Leiden Law Blog

Addressing Disproportionate Minority Confinement in Juvenile Justice

Addressing Disproportionate Minority Confinement in Juvenile Justice

Sometimes numbers speak for themselves... The juvenile detention demographics of Cook County (Illinois, USA, in which the city of Chicago is located) leave no doubt that the African-American representation in juvenile detention admissions (84.1%) vastly exceeds their representation in the general youth population (31.6%).

Cook County (Illinois, USA); juvenile detention demographics

Source: Illinois Criminal Justice Information Authority 2011
  Juvenile population (10-16 yrs.) in Cook County (2008) Cook County’s juvenile detention admissions (2008)
Caucasian (white) 33.9% (169,854) 2.8% (141)
African American 31.6% (158,073) 84.1% (4,225)
Hispanic 29.5% (147,448) 12.6% (630)
Other 5.0% (25,019) 0.5% (26)
Total 100.0% (500,394) 100.0% (5,022)

 

Unfortunately, Cook County is no exception; overrepresentation of racial/ethnic minority children (i.e. children of a race/ethnicity other than white/Caucasian) in confinement is a reality in juvenile justice systems throughout the entire United States (AECF, 2013). This condition is referred to as ‘disproportionate minority confinement’ (‘DMC’).

When visiting youth detention centers during my research visit to the juvenile justice systems of Chicago, New York City, Philadelphia, Baltimore and Washington DC in September 2013, I was shocked by the almost entirely African-American youth detention populations. At the same time, I was very surprised by the fact that official policy documents in these juvenile justice systems explicitly address this issue. Not only by publishing demographics such as the table above, but also by expressing the reduction of DMC and ‘racial disparities’ in juvenile justice as official policy objectives (e.g. OJJDP, 2009)

Why was I so surprised by this? After all, such demographics are simply facts and said policy objectives seem reasonable and legitimate… I guess my surprise might well be rooted in being a product of Dutch culture and society. Because let’s face it: we Dutch are often extremely uptight when it comes to addressing issues of race and racism, particularly in the context of criminal and juvenile justice.

Keeping Track of Race in Data; A Taboo?

In its annual report ‘JJI in getal, the Dutch Custodial Institutions Agency (Dienst Justitiële Inrichtingen) publishes the official data on the juvenile detention population in the Netherlands. This data is aggregated on the basis of age, gender, country of birth and nationality, but not on the basis of race or ethnicity. Given that many second and third generation immigrants are born in the Netherlands and have the Dutch nationality, these numbers barely give us any insight into the actual population of ‘racial/ethnic minority children’ in detention. So even though everyone who visits juvenile detention centers in the Netherlands on a regular basis knows that minority children are often overrepresented, we do not address this properly in the official detention statistics. Why not?

First of all, because in the Netherlands keeping track of race in detention statistics is generally framed as a form of ‘racial registration’. This  is principally prohibited by law (Art. 16 Dutch Privacy Act); a prohibition that is primarily rooted in the principle of non-discrimination. Besides, although for example the annual government report ‘Criminaliteit en Rechtshandhaving’ also takes into account the country of birth of parents in the analysis of juvenile crime rates (NB: not in juvenile detention rates!), explicitly addressing race or ethnicity in statistics seems still a taboo in the Netherlands. Similar to most Western European countries, the Dutch historically tend to perceive this as discriminating and even dangerous (cf. Bovenkerk, 2009).

In the United States, in contrast, addressing race or ethnicity in population demographics is common practice, also in the context of juvenile justice (e.g. Maryland Department of Juvenile Services, 2012). In fact, the American law practitioners and policymakers whom I met during my research trip – among whom were African-Americans, Latinos and Caucasians – did not seem to consider keeping track of race/ethnicity of juveniles in detention as discriminating or dangerous at all. On the contrary: many regard obtaining an accurate count of the characteristics of the juveniles in the system – among which their race/ethnicity –  as essential in order to detect, address and tackle disparities in the juvenile justice system (Lubow, 2013).

An Example; Reform Based on Data-Proven DMC in Illinois, USA

In the 1980s, legislators in the state of Illinois (USA) adopted a law that required youth to be tried as adults for drug sales within 1,000 feet of a school or public housing project in order to reduce drug crime. Data showed, however, that this legislative change led to racial disparities in the juvenile justice system resulting in a significant rise of African-American and Latino youth in adult prison facilities.

In 2000 over 90% (!) of Illinois’ youth tried as adults for drug crimes were African-American or Latino, whereas research showed that drug use amongst white youth was at least equally prevalent. However, because most of the state’s minority youth lives in dense urban areas in Chicago, they are much more likely to be within 1,000 feet of a school or housing project than Illinois’ mostly white suburban youth population (AECF, 2013).

Without keeping track of race/ethnicity of juveniles involved in the juvenile and criminal justice system, the disproportionate effect of the law on ethnic minority youth would possibly not have come to light. But because such data was available, the legislative authorities were factually confronted with this – seemingly unintended – consequence of their policy, which ultimately led to a change of legislation.

Towards Acknowledgement of DMC in the Netherlands?

In line with the rationale of the abovementioned example, Dutch law explicitly makes an exception to its general prohibition of racial registration in case this is necessary for reducing factual disadvantages of minority groups relating to the issue of race (Article 18 Dutch Privacy Act). So does this mean Dutch official policy documents (i.e. ‘JJI in getal’) should show juvenile detention rates classified on the basis of race or ethnicity? In other words, should we move towards explicit acknowledgement of DMC in juvenile detention centers in the Netherlands?

As to this, one might point out the potential risk of stigmatization of minority youth. Such statistics could provide anti-immigrant politicians and media with ammunition to label minority youth as being problematic and dangerous, which could eventually lead to their (further) exclusion from Dutch society.

The existence of DMC, however, concerns an issue that might touch upon the very fundamentals of the Dutch constitutional state, in which equality before the law is paramount. It is therefore the government’s responsibility to take DMC in juvenile justice seriously. It could be argued that the government is also obliged to do so under International Human Rights Law (e.g. Art. 2 UN Convention on the Rights of the Child). I am not claiming, however, that DMC in Dutch juvenile detention centers is a result of a racist juvenile justice system. Instead, I argue that it is the government’s responsibility to be aware of potential – unintended – racial disparities in juvenile detention admissions and to take action in case disparities seem to exist.

This does not mean, though, that I expect the Dutch government to challenge the issue of overrepresentation of minority youth in juvenile detention centers all by itself. Juvenile justice reform efforts in the United States show that reducing DMC is complex and requires efforts and reforms on numerous levels; not only on the side of the government, but also within minority communities and society as a whole. Nevertheless, by simply ignoring this delicate issue in official policy documents (i.e. ‘JJI in getal’) the Dutch government does not live up to its responsibilities. Formally acknowledging and addressing DMC in Dutch juvenile justice would therefore be a first important step in the right direction.

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