforcement in schools and the removal of students from schools (Mallet, 2016), which often has a greater impact on youth of color (Peck, 2018). Receiving an out-of-school suspension increases the likelihood of having contact with the juvenile justice system (Kang Brown et al., 2013). More specifically, expulsion and suspension can be a first step toward entering the juvenile justice system (Greene & Allen, 2017) and Black and Hispanic or Latino youth are suspended at higher rates than White youth (Kang-Brown et al., 2013). Any time a youth is not in school the risk of having contact with the juvenile justice system increases.
Because youth of color are typically underserved by the mental health system, they are more likely having to engage in behaviors that increase the likelihood of contact with the juvenile justice system. This outcome is highlighted in the child welfare system where Black and Hispanic youth are less likely than White youth to receive the specialty mental health services that might be needed to address their history of child abuse and neglect (Martinez, Gudiño, & Lau, 2013). For other youth, evidence has shown that it is not uncommon for youth with mental health disorders to be referred to the juvenile justice system in order to have their mental health needs met (Teplin, 2000). Such referrals may even be by local law enforcement who use the juvenile justice system as a primary referral source for juveniles with mental health needs (Grisso, 2004). Decreases in funding for, and accessibility to, mental health services has also caused many families to seek mental health services from the juvenile justice system (Chapman, Desai, & Falzer, 2006). Finally, research has demonstrated that court systems are much more likely to refer Black youth to the juvenile justice system and White youth to psychiatric facilities even when presenting with the same profile (Cauffman & Grisso, 2005).
Efforts to Address DMC
Initiatives and Interventions
The John D. and Catherine T. MacArthur Foundation Models for Change Initiative launched in 2004 as a system-level approach to juvenile justice reform including racial and ethnic fairness and reducing DMC (Justice Policy Institute, 2017a). Initial reform efforts included the four core states of Pennsylvania, Illinois, Louisiana, and Washington, but by 2014, a total of 35 states had been impacted, each of which had a goal of developing and implementing reform agendas (Justice Policy Institute, 2017a). Models for Change also included The DMC Action Network, composed of additional state and local partners, and focused on types of specific juvenile justice reform (Justice Policy Institute, 2017c). It was launched in 2007 and brought representatives from local jurisdictions together to learn from national experts and share their knowledge about ways to reduce DMC (Justice Policy Institute, 2017b). For example, efforts in Pennsylvania have resulted in reducing DMC. In Berks County, Pennsylvania, between 2007 and 2011 the detention population decreased by 60%, as did the average daily detention population of Latino youth, from 26 to 10, and African American youth from 11 to 6 (Shoenberg, 2012). The county expanded responses to probation violations for youth on probation, incorporated linguistic and cultural competence trainings for staff, and began working more closely with the faith-based communities (Shoenberg, 2012).
The W. Haywood Burns Institute for Juvenile Justice Fairness and Equity has worked in more than 40 jurisdictions across the United States to provide intensive site engagement, consultation, and training to decrease DMC. It uses a community-centered, equitable, and restorative approach to address delinquent behavior (Burns Institute, n.d.a). The institute’s strategy uses a data-driven and consensus-based process model to engage stakeholders such as judges, school officials, the police, community groups, and service providers (Soler & Garry, 2009). A number of sites that have worked with the Burns Institute did successfully decrease DMC, including Baltimore County in Maryland, Pima County in Arizona, and the city of Peoria in Illinois. For example, Baltimore County developed policies that decreased the number of youth who became detained in a secure facility after failing to appear in court (Burns Institute, n.d.b). That change ultimately led to a nearly 50% reduction in the use of secure detention for African American youth (Burns Institute, n.d.b).
In 1992, the Annie E. Casey Foundation created the Juvenile Detention Alternatives Initiative (JDAI). The goal was to reduce the number of children being detained unnecessarily or inappropriately, minimize the number of failed court appearances, decrease recidivism pre-adjudication, and redirect public dollars toward reform efforts (Soler & Garry, 2009). Because of DMC the JDAI was also particularly interested in addressing racial disparities and willing to provide training, resources, support, and technical assistance across the country to do so (Annie E. Casey Foundation, 2017). JDAI expanded its five original pilot locations to more than 300 jurisdictions across the country (Annie E. Casey Foundation, 2017). According to its 2014 progress report, youth of color residing in JDAI counties were approximately 3.5 times more likely to be detained than White youth; however, a majority of JDAI sites substantially reduced the number of minority youth in detention (Mendel, 2014). One of the strategies they employed to reduce racial and ethnic disparities was to tailor their solutions to meet each community’s needs. After five years at a JDAI site in Pierce County, Washington, there was a reduction in the juvenile detention population by more than half, but African-American youth were still 4.5 times more likely to be detained than White youth (Mendel, 2014). Notably, low and medium-risk African-American youth were being detained for minor violations such as failure to appear in court. Thus, officials implemented phone calls to remind youth about upcoming court dates and sent a case monitor to the homes of youth who could not be reached (Mendel, 2014). Those efforts resulted in an increase in the court appearance rate in 2008 from 52% to 91% (Mendel, 2014).
There are also opportunities for jurisdictions to obtain training in strategies for reducing DMC. One example is the Children Law and Policy Center’s collaboration with the Center for Juvenile Justice Reform at Georgetown University. It provides intensive training lasting one week for participants. The training focuses on how to address DMC at each decision point, as well as how DMC relates to the disparate treatment youth experience in child welfare and education. Participants leave the training with completed projects focused on creating large systemic change or plans that can initiate or enrich their efforts to collaborate with others focused on reducing DMC.
There are a number of emerging issues that will possibly continue to increase the number of youth of color who have disproportionate contact with the juvenile justice system. As mentioned previously, Hispanic youth have only recently begun to be counted as a separate group in the federal reports provided by OJJDP. This change comes as the Hispanic population continues to increase. With the uptick in population, important, unaddressed issues are also becoming apparent. There will be a need to create a clear definition regarding who should be counted as Hispanic or Latino (Soler, 2014). Improving engagement with the system, so as to improve outcomes, will also require: ensuring language access, attention to educational issues, strengthened data collection strategies (Peck, 2018), and culturally responsive services and programs (Soler, 2014). Finally, there will be a need to consider at arrest a juvenile’s immigration status because of the possibility that contact could lead to detention, deportation, and the permanent separation of youth from their families (Soler, 2014; Villarruel & Walker, 2002).
Males have always constituted the largest numbers of those in the criminal and juvenile justice systems; however, the numbers of females have been steadily increasing. The percentage of delinquency cases in 1985 for girls in the juvenile justice system was 12%, and except for a slight decrease between 2005 and 2006, percentages have steadily increased; by 2014 girls represented 28% of all delinquency cases (Sickmund, Sladky, & Kang, 2017). For Black girls, there is clear DMC with rates increasing from 2005 to 2014 from 33% to 36%; the levels of DMC maintain regardless of decision point.9 Research has repeatedly highlighted how the pathways that culminate in contact with the juvenile justice system are unique for girls (see Lopez & Nuño, 2016; Zahn et al., 2010). With the increasing numbers of girls and levels of DMC, attention will need to be paid to how gender- and culture-responsive strategies need to be utilized as a part of strategic interventions in DMC reduction efforts (Lopez & Nuño, 2016).
The justice by geography cause of DMC identified by OJJDP is strongly linked to the proactive policing strategies utilized in many communities. The premise of proactive policing is to use “vigorous enforcement of laws against relatively minor offenses to prevent more serious crime” (Kubrin, Messner, Deane, McGeever, & Stucky, 2010, p. 57). It is perceived that the mere presence of the police will decrease crime (Kubrin et al., 2010). One proactive strategy utilized by the police that is most associated with New York City are Terry stops or stop-and-frisk. It has been upheld as constitutional by the U.S. Supreme Court but deemed unconstitutional by the District Court for the Southern District of New York when certain groups are targeted (Johnson, 2015). This strategy has the potential to continue to increase levels of DMC because it is solely at the officer’s discretion whether to temporarily detain an individual because of a suspicion of criminality (Fradella & White, 2017). The justice by geography strategy acknowledges that police are placed in environments that youth of color are more likely than White youth to inhabit, and the differential offending perspective recognizes the likelihood that youth of color will be seen as criminals. In addition, the “persistent undercurrent of racial injustice in American policing” and frequent accusations of racial profiling by the police are emerging more as stop-and-frisk has become more prevalent (Fradella & White, 2017). Stop-and-frisk strategies have been shown to be overused and misused, resulting in a number of highly publicized deaths of Black men in New York City, Baltimore, and Ferguson, Missouri (Fradella & White, 2017). Race already has an impact on how youth are treated by the police, with many Black youth having had experiences of verbal and physical abuse (Brunson, 2007; Brunson & Weitzer, 2009). What is also clear about stop-and-frisk as a policing strategy is that Blacks and Hispanics have an even greater likelihood of having contact with law enforcement (Levchak, 2017), having those negative encounters repeated, and likely moving deeper into the system.
Strategies to Combat DMC
By 2015, at least 11 states had made available online data about DMC in their locale (Vessels, 2015a). Additionally, 46 states had completed the OJJDP required DMC assessments (Vessels, 2015a). Of those states, 30 posted their results online (Vessels, 2015a). System reform efforts must also continue to reduce DMC. It is important to understand how responses in the system are creating DMC for youth of color (Haight & Jarjoura, 2016). Soler (2014) suggests a multipronged approach. There should be an ongoing effort to collect and analyze data across decision points that can be used to identify the occurrence of DMC. Objective screening and assessment tools should be used to determine who should be detained versus continuing to allow negative perceptions and stereotypes to drive decisions. Community-based alternatives to detention should be created where lacking and those that are existing should be strengthened. Plans that are created and implemented to reduce DMC should have measurable objectives and progress should be regularly monitored. Finally, stakeholders, including family and community members, should be included in governing, not just participating in, DMC reform efforts. It is important to identify and acknowledge the impact of how implicit bias impacts those in key decision-making positions (Soler, 2014). “The existence of disproportional racial representation in the juvenile justice system raises concerns about differential exposure to risks and the fairness and equal treatment of youth by the police, courts, and other players in the juvenile justice system” (National Research Council and Institute of Medicine, 2001, p. 258).
Black and Hispanic youth are overrepresented at every stage of the juvenile justice system, and they experience worse outcomes. For example, when charged with the same offense, they are more likely to be detained and for longer periods of time than their White counterparts. Race has even been shown to be a predictor of the type of setting that youth who have been adjudicated will be referred to. Black and Hispanic youth are also much more likely than White youth to be referred for confinement (Rodriguez, 2013). Black youth have been shown to be more likely to be referred to boot camps and wilderness programs (Fader, Kurlychek, & Morgan, 2014), while White youth are more often referred to drug and alcohol programs, mental health treatment (Fader et al., 2014), or diversion programs (Soler, 2014).
Despite the funding provided by OJJDP to: create state and local evaluation partnerships (Hsia et al., 2004), provide in-service training for staff and technical assistance to states, create a pool of state and local DMC consultants, award funding to support the creation of accurate data collection methods, provide a web-based repository for the deposit of state and local data, and publish reports about the status of DMC in various locales (OJJDP, n.d.c). DMC remains a significant problem. Thus, empirical studies and reports evaluating the progress of the attempts to reduce DMC need to continue to be generated.
The DMC occurring in the juvenile justice system continues to exist and persist because of how youth of color are perceived (Lacey, 2013). The negative portrayals of youth of color combined with practices such as intense and more frequent policing in their neighborhoods continue to contribute to DMC (Lacey, 2013). Until the actual impact of race is understood it is likely DMC will continue to manifest. Focusing on the initial contact between the police and youth of color is an appropriate stage to begin because it is where the perceptions of the youth begin (Conley, 1994). Data entered into the permanent record shapes how a youth is perceived at each subsequent stage by other officials in the juvenile justice system (Conley, 1994).
In addition, as long as the juvenile justice system conflates a youth’s perceived personal needs and challenges with actual risks to public safety, youth of color will be criminalized and erroneously moved into the juvenile justice system, and DMC will continue to increase (Lacey, 2013). Finally, judges must work to ensure that their decisions are not being influenced by their own implicit biases, and as they make their decisions they must consider whether the key decision makers who engaged with the youth before them were influenced by implicit biases (Soler, 2014).
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1. Because both disproportionate minority contact and disproportionate minority confinement have the same acronym, and the former was created as a replacement for the latter, in this article DMC will be used only to refer to disproportionate minority contact.
2. Prior to 2017, the first decision point to be assessed with the RRI was arrest; however, because of the lack of data being collected about Hispanic youth the change was made to use referrals as the first possible decision point (OJJDP, n.d.b).
3. The term Hispanic is being used in this article to also include Latino youth so as to be consistent with the language used in OJJDP reports.
4. This statistic includes individuals who self-identify as American Indian or Alaskan native alone or in combination with another racial group
5. Cases for American Indian youth can be under the auspices of the state, tribal, or federal court. Federal court designations are based on location of the crime, type of crime, offender status, and victim status (DSG, 2016). Once determined, the investigation is handled by tribal police or the Federal Bureau of Investigations and Bureau of Indian Affairs (Motivans & Snyder, 2011).
6. Statistics reported will vary by decision point because data is not consistently reported from year to year or by type each year, nor are reports published each year; The years that are included are those most used in the OJJDP reports that are noted in the following sections.
9. The percentages prior to 2005 are not presented because this data does not allow for exclusion of any youth who may have been more appropriately counted as Hispanic.