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.