Delinquent by Reason of Poverty

The title of this post is the title of a new column of mine published today on Juvenile Justice Information Exchange.  I’m now a regular contributor to JJIE; my pieces will typically appear on Mondays, with direct links from this blog.

This is how it begins:

With the publication of Michelle Alexander’s provocative book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, our attention has been drawn to the troubling reality that the majority of young African-American men living in our cities are either incarcerated or on probation or parole. As a result of the ill-conceived “War on Drugs,” our communities of color have been decimated, and a vast population has been left unemployable and disenfranchised. Professor Alexander powerfully demonstrates that America’s racial caste system did not end with the outlawing of state-sanctioned segregation but merely reconstituted itself. With the demise of Jim Crow, the criminal justice system now functions as our society’s system of racial control.

Yet, there is an important piece of this picture that has been overlooked. Years before they turn 18, millions of children are caught up in the U.S. juvenile justice system, a principal feeder into the criminal courts. Recent research has revealed that as a result of both institutional and structural causes, the standard of proof in delinquency court is determined in large part by the socioeconomic class of the accused, rather than the nature of the forum. As a result, the state’s burden of proof is lowered for indigent children and heightened for affluent ones. Therefore, in all but the most serious of cases, children from low-income homes do not have to be as “guilty” as those from families of means in order to enter and remain in the system, widening the net of court intervention for the poor.

This concept of “needs-based delinquency” challenges basic presuppositions about the method by which children are adjudicated delinquent. At each stage of the process — from intake through adjudication to disposition and probation — the court gives as much or more weight to the perceived “needs” of the child and her family than to the quality of the evidence against her or the ability of the state to prove its case. The most common points of entry into delinquency court — the child welfare system, public schools, and neighborhood police presence — are structured so that few meaningful distinctions can be made between poor children and those who present a true danger to the community. In addition, typical features of state juvenile codes, including procedures for diversion and the use of bench rather than jury trials, combine to shift the system’s emphasis from an evaluation of the child’s criminal responsibility to an assessment of a family’s social service needs.

Please read the rest here.

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About Tamar Birckhead

School of Law
This entry was posted in Books, Criminal /Juvenile Defense, Delinquency, Juvenile Court, Juveniles, Race, Class, Ethnicity. Bookmark the permalink.

3 Responses to Delinquent by Reason of Poverty

  1. Rachel Gassert says:

    Thank you so much for this post. I work in juvenile justice reform and this is perhaps the biggest challenge we face as we attempt to change these systems. Even as more and more jurisdictions reduce the number of youth they incarcerate, they still struggle with the need to “fix” all these “broken” kids and families – who are perceived this way simply because their choices, attitudes, appearances, and values don’t conform to the white, upper middle class model. Moreover, they fail to see that there is real harm in pulling these kids into the juvenile justice system for minor infractions, simply because the kid isn’t behaving in school or he stays out late or because his mother isn’t around to watch him after school. The law & order “lock em up” mentality is still there but the desire to “save” the children is almost more problematic. As you note, if the system opts not to divert a kid from formal prosecution and that kid ends up on probation, the chances that he will screw up are high and eventually a judge is only going to take so many screw ups before that probation is revoked and he ends up incarcerated.

    The reason this is so, so important is because of the sometimes concerning direction that juvenile justice reform is taking. I hear so much about needing new and better alternatives to incarceration or better access to mental health treatment. While this may be true, the answer is always about the programming and never about the decision making. I know that we can’t ignore the needs that arise when kids grow up in poverty, but the juvenile justice system cannot be the sole party responsible for addressing them and we need to recognize that when they are, they tend to make things worse. We need to raise this conversation up so that more people are focused on it.

    The only caution I have about focusing on poverty is that I wouldn’t want it to replace the conversation about race. We need to be honest about the role race plays in this system and that we are nowhere near fixing that problem. Most likely, race and income produce a cumulative effect, which explains why low-income black youth (or hispanic in the west) are so incredibly overrepresented in these systems. Additionally, I don’t want people to think that the answer to fixing juvenile justice is to eradicate poverty. There’s a lot we can do to change the way the juvenile justice systems operate despite the fact that so many children are growing up in poverty in this country.

    • tbirckhe says:

      Thanks so much for your very thoughtful comment. I agree completely with every point you’ve made. Thanks, too, for the work you do and for reading the Juvenile Justice Blog!

  2. Pingback: Delinquent by Reason of Poverty — Take Two | Juvenile Justice Blog