Black and White Justice

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Photo by Runs With Scissors via Flickr

All he wanted was a slushie.

But after making a “wide turn” on his way to do so, black teenager Tae-Ahn Lea was pulled over, frisked, and handcuffed by officers from the Louisville Metro Police Department. After also searching his car, officers found no contraband, but issued Tae-Ahn a citation. A judge later dismissed the citation, and an outside police expert later concluded that the officers had conducted an illegal frisk.

Sadly, this sort of incident is not uncommon in America.

All too often, what counts as “justice” in our criminal justice system differs according to an individual’s racial or ethnic background. This is true not only for adults, but for some of the most vulnerable among us: our children.

Emily Mooney

Emily Mooney

In fact, the latest available national estimates from the Office of Juvenile Justice and Delinquency Prevention suggest that black youth are 2.6 times more likely to be arrested than their white peers. Making matter worse, minority youth are also 30 percent less likely than white youth to be diverted from traditional court processing to a diversion program or community sanction.

Put simply, many young people — particularly black youth — are at a disproportionately high likelihood of being caught in the justice system and are subsequently at an increased risk of being incarcerated and acquiring a delinquency record.

This should be a critical concern for conservatives and progressives alike. When we punish youth of certain racial or ethnic backgrounds more severely than others for similar acts, our notions of justice and equality under the law fall under attack, and our responses to crime can lose their effectiveness.

Meanwhile, young people who needlessly receive formal sanctions like incarceration suffer the educational, economic and psychological harms that can follow youth justice involvement, and taxpayers become less likely to see returns on their public safety investments.

In order to combat these trends, we must expand the use of diversion — the removal of youth from traditional court processing — in a manner that both promotes public safety and equity. This can be done by giving a warning in lieu of making an arrest,by issuing a citation, or by diverting young people from a juvenile facility into a community-based program.

Why do Racial Disparities Occur?

The first step to resolving this racial and ethnic disparity involves taking a deep dive to see where and why youth of different backgrounds are being treated differently.

Disparities can occur at any point in the process. They can vary widely by jurisdiction, and they occur for many different reasons. For example, inequities may occur when young people or their family members are required to pay fees or take time away from work in order to participate in a diversion program.

If certain racial or ethnic groups are more likely to be impoverished than others, they’ll be less likely to be able to afford these fees or time off work. As a result, disparities between how the justice system treats youth of different races and ethnicities will develop.

In other cases, racial and ethnic disparities may occur when law enforcement, prosecutors or judges use their discretion differently when deciding whether to divert a young person from court processing. In some cases, this may be due to implicit biases. In fact, research suggests that youth of color are often perceived to be more deserving of blame for their actions than white youth. As a result, these youth may be less likely to be diverted from the justice system, and more likely to be awarded a harsher sanction, even when they have been accused of a delinquent act with a severity similar to those committed by other youth of a different race or ethnicity.

By identifying the factors driving local and state disparities and working with their communities, policymakers will be able to start rethinking how and when they should use diversion—the second step to ensuring an equitable, effective youth justice system.

Pre-Arrest Diversion, Iowa-Style

Scott County, Iowa, presents a successful example of this process. In fiscal year 2015, African-American youth composed 82 percent of the youth formally charged for a first-time simple misdemeanor in Iowa’s seventh Judicial District. In contrast, white youth made up 18 percent of this group. Given that Scott County is a majority white community, these estimates demonstrate clear racial disparities in who was being arrested and charged.

So in 2016, Scott County began rolling out a new policy: Youth who committed a first-time simple misdemeanor were to be automatically diverted to a pre-arrest diversion program. This meant that white youth as well as African-American youth—who were previously at a disproportionately high risk of being arrested and formally charged—were automatically diverted before they were arrested and, upon completing the program, avoided a delinquency record.

As a result of the policy, only 12 percent of youth diverted pre-arrest in fiscal year 2018 reoffended within a year—a recidivism rate 20 percentage points lower than that of youth formally charged for a first-time simple misdemeanor in 2015. By giving all youth the same opportunity to enter a diversion program, the new policy successfully promoted both public safety and equity.

It’s time to address problems of racial injustice made glaringly obvious by Tae-Ahn Lea’s story as well as those of so many others. A few localities have begun this work, and now we must encourage the adoption of similar efforts elsewhere.

When we do that, we denounce injustice and begin to create a fairer, more equitable society for our children today.

Emily Mooney (@emilymmooney) is a Criminal Justice and Civil Liberties Fellow at the R Street Institute. Data on the Scott County diversion program was shared by court services personnel for Iowa’s Seventh Judicial District. Reader’s comments are welcome.

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