Justice

The Juvenile Justice System Punishes Black and Brown Youth for Minor Infractions

This op-ed talks about racial disparities in the juvenile justice system and the Gault Supreme Court ruling.

This piece was published in coordination with Zealous and The Gault Center, two organizations working to amplify the perspective of public defenders.

As a youth defense attorney in Brooklyn, for the past five years, I witnessed firsthand the criminalization of young people. New York City is often hailed for its diversity, yet the overwhelming majority of children I have represented are Black and Latino/a. I could probably count on one hand the number of white youth I have represented. 

Many people assume that when kids are arrested and appear in court, they must have done something terrible. But most of the children being pushed into the juvenile court system are there because they had been acting like a typical teenager — they just weren’t able to get away with it because of their race and ethnicity.

Every day, young people across the country find themselves enmeshed in the juvenile court system, often for common adolescent behaviors such as skipping school, drinking alcohol, or getting in a fight. Once they are involved in the system, juvenile courts can unleash the power of the state to put them in shackles, place them in confinement, surveil their movements, impose fees and fines that can cause lasting debt, and permanently mark their record. All of this can occur without a lawyer by their side to explain what is happening, strategize with them, and defend their case.

This practice of leaving children defenseless in juvenile court has long been illegal. On May 15, 1967, a U.S. Supreme Court case, In re Gault, secured due process rights for all children facing juvenile court, including the fundamental right to a lawyer. The Supreme Court recognized that without a lawyer standing by and enforcing the child’s rights, the legal protections afforded to the child are essentially meaningless. But 55 years later, children often face the punitive hand of juvenile courts without a lawyer to defend their rights. States thwart a child's constitutional right to counsel through a series of loopholes that include charging fees, delaying the appointment of counsel, and creating incentives for a child to waive their right to a lawyer.

Our country’s neglect of the fundamental right to counsel under Gault is both revealing and, sadly, unsurprising. The juvenile court system has always disproportionately harmed certain youth. These disparities reflect the neglect of these communities by our elected officials and other leaders. The young people harmed by the legal system are from the same communities where schools, hospitals, jobs, and playgrounds are under-resourced and underfunded — perpetuating the pillars of structural racism that target and funnel Black, Latino/a, and Indigenous youth into juvenile courts.

There’s a simple reason for the racial disparities in juvenile courts: The system was built to be exactly this way. Before the 20th century, children in America were valued for their ability to contribute to the workforce. By the 1830s, as America began to grow a middle class with the rise of industrialization, the concept of “adolescence” was born. States began to pass the first protective child labor laws to preserve this period of childhood as a time reserved for growth, education, and play. But Black children were enslaved during this time. From the beginning, the notion of adolescence was a social construct designed by white families to idealize white children; it was never designed to protect Black children or allow them to prosper.

It was in this context that the juvenile legal system was created. First, cities began building “houses of refuge,” which were designed to divert children deemed delinquent by the courts away from the adult prison system and into structured, family-style environments that offered guidance, training, and discipline. These programs initially targeted poor, white, immigrant children and served as an attempt to accelerate assimilation into American culture. All the while, Black children were excluded from these more humane alternatives, remained in the adult criminal legal system, and were jailed at disproportionate rates.

Then, in 1899, the first juvenile court was established, in Chicago, with the aim to guide children toward rehabilitation and protect them from the harms of the adult system. These courts quickly replicated across the country in formal recognition that children must be treated differently than adults. In light of their development, they are less culpable and more responsive to rehabilitation, thus needing protection from the harsh penalties associated with the adult legal system. But even in this “benevolent” system, Black children continued to be treated differently than their white counterparts. They were frequently sent to locked state facilities, while white children benefited from the court’s leniency and were more often sent to child welfare institutions.

To this day, there are essentially two tracks of the juvenile court system: one, centered on rehabilitation, for white children; the other, focused on control and punishment, for children of color. These racial disparities are apparent from the start, as Black, Latino/a, and Indigenous children are disproportionately funneled into the system. Black youth are 2.4 times more likely to be arrested and Indigenous youth are 1.5 times more likely to be arrested than white children for comparable behavior. Black youth are then incarcerated at 5 times the rate of white youth; Indigenous youth are incarcerated at 3 times the rate; and, Latino/a youth are incarcerated at 1.7 times the rate. This matters because arrest and incarceration can have detrimental consequences for young people. Studies show that even brief stays in custody increase the likelihood of developing mental health issues, dropping out of high school, and getting re-arrested — all the while disrupting family and community ties that are vital to positive youth development.

Far too many times, we have seen Black children fall prey to the machinery of the juvenile legal system, prompting brief moments of national outrage. In 2015, for example, officers were called to a pool party in McKinney, Texas, after receiving reports of a “disturbance.” In a seven-minute video captured by witnesses, 15-year-old Dejerria Becton, a Black teen, was violently thrown to the ground by police, pinned on her stomach, handcuffed, and dragged by her hair. The police officer also pulled his gun on two of her friends, while Becton cried, facedown, calling for her mother.

As recently as April 21, in Syracuse, New York, an eight-year-old Black boy was accused of stealing a $3 bag of Doritos. Police forcefully grabbed him off his bike and loaded him into the back of their squad car. The child wailed as witnesses filmed the incident on their phones, questioning why he was being treated as a violent criminal, as opposed to who he was — a child.

Many of us recognize minor infractions as hallmarks of adolescence. We have ample evidence that teenagers exhibit the same behaviors across racial and socioeconomic backgrounds. Yet the legal system does not treat these behaviors equally. In fact, many white people have shared publicly the lack of consequences they’ve experienced in response to similar behavior. When it comes to the juvenile legal system, being a teenager is routinely criminalized among Black, Latino/a, and Indigenous populations, while white children continue to benefit from the privilege of having an adolescence.

Our legal system should be a bulwark against inequality; instead, it contributes to it. To rectify these disparities, we need to demand that states uphold the rights promised to children in Gault. Young people have a right to liberty. But that right can only be ensured if there is a competent and zealous lawyer standing by the young person to fight for their rights.

Earlier this year, I joined the Gault Center, a nonprofit that works to improve access to counsel and the quality of representation for young people navigating the juvenile legal system. On May 15, the 55th anniversary of the Gault decision, we’ll release a new report that details states’ collective failure to fulfill the promises of Gault and outlines a strategy for protecting a child's right to counsel. States must build statewide, autonomous youth defense delivery systems that are specialized and well-resourced.

I have had the privilege of standing next to young people in court to fight for their rights. I’m part of a larger community of defenders that has tirelessly fought the narratives designed to dehumanize young people every day. We need attorneys to join this corps of specialized youth defenders and to represent the young people who are harmed daily by the system. We need community members to put pressure on their state leaders to elevate youth defense as a specialized area of law. And we need policy advocates to work with lawmakers to build effective youth defense delivery systems.

Together, we can begin to dismantle the structures of racism that have traumatized so many young people and make a statement that we, as a society, see and care about the suffering of Black, Latino/a, and Indigenous children — and will rise to create a more equitable system for all.

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