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Keeping Juvenile Justice at the Center of Reparations

Posted in 2019 Friday, 21 June 2019

Keeping Juvenile Justice at the Center of Reparations

By Marion Humphrey, Jr.

On Juneteeth, June 19, 2019, the U.S. House Committee on the Judiciary held a hearing on H.R. 40, an act to create a commission to study and develop reparation proposals for African-Americans.

As introduced in the The Color of Youth Transferred to the Adult Criminal Justice System: Policy & Practice Recommendations, in the United States, “the vestiges of slavery are embedded in the criminal justice system and codified in the Thirteenth Amendment to the Constitution: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

This means that individuals convicted of criminal offenses in the United States can be treated and punished as enslaved people under the Constitution. In a few remaining states, Wisconsin, Texas, Georgia, and Michigan (though MI is on the cusp of ending this practice), youth under 18 are automatically processed through the adult court system because of their age, not the nature of their offense. And, in all 50 states, youth under age 18 are eligible to be transferred from juvenile court to adult court. In these courts, youth gain public criminal records, get locked behind bars in adult jails, and receive lengthy sentences in facilities that were not made to take their social or brain development into account. Upon their convictions, they could be subjected to treatment synonymous to that of the once enslaved. In addition to the loss of liberty, like the recently emancipated of the 19th century, when youth return to their communities they face a number of barriers to their full participation in democracy. They are often unable to vote, they face barriers to housing and employment, and they could be blocked from opportunities to receive federal education grants and serve in the military.

Recently, the conversation around reparations has returned to the spotlight through its inclusion in presidential campaign dialogue. A handful of the aspirants have discussed their support for the study and/or implementation of reparations. The topic of reparations for African American slaves originated from Lincoln’s Emancipation Proclamation, where former slaves were famously promised 40 acres and a mule. These offerings never made it to them, however.  The more popular current descriptions of possible reparations shy away from direct payments to individuals but to investments into structural and public service enhancements that support Black communities.

At the hearing, panelists, including Senator Cory Booker, actor-activist Danny Glover, and writer Ta-Nehisi Coates, spoke more generally about slavery’s impact since emancipation and our country’s continued efforts to reduce the wealth and power of Black communities. In his remarks, Coates acknowledged the financial interest our country had in slavery, citing that over half of the country’s economic activity, a total of $600 million at the time, derived directly or indirectly from the production of cotton by slaves. He added that, at the time of emancipation, slaves represented an asset of $3 billion, larger than the rest of the country’s assets combined.  

Senator Booker began the proceedings with personal stories about his upbringing and how his home district witnessed the shootings of seven people just the night before. He remarked that, still today, the legacy of slavery reveals itself in inequities within wealth disparities, health outcomes, such as the revelation that Black women are four times more likely to die from pregnancy complications than white woman, and the criminal justice system, where Black people are four times more likely to be arrested.  

This conversation about criminal justice disparities and reparations often fails to highlight outcomes for youth in the adult criminal justice system. Research indicates that even when accounting for the type of offense, Black youth are more likely to be sent to adult prison and receive longer sentences. And while Black youth represent approximately 14% of the total youth population, as of 2017 they comprise 54.2%  of the youth who are transferred to adult courts by juvenile court judges who believe that juvenile courts cannot serve them effectively.  Black youth are 72% of the children who have received life in prison without parole since the Supreme Court’s decision in Miller.  

At the hearing, Eric Miller, professor of law at Loyola Law, stated that there have been “multiple reparation-style lawsuits brought since the Supreme Court decided City of Richmond that have survived constitutional challenges, but reparations must also include rebuilding the social, political, economic, and cultural infrastructure of the communities destroyed by the state.”

Yet, in opposition, it is often cited how the issue of reparations raises malcontent within white communities due to how emotional the issue becomes for them. Katrina Browne, documentarian of Traces of the Trade, in speaking “directly to white people,” testified, that plenty of organizations have had success acknowledging that “when we (white people) let go of defensiveness or guilt, we (white people) can get to a healthy and shared grief which opens the door to sober, sacred, respectful, creative conversations about how to make things right.”

And she is not alone in this belief. Even case law has also provided a blueprint for navigating these feelings. In his plurality opinion in Fullilove v. Klutnick, U.S. Supreme Court Chief Justice Burger provides such an explanation in his defense of a program set to reserve opportunities for minority-owned businesses, stating:  

It is not a constitutional defect in this program that it may disappoint the expectations of nonminority firms. When effectuating a limited and properly tailored remedy to cure the effects of prior discrimination, such "a sharing of the burden" by innocent parties is not impermissible. Franks, supra, at 777; see Albemarle Paper Co., supra; United Jewish Organizations, supra. [...] Moreover, although we may assume that the complaining  [*485] parties are innocent of any discriminatory conduct, it was within congressional power to act on the assumption that in the past some nonminority businesses may have reaped competitive benefit over the years from the virtual exclusion of minority firms from these contracting opportunities. Fullilove v. Klutznick, 448 U.S. 448, 484-85, (1980).

Our country’s long and racist history continues to impact our most vulnerable: our youth. Whether or not the time is now for reparations, a study group tasked with the opportunity to delve deeper must consider the ongoing harm disportionately impacting youth of color, particularly Black youth, who experience the criminal justice system firsthand. The exploitation of those imprisoned in a country that incarcerates adults like no other developed country also bleeds into the experiences of thousands of children. Just like the days of the past, many of our country’s youth are used as servants to continue our country’s steadfast loyalty to its original sin, slavery. These youth should be at the center of this debate.