JJIE Hub: Key Issues — Racial & Ethnic Fairness

"Racial-ethnic disparities" describes many communities in the United States, in which youth of color experience the juvenile justice system differently from white youth. Youth of color are more likely to be arrested, detained, and confined than white youth, and are more likely to be tried as adults.^[1] These disparities have deep historical roots reaching back long before the founding of the juvenile justice system in this country.^[2]

There are three types of differences that can be observed under the broad umbrella term, “racial-ethnic disparities”:

• • “Disparate treatment” describes situations when some youth are treated less favorably than others for similar conduct because of factors unrelated to their behavior, such as race and ethnicity.
  • Youth of color may also be “overrepresented” in the justice system, meaning that the percentage of youth of color in the justice system is higher than the percentage in the general population.
  • Finally, a more technical term, “disproportionate minority contact (DMC),” describes the higher rate of involvement of youth of color at a particular decision point in the juvenile justice system when compared with the previous decision point and when compared to the rate at which non-Hispanic White youth appear at the same decision points.

Disparate treatment – or many other factors – may cause overrepresentation and disproportionate minority contact. Analysis of data and of local juvenile justice system functioning provides the opportunity to understand the causes of these phenomena and opportunities for intervention.

"Racial-ethnic fairness" refers to treating all youth in the justice system equitably and fairly, regardless of their skin color or ethnic background. Many stakeholders and reformers are working to address the racial and ethnic inequities pervading the system in order to ensure that our juvenile justice systems treat all youth fairly.

Click here for a link to WIC 236 "Pre-Probation" Supervision of Youth of Color With No Prior Court or Probation Involvement.

NOTE: Racial-ethnic disparities are often referred to as "disproportionate minority contact," or "DMC." However, regional and national demographic shifts make it more appropriate to refer to the phenomenon as "racial and ethnic disparities," without reference to "minorities."

Nationwide

In 2011, youth of color^[3] under the age of 21 represented 21 percent of the youth in the United States, but accounted for 71 percent of youth held in detention nationwide, and 66 percent of youth committed to juvenile facilities upon a determination of delinquency.^[4]  When the data is broken down by decision point in the juvenile justice system, it shows disparities for youth of color at every stage – arrest, referrals to juvenile court, detention, youth petitioned to juvenile court, youth placed in juvenile facilities after adjudication, and youth waived to adult court.^[5] For state-by-state and county information, see this interactive online map from the Burns Institute on racial disparities in juvenile justice systems across the country.

This chart compares the Relative Rate Index  at each key stage of the juvenile justice system for White; Minority; African-American; American Indian or Alaskan Native (AIAN); and Asian, Hawaiian, or Pacific Islander (AHPI) youth.^[6]  (The Relative Rate Index is a way of comparing the rates at which different populations are represented at different decision points compared to White youth. A relative rate of 1.0 means youth are represented at a rate identical to White youth; rates less than one means youth are underrepresented compared to White youth; and rates greater than one mean they are overrepresented.)

Hispanic youth do not appear in the Relative Rate Index chart because federal data do not disaggregate them. Nevertheless, other sources show that Hispanic youth are also over-represented in the juvenile justice system at every stage of the process. Hispanic youth are:

• • four percent more likely than white youth to be petitioned;
  • 16 percent more likely than white youth to be adjudicated  delinquent;
  • 28 percent more likely than white youth to receive an out-of-home placement;
  • 43 percent more likely than white youth to be waived  to adult court; and
  • 40 percent more likely than white youth to be incarcerated in an adult prison.^[7]

For more detail on Hispanic youth and additional breakouts of racial-ethnic disparities for African-American, Asian/Pacific Islanders, and Native American youth, see the Resources section.

Statewide

While the type and degree of disproportionality varies by state, there is a great deal of disproportionality in most states. A meta-analysis of racial/ethnic disparities in the juvenile justice system found that two-thirds of the state and local juvenile justice systems studied exhibited a “race effect” at some stage of the juvenile justice process that resulted in poorer outcomes for youth of color.^[8] State-level comparative data exists for youth in residential placement and incarcerated in adult prisons.

Residential Placement

In terms of residential placement or youth placed outside of the home – whether due to detention prior to trial or placement after adjudication, 2011 statistics showed the following over-representation of youth of color:^[9]

• • • African-American youth had higher rates of residential placement per 100,000 youth than White youth in every state except for Vermont and in the District of Columbia;
    • Hispanic youth had higher rates of residential placement per 100,000 youth than white youth in 38 states and the District of Columbia;
    • Native American youth had higher rates of residential placement per 100,000 youth than white youth in 32 states; and
    • Asian Pacific Islander youth had higher rates of residential placement than white youth in 4 states.

Click here for a link to a chart of the race/ethnicity by state of youth in residential placement in 2011.

Youth in Adult Prisons

As for youth admitted to adult prisons, of the 35 states reporting data on them in 2003, researchers found the following:^[10]

• • • All but three states reported higher numbers of African-American youth in prison compared to White youth, with Relative Rate Indexes  (RRI) ranging from 1.7 in Alaska to 28.4 in California.
    • States reporting the largest disparities for African-American youth in adult prison were Colorado, Iowa, Maryland, Minnesota, New Jersey, New York, Pennsylvania, and Wisconsin.
    • Eighteen states reported higher numbers of Hispanic youth in prison versus White youth. States reporting the largest disparities were California, Minnesota, North Dakota, Pennsylvania, and Wisconsin. Of those states reporting Native American youth in adult prisons, California, Michigan, Minnesota, Missouri, North Carolina, Oklahoma, Washington, and Wisconsin had youth admission rates that were at least two times higher than those of White youth.
    • Of those states reporting Asian Pacific Islander youth admitted to adult prisons, Minnesota, Mississippi, and Wisconsin had youth admission rates that were over three times those for White youth.

Click here for a link to the 2009 chart of the Relative Rate Index of new admissions of youth to adult prisons (see p. 3).

Measuring inequities is complex, due to the different classifications of race and ethnicity, and the fact that there are different ways to measure it.

Classifying Youth by Race and Ethnicity

Race and ethnicity classifications differ between jurisdictions and over time. For example, the 1997 federal standards, promulgated by the White House Office of Management and Budget, set five categories for race, yet the Census 2000 questionnaire offered fifteen choices.^[11]

The method for determining how a youth is classified can also differ across jurisdictions and includes self-identification, identification by an observer, and identification from an outside source, such as a complaint filed with the court. However, asking individuals to identify how they would like to be classified is the preferred way to collect this data.^[12]

What is Being Measured?

The first thing to determine is what one is trying to measure. The “over-representation” of youth of color in the justice system generally refers to the measure of disproportion of such youth in comparison to their proportion in the general population.^[13]

“Disproportionality” or "disparity" often refers to the comparison between the rate of justice system involvement of youth of color and White youth.^[14]   It can also refer to a specific comparison between the rate at which youth in a racial or ethnic group appear at one decision point  in the juvenile justice system versus the rate at which they appear at a prior decision point – the calculation that results are then compared to a similar calculation made for White youth at those decision points. (This is how the Office of Juvenile Justice and Delinquency Prevention’s (OJJDP) Relative Rate Index measures disproprotionality).^[15]

Hispanic Youth

• • Youth who identify as Hispanic or Latino can be of any race, but many jurisdictions fail to adequately measure the overrepresentation of Hispanic youth in the juvenile justice system because they do not use separate data categories for race and ethnicity. Instead, they may ask youth to choose, for example, whether they identify as black, white, Hispanic, or Asian.^[16]
  • The failure to disaggregate race and ethnicity causes Hispanic youth who identify their race rather than their ethnicity on these types of forms to be undercounted.^[17]
  • Additionally, since collecting data on ethnicity is not required by the federal government under the Juvenile Justice and Delinquency Prevention Act (JJDPA), some states do not collect this information at all.^[18]
  • Since the vast majority of Hispanic youth identify their race as “white” (88.6 percent according to 2011 OJJDP data),^[19]  the failure to collect data on Hispanic youth inflates the rate of system involvement for white youth and masks the disproportionality of Hispanic youth.

Mixed Race Youth

Data on mixed race youth is often hard to find. The National Center for Juvenile Justice which vets and processes federal data does not provide data for mixed- or multiple-race youth. While some state entities may keep this data, if each of its constituent agencies does not also do so (for example, the court system may use the “mixed race” category although law enforcement does not) then some undercounting will result.^[20]

Today, girls are the fastest-growing segment of the juvenile justice population. While crime rates have been decreasing for both boys and girls, the decrease has been slower for girls; since 1997 the incarceration of boys nationally has decreased 18 percent and for girls only 8 percent, with increased incarceration rates for girls in fourteen states of more than 30 percent.^[21]  Status offenses still remain the primary reason that girls enter the juvenile justice system.^[22]

African-American Girls: The juvenile justice system’s differential treatment of girls has been most pronounced for African-American girls; they are the fastest-growing group of girls referred to juvenile justice courts and the fastest-growing group that is detained.^[23]  Between 1992 and 2008, referrals of African-American girls to juvenile courts increased by 72 percent and the number of African-American girls detained increased by 75 percent.^[24]

In the Justice System:

• • Girls of color account for 14% of the national population but account for 33.2% of girls detained and committed into correctional facilities. ^[25] Girls of color are “2.7 times more likely than white girls to be referred to the juvenile justice system, .8 times less likely to be diverted from the system, and 1.2 times more likely to be detained." ^[26]
  • Adultification of black girls is one driving force of arrests; Adultification of black girls leads adults to think black girls need less protection and care than white girls. Adults also believe that black girls know more about adult topics than white girls. ^[27]
  • One study found 68% of the girls tried in adult court were black girls in comparison to 59% of boys.^[28]

In the Education System:

Research suggests that this differential treatment in the justice system has antecedents in the way girls of color are treated in school. For example:

• • According to one study, “teachers tend to view black girls as louder, more unruly, and more in need of reprimand for being ‘unladylike’ than other girls.” ^[29]
  • Seeing black girls as “less innocent” means there may be less opportunity for girls to experience mentorship and leadership learning. ^[30]
  • African-American girls are under more observation for their actions and decorum than their white peers.^[31]

Native American Girls:

• • Native American girls are 1% of the national youth population; however, they make up 3.5% of girls involved in the juvenile justice system. ^[32]
  • More research is needed to further understand how Native American girls are affected by racial-ethnic fairness.

Differing rates of delinquency among youth of different races and ethnicities do not explain the vast disparities in their involvement at various points in the juvenile justice system.^[33]  What youth self-report in research studies about their illegal behavior shows that youth of color do not commit more crimes than their white counterparts.^[34]  Thus, racial-ethnic disparities result from other factors, including policing practices, school policies, and socio-economic status.

Policing: 

Some policing practices and policies can increase the chance that youth of color will be arrested. Examples include:

• • Police, system personnel, victims, and witnesses may act on racial and ethnic bias.^[35] It should be noted that racism by people in authority towards youth of color is not displayed only by white personnel. A recent research experiment found that unconscious negative racial stereotypes influenced the decisions of black, white, and Hispanic police officers.^[36]
    • • In a 1998 study, researchers George S. Bridges and Sara Steen examined why African-American youth with similar delinquency histories who were charged with the same offenses as white youth received harsher sentencing recommendations. They found that:
        • • probation officers were more likely to see the offenses of youth of color as caused by individual failings, such as inadequate moral character, for which state intervention was the only solution;
          • probation officers were more likely to view offenses committed by white youth as caused by “external forces,” such as a poor home life and lack of appropriate role models.^[37]
      • Several empirical studies have found that prosecutors are more likely to bring charges against black suspects than white, even when statistically controlled for prior criminal records.^[38]
      • A recent study of 133 judges from three different jurisdictions found that judges hold implicit racial biases that can influence their judgment. However, when the judges were made aware of the need to monitor their responses for the influence of implicit racial biases, they were often able to do so.^[39]

• • • Some laws can perpetuate racial disparities.
      • • For example, federal laws and many state laws impose harsher sanctions for crack cocaine – more common in black communities – than for powder cocaine, used more frequently in white communities.^[40]

More policing issues:

• Police overestimate the age of youth of color by approx. 4.5 years from the age of 10 and older.^[41]
• When status offenses are filed against children, youth pick up the stigma that they are “bad” and the stigma enforces a decrease in self-esteem. Being involved in the court system also increases the likelihood that the children will be involved in future criminal activity. ^[42]

Fatalities:

• Data shows that youth of color are killed by police at a higher rate than their white peers. When looking at youth killed by police in 2015, 44% were African-American youth. By October 2017, African-American and Hispanic youth accounted for 71% of deaths of youth by police.^[43]
• Little data is available for Native American youth, but per capita, Native American youth are the most likely demographic to be killed by police.^[44]

In schools: 

Expanded police presence and zero tolerance policies in schools predominantly attended by youth of color, have resulted in more school-based arrests.^[45]  Police practices and school policies can increase the chance they will arrest youth of color. Examples include:

• Drug sniffing police dogs and metal detectors are used more often in schools with a high population of youth of color. ^[46]
• “Hispanic or African-American students account for over 70% of the students involved in school-related arrests or referred to law enforcement.”^[47]

Contrary to these practices, American voters (approximately 90%) believe youth should only be diverted to the justice system in extreme cases and that schools should take responsibility for youth “who commit low-level offenses." ^[48] Handling discipline at the school level, however, does not necessarily remedy racial and ethnic disparities. Instead, studies find:

• Harsher disciplinary practices in schools predominantly attended by youth of color which result in more students being pushed out of school through increased suspensions and expulsions.^[49]
• Implicit biases may encourage stereotyping among teachers and staff, which could lead to differential judgments about students' behaviors based on race and sex-- leading to more school arrests.^[50]
• In public schools, black students account for 15.5% of the school population and account for 39% of the students who are suspended from school. ^[51]
• Beginning as early as preschool, black students account for less of the general school population and more of the suspension population. Black students are 19% of public preschool students but account for 47% of students who are suspended from public preschool. ^[52]
• As the number of black students in a school goes up suspensions and expulsions also increase; while schools with a smaller population of black students tend to respond with more behavioral treatment and special education programs.^[53]

Socio-economic status: 

One study showed that black students of high-poverty schools are over-represented by almost 25% in suspension rates. Socio-economic status of children in the United States is a predictor of involvement in the system, which is especially true for youth of color.^[54]

• Offenses in poor areas — which are, in many urban areas, where youth of color live — may be more visible. Increased patrols in low-income neighborhoods or in racial or ethnic minority neighborhoods.^[55]
• Youth of color often have less access to family or community resources that could serve as alternatives to detention, resulting in the confinement of more youth.^[56]
• Drug offenses serve as an example of this. While white youth use and sell drugs at higher rates than African-American youth,^[57] police arrest more youth of color for drug offenses. One reason may be that drug offenses tend to occur outdoors in poorer, non-white neighborhoods, while they occur inside homes in middle and upper-class neighborhoods. It is easier for police to target street corners in cities than it is to target suburban homes.^[58]

The weaknesses of the juvenile indigent defense system may also contribute to racial-ethnic disparities.

• Youth of color must obtain legal counsel through the indigent defense system more often than white youth.^[59] Unfortunately, many indigent defense systems are under-resourced, leaving defense counsel underpaid, with heavy caseloads and limited legal resources. Additionally, youth are not appointed counsel at an early stage in the proceedings in many areas and/or are encouraged to waive their right to counsel and proceed unrepresented. These problems can lead to poor legal outcomes for youth of color, causing them to go deeper into the juvenile justice system.

For further information on juvenile indigent defense resource issues, click here.

• In 1974 Congress passed the Juvenile Justice and Delinquency Prevention Act (JJDPA)^[60] to establish a federal-state collaboration to improve outcomes for youth in the juvenile justice systems across the country and enhance community safety.^[61]
  • • • • • Congress first made racial disparities in the juvenile justice system a federal priority in 1988, when it amended the JJDPA to require that states receiving funds from the Office of Juvenile Justice and Delinquency Prevention (OJJDP) must address “disproportionate minority confinement (DMC) ” in their juvenile justice systems.^[62]  States were required to collect data on the proportion of youth of color confined in the juvenile justice system and develop and implement plans to reduce any disproportionality.^[63]
          • In 1992, Congress amended the JJDPA again and made DMC a “core requirement,” which meant that states must comply with the DMC provisions of the Act, or the government could withhold 25 percent of the state’s JJDPA funding.^[64]
          • In 2002, Congress broadened this core requirement from “confinement” to “contact,” meaning that states must address the overrepresentation of youth of color at each key stage of the juvenile justice process, from arrest through pre-trial detention and post-adjudication confinement.^[65]
            • • Under the Act, states must identify the extent of racial-ethnic disparities, assess the contributing causes, develop and implement intervention strategies, and then evaluate and monitor the effectiveness of their chosen strategy.^[66]
              • States must also submit a three-year plan to reduce racial-ethnic disparities, as well as annual updates with data measuring disproportionality.^[67]
              • When a state fails to comply with a core requirement in the Act, such as addressing racial-ethnic disparities, the federal government reduces its JJDPA funding by 20 percent. The state must then use half of its remaining funds to work on compliance.^[68]
          • In order to be found in compliance with the DMC core requirement, states do not actually have to reduce racial-ethnic disparities; there are clear guidelines that they have to meet. This has enabled many jurisdictions to meet the DMC core requirement without reducing racial and ethnic disproportionality.^[69]  To determine compliance, OJJDP reviews each state’s progress in implementing its strategies and meeting the goals set in its annual plan.^[70]
            • • The subjective nature of determining “compliance” may be why nearly all states and territories have been found to be in compliance with the DMC core requirement, despite significant continuing racial-ethnic disparities.^[71]
              • Recently, OJJDP has found more states at risk of being found non-compliant; in 2011, there were 13 at-risk states. These states are given three years to correct their deficiencies.^[72]
          • JJDPA was reauthorized in 2018 and included updates to the racial-ethnic disparities core requirement. JJDPA now requires states to prepare an actionable plan that has measurable goals to address racial disparities shown through data collection.^[73]

• A review of the data states and localities have submitted to the Office of Juvenile Justice and Delinquency Prevention (OJJDP) indicates that few have been able to reduce racial-ethnic disparities. A recent study of three years of data from more than 800 counties across the country found that only three states and seven local jurisdictions had either improved their level of disparities or remained stable when looking at three of the five juvenile justice decision points  (referral, diversion, detention, confinement, and transfer). Fifteen additional jurisdictions had improved or were stable at two of these decision points.^[74]Some of the obstacles to reduction include the following:
  • • • • • • Many states and localities collect insufficient data, especially on ethnicity, since the Juvenile Justice and Delinquency Prevention Act (JJDPA) does not require collection of ethnicity data.^[75] Most also collect only basic information that does not provide important details, such as the specifics regarding the types of offenses for which youth are being arrested and geographical location where they are occurring.^[76]  Poor data prevents jurisdictions from clearly understanding the extent of the disparities, which groups of youth are specifically affected, and how to target interventions.^[77]
            • Jurisdictions do not always analyze and use the data they collect to drive policy decisions regarding reducing racial and ethnic disparities.^[78]
            • Many jurisdictions do not conduct adequate assessments of racial-ethnic disparities in their system before attempting to intervene. According to a 2013 publication from the National Research Council, Arkansas, Connecticut, Iowa, New Mexico, and Wisconsin were the only states OJJDP found to have conducted adequate assessments.^[79]
            • Reform-minded stakeholders may have trouble distinguishing between policies and practices that are the result of larger societal issues and those issues that are within stakeholders’ ability to change. Many jurisdictions rely on past practices that have not been proven effective or interventions that have not been rigorously evaluated as to their impact in reducing racial-ethnic disparities. However, progress in identifying such interventions has been slow.^[80] See Reform Trends for more information on promising interventions.
            • Jurisdictions seeking to address disparities may lack the political will to make necessary changes, which may stem from a failure to recognize that racial and ethnic disparities exist in the jurisdiction —or a refusal to see it as a problem. Alternatively, it may stem from a failure to engage key stakeholders, such as the court, prosecutors and defense attorneys, probation officers, law enforcement, community members, and families.^[81]
            • Localities may lack alternatives to incarceration in the community, or adequate funding to create them.
            • Even when significant efforts are made to address racial and ethnic disparities, jurisdictions can stumble if they fail to regularly monitor the overall impact of their reforms to determine if they are making progress in reducing disparities and to ensure that progress continues.