President Trump brought big setbacks for juvenile justice, advocacy groups say — and although they like what they've heard from President-elect Joe Biden, some activists still worry about what they call an ongoing crisis.
Trump and Biden both have sought political credit at various times for criminal justice reform, but the picture is nuanced; every year, approximately 76,000 children are prosecuted, sentenced, and incarcerated as adults. In 2018, a child was arrested every 43 seconds. Children of color were twice as likely to be arrested than white children.
But practices often touted as getting tough on offenders are especially hurtful when they affect children, advocates say — and changing them must be the first step in any effort to tackle broader changes to the criminal justice system.
"If we're going to make meaningful impact on the criminal justice side, we need to be paying attention to our young folks." said Naomi Smoot Evans, executive director of the Coalition for Juvenile Justice.
Advocates frustrated with scaled-back implementation
For juvenile justice advocates, the past four years under Trump have been frustrating.
In 2018, the Trump administration delivered what it called promising legislation with the reauthorization of the Juvenile Justice and Delinquency Prevention Act of 1974.
However, according to Marcy Mistrett, CEO of the Campaign for Youth Justice, "there's been very little support from the Office of Juvenile Justice and Delinquency Prevention and the Department of Justice in terms of ensuring that that law got robustly implemented."
Since 1988, Congress has mandated that the Justice Department provide grants and training to local law enforcement agencies and juvenile courts in exchange for state data on inequality. Under the Trump administration, the OJJDP has dramatically scaled back its requirements on the types of data states need to collect to receive funding.
In practice, this meant that states no longer had to submit data about how often Black and Latino children had charges filed against them, were convicted or put on probation, as reported by the Marshall Project.
When those data aren't available to federal authorities or the public, it becomes easier to lose sight of what's taking place across the country, advocates say.
Supporters for changes to Justice Department practices like these, as well as U.S. law, were energized this year by the national movement that followed the police killings of Black citizens including Breonna Taylor and George Floyd. Biden's victory has brought sustained attention from groups that support reform.
Biden past, Biden future
Some of Biden's critics say his record is not squeaky clean on criminal or juvenile justice. During his time as head of the Senate Judiciary Committee from 1987-1995, Biden was instrumental in passing many laws that built today's system of incarceration, which disproportionately impacts low-income Black and brown people.
Biden has apologized for aspects of that record and vowed that his administration will make a bold attack on this issue.
As part of his plan on criminal justice reform, Biden pledged to make juvenile justice a priority, including with new payments of around $1 billion per year.
The proposals outlined by Biden's team largely revolve around new incentives for states to stop incarcerating children. Some juvenile justice advocates say they're delighted to see Biden address youth incarceration — but others feel that his policy does not go far enough.
Race and policing
Kristin Henning is a professor at Georgetown Law and the director of the university's juvenile justice clinic. According to Henning, the president-elect's policy outline is sound but ultimately incomplete because it barely addresses race.
"I would love to see the administration weave in even more attention to racial disparities. It is there. It is in the outline for the proposal. But I think it needs to be more robust. It is one, treating children like children, but understanding that black children are children, too." she said.
Lisa Thurau, founder and executive director of Strategies for Youth, sees one particularly glaring omission from Biden's plan.
"The third rail of American politics is policing. And there's no mention of policing at all in his plan. What we need to see in the United States is how to rethink the use of law enforcement to respond to matters that are truly not law enforcement in nature. And this is exceptionally important with young people," Thurau said.
Arrests not only can be traumatizing but also set young people up for repeat encounters with the criminal justice system, which in turn can lead to a cycle that traps them in incarceration and poverty. One key is finding ways to keep kids from being arrested in the first place, which advocates say they don't see from Biden.
"The problem with my expectations for President Biden is that they're irrelevant at the state level," Thurau said. "Legislatures are the ones that need to refrain from this cultural proclivity towards punishment, incarceration. It's at the state level that what was modeled nationally in the early 90s became true. The federal system is very limited. The state system is accounting for at least 90 percent of all prosecutions. And it's at those state levels that we saw President Biden's vision of punishment and incarceration really blossom."
David Stein, a postdoctoral fellow at the University of California Los Angeles studying how economic policy shaped mass incarceration, is skeptical of Biden's plan. He added that the investment in criminal justice reform might only influence local police spending.
"Historically, Joe Biden has really promoted the idea that the problem with policing is inadequate professionalism and thus the solution to that problem is increased resources," Stein said — in other words, money.
He continued: "What that often means is just massive, massive funding for local police who use it to buy tanks and use it to do other kinds of training. But the training doesn't actually make people who are at the other end of the barrel of those police officers — it doesn't make their life better. Oftentimes that type of training is sort of knowing how to swing your baton with greater efficiency."
According to Stein, in order to make things better for vulnerable young Black and brown people, the Biden administration needs to divest from the police and redirect funding towards things that are outside of the formal criminal justice sector, like relief payments, federal job guarantees and robust healthcare.
"Biden can't necessarily shape the behavior of the Los Angeles Police Department on a daily basis ... but one thing he could do is create the economic conditions for the young people who are most likely to interact with LAPD."
The politics, however, are fraught — and some moderate Democrats this election said they felt punished by voters who heard the bumper sticker message "Defund the police" and took it literally, as though it were a call to do away with law enforcement altogether.
Stein said he thinks supporters for new policies must overcome resistance within the establishment and keep the fire under the feet of the new administration in order to make headway.
"I would emphasize what social movements can achieve and what they can win from a Biden administration — rather than what Biden is willing to give as a gift."
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