OP-ED: You can’t Talk About Justice Without Talking About Race

Attempts at reducing disproportionate minority contact (DMC) and disparate treatment of racial and ethnic youth in the justice systems of our country have not made much progress. Advocates, foundations, courts and stakeholders have exercised words and approaches, but the numbers don’t lie.

According to the Juvenile Justice Information Exchange’s recent analysis of federal data from 1990 and 2010, minority youth were greatly over-represented at every point of the system. The comparison of that 20-year span shows little to no improvement of DMC in arrests, adjudications, detentions and transfers to adult court.

Perhaps part of the problem is that we continue focusing on effects instead of causes. We do not want to have that conversation in which we have to ask, “Am I a racist? Are my decisions affected by race? Is my court part of the problem?”

Recently, I have been involved with a training for judges entitled “Racial Equity and Justice.” It is staffed by public child welfare workers, judges and people from Crossroads Anti-Racism Organizing and Training.  Specifically, the approach is aimed at reducing disparity in the child welfare system, but the program has equal or greater applicability to juvenile justice.

Sessions include the fundamental question of “What is racism?” and offer the following guidance. Racism is not the same thing as individual race prejudice and bigotry. All people are racially prejudiced regardless of racial or ethnic identity, but this does not mean that everyone is racist. Racism is more than race prejudice and more than individual attitudes and actions. Racism is the collective actions of a dominant racial group.

Systemic power — the legitimate ability to access and/or control those institutions sanctioned by the state — turns race prejudice into racism. When one group’s racial prejudices are enforced by the systems and institutions of a society, giving power and privilege based on race to the group in power, and limiting the power and privilege of the racial groups that are not in power, racism is created.

Simply put, race prejudice plus misuse of power by systems and institutions equals racism.

The training approach begins with creating a safe place for the participants to learn and converse. The judges’ group I facilitated included men and women of African-American, Caucasian and Latino heritage. Faculty included Native Americans and people from around the U. S. Topics included the history of differential treatment of whites versus Native Americans, blacks, Asians, Latinos and Arabs in our country. Crossroads’ curriculum explores how racism and racist institutional values become codified into law and accepted into the institutional structures and the culture of our country. The workshop discussion among participants includes the ongoing realities of racism today and how it is manifested in law and courts. The session explores the social construction of race and how race in internalized as well as the implication for financial structures and wealth accumulation.

Although the presentation and ensuing conversations are frank and sometimes disturbing, I can testify that the judges involved were seriously interested in determining where the justice system fits in the equation of disproportionality.

Most important to this session was not the reality of racism but what can be done about it. Judge Louis A. Trosch, Jr. of the 26th Judicial District in North Carolina, is an avid faculty member of Crossroads’ workshops across the country. He acknowledges the environment of the Old South in which he lives but personifies the attitude of one who is out to change the effects of racism in his child welfare court.

One approach is to use the Preliminary Protective Hearing Benchcard developed by the National Council of Juvenile and Family Court Judges. It guides judges through a series of questions aimed at objectively determining facts necessary to make decisions about removing a child from her family without racial bias. The Benchcard also suggests reflections for the judge that protect against institutional bias such as “How is my decision specific to this family?” and “How might the court’s past contact with this family influence my decision making process or findings?” Approaching real decisions with real tools has helped Judge Trosch organize a team approach in his court and community, which has made progress on changing institutional bias.

This short article cannot replicate the lessons or experience of confronting questions of race with colleagues and court stakeholders, but it does communicate a beginning. In fact, the Crossroads Training is designed for a three-day presentation, but we collapsed it into one day to accommodate court schedules. Nonetheless, that one day may change the world a bit in dozens of courtrooms. After all, if we are not talking about race, we are not talking about justice.