Week 5: Discussion- Justice and Juvenile Justice

Reducing Justice System Inequality: Introducing the Issue

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John H. Laub is Distinguished University Professor in the Department of Criminology and Criminal Justice at the University of Maryland,
College Park.

T
he topic of inequality in the
United States has become
virtually impossible to ignore,
and the justice system is
an important part of the

discussion. Witness the recent National
Research Council report on the causes and
consequences of the country’s high rates
of incarceration, especially for minority
offenders.1 We’ve also heard heated debates
about the stop, question, and frisk policies
followed by police in New York City and
elsewhere.2 More broadly, legal scholar
Michelle Alexander has referred to mass
incarceration and other justice system
policies as “the New Jim Crow” in America.3

When considering the known facts about
crime, offenders, victims, and the justice
system response, important complexities arise
that both reflect and contribute to inequality
in the wider society. The fundamental fact
is that criminal offending and criminal
victimization for common law crimes (which
include murder, rape, robbery, assault,
burglary, motor vehicle theft, and larceny)
aren’t randomly distributed across persons
and places. Inequalities are present in the
patterns of serious criminal offending and
serious criminal victimization even before

Reducing Justice System Inequality:
Introducing the Issue

John H. Laub

any contact with the justice system. Chronic
offending is also related to gender, race, and
social class.4 We can think of these known
facts as input to the justice system.

At the same time, the justice system’s
responses exacerbate inequality among young
people in America. We can think of these
responses as output from the justice system
that reinforces and deepens inequalities;
researchers have increasingly examined the
collateral consequences of justice system
involvement. The distinction between input
and output suggests that while crime and
justice system involvement are typically
considered to be outcomes, crime and justice
system involvement may also drive inequality.

Setting the Stage

Though it’s vitally important to focus on
fundamental inequities that occur before
people become involved with justice system,
this issue of Future of Children examines
how the justice system reinforces and
exacerbates inequities among children,
adolescents, and young adults, and how
alternative policies, programs, and practices
might mitigate those effects. The issue has
four distinctive features. First, it covers the

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4 T H E F U T U R E O F C H I L D R E N

entire justice system, starting with stop,
question, and frisk by police on the street
and continuing through each stage of the
process—policing (arrest, booking, lockup),
courts (arraignment, trial, conviction), and
corrections (probation, jail, prison, and
parole). Second, it devotes special attention
to schools, in particular school suspensions
and the role of the police—school resource
officers—in schools. Third, it examines three
domains that contribute to the reproduction
of inequality but have received little attention
from researchers and policy makers—foster
care, probation, and jails. Fourth, and most
important, it assesses policies, programs, and
practices to reduce justice system inequality.
What strategies have worked? What
strategies should be tried? What strategies
should be avoided?

The articles in this issue should be viewed
from a life-course perspective that puts
persons in context. Such a perspective
acknowledges that individuals are embedded
in broader structures, and that individual
behavior is the product of interaction
between personal development and social
context—family, school, neighborhood, and
the like. The justice system directly and
indirectly impinges on these intersecting
domains. These direct and indirect effects
are often cumulative and can compound
over time. Along with my colleague Robert
Sampson, I have articulated a theory that
cumulative disadvantage over the life
course has a snowball effect. Specifically,
early misconduct in childhood, as well as
adolescent delinquency and its negative
consequences (such as arrest, official
labeling, and incarceration), increasingly
jeopardize a child’s future development.5 If
we can better understand the mechanisms
that exacerbate inequality at the individual,
family, school, and neighborhood levels, and

see how they interact and overlap, we can
help identify promising interventions.

Given recent bipartisan support for criminal
justice reform, now is a particularly good
time to take stock of the policies, programs,
and practices that may reduce justice system
inequality. Each article in this issue assesses
such policies, programs, and practices in
detail. Thus, this issue offers a much-needed
evidence-based voice in discussions of how to
reform the justice system.

Summary of the Articles

Cutting Off the Pipeline

The first two articles look at schools and
foster care, both of which can be viewed
as feeders into the justice system. In “The
Role of Schools in Sustaining Juvenile
Justice System Inequality,” Paul Hirschfield
explores how school experiences contribute
to disproportionate minority confinement in
the juvenile justice system. Examining the
“school-to-prison pipeline,” he distinguishes
between micro-level processes that affect
individuals and macro-level processes that
affect schools and communities. At the micro
level, Hirschfield finds that black students
who violate the rules are more likely to
receive out-of-school suspension, experience
arrests at school by school resource officers
(police in schools), and be transferred to
alternative schools for disciplinary reasons.
Suspension elevates the risk that these
students will be arrested in the community,
and ultimately convicted and imprisoned.
Suspension has also been linked to dropping
out of school, which leads to more juvenile
justice involvement.

At the macro level, a school’s racial
composition affects its rates of out-of-school
suspension, surveillance, and police presence.

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In addition, schools with lower test scores
and lower grades appear to use harsher
disciplinary methods. Black students tend
to attend schools that have higher rates of
suspension, extensive surveillance, more
police officers, and harsher discipline.

Hirschfield makes two recommendations
to reduce schools’ influence on juvenile
justice inequality, both of which focus on
reducing out-of-school suspensions, arrests
in schools, and school-based court referrals.
The first recommendation is to introduce
school-based restorative justice practices
that offer alternative forms of conflict
resolution and seek to enhance students’
connection to school. The second is to
adopt Positive Behavioral Interventions and
Supports (PBIS), a system that trains school
staff in nonpunitive methods of behavior
management. Under PBIS, unruly students
are offered individualized supports rather
than being suspended. Restorative justice
and PBIS keep students in school without
compromising school safety or performance.
According to Hirschfield, in both cases
the key to reducing disproportionate
minority confinement is to target high-
risk students and high-risk schools. The
costs of these methods aren’t trivial, nor
are the challenges in implementing them,
but Hirschfield points to several successful
models.

In the next article, “Can Foster Care
Interventions Diminish Justice System
Inequality?,” Youngmin Yi and Christopher
Wildeman examine how the foster care
system channels children and adolescents
into the justice system, especially poor
minority children. The child welfare
system has long overlapped with the justice
system, but this topic has yet to receive
the attention it deserves. Just as there’s

a school-to-prison pipeline, there is also a
foster-care-to-prison pipeline.

Drawing on extensive research, Yi and
Wildeman show that children and youth in
foster care are more likely to be racial/ethnic
minorities and to come from poor families.
Youth in foster care are more likely to
experience juvenile justice contact, and to be
arrested and incarcerated once they become
adults. Moreover, placement in foster care
is associated with higher risks of substance
abuse, housing instability, lower educational
attainment and poorer job prospects, teen
pregnancy, and compromised mental health.
Finally, those who age out of foster care
at 18 are more at risk for homelessness,
unemployment, and incarceration in early
adulthood. Foster care thus contributes to
inequality in both the justice system and
wider society.

Yi and Wildeman examine what happens
to children during their stay in foster care
and after they age out of the system. The
authors offer strategies that could reduce
justice system inequality at both stages.
With respect to foster care placement, they
suggest improving the stability, quality, and
permanence of placements; offering more
support for caregivers; and expanding and
improving access to substance use and
mental health treatment. As for aging out,
they recommend extending foster care
placement and services beyond age 18,
providing legal support for foster youth,
extending employment and educational
support, and providing housing and health
care for late adolescents and young adults.

Justice System Avoidance

The next article looks at one of the most
popular reform policies for reducing justice
system inequality: diversion away from the

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6 T H E F U T U R E O F C H I L D R E N

justice system. Along with decriminalization,
due process, and deinstitutionalization,
diversion was a popular juvenile
justice policy during the 1970s.6 In
“Decriminalizing Racialized Youth through
Juvenile Diversion,” Traci Schlesinger
makes an important distinction between
informal and formal diversion. Informal
diversion keeps youth out of the justice
system entirely, while formal diversion
entails providing services to youth in the
hope of minimizing their involvement with
the justice system. Schlesinger argues that
informal diversion is best suited for low-risk
youths, while formal diversion is a better fit
for those at high risk. She concludes that
these two forms of diversion can reduce
overall involvement in the justice system,
confinement in punitive settings, and racial
disparities.

Schlesinger finds obvious gaps in the
research, and notes several challenges to
making diversion policies successful—for
example, the need for risk assessments that
don’t replicate racial disparities. In addition,
the strategy of formal diversion requires
that youth be able to access extensive
services in the communities where they
live, rather than in the justice system, a
condition that’s becoming more difficult at
a time when cities and states face budget
crises and federal funds are dwindling or
have been eliminated. Finally, we must
ensure that diversion programs are properly
implemented and that the youth who begin
diversion programs actually complete them.

Justice System Reform

The next four articles deal with various
aspects of the justice system. In the first
one, “‘Kids Do Not So Much Make Trouble,
They Are Trouble’: Police-Youth Relations,”

Rod Brunson and Kashea Pegram focus
on the police, arguably the most visible
component of the justice system. Examining
research on policing practices regarding
children and youth, the authors find that
police officers wield enormous discretion and
that their encounters with youth, especially
those of color, are fraught with difficulties.
Considerable evidence shows that young
black and Latino youth have disproportionate
contact with the police, and that direct and
indirect experiences with the police shape
youths’ attitudes toward them. Finally,
and not surprisingly, much of the tension
surrounding the police and communities
of color results from perceptions of the
heavy-handed policing strategies—like stop,
question, and frisk—predominantly used
in high-crime neighborhoods that typically
have a higher proportion of people of color as
residents. These policies contribute to justice
system inequality, especially with regard to
race, ethnicity, and social class.

Brunson and Pegram offer three strategies to
reduce justice system inequalities in policing.
The first is the now familiar recommendation
to improve trust between residents and the
police. Though doing so may not be easy,
the authors point to emerging evidence
that the police can help residents build the
collective efficacy to promote informal social
control, and that increased interactions
with youth can shift attitudes toward the
police in a positive direction. The second
recommendation involves continuing the
use of consent decrees, which are legal
channels to reform the police. Though
consent decrees are promising, research
hasn’t definitively established that they
can reduce justice system inequalities and
restore public confidence in the police.
The third recommendation is that police
chiefs should take the lead in reducing the

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number of civilians killed by the police in
their departments. The authors note that the
Black Lives Matter movement is drawing
nationwide attention to racially biased
policing with respect to lethal and nonlethal
police violence. They write that “substantial
reductions in the number of civilians killed
by officers would help assuage tensions
concerning the ultimate justice system
inequality.”

The second article in this set focuses on jails,
which despite their ubiquity are one of the
least explored aspects of the justice system.
Although the US prison population far
exceeds the jail population on any given day,
each year more than 13 million people move
in and out of America’s more than 3,000
jails. Along with this constant churn, the jail
population’s composition presents its own set
of challenges—for example, most people held
in jail have not been convicted of a crime.

In “Jails and Local Justice System Reform:
Overview and Recommendations,”
Jennifer Copp and William Bales provide
a comprehensive look at jails, including
the facilities and operations, characteristics
of those held in jail, and conditions of
confinement. The authors conclude that
justice system inequality is increased both
by current pretrial release practices and by
the lack of programs for those who have
been convicted and are serving time in jail—
people who are often struggling with poverty,
unemployment, homelessness, poor physical
health, mental illness, or substance abuse.

With respect to policy, Copp and Bales
devote considerable attention to nonfinancial
forms of release for those being held in
jail while awaiting trial. They contend that
cash bail should be used only for accused
offenders who pose a legitimate flight risk

based on validated risk assessment tools.
Otherwise, accused offenders, especially
those who are indigent, should be allowed
to stay in their communities so they can
keep their jobs while awaiting trial. Copp
and Bales’s other policy recommendations
include adopting validated pretrial risk
assessment tools, expanding pretrial services,
increasing the use of diversion away from
the justice system, finding alternatives to jail
incarceration for convicted offenders, and
expediting case processing to decrease both
the time to trial and the overall length of stay.
To fully implement these recommendations,
more research will be needed to establish
which policies, programs, and practices are
best for the jail population. The authors make
a convincing case that jails should be front
and center in discussing reforms to downsize
prison populations at the state and federal
level.

The third article in this set covers
probation—that is, supervision in the
community instead of imprisonment.
America’s exceptionally high rates of
incarceration are well documented, but we
also have high rates of probation. Indeed, for
both juveniles and adults, probation has long
been the most commonly imposed sanction
in the justice system. Yet surprisingly little
research has explored probation and its
role in exacerbating inequality in the justice
system.

In “Ending Mass Probation: Sentencing,
Supervision, and Revocation,” Michelle
Phelps asks whether probation is a net-
widener (that is, whether it simply places
more people under the control of the justice
system) or a true alternative to imprisonment.
Her answer is that it’s both. She looks at
three aspects of probation—which people
are sentenced to probation, the experience

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8 T H E F U T U R E O F C H I L D R E N

of supervision, and trends in revocation of
probation—and pays special attention to
the ways mass probation affects individuals,
families, and communities.

Phelps makes a number of policy
recommendations to reduce the justice
system inequality generated by mass
probation. These include avoiding
net-widening by embracing true
decriminalization and diversion; improving
supervision through smaller probation
caseloads and ensuring that those on
probation are appropriate candidates;
and reducing the number of conditions—
especially those that create hardships for
probationers—as well as the time period
and the overall rate of probation revocation.
In particular, Phelps calls for eliminating a
return to prison for technical violations of
probation conditions.

The fourth and final article in this set
examines how parental incarceration affects
children and youth. Researchers have
documented the harmful consequences
of parental incarceration for children and
youth across a number of domains. These
effects are felt more acutely by black and
Hispanic children and by children living in
disadvantaged neighborhoods. In “Parental
Incarceration and Children’s Wellbeing,”
Kristin Turney and Rebecca Goodsell find
that parental incarceration has been linked
to a wide range of negative outcomes for
children and youth. These include behavioral
problems like aggression, educational
outcomes such as being held back a grade,
health outcomes such as depression,
and hardship and deprivation, including
homelessness and food insecurity. Many
contingencies can affect these outcomes: the
nature of the parent-child bond, maternal
versus paternal incarceration, whether

the incarcerated parent is custodial or
noncustodial, and contact with the parent
during incarceration, to name a few. In their
review of programs designed to improve
the wellbeing of children whose parents are
incarcerated, Turney and Goodsell reveal an
interesting mismatch: while many programs
focus on maternal incarceration, the effects
of paternal incarceration appear to be more
profound. Even more important, the authors
suggest other types of programs that may
reduce inequalities among these children,
including interventions that strengthen
parental relationships, enhance economic
wellbeing and reduce child poverty, and
improve access to substance abuse treatment.

Moving Policy Forward

As I mentioned at the outset, inequality is
a prominent topic of discussion and debate
in the United States today. I’ve argued that
although serious inequalities exist even
before justice system involvement, the justice
system itself exacerbates inequality, especially
for blacks and other minorities.7 Each
article in this issue highlights justice system
disparities with respect to race, ethnicity, and
socioeconomic status. Moreover, the authors
make it abundantly clear that justice system
policies, programs, and practices affect not
just individuals but also families, schools, and
communities at large.

The articles discuss strategies that may
well reduce justice system inequality. I’d
like to make several points that put these
recommendations in a broader context. First,
it’s not easy to change policies to reduce
justice system inequality, especially with
regard to racial disparities. For example,
a recent report by the Sentencing Project
shows that although the number of youths
sent to juvenile facilities after adjudication

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dropped by 47 percent between 2003 and
2013, racial disparities didn’t improve;
in fact, the gap between black and white
youth in secure confinement increased by
15 percent.8 Second, in any of the topics
covered in this issue, we can’t ignore the
enormous variation in the treatment of youth
and the consequences they experience.
Such heterogeneity is evident in school
experiences, foster care placements,
interactions with the police, jail stays, and
probation experiences at the individual, city,
county, and state levels.

Third, data on crime and the justice system
response are notoriously weak. We need
stronger data and a broader research
infrastructure to successfully translate
research into effective and fair justice
system policies. Fourth, there are important
gaps in our data—for example, we know
very little about LBGT youth in the justice
system—and in our research. We need more
research on such topics as alternatives to
out-of-school suspensions; extending the age
of foster care; the effectiveness of consent
decrees in police departments; establishing
the best policies, programs, and practices
for the jail population; and matching youths’
needs to particular diversion programming.
We often lack causal evidence regarding the
effects of policies, programs, and practices.
Finally, we must move beyond assessing what
works to assessing why something works,
and for whom. To do so, we’ll need to test
the underlying mechanisms of our policy
interventions.

In the meanwhile, we can do better. We do
know that the justice system exacerbates
inequality, and we must change the policies,

programs, and practices that do so. In an
interesting article, Harvard economist
Sendhil Mullainathan advocates a different
approach to reducing inequality.9 Using
the metaphor of headwinds and tailwinds,
Mullainathan writes that “we tend to
remember the obstacles we have overcome
more vividly than the advantages we have
been given.” A fruitful strategy might be to
remove headwinds, which make progress
more difficult, and at the same time promote
tailwinds, which help us move forward.
Indeed, the authors in this issue call for
removing headwinds by such means as
reducing out-of-school suspensions, ending
cash bail, and lessening the conditions
for probation. They also call for creating
tailwinds by, for example, extending foster
care beyond age 18, providing community-
based alternatives to jail, and creating
place-based and school-based services for the
children of incarcerated parents.

My hope is that we can experiment with
policies, programs, and practices to shape
research and simultaneously generate new
research to shape policies, programs, and
practices—breaking down the barriers
between the research and practice
communities and creating a dynamic two-
way street between them. Thus it’s vital
that scholars craft research agendas that
are relevant for policy and practice. This
idea is captured in what I call translational
criminology, which offers a new view of the
research enterprise by engaging practitioners
and policy makers throughout the research
process.10 Insights from policy makers and
practitioners in the field are crucial to the
research process and essential for moving
policy forward.

John H. Laub

1 0 T H E F U T U R E O F C H I L D R E N

Endnotes

1. Jeremy Travis, Bruce Western, and Steve Redburn, eds., The Growth of Incarceration in the United
States: Exploring Causes and Consequences (Washington, DC: National Academies Press, 2014).

2. Daniel Bergner, “Is Stop-and-Frisk Worth It?,” Atlantic Monthly, April 2014, https://www.theatlantic.com/
magazine/archive/2014/04/is-stop-and-frisk-worth-it/358644.

3. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, revised edition
(New York: New Press, 2012).

4. Marvin E. Wolfgang, Robert M. Figlio, and Thorsten Sellin, Delinquency in a Birth Cohort (Chicago:
University of Chicago Press, 1972); Alfred Blumstein et al., eds., Criminal Careers and “Career
Criminals,” vol. 1 (Washington, DC: National Academies Press, 1986); Paul E. Tracy and Kimberly
Kempf-Leonard, Continuity and Discontinuity in Criminal Careers (New York: Plenum Press, 1996).

5. Robert J. Sampson and John H. Laub, “A Life-Course Theory of Cumulative Disadvantage and the
Stability of Delinquency,” in Developmental Theories of Crime and Delinquency, ed. Terence P.
Thornberry (New Brunswick, NJ: Transaction Publishers, 1997), 133–61.

6. LaMar T. Empey, “Epilogue,” in Juvenile Justice: The Progressive Legacy and Current Reforms, ed.
LaMar T. Empey (Charlottesville: University Press of Virginia, 1979), 291–96.

7. John H. Laub, Understanding Inequality and the Justice System Response: Charting a New Way Forward
(New York: William T. Grant Foundation, 2014).

8. Joshua Rovner, Racial Disparities in Youth Commitments and Arrests (Washington, DC: The Sentencing
Project, 2016).

9. Sendhil Mullainathan, “Taking a Different Approach to Inequality,” New York Times, New York edition,
April 30, 2017, BU3.

10. John H. Laub, “Translational Criminology,” Translational Criminology (Fall 2012), 4–5.

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