1. Introduction

As this report documents, disparate and unfair treatment of Latino/a youth in the justice system is a serious problem. Consider, for example, the case of “Pablo.”

Is Pablo an isolated example? What are the experiences of the thousandss of other Latino/a youth in the American justice system? How does their treatment compare with that of White youth charged with the same offenses? What research is available regarding these issues, and why isn’t there more? How could cities, counties, states, and the federal government improve procedures and processes for working with Latino/a youth in the justice system? Most important of all, what can we do to reduce the numbers of Latino/a youth in the system?

The purpose of this report is to answer these questions. The report provides a picture of Latino/a youth in the justice system; describes barriers to collection of comprehensive information; and contains detailed “recommendations for action” for Latino/a communities, youth, and parents; law enforcement and other components of the juvenile and criminal justice systems; advocates and grassroots organizers; policymakers; and researchers.

2. Summary of Key Findings

Over-Representation: More Latino/a Youth at Each Stage of the System

While there are serious inadequacies in the availability of data, research that has been conducted demonstrates that Latino youth are over-represented in the justice system.

Latino/a youth in pretrial detention

An “index of over-representation” is calculated by dividing the Latino/a proportion of youth at a particular stage of the justice system (e.g., arrest or detention) by the proportion of Latinos/as in the general juvenile population. An index of 1.0 means that the Latino/a proportion of youth at that stage of the system is the same as the proportion of Latinos/as in the general juvenile population. An index greater than 1.0 means that Latino/a youth are over-represented at that stage of the system.

The index of over-representation for Latino/a youth in detention was significant in many states in 1996:

Further, between 1983 and 1991, the percentage of Latino/a youth in public detention centers increased by 84%, compared to an 8% increase for White youth and 46% increase for youth overall.

Latino/a youth in adult jails and prisons

Data compiled by Human Rights Watch (2002) indicate that Latino/a youth are incarcerated in jails and prisons at rates 2 to 3 times the rates of White youth in nine states, 3 to 6 times the rates of White youth in eight states, and 7 to 17 times the rates of White youth in four states.

Latino youth prosecuted as adults and sentenced to prison

Racial and ethnic disparities for youth occur at several points in the justice system; more importantly, they accumulate over time. Initial disparities at arrest are compounded by disparities that occur later in the process. When added together, these disparities, even if they are relatively small, can produce large negative effects. Thus, youth of color have a “cumulative disadvantage” in the justice system compared to White youth.

For example, in Los Angeles in 1996-98, compared to White youth, Latino/a youth were:

· arrested 2.3 times as often

· prosecuted as adults 2.4 times as often

· imprisoned 7.3 times as often

 

Racial/Ethnic Disparities: More Time for the Same Crime

Research also demonstrates that Latino/a youth are treated more harshly than White youth, even when they are charged with the same offenses.

Admission rates to state public facilities

Among youth with no prior admissions to state facilities:

· For youth charged with violent offenses, the admission rate for Latino/a youth was more than 5 times the rate for White youth

· For youth charged with property offenses, the admission rate for Latino/a youth was almost 2 times the rate for White youth

· For youth charged with drug offenses, the admission rate for Latino/a youth 13 times the rate for White youth

· For youth charged with public order offenses, the admission rate for Latino/a youth was 1.3 times the rate for White youth

Among youth with one or two prior admissions to state facilities:

· The admission rate for Latino/a youth was 2 times the rate for White youth, for all categories of offenses (violent, property, drug, public order)

Average length of incarceration in state public facilities

The average length of incarceration was longer for Latino/a youth than for any other racial/ethnic group in every offense category.

· Latino/a youth charged with violent crimes spent an average of 143 days longer incarcerated than White youth charged with the same offenses-almost 5 months longer.

· Latino/a youth charged with property offenses were incarcerated an average of 45 days longer than White youth similarly charged.

· For drug offenses, Latino/a youth were incarcerated for more than twice the amount of time (306 days) as White youth (144 days).

· For public order offenses such as gambling and prostitution, which are the least serious, Latino/a youth spent more than 50% longer incarcerated than White youth (220 days vs. 147 days).

States define Latino/a ethnicity and race in a variety of ways. A youth whose father is Puerto Rican and whose mother is African-American would be identified in different ways in four different states. In Michigan, she would be classified as “Hispanic,” as well as being assigned to a specific racial group. In California, she would be assigned to the category of “African-American.” In Arizona, she would define her own race/ethnicity. In Ohio, she would be listed as “bi-racial.”

Because no uniform system exists for defining Latino/a ethnicity, cross-state comparisons of data about Latino/a youth are inaccurate. Until a uniform definition and reporting system exists, it is not possible to determine the true extent of disproportionate representation and disparate treatment of Latinos/as in the justice system.

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

Many data systems only collect information on race and only offer choices-such as “White,” “African American” and “Other” - that do not consider ethnicity.

Counting Latino/a youth as “White,” which is most common, significantly over-states the proportion of White youth in the justice system, significantly under-states the proportion of youth of color in the system, and ignores the proportion of Latino/a youth in the system.

Research on prisons demonstrates the errors that occur when collection systems fail to separate ethnicity from race. Including Latinos/as within the “White” category inflates the percentage of White prisoners by 56% in New Mexico, 32% in Arizona and New York, almost 27% in Colorado, 19% in Utah, and almost 18% in New Jersey. There is a corresponding under-reporting (or lack of reporting) of the percentages of Latinos/as incarcerated.

There are limited data available on the number of youth in the justice system who are predominantly Spanish-speaking or have limited English proficiency (LEP). However, data on the public school system in Los Angeles County, which has the largest Latino/a population in the nation, provide some indicators.

During the past 15 years, the percentage of all public school students in that county who have limited English proficiency has risen from 18% to more than 35%, with more than half of the Latino/a students not being fluent in English. At the same time, only one Latino/a teacher is available for every 147 Latino/a students in the county.

As the Spanish-speaking population of the United States increases, the need for bilingual services for youth in the justice system 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 staff and services are not available.

Moreover, cases that involve medical or mental health emergencies require immediate communication with both youth and parents about what is happening. It is particularly 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.

Finally, without bilingual services, it is difficult, if not impossible, to communicate with youth, their parents or guardians, and their families about treatment, counseling services, and after-care plans.

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.

Moreover, the Latino/a population of the United States is increasingly diverse. In 1970, Latinos/as in this country were primarily second- and third- generation U.S.-born, English-speaking individuals of Mexican ancestry. The Latino/a population now is comprised of many diverse groups, including Mexican, Guatemalan, Salvadoran, Cuban, Nicaraguan, Peruvian, Puerto Rican, Honduran, and Colombian, each with its own ethnic identity and cultural traditions. While Latinos/as may 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 cover a wide range of variables, including-but not limited to-immigration status, fertility rates, family structure, socioeconomic status, and education. These factors may significantly impact Latinos/as’ interactions with the justice system.

Predominantly Spanish-speaking individuals, particularly those who immigrated recently to the United States from countries with autocratic or corrupt legal and law enforcement systems, often struggle to communicate with justice system personnel and to understand or trust justice system procedures in this country. Lack of training or experience by those within the system can exacerbate miscommunications and misunderstandings.

In addition, assessment tools (e.g., risk, psychological, and educational) may not be culture-neutral and appropriate to the individuals being assessed, and professionals who administer and interpret the results may not be trained in cultural differences.

The juvenile and criminal justice systems have a variety of problems providing culturally competent personnel and services, including:

· Recruiting staff and service providers who are bilingual and culturally competent

· Conducting inservice training of staff in cultural competency

· Translating documents and forms into Spanish

· Providing services to families that are culturally appropriate

The detention and incarceration of Latino/a youth are 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. The vast majority of the children detained are Latino/a. 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 jails and prisons contracted by the INS, after which they may be deported.

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.

Latino/a youth taken into the custody of the INS often are 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. The detention facilities often feature few (if any) bilingual staff, no cultural competency plan and substandard education services. Immigrant youth may be commingled with delinquent youth, even if they have not been charged with a crime themselves.

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. Many youth are held in detention even when adult family members are available to take custody of them while their immigration case is pending. 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.

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. 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.

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.

No uniform system exists for collecting data on detention and incarceration of immigrant youth. Consequently, it is impossible to provide accurate information to policymakers, legislators, agency administrators, or other justice system decision makers.

Detention: Consequences of inappropriate use of risk assessment instruments

Probation departments use risk assessment instruments to determine which youth to detain after arrest. The goal is to insure that detention decisions are based on objective criteria of whether a youth presents a threat to public safety or is a flight risk. However, subjective factors, based on racial and ethnic stereotypes, can influence detention decisions. Latino/a youth in particular may be penalized for suspected gang involvement, based upon appearance, neighborhood, clothing, or other factors not related to alleged unlawful behavior. Latino/a youth also may be detained when their parents either cannot be reached or cannot pick up their children from the probation department, sometimes because the parents are undocumented and fear possible deportation for doing so.

Sentencing: Consequences of presumed gang identification

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 also can be the determining 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 of Latino/a youth who are arrested. 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 directly in adult court against a youth as young as 14 years old, without a hearing before a judge. Under the California Penal Code, “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.” Allegations of gang involvement can also be extremely prejudicial to the outcome of the youth’s case, sometimes serving to validate judges’ decisions to transfer a youth to adult court initially, to deny bond, or to discount the youth’s testimony entirely. Moreover, even allegations that a youth is a “gang member”-which are ultimately unsubstantiated-may nevertheless instill fear in some jurors and thereby impact the verdict and sentencing.

Anti-gang laws also come in the form of “gang enhancements,” which significantly increase the penalties imposed for an offense. 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.” Presumptions about gang affiliation also have severe consequences under the state’s “three-strikes” law intended for adults. Proposition 21 made any offense committed “on behalf of a gang” a strike. It also created new “juvenile strikes,” or juvenile offenses which 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.”

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. 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.” 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 stopped, questioned and physically threatened or assaulted. These policies are often justified under the auspices of the “war on drugs,” of which the “war on gangs” is a part.

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 planted evidence on thousands of innocent people, committed perjury in court to gain convictions and physically brutalized innocent youth and adults. 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 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. 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.” 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. In addition, in some jurisdictions there are no means available for youth to have themselves removed from the gang database.

Gang databases are sometimes used in tandem with “gang injunctions,” which typically prohibit gang members from associating with other gang members, or from traveling to particular neighborhoods. Although such injunctions are civil court orders, violations of them can carry criminal penalties including jail time. In jurisdictions like Los Angeles, San Diego and San Jose, police have declared specific sections of the city “gang injunction zones,” in which heightened policing and “gang profiling” practices sometimes result in police stopping, questioning, and entering into the gang database youth who are not gang-affiliated.

Prosecution as an adult: Consequences of waiver and confinement in adult facilities

Youth prosecuted as adults and confined in adult jails or prisons face particular dangers. 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)

3. Purposes of This Report

· Describing how the terms Latino/a and Hispanic are used in discussions of race and ethnicity.

· Outlining changing Latino/a demographics in the United States as a basis for understanding the urgent need to reduce over-representation of Latino/a youth in the U.S. justice system and the racial/ethnic disparities they endure.

· Describing disproportionate minority representation and racial/ethnic disparities in the treatment of youth of color (African Americans, Latinos/as, Asian Americans, and Native Americans) in the American justice system.

· Determining how different states define the terms Latino and Hispanic and ascertaining how these definitions impact record keeping regarding Latino/a youth in the system.

· Determining how different states use the categories of race and ethnicity when recording data on Latino/a youth.

· Examining whether, and if so how, states record data regarding specific ethnic subgroups of Latino/a youth in the justice system.

4. Contexts

The United States government uses the term Hispanic to recognize individuals’ common Spanish descent. The term refers, in part, to people with ties to nations where Spanish is the official language. The U.S. government and legal system historically have insisted on categorizing all Spanish-speaking people as Hispanic and treating them as a monolithic group, regardless of cultural differences.

The term Latino, on the other hand, generally refers to people with ties to the nations of Latin America and the Caribbean, including some nations where Spanish is not spoken (e.g., Brazil). It also encompasses persons born in the United States whose families immigrated to this country from Latin America in the recent past, as well as those whose ancestors immigrated generations ago. Like the term Hispanic, the categorization Latino is a general one that does not recognize the diversity of ethnic subgroups (e.g., Puerto Rican, Dominican, Guatemalan, Peruvian, Mexican).

This document will not resolve this definitional dispute. Throughout this report we have elected to use the term Latino to describe people in this country who identify their racial/ethnic backgrounds in reference to Mexico, Central and South America, and the Caribbean, including people born or living in the United States.

Racial and ethnic identity development is an important precursor to understanding Latino/a youth development (Obeler, 1995). It is necessary and valuable to distinguish among youth of Mexican, Guatamalan, Salvadorean, Nicaraguan, Honduran, Colombian, Puerto Rican, Dominican, and other Caribbean, Central American, and South American ancestry, all of whom have their own ethnic identity and cultural traditions. Understanding racial and ethnic identity must be incorporated into research and practice if we, as a nation, are to promote the resiliency of Latino/a youth (Fisher, Jackson, & Villarruel, 1997).

Appendix C provides definitions of terms related to race and ethnicity. It also provides definitions of terms related to justice system personnel and procedures.

Increasing numbers of Latinos/as live in the United States

Analysis of 2000 Census data reveals that Latinos/as currently comprise 12.5% of the total population of the United States and that the Latino/a population in the United States grew by 58% between 1990 and 2000 (Grieco & Cassidy, 2001). Figure 1 shows the distribution of Latino/a residents across the United States.

Analysis of Census 2000 data (Grieco & Cassidy, 2001) also reveals that:

· More than three-quarters of Latinos/as lived in the western or southwestern United States.

· Half of all Latinos/as lived in two states: California (11.0 million; 31.1%) and Texas (6.7 million; 18.9%).

· More than 4 million Latinos/as lived in Los Angeles County, California. Latinos/as make up 44.6% of the population of the county. Mexicans constitute 71.7% of the Latino/a population there. Puerto Ricans and Cubans each comprise 1% of the county’s Latino/a population; “other Hispanic and Latino” groups, including those from Central America, constitute 26% of the Latino/a population of Los Angeles County.

· A rapidly growing number of Latinos/as now are living in many areas that, historically, did not have a substantial Latino/a population, including counties in North Carolina, Georgia, Iowa, Arkansas, Minnesota, and Nebraska.

· Outside Los Angeles County, counties with the highest proportions of Latinos/as were along the southwestern border of the United States.

· In 1997, eight states had higher proportions of Latino/a youth in residence than the U.S. average (15%): New Mexico (48%), California (40%), Texas (37%), Arizona (31%), Nevada (21%), Colorado (20%), New York (19%), and Florida (16%) (Snyder & Sickmund, 1999a).

The Latino/a population in the United States is expected to continue to grow at more than three times the rate of the total U.S. population (Aguirre-Molina & Molina, 1994), due in large part to two factors: (1) Latinos/as have the highest fertility rate of any U.S. racial/ethnic group (Mendoza, 1994) and (2) sustained high levels of Latino/a immigration. The Latino/a population also tends to be more youthful than other racial/ethnic groups. U.S. Census figures for 2000 reveal that, of 35.3 million Latinos/as, 34.8% (10 million) are under the age of 18 years, compared to 25.7% of the entire U.S. population. It is estimated that the proportion of Latino/a youth in the U.S. will increase 59% between 1995 and 2015 (Snyder & Sickmund, 1999a).

It is important to note that a growing Latino population cannot by itself explain the disproportionate number of Latino/a youth involved in the justice system. In fact, in states that have comparatively small Latino populations, such as South Dakota and Michigan, the racial and ethnic disparities in detention rates are even more stark than in states with the highest Latino populations (Human Rights Watch, 2002). For example, both Michigan and South Dakota detain youth at more than 7 times the rate at which White youth are detained (Human Rights Watch, 2002). Unless steps are taken now to eliminate racial bias and disparities in the justice system, Latino/a youth will continue to be unjustly targeted for police stops, arrest, detention, transfer to adult court, and harsher sentencing.

Today, although Mexicans and Mexican Americans still comprise the largest Latino/a subgroup in the U.S., the Latino/a population is more intra-ethnically diverse than it has been at any time in the past (Inter-University Program for Latino Research, 2001). As a result of different growth rates, the proportionate distribution of Latinos by type changed between 1990 and 2000. In 2000, Mexicans constituted 66.1% of all Latinos (up from 60.4% in 1990), Puerto Ricans were 9.0% (down from 12.2%), Cubans were 4.0% (down from 4.7%), and the remaining 28.4% were of other Latino/a origins (up from 22.8%; Grieco & Cassidy, 2001; U.S. Census, 2000). Figure 2 depicts the relative proportions of various Latino/a subgroups living in the United States in 2000.

Source: U.S. Census Bureau, Current Population Survey, March 2000.

 

Appendix A shows the 10 states with the largest population of each Latino/a subgroup (Mexican, Puerto Rican, Cuban, etc.). Appendix B shows the 10 cities with the largest populations of Latinos/as.

These data demonstrate that Latinos/as represent a strong and growing proportion of the U.S. population. Disparate treatment of Latino/a youth in the justice system is a critical concern and Latinos/as should have a strong voice in law enforcement and corrections policies that disproportionately impact them.

Poe-Yamagata and Jones (2000) reported that although youth of color represented just 34% of the U.S. population in 1997, they represented 62% of the youth in detention, and 67% of youth committed to state facilities.

Hamparian and Leiber (1997) provide many examples of over-representation of youth of color in the juvenile justice system.

· In California, youth of color comprised 53.4% of the youth population statewide, but 59% of all juveniles arrested, almost 64% of the juveniles held in secure detention, and 70% of the juveniles placed in secure corrections.

· In Ohio, youth of color comprised 14.3% of the youth population statewide, but 30% of the juveniles arrested and 43% of the juveniles placed in secure corrections.

· In Texas, youth of color comprised 50% of the youth populations statewide, but 65% of the juveniles held in secure detention, 80% of the juveniles placed in secure corrections, and an astounding 100% of the juveniles held in adult jails.

Juvenile Offenders and Victims: 1999 National Report (Snyder & Sickmund, 1999a) provides similar evidence of disproportionate involvement of youth of color in the juvenile justice system. For example, a national survey conducted on October 27, 1997 found that, for every 100,000 Black youth in the general population, there were 1,018 incarcerated. For Latinos/as the rate was 515, whereas for White youth it was only 204. This report also noted that youth of color are over-represented at all stages of the juvenile justice system, compared with their proportion in the population.

In 1997, the federal Office of Juvenile Justice and Delinquency Prevention (OJJDP) published a national report analyzing the over-representation of youth of color at critical points in the justice system, including arrest, secure detention, disposition to secure corrections, confinement in adult jails and lockups, transfer to adult court, and placement on probation (Hamparian & Leiber, 1997). The report created an index numbering system to illustrate the level of over-representation of minorities at each stage of the system. An index of 1.00 indicates that youth of a particular racial or ethnic group appear in the justice system in exactly the same proportion as they occur in the general population. An index number greater than 1.00 indicates over-representation; the larger the index number, the greater is the extent of over-representation. In contrast, an index number less than 1.00 indicates under-representation. So, for example, an index number of 2.0 for Latinoa/ youth for a particular state would mean that Latino/a youth are institutionalized at twice the rate that would be expected based on their representation in the general public.

Calculating the “index of disproportionality”

The “index of disproportionality” is calculated by dividing the proportion of youth at a given point in the justice system in a particular jurisdiction by the proportion of youth in the general population in that jurisdiction. For example, in 1999, Latino youth constituted 18.3% of juveniles ages 10-19 incarcerated in residential placement on October 29, 1997, but only 14% of the general population. The index of disproportionality is calculated by dividing the proportion of Latino youth in residential placement (18.3%) by the proportion of Latino youth in the general population (14%), yielding an index of disproportionality of 1.3.

Over-representation of minority youth in the justice system is caused by many factors - including potentially different delinquent behavior patterns of youth of color and White youth, police practices that focus on “high crime” areas, socio-economic factors, and discriminatory practices such as racial profiling - which are discussed in the next section. When we refer to racial and ethnic disparities, however, we mean differences in treatment of youth that are solely attributable to their race or ethnicity. Thus, looking at racial and ethnic disparities gives us a clearer picture of the harsher treatment that Latino/a youth receive in the justice system because of their racial and ethnic identity, and a closer view of racial and ethnic discrimination in the system.

There is a significant body of research demonstrating racial and ethnic disparities for youth in the justice system.

Pope and Feyerherm (1990a, 1990b) reviewed research on the relationship between race and juvenile justice processing that had been conducted between 1970 and 1988. They found that approximately two-thirds of available studies on disproportionate minority representation reported negative effects of race at one or more stages of the juvenile justice process, with racial/ethnic effects most pronounced at intake and detention. For example, a three-year study of juvenile offenders in Florida found that youth of color received more severe dispositions than their White counterparts at several stages of processing (Bishop & Frazier, 1996). Even after controlling for age, gender, seriousness of the offense, and seriousness of prior records, this study found that youth of color, particularly African American and Latino/a youth, were more likely to be sentenced to state institutions than White youth charged with the same offenses. In other words, youth of color were treated disparately by the system.

In addition, ethnic disparities accumulate as youth are processed through the justice system (Pope & Feyerherm, 1990a). Whether a youth is detained after initial contact with the police seems to influence all subsequent decisions: detained youth receive more severe dispositions than youth not detained, when other factors are controlled (Frazier & Cochran, 1986). Youth of color consistently receive more severe punishments and are more likely to be incarcerated than White youth who commit the same offenses (Pope & Feyerherm, 1990a).

Some individuals argue that over-representation and disproportionate confinement of youth of color result from differential crime patterns among minorities. For example, Senator Orrin Hatch stated in the Congressional Record of May 19, 1999, “These kids are committing crimes. Just because you would like the statistics to be relatively proportionate - if that isn’t the case because more young people commit crimes from one minority classification than other - it doesn’t solve the problem by saying states should find a way of letting these kids out. . . . I haven’t one shred of information that proves there is discrimination here” (§ 5572).

Proponents of this view suggest that over-representation in the system is not the result of racial bias or discrimination inherent in the system (Roscoe & Morton, 1994). According to this line of reasoning, if youth of color commit proportionately more crime than White youth, are involved in more serious incidents, and have more extensive criminal histories, they will be over-represented in secure facilities, even if system decision makers engage in no discrimination.

Although there are some racial/ethnic differences in delinquent behavior for some types of offenses, those differences do not explain the significant over-representation of youth of color in the justice system. Based on extensive self-reporting and interviews, Elliot (1994) concluded that delinquent behavior is a relatively commonplace aspect of adolescence for a large segment of American youth, across the racial divide. While Black youth in his study were one-third more likely than White youth to commit a violent offense by the time they were age 17, these differences were not sufficient to explain the huge difference in incarceration rates between White youth and Black and Latino/a youth: Black youth were incarcerated at 5 times the rate of White youth, Latino/a youth were incarcerated at 2 ½ times the rate of White youth.

Thus, it seems more reasonable to conclude that over-representation is a complex social problem with multiple causes. For example, indicators of low socioeconomic status (such as joblessness, housing density, and poor health care), which are more common among people of color, increase the risk for delinquent behavior among youth of color (see, e.g., Arthur, Mildon, & Briggs, 1990; Fagan, Piper, & Moore, 1986; Miller, 1986; Myers & Simms, 1988; Tonry, 1995).

Studies have demonstrated that youth belonging to a lower socioeconomic class and youth of color are more likely to be detained than other juveniles (McEachern, 1968). They also receive more severe dispositions as a result of stereotyping (McCarthy & Smith, 1986).

In this regard, research by OJJDP’s Causes and Correlates Program shows that the type of community in which the juvenile lives has a stronger effect on likelihood of becoming involved in delinquency than racial characteristics (Roscoe & Morton, 1994). African Americans living in non-disadvantaged areas do not have higher rates of delinquency than Whites living in non-disadvantaged areas (Roscoe & Morton, 1994).

Over-representation also results from law enforcement practices and policies. Police target “high crime” areas, deploying more police to particular neighborhoods. Because high crime areas often correspond with areas of poverty where youth of color live, minority youth come to the attention of the police more often than White youth.

Over-representation also results from bias of decision makers in the system. In an important research effort, Bridges and Steen (1998) analyzed probation officers’ written accounts of juvenile offenders and their crimes and court records about the offenders in three Washington counties. They found pronounced differences in officers’ attributions about the causes of crime by White versus minority youth. Probation officers consistently portrayed Black youth differently than White youth in their written court reports, attributing Blacks’ delinquency to negative individual attitudinal and personality traits, while stressing the social environment in their depictions of White youth. These attributions about youth shaped the probation officers’ assessments of the threat of future crime, and correspondingly their sentence recommendations, since court officials relied more heavily on negative individual attributions than on severity of the current offense or prior delinquency history. Finally, the research found that these attributions are a mechanism by which race influences judgments of dangerousness and sentencing recommendations: Officials in part judge Black youth to be more dangerous than White youth as a consequence of negative attitudinal and personality traits, and therefore impose longer sentences on them.

Of particular concern are law enforcement practices that intentionally rely on race or ethnic identity, including racial profiling. Racial profiling means targeting certain persons to be stopped, questioned, or arrested because of their race or non-criminal behaviors associated with their cultural heritage (see, e.g., Leadership Conference on Civil Rights [LCCR], 2000). Racial or ethnic profiling is discrimination.

Evidence of over-representation serves as a “red flag” that racial/ethnic bias and disparities in the justice system could be prevalent at many important stages of system decision making. It is important to keep in mind, however, that evidence of over-representation is not sufficient to conclude that decision makers in the system are racially biased or engage in discrimination. Far more convincing evidence is provided by data on disparate treatment of youth of color in the system-in other words, evidence that Latino/a youth charged with the same crimes as White youth are more likely to be waived to adult criminal court and receive harsher punishments and longer periods of confinement.

For example, the National Council on Crime and Delinquency analyzed over-representation of youth of color in California (Austin, Dimas & Steinhart, 1992). The report found that Black youth in California were over-represented at every stage of the system, even when statistical controls were applied. Thus, nearly 72% of Black youth referred for felony drug offenses were detained, versus 43% of the White youth charged with the same offense. In addition, 11% of Black youth with violent felony offenses were committed to the California Youth Authority (CYA) in 1989, while only 3% of White youth with similar offenses were committed to a CYA facility. Disparities at the commitment stage existed for every offense category - violent, property, drug, and public order-except misdemeanor drug offenses. The report concluded that the analyses unveiled “a picture of persistent differential treatment for some minority groups after having accounted for prereferral factors such as offense and prior record”.

These findings, among others, provide exceptionally strong evidence that disproportionate minority representation and disparity of treatment are serious and expanding problems. Today, it would be a travesty to conclude that the problem of over-representation and disparate treatment of youth of color in the justice system is not the result, at least in part, of racial bias and discrimination.

Racial and ethnic disparities for youth occur at several major points in the justice system; more importantly, they accumulate over time. The initial disparity at arrest is compounded by disparities that occur later in the process, including the stages of detention, formal charging, adjudication, waiver, and disposition. When added together, these disparities, even if they are relatively small, can produce large effects (National Research Council and Institute of Medicine, 2001). Thus, youth of color have a “cumulative disadvantage” in the system compared to White youth.

Using data from Males and Macallair (2000), Figure 3 illustrates this cumulative disadvantage, showing how, on average, Latino/a youth charged with violent offenses in Los Angeles are impacted over time. Specifically, in Los Angeles in 1998:

· Latino/a youth were arrested 2.3 times as often as White youth

· Latino/a youth were tried as adults 2.4 times as often as White youth

· Latino/a youth were imprisoned as adults 7.3 times as often as White youth

 

Source: Males, M., & Macallair, D. (2000). The color of justice: An analysis of juvenile adult court transfers in California. Washington, DC: Building Blocks for Youth.

5. Study Methodology

A total of 14 states and the District of Columbia were pre-selected for inclusion in this study (see Figure 4). Based upon the proportion of Latinos/as in residence and the rate of change in the Latino/a population, we categorized states in three tiers: (1) states with significant Latino/a populations, that is, those with at least 12% of the population, which is the national average; (2) states with growing Latino/a populations, that is, those whose Latino/a populations had grown by 1-8%; and (3) states with steadily low proportions of Latinos/as. We asked 8 states in the first category (Arizona, California, Florida, Illinois, New Jersey, New Mexico, New York, and Texas), 5 states in the second category (Massachusetts, Michigan, North Carolina, Ohio, and Pennsylvania), and 1 state in the third category (Wyoming) to participate in this study.

Figure 4 U.S. States Surveyed

We recruited states by sending a letter of invitation to the director of the juvenile justice agency for each identified state (see Appendix D for copy of letter of invitation and accompanying consent form). We requested that the Director either return the consent forms and completed questionnaires or provide the name(s) of contact person(s) who could provide the information requested. If the Director did not respond, we initiated a series of follow-up phone calls to obtain the information requested. If the Director or his/her designee did return the completed questionnaire, we made follow-up phone calls if necessary to clarify information provided or to obtain additional information.

The survey requested information on how the state collects information on Latino/a youth in the system, barriers to data collection, data and trends on Latino/a youth in the justice system, and current policies regarding Latino/a youth in the justice system. The survey questions are listed in Appendix E. We also collected data from a variety of other sources listed in Appendix F.

Ultimately, as Table 2 shows, we received usable survey responses from 9 of the 14 states from which we had requested participation, although we received only partial responses from New Jersey and Texas. New York returned our survey, but did not include usable data. We did not receive any response from Florida, Massachusetts, Pennsylvania, Wyoming, or the District of Columbia. Only 3 of the 14 states provided data sets; none of these data sets had information on ethnic subgroups of Latino/a youth.

6. Findings