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Wednesday, July 03, 2013

Delinquent by Reason of Poverty

Many thanks to Dan et al. for welcoming me into the fold.  By way of introduction, I've had a somewhat unorthodox route to legal academia, having practiced as a public defender for a decade (on both the state and federal levels), then starting on the clinical track here at the University of North Carolina at Chapel Hill in 2004, only to switch to tenure track and (gratefully) receive tenure last year.  I'm currently serving as interim director of clinical programs, adding a variety of administrative duties to my plate.  As a result, my perspectives on legal education, scholarship, and related matters may be different than some.  I hope to touch on these topics during the month, but mostly I'll be exploring the issues that I'm particularly passionate about -- juvenile justice policy and reform, indigent criminal defense, and the criminalization of poverty.  About a year ago I started my own blog focusing on these areas, which you may check out here.

For now, I'll introduce a question that I've been struggling with ever since I first started practicing in juvenile delinquency court nearly ten years ago -- why is it that most of the children in the juvenile justice system are poor?  Why are they nearly all from families that are living at or below the poverty level?  As a parent of adolescents, I know that it is surely not because kids from low-income families are the only ones who violate the law, as my own (relatively well-behaved) daughters have committed many of the same types of very minor assaults, larcenies, and disorderly conduct offenses that have led to my young clients being criminally charged, ending up with delinquency records and (sometimes) detained.  I also have come to conclude, based both on my own practice experiences as well as longitudinal studies of children exposed to juvenile court, that when kids are processed through the system, the impact is not benign -- even when the disposition is arguably beneficial.  Instead, the research shows that these children have higher rates of recidivism and are stigmatized in the process.  In addition, potential negative consequences of juvenile delinquency adjudications may be seen in such areas as housing, employment, immigration and higher education as well as enhanced penalties for future offenses.   

Although much has been written (both in legal scholarship and the popular press) about the disproportionate representation of children of color in the juvenile and criminal justice systems, very little has been said about the disproportionate representation of poor children.  While few juvenile courts formally keep track of the income-level of a youth's family, jurisdictions that do have confirmed that nearly sixty percent were either on public assistance or had annual incomes of less than $20K.  Another twenty percent had incomes of less than $30K.  In my practice, I've had the opportunity to experience this first-hand, as one of the counties in which I practice has an overwhelming majority of children who are black and brown in its juvenile courtroom, while the other has a more significant population of white juveniles.  While the numbers show that children of color are disproportionately represented in both judicial districts, they also reveal that the common denominator across the board is socioeconomic status, not race or ethnicity.

In a law review article that came out in 2012 (and in several op-eds and other commentary I've published since then), I attempted to answer the question why.  Why is it that poor children are arrested, charged and prosecuted at higher rates than children of means?  Why are fewer poor children diverted from the juvenile court system than wealthy children?  Why does the standard of proof at trial often seem to depend on the socioeconomic level of the child's family?  Why do so many poor children violate the terms and conditions of their court-imposed probation?  Why are so few middle- and upper-class kids sent to detention?  The short answer is that the traditional focus of juvenile court on the needs of destitute youth (something I call, "needs-based delinquency") is a phenomenon that continues to be perpetuated through the structure and culture of the modern juvenile court and that the most common points of entry into the delinquency system (the child welfare system, public schools, retail stores, and neighborhood police) target poor children rather than ones of means.  The long answer is contained (at least in part) in this first article, which will be elaborated upon in subsequent work, including a new piece focusing on the juvenile court intake process that I'll discuss in another post. 

I welcome your comments.   

Posted by Tamar Birckhead on July 3, 2013 at 09:00 AM in Blogging, Weblogs | Permalink


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Geoff: Thanks for your kind words about my work. I definitely share your cynicism about the likelihood for any fundamental change in attitude in this context. It's particularly disheartening to read the history of reformers who established the New York House of Refuge in the early nineteenth century. At that time, poverty and crime were virtually synonymous -- even philanthropists believed that immorality caused poverty and that "pauperism" ripened into criminality. It's part of the American heritage, unfortunately....

Posted by: Tamar Birckhead | Jul 8, 2013 9:58:56 PM

Interesting subject, and one that resonates here in the in the UK (althought thankfully not the bit about whole-life sentences for kids).

Enough people need to believe that poor people/people of colour are somehow less than themselves, to make it worthwhile for society to encourage the conceit by de facto differential treatment at early exposure to the criminal justice system. Lawmakers could change this, I think --- but a powerful disincentive to do so would be concern for their own positions vis a vis the ballot box.

It would need laws to effect change; but that won’t happen.

Meanwhile, again, human nature being what it is --- we would expect folks with those sorts of authoritarian/prejudicial attitudes, to gravitate to police and prosecutorial services as career choices.

It’s great that your marvellous work in the field will make the questions about fairness difficult to dodge. But dodged they will be.

Posted by: Geoff | Jul 7, 2013 1:10:33 PM

Rebecca: Thanks so much for your comment and your kind words about the Juvenile Justice Blog. Yes, absolutely -- as you say, a "lack of social and cultural capital" is also a significant factor here. I, too, grew up in a home with little material wealth (one-bedroom apartment in working-class town, mom on couch in living room), yet we had the capital of which you speak as well as a safety net in the form of grandparents of means living nearby. I was a meek kid, but if I had gotten into any "trouble," it would not have led to juvenile court.

Your mention of neural reward pathways and lack of fear among certain children is, perhaps, consistent with social science research showing that white children admit guilt more readily at the intake stage of the juvenile court process than children of color. Of course, whether this is a function of the fact that children of color are more likely to be arrested and therefore more likely to be innocent of criminal charges is unclear. Reluctance to admit one's guilt prior to the filing of formal charges may also result from understandable distrust of court officials or the system itself as well as a lack of fear of the consequences of not complying with authority. Donna Bishop has an excellent chapter that touches on these topics in the book, Our Children, Their Children: Confronting Racial and Ethnic Differences in American Juvenile Justice (2005).

You may also be interested in a fascinating article by Michele La Vigne and Gregory Van Rybroek, "Breakdown in the Language Zone: The Prevalence of Language Impairments among Juvenile and Adult Offenders and Why it Matters," 15 U.C. Davis Journal of Juvenile Law and Policy 37 (2011), in which they review research finding that the people overrepresented in the criminal and juvenile justice systems, including those who grew up in extreme poverty, exhibit uncommonly high rates of communication and language disorders or impairments. Some studies, in fact, have shown that the rate of severe disorders within adult prisons is at least 4 to 5 times higher than the general population, and that the rate is even higher within juvenile prisons. You can imagine the potential implications of language disorder for defendants (young and old), especially when combined with a lack of social/cultural capital. As the authors write, "These communication difficulties threaten his vital constitutional rights to be competent, to assist with his defense, to due process, and to make knowing and intelligent decisions about which rights to waive and which to assert...."

Thanks again.

Posted by: Tamar Birckhead | Jul 4, 2013 10:58:52 AM

I have a theory which supports yours but which might shed light on why these processes are so automatic and ingrained. My hobby-horse is the theory that it's not just poverty, but a lack of social and cultural capital as well which are indicators (to police, retailers, schools etc.) of delinquency. What you wrote about middle class children committing the same crimes really spoke to me.
When I was growing up, we were poor, but had loads of cultural and social capital. My sister and a friend were picked up for shoplifting and given a caution. The way they spoke, and dressed and behaved, and their obvious dread and fear of the police would have been huge visible factors. We were poor, but they seemed middle class enough, so they were let off.
Another thing is that children whose upbringing hasn't reinforced neural reward pathways (through praise etc.) also are desensitized to fear. A child who is not fearful 'enough' of police would present as delinquent and 'guilty'.

So I think there are outward appearances which are not completely tied to material poverty which could be hindering children in their own defence, and some of these are 'treatable' without money (in a perfect and wonderful world!)

All just thoughts I am throwing out there. I love your blog. I (JJ Blog). I live in Australia so my views might not fit with your culture.


Posted by: Rebecca Wolkenstein | Jul 4, 2013 1:31:33 AM

Anon: Thanks for commenting and for referring me to the book (and it's from UNC Press, no less!). I will certainly check it out. And, yes, I agree with you completely that socioeconomic status can be a determining factor in a family's attitude toward and reliance upon the court system. Compare, for example, the facts of State v. Damian R., 591 S.E.2d 168 (W. Va. 2003), in which a low-income single mom goes to the county prosecutor for help managing her 14-year-old son, with Ryan v. Ryan, 677 N.W.2d 899 (Mich. App. 2004), in which an upper-middle-class 16-year-old girl with disciplinary problems is sent by her parents to a private girls' boarding school in Utah in lieu of court action.

Posted by: Tamar Birckhead | Jul 3, 2013 7:16:56 PM

P Klym: Thanks for commenting. I, of course, am deeply concerned about the disproportionate representation of people of color in both the juvenile and criminal justice systems -- it's something I've witnessed first hand as I've defended poor people charged with criminal offenses over the past 20 years. My point was only that in terms of traditional legal scholarship, the predominance of low-income families in juvenile court is something that has rarely been explored, and it is a trend that I'm still struggling to understand both as a practitioner and as a teacher/scholar. And, yes, I agree that often these categories overlap, but there is also value in looking narrowly at the socioeconomic piece when determining the structural and institutional causes for this phenomenon.

For instance, one main feeder into the delinquency system has long been the child welfare system, producing a high percentage of "crossover youth." Why do adolescents who are exposed to traumatic events, including victims of abuse, neglect or other maltreatment, crossover into delinquency court at such high percentages and what role does poverty play in perpetuating this major point of entry? Research indicates that child protective service agencies (CPS) service low-income families at higher percentages than families of means, despite the fact that rates of child abuse and neglect are similar across socioeconomic lines. Why? One theory is that suspected child maltreatment in low-income families is reported more regularly to CPS because the poor typically have more contact with and are under greater scrutiny from individuals who are legally mandated reporters. Likewise, another common crossover group into the delinquency system are low-income children who are adjudicated by the family court as "status offenders" for being runaways, truant, or "ungovernable/undisciplined." Why? Because poor families often have no safety net and lack the resources to secure private assistance/treatment, so these parents seek out the "help" of the court system.

Only once we've identified these trends and seen the results -- courtrooms filled with low-income children (who are mostly black and brown) charged with criminal offenses -- can we begin to address ways to reform the system as a whole. Several strategies that I explore in my article are modeled on those that have been developed for confronting the problem of disproportionate minority contact, as I recognize that these cases of overrepresentation are related and often interwoven.

Posted by: Tamar Birckhead | Jul 3, 2013 2:46:15 PM

This book might be of interest for historical context:
Crimes against Children, by Stephen Robertson
It is not about juvenile delinquency per se, but has a lot of interesting historical material on differences between working-class and middle-class views of and uses of the courts.

I also recall at some point coming across the idea that working-class parents are more likely to "use" the state as a disciplinary resource, although I am not sure where I read that, and if so it is probably more explanatory of more serious cases than what the typical youthful misbehavior that you mention (i.e. working-class parents may have no choice but to call the police in situations of a serious drug or behavioral problem, where a wealthy parent might instead send a child to private rehab or residential facility). Still, that leads to its own set of questions that are also relevant for adults (I'm thinking of drug courts, etc.), which is why often the only way for very poor people to get help for certain problems is to expose themselves to criminal liability.

Posted by: anon | Jul 3, 2013 1:08:25 PM

Of course you are right. Yet claiming that much has been written about the disproportionate amount about minority kids in the system rather than writing about poor kids almost obscures the point. Clearly, the issue is one and the same. Poor kids that do not have money for lawyers, or sitters to supervise them, or stable homes with enough food on the table and money for leisure activities to keep them out of trouble will be the ones in trouble and end up in court rather than diverted. In many places the poor demographic group overlaps greatly with minority populations. Not that rich black kids will not be over-represented in relation to rich white kids but it certainly will not be to the same extent. I think most the people that write about minority over-representation recognize this. Let's just say, poor-kids, predominantly minorities, are over-represented in juvenile justice proceedings that greatly favor those who can afford lawyers, much like the adult counterpart.

Posted by: P Klym | Jul 3, 2013 10:51:50 AM

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