Journal Issue: Juvenile Justice Volume 18 Number 2 Fall 2008
Scholars have already conducted many good reviews of research on disproportionate minority contact,7 so here I will simply review briefly the main research findings and then describe some more recent research findings on disproportionate minority contact both generally and with respect to new and emerging issues.
Historically analysis of disproportionate minority contact has been a comparative research endeavor whose aim has been to compare the share of minority youth in the juvenile justice system with their share in the general population. As noted, until 2002, the object of study was disparities in confinement. States were required by the Juvenile Justice and Delinquency Prevention Act to assess disproportionate minority confinement using an index that divided the share of a given minority group of youth detained in a state's secure detention facilities, secure correctional facilities, jails, and lockups by the share of that group in the state's population. If 12 percent of juveniles in custody were minority, for example, and the youth population generally was 3 percent minority, the index would be 4.0. States with an index greater than 1.0 were required to develop and implement a plan to reduce the disproportionality, regardless of whether the index represented real behavioral differences in offending across race and ethnicity.
The index, however, was beset with problems. One was the difficulty of comparing jurisdictions with different shares of minorities, as communities with low minority shares could have a very high index while those with high shares of minority youth could not. Another was that the index provided little information about the causes of racial disparity. Yet another was that it provided no information about where in the system the disparity was taking place. To address this failure and to open the possibility that disparity could occur at various places in the system, the Juvenile Justice and Delinquency Prevention Act of 2002 broadened the concept from disproportionate minority confinement to disproportionate contact.
At the same time the Office of Juvenile Justice and Delinquency Prevention (OJJDP) developed the Relative Rate Index (RRI) to measure disparity at each decision point in the system—arrest, referral to juvenile court, detention, petitioning, transfer to criminal court, adjudication, and out-of-home placement following adjudication. For example, the RRI can compare the rates of white and black arrests that are referred to court intake. If the rate is 60 out of 100 arrests for whites and 80 out of 100 for blacks, then disparity exists at the decision point where arrests are referred to court. The RRI can also divide the black rate by the white rate at each decision point. A ratio near or equal to 1.0, meaning that the black and white rates are nearly similar, indicates no disparity; a ratio greater than 1.0, meaning that the black rate is larger than the white rate, is evidence of disparity. The RRI, however, presents a problem of its own; there is no way to measure its statistical significance. For example, at what level above 1.0 does the index indicate a significant disparity? Is an RRI of 1.43 significantly different from an RRI of 1.98 or 2.05? And the RRI, or any other measure used to assess disproportionate minority contact, encounters a problem of a different sort. OJJDP now essentially forces states first to identify whether minority disproportionality exists and, if so, then to assess its cause by identifying and explaining differences at various points in the juvenile justice system. States must then develop an intervention plan. What this requirement does not take into account is the individual and social factors that may have helped cause the original disparities in the first place—structural factors about which state agencies can do little. Still, the new requirement does force public agencies to assess how their decisions might contribute to disparity even where they are not responsible for the underlying condition.8
Most reviews of research find that minority, especially black, youth are disproportionately represented at most stages of the juvenile justice system,9 from the initial arrest, to detention pending investigation, to referral of a case to juvenile court or waiver of it to adult court, to the prosecutor's decision to petition a case, to the judicial decision and subsequent sanction, ending more often than not in incarceration. It should be noted, however, that some important exceptions to this overall pattern exist.10 In the case of offenses themselves, research is more mixed, sometimes showing that although whites and minorities generally self-report similar levels of offending,11 they report some differences in the type of crime committed, with minorities reporting more serious offenses and a greater persistence in offending.12
The most recent data to emerge from the National Council on Crime and Delinquency (NCCD) indicate that youth of color are found disproportionately at every stage of the juvenile justice system from arrest through sentencing.13 (It is important to bear in mind that decisions throughout the system are interrelated and can affect minority overrepresentation cumulatively, with early-stage decisions influencing decisions further in the system.) Among the new NCCD findings are that black youth are detained at higher rates than are whites and Latinos and that Latinos are detained at higher rates than are whites. Black youth are more likely than whites to be formally charged in juvenile court and to be sentenced to out-of-home placement, even when referred for the same offense. Black youth are confined on average for 61 days more than whites, and Latino youth are confined 112 days more than whites. Black youth make up 16 percent of all youth in the general population but 30 percent of juvenile court referrals, 38 percent of youth in residential placement, and 58 percent of youth admitted to state adult prison. And just over 50 percent of drug cases involving white youth result in formal processing, as against more than 75 percent of such cases involving black youth.
In a second new, and related, study focused on offenders in jails and prisons, The Sentencing Project calculated state rates of incarceration by race and ethnicity.14 Although data limitations precluded juvenile-specific estimates, several highlights of the report are notable. First, black offenders are incarcerated at nearly six times the rate of whites, while Hispanics are incarcerated at nearly double the rate of whites, though with significant statewide variation. For example, the highest white incarceration rate (Oklahoma, 740 per 100,000) did not even approach the lowest black incarceration rate (Hawaii, 851 per 100,000). It is also worth pointing out that disproportionate incarceration may have a profound effect on community well-being.15 The concentration among young men, in particular, presents long-term consequences for employment prospects, family formation, and general quality of neighborhood life that are more severe for blacks and Hispanics than for whites. The Sentencing Project report also shows that in 2005 Hispanics made up 20 percent of the state and federal prison population, a rise of 43 percent since 1990. The national rate of incarceration for Hispanics was nearly double that for whites, but considerably lower than that for blacks, again with significant statewide variation. A weakness of the Hispanic-specific analysis in the new Sentencing Project study, as with much existing research, is the poor data available for Hispanic offenders, including inaccurate conceptualizations of Hispanic and undercounting of Hispanics. State data limitations also kept the Sentencing Project from providing information on Native Americans, Asian Americans, and other groups.
Collectively, these data highlight several important policy issues with respect to decisions both within and outside the juvenile and criminal justice systems. First, current drug policies emphasize large-scale drug arrests and policing communities of color to the neglect of drug treatment and diversion programs that work. Second, sentencing policies appear to make the minority criminal justice experience worse rather than better. Third, consideration should be given by policymakers to race-neutral policies, or a more general consideration of the long-term effects of what will happen if certain rules are produced. Fourth, changes in resource allocation, such as providing for more adequate indigent defense and quality representation for all defendants, may help minimize undue and unnecessary harm.
In summary, for many years, with a few exceptions, much data has shown that youth of color have been overrepresented at every stage of the juvenile justice system. Minority overrepresentation has come to be considered an established fact of crime; what remains in question is why minorities are overrepresented. In the next section I present several explanatory hypotheses, as well as some of the empirical evidence that has been built up around them.