Criminalizing Normal Adolescent Behavior in Communities of Color: The Role of Prosecutors in Juvenile Justice Reform

The title of this post is the title of a new must-read article by Professor Kristin Henning (Georgetown), forthcoming in the Cornell Law Review.  Few legal scholars have looked closely at the role of the prosecutor in juvenile court, a specialized position that has long deserved more critical examination, which is precisely what Professor Henning provides.

The abstract follows, and the full article is available via SSRN here:

There is little dispute that racial disparities pervade the contemporary American juvenile justice system. The persistent overrepresentation of youth of color in the system suggests that scientifically supported notions of diminished culpability of youth are not applied consistently across races. Drawing from recent studies on implicit bias and the impact of race on perceptions of adolescent culpability, Professor Henning contends that contemporary narratives portraying black and Hispanic youth as dangerous and irredeemable lead prosecutors to disproportionately reject youth as a mitigating factor for their behavior. Although racial disparities begin at arrest and persist through every stage of the juvenile justice process, this Article focuses specifically on the unique opportunity and obligation that prosecutors have to address those disparities at the charging phase of the juvenile case.

Professor Henning implores juvenile prosecutors to resist external pressures to respond punitively and symbolically to exaggerated perceptions of threat by youth of color and envisions a path toward structured decision making at the charging phase that is informed by research in adolescent development, challenges distorted notions of race and maturity, and holds prosecutors accountable for equitable decision making across race. While fully embracing legitimate prosecutorial concerns about victims’ rights and public safety, Professor Henning frames the charging decision as one requiring fairness, equity, and efficacy. Fairness requires that prosecutors evaluate juvenile culpability in light of the now well-documented features of adolescent offending. Equity demands an impartial application of the developmental research to all youth, regardless of race and socioeconomic status. Efficacy asks prosecutors to rely on scientifically validated best practices for ensuring positive youth development and achieving public safety. Thus, even when neighborhood effects and social structures produce opportunities for more serious and more frequent crime among youth of color, prosecutors have a duty to evaluate that behavior in light of the current developmental research and respond to that conduct with the same developmentally appropriate options that are so often available to white youth.

As the gatekeepers of juvenile court jurisdiction, prosecutors should work with developmental experts, school officials, and other community representatives to develop and publish juvenile charging standards that reflect these goals. To increase transparency and encourage buy-in from the public, Professor Henning recommends that prosecutors track charging decisions according to race and geographic neighborhood and provide community representatives and other stakeholders with an opportunity to review those decisions for disparate impact. Finally, to ensure that communities of color are able to respond to adolescent offending without state intervention, Professor Henning contemplates a more expansive role for prosecutors who will engage and encourage school officials and community representatives to identify and develop adequate community-based, adolescent-appropriate alternatives to prosecution.

What are your thoughts regarding the role of the prosecutor in juvenile court?  What strategies do you recommend for developing alternatives to prosecution, particularly in communities of color?  Please share in the comments!





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About Tamar Birckhead

This entry was posted in Juvenile Court, Juveniles, Legal Scholarship, Prosecutor's Role, Race, Class, Ethnicity. Bookmark the permalink.

6 Responses to Criminalizing Normal Adolescent Behavior in Communities of Color: The Role of Prosecutors in Juvenile Justice Reform

  1. William says:

    This is an excellent abstract and speaks to the ongoing lack of access to scarce resources that continues to impact the growing disproportionate number of juvenile members of minority groups in the juvenile justice system. I would encourage a collaborative approach where prosecutors are working with licensed social workers and understand some of the alternative community based options that would lead to supportive and restorative justice for this vulnerable population.

  2. Michele says:

    As a criminal defense attorney working in the juvenile courts, we have been lucky to have alternative programing available for some of our young people. The district attorney’s office has developed an alternative dispute resolution program, we have a “Changing Lives Through Literature” program, which works through the probation department and we have a Youth Court, whereby first time offenders who make an admission to certain less serious offenses are sentenced by a “jury” of their peers, student volunteers from the local schools who listen to the facts as presented by student prosecutors and defense attorneys, weigh the “defendants” credibility, and sentence him or her within the guidelines given to them. Of course they are not allowed to recommend jail sentences, but they have come up with some very unique and interesting sanctions.
    The bigger problem in our community is law enforcement. I had a young man in my office just yesterday who as of Haitian heritage (luckily he was not there for himself). He was dressed appropriately – not in “gangbanger colors” – behaved appropriately – and spoke intelligently. I did feel compelled to remind him that in addition to his own behavior, he needed to aware of who he “hung around” with because if the police saw that he was with troublemakers, they would just look at the color of his skin and assumme he was one too.

    • Kim Kremer says:

      My state’s statutes allow for youth courts. Unfortunately, my jurisdiction is rural and largely poor. Although it would cost less in the long run and would likely provide better results, I cannot envision the elected officials in my county embracing such an idea. One does not win elections by promising to spend money on ways to avoid locking up juvenile offenders. (They’re also not spending much to lock them up, either.)

  3. Steve says:

    No fathers at home. No discipline and a culture that admires and looks up to thugs, rappers etc.. Dressing to intimidate. Why are we shocked at this situation amongst this group .?

  4. Miki Elster says:

    Oh if only this article were something more than magical thinking or a fantasy. We have created an adversarial system, where the winner is one side or the other and never the juvenile defendant. Restorative Justice speaks to an intervention that allows the juvenile to be both responsible for the offense and still rehabilitated to enable them to return to the community in a positive and contributing way. As a society we have become more and more comfortable with throwing away our children as a way of not having to face the mess we make of their lives. Socioeconomic deprivation, hunger, inadequate schools, racist policies and incredibly uneven sentencing contributes to the escalation of often needless and endless juvenile life sentences. We are in effect declaring our children worthless. For all intents and purposes we don’t consider them mature enough to buy cigarettes, enter into contracts, drink alcohol, or a myriad of other situations where we demand they be either 18 or 21. Only when it comes to youthful behavior do we demand that they have adult maturity.
    Once they’ve had contact with the law, it is an endless cycle of discrimination with regard to employment, family housing, repeated stopping and questioning by the police, and other harassment. My husband and I mentor detained and incarcerated youth and are amazed how bright and caring they are no matter how egregious the crime they have committed, and find that given the opportunity to be better, they proudly rise to the occasion with anyone that truly believes in them. The article is wonderful, the dream is beautiful, the question now is how do we get the prosecutors to accept a different role of team playing, rather than adversary to everything the defense has to offer. I have sat in Juvenile Court too many times when anything that was positive with regard to the juvenile defendant, was either minimized or negated. We need to create interventions and consequences that are team created, that include mental health, community service, mandated education and caring supervision. In our current system the prosecutor is there for one purpose, to win at any cost regardless of the evidence. Hateful reality but true.

  5. Kim Kremer says:

    I am a deputy prosecuting attorney in a jurisdiction that is majority Latino. While the majority of the respondents I charge are Latino, the majority of my victims are Latino, too. Their voices are often lost in our efforts to encourage pro-social behavior from juvenile respondents.

    I often remind people that I am fully aware that no matter what we do, the majority of juvenile offenders will age out of crime. It doesn’t matter if we’re harsh or lenient: by the time most people are in their mid-twenties, they’re tired of being locked up.

    Perhaps my biggest frustration is the number of referrals I receive from the schools. I recognize that the schools are caught in an untenable position: they must offer an education to all children, but they must also make an effort to keep everyone safe. Too many referrals I receive describe behavior that should result in a suspension, not a criminal charge.

    If it’s any consolation, the majority of the juveniles referred to my office only make the trip once. In my mind, the biggest predictor is when a child recognizes he or she has let down his or her parents, and that they’re going to have earn back trust. That only comes from good parenting, though. I suspect that when a kid comes to us broken, there isn’t much the juvenile justice system can do to fix them.

    I wish we had a mental health court where I work. But my county commissioners no longer fund drug court for juveniles, and they’ve cut funding to our detention center so sharply that we can only house 35 juveniles in a facility designed to house 80. A nearby county has a juvenile gang court, and I’m keeping my fingers crossed that it will prove so successful that the voting public will clamor to see one established here. (Note that I am not holding my breath.)