Delinquent by Reason of Poverty


Jim Crow book coverWith 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.

This emphasis on families’ needs when adjudicating delinquency has a disproportionate effect on low-income children, resulting in high rates of recidivism and perpetuating negative stereotypes based on class. Longitudinal studies have shown that arresting children and placing them in the juvenile court system increases the likelihood of their continued involvement in the courts both as youth and as adults, particularly when detention is imposed. Detention disrupts education, family cohesion, and the provision of services. It also exacerbates pre-existing behavioral and mental health problems, not to mention that a substantial percentage of confined youth do not have histories of violence and pose minimal risk to public safety.  Further, juvenile court involvement and intervention has been shown to stigmatize youth. Once the label of “juvenile delinquent” is formally imposed, it is readily accepted by both the child and the community; the child is then defined and perceived by others through the lens of this label.

Several promising strategies have been developed for addressing the overrepresentation of low-income children in delinquency court. Few juvenile court systems collect data on the income levels of children and their families as they are processed through the system. Yet, reliable data is critical for accurate analysis of the problem and for development of solutions to reduce income disparities. Modeled on efforts to reduce the overrepresentation of minorities in juvenile court, states could gather income data at critical processing points in the system, such as arrest, intake, appointment of counsel, adjudication, and disposition. An advisory body could then determine where income disparities exist, identify instances of unnecessary juvenile justice system involvement, and monitor implementation of reforms to address the issue.

A further strategy for confronting and reversing needs-based delinquency is for law enforcement agencies and public schools to take steps to avoid indiscriminately directing low-income minor offenders into the juvenile justice system. Between 1985 and 2008, the number of adjudicated cases that resulted in court-ordered probation increased by 67 percent, while those that were resolved through informal means decreased 13 percent. This trend toward more formal processing of delinquency cases flies in the face of evidence that diversion programs can be extraordinarily effective. At a time when states are dramatically reducing the budgets of juvenile justice agencies, fewer court referrals would also help offset cuts.

Mass incarceration is, indeed, a crisis that Americans must confront, but the problem does not originate with the arrest and conviction of young adults, and it does not affect only the African-American community. Instead, it begins with failing schools, a crumbling child welfare system, heavily-policed urban neighborhoods and juvenile courtrooms filled with families of all races and ethnicities who live at or below the poverty level. Before we can place mass incarceration at the forefront of a racial justice movement, we must stop the insidious practice of adjudicating children delinquent by reason of poverty, with the goal of increasing fairness for all Americans.

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Tamar Birckhead

Tamar Birckhead is an associate professor of law at the University of North Carolina at Chapel Hill and a criminal defense attorney with more than 20 years of experience. She is a faculty supervisor of the UNC Juvenile Justice Clinic, an academic program in which third-year law students defend children charged with criminal offenses in juvenile delinquency court. Professor Birckhead’s research interests focus on issues related to juvenile justice policy and reform, criminal law and procedure, and indigent criminal defense; her scholarship has been published in numerous law journals, and she co-edited the third edition of a law school casebook, Children, Parents, and the Law, with Professor Leslie J. Harris. She also regularly writes commentary, which has been published in the Los Angeles Times, and she recently launched the Juvenile Justice Blog. Prior to joining the UNC faculty in 2004, Professor Birckhead practiced for 10 years as a public defender, representing indigent criminal defendants in the Massachusetts trial and appellate courts and in federal district court in Boston. Professor Birckhead has defended clients in a wide variety of criminal cases, from violent felony offenses in state court to acts of terrorism in federal court. Among her clients was Richard Reid, the attempted "Shoe Bomber" prosecuted in the First Circuit under the U.S.A. Patriot Act. Licensed to practice in North Carolina, New York, and Massachusetts, Professor Birckhead has been a frequent lecturer at continuing legal education programs across the United States as well as a faculty member at the Trial Advocacy Workshop at Harvard Law School. She received her B.A. degree in English literature with honors from Yale University and her J.D. with honors from Harvard Law School, where she served as Recent Developments Editor of the Harvard Women's Law Journal.

2 thoughts on “Delinquent by Reason of Poverty”

  1. I agree that jury nullification is an important tool to keep in mind — if you’re sitting on a jury or if you’re trying a case before a jury. For juveniles in delinquency court, however, it is rarely an option, as the vast majority of states do not allow jury trials for juveniles (approx. 30). Even in those states that allow them, there are exceptions or they do so only under limited special circumstances. For more on jury nullification, see the scholarship of Professor Paul Butler (Georgetown).

  2. Do you hate the idea of corrupt public officials and the whole criminal fraternity laughing their way to the money launderer? Then fortunately for you there is one last peaceful avenue for change: Jury Nullification.

    Jury Nullification is a constitutional doctrine that allows juries to acquit defendants who are technically guilty but do not deserve punishment. All non-violent ‘drug offenders’ who are not selling to children, be they users, dealers or importers, clearly belong in this category.

    If you sincerely believe that prohibition is a dangerous and counter-productive policy, then you must stop helping to enforce it. You are entitled to act according to your conscience: Acquit the defendant/s if you feel that true justice requires such a result. You, the juror, have the very last word!

    * It only takes one juror to prevent a guilty verdict.
    * You are not lawfully required to disclose your voting intention before taking your seat on a jury.
    * You are also not required to give a reason to the other jurors on your position when voting. Simply state that you find the accused not guilty!
    * Jurors must understand that it is their opinion, their vote. If the Judge and the other jurors disapprove, too bad. There is no punishment for having a dissenting opinion.

    “It is not only [the juror’s] right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” —John Adams

    We must create what we can no longer afford to wait for: PLEASE VOTE TO ACQUIT!

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