Copyright 1994 Bergen Record Corp.
A QUESTION OF FAIRNESSBy CHRISTOPHER KILBOURNE
Juvenile justice in New Jersey is fast becoming a contradiction in terms, with the fate of delinquents determined as much by their demographics as by their crimes.
"Too often it is justice by geography, justice by poverty, justice by ethnicity, and justice by gender," said Mark I. Soler, a leading juvenile rights advocate. "All of those factors can be as important as the actual charges against a young person in deciding the outcome of a case."
The proof is in the populations: While minorities comprised one-fourth of the state's under-18 population in 1992 and committed less than half of all juvenile crimes, they accounted for 84 percent of the population in county detention centers and 88 percent in state correctional facilities.
That last figure is now up to 92 percent -- and rising.
"As more and more minority kids lose hope, they are acting in desperation," said Paul DeMuro, a juvenile justice consultant based in Montclair. "Then we act in desperation by locking them up. It's justice by race and class."
The state Supreme Court's Task Force on Minority Concerns reached a similar conclusion in 1992: "The evidence is overwhelming that the structure of the juvenile justice system leads to unjustifiable disparities in the treatment of similarly situated juveniles of different races and ethnic groups."
Even more disturbing is the state's failure to correct the imbalance despite study upon study detailing its scope. Although "action plans" have been formed and a few halting steps have been taken, the inequality worsens.
Not that the problem is unique to New Jersey. Studies conducted in other states, including Florida, Georgia, and Missouri, made similar findings.
"African-American and Latino youth are overrepresented at every level of the juvenile justice system," an American Bar Association committee reported in August.
Looking at the national picture, the committee found that compared with white juveniles who commit the same offense, minority youths are more likely to be arrested, less likely to make bail, less likely to have a lawyer, and more likely to be convicted and imprisoned.
"It's the dirty little secret of the juvenile justice system in this country," said Soler, who heads the Youth Law Center in San Francisco.
The gaping disparities in incarceration rates for urban minority youths compared with their suburban white counterparts violate constitutional guarantees of equal protection and due process, some reformers say.
"There is no question that what goes on is unequal protection," Soler said. The problem, he said, is proving it in court.
Any equal-protection challenge would face the almost impossible task of showing that state laws or officials purposely discriminated against minorities. Instead, activists have chosen to focus on trying to correct substandard conditions at individual facilities.
One such lawsuit, attacking the educational deficiencies at a North Jersey detention center, may be filed by the end of the month, said Newark attorney Lawrence S. Lustberg, who is coordinating the suit. He declined to name the facility.
In many respects, New Jersey's system is really 21 separate county systems that deal with juvenile offenders in very different ways depending upon a county's wealth, racial composition, and law enforcement philosophy.
State and court officials attribute the disparities to a variety of factors, including the system's fragmented structure and the lack of objective standards to guide decision makers at different points in the process. Bias is acknowledged only grudgingly, and usually sloughed off as unintentional.
Others see things differently. "It clearly reflects racism in the system," said Keith Jones, a past president of the New Jersey chapter of the National Association for the Advancement of Colored People.
No one disputes that the system's reliance on local funding for delinquency prevention and treatment programs is at the core of the problem. Urban counties, which have the most juvenile crime, have the greatest demands on their tax dollars.
"The tragic reality is that there is an inverse relationship between need and resources," said Bruce D. Stout, a former assistant director of the state Juvenile Delinquency Commission, who now teaches at Penn State. "Poor urban areas have the fewest resources, while wealthy areas have the most money to spend on programs and the least need for them."
The situation is analogous to the school-funding system struck down by the state Supreme Court in 1990. Although the state constitution guarantees kids a "thorough and efficient education," it makes no promises regarding juvenile justice.
Wealthier counties like Bergen and Somerset provide more treatment facilities for juvenile offenders, but no county provides the array of programs envisioned in the state's Code of Juvenile Justice.
With a paucity of programs and waiting lists for the good ones, judges in urban counties have few sentencing options besides probation or the New Jersey Training School for Boys in Monroe Township, near Jamesburg. And that, Stout said, "is like a choice between an aspirin and a lobotomy."
The upshot, said Camden County Superior Court Judge Robert W. Page, is a "double whammy" for poor, urban defendants: Their counties provide fewer treatment facilities, and their families cannot afford the private programs where judges otherwise could sentence them. "For poor people, there is just less available," he said.
Just ask the Latino boy who was stuck in Passaic County's overcrowded detention center last summer because authorities had nowhere else to put him. At a June 16 hearing before Superior Court Judge Carmen Ferrante, the youth's lawyer said that his client, convicted in connection with a stabbing, had been accepted into a residential program but that no beds would be available until September.
The youth was ineligible for home detention because his mother worked during the day and could not supervise him. "I realize the seriousness of the case," his public defender told the judge, "but it is important that he not spend the whole summer in detention."
Ferrante agreed. "To wait until September is unfair to him," the judge said. "It would defeat the whole purpose of his probation." Frustrated, the judge returned the boy to detention and directed youth services workers to search for another program.
Two cases later, Ferrante ran into the same situation.
"I just want to start the program as soon as possible," the second teenager pleaded. "I want to see my kids, too."
The second boy, also Latino, was the luckier of the two: He was admitted into a drug-treatment program three weeks later. The first youth was not placed in a program until the end of July.
The problem is even more acute in the jampacked juvenile courts in Essex County. "There are more demands on the system, which is being funded less and less as time goes by," said Superior Court Judge Harold C. Hollenbeck.
Hollenbeck has seen both ends of the spectrum, having presided in Bergen County's juvenile court before being sent to Essex County three years ago. Bergen County has separate treatment programs for young sex offenders and arsonists. Essex has one part-time counselor who handles both kinds of cases.
"I've been proposing a sex offender program for Essex County for two years, but I can't get it funded," he said.
DISPELLING THE MYTHS
To some, the root of the problem seems obvious: A disproportionate number of urban minority juveniles are being imprisoned because they commit a disproportionate number of the most serious crimes.
There is some truth in that assertion. An eight-county study by the state Juvenile Delinquency Commission found that more than 20 percent of minority defendants brought to juvenile court in 1992 faced first- or second-degree charges -- the state's most serious -- compared with 10 percent of the white defendants. Similarly, 29 percent of the minority cases involved a violent offense, compared with 20 percent of the cases involving white defendants.
The commission found dramatic differences from county to county in the seriousness of crimes committed. In nearly 65 percent of the juvenile cases in Bergen County, the most serious charge was some form of disorderly persons offense. That was true in less than 29 percent of the cases in more-urban Hudson County.
Still, those figures barely begin to explain Jamesburg's 92 percent minority population. And a commission study that delved deeper into the numbers came up with some disturbing findings.
Researchers found that black and Latino youths charged with first-degree crimes were more than three times as likely to be incarcerated as whites charged with similar offenses. The incarceration rate for less serious crimes was generally two to three times higher for minorities than for white juveniles.
Jailed minority juveniles did not, on the whole, average more prior convictions than white youths jailed for similar offenses.
In fact, black juveniles jailed for second- and fourth-degree offenses have fewer average prior arrests than white juveniles incarcerated for the same degree of offenses, the commission reported. Latino juveniles jailed for first-, second-, and third-degree offenses had fewer average priors than either black or white juveniles.
Researchers looked at a host of other factors to see whether something -- anything -- besides racial bias might account for the disparate incarceration rates. The results, they said, were troubling.
The only significant difference they found was in family makeup. Six percent of jailed white juveniles came from single-parent families, compared with 35 percent of the black juveniles and 29 percent of the Latino juveniles.
The commission concluded that "the disproportionate incarceration of minority youth cannot be adequately explained by relevant legal factors," and that "other factors, generally, fail to explain the differences."
Rather than blaming racism, the commission suggested that the disparity was due to other indirect factors that often "unwittingly impact minorities." Those include the reluctance of predominantly white, rural counties to send their juveniles to state correctional facilities; the lack of alternatives to incarceration available in poorer, urban counties, and a higher incidence of family instability among minority juveniles.
But the commission said that even if there were no intent to discriminate, "the result is no less cruel."
The NAACP's Jones agreed, saying that intent is irrelevant when it comes to racial discrimination: "If you go home and beat your wife every night, it doesn't matter whether you were drunk and didn't mean to do it."
The Supreme Court's Pathfinders Committee, which sets the course for the Family Part of Superior Court was particularly concerned that family instability appears to influence incarceration decisions. "No child should be sent to a correctional facility as a result of factors over which he or she has no control," the committee said.
JUSTICE BY GEOGRAPHY
A juvenile offender's chances of being incarcerated are greatly affected by where he or she lives. In 1992, juveniles arrested in Passaic County were more than 20 times as likely to be sentenced to a state correctional facility than juveniles arrested in neighboring Bergen or Morris counties.
Passaic County imprisoned juveniles at the rate of 31.5 per 10,000, ranking fourth in the state behind Atlantic (36.9), Camden (32.4), and Essex (31.8). At the other end of the spectrum were Bergen, Sussex, Morris, and Hunterdon, which each incarcerated fewer than 1.3 per 10,000 juveniles.
The disparities result from differences in philosophy as much as from differences in the rate or seriousness of juvenile crime. Passaic County, for one, has a reputation for trying to deal with juvenile crime by locking up young offenders. As one public defender said privately, "A lot of these people happen to be minorities."
Although the circumstances of every case and every juvenile are different, some examples of seemingly disparate treatment were observed last summer:
A Latino teenager was brought to Passaic juvenile court from detention, charged with violating his probation by trespassing on private property. The boy's attorney, a public defender, said his client suffered from asthma, head lice, and a pinched nerve in his neck, and that his mother had cancer. The judge returned the boy to detention and ordered him interviewed for a custodial rehabilitative program.
A white teenage girl came to Bergen County juvenile court from home accompanied by her mother. She was charged with violating probation by threatening an elderly woman and trespassing. The judge extended her probation for six months and sent her home. "Have you learned anything from all this?" he asked.
A 17-year-old black girl was brought into Passaic juvenile court from the county detention center. The mother of three children, she was a first-time offender, charged with selling crack cocaine. She was sentenced to two years in the Clinton Reformatory. The sentence was suspended, but she was ordered to perform 100 hours of community service and return to school.
A 15-year-old white boy arrived in Bergen County juvenile court from home, accompanied by both parents. The first-time offender was charged with marijuana distribution and possession of heroin. He was sentenced to one year's probation and assessed a mandatory $1,000 fine.
Some authorities say female offenders encounter a kind of reverse discrimination that can ultimately work to their detriment. The theory is that the initial offenses committed by girls tend to be overlooked or minimized, with the result that they do not receive treatment until they are brought into court facing more serious charges and penalties.
Once in the system, girls have far fewer programs available to them than their male counterparts.
Speaking at a juvenile justice symposium in March 1990, Stout called the inequities in New Jersey's system "a critical problem that must be faced immediately." Today, nearly four years later, he says "nothing has been done to address the problem."
The obvious question is, "Why not?"
"It drives me crazy," said Stout, who hinted that the heel-dragging of state officials and legislators contributed to his decision to leave the Juvenile Delinquency Commission.
A few steps have been taken that officials hope will help, including the transfer last year of the Division of Juvenile Services from the Department of Corrections to the Department of Human Services.The hope is that the transfer, which gave Human Services control over the community-based programs formerly run by Corrections, will give juvenile offenders easier access to the wider array of educational and mental health services provided by Human Services.
Another step officials say might help is the action plan adopted by the state Supreme Court last summer in response to the recommendations of the Task Force on Minority Concerns. Proposals approved by the high court include:
However, the court stopped short of adopting other proposals, most notably the recommendation that the court "set a goal for the Judiciary of reducing the number of minority juveniles incarcerated." That objective might be realized, the task force suggested, by working with county agencies to expand sentencing options, by not relying on a juvenile's family status as a basis for incarceration, and by encouraging judges to recommend placements for juveniles at the time of sentencing.
- Examining laws and rules for any adverse impact on minority youths, and recommending corrective action.
- Requiring that all Family Part judges and court staff receive sensitivity training.
- Consulting with the attorney general and public defender about the possibility of joint studies of discrimination in the system.
- Creating a program to educate the public about the workings of the juvenile justice system and these efforts to eliminate unfairness to minorities.
In rejecting the linchpin of the proposal, the justices said they believed it was unwise and improper for them to adopt any policy that strips judges of sentencing discretion.
The court gave its blessing to the goal of reducing disparity in the treatment of juvenile offenders, but said the problem must be addressed by attacking the causes of the disparity.
The court referred the other elements of the proposal to a conference of the state's Family Part presiding judges for its review and recommendations.
That result does not sit well with juvenile justice reformers, who say the need for action is immediate and that all too often the official response to evidence of discrimination is to form committees or order more studies.
"We knew these facts three years after the JDC [Juvenile Delinquency Commission] started," Ike Hopkins, a Jamesburg trustee and member of the Committee of Black Churchmen, told the Advisory Council on Juvenile Justice last fall. "We don't need to do any more evaluations. All you have to do is go to Newark."
The advisory council, which is charged with seeing that the goals of the Code of Juvenile Justice are realized, may face a rocky road in Trenton.
"Kids don't vote," said Matthew Catania, the veteran public defender in Bergen County's juvenile court. Their parents "tend to be working class -- not wealthy," he said. "They don't have a lot of political pull."
Other obstacles also come into play, Soler said. "When the Legislature is called upon to do something, they want to do something about violence -- something to get tough on crime," he said. "It's not politically popular to get up and say, `We have to reduce the number of minorities in juvenile correctional facilities.' ‘'
When legislators do take action on juvenile justice issues, they consistently fail to provide the funding necessary to give the laws substance, critics charge.
The classic example is the state's juvenile code, which created stiffer penalties for serious offenders and provided a menu of more than a dozen alternative dispositions for minor offenders. However, when the code was enacted in 1984, legislators provided neither the money nor the mechanisms to ensure the creation of the alternative programs. The result was predictable.
"In practice, the alternatives set forth by the Legislature have not been made available to most counties," the Pathfinders Committee reported in 1989. The situation is even worse today: The state Council of Juvenile and Family Court Judges notified Chief Justice Robert N. Wilentz last summer that the lack of alternatives to incarceration has reached the crisis stage.
The system has limped along on a "series of unfulfilled promises," said James Louis, a deputy public defender who spent 18 years on juvenile matters.
"It's a whole lot easier to say that there should be programs than it is to actually come up with resources to provide them. It's an unreasonable expectation to think that the system can work when you are tying both its hands."
Although unequal treatment in juvenile justice systems is a national problem, it has a special urgency in New Jersey, Jones said. "New Jersey is different in that it is one of the most ethnically diverse states in the country," he said. "If you allow this to fester, you are going to pay for it later by seeing violent crime continue to rise."