In Maryland, any child under the age of 18 who does something that would be a crime if committed by an adult has thereby committed a “delinquent act” and is subject to the jurisdiction of the Juvenile Court. Some children, as you might expect, commit serious delinquent acts, but many others simply engage in perfectly normal childhood behavior that might technically be a crime if committed by an adult. For example, a robbery, assault or destruction of property by an adult might be quite different than a child’s grabbing someone’s cell phone, pushing a kid on a school bus, or breaking a fellow student’s pencil at school. Yet these are all the kinds of behavior that land some children in the juvenile justice system, while other children who do these exact same things never are subjected to this system. Why is that so?
There are myriad reasons. I have seen this system first hand over the past nine years while serving as a circuit court judge sitting in juvenile court for substantial periods of time during two of my rotations on the bench. I also served as a judiciary representative on the Maryland Department of Juvenile Services State Advisory Board for several years. A few observations: over the years, there has been a general trend to over-criminalize juvenile behavior; the police model of arrest outside school and presence of police as school resource officers in the schools leads to excessive juvenile case intake; the Department of Juvenile Services (DJS) intake process and lack of diversion and mediation alternatives leads to excessive court cases; involving the State’s Attorney’s Office in the juvenile system has the effect of treating juveniles as young criminals; the juvenile courts have too few alternatives to ensure the goals of juvenile rehabilitation; the DJS models of detention, probation, and commitments are ill-equipped to provide the services juveniles need. More saddening is the fact that all of these things contribute to the vast over representation of Black and Latino juveniles who ultimately are adjudicated and labeled “delinquent” by the court.
Why the disproportionate racial impact? Of course, there is always the issue of income inequality, lack of access to health care, lack of access to quality education, lack of access to social services, immigration and language issues, if applicable, and on and on. Couple that with unequal access to employment, transportation, and private attorneys and you have more problems if you are a person of color. Then there is the issue of implicit racial bias that may manifest itself in the discretionary decisions made along the pathway of the juvenile justice system. Finally, there is one provision in the juvenile delinquency statute itself that adds to disparate racial and socio-economic impacts. Yes, even the “rule of law” can contribute to unequal justice under law.
In the coming weeks, I plan to take a deeper dive into each of these aspects of the juvenile justice system and explain how and when the system works and doesn’t work. After that closer examination, I hope to offer a few thoughts on what a better system of juvenile justice might look like. The stated goal of the system is to rehabilitate children, not punish them. Do we succeed in that goal? The answer, unfortunately, often is no.
Judge Gary E. Bair (Ret.)
Of Counsel, RaquinMercer LLC