This commentary was originally posted on the Juvenile Justice Information Exchange.
Standing before a room packed with youth, juvenile justice advocates, system practitioners, law enforcement officials and judges last week, Caren Harp, Administrator of the Office of Juvenile Justice and Delinquency Prevention (OJJDP), made an announcement: OJJDP would be “simplifying” the implementation and compliance of the core protections of the Juvenile Justice and Delinquency Prevention Act (JJDPA). As her remarks continued, it became clear that Harp’s simplification prioritizes public safety over racial justice. The administrator fails to understand that the two goals are intertwined.
For 44 years, the JJDPA has been the primary piece of federal legislation that protects children in custody. It requires states to comply with four core protections to ensure a minimum level of safety and equitable treatment for youth who come into contact with the juvenile justice system.
Administrator Harp’s announcement singled out one core protection: disproportionate minority contact (DMC). While states must collect and submit data on racial and ethnic disparities at nine separate points of contact with the justice system, Harp noted, they are not required to ensure that DMC rates decline. Much to the frustration of advocates, the law has never required states reduce DMC. “Addressing” this vexing problem is a nebulous and low requirement.
The disparate treatment of youth of color becomes clear in looking at data from 1996 to 2016, which was marked by declining overall crime despite an administration eager to spread falsehoods about minority-caused American “carnage.” After peaking in 1996, the juvenile arrest rate has since fallen by two-thirds, contributing to an ever-shrinking justice system. While these declines occurred across demographic groups, white youth benefited more. In 1996, black youth were about twice as likely to be arrested as their white peers; 20 years later, they were 2.5 times more likely.
Racial and ethnic disparities exist and are growing, driven mostly by growing disparities at the point of arrest. DMC is certainly a fraught issue, but Administrator Harp’s suggestion that protecting public safety essentially trumps efforts to reduce racial disparities is not only offensive, but demonstrably false.
OJJDP’s own data show arrests for all offenses, even those at the lowest level, drive the disparities. In 1996, black youth were 2.6 times more likely to be arrested for disorderly conduct, a charge that is highly discretionary, than white youth were. Twenty years later, black youth were 3.8 times as likely to be charged with disorderly conduct — growth of 45 percent in an already indefensible situation.
Only about 25 percent of the youth in our juvenile prisons and jails have been charged with a violent offense. In fact, one in five are in custody not for a criminal act, but for violating the terms of their probation. No matter the category of offending, black youth are vastly more likely to be locked up for doing it. Given what we know about measurable teenage misbehavior (such as the near equivalence in drug use among youth of all races), these disparities evidence failures in system responses, not failures in the youth themselves.
In 2014, OJJDP whistleblowers alerted Congress that their department routinely failed to “take the four core requirements seriously.” In particular, the department failed to enforce state compliance with the DMC requirement. This lack of accountability lead Sen. Chuck Grassley, R-Iowa, now chairman of the Judiciary Committee, to champion the overdue reauthorization of the JJDPA and to enhance the accountability provisions in the law.
During the same conference where Administrator Harp made her announcement, Sen. Grassley was honored for remembering children as part of his overall justice reform efforts. Now more than ever, Sen. Grassley should utilize his oversight powers as leader of the Judiciary Committee to ensure the law is being properly enforced and to reconcile the remaining differences between the House and Senate to authorize and strengthen the JJDPA. This is particularly critical in light of the Department of Justice’s announcement that it has rescinded seven sets of guidance related to the core protections of the JJDPA.
The urgency for congressional action has grown. The Justice Department has made it clear that this administration is failing to protect the very children these programs and guidance were created to serve. Now is the time for Congress to act.
Rachel Marshall serves as federal policy counsel for the Campaign for Youth Justice.
Joshua Rovner is the senior advocacy associate at The Sentencing Project and has written extensively on racial and ethnic disparities in juvenile justice.
Sarah Bryer is the executive director of the National Juvenile Justice Network.