The American juvenile justice system is characterized by the overrepresentation of youth of color that is particularly acute for Black children. Although the census of youth in the juvenile justice system overall has declined dramatically over the past 2 decades, the Black-White gap in rates of youth arrests and incarceration have actually increased by an average of 15% (Rovner 2016). Federal and state governments, along with progressive philanthropic foundations, continue to invest millions of dollars into addressing Disproportionate Minority Contact (DMC) in the juvenile justice system. However, these strategies have had only sporadic success in reducing the overrepresentation of Black youth at every stage of the juvenile justice system (National Juvenile Justice Network 2014).

Overrepresentation refers to both racial disproportionality (e.g., rates of criminal justice involvement do not mirror general population rates) and racial disparity (e.g., the legal system sentences or treats Black youth unequally compared to a reference point, typically White youth) (Fong et al. 2014). Explanations posed for overrepresentation of Black youth include implicit and explicit biases by system actors (i.e., the police; district attorneys, judges) (Fader et al. 2014), school policing and harsh discipline practices that target Black children (Hughes et al. 2020), and over-surveillance and criminalization of “normal” youth behaviors in Black communities (Henning 2012). All of these explanations are backed by complex bodies of evidence and theory.

In this study, we extend this work to examine how the criminalization of younger children (i.e., under age 12) may be a launching point for racial overrepresenation. This is an important area to research in part because policy solutions are available to address this problem. These policies include state minimum age laws, which uniformly exclude youth under a given age from juvenile justice jurisdiction, thereby preventing arrest, prosecution, adjudication, and incarceration. In the United States, there is no nationwide standard or statute regarding the minimum age of juvenile justice jurisdiction. In the majority of American states, the juvenile codes, some of which were developed at the founding of the juvenile courts in the early 1900s or before, determine the minimum age at which a child can be processed in the juvenile justice system or held legally responsible for a violation of the law. The United Nations Convention on the Rights of the Child long recommended a minimum age of 12, but now recommends a minimum age of at least 14 for juvenile justice jurisdiction (Gordon and Fitz-Gibbon 2019).

As of October 2020, 28 American states do not have a minimum age law, meaning that subject to fulfilling state requirements around competency to stand trial and capacity to willfully commit a crime (Abrams et al. 2020), a child of any age can be prosecuted in juvenile court. The remaining states have minimum age laws ranging from age 6 to 12. Due in part to the vast differences in state laws regarding minimum age boundaries, a growing movement has emerged to keep younger children out of the juvenile justice system though minimum age laws (National Juvenile Defender Center 2020). Minimum age laws in the USA were relatively static until 2018 when California established a minimum age law of 12 (with some exceptions) and Massachusetts raised their minimum age of juvenile justice jurisdiction from 7 to 12 without exceptions. Since then, Maryland and Utah have raised their minimum age to 12 and as of October 2020, six states legislatures have minimum age bills under consideration (Tolliver, Abrams, and Barnert, in press). 

While minimum age laws are currently a point of policy debate, it is important to understand if they may be a viable leverage point to intervene in the overrepresentation of Black youth. Hence, our research questions, to be addressed though an analysis of quantitative and qualitative data collected in the state of California, are as follows:

  1. (a)

    What is the scope and magnitude of the overrepresentation of Black children under age 12 at various stages of the juvenile justice process?

  2. (b)

    How do stakeholders in California’s juvenile justice system describe the problem of overrepresentation of Black children?

  3. (c)

    What alternatives to juvenile justice involvement can address the overrepresentation of Black children in the juvenile justice system?

Literature Review

In 2018, the juvenile courts in the United States processed nearly 750,000 new cases, including 27,500 children under age 12 (Sickmund et al. 2020). Justice system involvement for children under age 12 evidences stark racial disproportionality for Black children. Of the total cases for children under age 12, 35% were Black, although Black youth comprised only 15% of the child population (Sickmund et al. 2020). By comparison, White children comprised 50% of cases under age 12 and 75% of the child population (Sickmund et al. 2020). This same pattern of disproportionality pattern continues at older ages in that Black youth represent 34.7% of juvenile cases over age 12 (Sickmund et al. 2020).

In addition to Black children, Hispanic/Latinx and Native American children are also overrepresented at different stages of the juvenile justice system, varying in levels of disproportionality across US states (Rovner 2016). In this paper, we focus primarily on Black children because they are the most grossly and consistently overrepresented at all stages of the system (Rovner 2016). Moreover, a recent report on national data collection systems found that state juvenile justice data do not count Hispanic/Latinx youth in ways that are consistent or transparent (Diaz et al. 2020); often lumped together with “youth of color” more generally.

The Carceral Continuum

In order to interrupt the overrepresentation of Black youth in the juvenile justice system, it is important to target the stages of processing where differential treatment might occur. We use the term “carceral continuum” (Shedd 2011) to refer to the flow of decisions made from the moment of reporting a potential illegal activity through the decision to prosecute, sentence, and/or incarcerate a young person. Each stage involves some degree of discretion by system “actors” that can lead to overrepresentation. In this literature review, we use the terms “disproportionality” or “disparity” when the authors use these terms, and otherwise use “overrepresentation” to encompass the study of racial inequities along the carceral continuum.

School to Prison Pipeline

The carceral continuum for younger children tends to begin with academic discipline, where schools punish Black children more harshly than White children, and police and school resource officers disproportionately arrest Black youth on school grounds. Often termed the “school to prison pipeline,” policies leading to disproportionate arrests for Black youth include suspension and expulsion, increased policing on school campuses, and referrals to law enforcement directly from schools (Tolley 2020). In 2015–2016, for example, Black students comprised 15% of the total student population but 31% of students referred from schools to law enforcement (US Department of Education 2018). Schools administer the highest rate of punitive school discipline practices with Black male students, often coinciding with factors such as student poverty and learning disabilities (Losen and Martinez 2013).

Moreover, research has found that the overrepresentation of Black youth in school discipline starts as early as preschool (Skiba et al. 2011), as teachers and principals single out Black children for minor or normal behaviors such as disrespect, loitering, and excessive noise (also called “willful defiance”). In one major study of racial disparities in school discipline, Rocque and Paternoster (2011) found that beginning in elementary school, schools assign Black children more disciplinary infractions than children from all other racial groups, irrespective of classroom factors, school environment/context, and presenting behaviors. This robust study concludes that racial bias on the part of school personnel fuels the school to prison pipeline.

Arrest

The decision to arrest a child, rather than warn a child, bring them home, or decide not to pursue an incident, is another discretionary point where overrepresentation of Black youth is particularly acute. In 2017, more than half (52%) of youth arrests in the USA involved Black youth, compared to 16% of the overall youth population aged 10–18 (Puzzanchera, 2019). By contrast, 45% of youth arrests were White (even though this data source combines Hispanic with White), compared to 75% of the population. This overrepresentation is notable because arrests are what launch a trajectory of decisions along the carceral continuum.

Young Black children are more likely to have had police contact, including arrests, by eighth grade than White youth, irrespective of self-reported delinquent behaviors (Crutchfield et al. 2012). Moreover, these earlier contacts (i.e., before eighth grade) lead to even wider Black-White racial disparities in system contact by 10th grade, irrespective of self-reported behaviors (Crutchfield et al. 2009). Using the National Longitudinal Study of Adolescent to Adult Health (Add Health), an unrelated study found that the neighborhood racial composition accounted for the Black-White gap in rates of juvenile arrests and that self-reported behaviors were again insignificant (Gase et al. 2016). Both studies thus point to “over-surveillance” as the cause of overrepresentation of Black youth in US arrest rates as opposed to youth behaviors.

Prosecution

Once an arrest or referral to the juvenile court has been made, the decision to file charges rests with a district attorney’s office based often on the police report and charge offense. The decision to prosecute a child signifies a point of discretion where diversion, dropping a case, or any other number of alternatives might come into play. From 2000 to 2010, the rate at which cases that were referred to the court were petitioned for formal processing was 18% greater for Black youth than for White youth (Puzzanchera and Robson 2014). However, the causes of these differences are unclear. In a review of over 150 studies, criminologist Donna Bishop (2005) argues that while factors such as severity of arresting charge and/or the presenting circumstances may explain part of the racial gap in filing formal charges, being Black still puts a child at greater risk of formal processing relative to being White.

Other studies have found that race interacts with other factors, including socioeconomic status, prior charges, and family variables (e.g., family history of incarceration) to produce disparities between Black and White youth in the decision to file charges (Freiburger and Jordan 2011). Importantly, both charging offense and detention upon arrest (a decision made by the arresting officer) interact with race to produce disparate rates of prosecution for similar charges (Leiber and Fox 2005). It is important to note that the decision to file a petition is hence connected to early decisions made by the arresting officer(s) and the district attorney.

Adjudication and Sentencing

When a child is petitioned in juvenile court, the bulk of the adjudication (i.e., upholding a charge, which is equivalent to an adult conviction) and sentencing decisions reside with a judge. These disposition decisions take into consideration the child’s age, maturity, charging offense, probation assessments, and reports by the district attorney, police, school records, and family participation in the proceedings. According to national statistics, judges are 9% less likely to adjudicate Black youth compared to White youth in court, yet still judges are 21% more likely to punish Black youth with an out of home placement (Puzzanchera and Robson 2014).

Out of home placements include correctional facilities, group homes, and other court-ordered placements. The Sentencing Project (2017) reports that 43% of youth held in such facilities were Black even though they are only 16% of the youth population. Nevertheless, the literature lacks agreement about the mechanisms contributing to this high level of disproportionality. Once a case reaches the sentencing phase, the direct relationship between the race of the child and the sentence is often mediated by other factors such as charging offense, having been in secure detention while awaiting trial, and juvenile record (Davis and Sorensen 2013; Leiber 2013; Leiber and Peck 2015; Peck and Jennings 2016). In other words, when a young person’s case reaches this stage of the carceral continuum, a defendant’s race (and specifically being Black) factors less prominently into sentencing decisions. This may be in part because layers of institutional racism have already contributed to a young person reaching this phase in the first place; or perhaps also due to more established sentencing guidelines.

Summary and Significance

In sum, there are multiple pathways to and components of the overrepresentation of Black youth in the juvenile justice system, and meta analyses concur that these gaps accumulate over early, rather than later, stages of processing (Bishop et al. 2010; Engen et al. 2002; Development Services Group 2014). Quantitative research has attempted to extract mechanisms through which racial disproportionality and disparities occur. Multiple explanations exist at different stages of the carceral continuum, but all lead to acute inequities for Black children.

This study examines rates of racial disproportionality, relative to White youth, among younger children (under age 12) in the state of California at various points in the carceral continuum. Following this analysis, we then examining the views of diverse stakeholders regarding the causes of overrepresentation and potential policy solutions. In doing so, this study builds on the knowledge base around the overrepresentation of Black youth in the carceral continuum and the potential for policies to address this longstanding social problem.

Method

The study analyzes quantitative and qualitative data gathered through a research study on young children in conflict with the law in the state of California (Abrams et al. 2018). We utilized the following research methods and data sources: (a) quantitative analysis of California state juvenile crime data to measure potential overrepresentation weighted against state census data of the California youth population; and (2) analysis of semi-structured interviews with stakeholders in the California juvenile justice system to understand their views on overrepresentation. Data were collected prior to California’s introduction and implementation of California Senate Bill 439, the state law that excludes children aged 11 and under from the juvenile justice system under most circumstances. Additional methodological details can be found in a prior article (Abrams et al. 2018; Abrams et al. 2020) and summarized below.

Analysis of State Juvenile Justice Data

Upon completion of a formal data request by the researchers, the California Department of Justice (DOJ) supplied data on all cases involving children under age 12 who were referred for delinquency petitions from 2010 to 2015. The DOJ collects data through the Juvenile Court and Probation Statistical System (JCPSS) on the number of children referred to a Probation Department pursuant to 601 and/or 602 of the California Welfare and Institutions Code Sections 601 and 602 (601 or 602 W&I). The data contained any referral to a probation department that requires an expenditure of staff time and/or resources (including any application for petition, or other documentation requesting services pursuant to 601 or 602 W&I). Data quality is high as counties submit data monthly to the DOJ and are decertified if: (a) data are missing for 3 months, (b) the error rate exceeds 3%, or (c) the agency reports < 25% of their average for the 3 months in a 12-month period without a credible explanation (California Department of Justice 2013). The DOJ coded cases into 19 race/ethnicity categories and then collapsed those into the following six categories: Asian/Pacific Islander (API), Black, Hispanic, American Indian, White, and Unknown.

The DOJ data from 2010 to 2015 contained 8029 listed offenses for 6330 children under age 12 as a child could receive a single referral with multiple offenses. We examined the data on a per child basis, rather than per referral. In addition, if a child had more than one incident at different times, we included each child incident. The children were 1.1% American Indian, 3.6% API, 23.2% Black, 44.8% Hispanic, and 27.3% White and were 18% female and 82% male. The charge offenses were 35% felony, 57.7% misdemeanor, 0.1% other, and 7.1% status offense.

Outcome Variable

Outcome variable definitions were specified in the DOJ dataset. Referral to probation was defined as when a child was brought to the attention of the county probation department for alleged behavior under California Welfare and Institutions Code Sections 601 and 602. Petition filed indicated a formal presentation to juvenile court of information surrounding the alleged offense by a child. Wardship status meant the court took custody and control (although not necessarily physical custody) of the child. This was more than court-ordered supervision.

Analytical Approach

We used IBM SPSS Statistics for Windows, Version 21.0. We first calculated descriptive statistics to summarize the study population characteristics and distribution of outcomes in our sample. Next, we gathered California census data to provide a comparison for the racial/ethnic distributions to our sample. For each of the outcome variables, we used the California population data to calculate rates of occurrence per 100,000 children, dividing the annual average for each outcome for each race/ethnicity by the number of total children of that racial/ethnic group living in California in 2012. We multiplied that number by 100,000 to create the rate. California population data were retrieved from the Office of Juvenile Justice and Delinquency Prevention (Puzzanchera et al. 2020). We used the year 2012 to determine the proportion of children in each racial/ethnic group in the general California population because 2012 was in the middle of the studied time period. White children comprised 28%, Black children 6%, Hispanic 53%, API 13%, and American Indian < 1% of children in 2012.

Third, to test the differences between the incidence rates for each of the outcome variables by race/ethnicity, we performed two sample tests of incidence rates with the White children as the reference group. We focused our analysis a priori on comparing each racial/ethnic group to the White children because this is the main relationship of interest when assessing disproportionality. We used a two-tailed test because it was possible that the observed differences could reflect either more or less legal system involvement for the racial/ethnic groups. Fourth, to determine the average annual rates from the prior decision point, we divided the annual average for each outcome for each race/ethnicity by the number of children of that racial/ethnic group who had experienced the prior decision point. We multiplied that number by 100 to create the rate. As planned a priori, we then performed two sample tests of incidence rates with the White children as the reference group to test whether any racial differences in incidence rates between each racial/ethnic group and the White children were statistically significant. We did not control for other possible factors (e.g., gender, charge) due to the small size of the sample. Privacy limitations with children in the criminal legal system constrained us to de-identifiy data, preventing linkage to the other potentially informative datasets, such as child welfare status.

Semi-structured Stakeholder Interviews

As detailed in a prior paper (Abrams et al. 2018), we purposively sampled key informants from three large California counties for participation in semi-structured interviews conducted via telephone. The chosen counties were located in three distinct geographic regions of California (southern, central, and northern) and were demographically diverse. According to 2019 census data, the southern and central counties have slightly higher percentages of Hispanic/Latinx residents and equivalent percentages of Black residents compared to California as a whole, while the northern county has a lower percentage of Hispanic/Latinx and Black residents, an higher percentages of White and Asian residents compared to the state (The United States Census 2019).

In each county, we purposively sampled key informants in the following roles: juvenile court judge (2 participants), district attorney (4), public defender or youth advocate (2), probation chief or juvenile division director (5), and police chief (2), achieving a response rate of 70% for requests for participation sent via email. The total number of key informants interviewed across the three counties was 15.

The interview guide contained questions aimed at understanding how counties handled young children (i.e., children under age 12) who came to the attention of law enforcement. Interviews were audio recorded and transcribed. To identify and understand participant perspectives on racial overrepresentation among young children along the carceral, we developed a list of terms that were most likely to be mentioned when participants were discussing racial differences (Rovner 2016; Diaz et al. 2020). We then coded all of the interviews for the following terms and their derivatives: brown, Black, afric*, latin,* hispan*, race, raci*, ethnic, dispar*, equal, color, bias. Of note, the interview guide did not specifically probe racial overrepresentation; instances where it was discussed spontaneously arose from participants. To synthesize findings across stakeholders, we then compiled the instances when the terms around racial differences were utilized. Next, we reviewed the compiled coded sections, noting the participants’ stakeholder type. Coded sections from individuals of different stakeholder groups were analyzed together and grouped into them into themes that captured emergent concepts related so participants’ perspectives on racial differences across stakeholder groups. Finally, once themes were developed, we identified patterns regarding any differing responses by stakeholder type on racial overrepresentation and young children in conflict with the law.

Our University’s Institutional Review Board approved all study procedures.

Results

Quantitative Findings

In the year 2012, California was home to 3,482,242 children ages 5–11, defined herein as “young children” (see Table 1). In the years 2010–2015, a total of 6330 received referrals to probation, and prosecutors filed 963 petitions against those children. Of those petitions, the court placed 246 young children into wardship status during the six study years.

Table 1 Descriptive statistics, California residents ages 5–11, years 2010–2015
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While White children comprised 28% of the California population aged 5–11, they were a declining proportion of those involved in each step of the delinquency process, moving from 27% of those referred to probation to 20% of those assigned wardship status. Conversely, the share of Black children escalated from only 6% of the total population to 34% of those assigned wardship status. The percentage of Hispanic children in California was 53%, and their rate of involvement across the carceral continuum held constant at 44–45%. API children were 13% of the total population, but they were a small (2–4%) portion of the group in each phase of delinquency proceedings. Finally, American Indian children comprised a very small portion of California’s population (< 1%) and the juvenile justice population (1%).

To better understand the population-based disproportionality, we tested for differences in annual rates (see Table 2). With regard to the rate of referral to probation, the rate for Black children (113.9 per 100,000) was 3.8 times the rate for White children (30.0 per 100,000) (z = 11.2, p < .00001, two-tailed). Of note, the total number of children referred to probation between the two groups was almost equal (of all young children referred to probation, 27% were White versus 23% were Black) despite California being home to nearly five times as many White children. In the other direction, the rate for API children (8.3 per 100,000) was 0.3 times the rate for White children (z = − 9.8, p < .00001, two-tailed). The rate for Hispanic children (25.8 per 100,000) was also lower than that for White children at 0.9 times the rate (z = − 2.0, p < .05, two-tailed). The difference in rate of referral to probation for the American Indian children was not significantly different from the White children, reflecting the small number.

Table 2 Annual rates (per 100,000), California residents ages 5–11, years 2010–2015
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As with referral to probation, similar overrepresentation existed for petitions filed for Black children. Black children (22.2 per 100,000) had 6.0 times the rate of White children (3.7 per 100,000) (z = 5.7, p < .00001, two-tailed). However, API children (0.7 per 100,000) had 0.2 times the rate of White children (z = − 4.0, p < .0001, two-tailed). No other racial/ethnic groups, including Hispanic children, were significantly different from White children in rate of petition filing. For the assignment of wardship status, only the Black children (6.5 per 100,000) differed from the White Children (0.8 per 100,000) (z = 3.2, p < .01, two-tailed).

Table 3 shows rates of progression within the system, by race, irrespective of population counts. We find evidence of disparate treatment of Black children relative to White children in filing petitions, but did not find significant disparities between White children and other racial groups. After children were referred to probation, prosecutors filed petitions against 19.5 Black children for every 100 referred, which was 1.6 times greater than the 12.3 petitions they filed against every 100 referred White children (z = 2.1, p < .05, two-tailed). Thus, once children were referred, prosecutors were more likely to pursue the case against Black children than White ones. Juvenile courts were also slightly more likely to assign wardship status to each racial/ethnic group than the White children, but these differences were not statistically significant. In sum, while Table 2 shows overrepresentation of Black children relative to White ones increases at each step, Table 3 indicates that the rate of overrepresentation of Black children only increases when prosecutors file petitions. Meanwhile, API children and to a lesser extent Hispanic children appeared to have better outcomes than White children on a rate basis.

Table 3 Average annual rates of juvenile justice processing ages 5–11, from prior decision point, years 2010–2015
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Qualitative Findings

Several juvenile justice stakeholder interviewees discussed overrepresentation of children of color, and in the context of California, they often referred to Black and Latinx children together. While the background literature and quantitative data pertains most directly to the overrepresentation of Black children, we stuck with the stakeholders’ words and perceptions of racial injustices which often included “youth of color,” “ethnic minority youth,” “Black and Brown youth,” and “Black and Latinx Youth.” The following four main themes emerged: (1) racial overrepresentation impacts children even at the lowest level of contact along the carceral continuum, (2) the need to address systemic racial injustices that lead to Black and Latinx children coming to the attention of law enforcement, (3) hard lines for juvenile justice jurisdictional boundaries are needed to prevent overrepresentation due to implicit bias, and (4) alternatives to incarceration should be pursued for children of all racial groups.

Theme 1. Racial overrepresentation impacts children even at the lowest level of contact along the carceral continuum. Several participants conveyed a sense of injustice and a drive to rectify the disproportionate burden experienced by youth of color. As one participant stated, “It’s disturbing….Youth of color are overrepresented at all stages of the juvenile justice system.” Participants emphasized that racial differences occur at entry points and across the lower level of contact along the carceral continuum. For example, one stakeholder cited racial overrepresentation in court filings:

So we can really question about why are Latino and Black youth ending up in delinquency court, when other kids of similar crimes are getting either a police officer diversion program … from Probation. Just to be honest with you, years ago, one of my friends who’s a D.A., her daughter stole something from a department store, got caught. Mommy got her into a diversion program and used her connections. That kid should have been filed on as a 602 < meaning a referral to the court > 

In this instance, the connections of the D.A. for her White daughter were the mechanism to produce the preferential treatment. This participant’s statement exemplifies the view that Black and Latinx children are more likely to face court proceedings and charges compared to White youth when they come to the attention of law enforcement for the same behavior. Although a few participants exhibited a sense of pride in progress toward addressing racial disproportionality (“I’m very happy that we’re able to make a difference”), all participants who spoke about racial overrepresentation impacting children in the justice system conveyed that significantly more needs to be done to rectify the problem.

Theme 2. Need to address systemic racial injustices that lead to Black and Latinx children coming to the attention of law enforcement. Stakeholders emphasized the importance of addressing the broader systemic factors in society that impact the home, school, community, and broader policy environment as key to resolving the racial overrepresentation faced by young children of color in contact with law enforcement. A few stakeholders noted that Black children are even more over overrepresented than Latinx children; however, they most emphasized the need to addressing the structural barriers that impact all children of color, especially regarding factors that influence pathways to arrest and justice involvement. As one judge stated, “I think that’s really where policy work needs to focus. Not on necessarily the rare occasion an 11- or 12- or 10-year-old actually ends up in court, but all the responses before that.”

These key informants stressed the need to understand and address the upstream factors that lead Black and Latinx children to come to the attention of law enforcement. The judge quoted previously later stated:

I think there has to be a look at infrastructure or institutionalization of racism and social barriers that might cause a child to come into conflicts with the law when really that child is hungry or abused or unparented.

Thus, for Black and Latinx children, stakeholders viewed structural racism as influencing response to family context, leading to children coming to the unnecessary attention of law enforcement rather than addressing the underlying trauma. In particular, stakeholders viewed schools as a driver of racial overrepresentation for young children as well as a lever for change. One judge shared:

I think schools play a big part in it… I think that schools have to be brought in on making sure that there’s a minimal response to ordinary childhood development activity.

Here, this participant implied a need for fair treatment by schools of Black and Latinx children, including avoiding criminalizing normal child behaviors.

At the same time, participants also referenced the broader context of under-resourced communities. One juvenile probation chief discussed the need to improve the care of communities of Black and Latinx children, stating: “Something has to be done in these communities to better support these young people.” Stakeholders cited differential treatment of children by the justice system based on financial means, which intertwined with racial disproportionality. They noted that society’s response to under-served Black and Latinx children has not been tailored to meet their needs but rather as a default leads to moving them into the juvenile justice system.

Theme 3. Hard lines for juvenile justice jurisdictional boundaries are needed to prevent racial overrepresentation due to implicit bias. Regarding potential solutions to reduce racial overrepresentation for young children, some participants held the view that minimum age juvenile justice jurisdictional boundaries are needed to protect Black and Latinx children from harmful involvement in the juvenile justice system because of implicit bias operating at several levels. For example, one public defender indicated concern about implicit bias when expressing that a potential minimum age law should not include exceptions for certain severe offenses:

Should there be exceptions in the minimum age or in severity of offense? The more exceptions you put, the more room people have to wiggle and, frankly, that’s where implicit racial bias and all these things come flowing right in and screwing it up. It’s hard to say. I mean I think that it’s unfortunate we have to draw an artificial line with age, but maybe that’s what we’re left with.

The public defender’s perspective reflects the notion that without uniform jurisdictional boundaries, racial biases will creep in with judicial, prosecutorial, and law enforcement discretion. The racial disproportionality was not viewed as ill-intentioned but rather attributed to implicit bias. The public defender expressed that law enforcement and district attorneys “Suffer from implicit bias, and they’re unaware of it.”

Some participants referred to the discretionary power of district attorneys regarding court filing as an opportunity for implicit bias to introduce unfair differential treatment of Black and Latinx children (“The D.A.s have all the power whether to file on a kid or not.”). The view of the public defender in regard to implicit bias aligned with that of a probation chief participant, who similarly endorsed a role of probation in making decisions about children of color that can drive racial disparities. One probation chief stated:

The decision points that we control, which was violation of probation, we were just as radical as law enforcement and all these other people making decisions about children of color. It really made people start to think, ‘Oh, so even after we get them, we’re not always making the best decision when it comes to violating and then removing them from the community.’

In this view, discretionary power of actors within the juvenile justice system, attributed here to implicit bias, is an important lever for driving racial disproportionality among children of color, especially Black children and especially at early stages of justice involvement.

Theme 4. Alternatives to incarceration should be pursued for children from all racial groups. To overcome overrepresentation in the carceral continuum, especially at the entry points of justice involvement, participants emphasized the importance of pursuing alternatives to formal prosecution and making them equally available to youth of color. Stakeholders conveyed that each of their counties had several alternative programs to formal prosecution for children who come into conflict with the law. Overall, they viewed formal and informal diversion programs as effective and valuable. Citing the detrimental effects of formally processing children into the juvenile justice system, stakeholders supported moving programs toward evidence-based approaches and diversion programs. Supported programs included community restorative justice programs, victim offender reconciliation programs, and specialized teen courts. One public defender stated, “When children are this young and they’re getting in trouble, we need to come up with a therapeutic solution and not dump them in a system that labels them as delinquents.” These diversion programs allow children to not be permanently marked as “delinquent,” and they offer additional supports and resources youth might otherwise not receive if formally processed.

However, the degree to which alternative practices and programs were available was variable, and racial differences in their allocation were of concern. Obtaining adequate funding was challenging for diversion and alternative programs. Counties mainly provided the funds for these services, and as a result wide variations existed in types of diversion programs available across counties. For example, one county heavily relied on community-based organizations, while another’s programs stem from other county departments, such as behavioral health agencies. Respondents highlighted probation as the key referral source. Counties varied in how to proceed legally with children. In one, probation receives all police reports and makes the decision to divert a case, but in another, informal policies deter prosecuting any juvenile misdemeanors.

Participants believed variation in processes and procedures for referrals to diversion programs introduced racial disproportionality. As one public defender stated:

How can I say this nicely? I think there’s a racial aspect here. Why is it that so many kids of color end up in juvenile delinquency court but White kids don’t? Part of it is these police departments, when they have contact with a kid, they refer the White kids to the [county diversion program]. Yet, if you’re of color you end up, generally, in delinquency court. I think that there are significant problems… with how kids get diverted.

The perceived solution to the inequity was to make diversion programs readily and equally available, regardless of race. The probation chief referenced above later said:

Every family should be able to have that same opportunity. Since we see the [diversion] model and we see that it works, that most of those kids receive some sort of diversion program, that the community or the church or whoever rallies behind that young person—the coach—all these people show up to support that young person and to say, ‘This is an anomaly. This is not this kid’s behavior. We’re willing to do whatever.’… If we do that same model with these children of color in these impoverished neighborhoods, perhaps we wouldn’t see so many of them in our system.

The participant emphasized the preventive role of diversion programs to reduce justice involvement and, when justly distributed, in reducing racial disproportionality for children of color, which was viewed as especially pertinent for Black and Latinx young children. Diversion programs prevent children from stigma and deliver supports and resources that children, especially those who are Black and Latinx, may not be able to access if formally processed.

Discussion

In a time when society is reckoning with anti-Black racism across many public institutions, this paper sought to explore patterns of racial overrepresentation among younger children in the California juvenile justice system. The literature reviewed found that the overrepresentation of Black youth in the juvenile justice system begins at early ages and stages, is caused by an array of legal and extralegal factors at those stages, and is at least partially attributed to racism operating at a systems level and among key systems actors.

Using comprehensive juvenile court and census data, we found that overrepresentation of young Black children increased at every stage of the carceral continuum in California. In particular, Black children were referred to juvenile court at nearly four times the rate for White children (by state population), petitioned at six times the rate for White children, and sentenced to wardship at almost eight times the rate of White children. Once in the system, prosecutors filed petitions against Black children at 1.6 times the rate that they did for White children, indicating a slight pattern of disparity once a child is engaged in the system but that diminished at the deeper end (i.e., wardship). Hispanic children were not subject to harsh population overrepresentation or disparities compared to White children, and API children were underrepresented in comparison to White children. The population of American Indian children was too small to draw conclusions.

While these data provide population estimates of disproportionality at each stage, the mechanisms behind these findings were not quantitatively examined. In other words, we were not able to control for the legal (charge, prior record etc.) and extralegal (i.e., child welfare status, gender, etc.) factors that may have contributed to the results due to the sample size and privacy concerns. However, we assume from the literature that overrepresentation begins with, and then accumulates from, the earlier decision points (e.g., diversion) that are often difficult to capture through archival data, in part because decisions made by a variety of system actors are not always tracked.

Our qualitative findings align with the literature and fill in some gaps left by the analysis of justice data. Among diverse stakeholders, even when not asked directly about racial overrepresentation, we found four main themes: (1) racial overrepresentation impacts children even at the lowest level of contact along the carceral continuum, (2) the need to address systemic racial injustices that lead to Black and Latinx children coming to the attention of law enforcement, (3) hard lines for juvenile justice jurisdictional boundaries are needed to prevent overrepresentation due to implicit bias, and (4) alternatives to incarceration should be pursued for children of all racial groups.

In regards to themes one and two, stakeholders largely reinforced what we can glean from federal statistics (Sickmund et al. 2020) and the California archival data—that overrepresentation of Black children begins at early ages and stages that start with school discipline and arrest (Crutchfield et al. 2009). The stakeholders that took part in this study also largely included Latinx children in their views of racial overrepresentation along with Black children; yet the quantitative data did not support these perceptions. This is a complex topic, and one that might reflect that Latinx youth comprise the majority of youth under probation care/supervision due to the population composition of the state of California (i.e., > 50% of youth). Given this array of factors, we do not intend to deny that Latinx youth face over-surveillance and discriminatory treatment in the carceral continuum; rather, the population-based data did not evidence overrepresentation at these younger ages. We also know that Latinx youth are not measured or counted consistently (Diaz et al. 2020) and more needs to be done to accurately examine their trajectories throughout the juvenile justice system.

Stakeholders also emphasized the key role of systemic racism, neighborhood factors, and the school to prison pipeline in creating racial disproportionality in arrests and referrals to the juvenile court. The contribution of these factors to overrepresentation of Black youth are also referenced in the literature (Crutchfield et al. 2012; Leiber and Fox 2005; Mallett 2017). While it is unclear from this study to what extent we can draw a direct line from school discipline to arrest and through to sentencing, stakeholders viewed these early stages of the process as quite relevant to the whole picture of disparate involvement and treatment of Black children and other children of color. This point should not be underestimated. As younger children are more likely to be involved in earlier stages of the carceral continuum, this is where more subjectivity on the part of actors (police, prosecutors) takes place, giving rise to overrepresentation. As such, intervening at younger ages may be a critical place to interrupt patterns of racial disproportionality and disparities.

Themes three and four relate to how to interrupt these racial injustices through solutions that include universal decriminalization policies and programs. These include both a minimum age law as well as policies and programs promoting alternatives to incarceration and formal systems involvement. Stakeholders emphasized that while numerous alternatives to systems involvement exist, such as diversion, they are often applied haphazardly and inconsistently, sometimes leading to wider racial overrepresentation of Black children and other children of color. This reinforces the notion that policies that apply to all children equally without subjectivity may have a greater chance of reducing disproportionality among youth who are younger and at the earlier stages of system involvement.

We note several limitations to this analysis, including the restricted nature of archival data, the absence of rival explanations in our population level analysis, and our sampling of three counties for stakeholder views. California is a very large state comprised of 58 counties, all with their own juvenile justice systems, and the limitations of our methodology were tied to funding and capacity of the research team. We also did not have the data to trace a young person’s trajectory in the system past age 11, which might have provided an interesting longitudinal analysis. Despite these limitations, we found a synergy among the quantitative and qualitative results that also echoes prior knowledge and research in other regions of the country.

Implications for Policy

Disproportionate Minority Contact (DMC) is the major federally funded strategy to reduce disproportionate contact with the justice system for Black youth and other youth of color. Evidence suggests that some of these strategies can reduce DMC when applied consistently (Development Services Groups 2014). Yet after 30 years of DMC efforts, the Black-White gap in juvenile justice system involvement has actually widened (Rovner 2016). Science, evidence, and knowledge about overrepresentation at different parts of the carceral continuum have evolved in the last 30 years. It is time to think about new strategies. Minimum age laws apply to all youth equally, and, as Kovera (2019) argues in a recent review article, policies that target outcomes for everyone, regardless of race, “may be more effective at reducing racial disparities than are interventions designed to eliminate implicit bias” (p. 1). According to this logic, minimum age laws have the potential to address systemic issues that cause overrepresentation of Black children as opposed to more irregularly applied individual-level approaches.

In earlier work, we have argued that the potential for bias and racial injustice at early stages of the juvenile justice system are reasons to support a minimum age law (Abrams et al. 2018; Abrams et al. 2020). This paper helps to make this thinking more concrete in arguing that a minimum age law should be one part of a continuum of policies that can reduce the overrepresentation of Black children in the juvenile justice system. This means that younger children would not, for example, be subjected to the school to prison pipeline in elementary school. That is, they would not be vetted disproportionally by race as suitable for pretrial diversion or pretrial detention. They would also not be subject to the whims or biases of police, district attorneys, or judges. They simply would not be involved in the juvenile or criminal justice system at all.

However, it should be noted that established alternatives to the juvenile justice system are often very much tied to the justice system, such as diversion, teen court, or informal probation. These in themselves may still have a labeling effect and stigma (Mears et al. 2016; Schlesinger 2018). As stakeholders suggest in this study, for a healthier and more equitable society we need to be thinking outside of the justice system in regard to younger children who come into contact with the law. Alternatives to justice involvement may include child welfare systems and family intervention with the caution that child welfare is also subject to major racial disproportionality and harsh treatment of Black families (Dettlaff et al. 2020). Hence, in crafting alternative responses, we need to be mindful of not replacing one racially unjust system with another. Programs that build family and community capacity to address children’s presenting behavioral issues need to take into account the child’s context, culture, race and experiences with racism and discrimination in order to be effective (Boyd-Franklin 2013).

Conclusion

This analysis of California state data and qualitative interviews with stakeholders in three large counties shows a pattern of glaring overrepresentation of Black children under age 12 in the juvenile justice system, a pattern which worsens as children fall deeper into the system. We have also noted several limitations to this analysis, including the restricted nature of archival data, the absence of control variables in our population level analysis and our limited sample of juvenile justice stakeholders in three counties that may not represent the views of those in less diverse counties. Moreover, California is a large, very diverse, and majority Hispanic/Latinx state with a small population of Black children. Hence similar analyses in other states would likely yield very different findings. Yet still, these findings make clear that ending the harsh treatment of young children and Black children is of utmost importance. With nearly half of American states now having a minimum age law, we believe it is time for the USA as a whole to establish a minimum age of at least 12 to align with international human rights standards and reduce the overrepresentation of Black children in the juvenile justice system as whole.