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.
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.
JJIE and Youth Today Washington, D.C. correspondent Kaukab Jhumra Smith is in Cincinnati this week covering a conference sponsored by the Children’s Defense Fund. Among the more than 3,000 people in attendance is legal scholar Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness.
Smith managed to catch up with her to ask a few questions.
JJIE: What do you think is the civil rights issue of our day?
Alexander: I think the disposal of people who are viewed as “other,” defined along lines of race and class is a civil rights issue of the day. That expresses itself as mass incarceration, it expresses itself as mass deportations, it expresses itself through the caste-like system that has become our schools.
And so I think really the defining issue of our times is viewing people -- poor people -- as disposable. They can be locked up, locked out, thrown out of the country, relegated to inferior education, denied jobs. It’s really viewing people defined largely by race and class, largely as disposable and unworthy of our care and concern.
JJIE: If you had a 30-second version of what people can do to counter what you have described as the spread of disenfranchisement laws, what would it be?
Alexander: I think there are a number of things we can do. The first in my view and the most important is consciousness-raising and truth-telling. I think as a nation we have been lulled to sleep, to imagine that we have made great racial progress, that we’re on the road to the Promised Land when in fact we’ve taken a tragic wrong turn.
So I think telling the truth, about how the system actually works, the harm it causes, who suffers, allowing those stories to be told, individual stories as well as the larger collective story. Consciousness-raising is critically important.
And then I think we have to build an underground railroad for people, people returning home from prison, people who are undocumented and struggling to find work and survive in this country, people who are struggling to survive in this era of mass incarceration, during this time when disposal of people has become commonplace.
And then we’ve also got to organize. We’ve got to organize for abolition of these systems, the system of mass incarceration, the war on drugs, calling for an end, once and for all, to the war on drugs. And so, in my view, it’s a combination of consciousness-raising, helping individuals in this time through underground-railroad activities and then really becoming serious about movement-building through organizing, at the community-based level as well as the national level.
JJIE: Why is it necessary to keep drawing upon analogies and parallels of the anti-slavery movement?
Alexander: I think it’s critically important because people think that that’s old news, that it’s ancient history, and I think we have to be conscious of the ways in which the same kinds of attitudes that justified slavery, and that justified Jim Crow, are alive and well today.
The arguments that were made in support of slavery were that African-Americans were not just genetically inferior but were prone to violence, had to be made to work, were lazy. Those are the kinds of arguments that were made to support slavery. The same arguments were trotted out to support Jim Crow and today we have versions of those same arguments being made to support mass incarceration.
So when we demonize the other and imagine that there is something inherently inferior about them, it makes it easy for us to believe that “those people” aren’t worthy of our care or concern. So I think we have to be conscious of the way that dynamic repeats itself. It repeats itself politically, it repeats itself socially, and if we become blind to the dynamic, or in denial about it, the chances are great that it will continue to repeat itself for a long time in the future.