Data from Arizona show the disproportionate representation of Latino youth at all stages of processing (see Table 6):

Similarly, Human Rights Watch (2002) reported that Latino/a youth are confined in institutional placements at higher rates than Whites in 39 states, and at more than 3 times the rate of Whites in eight states: Connecticut, Michigan, North Dakota, Pennsylvania, South Dakota, Vermont, West Virginia, and Wisconsin (Human Rights Watch, 2002; available at <http://www.hrw.org/press/2002/02/race-227.htm>) (See Table 7).

In addition, Latino/a youth are incarcerated at rates 7 to 17 times greater than those of Whites in four states: Connecticut, Hawaii, Massachusetts, and New Hampshire (Human Rights Watch, 2002; see Table 8) (available at <http://www.hrw.org/press/2002/02/race-227.htm>

However, there is some indication of reductions in disproportionate minority representation in other states. For example, data from Ohio reveal that the percentage of Latino youth committed for felonies decreased 19% from 1996 (2.6%) to 2000 (2.1%), the same time period during which the percentage of White youth committed for felonies increased 14% and the percentage of Black youth committed for felonies increased 8% (see Table 9).

It is unclear why there was a reduction in the percentage of Latino youth committed for felonies in Ohio during this time period. However, this reduction occurred at a time when all youth commitments were declining in Ohio by 19.4%. Thus, the 19% decline in Latino/a commitments was commensurate with the overall decline in commitments in Ohio.

In contrast, commitments for incarceration of Latino/a youth in New Jersey increased from 1998 (203) to 1999 (268), but then declined again in 2000 (180). These data might suggest recent progress for Latino/a youth; however, the Latino/a pattern in New Jersey simply mirrored the increasing-then-decreasing commitment pattern of all youth incarcerated in the state during the 1998-2000 time period (survey data provided by the State of New Jersey).

In the United States generally, Latino/a youth are disproportionately arrested, detained, and waived to adult criminal court. Their sentences are harsher and their commitments are for longer periods of time than those for White youth committing the same offenses.

Disproportionate representation and disparate treatment of Latino/a youth in the justice system is more evident in some states than in others. For example, indices of disproportionality for Latino/a youth in residential placement in 1999 were greater than 2.0 for 26% of U.S. States: Mississippi (14.9), Massachusetts (4.0), New Hampshire (3.5), Pennsylvania (3.0), Montana (2.9), Michigan (2.8), Idaho (2.7), Connecticut (2.5), Rhode Island (2.4), Minnesota (2.3), Nebraska (2.2), Wisconsin (2.2), and Utah (2.1). Disproportionate numbers of Latino/a youth are reported in the juvenile justice system in many of the states with large Latino/a populations: California, Texas, Arizona, Colorado, Nevada. All of these states in particular must examine their commitment procedures and find ways to reduce the disparate treatment of Latino/a youth.

It is important to keep in mind that reporting procedures are not uniform across states, so it is difficult to assess the accuracy of indices of disproportionality. The surprisingly low indices in Florida, New York, and the District of Columbia, among others, indicate concerns about data gathering methods (see Finding #2, below).

The Census Bureau and the Justice Department should conduct an independent review of all states that documents the methods for addressing issues of Latino/a disproportionality. Most notably, states should share their strategies for documenting Latino/a youth in the justice system. Based on this review, a common strategy can be developed for all states that would facilitate an accurate and consistent methodology to monitor and implement documentation of Latinos/as who come into contact with the justice system.

Revamp risk assessment procedures, as successfully done in Santa Cruz County, California and Multnomah County (Portland), Oregon (discussed in Section 7 of this report).

One strategy we used for collecting data on disproportionate representation of Latino/a youth was to ask the Director of Juvenile Justice or designated staff person to respond to a short survey (see Appendix E) and then to provide us with statewide data sets on Latino/a youth in the justice system in their state. Because the federal government expects each state to collect such data, we thought that completing this process would be relatively straightforward.

However, obtaining data from states is a complex and frustrating process. For example, although the state representative from Ohio responded after only one telephone call, most states required 6 or more calls. Obtaining usable responses from California required a total of 17 phone calls; other states also required extensive follow-up: Michigan 10 calls, Texas 11 calls, and Pennsylvania 13 calls.

When we contacted California about participation in our survey, the state’s DMC coordinator completed the survey and referred us to the state’s Department of Justice (DOJ), where data are kept in the Juvenile Court and Probation Statistical System. DOJ’s representative informed us that no statewide data were available, so we would need to specify from which counties we wanted to receive data. Subsequently, when we asked for the data for specific counties for the past 5 years, we were told that the information was not available. We also were told that the system had been deactivated and subsequently reactivated in 1997 and that some of the counties we had chosen did not have data available. Finally, the contact person indicated that she had to get special permission to release the data to us because the department had only released such data to the government prior to our request. After waiting 4 months, we contacted another source at the California Youth Authority; an individual from CYA completed the state survey (again) and supplied a dataset (but one that was different from the one originally promised to us).

We contacted the Director of Juvenile Justice in New Mexico, and followed up the contact with a fax and a phone call. However, the department informed us that the director we had been instructed to contact no longer was with the department, and that three or four new directors had come and gone since his departure. The department asked us to fax the survey again; we resubmitted the survey and made several more follow-up phone calls. In our initial conversation with the department, the contact person had indicated that there were no problems in being able to participate in the survey, but she was not sure about some of the questions and needed to obtain information from other divisions. She asked that we call her again on a certain date at a specific time, but she was not available when we returned the call. We subsequently left 8 messages with the department, but the calls never were returned. Finally, after 8 months, we received a completed survey (but no data set) from New Mexico.

After our initial contact with the Juvenile Justice Department in Illinois, the department contacted us to refer us to a more appropriate person. However, the contact number supplied was incorrect, so we had to make several additional phone calls in order to locate the correct person. Eventually, we were able to contact a juvenile justice specialist. This specialist had the survey, but had not yet had time to work on it. He asked if he could look at it later in the week and return it to us the following week. After more than a week, we contacted the specialist again. He responded that he still had not completed the survey, but would send it that week. After another week had passed, we called again. The specialist informed us that he would no longer be working with the department and was passing the survey on to his replacement. He told us that he had access to the data sets we sought and that he would fax the information to us that day. He never followed through, despite numerous follow-up phone calls. Several months later, after a new Juvenile Justice Specialist had been hired, Illinois sent us a completed survey (but no data set).

Frustrating bureaucratic procedures, unreturned phone calls, and staff turnover are all-too-common problems encountered by those seeking data from the states. Our experience demonstrates the roadblocks that community organizations, policymakers, the press, and the public find when they try to obtain basic information about youth in the justice system. The unresponsiveness of the bureaucracies, in turn, stifles efforts to bring about change.

Moreover, most states in our survey failed to provide responses to our inquiry regarding why they did not collect data on Latino/a youth in the justice system. For some states, Latino/a immigration is a relatively recent phenomenon; in prior years, therefore, it was not necessary to collect data on Latinos/as in the system. For example, when North Carolina was asked why the state did not collect data on Latino/a youth in the justice system, a government worker responded, “It was not an issue until the population boomed.” Other states, however, cannot make such claims. New York and several southwestern states, for example, have had significant Latino/a populations for decades. In addition, even states that have small populations of people of color should keep data on Latino/a youth, as they are required to do by law.

We asked each state to report how changing demographics had affected adjudication of Latino/a youth in the last two to three years. Responses to this question varied widely in the states we surveyed. Generally speaking, however, states did not provide particularly useful responses to this inquiry. For example:

Both California and Texas reported an increase in Latino/a population, as well as increases in arrests, detentions, and confinement of Latino/a youth ages 10-17; however, neither state indicated how these changing demographics had influenced justice system procedures.

North Carolina reported a 330% increase in Latino/a youth since 1990 and speculated that there “probably will be an increase in juvenile crime committed by Latinos/as, especially within the second generation.” (It should be noted, however, that North Carolina’s population base of Latinos/as was relatively small in 1990, so the finding that the state experienced a large percentage increase in Latino/a population should be interpreted with caution.)

New Mexico noted that, until recently, it was a “majority minority” state (that is, more Latinos/as in the population than Whites), and that incarceration rates matched the general population statistics. Now, however, the state reports that it is difficult to know why incarceration rates have changed and notes that many citizens are confused by the terms race and ethnicity.

Ohio, on the other hand, reported no change in adjudication of Latino/a youth. (Ohio had only a 1% increase in Latino/a youth in residence.)

In contrast, Arizona noted that the overall Latino/a youth population had increased over the last 10 years to 29.2%, whereas the percentage of youth committed to the Arizona Department of Juvenile Corrections had remained stable at 43-44% for the past 5 years.

Several barriers to accurate data collection currently plague the system. Kentucky provides one example. Observations of Kentucky’s DMC activities in 1999 resulted in the conclusion that the state’s information systems were incomplete and that serious concerns existed regarding whether data were being collected routinely (Kentucky Department of Juvenile Justice, 2000). “Perhaps most troubling,” the state’s report noted, “is that the source of data from which most information on cases is available is a source that hasn’t routinely kept good information on race” (Kentucky Department of Juvenile Justice, 2000, p. 24). After reviewing the existing data systems in the state, Kentucky’s research and statistics field coordinator noted the following limitations and potential obstacles:

Very few agencies or organizations have electronically coded their statewide data.

Coding information has been inconsistent and time gaps have occurred when data were/were not being collected. For example, some computerized information, such as the race of offenders, is missing because the focus of data collection was case management rather than aggregate analysis.

Critical data elements such as race/ethnicity, gender, age, and offense type are not uniformly collected throughout the juvenile justice system.

Race/ethnicity often is coded differently from agency to agency. (Kentucky Department of Juvenile Justice, 2000, p. 27).

States’ responses to our survey echoed these concerns. When asked about barriers to collecting data on Latino/a youth in the justice system, states’ responses fell into these general categories:

State personnel have insufficient resources and/or time to collect data. During difficult economic times, especially when state budgets are being slashed, this barrier is likely to become even more daunting.

Departmental procedures for collecting information across jurisdictions and agencies are inconsistent. These inconsistencies result in comparing “apples” and “oranges.”

o States use different methods for collecting and presenting information on Latino/a populations in the justice system, including varying definitions of the terms Latino and Hispanic. “These are subjective, not objective, labels,” noted one respondent from Michigan. In New Mexico, law enforcement personnel determine ethnicity for police reports-a difficult task when definitions of race and ethnicity are unclear. In other states, youth may identify with a particular ethnic group whether others agree or not.

o Some states compile data at the county level. According to a respondent from California, there are differences of interpretation of data among counties.

o Other states collect data only at the state level. Use of different methodologies in different states makes it difficult to access state-level data. As a result, requests for information may require a frustrating series of telephone calls or contacts rather than more efficient “one-stop shopping” for information. (See box, pages 41-42).

Systems for gathering data in many states do not have a “Latino” or “Hispanic” category. They also may fail to separate ethnicity from race so that Latino/a youth often are counted as White and sometimes as Black. As a result, data on the extent to which the Latino/a population is over-represented in the juvenile justice system often are inaccurate, inappropriately minimizing the degree of Latino/a over-representation and exaggerating the incarceration rates of non-Hispanic Whites (Holman, 2001).

State personnel have difficulty working with multiple agencies. A respondent from North Carolina reported problems in obtaining the proper forms to distinguish between ethnicity and race and indicated that a state worker must deal with 3 different departments in order to obtain the necessary data. Other respondents noted frustrations related to the need to deal with multiple departments in order to obtain the necessary information.

States employ too few employees who are bilingual and knowledgeable about various Latino/a cultures. As a result, data often are inaccurate or incomplete. A respondent from New Mexico noted that documents are in English only, staff are not required to be bilingual, but documents often need to be translated. Representatives from North Carolina and Ohio also opined that language barriers and special cultural needs were challenges that had not been adequately addressed to date. Even Texas, which has a significant Latino/a population, reported that it was difficult to find bilingual employees.

Current methods for recording and gathering data obstruct attempts to understand the magnitude of the problem of over-representation and disparate treatment of Latino/a youth in the justice system. Critical pieces of information often are missing, variables are not specified in detail, terminology is inconsistently used, and information is not consistently reported across jurisdictions. There is little incentive-and scant resources -for states to provide data to researchers. Yet without research it is not possible to understand the nature or extent of the problem, or to fully develop effective solutions.

Moreover, as Leonard, Pope and Feyerherm (1995) noted, “The more our reporting systems aggregate (combine) data, from place to city to county to state, the more likely that evidence of racial disparity will be lost or hidden” (p. 9). These problems make cross-state comparisons difficult, if not impossible.

In addition, the lack of accurate, consistent Latino/a data inhibits researchers’ ability to separate Latino/a data from the data of other racial/ethnic groups in reports that may critically impact changes in policy and access to funds for services. To the extent a jurisdiction is trying to make an accurate analysis of disproportionate confinement of youth of color, as is required by federal law, counting large numbers of Latino/a youth in the “White” category clearly inflates the White incarceration rate and masks the already substantial rates of disproportionality between White youth and youth of color.

In order to determine whether adjudication of Latino/a youth is proportionate over time, states must keep accurate data on race/ethnicity of youth, both in the state and in the state’s justice system. Failure to collect data that reflect changing demographics results in inaccurate and/or incomplete information on youth and their families, both within states and across states. As a result, valid and reliable data on youth involvement in the justice system are not available.

Moreover, in order to more accurately document issues of disproportionality and disparate treatment, states experiencing rapid growth in Latino/a population (50%+)-for example, North Carolina and Nebraska-should use weighted data to standardize the growth in rates of adjudication. Such states might, for example, use three-year weightings instead of annual data to minimize variability caused by rapid demographic shifts.

This area clearly requires the convening power of the federal government. This report and others reveal data collection in the area of Latino/a youth confinement rates to be a sham, making it virtually impossible for states to say whether or not they are complying with the disproportionate minority confinement provisions of the Juvenile Justice and Delinquency Prevention Act. Therefore, Congress should immediately establish a high-level task force with representation from academia; community organizations; and federal, state, and local government to grapple with this issue and agree upon uniform standards to:

• Establish a centralized national database of county-level data to track the problems of disproportionate representation and disparate treatment of Latino/a youth in the U.S. justice system.
• Develop a systematic, uniform monitoring procedure to determine the percentage of Latino/a youth being processed at each stage of interaction with the justice system in each county across the United States.
• Provide training to personnel in each of the 50 states and the District of Columbia regarding how to collect data.
• Designate a national Hispanic organization (e.g., Mexican American Legal Defense and Education Fund, National Council of La Raza) to become a national repository for data pertaining to Latino/a juveniles in the justice system and to release periodic reports that document progress on issues pertaining to Latino/a youth involvement in the justice system. Require states to provide data annually.
• Fund a national organization, in collaboration with officials from the justice system, to conduct a census of youth institutions (public and private) to determine current incarceration of Latino/a youth.
• Fund a national organization, in collaboration with officials from the justice system, to conduct a census of juvenile court records in multiple states, as well as counties within states (high, medium, and low Latino/a population density) to analyze court processing and adjudication of Latino/a youth.
• Require all states to gather data in a manner that includes a “Latino” or a “Hispanic” category that allows for the separation of ethnicity from race. In this way, Latino/a youth will not under-counted because they can only be counted in the racial categories of White, Black, Asian and Native American. Conduct an internal audit of states to ensure that adequate procedures are used to distinguish between ethnicity and race.
• Require OJJDP, in collaboration with state and municipal agencies, to develop a common reporting mechanism for documentation of Latino/a race/ethnicity.
• Require states to collect data and establish databases at the county level to ensure accurate information regarding Latino/a youth interactions with the justice system.

In addition, federal, state and local jurisdictions should:

• Encourage counties with large Latino/a populations to replicate policing procedures used in Seattle (WA), Santa Cruz County (CA), and Portland (OR) to determine whether Latino/a youth are disproportionately “profiled.” (See Section 7, “Promising Approaches,” for a description of sample procedures.)
• Employ more bilingual professionals who have demonstrated competencies across Latino/a communities to work with state agencies to ensure the accuracy of information from families and youth who are predominantly Spanish-speaking.
• Apply sanctions to states that fail to collect data as required by the Juvenile Justice and Delinquency Prevention Act.
• Ensure that states have all documents available in Spanish in order to minimize interpretive errors.

 

Juanita Turner-Garcia is a biracial child who has just been arrested and detained for questioning. Her father is Puerto Rican, and her mother is African American. How should the justice system categorize Juanita’s race/ethnicity? The answer to that question depends upon Juanita’s state of residence. For example,

· In Arizona, Juanita would define her own race/ethnicity;

· In California, she would be assigned to the category of “African American;”

· In Michigan, she would be classified as “Hispanic” as well as being assigned to a specific racial group; and

· In Ohio, she would be listed as “biracial.”

Note: Juanita is a hypothetical example. Source for state definitions is the survey of states conducted for this report.

As Table 10 shows, among the states we surveyed, there is no uniform approach to defining the terms Latino and Hispanic. Some states’ definitions are based upon race, whereas others use ethnicity or even skin tone as the defining variable. As Table 10 also shows, no state responding to our survey routinely records the specific Latino/a subgroup to which a youth belongs.

Because no uniform system exists for defining Latino/a race/ethnicity, cross-state comparisons of data about Latino/a youth are inaccurate. Until a uniform definition and reporting system exists, we cannot determine the true extent of disproportionate representation and disparate treatment of Latinos/as in the justice system, thus running the risk of inflating the White youth confinement rate and underestimating the Latino/a youth confinement rate.

Establish a high-level, national task force, as described in Finding #2.

Alternatively, the Office of Juvenile Justice and Delinquency Prevention, in collaboration with state and local agencies, should develop a common reporting mechanism for documentation of Latino/a race and ethnicity. This strategy should be employed at all levels of the juvenile justice system-including police stops and arrests, detention, court proceedings, probation, state commitment agencies, etc.-to ensure accurate and consistent data at all levels.

States should adopt an approach of permitting youth to identify their own race and/or ethnicity. In addition, given the growing rate of multiracial and inter-ethnic marriages and families in the U.S. and internationally, multiracial and multi-ethnic youth should be able to identify and report their diverse heritage, and should not be required to select a single racial or ethnic category. Consideration should be given to methods for avoiding duplicate reporting, over-statement, under-counting, or other inaccuracies in reporting numbers of youth in the system.

Rosa, José, and María all were born in the Dominican Republic and immigrated to the United States; all three, therefore, are Latino/a. However:

· Rosa’s ancestors were slaves brought from Africa. The Dominican Republic considers her to be Black.

· José’s ancestry is a mix of Spanish colonists and the native Taino people. He is classified as “White” by the Dominican Republic.

· María’s mother is Black and her father is White. The Dominican Republic classifies Maria as “Mulatta.”

How should Rosa, José, and María define their race? Who should indicate “Latino”? “Hispanic”? “White”? “Black”? “Biracial”? “Mulatto”? If Rosa is classified as “Black” and José as “White,” do these government designations exclude them from being considered “Latino/a?”

NOTE: Rosa, José, and María are hypothetical examples.

Persons of Hispanic and Latino heritage can be of any race; they also can choose to identify their race as Latino/a or Hispanic. However, current data gathering systems generally fail to account for these facts.

The 2000 Census shows that America’s racial/ethnic composition is changing rapidly (U.S. Census Bureau, 2001). For example, the Latino/a population grew by 60% during the 1990s, making the number of Latinos/as equal to the number of African Americans in the U.S. (Holman, 2001). However, the conclusion that there are equal numbers of African Americans and Latinos/as may not be accurate. Typically, African Americans are accurately represented in demographics that include the category of race, whereas Latinos/as are not. According to the Census Bureau, 96% of Latinos/as in America choose “White” or “Other” as their race (Inter-University Program for Latino/a Research, 2001). The racial categories used in the 2000 Census did not include a “Latino” or “Hispanic” category, which confused many Latino/a respondents to the Census questionnaire. They had no choice but to report their race as “White” or “Other.” The lack of a discrete “Latino” or “Hispanic” category choice for the 2000 Census question about racial identity may have caused an underreporting of Hispanic/Latino/a population numbers. As of July 1, 1997, the U.S. Census reported that Latinos/as were counted as 13.7% of the White population, 5.1% of the Black population, 17.6% of the American Indian/Alaska Native population, and 6.3% of the Asian and Pacific Islander population (available at www.census.gov/population/estimates/rho.txt).

The impact of this situation is amply demonstrated in a report entitled Masking the Divide: How Officially Reported Prison Statistics Distort the Racial And Ethnic Realities of Prison Growth (Holman, 2001). Using data from this report, Table 11 shows the percentage of prisoners in selected states in 1997 by race/ethnicity before and after removing Hispanics/Latinos/as from race categories. This table provides compelling evidence that failure to include a Latino/a racial category or to separate ethnicity from race often results in dramatic over-reporting of the percentage of Whites incarcerated, and therefore significant under-reporting of the percentage of Latinos/as incarcerated.

Holman (2001) reports that, with more than 47,000 Latino/a prisoners counted as White in 1985, it appeared that there were 4% more White prisoners (52%) than non-White (48%). However, when Latinos/as were removed from the White category, non-White prisoners outnumbered White prisoners by 15%. Worse yet, between 1985 and 1997 the divide between the percent of the prison population that was White and non-White doubled to 30%.

Furthermore, in 1985, most states counted Latino/a prisoners with other races-that is, without separating ethnicity from race. Using this approach, Texas’ White prisoners were reported to be 58.5% of the population when they actually were 38%. Similarly, California’s White prisoners were reported to be 62% of all prisoners in 1985 when they actually were 36%. By 1997 these two states had changed the way they counted Hispanic/Latino/a prisoners by placing them in the “other” category for race. As a result, there is no discrepancy in reported and actual percentages of White prisoners in Texas and California in 1997, as Table 12 shows. In contrast, Colorado reported in 1997 that 71% of its prison population was White; by removing Latinos/as from the White category, the percentage of Colorado’s prison population that is White fell to 45%.

The 2000 Census included one question on race and another on ethnicity. Unlike previous Census results, therefore, the 2000 Census permits differentiation of any race from Hispanics. However, federal, state and local juvenile justice and adult correctional authorities have not used categories for both race and ethnicity when describing youth in confinement (including prison). Thus, it is difficult to paint an accurate picture of the racial/ethnic breakdown of youth in the justice system. As a result, statistics for White - and to a lesser degree Black - juveniles in the system are inflated, whereas statistics for Latino/a populations are too low.

While the Census Bureau approach represents a step in the right direction, even its approach of asking two questions (race and ethnicity) may not be optimal. An alternative approach would be to include the term Latino among the designations for race.

Collect data in a way that permits analysis of the extent - and ultimately the causes - of over-representation and disparate treatment of Latino/a youth. Different approaches could achieve this goal:

• One simple solution that easily could be made by state and federal governments would be to use a single “race/ethnicity” category, such as the category that appears on many government documents (e.g., federal loan applications). This category would include White, Black, Asian American, Native American, and Latino.
• Alternatively, use the U.S. Bureau of the Census system of classifying persons by both race and ethnic origin.
• Adopt the approach used by Latin American nations in which race is considered a secondary characteristic. Identify ethnicity prior to racial categorization.

• Develop a national protocol for documenting the categorization of individuals of Latino/a ethnicity who also have African or Native/Indigenous ancestry.

• .Require counties and states to disaggregate Latino/a Blacks and African Americans as well as indigenous populations, just as Caucasians are divided into White and Hispanic White categories.

As the Spanish-speaking population of the United States increases, the need for bilingual services also increases. For individuals who speak little or no English, legal procedures must be explained in Spanish and documents must be translated. Spanish-speaking parents are cut off from communicating with their children and with decision makers in the system if bilingual services are not provided.

Moreover, cases that involve medical or mental health emergencies require immediate communication with both youth and parents about what is happening. It is important to communicate with individuals in the language that has the least likelihood of misunderstanding during such emergencies.

Also, interpretation of the results of various types of assessments (e.g., risk, psychological, and educational) may be mistaken because those working in the system do not have the necessary language and/or cultural competency skills. Without bilingual services, it is difficult, if not impossible, to communicate with youth, their parents or guardians, and their families about treatment plans and counseling services. It is difficult to imagine a youth corrections agency establishing a workable after-care plan for a youth with Spanish-speaking parents if staff are unable to communicate with those parents.

The number of predominantly Spanish-speaking students in school provides a partial estimate of the bilingual services needed for incarcerated Latino/a youth. Consider, for example, information from Los Angeles County (California), which has the largest Latino/a population in the nation.

During the past 15 years, the percentage of all public school students in that county who have limited English proficiency has risen dramatically from 18% to more than 35%, with more than half the Latino/a students not being fluent in English (Hayes-Bautista & Nichols, 2000). Compounding the problem is the fact that only one Latino/a teacher is available for every 147 Latino/a students in Los Angeles County (Hayes-Bautista & Nichols, 2000).

In our survey of U.S. states, we asked respondents to indicate (1) the proportion of incarcerated youth who are limited in English proficiency (LEP), (2) how predominantly Spanish-speaking youth are recorded, and (3) treatment plans specific to Latino/a youth who are predominantly Spanish speaking. Table 13 summarizes states’ responses to these inquiries.

Executive Order 13166, signed by President Bill Clinton on August 11, 2000 (<http://www.usdoj.gov/crt/cor/Pubs/eolep.htm>) requires federal agencies to develop and implement a system by which persons with limited English proficiency (LEP) can meaningfully access services. The order requires agencies to ensure that stakeholders have an opportunity to provide input into the system. An agency receiving federal funds whose policies, practices or procedures exclude or limit the participation of any LEP person in a federally-assisted program on the basis of national origin may be engaged in discrimination in violation of Title VI of the Civil Rights Act of 1964. Under this order, agencies must provide that language assistance necessary to ensure access to the federal assistance programs.

An agency or organization may expose itself to liability under Title VI if it requires, suggests, or encourages an LEP person to use friends, minor children, or family members as interpreters. Use of such persons could result in a breach of confidentiality or reluctance on the part of individuals to reveal personal information critical to their situations. In addition, oftentimes family and friends are not competent to act as interpreters because they may be insufficiently proficient in both languages, unskilled in interpretation, and/or unfamiliar with specialized terminology. If, after informing an LEP person of the right to free interpreter services, the person declines such services and requests the use of a family member or friend, the agency may use the family member or friend, but only if the use of such a person would not compromise the effectiveness of services or violate the LEP person’s confidentiality.

Alternatively, agencies - including justice system personnel - may employ certified interpreters. However, certified interpreters are not available in all jurisdictions. At the federal level there are certification programs for Spanish, Haitian Creole, and Navajo. In the states, the situation varies widely. Some states (e.g., Washington, California, New Jersey) test interpreters of several languages; on the other hand, many states have no certification at all. The National Center for State Courts (<http://www.ncsconline.org/>) has organized a consortium of states that is sharing resources for establishing standards and testing. Approximately 25 states have joined the Consortium (National Association of Judiciary Interpreters and Translators [NAJIT], 2002). Although certification does not guarantee quality interpretation, generally it is a good sign if a translator has been accredited by the American Translators Association.

Providing services and documents only in English compromises the constitutional right to due process of youth who are not predominantly English speaking and who have encounters with the justice system. Moreover, many youth who have learned English, only know English, or are bilingual themselves have parents who are monolingual Spanish speakers - so estimates of the number of youth with limited English proficiency represent only the “tip of the iceberg” of bilingual services required. Because it is critical to include parents as central and key players in service provision to youth, bilingual services should be provided to both youth and their parents/guardians so that they can access appropriate assistance in addressing the unique challenges they face because they are predominantly Spanish speaking.

Ensure availability of bilingual services, including both interpretation and translation of materials - 24 hours per day, 7 days per week - to ensure that Latino/a youth are afforded due process under the law, to optimize the probability of helping Spanish-speaking youth and their families, and to facilitate the youths’ rehabilitation.

For states that have a commission for Spanish-speaking affairs, engage the commission to protect the rights of youth who are brought before the justice system by providing translation/interpretation assistance when needed. Also ensure that the commission works with the Department of Justice to translate all documents and to facilitate cultural-sensitivity programming for Latino/a populations in the state.

Establish a program with Hispanic serving institutions (HSIs) to increase the number of bilingual professionals in the juvenile justice system. Undertake similar efforts with non-HSIs.

Employ bilingual staff in equal proportion to the percentage of youth in the system who are predominantly Spanish-speaking and whose parents are monolingual Spanish speakers.

Permit youth freedom to communicate in the language of their choice.

Provide written materials and verbal information in both English and Spanish. The written materials should be at the level of reading proficiency of the local Latino/a population. In addition, translation should not be literal, but rather culturally and linguistically appropriate. In order to achieve these ends, a professional translator/interpreter should be hired rather than using institutional staff who speak Spanish.

Language is only one aspect of culture. Cultural differences between Latino/a youth and justice system personnel may foster misunderstandings that lead to inappropriate and harsher treatment. For example, looking down in the presence of an authority figure is an indication of embarrassment for misbehavior in Latino cultures, but judges may take it as a sign of disrespect and an indication of guilt. For Latino youth, “staring down” an authority figure is highly disrespectful. Thus, lack of cultural competence among key decision makers may increase the likelihood of punishment for Latino/a youth, as the case of “Luis” illustrates.

Luis, a 15-year-old Latino with no previous record, was arrested for possessing less than ½ ounce of marijuana.

During Luis’ disposition hearing, the judge ordered him and his caseworker into chambers. As the judge talked to Luis, he noticed that the youth was not looking directly at him. The judge ordered the youth to look at him, which Luis did. But, as time progressed, Luis looked down again. The loss of eye contact infuriated the judge, whose words and tone of voice became harsher. The caseworker attempted to explain that Luis’ downcast eyes were a sign of respect in his culture-youth who are being reprimanded in Luis’ culture bow their heads to show their embarrassment at their actions. He explained that “staring down” authority figures is considered to be highly disrespectful. The judge, however, took Luis’ downcast eyes as an admission of guilt, and sentenced him to two years in a juvenile facility.

Source: Confidential.

During the 1980s, a sudden growth in population size, fueled by immigration and rising fertility rates, resulted in much more diverse Latino/a populations in various parts of the country. As recently as 1970, Latinos/as in the U.S. primarily were second- and third-generation U.S.-born, English-speaking individuals of Mexican origin (Hayes-Bautista & Nichols, 2000), but the demographics are far different today.

Consider, for example, the changes in Los Angeles County, which has the largest proportion of Latinos/as in residence of any U.S. county and may serve as a harbinger of Latino/a trends likely to be encountered by other regions of the country in years to come. Latinos/as are the county’s largest racial/ethnic group. In 2000, 45% of county residents were Latino/a (U.S. Bureau of Census, 2000); that proportion is expected to increase to 51% by 2010, and to 64% by 2040 (Hayes-Bautista & Nichols, 2000). Two reasons account for these likely trends: (1) high immigration of young adults and (2) a Latino/a birth rate which is more than double that of non-Latinos/as (Hayes-Bautista & Nichols, 2000).

The Latino/a communities of Los Angeles County also are becoming increasingly diverse. Whereas Mexicans constituted 95% of the Latino/a population in the county in 1980, today more intra-Latino/a variation exists. Individuals of Mexican origin still constitute 72% of the Latino/a population (U.S. Bureau of the Census, 2000), but individuals of Central or South American origin now comprise more than 20%, and individuals of other Hispanic origins account for approximately 5% of the Latino/a population in the county (Hayes-Bautista & Nichols, 2000).

Latinos/as typically are referred to as a single, homogeneous minority group. In reality, however, the category “Latino/a” is comprised of many diverse groups including Mexican, Guatemalan, Salvadoran, Cuban, Nicaraguan, Peruvian, Puerto Rican, Honduran, and Colombian (Hayes-Bautista & Nichols, 2000), each with its own ethnic identity and cultural traditions. While Latinos/as might share common language and cultural values, such as the importance of close family and extended family relationships, their histories and experiences in the U.S. are not identical. Differences among Latino/a subgroups might cover a wide range of variables, including-but not limited to-immigration status, fertility rates, family structure, socioeconomic status, and education (Perez-McCluskey, 2002). These factors may significantly impact Latinos/as’ interactions with the justice system.

For example, Puerto Ricans are considered United States citizens regardless of whether they are born on the island of Puerto Rico or on the U.S. mainland. Puerto Ricans are not considered international migrants, as are those who emigrate from Mexico or other Latin American countries. As a result, Puerto Ricans do not experience the same challenges based on their citizenship status as do other Latino/a groups do (Obeler, 1995).

The educational attainment of Latino/a subgroups varies as well. For example, Mexican Americans are the least likely Latino/a group to report earning a high school diploma (del Pinal & Singer, 1997).

These facts point to the need to examine differences in Latino/a subgroups by country of origin. The uniqueness of each Latino/a group makes it difficult and even counterproductive to consider all Latinos/as as one identity.

All the states we surveyed noted challenges associated with language barriers and issues of cultural competency. Specific needs were listed in the following areas:

· Procurement of service providers who are both bilingual and culturally competent

· Ongoing inservice training of staff in cultural competency

· Translation of documents and forms into Spanish

· Providing services to families that are culturally appropriate

· Developing uniform codes across counties within the state

Good communication and cultural understanding are prerequisites to fair, efficient, effective interactions with the justice system - especially in the more treatment-oriented juvenile justice system. Predominantly Spanish-speaking individuals, particularly those who immigrated recently to the United States, often struggle to communicate with justice system personnel and to understand justice system procedures. Therefore, administrators must facilitate processes that encourage justice system personnel to acknowledge the importance of good communication and cultural sensitivity and that improve the skills of those personnel, including appropriate interpretation services.

In addition, assessment tools (e.g., risk, psychological, and educational) must be race-neutral, culturally sensitive and appropriate to the individuals being assessed. Professionals also must be trained regarding the nuances of differences in immigrants who come with understandings and notions of justice systems and enforcement of laws from their home countries. They also must understand issues associated with acculturation and assimilation of Latinos/as.

Also, as Latino/a youth make up an increasing proportion of the nation’s adolescent population, it becomes increasingly important to understand the interrelationships between acculturation and interactions with the justice system. Research findings on acculturation suggest several factors that might come into play when dealing with this specific population. Awareness of various risk and protective factors at the individual, family, and community levels can further our understanding of acculturation when Latinos/as come into contact with the juvenile justice system. For example, the use of Spanish language has been identified as a protective factor for drug use.

In addition, each Latino/a ethnic subgroup has its own unique history, culture, and experiences-factors that may significantly influence interaction with the justice system. For example, individuals from nations that have experienced recent histories of internal conflict (e.g., Guatemala, El Salvador, Colombia) may be particularly fearful of law enforcement professionals and may not view agents of the government as protectors of individual and civic rights. Individuals from nations where law enforcement professionals routinely extort monies rather than refer individuals to the judicial system may believe that bribes and other offers to law enforcement officers are acceptable options. Thus, law enforcement personnel in the United States need to be sensitized to the abusive law enforcement practices experienced by Latinos/as before coming to this country. On the other hand, when some Latinos/as arrive in the U.S., they believe they can trust law enforcement; negative experiences with racial profiling erode this trust. Thus, Latinos/as-particularly those who are recent immigrants to the U.S.-need to be educated about the proper role of U.S. law enforcement professionals.

Disaggregate Latino/a populations to permit accurate ethnic identification and responsiveness to specific ethnic sensitivities.

Clearly define decision rules related to “assignment” to Latino/a ethnicity, especially in cases in which ethnicity is secondary to race.

Gather data on parental ethnicity and develop decision rules to assist in accurate assignment to Latino/a ethnic categories.

Expand ethnic categories to include all Latin American nations.

Develop a method for documenting the multi-ethnicities of Latino/a youth.

Permit youth to self-identify the ethnic group with which they identify.

Train law enforcement personnel in cultural sensitivity related to specific Latino/a ethnic subgroups.

Ensure that law enforcement professionals throughout the country develop outreach programs to improve trust levels among Latino/a communities.

Educate Latino/a immigrants regarding the proper role of law enforcement in the United States, as well as where and how to report abuses of that role.

Engage National Association for Hispanic Education (NAHE) to develop a curriculum to help law enforcement professionals to understand the interethnic issues and differences across and within Latino/a ethnicities.

Engage the National Center for Latino Leadership (NCLL) to develop a community leadership and education program to help parents and youth understand the U.S. juvenile justice system and facilitate Latino/a leadership in dealing with issues related to community policing.

Adopt standards and policies that meet the cultural and linguistic needs of U.S. Latino/a populations, such as those adopted by the National Alliance for Hispanic Health (www.hispanichealth.org <http://www.hispanichealth.org/>) and other health care communities.

Establish a program with Hispanic serving institutions (HSIs) to increase the cultural competency of professionals in the juvenile justice system. Undertake similar efforts with non-HSIs.

Collaborate with the National Association of Hispanic Education (NAHE) to ensure that non-HSIs also can meet the educational needs of Latino/a students who want to have a professional career in the juvenile justice system.

Collaborate with the Hispanic Bar Association and MALDEF to establish an on-going in-service training program for juvenile court system professionals.

Engage the National Association of Hispanic Social Workers to ensure that the needs of families with youth involved in the system are being met.

In collaboration with NAHE and the National Community for Latino/a Leadership, Inc. (NCLL), develop a national model for training in Latino/a cultural competence. The model should include components specific to particular Latino/a ethnic subgroups (e.g., Puerto Rican, Mexican, etc.). Disseminate the model in all 50 states and the District of Columbia. Ensure that the model disseminated in a particular state is consistent with the Latino/a composition of the state and of the juvenile justice system in that state.

The U.S. government locked 16-year-old Alfredo Lopez Sanchez, a Mayan boy from Guatamala, alone in a hotel room for five weeks with nothing to read, no one to talk to, and no change of clothes while the INS worked to deport him. He washed his underwear in the sink with hand soap each night. “Each day the maid comes in and changes the sheets. The bed gets clean clothes, but I don’t,” Alfredo told his lawyer.

Alfredo has been held by the INS in at least four locations, including a Florida county jail, a juvenile detention center in Pennsylvania, and the hotel room. Alfredo never has been charged with any crime, but he has been held in jails and shackled and handcuffed to chains around his waist, because he has been labeled a “threat risk.” Although he suffers from post-traumatic stress disorder, he has been moved eight times without prior notification of his lawyer (including being flown between Miami and Pennsylvania five times). Alfredo said that he ran away from home after seeing his alcoholic father beat his mother so badly that she fell on top of her youngest baby, who died. Alfredo then left home and hitchhiked and walked to the U.S.

Alfredo speaks a rare dialect called Southern Low Mam; he understands little Spanish and almost no English. A woman who speaks his language is ready to offer him a home in Miami, as are two other families, but the INS refuses to release him, saying he is a flight risk. A U.S. District Court Judge in Miami disagreed with the INS determination, but noted that the court cannot “dictate to the INS where to place a juvenile alien.” Alfredo was dragged out of court in shackles, weeping. He was transferred to Berks County Youth Center in Leesport, Pennsylvania-1,200 miles from his lawyer (who was informed after the fact) and from the only interpreter currently available for his language in the U.S.

Source: Elsner (2002).

States in our survey provided very little information about their interactions with the Immigration and Naturalization Service (INS). Some states indicated that they contact INS “whenever an immigration issue is involved,” but reports from different representatives even within the same state sometimes conflicted.

One representative from California reported, for example, that the INS is notified of the incarceration of any youth whose immigration status may lead the agency to place a hold on the youth’s release. On the other hand, another respondent reported that California does not notify the INS about youth, noting that San Francisco and other jurisdictions have sanctuary laws that prohibit any government agency or entity from reporting immigrants to the INS.

The detention of Latino/a youth is not limited to the juvenile justice and adult criminal justice systems. The Immigration and Naturalization Service (INS) detains nearly 5,000 immigrant youth at more than 90 facilities across the country (INS Office of Public Affairs, 2000). The vast majority of the children detained are Latino/a (INS Office of Public Affairs, 2000). In most instances, they have not been charged with any crime, so their only violation of the law is being present in the United States without legal documentation. Nevertheless, many of these youth are detained for months, and sometimes years, in secure juvenile detention centers and, in some cases, in adult prisons contracted by the INS. Another approximately 9,000 immigrant youth, a majority of whom are Mexican, are detained at the U.S.-Mexico border annually; most of them are deported within 72 hours (U.S. Office of the Inspector General, 2001).

None of the youth taken into custody of the INS receive the celebrity attention afforded Elián González. Instead, they are often denied a hearing, access to legal representation, and contact with relatives. They are provided with little information about their legal rights and about whether, or when, they will be deported. They regularly are handcuffed during transport, strip searched, and subjected to other degrading treatment. In addition, immigrant youth regularly are held in detention facilities with few (or no) bilingual staff, non cultural competency plan and substandard education services, if any (Human Rights Watch 1997, 1998). In addition, they may be commingled with delinquent youth, even if they themselves have not been charged with a crime (Coalition for Juvenile Justice [CJJ], 2001).

The conditions under which immigrant youth in the U.S. are detained by the INS have been denounced by Human Rights Watch (1997, 1998) and other international child advocates as violations of U.S. and international law (see, e.g., Report on Unaccompanied Minors, Secretariat of the Inter-Governmental Consultation on Asylum, Refugee and Migration Policies in Europe, North America, and Australia, 1997).

Some immigrant youth become separated from their parents and families during their journey to the United States and arrive in this country completely unaccompanied. Others are apprehended with their families, but are purposefully transferred by the INS to detention facilities located in different states than those where their parents are detained (Nugent & Schulman, 2001). Many youth are held in detention even when adult family members are available to take custody of them while their immigration case is pending (U.S. Office of the Inspector General, 2001). In some cases, parents of immigrant children apprehended by the INS are afraid to come forward to take custody for fear that they themselves will be deported-a fear that has been borne out in some instances (Pritchard & Schulman, 2001).

The majority of immigrant youth who are detained never obtain access to a lawyer. Immigrant youth have no right to government-appointed counsel or guardians ad litem. They are nonetheless held to the same standard of proof as adults in their immigration “removal” (deportation) proceedings. Children as young as 6 years old have had no representation in immigration court (Driscoll, 2001). Further, the U.S. government makes little or no effort to reunite children with family members when they are deported. In fact, some children from Central and South American countries simply have been dropped off at the U.S.-Mexico border (Human Rights Watch, 1998).

For years, advocates and attorneys have argued that the detention of immigrant children in secure detention facilities violates a 1996 class action lawsuit settlement which mandates that the INS place each youth in the least restrictive setting possible, such as a child shelter or foster care, while the youth’s immigration case is pending (Flores v. Reno, 75 Interpreter Releases i1020, July 28, 1998). Nevertheless, one-third of the immigrant youth apprehended in 1999 were locked away in adult jails and juvenile detention centers (CJJ, 2001). The INS defends its practices, in part, by citing a shortage of non-secure facilities for children. However, the INS has failed to comply with the settlement agreement provision requiring it to expand the current number of non-secure detention placements. Further, it has admitted on a separate occasion that it actually has enough shelter beds to accommodate its average daily population of immigrant children (Marcucci, 2001).

The centers that detain Latino/a youth make a profit by doing so. The INS contracts with detention facilities to hold immigrant youth, paying a higher rate than the facility would make by detaining non-immigrant youth. Detention facilities therefore have an added financial incentive to detain immigrants (Welch, 2000). The INS currently budgets $1 billion annually for the detention and deportation of immigrants, the fastest growing segment of the U.S. incarcerated population (Detention Watch Network News, Spring 2001).

The immigration status of Latino/a youth who are in the juvenile justice system or transferred to the adult system does not become an issue for many youth. Police officers, probation departments, detention center officials and other employees of the system have no legal obligation to report youth to the INS. However, in some jurisdictions, justice system officials who suspect that certain youth are not U.S. citizens have taken it upon themselves to notify the INS of the youth. In such situations, Latino/a youth who have already completed serving time are transferred to INS detention, where they oftentimes sit for months in secure facilities and eventually are deported (Human Rights Watch, 1997, 1998). Some jurisdictions, such as parts of California and Oregon, have enacted sanctuary laws to prohibit cooperation between local and state government agencies, including law enforcement and the INS. (See Appendix H for an example of a “non-cooperation” agreement.)

At the time of initial contact with law enforcement, Latino/a immigrant youth may be subject to the same aggressive policing practices, racial profiling, assumptions about gang affiliation, and other disparate treatments to which their Latino/a citizen counterparts are subject. The racial and ethnic disparities in the rate of transfer of Latino/a youth to adult court have a particularly severe impact on noncitizen youth because an expanded number of adult convictions have deportation consequences. On the other hand, youth who are able to stay in juvenile court cannot be deported on the basis of a juvenile disposition.

Many immigrant youth have lived in the United States virtually their entire lives and no longer have ties to their country of birth. Some are detained many years after having entered the U.S. and no longer speak Spanish. Some youth are the young parents of children born as U.S. citizens. Nevertheless, Latino/a youth who are not citizens of this country may suffer not only prolonged periods of secure detention and discrimination but also permanent separation from their families. If they are deported to their country of birth, many also face poverty, homelessness, further psychological trauma, political persecution and other significant hardships.

Annually, the INS detains approximately 5,000 youth in its facilities and another 9,000 at the border. This means that of the approximately 100,000 youth in detention in the United States at any given time, approximately 1 in 10 are under the control of the INS. However, no uniform system exists to ensure that immigration status does not prejudice youth in the justice system.

In addition, no uniform system exists to ensure that policymakers, legislators, agency administrators, or other justice system decision makers consider INS data. It is unclear whether juveniles who have been reported to the INS are included in justice system databases. Therefore, it is impossible to paint an accurate picture of the relationship between immigration status and justice system interaction. Thus, for purposes of juvenile detention statistics, it may be advisable to develop a standardized form of documentation of Latino/a youth in INS detention.

Develop guidelines that prohibit probation departments, prosecutors and juvenile court judges from inappropriately taking immigration status into account in decisions about detention, transfer to adult court, and disposition. Decisions regarding immigrant youth should be based on the same criteria as decisions regarding other youth in the system.

Develop guidelines that prohibit probation departments and juvenile detention centers from placing “informal holds” on youth and detaining youth for the purpose of notifying the INS.

Work with juvenile justice system personnel to ensure that young Latino/a immigrants in the custody of the INS are not needlessly locked away in juvenile detention facilities. When temporary confinement is necessary, ensure that these youth are processed and released to their families or to community programs as quickly as possible.

Develop guidelines that prohibit probation departments, prosecutors and juvenile court judges from recommending deportation of youth.

Encourage the development and implementation of uniform “non-cooperation agreements” between the INS and juvenile/adult justice agencies.

Require INS to separate youth from adult inmates in all facilities, as is required in the juvenile justice system under the federal Juvenile Justice and Delinquency Prevention Act.

Recruit, hire, and train more U.S. attorneys, public defenders, and advocates who are Latino/a, or who speak Spanish and are culturally competent, to direct and conduct services and initiatives targeted at strengthening Latino/a youth and families.

Encourage more monitoring and oversight of INS practices by human rights organizations and governmental agencies.

 

Probation departments use risk assessment instruments to determine which youth to detain after they are arrested. While the detention decision is intended to be based on objective criteria of whether a youth presents a threat to public safety or is a flight risk, this decision actually often is a point of subjective, racially-biased decision making.

Due to a number of factors, risk assessment instruments in many jurisdictions are highly biased racially and ethnically. First, youth are penalized for actual or suspected gang involvement, regardless of evidence to support the actual charge alleged. Gang involvement by itself often is worth a large number of “points” on the risk assessment scale. In addition, gang affiliation often is presumed for Latino/a boys. Also, points for gang affiliation may be added even when the offense committed by the youth was not gang-related. Second, youth may be detained automatically when their parents either cannot be reached or cannot retrieve their children from the probation department. In some cases, parents cannot be “reached” because language barriers obstruct communication. In other cases, parents may not retrieve their children because the parents are undocumented and fear possible deportation for doing so. Third, probation officials often have the power to “override” what may be an objective risk assessment instrument. This decision to override can be motivated by racial bias.

Anti-gang laws, such as California’s recent ballot initiative, Proposition 21, have converted a broad range of youth offenses, including misdemeanors, into adult felonies (See e.g., Robert L. v. Orange County Superior Court, 2001). These highly punitive laws have had a disproportionate impact on youth of color who are most often identified as “gang-affiliated” by law enforcement and other justice system players (Office of Juvenile Justice and Delinquency Prevention, 2000, Table 19). In practice, anti-gang laws have caused significant numbers of Latino/a youth across the country - only some of whom are actually members of gangs - to receive harsh treatment by police, detention facilities staff, prosecutors and the courts.

Being labeled a “gang member” can have adverse consequences for youth at all the key decision-making points in the justice system. First, stereotypes about which youth are associated with gangs can impact police decisions about who to stop and who to arrest. Alleged gang affiliation can also be the determinant factor in whether a youth is held in secure detention after arrest. Police and probation departments in some jurisdictions assign a significant number of “negative points” for alleged gang involvement during the “risk assessment” component of detention decisions (Cox 2000). For many Latino/a youth, this practice incorrectly presumes the youth are “dangerous” and “guilty” before they are adjudicated.

Gang affiliation is also a basis for transferring a youth to an adult court in some jurisdictions. Under California’s Proposition 21, by merely alleging that an offense is “gang-related,” prosecutors may have the power to file charges against a youth as young as 14 years old directly in adult court, without the generally required “fitness” hearing before a judge (Cal.Pen.Code § 186.22(b); Cal.Welf.&Inst.Code § 707(d)(2)). “Gang-related” offenses are defined as those “committed for the benefit of, at the direction of, or in association with any criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members” (Cal.Pen.Code § 186.22(b); Cal.Welf.&Inst.Code § 707(d)(2)). Allegations of gang involvement also can be extremely prejudicial to the outcome of the youth’s case, sometimes serving to validate a judge’s decision to deny bond, to discount the youth’s testimony, or to impose harsh sentencing (Burrell, 1990). Moreover, even allegations that a youth is a “gang member”-which may ultimately be unsubstantiated-may nevertheless instill fear in some jurors and thereby impact the verdict.

Disturbingly, the terms gang and gang affiliation are defined differently and quite broadly in many jurisdictions. In some states, the sole testimony of a police officer categorized as a “gang expert” by the police department is enough to establish a youth’s “gang association” at trial (See e.g., People v. Olguin, 1994). Anti-gang laws have legalized the practice of “gang profiling,” which allows police to stop, question and in some jurisdictions use extremely aggressive tactics, such as involving SWAT teams, against any youth who fits a description of a “gang member” (Chemerinsky, 2001). Latino/a and other youth of color who merely have a tattoo, wear hip-hop clothing or live in low-income, high crime neighborhoods are sometimes presumed to be “gang affiliated” by police and therefore are oftentimes stopped, questioned and physically threatened or assaulted. These policies are often justified under the auspices of the so-called “war on drugs,” of which the “war on gangs” is a part (Beres & Griffith, 2001).

The use of “gang databases” has become more widespread over the last decade. They are currently used in Michigan, Ohio, Minnesota, Texas and California, among other states. Such databases are comprised of names of “suspected gang members,” “gang associates,” and individuals convicted of “gang-related” crimes and also include personal information and photographs entered by police (O’Connor, 2000). The criteria for being placed on these lists often are vague, including such things as “hangs around with gang members” and “is called a gang member by an untested informant with corroboration” (O’Connor, 2000). These lists are off limits to the public in many jurisdictions and there is no judicial review of the decision to place a youth in the database; thus gang databases often include many youth who have left gangs or who were never actually gang members (Beres & Griffith, 2001). In addition, in some jurisdictions there are no means available for youth to have themselves removed from the gang database.

Anti-gang laws also come in the form of “gang enhancements,” which significantly increase the penalties imposed for an offense if it was “gang-related” under the definition provided above. Although many gang-related offenses are serious offenses, gang enhancement laws sometimes impose sentences which far exceed what the criminal law would have imposed for the same offense had it not been gang-related. For example, in California, youth can face a life sentence in adult prison for a residential robbery if it is deemed to have been “gang-related.” (Cal.Pen.Code § 186.22(b)). Presumptions about gang affiliation also have severe consequences under the state’s “three-strikes” law intended for adults. Proposition 21 made any felony committed “on behalf of a gang” a strike. It also created new “juvenile strikes,” or juvenile offenses that count as adult strikes, which can lead to 25-year to life sentences for some youth. These new “juvenile strikes” include offenses such as unarmed robbery (Cal.Welf.&Inst.Code § 707(b)(3), (25)). Youth labeled with “gang affiliation” may also get more severe treatment in terms of the actual time they are required to serve in prison. Proposition 21, for example, enacted a new category of “violent felonies” which require that youth who receive prison terms serve 85%, rather than the previously standard 50%, of their sentences. This category of offenses includes some gang-related offenses (Cal.Pen.Code § 186.22(b)).

Police work targeting predominantly Latinos/as and Latino/a “suspected gang members” in Los Angeles was the focus of the city’s largest police scandal in history. The Rampart CRASH (“Community Response to Street Hoodlums”) police unit framed thousands of innocent people by planting evidence on them, committed perjury in court to gain convictions, and physically brutalized innocent youth and adults (see Booth, 2000; Glover & Lait, 2002). The officers also illegally colluded with the INS to deport young Latinos/as. The Los Angeles Public Defender continues to review over 30,000 convictions to identify other young people Rampart police may have framed.

The juvenile justice and adult criminal justice systems differ in a number of ways (see Appendix I). The differences between juvenile court and adult criminal court are probably most important in the sanctions available to courts after adjudication or conviction. Sentencing options in adult criminal court are usually very limited, often confined to probation, fine, or incarceration. Dispositions in juvenile court may cover a range of options of varying degrees of restrictiveness, including probation, day treatment programs, specialized group homes, community-based residential programs, wilderness programs, and commitment to state institutions. For youth charged in adult criminal court, some states permit “blended sentencing,” which combines juvenile court dispositions and adult criminal court sanctions. In other cases, juveniles waived to adult court are treated more harshly than their crimes warrant, as the case of “Alicia” illustrates.

Gang enhancement statutes and other aspects of the system that treat Latino/a youth more harshly are especially important because those youth are housed in jails and prisons where they face particular dangers (see, e.g., the case of Antonio, described on page 63). Compared to youth in juvenile facilities, youth in adult facilities are:

· 8 times as likely to commit suicide (Flaherty, 1980)

· 5 times as likely to be sexually assaulted

· 2 times as likely to be assaulted by staff

· 50% more likely to be attacked with a weapon (Forst, Fagan, & Vivona, 1989).

Moreover, recidivism is higher for youth who have been transferred to adult criminal court compared to youth with similar characteristics and offense records who stay in the juvenile court (Bishop, Frazier, Lanza-Kaduce, & Winner, 1996). This finding holds true whether recidivism is examined in terms of rates of reoffending, seriousness of reoffending, or time to failure: Youth charged in adult court are significantly more likely to reoffend, more likely to commit violent crimes when they do reoffend, and to reoffend sooner than similar youth who go through the juvenile justice system (Bishop et al., 1996).

When procedures routinely employed by justice system personnel systematically and unfairly disadvantage Latino/a youth, justice cannot be served. The system must eliminate procedures that racially or ethnically profile youth, including risk assessments and other procedures that presume gang involvement for Latino/a youth. In addition, the system must institute and monitor procedures to ensure that Latino/a youth are not disproportionately waived to adult court.

• Advocate for reforms to prevent racial bias, racial profiling and “gang-profiling” by all justice system and law enforcement personnel.
• Regulate or amend provisions giving prosecutors “direct file” authority to prosecute youth in adult criminal court and require that waiver decisions be individualized and made by judges.
• Train detention staff to administer a valid, racially and ethnically unbiased risk and needs assessment designed to determine whether each youth should be released. Present the results of this assessment to the court at the initial detention hearing.
• Amend or repeal laws that may disproportionately impact Latino/a youth - such as laws providing long mandatory sentences for alleged gang involvement, drug laws with mandatory minimum sentences, and “three-strikes” laws.
• identify whether there are gang injunction zones in your city and what the policies are concerning gangs in your state.
• Demand that constitutional due process apply to all youth, regardless of gang affiliation.
• Advocate for the elimination of gang databases.
• Advocate for the elimination of “gang-injunction zones.”
• Advocate for the allocation of significantly increased funding for decaying schools in inner cities, after-school youth programs and jobs to create more options for youth in their communities.

7. Promising Approaches

Santa Cruz County’s success resulted from implementation of a comprehensive set of strategies.

1. Embrace the reduction of DMC as a key organizational objective.

The agency administrator must play a significant leadership role in the development and direction of this effort. The administrator must ensure that departmental resources, personnel practices (recruitment, hiring and training), outcome indicators, and service and program strategies all support this effort. The administrator also must develop a cultural competency plan and appoint a cultural competency coordinator.

2. Create a map of key decision points affecting decisions to arrest, book, detain, release and place juveniles.

Determine whether data are available, by ethnicity, for each decision point. If data by ethnicity are not available, create a data development agenda. Keep a trend line for each decision point. Review the trend line regularly to mark progress and to identify problem areas.

3. Develop and monitor objective criteria for the decisions made at each point.

Develop a quantifiable set of risk factors free of criteria that may create racial bias. Include all stakeholders in the development of the objective criteria. Base the assignment to intensive supervision caseloads and removal from these caseloads on clearly stated risk-based criteria.

4. Ensure that staff persons in key positions are culturally competent and bilingual.

Establish guidelines that ensure that staff persons have the skills and abilities to provide services to a diverse client population. Provide ongoing training in cultural sensitivity, cultural competence, the dynamics of disproportionate representation of Latino/a youth, and the disparate treatment of Latino/a youth in the system.

5. Eliminate barriers to family involvement.

Conduct surveys of youth involved in the system and their families to determine what barriers to service and family involvement exist. Encourage family conferencing and parental involvement at all levels.

6. Create two or three tiers of community-based alternatives to detention that involve community-based organizations and parents.

Agree on a continuum of court-approved administrative sanctions that could be imposed prior to arrest for probation violations to prevent unnecessary detention. Establish desired outcomes for these alternatives. Include crisis response plans, strength-based work, and wrap around services. Provide more than one level of supervision for youth. Track outcomes by ethnicity.

7. Develop a full continuum of treatment, supervision and placement options.

Carefully define and develop a local continuum of culturally sensitive services. Ensure that youth of color have equal access to these services at each level. Calculate data on length of stay by ethnicity and adjust programs to reduce disparities.

In addition, Santa Cruz County’s success is attributable to the fact that local Latino community members were actively involved in holding the county accountable for making policy changes to decrease Latino/a youth confinement. Community representatives sat on advisory panels and held town hall meetings to discuss issues.

In the years prior to the detention reform initiative, Latino/a youth in Multnomah County (Portland, OR) were over-represented and disparately treated in the justice system. In addition, too many youth were sent to detention. The county’s detention reform plan produced significant improvements in the system. For example: In 1994, Latinos/as comprised 6% of the youth population and African-Americans represented 10% of the youth population in Multnomah County. However, both groups were twice as likely as White youth to be detained by the Department of Community Justice; overall, youth of color were 31% more likely to be detained than Whites. By 2000, after Multnomah County worked with the Annie E. Casey Foundation’s Juvenile Detention Alternatives Initiative (JDAI) to reduce disproportionate minority confinement, both youth of color and White youth were detained at identical rates (22%) (Justice Policy Institute, 2001). In 1994, there was an average daily population of 60 preajudicatory youth in the Donald E. Long Home (Multnomah’s secure detention facility). By 2000, that number (including youth who had to be held due to mandatory incarceration laws) had fallen to 33 (Schiraldi & Ziedenberg, 2002). As the use of detention became more equitable, the county also reduced the number of youth entering detention each year, at the same time that juvenile crime rates declined. A 1993 analysis of Oregon’s data revealed that detention processing and police referrals had been major factors contributing to overrepresentation in Multnomah County (Heuser, 1993). The county therefore instituted a variety of strategies designed to reduce the number of youth of color in the system and their disparate treatment-strategies that clearly were successful.

• Shelter care
• Foster homes
• Home detention
• A day reporting center

• Provide racial and cultural sensitivity training for staff,
• Collect and maintain data on the detention system, over-representation, and disparate treatment.
• Reduce the time youth have to wait to have their cases processed,
• Develop and use more accurate and objective risk assessment instruments,
• Hire a more diverse workforce, and
• Develop alternatives to detention programs in communities of color.

 

8. Recommendations for Action

This section provides suggestions for action strategies that may be employed by various stakeholder groups: Latino communities, youth, and parents; law enforcement; justice system; advocates; policy makers; and researchers. Generally, we have not repeated strategies across groups, although we recognize that some strategies could be implemented by more than one group simultaneously. Also, we recognize that individuals cross categories; those who “wear many hats” may implement strategies from a variety of perspectives.

• Get organized at the local level. Youth, parents, and other concerned community members who come together to educate and organize themselves can more effectively pressure the justice system to be accountable to Latino communities for the way the system treats its youth. Include representatives of various community groups, including faith-based organizations and youth who have experience with the justice system. Involve the growing, youth-led grassroots movement to stop the incarceration of youth of color across the country.
• Call for a real voice for youth in the area of policy development and implementation. Use the United Nations Convention of the Rights of the Child as a basis for including youth as active participants in the systems and decision processes that affect them.
• Host community meetings that present facts regarding the problem of disproportionate representation and disparate treatment of Latino/a youth in the vicinity and accounts of the experiences of Latino/a youth in the system. Help those who attend the meetings to develop action plans to address the problem and then to implement those plans.
• Pursue collective understanding of the terms Latino and Hispanic. Suggest how definitions should be applied when data are collected.
• Call for local and state government representatives to develop and use databases that include information on both race and ethnicity. Encourage community members to participate in research, increasing the likelihood that the data collected will be representative.
• Call for the expansion and increased funding of community programs that provide alternatives to detention, alternatives that provide sufficient, high quality, culturally competent in-home and community-based services for at-risk youth and for youth offenders, both pre- and post-disposition. Require that service delivery systems are held accountable for results through the use of performance-based outcomes.
• Encourage community members to become educated on how the criminal and juvenile justice systems work and on techniques that serve to reduce youth crime. Such methods could include advocating for reductions in the number of school expulsions and suspensions and calling for creation and funding of more high quality after-school programs in the community.
• Work closely with schools to implement prevention programs, including structured out-of-school activities for youth both after school hours and during the summer.
• Encourage community members to serve as cultural competence trainers, interpreters, and bilingual staff members in juvenile justice and law enforcement. Require that juvenile justice and law enforcement systems be held accountable for providing appropriate training and bilingual interpretation services.
• Encourage culturally competent, bilingual attorneys to provide pro bono counsel to Latino/a youth and their families.
• Create a hotline for Latino/a youth and their families that provides information and referral services on juvenile justice issues in both Spanish and English.
• Form Latino advisory groups to guide policy making and implementation in the law enforcement and justice systems. Call for Latinos/as to be appointed to state advisory groups on juvenile justice in numbers reflective of the proportion of Latinos/as in the state. Ensure that Latino/a youth who have experience in the justice system are included in these advisory groups.
• Call for the implementation of non-cooperation agreements between the justice system and the Immigration and Naturalization Service (INS) to protect immigrant youth from being held in INS detention facilities, and from being deported and/or permanently separated from their families.
• Call for an end to the widespread secure detention of immigrant youth in INS facilities.
• Call on state policymakers to conduct oversight hearings on how the state collects data on Latino/a youth in the justice system.
• Advocate for state laws that mandate use of certified interpreters/translators at all proceedings.
• Call for seamless delivery of services to youth who are at risk for involvement with the justice system.

• Attend training in youth organizing and activism; recruit other youth to do the same.
• Contact other youth-led campaigns (e.g., in the San Francisco Bay area, New York, and other cities) currently working to stop the construction of more large, warehouse-like, locked facilities for juveniles. Speak out about the over-incarceration of youth of color.
• Start a “speakers bureau” of Latino/a youth who can present factual information and personal stories of experiences with the justice system.
• Testify before legislative committees charged with developing juvenile justice laws and call for significant reform of the juvenile justice system to eliminate racial bias and discrimination.
• Meet with local and state government representatives who are responsible for developing and implementing juvenile justice policies to call for serious reform of the juvenile justice system to eliminate racial and ethnic bias and discrimination.
• Call for clear, complete and consistent information on referral, program and placement alternatives, legal proceedings, and agency procedures. Request that these materials be provided in Spanish or that a translator be made available whenever one is needed, particularly at each court appearance.
• Get involved with local “watch dog” groups advocating for accountability in the elimination of racial and ethnic disparities in the system.

• Become knowledgeable about the problems of disproportionate representation and disparate treatment of Latino/a youth in the justice system and the rights of parents; share factual information with other parents. Hold neighborhood gatherings that discuss action plans for addressing the problem; document progress as action plans are implemented.
• Become vocal advocates for Latino/a youth in the system instead of accepting the system’s procedures and practices that perpetuate disproportionality.
• Call for clear, complete and consistent information on referral, program and placement alternatives, legal proceedings, and agency procedures. Request that these materials be provided in Spanish, if that would be helpful, or that a translator be made available, particularly at each court appearance.
• Advocate for clear information - fact sheets, handbooks, brochures, and other materials - provided in the family’s preferred language.
• Organize collectively, including through schools and faith-based organizations.
• Join local, regional, and national Latino-serving organizations that deal with juvenile justice issues.
• Develop support groups for parents and families impacted by the juvenile justice system. Include workshops (on such topics as how the system works, legal rights of youth and parents, use of interpreters, etc.). Include parents and youth who have been impacted by the system.
• Develop public service announcements (PSAs) for Latino/a parents and air them on radio and television programs.

• Eliminate racial profiling from all law enforcement practices.
• Document all law enforcement contacts with youth by race and ethnicity, including contacts not resulting in arrest, in order to monitor when law enforcement practices and procedures result in racial and ethnic disparities.
• Develop policies encouraging release of youth to parents, guardians or other responsible parties.
• Encourage the use of community policing procedures by officers who are knowledgeable about available children’s services and cultural norms and practices in the community.
• Work with community leaders, the National Association of Hispanic Educators (NAHE), and the National Community for Latino Leadership, Inc. (NCLL) to develop and implement a training program in cultural competence aimed at increasing participants’ understanding of the unique issues and challenges confronting Latino/a youth and families within their respective jurisdictions.
• Train law enforcement personnel in cultural sensitivity related to specific Latino/a ethnic subgroups.
• Ensure that law enforcement professionals throughout the country develop outreach programs to improve trust levels among Latino/a communities.
• Educate Latino/a immigrants regarding the proper role of law enforcement in the United States, as well as where and how to report abuses of that role.

Collect data in a way that permits analysis of the extent - and ultimately the causes - of over-representation and disparate treatment of Latino/a youth. Different approaches could achieve this goal:

• Use a single “race/ethnicity” category, such as the category that appears on many government documents (e.g., federal loan applications). This category would include White, Black, Asian American, Native American, and Latino/Hispanic.
• Alternatively, use the U.S. Bureau of the Census system of classifying persons by both race and ethnic origin.
• Adopt the approach used by Latin American nations in which race is considered a secondary characteristic. Identify ethnicity prior to racial categorization.
• The Census Bureau and the Justice Department should conduct an independent review of all states that documents the methods for addressing issues of Latino/a disproportionality. Most notably, states should share their strategies for documenting Latino/a youth in the justice system. Based on this review, a common strategy can be developed for all states that would facilitate an accurate and consistent methodology to monitor and implement documentation of Latinos/as who come into contact with the justice system.
• Revamp risk assessment procedures, as successfully done in Santa Cruz County, California and Multnomah County (Portland), Oregon and discussed in Section 6 of this report.
• Require states to collect data and establish databases at the county level to ensure accurate information regarding Latino/a youth interactions with the justice system.
• The Office of Juvenile Justice and Delinquency Prevention, in collaboration with state and local agencies, should develop a common reporting mechanism for documentation of Latino/a race and ethnicity. This strategy should be employed at all levels of the juvenile justice system-including police, detention, court proceedings, probation, state commitment agencies, etc.-to ensure accurate and consistent data at all levels.
• States should adopt an approach of permitting youth to identify their own race and/or ethnicity. In addition, given the growing rate of multiracial and inter-ethnic marriages and families in the U.S. and internationally, multiracial and multi-ethnic youth should be able to identify and report their diverse heritage, and should not be required to select a single racial or ethnic category. Consideration should be given to methods for avoiding duplicate reporting, over-statement, under-counting, or other inaccuracies in reporting numbers of youth in the system.
• Establish a program with Hispanic serving institutions (HSIs) to increase the number of bilingual professionals in the juvenile justice system. Undertake similar efforts with non-HSIs.
• Employ bilingual staff in equal proportion to the percentage of youth in the system who are predominantly Spanish-speaking and whose parents are monolingual Spanish speakers.
• Permit youth freedom to communicate in the language of their choice.
• Provide written materials and verbal information in both English and Spanish. The written materials should be at the level of reading proficiency of the local Latino/a population. In addition, translation should not be literal, but rather culturally and linguistically appropriate. In order to achieve these ends, a professional translator/interpreter should be hired rather than using institutional staff who speak Spanish.
• Develop guidelines that prohibit probation departments, prosecutors and juvenile court judges from inappropriately taking immigration status into account in decisions about detention, transfer to adult court, and disposition. Decisions regarding immigrant youth should be based on the same criteria as decisions regarding other youth in the system.
• Develop guidelines that prohibit probation departments and juvenile detention centers from placing “informal holds” on youth and detaining youth for the purpose of notifying the INS.
• Work with juvenile justice system personnel to ensure that young Latino/a immigrants in the custody of the INS are not needlessly locked away in juvenile detention facilities. When temporary confinement is necessary, ensure that these youth are processed and released to their families or to community programs as quickly as possible.
• Develop guidelines that prohibit probation departments, prosecutors and juvenile court judges from recommending deportation of youth.
• Encourage the development and implementation of uniform “non-cooperation agreements” between the INS and juvenile/adult justice agencies.
• Require INS to separate youth from adult inmates in all facilities, as is required in the juvenile justice system under the federal Juvenile Justice and Delinquency Prevention Act.
• Recruit, hire, and train more U.S. attorneys, public defenders, and advocates who are Latino/a, or who speak Spanish and are culturally competent, to direct and conduct services and initiatives targeted at strengthening Latino/a youth and families.
• Convene a meeting of key players in the juvenile justice system to educate them about the reform efforts of other jurisdictions that are making efforts to address the disproportionate representation and disparate treatment of youth of color, such as Santa Cruz (CA), Portland (OR), and Phoenix (AZ).
• Create more community-based alternatives to detention programs. (See, e.g., Annie E. Casey Foundation’s Juvenile Detention Alternatives Initiative, <http://www.aecf.org/initiatives/jdai/>)
• Ensure that numbers of Latino/a employees at all levels closely reflect the numbers of Latino/a youth served by juvenile justice agencies, both public and private.
• Ensure that hiring practices, job performance reviews, and promotion policies include consideration of a candidate’s ability and experience in working well with persons of differing races, cultures and languages, particularly with Latino/a youth.
• Regulate or amend provisions giving prosecutors “direct file” authority to prosecute youth in adult criminal court and require that waiver decisions be individualized and made by judges.
• Actively enlist the support of juvenile court judges, who have been major influences in shaping and reshaping juvenile courts.
• Train detention staff to administer a valid, racially and ethnically unbiased risk and needs assessments designed to determine whether each youth should be released. Present the results of this assessment to the court at the initial detention hearing.
• Ensure that public and private residential programs serving youth offenders clarify their incident reporting processes to ensure consistent application of rewards and sanctions for all youth.
• Adopt an approach that allows state and county juvenile justice directors to accurately assess and monitor disproportionate representation of Latinos/as across all levels of the juvenile justice system (e.g., arrest, detention, petition, waivers, adjudication), as well as to conduct the trend analyses necessary to document changes over time in disproportionate Latino/a representation.

• Organize coalitions of advocacy groups nationally for the purpose of educating one another, sharing successful strategies, and collaborating on national campaigns.
• Advocate for a requirement that state justice system agencies, the Federal Bureau of Investigation and other agencies within the U.S. Department of Justice keep accurate crime and court-related statistics regarding Latinos/as, fully accounting for ethnic and racial distinctions in all information released by the agencies. Hold these agencies accountable for accurate data collection.
• Advocate for additional funding to ensure that law enforcement, justice system, education, and mental health professionals are adequately trained in the Spanish language and in cultural competence regarding specific Latino/a ethnic groups.
• Ensure that those impacted by the system (e.g., youth who have been in the system and their families) are included as integral parts of training programs for system personnel.
• Establish a national advisory council for youth in the juvenile justice system.
• Create users’ guides and directories for individuals and groups working on issues of disproportionate representation and disparate treatment of Latino/a youth in the justice system.
• Implement public education and media strategies to raise awareness of the issues discussed in this report. Include public service announcements (PSAs), web sites, and fact sheets. Speak out on radio and television programs.
• Advocate to have certified interpreters available in all judicial proceedings involving Spanish-speaking or limited English proficiency (LEP) youth.
• Hold town hall meetings for legislators and other interested citizens that provide information on the problems associated with Latino/a youth in the justice system.
• Encourage more monitoring and oversight of INS practices by human rights organizations and governmental agencies.
• Learn about gang databases, gang enhancement statutes, and other policies concerning gangs in your community.
• Demand that constitutional due process apply to all youth, regardless of gang affiliation.
• Advocate for the elimination of gang databases.
• Advocate for the elimination of “gang-injunction zones,” which make certain areas off limits to youth who police believe are gang members.
• Advocate for the allocation of significantly increased funding for decaying schools in inner cities, after-school youth programs and jobs to create more options for youth in their communities.

• Enact legislation that advances the strategies outlined in this report, specifically those most likely to reduce the disproportionate representation and disparate treatment of Latino/a youth in the justice system.
• Conduct hearings on how the state collects data on Latino/a youth in the justice system, as well as on INS procedures and treatment of Latino/a youth.
• Enact legislation to reduce over-reliance on incarceration.
• Amend or repeal laws that may disproportionately impact Latino/a youth - such as laws providing long mandatory sentences for alleged gang involvement, drug laws with mandatory minimum sentences, “three-strikes” laws, and RICO statutes.
• Ensure that state law mandates written findings by the judge at detention hearings. The written findings should include reasons why youth cannot be placed at home or in less restrictive environments.
• Enact legislation and provide funding to establish a longitudinal national database with county-level data on Latino/a youth in the U.S. justice system.
• Support legislation to ensure that young Latino/a immigrants in the custody of the Immigration and Naturalization Service are not locked away in juvenile detention facilities. When temporary confinement is necessary, ensure that youth are processed and transferred out of these facilities in less than one week.
• Hold town hall meetings. Invite families, parents of incarcerated youth, and Latino/a community youth and organizations in your district to participate in discussions about juvenile justice reform efforts.
• Develop a systematic, uniform monitoring procedure to determine the percentage of Latino/a youth being processed at each stage of interaction with the justice system in each county across the United States.
• Provide training to personnel in each of the 50 states and the District of Columbia regarding how to collect data.
• Designate a national Latino/a organization (e.g., Mexican American Legal Defense and Education Fund, National Council of La Raza) to become a national repository for data pertaining to Latino/a youth in the justice system and to release periodic reports that document progress on issues pertaining to Latino/a youth involvement in the justice system. Require states to provide data annually.
• Fund a national organization, in collaboration with officials from the justice system, to conduct a census of youth institutions (public and private) to determine current incarceration of Latino/a youth.
• Fund a national organization, in collaboration with officials from the justice system, to conduct a census of juvenile court records in multiple states, as well as counties within states (high, medium, and low Latino/a population density) to analyze court processing and adjudication of Latino/a youth.
• Require all states to gather data in a manner that includes a “Latino” or a “Hispanic” category that allows for the separation of ethnicity from race. Conduct an audit of states to ensure that adequate procedures are used to distinguish between ethnicity and race.
• Develop a national protocol for documenting the categorization of individuals of Latino/a ethnicity who also have African or Native/Indigenous ancestry.
• Require counties and states to disaggregate Latino/a Blacks and African Americans as well as indigenous populations, just as Caucasians are divided into White and Hispanic White categories.
• Ensure availability of bilingual services, including both interpretation and translation of materials - 24 hours per day, 7 days per week - to ensure that Latino/a youth are afforded due process under the law, to optimize the probability of helping Spanish-speaking youth and their families, and to facilitate the youths’ rehabilitation.
• For states that have a commission for Spanish-speaking affairs, engage the commission to protect the rights of youth who are brought before the justice system by providing translation/interpretation assistance when needed. Also ensure that the commission works with the Department of Justice to translate all documents and to facilitate cultural-sensitivity programming for Latino/a populations in the state.
• Expand ethnic categories to include all Latin American nations.
• Develop a method for documenting the multi-ethnicities of Latino/a youth.
• Permit youth to self-identify the ethnic group with which they identify.
• Encourage counties with Latino/a populations to replicate policing procedures used in Santa Cruz County (CA) and Multnomah County (OR) to reduce over-representation of youth of color in the justice system.
• Employ more bilingual professionals who have demonstrated competencies across Latino/a communities to work with state agencies to ensure the accuracy of information from families and youth who are predominantly Spanish-speaking.
• Apply sanctions to states that fail to collect data on Latino/a youth as required by the Juvenile Justice and Delinquency Prevention Act.
• Ensure that states have all documents available in Spanish in order to minimize interpretive errors.

 

• Seek funding for and conduct longitudinal studies of Latino/a youth in the U.S. justice system, tracking trends using both quantitative and qualitative methods (such as focus groups of individuals who have experience with the system).
• Focus on research providing evidence of disparity of treatment as opposed to over-representation of youth of color in the system. As a report by The National Research Council (2001) concluded, “Given the importance of the problem of race, crime, and juvenile justice in the United States, the scant research attention that has been paid to understanding the factors contributing to racial disparities in the juvenile justice system is shocking” (p. 258).
• Link with professional organizations that can disseminate relevant research findings through their policy divisions.