When a youth is accused of a crime in Kentucky, an adult has to make a choice in nearly every step that follows.
Allow the youth to avoid a formal charge, or bring the case to a judge? Send him back home to his own bed, or to sleep in a cell?
Put another way: Offer another chance, or deny it?
Disproportionately, the Kentucky youth denied that second chance are black.
Records, research and interviews with stakeholders in the juvenile justice system show that this disparity occurs at nearly every decision point in Kentucky’s juvenile justice system. As juvenile detention center populations dwindle and fewer minor offenders are locked up, whites feel the benefit most. Youth lockups are becoming more black and brown.
“The reality is, when we're in an affluent Caucasian community and we see a couple of kids walking down the street, we have a protect and serve model,” said Edward Palmer, a Radcliff, Kentucky pastor and a member of Kentucky's Juvenile Justice Advisory Board. “We see a couple kids in the West End of Louisville walking down the street, we have a suspect and detect model... Any given day, look and you could see 75, 80 percent of the kids in detention centers are African-American.”
However shocking those numbers may be, they are not unique or anywhere near the worst in the country. The commonwealth’s rate of black youth in custody tracks pretty closely to the national average.
But Josh Rovner, juvenile justice advocacy associate at The Sentencing Project, said the commonwealth’s trend line over the past 15 years is “distressing.”
It’s actually getting worse.
Reforms Working Better For Whites
In recent years, the statewide conversation around Kentucky’s juvenile justice system has been about making it fairer to minor offenders, who are predominantly white.
Five years ago, Kentucky locked up minor offenders in droves. Secure juvenile facilities housed more youth accused of offenses like truancy, running away or property crimes than those charged with felonies. These statistics spurred statewide soul-searching.
In 2014, the Kentucky Legislature passed a major reform bill that ensured most children would no longer be locked up for misdemeanors or non-criminal offenses called status offenses: behaviors such as truancy or drinking alcohol that are not crimes for adults but are offenses because of someone’s status as a youth. It also created more paths to diversion programs, which send a youth to a caseworker or intervention team for monitoring instead of appearing before a judge.
By last year, the number of Kentucky’s youth detained outside their homes was nearly cut in half since the reform began. Among youth serving time, three out of four faced a felony charge, not a minor offense.
Those numbers could be enough to hold a press conference and claim success, said Justice and Public Safety Cabinet Secretary John Tilley. But Tilley has not held that press conference, because he knows what else the numbers tell: that the changes have left youth of color behind.
As dramatically fewer white youth were detained, the number of black youth stayed relatively flat, so much so that the proportion of youth of color locked up increased by 10 percentage points.
The result of that shift: Although black youth are about 11 percent of the state’s population, they were about 43 percent of the youth detained statewide in fiscal year 2017, according to a data review commissioned by the state and conducted by the Crime and Justice Institute. (That number excludes Louisville, which runs its own facility.) Black and non-white youth last year were 59 percent of the population sentenced to serve time, post-adjudication, in youth development centers.
A black youth is three times more likely to have a complaint filed than a white youth in this state, according to state juvenile justice officials, and 17 times more likely to be advanced to adult court.
“That's not acceptable,” said Tilley, who championed the reform legislation.
Blacks As Successful 'When Given A Chance'
The federal term for the overrepresentation of minority youth in the justice system is “disproportionate minority contact," or DMC.
Jail is not the only place in Kentucky’s system where youth of color seem to have different outcomes than white youth, said Kentucky Rep. Whitney Westerfield, a Republican from Christian County and former prosecutor.
“The DMC really jumps off the page at you, because it's there in a number of different places,” said Westerfield.
Black youth in Kentucky are arrested and detained at higher rates than youth of other races, according to researchers who explored the disparities. They are also less likely to be offered a diversion agreement, which sets conditions for avoiding a formal court proceeding, and they spend more time locked up on average than white youth.
Rovner of The Sentencing Project, which advocates for criminal justice reform, says black youth do appear to be charged more often with serious or violent offenses than white youth, but not to the extent of the disparity. He contends that is more reflective of over-policing than different behavior.
Rovner's research shows Kentucky's racial disparity in youth confinement has grown by 24 percent in the last 15 years.
“There aren't vast differences in the behavior of youth of different races. But there are huge differences in how those youth are treated by the juvenile justice system when they slip up,” Rovner said.
Data from the review by the Crime and Justice Institute, a nonprofit criminal justice research and consulting organization, found that diversion agreements that keep youth out of court in Kentucky have been steadily rising, from 40 percent of cases in 2012 to 55 percent in fiscal year 2017.
But more black youth were denied diversion than received it.
The absence of that choice matters: Kentucky Administrative Office of the Courts statistics show that the vast majority of youth offered diversion stay out of trouble for one year.
“The research shows that, when given a chance, [black youth] are just as likely to be successful,” said Tilley, the cabinet secretary. “And that's a point we just can't turn away from.”
Westerfield has sponsored bills he believed would result in more diversion agreements, and fewer and shorter juvenile detentions. He also hopes to adjust the state law that treats kids with weapons more seriously even if the weapon wasn’t involved in the crime. But he said he struggled to convince his colleagues that it was an issue.
He theorizes that his colleagues in state government — and perhaps many who work with youth — feel singled out by allegations of bias in the system, since they are part of the system.
That theory is backed up by a statewide assessment from 2014, which found widespread dismissal of the idea that racial stereotypes or profiling could be contributing to the disparities.
“The suggestion of the possibility that [disproportionate minority contact] might be the result of ‘prejudice’ or ‘discrimination’ was nearly universally met with strong denials,” the report said of interviews with unnamed workers in local and statewide juvenile justice programs. “Such practices would be illegal, unethical, and ‘just not how we do things in this agency.’”
Researchers interviewed people who work in or alongside the juvenile justice system in four of the counties — Jefferson, Fayette, Christian and Hardin — with the biggest racial disparities. One of the most common themes they heard: these disparities don’t exist, or aren’t a problem.
Westerfield’s most recent bill didn’t pass, but the Department of Juvenile Justice and a few other agencies agreed to voluntarily collect more data on racial disparities. He is hopeful that he will be armed with more comprehensive proof in the 2019 session to make his case.
But some attitudes are hard to disprove.
Researchers heard another statement often enough in communities with disproportionate minority contact to be concerned: that black kids have different outcomes because they’re just more delinquent.
Several people interviewed said they trusted police enforcement to be a true reflection of what's happening in the community, the report said. In other words, if more black kids are getting arrested, they trust that it's justified.
In the words of one official: "When you’re looking at law enforcement making the contact, at that point I’m tending to think that it’s legitimate.”
Department of Juvenile Justice Commissioner Carey Cockerell has heard this, too, and he is dismayed each time.
“Some people have the simple understanding that, ‘Well, don't more minority kids commit crimes?’” Cockerell said. “No. They don't.”
Black Youth Less Likely To Avoid Court
Demontrea Broach spent her fourteenth birthday in a cell at the Louisville Metro Youth Detention Center.
She doesn’t remember exactly why she was there, but it was probably for the same reason she spent a lot of weekends in lockup: fights with her mother. She barely slept when she was there, which, for a stretch, was almost every weekend. One stint lasted a month.
“I felt like, this is what I deserve,” said Demontrea.
Now at 17, Demontrea sees it differently. She’s a regular participant in a KentuckianaWorks program called Reimage that has bolstered her confidence. She’s active in leadership at Seneca High School and proud of her new job at a Jimmy John’s store.
She is becoming the person she wants to be, but she didn’t get there because of a leg up from the court system. Demontrea, who is black, doesn’t recall ever being offered a chance at diversion instead of jail.
Diversion programs across the system are meant to connect more children to assistance, aid or rehabilitation before punishment. But here is why that reform often does not reach black youth:
State law automatically grants diversion in certain situations, like for minor offenses or first-time charges. The 2014 reforms created more of those scenarios. But if a youth has prior offenses, especially serious ones, this option can disappear.
In other cases, youth are offered diversion on the recommendation of court-designated workers, the name for the caseworkers who oversee diversion. Those workers weigh a set of criteria that includes past offenses and a child’s home and school life to determine the likelihood that a diversion will work.
But even if a youth qualifies or is recommended by a court designated worker, judges or prosecutors can still unilaterally decide to re-route youth back into the courtroom rather than to diversion. That’s called an override. Data shows that prosecutors and judges statewide use their override discretion disproportionately among black youth.
In fiscal year 2012, about 35 percent of the youth sent to court after an override were black, another racial minority or an unknown race. By 2017, the proportion of youth of color grew to 44 percent.
Prosecutors or judges in Jefferson, Christian and Fayette counties used more than half of their overrides on black youth last year, according to data provided by the Kentucky Administrative Office of the Courts.
But there is still no clear answer for why these diversion overrides occur more often for black youth.
Pamela Lachman, a researcher with the Crime and Justice Institute, believes the racial disparities are now a big part of the statewide discussion about further juvenile justice reform.
She has spent several years on a contract to help implement the 2014 reforms and track the reform’s impact, and she has often raised the disproportionality concerns with the state’s juvenile justice oversight council.
“There is a significant issue of disproportionality in the state, and there is a lot that is required to address that issue,” Lachman said. “You’re still seeing it's a problem because the problem hasn’t been completely solved.”
For example, many youth are automatically given diversion overrides because they were detained the night of an arrest, even though many would have still been eligible for a diversion, Lachman said her research shows. At other points, judges or prosecutors may see a case file and decide the youth is too dangerous or the offense too problematic to give a pass.
Lachman said it’s impossible to parse out whether the choice to override is due to a perception that a youth has a bad attitude, the particular circumstances of a crime or some other cause. Judges and prosecutors are not required to provide a reason in the record.
“I don't think there's a way to really quantify how much of it is that [discretion] versus a particular policy issue,” she said.
Advocates for youth say every contact with the system increases the chances of recidivism; the deeper youths get into the system, the harder it can be to pull them out.
“There's not a person that hears these numbers that isn’t just devastated,” said Rachel Bingham, Kentucky Administrative Office of the Courts executive officer. “I think that there is an obvious need for us to dig quite deeply into the disproportionality concerns.”
The biggest policy change that could drive change, according to University of Louisville criminal justice professor Cherie Dawson-Edwards, would be agencies sharing their data statewide on youth who touch the juvenile justice system.
The local police departments’ systems are separate from the state Department of Juvenile Justice, which runs most detention centers. Those records, too, are separate from the courts and from the Cabinet for Health and Family Services, which tracks youth in the foster system with a strong overlap. No one can claim with any authority to piece together state interventions over the whole court of a person’s youth, she said.
“If we can track kids through the system and find out how they’ve gotten cumulatively disadvantaged through the system, that could change the game in interventions,” Dawson-Edwards said. “Right now, we’re just looking at pieces. It’s easy to say, ‘It’s the police arresting them,’ or, at DJJ, ‘We just get the kids that we get.’”
Contact Kate Howard at (502) 814.6546 or khoward@kycir.org.
