JUVENILE JUSTICE

CHILDREN IN CONFLICT WITH THE LAW:

JUVENILE JUSTICE & THE U.S. FAILURE TO COMPLY WITH OBLIGATIONS UNDER THE CONVENTION FOR THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION

Response to the Periodic Report of the United States to the United Nations Committee on the Elimination of Racial Discrimination

February 2008

Prepared by:

USHRN Working Group on Juvenile Justice

Addie Rolnick of Sonosky, Chambers, Sachse, Endreson & Perry, LLP; Alison Parker of Human Rights Watch; Angela Arboleda of National Council of La Raza; Bernardine Dohrn, Director of Children and Family Justice Center, Northwestern University School of Law; Cindy Soohoo, Director of Bringing Human Rights Home Project, Human Rights Institute, Columbia Law School; Dalia Hashad of Amnesty International, USA; Deborah LaBelle, ACLU Michigan; Eric Tars of National Law Center on Homelessness and Poverty and Coalition for Human Rights at Home; Francisco Villaruel of the Institute for Children, Youth, and Families and Julian Samora Research Institute of Michigan State University; Jasmine Tyler of National Affairs of the Drug Policy Alliance; Jason Zeidenberg of the Justice Policy Institute; Jenni Gainsborough of Penal Reform International; Jill Beeler of the Office of the Ohio Public Defender; Rashida Emondson and Katayoon Majd of the National Juvenile Defender Center; Liz Sullivan and Tiffany Gardner of the National Economic and Social Rights Initiative; Luis Rodriguez, author and activist, LTia Chucha, Los Angeles; Margaret Huang of the U.S. Racial Discrimination Program of Global Rights; Marsha Weissman of Center for Community Alternatives; Michael Harris of The W. Haywood Burns Institute; Michelle Leighton, Director of Center for Law and Global Justice, University of San Francisco Law School; Randolph Stone of theEdwin F. Mandel Legal Aid Clinic of University of Chicago School of Law; Ryan King of The Sentencing Project; Tonya McClary, National Criminal Justice Representative of American Friends Service Committee; Tshaka Barrows of The W. Haywood Burns Institute; and the outstanding and timely legal research of law students DominiqueDoan-My Thuy Nong and ViniyankaPrasad, University of Chicago Law School;Erin White and her students at the University of Oregon Law School; and Charla Strong, Christopher Vaughn and Kieran Wiberg, at Northwestern University School of Law.

CHILDREN IN CONFLICT WITH THE LAW:

JUVENILE JUSTICE & THE U.S. FAILURE TO COMPLY WITH OBLIGATIONS UNDER THE CONVENTION FOR THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION[1]

Executive Summary

I.INTRODUCTION

1. The United States’Periodic Report to the Committee significantly understates the extent of racial discrimination in the criminal justice system overall, and fails to discuss anywhere in its 300 page report the practice of widespread and well-documented racial and ethnic discrimination in its juvenile justice system, despite well-known racial disparities in the number of youth targeted, adjudicated, sentenced and incarcerated. The Report’s passing mention of juvenile facilities in the context of CRIPA enforcement simply highlights this failure.[2]

2.The juvenile justice system in the U.S. provides a stark example of racial discrimination, with racially discriminatory effects evident in every State in the country but one. The juvenile justice systemserves asa the feeder into the adult criminal justice system, and has reached deeply into the public education system to criminalize youth for minor and typical adolescent behaviors, particularly in poor urban school districts with large numbers of students of color.

3. Systemic discrimination in the juvenile justice system is a grave and decisive violation, because justice for the child is an entry point for subsequent involvement in the adult criminal justice system, and results in substantial negative and pervasive lifetime consequences including: exclusion from education, jobs, college scholarships, and public housing, bars to enrollment in the military, voting disenfranchisement, incarceration in dangerous conditions,and increased risk of violence.[3] Although juvenile records are sealed for many purposes, youth adjudicated delinquent are often subject to sentencing enhancements upon conviction of a subsequent crime, as well as trial as adults for future offenses.

4. The Convention on the Elimination of all forms of Racial Discrimination (CERD) recognizes that racial and ethnicdiscrimination is a barrier to the full realization of human rights, and obliges states to nullify any law or practice which has the effector the purpose of creating or perpetuating racial discrimination.

  1. The continuing failure of the United States federal government to take concrete action to rectify the many instances of racial discrimination that exist within the juvenile justice system is a clear failure to meet its obligations under article 5 section (a) of the Convention to guarantee people of all races “the right to equal treatment before the tribunals and all other organs administering justice.” The Committee has elaborated on those obligations in General Comment XXXI, especially paragraphs. 25 and 41.

II.INITIAL POINT OF CONTACT FOR CHILDREN IN CONFLICT WITH THE LAW

1. Every stage of the juvenile justice system is marked by substantial racial disparities, even when data is controlled for severity of the charge and prior delinquency record. Moreover, the school system has become a significantentry point into the juvenile justice system through disciplinary policies that mandate school suspension, expulsion, and arrest for an increasing array of minor student behaviors and rule infractions. Following the passage of the Gun-Free Schools Act in 1994, the receipt of federal funding was predicated on school districts’ creation of “zero tolerance” policies resulting in mandatory expulsions for certain offenses. These policies were initially directed at the possession of a weapon but have since been used to expel, suspend, and arrest students for a variety of behaviors, the majority of which involved no violence whatsoever.[4]

2. Over 3 million students were suspended or expelled from elementary and secondary schools in the U.S. in the year 2000.[5] U.S. Department of Education Office of Civil Rights data shows that while youth of color (Black, Latino/a, Asian American, and Native American youth) comprised 38 %of the U.S. student population, they represented52 %of students suspended or expelled from school. The greatest disparities were found among Black students, who made up 17 %of the U.S. student population but 34 %of students subjected to out-of-school suspensions and 30 %of students subjected to expulsions.[6]

3. School suspensions are linked to dropping out of school, which is in turn associated with incarceration. The National Center for Educational Statistics foundthat 31 %of students who had been suspended three or more times before the spring of their secondyear of high school dropped out of school, compared to 6 %of students who had never been suspended.[7] Students who drop out of schoolare 3.5 times more likely than high school graduates to be incarcerated in their lifetime[8] – in fact, sixty-eight (68) percent of state prisoners dropped out of high school.[9] This phenomenon has come to be known as the “school to prison pipeline” in the U.S., reflecting recognition of the direct and dire consequences of increased surveillance and harsher punishments for minor disciplinary infractions in the public school system. Becauseyouth of color are disproportionately suspended and expelled from public schools, the consequences of dropping out andthe attendant increased likelihood of subsequent incarceration are not race neutral. Fifty-six (56) percent of black youth in the juvenile justice system report a prior school suspension.[10] One study estimated that, while 1 in 10 young (age 22-30) white high school dropouts have been incarcerated by their early thirties, this figure increases to52 %forAfrican American males.[11]

4. The juvenile and criminal justice systems also intervene directly in the school setting. According to the U.S. Department of Education, between 1999 and 2003, the number of schools reporting the regular presence of armed safety and police officers increased by 30%. While national data is not available, information from individual cities shows an increasing number of arrests of children while in school, again largely for minor misbehavior. For example, in 2003 in Chicago, Illinois, 8,539 students were arrested in public schools, disproportionately youth of color.[12] Almost 10% of those arrested were children age 12 or younger. Black students made up 77% of the arrests, but only 50% of the school population. Less than half of the students arrested in Chicago schools are referred to juvenile or criminal court and only some 17% of the cases are continued through trial, yet students are excluded from their schools. In New York City, more than 4,600 police officers work in public schools everyday, representing a larger police presence than exists in most cities in the U.S.[13] While New York City has refused to disclose the number of arrests made in schools, a recent study by the New York Civil Liberties Union (“NYCLU”) shows that increased law enforcement and school security measures are concentrated in schools whose student body is disproportionately made up of students of color: 82 %of children attending schools with metal detectors were Black and Latino/a, surpassing their 93% representation in the citywide school population.[14]The racial disparity in school arrests is not limited to large urban centers: in 2003, according to the Des Moines Register, Black students who make up 15% of the Des Moines, Iowa high school student populationrepresented33% of the 556 arrests made in that city’s high schools.

5. Many arrests made in schools are for non-criminal activity, and are carried out without regard for the age of the student or the context forthe child’s misbehavior. For example, in St. Petersburg, Florida in 2005, a five-year-old African American girl was arrested by police for throwing a tantrum and hitting an assistant principal. One month earlier in New York City a sixteen year-old girl was arrested for shouting an obscenity in the hallway. When the school principal attempted to stop the police from detaining the girl, the principal and a school aide were also arrested. This underscores that girls, as well as boys, suffer from the consequences of racial discrimination in school discipline. In Palm Beach County, Florida in 2003, where Black students are 64% of those arrested in school but only 29% of the student population, 26% of arrests were for fights or threats where there wereno injuries or weapons, and 22% were for miscellaneous, and highly discretionary, offenses such as “disruptive behavior”.[15]

6. Beyond arrests in school, overall arrest rates of youth of color are disproportionate to their representation in the general population. For instance, African American youth are 16 %of the overall population, but represent 28 %of children arrested in the U.S. [16]

7. Racial disparities in school suspensions, expulsions, and school and community arrests are compoundedthroughout the juvenile justice system itself, resulting in a cumulative impact. These disparities are particularly acute for African American youth, as indicated by Figure 1.

Figure 1. Sources: Population: Puzzanchera, C., Finnegan, T. and Kang, W. 2006. Easy Access to Juvenile Populations. Online at: Detained, Petitioned, Adjudicated, Transferred, Placed: Stahl, A., Finnegan, T., and Kang, W. 2007. "Easy Access to Juvenile Court Statistics: 1985-2004." Online at: Arrest, Prison: National Council on Crime and Delinquency 2007. And justice for some. Washington, DC: National Council on Crime and Delinquency.

8. Despite wholly inadequate data about other youth of color (Latino/as, Asian Americans, Native Americans) in the juvenile justice system, when youth of color are added to the dire discrimination against African American youth, the disparities become even more stark. For example, the incarceration rate for African American young males in 2003 was 1,278 per 100,000, the rate for Latino male youth was 774 per 100,000 compared to the rate for white youth of 305 per 100,0001.[17]

Statistics drawn from:

And Justice for Some: Differential Treatment of Minority Youth in the Justice System,” published by the National Council on Crime and Delinquency (NCCD), January 2007

IIIDISCRIMINATORY DETENTION OF CHILDREN

1. From 1985 to 1995, the number of youth held in secure detentionin the U.S. increased by 72%. Over the same ten year period, the racial proportions of these youth were reversed. In 1985, 56.6% of children in public detention centers were white and 43.4% were children of color. By 1995, the proportion of children of color in public detention facilities was 56.4%, while that of white youth declined to 43.6%.[18] Similarly the rate of incarceration of girls grew 65% from 1988 through 1997. The rate of incarceration for African-American girls grew 123% compared to 41% for white girls.[19]

Figure 2.

2. Nationwide, youth of color were overrepresented in the detained juvenile population at 3.1 times the rate of white youth, among commitments to public facilities at 2.9 times the rate of white youth, and among private commitments at 2.0 times the rate of White youth.[20] Youth are often unnecessarily or inappropriately detained at great expense, with long-lasting negative consequences for both public safety and youth development.

3. This increase in the use of secure detention for children awaiting trial, and the increase in the detention of children of color, has resulted in severely overcrowded detention facilities. The number of juvenile detention centers with populations over capacity rose by 642% in this decade, from 24 to 178 institutions.Sixty-two percent of African American and Latino youth who were detained were held in overcrowded facilities.[21]

Figure 3

Figure 4.

Source: Sickmund, Melissa, Sladky, T.J., and Kang, Wei. (2005) "Census of Juveniles in Residential Placement Databook."

4. In 1992, theJuvenile Detention Alternatives Initiative (JDAI) was launched to reduce the detention of children, improve child outcomes, and preserve public safety, by testing new ways to establish smarter, fairer, more effective and efficient juvenile justice systems. These sites have achieved measurable results using strategies such as better screening tools, more reliance on data, collaboration between systems and communities, and effective alternatives to incarceration.

Many of these results are well documented. For example, while implementing JDAI, sites achieved the following:

  • In Cook County, Illinois, the average juvenile detention population dropped by 37 percent and youth arrests decreased by more than half;
  • Multnomah County, Oregon, has decreased its juvenile detention population by two-thirds and decreased juvenile arrests by almost half; and
  • Bernalillo County, New Mexico, greatly reduced its average daily population in secure detention between 1999 and 2003, while seeing a 26 percent drop in juvenile crime.

JDAI promotes changes to policies, practices, and programs to:

  • reduce reliance on secure confinement;
  • improve public safety;
  • reduce racial disparities and bias;
  • save taxpayer dollars; and
  • stimulate overall juvenile justice reforms.

Since its inception in 1992, JDAI has repeatedly demonstrated that jurisdictions can safely reduce reliance on secure detention for childrenwithout increasing re-arrests or failure-to-appear rates, despite the continued existence of law enforcement policies such as juvenile curfews and increasing presence of law enforcement in schools that drove up juvenile detention rates nationally.[22] There are now approximately 80 JDAI sites in 21 states and the District of Columbia.

5. Notwithstanding these promising initiatives, under existing U.S. juvenile justice policies detention continues to be the first resort of juvenile justice systems, rather than the last resort, with dramatic and disproportionate impacts on youth of color.

IV. JUVENILE JUSTICE COURT PROCESSING

1.From the inception of the modern juvenile justice system, the court processes and procedures of the juvenile justice system have been tainted by the United States’ racial discrimination and inequality.[23] This effect can still be seen in the way that juvenile cases are handled in court today. As previously discussed, there is disproportionatecontact between children of color and the juvenile justice system. Therefore, court processes that rob children of their due process rights have a disparate impact on children of color in the United States. Some court practices may go beyond disparate impact and become examples of intentional as well as systemic racial discrimination, such as prosecutorial charging and transfer decisions and judicial transfer decisions which deny youth of color their right to equal treatment before the courts. The lack of action by the U.S. government to counter the discriminatory effect of policies and practices or to mitigate the harm done to youth of color represent a violation of both Article 2 and Article 5 (a) of the Convention.

2. Because the United States has both a disproportionate number of people of color living in poverty, and a disproportionate percentage of children of color involved with the juvenile justice system, it stands to reason that the client population of many juvenile indigent defenders is disproportionately African American, Latino, Asian American and Native American. Therefore, state systems that under-resource and under-value the provision of specialized juvenile indigent defense services have a disparate impact on children of color in the United States.

3. Juvenile indigent defense systems are many and varied across the country with no legally enforceable ethical standards and model rules of conduct Although each state has its own unique challenges in providing quality counsel to youth, there are several common problems across the states.[24] Throughout the United States, children’s access to qualified counsel is impeded by:

  • Delayed appointment of attorneys assigned to represent children;[25]
  • Highrates of waiver of counsel, such waiver often being encouraged by court systems;[26]
  • Defenders with staggeringly high caseloads that prevent zealous representation of each client;[27]
  • Inadequate resources allocated to defender offices and private conflict counsel, including lack of investigators, motions, experts, and training in adolescent development, preventing zealous advocacy;[28]
  • A lack of training and supervision of juvenile defense attorneys, resulting in under-qualified lawyers for children;[29] and
  • A court room culture that discourages juvenile defenders from advocating strongly for child clients, by viewing delinquency courts as “kiddie courts” where adversarial practices are out of place and defense attorneys are roadblocks to be overcome.[30]

4. The consequences are dire when a child receives ineffective assistance of counsel, or no counsel at all. Low-income children of color who are adjudicated face a much greater likelihood of out-of-home placement. Once disposition is complete, juvenile adjudications have serious collateral consequences, like: expulsion from school, limited job prospects, deportation, disqualification and eviction from public housing, and ineligibility to serve in the military. For children to suffer these consequences without the protection afforded by competent counsel is an affront to due process that harshly affects children of color.