Lawful but awful. This is the phrase that is now commonly used to describe the deadly shootings committed by the police against people of color.
From week to week, quite often day to day, there rises another egregious incident involving law enforcement, a person of color and an unnecessary lethal use of force that often reduces his or her life into another mournful statistic.
Michael Brown and Tamir Rice are some recent names whose young lives came to a tragic end at the hands of law enforcement. But before their names came into our consciousness, there were young people of color like George Stinney, who was accused of murdering two white girls. After the 14-year-old was arrested, an all-white jury was assembled, a trial was held, a guilty verdict was declared, and Stinney was sentenced to death by the judge. All this took place in one day.
George Stinney was executed in 1944, but it wasn’t until 2005 that the U.S. Supreme Court ruled in Roper v. Simmons that the death penalty was unconstitutional for people who committed their offenses when they were under the age of 18. Since 1985, 22 people were executed for crimes committed in their youth, and not surprisingly, the majority were black.
This serves as one of the starkest reminders that our juvenile system, once created for the primary purpose of rehabilitation, has veered off course and has disproportionately harmed youth of color.
Although these executions are no longer lawful, bias against youth of color is an endemic quality of most juvenile justice policies. In 2000, California voters passed Proposition 21, a tough-on-crime initiative, with nearly a two-thirds majority vote. One of the provisions of Proposition 21 gave prosecutors unfettered discretion in charging youth as young as 14 as adults, removing them from the juvenile court and having them tried in the adult system.
Since 2000, more than 10,000 youth have been tried as adults in California. In 2015, approximately 88 percent of youth tried as adults were youth of color. This is a staggering indictment against a system that ignores the implicit biases saturated in its policies and its decision makers.
Juvenile courts were established under the legal doctrine of parens patriae, in which the state assumes the role of the parent to the extent that it can intervene when the child’s welfare is at stake or to address delinquency matters. The juvenile justice system serves as an acknowledgment, based on research and science, that youth are fundamentally different from adults.
And to be explicitly clear, black youth are, by landslide numbers, subject to the worst of these policies. According to research published by the American Psychological Association, perceptions of race have a particularly harmful impact on black children who are perceived to be older (as much as 4½ years), guilty and more likely to face police violence if arrested.
In California, some relief is in sight. One provision of Proposition 57 would take away prosecutorial discretion, known as “direct file,” to charge youth as adults. With the passage of this proposition, a prosecutor’s ability to arbitrarily charge youth as adults is taken off the table.
Instead, youth will face “fitness” hearings during which a judge makes the determination of keeping the case in juvenile court or transferring it to criminal court, based on a series of factors including the youth’s amenability to rehabilitation. While no youth should be in the adult system, ending direct file will ensure that they receive greater due process rights and a greater chance at remaining in the juvenile system.
George Spinney, Emmett Till, Trayvon Martin, Tamir Rice, Michael Brown — these are just five names out of millions of black youth who have suffered at the hands of an intrinsically biased system of American law and order. To honor their suffering and loss, it is not enough that we merely hope for change, but demand and seek it. Even the most herculean of tasks can be accomplished by transforming a ripple into a tide. Proposition 57 may be the ripple that we need.
| October 24, 2016
Jennifer Kim is an attorney and the director of programs at the Ella Baker Center for Human Rights based in Oakland, California.
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