Learn about the context of restorative justice diversion by considering the origins of youth criminalization in the United States, the harms caused by youth criminalization, and by the racial and ethnic disparities in the system.
This step asks you to learn about the landscape of youth criminalization in the US today and how the nation’s history has shaped it. Racial and ethnic disparities, as well as the systemic harm caused to youth, families, and communities, will be outlined.
The system of mass incarceration and criminalization in the United States harms youth long before they reach adulthood. Taken in total, a staggering 5.7 million people are under the control of the US criminal legal system. Nearly 2 million people are incarcerated within federal prisons and jails, state prisons, and local jails, while an additional 3.7 million are enmeshed in the systems of probation and parole.. According to the Annie E. Casey Foundation’s policy report A Shared Sentence Policy, more than 5 million children have had a parent incarcerated at some point in their lives.
Over 424,000 youth under the age of 18 were arrested in the year 2020 alone; while this is still a staggering number, it is down 80% from 2.1 million arrests at the turn of the century. Despite this progress, the US still leads the world in youth incarceration, and 1 out of every 8 arrests are young people charged as if they are adults. The Youth and the Juvenile Justice System: 2022 National Report stated that in 2019, there were an estimated 53,000 youth younger than 17 tried in adult criminal court. In the youth criminal legal system, approximately 47,000 children in the US are incarcerated in youth facilities and residential treatment facilities. Common drivers of youth arrest and incarceration are status offenses, meaning conduct that would not be considered a crime if it were committed by an adult. Examples of status offenses include truancy, running away from home, violating curfew, underage use of alcohol, and behavior that adults deem as unruly (legally referred to as general “ungovernability”). These systems of control and punishment stifle childhood development through practices that traumatize and dehumanize.
Beyond incarceration, many youth who touch the youth system end up on probation. According to the Office of Juvenile Justice and Delinquency Prevention (OJJDP), in 2019, over 247,000 youth cases resulted in system involvement via probation. Probation is not an alternative to incarceration, as probation violations are among the primary drivers of youth incarceration.
Youth of color make up the overwhelming majority of youth swept into the system. Data from The Sentencing Project’s Racial Disparities in Youth Incarceration Persist shows that between the years of 2011 and 2021, even as youth incarceration has been cut in half, racial and ethnic disparities (RED) remain essentially unchanged, for Black and American Indian youth. Before we delve too deeply into how youth of color are disproportionately targeted and negatively impacted by the criminal legal system today, it is important to first understand our nation’s history, particularly in regards to the locking up of youth of color.
The historical roots of holding youth of color in confinement run deep in the United States, according to the Burns Institute report, Repairing the Breach: A Brief History of Youth of Color in the Justice System. Puritans coming from Europe had strict notions of how children should behave and what punishments were necessary should they ‘act out.’ During this same period, both African children brought over in bondage and sold into slavery and Native American children were viewed as less than human and unworthy of governmental or societal protection. Beginning in 1825, the first forms of youth detention centers were called “houses of refuge,” and were initially not even open to children of color, as people of color were considered “irredeemable.” However, that changed within a few decades and quickly resulted in significant disparities along racial lines. From the beginning of youth detention in the U.S., Black children were admitted to detention centers at younger ages and, in comparison to white children of the same sex, served longer sentences and received harsher treatment.
In the South, bondage and forced labor of Black children continued on long after the Emancipation Proclamation ended the practice of legalized slavery in the US. The Freedmen’s Code of 1866 provided former slaveholders a way of forcing newly-freed Black children into ‘apprenticeships’ under their supervision until adulthood. Further, the 13th Amendment provided a way for slavery to continue through the mechanism of incarceration. Convict leasing involved mass arrests and incarceration of Black people and then ‘leasing’ them out for financial benefit to companies who used them for hard labor in strenuous, and often fatal, conditions. According to an 1890 census analysis, when convict leasing was rampant, youth made up more than 18% of all Black people who were incarcerated.
In the late 1800s, racist pseudoscience used to predict criminality targeted youth of color, particularly from Black, Filipino, Native American, and Mexican communities. As described in the Repairing the Breach: A Brief History of Youth of Color in the Justice System report, they experienced disproportionate institutional confinement and even underwent forced sterilizations. During this same period, Native American children were forcibly removed from their families and placed into Indian boarding schools to be assimilated into Western culture. This historical trauma continues to impact youth justice on reservations today.
All of these systems of confinement and cultures of racist stereotyping were replicated when the nation’s first juvenile court opened in 1899 in Chicago, Illinois. Immediately, Black youth were overrepresented in court caseloads and a stark disparity emerged between the resource-rich facilities for white youth and those for Black youth. The practice of sending Black children to adult prisons thrived as well. This inequality negatively impacted communities of color by tearing families apart, and it propped up racist national narratives around youth of color being predisposed to criminal behavior.
All this gave rise to the ‘superpredator’ myth of the 1980s, which drastically ramped up youth incarceration and the presence of law enforcement at schools with majority students of color. For more information on how the legacy of slavery has shaped mass incarceration and disparities today, watch the documentary 13th or the short video below, Jim Crow Juvenile Justice created by Youth First Initiative.
Our nation’s history of deciding which children are valued has led to the significant racial and ethnic disparities that continue to undergird the juvenile legal system to this day. Between 2000 and 2020, even though the rate of youth incarceration decreased, significant racial disparities in incarceration persisted. Nationwide, Black youth are nearly five times as likely as white youth to be incarcerated, American Indian youth are three times as likely, and Latinx youth are 27 percent more likely. These kinds of disparities exist at every step of the juvenile legal system; youth of color are more likely to be surveilled, more likely to be arrested, more likely to have their cases referred to juvenile court, more likely to be prosecuted, and, finally, more likely to be sentenced for exhibiting the exact same behaviors as white youth. For diversion specifically, research shows that youth of color are far less likely to be diverted from court than their white peers, despite studies finding that diversion is more effective and developmentally appropriate than court.
Self-reported data in the Center for Disease Control and Prevention’s Youth Risk Behavior survey suggest that youth of color and white youth have similar rates of engagement in risky and harmful behaviors and activities that can lead to justice involvement. Disparities persist for many reasons, including residential segregation – with youth of color living in heavily policed neighborhoods where behavior that would be ignored in predominantly-white neighborhoods is criminalized. Residential segregation leads to school segregation, with youth of color attending schools where misbehavior is treated as a disciplinary or policing issue. Similar behavior in a predominantly-white school would often be responded to with more support and services. Center for Policing Equity’s research paper The Essence of Innocence found that Black children are often treated as adults by age 13, whereas white youth are not expected to be fully responsible for their actions until well into their late 20’s.
LGBTQ+ youth are also disproportionately impacted by the juvenile legal system as outlined in the Sentencing Project’s 2022 report Incarcerated LGBTQ+ Adults and Youth. They are more than twice as likely to end up in juvenile detention; in 2019, 20 percent of youth in juvenile detention facilities identified as LGBTQ+ while only making up 9.5 percent of the nation’s overall youth population. They are also more at risk of harassment, emotional abuse, physical and sexual assault, and prolonged periods spent in isolation while incarcerated. Furthermore, the 2017 report, Unjust: LGBTQ Youth Incarcerated in the Juvenile Justice System, reported that 85-90 percent of incarcerated LGBTQ youth are youth of color.
Research has shown that the juvenile legal system frequently has the opposite impact of its stated intention of rehabilitation. The removal of a young person from their family, community, and support networks is traumatic and inhibits positive development. Further studies have shown that the vast majority of children who are arrested will naturally grow out of behavior that is criminalized and transition well into adulthood without any contact with the juvenile legal system.
Lengthy out-of-home placements interrupt a young person’s education, and once incarcerated, many young people have difficulty returning to school. The longer a youth is in an out-of-home placement, the longer they are disconnected from their family, their community supports, and their educational pursuits. In addition, practices such as strip searches, physical restraints, and physical abuse can result in severe trauma that makes reintegration in family, school, and community a massive, often insurmountable struggle post-detention.
The 2023 Sentencing Project report, Why Youth Incarceration Fails: An Updated Review of the Evidence, firmly states that incarceration does not reduce delinquent behavior, it impedes young people’s success in education and employment, and it does lasting damage to young people’s health and wellbeing. If you’re interested in learning more about how our current punitive system harms youth and communities, please refer to Annie E. Casey Foundation report No Place for Kids: The Case for Reducing Juvenile Incarceration, Juvenile Law Center’s report Broken Bridges: How Juvenile Placements Cut Off Youth from Communities and Successful Futures, Burns Institute’s Stemming the Rising Tide: Racial & Ethnic Disparities in Youth Incarceration & Strategies for Change, and The Future of Youth Justice: A Community-Based Alternative to the Youth Prison Model.
Absorbing these statistics and grappling with the consequences of youth criminalization can be a heavy experience. We should not look away from this painful reality; indeed, we need to first listen to the voices of young people who are directly impacted by these systems. Watch the video below, Youth Lead the Way: A Call for Community Over Incarceration, to hear young people call for community-based solutions.
Despite recent historic reductions in youth incarceration, the United States remains dedicated to carceral responses to youth harm-doing. Without building the infrastructure in communities to respond to harm when it occurs, we remain at risk of increasing youth criminalization. Racial and ethnic disparities have also been stubbornly persistent, in every state, over decades; and call on us to do something radically different. A growing body of research reveals that community-based alternatives to incarceration, such as the restorative justice diversion (RJD) model outlined in this toolkit, are more successful in supporting children to thrive and in reducing recidivism. You will read more about the proven results of RJD in the evidence section of the toolkit. Read on to the next section to learn more about the impact of the current criminal legal system on people harmed.
LEARN about youth criminalization through reading this section and accessing other resources
WATCH the documentary 13th
WATCH the short video Jim Crow Juvenile Justice
WATCH the short video Youth Lead the Way: A Call for Community Over Incarceration
