Tamar Birckhead (UNC) has posted to SSRN a draft her essay Delinquent by Reason of Indigency, 38 Wash. U. J. L. & Pol’y __ (forthcoming 2012). Here is the abstract:
This Essay, written for the 12th Annual Access to Equal Justice Colloquium, introduces the concept of needs-based delinquency, a theory that challenges basic presuppositions about the method by which the United States juvenile justice system determines whether a child is delinquent. It argues that at each stage of the process – from intake through adjudication to disposition and probation – the court gives as much or more weight to the perceived “needs” of the child and her family than to the quality of the evidence against her or the ability of the state to prove its case. Typical features of the juvenile code, including the procedures for intake and diversion and the use of bench rather than jury trials, combine to shift the system’s emphasis from an evaluation of a child’s criminal responsibility to an assessment of a family’s social service needs. The standard of proof, therefore, is determined in large part by the socioeconomic class of the accused rather than the nature of the forum, an orientation that lowers the standard for indigent juveniles while heightening it for affluent youth. The result is that children from low-income homes do not have to be as “guilty” as those from families of means in order to be adjudicated delinquent, thereby widening the net of court intervention for poor children.
The Essay illustrates the variety of ways in which modern juvenile code provisions and delinquency court practice privilege consideration of juveniles’ needs over the weight of the evidence against them. It argues that the juvenile court’s traditional focus on the needs of destitute youth continues to be reflected in the system’s practices and procedures, despite the court’s shift in dispositional philosophy from rehabilitation to youth accountability and public safety. It examines the structural and institutional causes of this development, beginning with the most common points of entry into the juvenile court system – public schools, local businesses, and neighborhood police presence. The Essay suggests that the juvenile court’s continued emphasis on families’ needs when adjudicating delinquency has a disproportionate effect on low-income children, resulting in high rates of recidivism and perpetuating negative stereotypes based on class. It offers strategies for confronting and reversing this trend, including data collection that records the income-level of juveniles’ parents and raising awareness of needs-based delinquency among police, prosecutors, judges, and agency personnel. It challenges the view that in tight budgetary times, juvenile court involvement is the only way for poor children to access services, and concludes by proposing a service delivery model that cuts across public child welfare boundaries, with the goal of increasing fairness for all youth in the juvenile justice system.
A full draft is available here.
I am keen to read this contribution to the larger discussion about economic inequality, access to justice and democracy.