Detention Alternatives

03/17/21

Addressing Bias in Delinquency and Child Welfare Systems

Overview

Eliminating Racial and Ethnic Disparities in Juvenile and Family Courts is Critical to Creating a Fair and Equitable System
of Justice for All Youth.

TRAINING AND TECHNICAL ASSISTANCE

This bench card provides judges with introductory principles and best practices to support the elimination of disparities in the juvenile justice and child welfare systems. Comprehensive, supplementary training is strongly recommended in conjunction with use of this card. To connect with leading experts in the field of correcting implicit bias, please contact the National Juvenile Defender Center at 202-452-0010 or by emailing inquiries@njdc.info.

This card was developed under grant number SJI-17-T-023 from the State Justice Institute. The points of view expressed are those of the author and do not necessarily represent the official position or policies of the State Justice Institute.

Racial and Ethnic Disparities in Juvenile Court

Eliminating racial and ethnic disparities in juvenile and family courts is critical to creating a fair and equitable system of justice for all youth. While the number of youth who come into formal contact with the court system has declined in recent years, little progress has been made in reducing racial and ethnic disparities.

Youth of color are disproportionately represented at every decision point of the juvenile delinquency court process. They face higher arrest rates for similar conduct, fewer opportunities for diversion, and are far more likely to be detained and incarcerated. For instance, in 2001, “Black youth were four times as likely as whites to be incarcerated”; today, they are five times as likely. Additionally, Black youth “are at least 10 times as likely to be held in placement as white youth” in six states: New Jersey,

Wisconsin, Montana, Delaware, Connecticut, and Massachusetts. Native youth “were three times as likely to be incarcerated as white youth,” while Latino youth “were 65 percent more likely to be detained or committed” than white youth.

Youth of color face these same disparities in the child welfare system, as do their families, who are disproportionately referred into the system by institutions such as hospitals, schools, and law enforcement. Where youth are dually involved in both the delinquency and child welfare systems, these disparities are exacerbated. Addressing the overrepresentation of children and families of color in our juvenile courts requires careful consideration and reform of the policies and practices that drive bias and structural racism.

Features of Adolescent Development are Consistent Across Racial Groups and Cannot Account for the Racial and Ethnic Disparities in the Court System

Developmental research shows that behaviors and characteristics common in adolescence are consistent across all races, ethnicities, and socioeconomic groups. These studies, controlling for race and ethnicity, found no significant difference in key features of adolescent development, such as impulsivity, sensation seeking, susceptibility to peer influence, and a limited ability to plan ahead or anticipate consequences. The disproportionate representation of youth of color in juvenile court, therefore, cannot and should not be attributed to differences in adolescent development or differences in behavior across racial and ethnic groups.

Similarly, rates of child abuse and neglect are not higher in families of color; however, these families are disproportionately petitioned and brought into the court system and face greater likelihood of removal of their children than white families.

Bias

A fundamental canon of judicial conduct states that judges must perform all duties of office fairly and impartially, without bias or prejudice; avoid actual bias and the appearance of bias; and be aware of and work proactively to address bias in the courtroom.

To eliminate bias, we must address the structural bias of the justice system and honestly assess personally held explicit and implicit biases.

What Is Structural Bias?

Structural, institutional, or systemic bias refers to “a set of processes that produce unfairness in the courtroom . . . [which] lock in past inequalities, reproduce them, and . . . exacerbate them . . . without formally treating persons worse simply because of attitudes and stereotypes about the groups to which they belong.” It is the “cumulative and compounding effects of an array of factors that systemically privilege white people and disadvantage people of color.”

Structural bias may exist as rules, procedures, practices, or policies, and as a result of legislation, administrative decisions,
or historical attitudes and practices, and may also be countermanded in the same way. For example, structural biases may be embedded in criminal statutes, such as harsher penalties for certain drug use (e.g., crack cocaine versus powder cocaine), which may subject people of color to longer sentences for comparable behavior. Structural bias is perpetuated by those who implement or execute policies by following existing rules or norms that promote racial differences in opportunities, outcomes, and consequences, even though they may have no consciousness of how those policies negatively impact certain groups.

What Is Explicit Bias?

Explicit bias refers to attitudes and beliefs that are consciously held about a person or group of people. Overt racism
is an example of explicit bias; e.g., Black youth are denied opportunities for diversionary programs because of the belief that (1) they should be punished, and (2) they are dangerous. Racism is defined as “prejudice plus power,” which combines “the concepts of prejudice and power, point[ing] out the mechanisms by which racism leads to different consequences for different groups.”

Explicit bias has no place in our justice system. Where expressions of explicit bias are observed, justice system stakeholders have an ethical obligation to address and/or report the person responsible. Stakeholders must prevent explicit biases and prejudices from influencing decision-making in courts.

What Is Implicit Bias?

Implicit bias refers to subconscious feelings, attitudes, and stereotypes that affect our understanding, actions, and decision-making processes in an unconscious manner.
These assessments, both favorable and unfavorable, are “activated involuntarily and without an individual’s awareness
or intentional control.” “Implicit biases are not accessible through introspection” because these “associations develop over the course of a lifetime beginning at a very early age through exposure to direct and indirect messages” in the form of “media and news programming” and other life experiences.

Implicit biases result when we use cognitive shortcuts to filter information, fill in missing data, and categorize people and evidence. This often occurs in fast-paced environments, such as juvenile court. Our strongly held conscious beliefs, intentions, and explicit efforts to treat people fairly do not prevent our implicit biases from affecting our perceptions and actions, even among “those [of us] who actively support equality, vehemently reject racism and discrimination, and have positive relationships with people of other races.”

Implicit biases may, despite our best intentions, influence decisions such as whether to remove a youth from the home, what disposition should be imposed, and other case outcomes. Each and every judicial officer, regardless of race and ethnicity, has an obligation to consciously ensure all decisions are based on the facts in evidence rather than implicitly held biases.

Bias in the Juvenile Courtroom

Bias Impacts Who is Brought to Court

Structural, explicit, and implicit biases impact which children and families enter the courtroom before judges ever consider their cases. Children of color and their families face a greater likelihood of referral to the court system — in both the juvenile justice and child welfare systems. Beginning as early as pre-school, children of color face discriminatory application of school discipline policies and are pushed out of schools and into the juvenile and criminal justice systems.

How Does Bias Impact How I Do My Job as a Judge?

Being aware of bias, particularly implicit bias and its role in how we process information and perceive people and events, is a first step to recognizing how our implicit biases can affect the judicial decision-making process.

Children of color and their families face a greater likelihood of referral to the court system — in both the juvenile justice and child welfare systems.

In every case, we must ensure that our perceptions of a youth’s culpability and capability are not influenced by biases associated with race, class, or ethnicity, and strive to make unbiased decisions accordingly. One way to lessen the impact of bias is to begin with the viewpoint that most youth behavior is normal adolescent behavior and that the youth is amenable to redirection. We should ensure that all decisions are developmentally appropriate, strengthen the youth’s likelihood for success while accounting for public safety, and are driven by an objective assessment of the youth rather than bias.

Preventing Bias at All Stages of the Proceedings

Youth of color, particularly Black, Latino, and Native youth, are overrepresented and receive harsher treatment at every point in the court process. And studies have found “evidence of bias in perceptions of culpability, risk of reoffending, and deserved punishment for adolescents when the decision maker explicitly knew the race of the offender.”

Judges must become cognizant of the potential for bias at each decision point. One of the ways to address our own potential biases is to stop and ask ourselves specific questions at every stage of the case. These may elicit some of our own biases we may not even be aware we hold.

Self-reflection inquiries can help identify when biases are impacting our decisions. For example:

The NCJFCJ Enhanced Resource Guidelines
prompt judges in child welfare/removal proceedings to ask themselves at each decision point or hearing:

What assumptions have I made about the cultural identity, genders, and background of this family?
What is my understanding of this family’s unique culture and circumstances?
How is my decision specific to this youth and this family?
How has the court’s past contact and involvement with this family influenced (or how might it influence) my decision-making process and findings?
What evidence has supported every conclusion I have drawn, and how have I challenged unsupported assumptions?
How am I convinced that reasonable efforts (or active efforts in Indian Child Welfare Act (ICWA) cases) have been made in an individualized way to match the needs of the family?
Have I considered relatives as a preferred placement option as long as they can protect the youth and support the permanency plan?

The following is only a sampling, and not an exhaustive list of additional questions to consider:

In a child welfare/removal proceeding:

Is my own personal experience, culture, and background preventing me from understanding and taking the cultural issues of the child and family into account in deciding what safety issues exist and whether to remove the child from the home?

For Example: Disparities may be driven by the service strategy of an agency within the public child welfare system, due to lack of culturally relevant policies, procedures, practices, and decision-making.

Am I using data to identify how court recommendations and decisions may impact youth of color negatively?
Do I believe that families of color abuse and/or neglect their children more than white families?

Do I believe that if a parent was neglected and/or abused as a child they will be abusive parents?

At an initial appearance or detention hearing:

Have I considered whether the youth before me has an actual history of failure to appear, or is my perception of that risk an assumption based on prior experience with other youth? Even if this youth has failed to appear, have I inquired into the reasons behind that failure? Was transportation an issue? Did they fail to receive notice? Were there factors outside of the youth’s control that led to that failure?

For Example: Data revealed ethnic disparities within Ventura County, California’s juvenile justice system, where Latino youth were arrested 2.5 times more than white youth despite the county’s population of youth as 47 percent Latino and 43 percent white.39 Ventura County contracted with the W. Haywood Burns Institute to ensure that youth appeared in court and to reduce the “attendant detentions from bench warrants for failure to appear,” resulting in a 50 percent reduction in admissions for probation violations for Latino youth.

Does the youth pose a serious public safety threat? Or am I basing the detention decision on biases, such as that the youth needs “protection” because they live in a “dangerous” neighborhood?

For Example: Evidence suggests that bail judges rely on inaccurate stereotypes that “exaggerate the relative danger of releasing [B]lack defendants versus white defendants,” which leads to disparities in bail determinations.

Am I considering the impact on school continuity when I decide to detain a child? How will detaining the child impact the child’s ability to return to school and/or complete coursework?

For Example: Incarceration as a youth reduces the chance of high school graduation by as much as 39 percent,42 and “youth in correctional confinement score four years below grade level on average.”

Is the youth before me also involved in the child welfare system, either as a status offender or as the subject of an abuse and neglect petition? If so, do I hold biases that might impede my impartiality based on my perception of their family situation?

What objective criteria, in addition to any assessment,
am I using to decide if detention is necessary? Do those criteria have a disproportionately negative impact on youth of color? If so, what is the appropriate response to that disproportionality?

Are there resources that can be provided to address the issues that led me to conclude detention may be necessary? If there are no resources available in the child’s community but there are resources available in another community, would my decision to detain have been different?

Is bias affecting my decision to set conditions of bond or eligibility for release in a detention decision? For example, do I have a presumption that because the child resides in a single parent home that there will be inadequate supervision? Further, have I presumed that the child does live in a single parent home based on the race of the child?

For Example: Courts often interpret the absence of a father in the home to indicate a lack of adequate parental supervision.

When hearing pretrial or other motions:

When defense attorneys file motions raising race, do I give them careful consideration or am I dismissive of the idea that any arresting, charging, or other court decision may have been racially biased?

At adjudication/transfer:

In a battery case involving a white youth and a Black youth, do I assume the Black youth is the aggressor or more violent? Am I aware of research studies about perceptions of culpability and race?

For Example: Studies have shown that people are more likely to see weapons in the hands of unarmed Black men than white men, which is more likely
to lead to systemic and predictable errors in judgments of criminality.

Do I think that a youth is more likely to be guilty
because of the neighborhood or zip code they live in or the school they attend? Am I making assumptions because I have had other youth from the same neighborhood appear in front of me, or has media coverage regarding certain neighborhoods influenced my perceptions and decisions?
Do I fail to give credibility to a youth’s denial because of a belief that young people are not truthful?
Do I believe the police’s version of the facts, even though it doesn’t make sense, rather than the young person’s?
Am I likely to assume a Native youth charged with driving while intoxicated is guilty because I believe Native youth have significant issues with substance abuse? Am I considering the youth individually, rather than projecting my beliefs about racial or ethnic groups the youth belongs to onto the young person in front of me?
Does bias factor into my decisions to transfer a youth to adult court rather than keep them within the purview of juvenile court, with its more rehabilitative focus?

At a disposition proceeding:

In deciding whether to commit a youth, or in setting conditions of probation or supervision, am I treating all youth similarly for similar conduct? For example, if I am ordering curfew, is it related to the time and place of the offense charged? Or is it just a rote standard condition imposed? Do I impose it equally on youth of all races

Are my commitment decisions reserved to address significant public safety concerns? Have I considered whether there are less restrictive alternatives? Have I considered the potential harm caused by confinement?

In crafting conditions of probation, am I focusing on conduct related to the offense for which the youth was adjudicated? For example, if I have ordered ankle monitoring, is it based on the specific facts of the alleged offense or are there any underlying biases regarding the “dangerousness” of youth of color?
Have I analyzed the disposition data and results by race and ethnicity in my jurisdiction? Are harsher dispositions imposed depending upon the race or ethnicity of the offender or victim? Are there other disparities?

Am I familiar with services or programs in the youth’s community that are culturally competent to serve youth of a particular race or ethnicity?

At a violation of probation or probation revocation proceeding:

Have I inquired whether the probation officer has instituted appropriate services and opportunities for support? Have I considered whether the reason for revocation is related to bias against the youth’s race or ethnicity?

For Example: In Travis County,Texas, Latino youth were more likely to be “securely detained for technical probation violations” for truancy, curfew violations, and substance abuse than white youth.

Eliminating Bias Increases Success

Procedural justice — the idea of feeling as though decisions are made in a fair and impartial manner, and without regard to racial or ethnic bias — means youth and families are more likely to feel trust and confidence in the court system and to abide by court orders and recommendations.

Strategies For Correcting Implicit Bias — An Easy Reference Guide For Judges

As outlined above, racial disproportionality poses a significant problem in the juvenile justice and child welfare systems. In order to eliminate disparities in juvenile court, we must first understand our own biases. Because implicit biases are rooted in our subconscious mind, mitigating their impact can be a challenge. Fortunately, learned implicit biases can be ‘unlearned’ through a variety of techniques to change or mitigate the effects of these biases.

Recommended Practices for Judges to Mitigate the Impact of Biases When Making Judicial Decisions

Recognize your own implicit bias. In order to combat the impact of bias on judicial decisions, judges and others can learn about their implicit biases by taking one or more of the Harvard Project Implicit bias tests: https://implicit.harvard. edu/implicit/takeatest.html
Ensure that you and your judicial colleagues, stakeholders, and court staff are educated about implicit bias. Training, literature, and technical assistance are available from a range of sources. These trainings take time, effort, and continuous reinforcement. Creating a court environment where decisions are made without implicit bias requires diligence by all involved.

Acknowledge that each of us employs shortcuts to synthesize information.This acknowledgment provides a platform to offer opportunities to others to do the same. Change very often follows acknowledgment.

Slow down the process. Because implicit bias is a shortcut to organize and categorize information, slow down the process of making decisions, induce deliberation, and ensure that decisions are based in fact, rather than an aggregate of biases. Schedule hearings with critical case decisions when you are most alert and least fatigued in the day (this may be different for every judge), remember that we are prone to decision fatigue, gather as much information as you can, and use checklists as reminder of what questions to ask.

Engage in “de-biasing,” a practice of developing a greater appreciation of cultural communities different from our own, through active engagement with those communities.
Question the information you receive from others. It is not enough to correct our own biases; we must also question others’ biases. (For exanple: a police report states “the juvenile had a belligerent attitude and she was uncooperative.” Are there specific facts to support that conclusion, or could the officer’s perception have been based on implicit or explicit biases?)

Engage in “de-biasing,” a practice of developing a greater appreciation of cultural communities different from our own, through active engagement with those communities.52
Question the information you receive from others. It
is not enough to correct our own biases; we must also question others’ biases. (For exanple: a police report
states “the juvenile had a belligerent attitude and she was uncooperative.” Are there specific facts to support that conclusion, or could the officer’s perception have been based on implicit or explicit biases?)
Consider the tools and instruments used to assess youth and their families in the juvenile justice and child welfare systems. Are the risk-assessment tools racially neutral?
Become familiar with data. Data is a good tool to identify trends and patterns that may suggest our decisions are based in bias rather than fact. (For example: do plea negotiations, sentencing recommendations, and imposed sentences differ along racial lines?)
Practice mindfulness. Mindfulness means paying attention in
a special way;“on purpose, in the present moment, and non- judgmentally.”53 It is a practice of being non-judgmental about anything you notice, of not labeling things as good or bad.
Exercise leadership in dismantling bias. Convene meetings of juvenile court stakeholders in the delinquency and child welfare systems to develop concrete plans to address bias.

In order to eliminate disparities in juvenile court, we must first understand our own biases.

Systemic Considerations

In addition to the recommendations previously mentioned about self-reflection, it is critical that judges are aware of the data and systems they are operating within before they can attempt to mitigate any structural biases that exist. Some questions that judges should ask, or request data regarding, include the following:

Does the court or prosecutor’s office in my jurisdiction maintain data by race and ethnicity regarding which youth are referred for diversion?
Does the diversion program in my jurisdiction provide for referrals prior to arraignment?
Are diversion eligibility decisions informed or limited by the nature of the offense?
Do I have access to data regarding the race, ethnicity, and gender of youth who are detained in my jurisdiction?
I using an assessment or other standardized tool to determine if a youth should be detained? If I am using a standardized assessment, are the criteria used neutral across racial and ethnic identities? How do I know
If there are override criteria for any assessment instrument I am using, do I know if and how the criteria negatively impact youth of color?What criteria are being used by the court or other agencies to conclude that removal from the home is necessary? Are those criteria neutral or do they have a disproportionate impact on youth of color?
Is the safety assessment tool the child welfare agency is using dependent on objective criteria? Do those criteria disproportionately impact youth of color? If so, how? And what can be done to address the disparate impact of the tools and criteria used on our decision making?
Do I have access to commitment data in my jurisdiction regarding race, ethnicity, and gender?
Do I have access to data concerning transfer or waiver rates of all youth broken down by race, ethnicity, and gender?

Addressing the overrepresentation of children and families of color in our juvenile courts requires careful consideration and reform of the policies and practices that drive bias and structural racism.