It is time for youth justice reformers to stop and take stock of how we pursue justice.
The racial disparities that pervade our youth justice systems from beginning to end are not random occurrences. Rather, youth justice reformers can directly track the development of our justice policies to government control of populations largely seen as “other” by the white majority. As such, our work to shrink the system is insufficient if we do not fully confront the racist roots of the youth justice system itself.
Well before the first juvenile court was created at the turn of the 20th century, we used the court and prison system as a mechanism to perpetuate racism. During Reconstruction, our adult justice system was used as a means to extend slavery’s chains to freed black men who were picked up on newly passed vagrancy laws and other laws that comprised the “Black Codes” — criminal laws solely applicable to black citizens. These men were rented out to nearby coal mines and plantations under the forced labor of convict leasing programs.
This ability of our court and prison infrastructure to serve as a tool for the extension of slavery was enshrined in the 13th Amendment to the Constitution, which notably abolished slavery and involuntary servitude, “except as a punishment for crime.”
It’s upon this history that in 1899 in Chicago white women, emerging from the progressive settlement house movement, which provided education and services for poor immigrants, created our country’s first juvenile court. The court was a response to the growing evidence of the abuses in the “houses of refuge” — essentially detention centers for poor and immigrant youth — and the use of the adult justice system for children.
These women believed that these poor children — largely immigrant youth — who were unschooled, unsupervised, filling the city’s streets and getting in trouble with the law — often precisely because of their poverty — should be treated in age-segregated courts that would provide the child and family with a guiding hand and instill in them white, middle-class values.
The definitions of misconduct that could land a child in court were broad and, pursuant to the noteworthy judicial precept of “parens patriae,” judges were able to usurp all parental control over the children appearing before them, allowing the judges to impose wide-ranging interventions. From the very beginning, black youth were overrepresented in these courts — a source of concern for some black advocates, who recognized that there were insufficient social supports in communities for black youth.
As a result, we created a system that was practically tailor-made to oppress and contain youth of color. We can see a court system that was grounded in an imperialistic view that white middle-class people had the knowledge and obligation to improve the lives of “other” (even “inferior”) people, the understanding that the state knew better than families and was authorized to act in their stead and a promise of rehabilitation that was built upon community services that were lacking or nonexistent for black youth.
That today our system exhibits dramatic racial and ethnic disparities and is party to inhumane and unconstitutional abuses of youth should not, therefore, be surprising.
Jumping ahead to the 1970s, after the hard-won gains of the civil rights movement, we witnessed white politicians stirring up the public’s fear of crime to gain political points and white votes. They tapped into deep-seated, perhaps subconscious, concerns among white populations about the precariousness of their own supremacy in the face of legally protected civil rights for blacks. To this end, we saw a rise of “public safety” candidates who latched onto periodic increases in crime and mythic “super-predators,” enabling the subsequent cancerous growth of our justice system.
Over the last 45 years we have witnessed a never-ending war on drugs, unprecedented prison growth (often at the expense of public education), “three strikes and you’re out” laws, civil asset forfeiture, the annual charging of hundreds of thousands of youth in the adult system, the use of solitary confinement as default housing for prisoners, gang injunctions and databases and so much more.
So where does this bring us to today? Our youth justice systems exhibit intractable racial disparities at every decision-making point. This, in spite of the fact that youth of color and white youth self-report similar rates of offending.
And horrifyingly, our web of laws and community surveillance have led to fully one-third of adult black men being under some sort of court control (prison, probation, parole). We see our justice system binding itself to the immigration enforcement bureaucracy by collaborating with ICE to enable increased deportations of immigrants, and we see police officers stationed in schools, facilitating the arrest and court-processing of “disruptive” youth of color. After a century-plus of juvenile court development, our youth justice system has become a well-tuned tool for social control of black and brown young people.
While substantial advances and reforms have been made in youth justice in recent years — including dramatic drops in youth incarceration (there are fully 50 percent fewer youth held in youth prisons than a decade ago), greater awareness of the dangers of the school-to-prison pipeline and an increase in local and state efforts to stem this tide, fewer youth transferred to the adult court and a decrease in the use of solitary confinement — significant racial disparities in the system persist.
It is still youth of color who wear electronic monitoring devices, who get arrested at school and who sit in lock-up. In fact, in many instances, the rate of racial disparities has increased as the overall numbers of youth in the system has decreased. It is important to note here, that while youth of color bear the brunt of our system’s yoke, there are other groups of marginalized people who suffer as well. Youth who are LGBTQI, disabled, girls, First Nations’ people and others are disproportionately ensnared in and maltreated by our youth justice systems.
So what now? For we who seek justice, what is our path forward?
If the roots, trunk and branches of our youth justice system have grown out of the forces of white supremacy, then it is white supremacy that must be confronted. And by white supremacy, I do not mean the people who chant Nazi slogans in support of Confederate statues, although they clearly are white supremacists. I mean the white supremacy that lives in the structures of our society, in our organizations and in ourselves.
It is white supremacist culture that allows the implicit bias against youth and adults of color to which we all fall prey. It is white supremacist culture that reinforces the power imbalances that determines who gets funded, who serves as executive directors of our nonprofits, who speaks at conferences and who informs our policies.
What are we doing right now to dismantle these power structures in how we seek change? How do we run our organizations? Who are our leaders? Who are our staff? Have we partnered with and supported youth and families who are most negatively affected by our youth justice systems? Have we connected with and supported related movements for racial justice? Who holds us accountable? These and other questions should form the basis of our work ahead.
Yes, we must and we will continue to pursue policies that shrink our system and make what remains fair and effective. But this work — difficult as it may be — is insufficient if our goal is true justice. We must also simultaneously pursue our work in anti-racist ways. There is no simple recipe for a transformed society; it’s a journey that we engage in individually and collectively. So, let’s begin.
Sarah Bryer is executive director and president of the National Juvenile Justice Network.