Week 5: Discussion- Justice and Juvenile Justice

Reducing Justice System Inequality: Introducing the Issue

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John H. Laub is Distinguished University Professor in the Department of Criminology and Criminal Justice at the University of Maryland, College Park.

T he topic of inequality in the United States has become virtually impossible to ignore, and the justice system is an important part of the

discussion. Witness the recent National Research Council report on the causes and consequences of the country’s high rates of incarceration, especially for minority offenders.1 We’ve also heard heated debates about the stop, question, and frisk policies followed by police in New York City and elsewhere.2 More broadly, legal scholar Michelle Alexander has referred to mass incarceration and other justice system policies as “the New Jim Crow” in America.3

When considering the known facts about crime, offenders, victims, and the justice system response, important complexities arise that both reflect and contribute to inequality in the wider society. The fundamental fact is that criminal offending and criminal victimization for common law crimes (which include murder, rape, robbery, assault, burglary, motor vehicle theft, and larceny) aren’t randomly distributed across persons and places. Inequalities are present in the patterns of serious criminal offending and serious criminal victimization even before

Reducing Justice System Inequality: Introducing the Issue

John H. Laub

any contact with the justice system. Chronic offending is also related to gender, race, and social class.4 We can think of these known facts as input to the justice system.

At the same time, the justice system’s responses exacerbate inequality among young people in America. We can think of these responses as output from the justice system that reinforces and deepens inequalities; researchers have increasingly examined the collateral consequences of justice system involvement. The distinction between input and output suggests that while crime and justice system involvement are typically considered to be outcomes, crime and justice system involvement may also drive inequality.

Setting the Stage

Though it’s vitally important to focus on fundamental inequities that occur before people become involved with justice system, this issue of Future of Children examines how the justice system reinforces and exacerbates inequities among children, adolescents, and young adults, and how alternative policies, programs, and practices might mitigate those effects. The issue has four distinctive features. First, it covers the

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entire justice system, starting with stop, question, and frisk by police on the street and continuing through each stage of the process—policing (arrest, booking, lockup), courts (arraignment, trial, conviction), and corrections (probation, jail, prison, and parole). Second, it devotes special attention to schools, in particular school suspensions and the role of the police—school resource officers—in schools. Third, it examines three domains that contribute to the reproduction of inequality but have received little attention from researchers and policy makers—foster care, probation, and jails. Fourth, and most important, it assesses policies, programs, and practices to reduce justice system inequality. What strategies have worked? What strategies should be tried? What strategies should be avoided?

The articles in this issue should be viewed from a life-course perspective that puts persons in context. Such a perspective acknowledges that individuals are embedded in broader structures, and that individual behavior is the product of interaction between personal development and social context—family, school, neighborhood, and the like. The justice system directly and indirectly impinges on these intersecting domains. These direct and indirect effects are often cumulative and can compound over time. Along with my colleague Robert Sampson, I have articulated a theory that cumulative disadvantage over the life course has a snowball effect. Specifically, early misconduct in childhood, as well as adolescent delinquency and its negative consequences (such as arrest, official labeling, and incarceration), increasingly jeopardize a child’s future development.5 If we can better understand the mechanisms that exacerbate inequality at the individual, family, school, and neighborhood levels, and

see how they interact and overlap, we can help identify promising interventions.

Given recent bipartisan support for criminal justice reform, now is a particularly good time to take stock of the policies, programs, and practices that may reduce justice system inequality. Each article in this issue assesses such policies, programs, and practices in detail. Thus, this issue offers a much-needed evidence-based voice in discussions of how to reform the justice system.

Summary of the Articles

Cutting Off the Pipeline

The first two articles look at schools and foster care, both of which can be viewed as feeders into the justice system. In “The Role of Schools in Sustaining Juvenile Justice System Inequality,” Paul Hirschfield explores how school experiences contribute to disproportionate minority confinement in the juvenile justice system. Examining the “school-to-prison pipeline,” he distinguishes between micro-level processes that affect individuals and macro-level processes that affect schools and communities. At the micro level, Hirschfield finds that black students who violate the rules are more likely to receive out-of-school suspension, experience arrests at school by school resource officers (police in schools), and be transferred to alternative schools for disciplinary reasons. Suspension elevates the risk that these students will be arrested in the community, and ultimately convicted and imprisoned. Suspension has also been linked to dropping out of school, which leads to more juvenile justice involvement.

At the macro level, a school’s racial composition affects its rates of out-of-school suspension, surveillance, and police presence.

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In addition, schools with lower test scores and lower grades appear to use harsher disciplinary methods. Black students tend to attend schools that have higher rates of suspension, extensive surveillance, more police officers, and harsher discipline.

Hirschfield makes two recommendations to reduce schools’ influence on juvenile justice inequality, both of which focus on reducing out-of-school suspensions, arrests in schools, and school-based court referrals. The first recommendation is to introduce school-based restorative justice practices that offer alternative forms of conflict resolution and seek to enhance students’ connection to school. The second is to adopt Positive Behavioral Interventions and Supports (PBIS), a system that trains school staff in nonpunitive methods of behavior management. Under PBIS, unruly students are offered individualized supports rather than being suspended. Restorative justice and PBIS keep students in school without compromising school safety or performance. According to Hirschfield, in both cases the key to reducing disproportionate minority confinement is to target high- risk students and high-risk schools. The costs of these methods aren’t trivial, nor are the challenges in implementing them, but Hirschfield points to several successful models.

In the next article, “Can Foster Care Interventions Diminish Justice System Inequality?,” Youngmin Yi and Christopher Wildeman examine how the foster care system channels children and adolescents into the justice system, especially poor minority children. The child welfare system has long overlapped with the justice system, but this topic has yet to receive the attention it deserves. Just as there’s

a school-to-prison pipeline, there is also a foster-care-to-prison pipeline.

Drawing on extensive research, Yi and Wildeman show that children and youth in foster care are more likely to be racial/ethnic minorities and to come from poor families. Youth in foster care are more likely to experience juvenile justice contact, and to be arrested and incarcerated once they become adults. Moreover, placement in foster care is associated with higher risks of substance abuse, housing instability, lower educational attainment and poorer job prospects, teen pregnancy, and compromised mental health. Finally, those who age out of foster care at 18 are more at risk for homelessness, unemployment, and incarceration in early adulthood. Foster care thus contributes to inequality in both the justice system and wider society.

Yi and Wildeman examine what happens to children during their stay in foster care and after they age out of the system. The authors offer strategies that could reduce justice system inequality at both stages. With respect to foster care placement, they suggest improving the stability, quality, and permanence of placements; offering more support for caregivers; and expanding and improving access to substance use and mental health treatment. As for aging out, they recommend extending foster care placement and services beyond age 18, providing legal support for foster youth, extending employment and educational support, and providing housing and health care for late adolescents and young adults.

Justice System Avoidance

The next article looks at one of the most popular reform policies for reducing justice system inequality: diversion away from the

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justice system. Along with decriminalization, due process, and deinstitutionalization, diversion was a popular juvenile justice policy during the 1970s.6 In “Decriminalizing Racialized Youth through Juvenile Diversion,” Traci Schlesinger makes an important distinction between informal and formal diversion. Informal diversion keeps youth out of the justice system entirely, while formal diversion entails providing services to youth in the hope of minimizing their involvement with the justice system. Schlesinger argues that informal diversion is best suited for low-risk youths, while formal diversion is a better fit for those at high risk. She concludes that these two forms of diversion can reduce overall involvement in the justice system, confinement in punitive settings, and racial disparities.

Schlesinger finds obvious gaps in the research, and notes several challenges to making diversion policies successful—for example, the need for risk assessments that don’t replicate racial disparities. In addition, the strategy of formal diversion requires that youth be able to access extensive services in the communities where they live, rather than in the justice system, a condition that’s becoming more difficult at a time when cities and states face budget crises and federal funds are dwindling or have been eliminated. Finally, we must ensure that diversion programs are properly implemented and that the youth who begin diversion programs actually complete them.

Justice System Reform

The next four articles deal with various aspects of the justice system. In the first one, “‘Kids Do Not So Much Make Trouble, They Are Trouble’: Police-Youth Relations,”

Rod Brunson and Kashea Pegram focus on the police, arguably the most visible component of the justice system. Examining research on policing practices regarding children and youth, the authors find that police officers wield enormous discretion and that their encounters with youth, especially those of color, are fraught with difficulties. Considerable evidence shows that young black and Latino youth have disproportionate contact with the police, and that direct and indirect experiences with the police shape youths’ attitudes toward them. Finally, and not surprisingly, much of the tension surrounding the police and communities of color results from perceptions of the heavy-handed policing strategies—like stop, question, and frisk—predominantly used in high-crime neighborhoods that typically have a higher proportion of people of color as residents. These policies contribute to justice system inequality, especially with regard to race, ethnicity, and social class.

Brunson and Pegram offer three strategies to reduce justice system inequalities in policing. The first is the now familiar recommendation to improve trust between residents and the police. Though doing so may not be easy, the authors point to emerging evidence that the police can help residents build the collective efficacy to promote informal social control, and that increased interactions with youth can shift attitudes toward the police in a positive direction. The second recommendation involves continuing the use of consent decrees, which are legal channels to reform the police. Though consent decrees are promising, research hasn’t definitively established that they can reduce justice system inequalities and restore public confidence in the police. The third recommendation is that police chiefs should take the lead in reducing the

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number of civilians killed by the police in their departments. The authors note that the Black Lives Matter movement is drawing nationwide attention to racially biased policing with respect to lethal and nonlethal police violence. They write that “substantial reductions in the number of civilians killed by officers would help assuage tensions concerning the ultimate justice system inequality.”

The second article in this set focuses on jails, which despite their ubiquity are one of the least explored aspects of the justice system. Although the US prison population far exceeds the jail population on any given day, each year more than 13 million people move in and out of America’s more than 3,000 jails. Along with this constant churn, the jail population’s composition presents its own set of challenges—for example, most people held in jail have not been convicted of a crime.

In “Jails and Local Justice System Reform: Overview and Recommendations,” Jennifer Copp and William Bales provide a comprehensive look at jails, including the facilities and operations, characteristics of those held in jail, and conditions of confinement. The authors conclude that justice system inequality is increased both by current pretrial release practices and by the lack of programs for those who have been convicted and are serving time in jail— people who are often struggling with poverty, unemployment, homelessness, poor physical health, mental illness, or substance abuse.

With respect to policy, Copp and Bales devote considerable attention to nonfinancial forms of release for those being held in jail while awaiting trial. They contend that cash bail should be used only for accused offenders who pose a legitimate flight risk

based on validated risk assessment tools. Otherwise, accused offenders, especially those who are indigent, should be allowed to stay in their communities so they can keep their jobs while awaiting trial. Copp and Bales’s other policy recommendations include adopting validated pretrial risk assessment tools, expanding pretrial services, increasing the use of diversion away from the justice system, finding alternatives to jail incarceration for convicted offenders, and expediting case processing to decrease both the time to trial and the overall length of stay. To fully implement these recommendations, more research will be needed to establish which policies, programs, and practices are best for the jail population. The authors make a convincing case that jails should be front and center in discussing reforms to downsize prison populations at the state and federal level.

The third article in this set covers probation—that is, supervision in the community instead of imprisonment. America’s exceptionally high rates of incarceration are well documented, but we also have high rates of probation. Indeed, for both juveniles and adults, probation has long been the most commonly imposed sanction in the justice system. Yet surprisingly little research has explored probation and its role in exacerbating inequality in the justice system.

In “Ending Mass Probation: Sentencing, Supervision, and Revocation,” Michelle Phelps asks whether probation is a net- widener (that is, whether it simply places more people under the control of the justice system) or a true alternative to imprisonment. Her answer is that it’s both. She looks at three aspects of probation—which people are sentenced to probation, the experience

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of supervision, and trends in revocation of probation—and pays special attention to the ways mass probation affects individuals, families, and communities.

Phelps makes a number of policy recommendations to reduce the justice system inequality generated by mass probation. These include avoiding net-widening by embracing true decriminalization and diversion; improving supervision through smaller probation caseloads and ensuring that those on probation are appropriate candidates; and reducing the number of conditions— especially those that create hardships for probationers—as well as the time period and the overall rate of probation revocation. In particular, Phelps calls for eliminating a return to prison for technical violations of probation conditions.

The fourth and final article in this set examines how parental incarceration affects children and youth. Researchers have documented the harmful consequences of parental incarceration for children and youth across a number of domains. These effects are felt more acutely by black and Hispanic children and by children living in disadvantaged neighborhoods. In “Parental Incarceration and Children’s Wellbeing,” Kristin Turney and Rebecca Goodsell find that parental incarceration has been linked to a wide range of negative outcomes for children and youth. These include behavioral problems like aggression, educational outcomes such as being held back a grade, health outcomes such as depression, and hardship and deprivation, including homelessness and food insecurity. Many contingencies can affect these outcomes: the nature of the parent-child bond, maternal versus paternal incarceration, whether

the incarcerated parent is custodial or noncustodial, and contact with the parent during incarceration, to name a few. In their review of programs designed to improve the wellbeing of children whose parents are incarcerated, Turney and Goodsell reveal an interesting mismatch: while many programs focus on maternal incarceration, the effects of paternal incarceration appear to be more profound. Even more important, the authors suggest other types of programs that may reduce inequalities among these children, including interventions that strengthen parental relationships, enhance economic wellbeing and reduce child poverty, and improve access to substance abuse treatment.

Moving Policy Forward

As I mentioned at the outset, inequality is a prominent topic of discussion and debate in the United States today. I’ve argued that although serious inequalities exist even before justice system involvement, the justice system itself exacerbates inequality, especially for blacks and other minorities.7 Each article in this issue highlights justice system disparities with respect to race, ethnicity, and socioeconomic status. Moreover, the authors make it abundantly clear that justice system policies, programs, and practices affect not just individuals but also families, schools, and communities at large.

The articles discuss strategies that may well reduce justice system inequality. I’d like to make several points that put these recommendations in a broader context. First, it’s not easy to change policies to reduce justice system inequality, especially with regard to racial disparities. For example, a recent report by the Sentencing Project shows that although the number of youths sent to juvenile facilities after adjudication

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dropped by 47 percent between 2003 and 2013, racial disparities didn’t improve; in fact, the gap between black and white youth in secure confinement increased by 15 percent.8 Second, in any of the topics covered in this issue, we can’t ignore the enormous variation in the treatment of youth and the consequences they experience. Such heterogeneity is evident in school experiences, foster care placements, interactions with the police, jail stays, and probation experiences at the individual, city, county, and state levels.

Third, data on crime and the justice system response are notoriously weak. We need stronger data and a broader research infrastructure to successfully translate research into effective and fair justice system policies. Fourth, there are important gaps in our data—for example, we know very little about LBGT youth in the justice system—and in our research. We need more research on such topics as alternatives to out-of-school suspensions; extending the age of foster care; the effectiveness of consent decrees in police departments; establishing the best policies, programs, and practices for the jail population; and matching youths’ needs to particular diversion programming. We often lack causal evidence regarding the effects of policies, programs, and practices. Finally, we must move beyond assessing what works to assessing why something works, and for whom. To do so, we’ll need to test the underlying mechanisms of our policy interventions.

In the meanwhile, we can do better. We do know that the justice system exacerbates inequality, and we must change the policies,

programs, and practices that do so. In an interesting article, Harvard economist Sendhil Mullainathan advocates a different approach to reducing inequality.9 Using the metaphor of headwinds and tailwinds, Mullainathan writes that “we tend to remember the obstacles we have overcome more vividly than the advantages we have been given.” A fruitful strategy might be to remove headwinds, which make progress more difficult, and at the same time promote tailwinds, which help us move forward. Indeed, the authors in this issue call for removing headwinds by such means as reducing out-of-school suspensions, ending cash bail, and lessening the conditions for probation. They also call for creating tailwinds by, for example, extending foster care beyond age 18, providing community- based alternatives to jail, and creating place-based and school-based services for the children of incarcerated parents.

My hope is that we can experiment with policies, programs, and practices to shape research and simultaneously generate new research to shape policies, programs, and practices—breaking down the barriers between the research and practice communities and creating a dynamic two- way street between them. Thus it’s vital that scholars craft research agendas that are relevant for policy and practice. This idea is captured in what I call translational criminology, which offers a new view of the research enterprise by engaging practitioners and policy makers throughout the research process.10 Insights from policy makers and practitioners in the field are crucial to the research process and essential for moving policy forward.

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Endnotes

1. Jeremy Travis, Bruce Western, and Steve Redburn, eds., The Growth of Incarceration in the United States: Exploring Causes and Consequences (Washington, DC: National Academies Press, 2014).

2. Daniel Bergner, “Is Stop-and-Frisk Worth It?,” Atlantic Monthly, April 2014, https://www.theatlantic.com/ magazine/archive/2014/04/is-stop-and-frisk-worth-it/358644.

3. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, revised edition (New York: New Press, 2012).

4. Marvin E. Wolfgang, Robert M. Figlio, and Thorsten Sellin, Delinquency in a Birth Cohort (Chicago: University of Chicago Press, 1972); Alfred Blumstein et al., eds., Criminal Careers and “Career Criminals,” vol. 1 (Washington, DC: National Academies Press, 1986); Paul E. Tracy and Kimberly Kempf-Leonard, Continuity and Discontinuity in Criminal Careers (New York: Plenum Press, 1996).

5. Robert J. Sampson and John H. Laub, “A Life-Course Theory of Cumulative Disadvantage and the Stability of Delinquency,” in Developmental Theories of Crime and Delinquency, ed. Terence P. Thornberry (New Brunswick, NJ: Transaction Publishers, 1997), 133–61.

6. LaMar T. Empey, “Epilogue,” in Juvenile Justice: The Progressive Legacy and Current Reforms, ed. LaMar T. Empey (Charlottesville: University Press of Virginia, 1979), 291–96.

7. John H. Laub, Understanding Inequality and the Justice System Response: Charting a New Way Forward (New York: William T. Grant Foundation, 2014).

8. Joshua Rovner, Racial Disparities in Youth Commitments and Arrests (Washington, DC: The Sentencing Project, 2016).

9. Sendhil Mullainathan, “Taking a Different Approach to Inequality,” New York Times, New York edition, April 30, 2017, BU3.

10. John H. Laub, “Translational Criminology,” Translational Criminology (Fall 2012), 4–5.

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