The OJJDP Should Strengthen JJDPA’s Rules on Racial and Ethnic Disparities in the Youth Justice System

We are living at a time when race is central to the national dialogue about justice and the need to transform our broken justice system is an increasing part of the public consciousness. While much of this conversation is focused on the adult criminal justice system, there is an acute need to also ensure equity and dignity for youth in the justice system.

Research shows that youth who become involved in the justice system, particularly those who are incarcerated, experience diminished life outcomes and higher rates of recidivism.  Nationwide, and in most counties, youth of color are significantly more likely to be arrested, incarcerated, and placed on probation, than their White counterparts.

The Office of Juvenile Justice and Delinquency Prevention (OJJDP) can and should take a leadership role in the effort to promote equity in the justice system.

In 1988, U.S. Congress took an important step by naming the need to reduce “disproportionate minority confinement” (“DMC”) in the youth justice system. That year, the Juvenile Justice and Delinquency Prevention Act (JJDPA) – key federal legislation that provides oversight and guidance for the care and custody of youth involved in the justice system – was amended to include a requirement that states must “address” DMC.

Since then, the JJDPA has been amended to apply the requirement to other key points of contact with the justice system and to connect this requirement with states receiving federal funds.

However, the requirement to “address” disproportionality remains vague. Nearly three decades after addressing DMC became a core requirement of the JJDPA, significant racial and ethnic disparities (R.E.D.) persist. Jurisdictions nationwide have spent considerable time and money assessing the problem with limited progress in reducing disparities.

Although many jurisdictions have implemented strategies to reduce disparities, most have failed to sustain measurable results. At the local level, many stakeholders are uncomfortable with conversations about race and ethnicity, and need guidance in navigating a pathway to successful reform.

The racial and ethnic disparities that persist in youth justice today are symptoms of a system which from inception treated children of color differently. While discrimination and bias at the personal level play a role, disparate outcomes are primarily the result of a set of policy choices – both historical and current – that created and perpetuate structural barriers to success for youth of color.

Data clearly indicates that youth of color are entangled in the justice system at significantly than white youth. Study after study confirms that people of color bear the brunt of harsher decision making, even for similar behaviors.

On January 17th, 2017, OJJDP published a partial final rule to update three of the four core requirements mandated by the JJDPA. These rules were officially put into effect last week by the U.S. Department of Justice.

Regrettably, new rules regarding the DMC requirement were not included. Despite OJJDP’s assertion that thoughtful consideration of the “voluminous comments” will take time, it is critical that the final rules include clarity and guidance on what is necessary to reduce R.E.D. With the Justice Department now promising to update this core requirement, it’s critical that the new JJDPA rules are designed to create lasting impact on the significant racial and ethnic disparities in the justice system.

When OJJDP published proposed rule changes in August 2016, the W. Haywood Burns Institute (BI) and the Center on Children’s Law and Policy (CCLP) provided extensive comments. Key improvements include the need to:

• Incorporate substantive guidance on strategies shown to reduce R.E.D., including reinvestment in community based alternatives to system involvement, and require that states incorporate these strategies within their state plans.
• Broaden methods for measuring progress in reducing disparities from the current methodology (relative rate index) to also measure progress in reducing unnecessary entry deeper penetration, and disparate treatment of youth of color.
• Invest in local jurisdictions demonstrating a readiness, particularly at the leadership level, to intentionally reduce disparities.
• Eliminate reference to terms like “statistically significant” and “formal methodological evaluative instruments.” Copious studies confirm the extent of racial and ethnic disparities in the justice system. What jurisdictions lack are strategies to achieve a measurable and positive impact for youth of color and their communities and families.
• Require jurisdictions to disaggregate data by race, ethnicity, gender, geography, and offense at key decision making points.
• Require jurisdictions to invest in community based, community driven alternatives to system involvement.
• Change language to more accurately reflect our nation’s changing demographics; substitute “disproportionate minority contact” with “racial and ethnic disparities” and “minority youth” with “youth of color.”

Despite the magnitude and seeming intransigency of the problem, reducing racial and ethnic disparities is possible. OJJDP can and should do more to incorporate what we know about effective efforts to reduce justice system involvement for youth of color.

The W. Haywood Burns Institute (BI) is a national non-profit organization that works to reduce racial and ethnic disparities in the justice system. Laura Ridolfi is BI’s policy director, and Khalid Samarrae is a policy associate at the Oakland, Calif.-based BI.