New Legal Theory Aims at Racial Disparities

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Harrisburg, Pa. – A series of hearings here last month marked the first step in what promises to be an unorthodox attempt to force states to deal with disproportionate numbers of minorities in their juvenile justice systems.

The hearings before committees of the Pennsylvania General Assembly included several hours of testimony about the financial and social benefits of alternatives to locking up juvenile delinquents. The idea: Make a record of various approaches to juvenile justice as a prelude to potential litigation against states that persist in having wide discrepancies between the percentages of white and black youths who are detained.

The sessions were put together by the Washington, D.C.- based Racial Justice Institute (RJI) and its founder, juvenile diversion pioneer Edgar Cahn. The institute has backing from the Kellogg Foundation (about $800,000 in grants over the past two years) to test a legal theory that hinges on a 1989 Supreme Court ruling about deliberate indifference to civil rights.

Cahn theorizes that he can sue jurisdictions for deliberate indifference if he can show that they knew there were better and less expensive ways to deal with racial disparities in their juvenile systems, but chose not to tackle the problem. (Pennsylvania is actually an unlikely target, as will be explained later.)

With an untested legal theory that poses many tricky twists and turns, even Cahn doesn’t know exactly what comes next.

The premise

RJI’s theory on litigating racial disparity is based on three concepts. At the first of last month’s hearings, juvenile justice expert Clay Yeager discussed one: Evidence-based research shows that certain programs can prevent delinquency.

“Early on in juvenile justice, we were guided not by science, but by gut instinct,” Yeager testified. That changed, he continued, with the development of science-based programs “that can clearly prevent delinquency.”

In addition, Cahn testified about the concept of fiduciary responsibility, which means that states, counties and other jurisdictions have a responsibility “to spend [tax dollars] wisely.”

The third precept pertains to racial disparities: not just a higher percentage of minority youth than the percentage of white youth being involved in a juvenile system, but a pattern of disparities between youths who are charged with similar crimes being treated differently when the only difference is race.

Cahn believes the three concepts form a cause of action: System X is treating minority youth unfairly, and it knows how to address that problem without increased expenditures. If the system does not change, the theory goes, that government is being deliberately indifferent to a civil rights issue in its system.

His theory relies largely on a U.S. Supreme Court case, City of Canton v. Harris, which had nothing to do with juvenile justice. The case concerned a woman who was denied medical care by a police shift commander after her arrest. While the shift commander had authority to grant medical care, he had received no training on how to determine the need for it.

The city’s “failure to train” the officers to make decisions about care set “deliberate indifference” as a standard for civil rights claims about municipal policy. In a nutshell, the court established that the policy of a municipality could only be grounds for a civil rights case if the petitioners could prove that the policymakers knowingly ignored a course of action that would have protected those rights.

RJI wants to apply that standard on training to decisions on juvenile justice services, hoping to persuade governments to act or to compel action through courts. The goal, Cahn said, is not to mandate the funding of specific programs. “What we would like to see a judge order is a scrutiny of the process that deals with each point at which disparity emerges,” he said.

The questions

Some civil rights litigation experts wonder whether Cahn can apply the Canton ruling to racial disparity in juvenile justice. “I think the ‘failure to train’ and ‘deliberate indifference’ theories from Canton do not apply,” said civil rights attorney Leland Ware.

“Disparate impact is different from disparate treatment,” said Ware, who supports Cahn’s desire to eliminate disproportionate minority treatment. “The Supreme Court has found consistently … that disparate impact does not, without more, prove an Equal Protection violation. The Supreme Court has consistently found that a discriminatory intent must be shown.”

Cahn encountered similar wariness when he discussed the theory at a private conference last summer in Washington, D.C. Lawyers and juvenile advocates at that meeting supported RJI’s idea, but many questioned Cahn’s ability to prove it in court.

“I was surprised at the level of skepticism,” Cahn said in an interview.

He said RJI will have to answer several key questions before it can test the theory in court:

1. How can proof of obvious alternatives to incarceration be established?

The court ruled in Canton that “only where a failure to train reflects a deliberate or conscious choice by the municipality can the failure be properly thought of as an actionable city policy.” RJI officials must prove, among other things, that a policymaking body knew that alternatives to lockup produce the best outcomes for most youth and that choosing not to employ more alternatives would lead to the deprivation of the juveniles’ constitutional rights.

Cahn plans to expose juvenile justice systems to what he sees as better policies. That effort began in Pennsylvania, where two hearings were held by the Senate Judiciary Committee and one by the House Committee on Children and Youth. They featured testimony from practitioners and state officials about proven practices and the fiscal benefit of using them rather than incarceration, when possible.

However, Pennsylvania is an unlikely place for RJI to file suit. The commonwealth is in a statewide reform partnership with the James D. and Catherine T. MacArthur Foundation’s Models for Change Initiative, and is home to several successful alternative programs, including Youth Advocate Programs, a national provider based in Harrisburg.

Why hold the hearings, then? “I think there is a difference between our asserting that there are alternatives that work, and a state legislature holding hearings and gathering authoritative testimony from experts and state officials on what are the alternatives, what is the impact of using them, and what is the cost of not using them,” Cahn said. “Providing choices [to incarceration] now is a matter of official record.”

2. How can proof be disseminated?

Although an official record has been made in Pennsylvania, “the challenge for us is how do we put people on effective notice of this?” Cahn said.

RJI plans to produce and distribute an abridged version of the hearings. “We’re going to send it to every state advisory group [SAG] in the country,” Cahn said.

SAGs advise governors on juvenile justice issues. Cahn theorizes that if you educate the SAGs on cost-effective measures that work better, they must apprise their governors. “We think failure to use this knowledge in other states, with certain timelines and objectives, can give rise to liability,” he said.

Cahn says he will make a “major presentation” to all SAG members at the Coalition for Juvenile Justice’s meeting on disproportionate minority contact in October.

3. Who is the injured party and how was the party injured?

Cahn regards this as one of the more difficult questions. When lawsuits are filed against systems over conditions in juvenile facilities, it is obvious who the injured party could be: any juvenile in that facility. But on whose behalf would RJI bring a civil rights lawsuit? All minority youth processed by a system? All youth in a school district? Or just youths in detention?

The latter appears to be Cahn’s preference, because he believes consensus exists around the negative impact of detention.

The most likely approach, he said, would be to take individual cases – perhaps a white youth and a black youth who were adjudicated for identical crimes and treated differently by the system – and pair them with statistics that show the individuals are “illustrative of a broader pattern.”

4. Which system should be fixed first?

If detained juveniles become the focal point of the litigation strategy, there probably would be a state-level lawsuit against a governor and the SAG, Cahn said.

States dole out many of the funds that counties use for juvenile justice services, and the states direct the counties on where it can be spent. State policymakers often dictate how much a county can spend on community programs or diversion, and how much on residential placements and incarceration. Judges’ hands are, to some extent, tied by the decisions of those state policymakers.

RJI plans to tackle these and other questions at a litigation summit this fall.

Contact: RJI (202) 686-5200, http://www.racialjusticeinitiative.org.