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Analysis

Treating All Kids as Kids

Persistent and longstanding racism has fueled harsher treatment of young Black people in the justice system.

  • Kim Taylor-Thompson
May 24, 2021
View the entire Punitive Excess series

This essay is part of the Bren­nan Center’s series examin­ing the punit­ive excess that has come to define Amer­ica’s crim­inal legal system.

Amer­ica’s mistreat­ment of Black chil­dren is chronic and casual. Sadly, it is an Amer­ican phenomenon — a handed-down thing — that is deeply rooted in Amer­ican soil and in the Amer­ican psyche. Virtu­ally every system that touches Black chil­dren in this coun­try — public schools, foster care, immig­ra­tion — treats them more harshly than white chil­dren. Argu­ably, though, the most acute harm occurs in the crim­inal justice system, where we routinely exer­cise the power to desig­nate and derail.

On a daily basis, the system prema­turely labels Black chil­dren as adults, ignor­ing the child in the offender. We care­lessly discard young Black offend­ers in a struc­ture never designed for chil­dren. There, these young people lose much more than their free­dom. They lose the oppor­tun­ity to develop in a health­ier envir­on­ment. They can expect lifelong chal­lenges asso­ci­ated with less educa­tion, increased mental health prob­lems, higher rates of suicide, and greater finan­cial instabil­ity. To inter­rupt this persist­ent pattern of mistreat­ment, we need to adopt a bright line rule prohib­it­ing the prosec­u­tion of anyone under 21 in the adult crim­inal justice system.

Chil­dren have the right to be chil­dren. But our crim­inal justice system routinely ignores that real­ity when applied to Black chil­dren. Both brain science and common sense confirm that an adoles­cent’s act differs signi­fic­antly from that of a mature adult. Adoles­cents are works in progress who exhibit signa­ture traits. They are impuls­ive, they have greater diffi­culty recog­niz­ing and regu­lat­ing emotional responses, and they fail to appre­ci­ate fully the risks of their beha­vior, favor­ing short-term rewards over poten­tial costs. Adoles­cents succumb more read­ily to negat­ive external influ­ences such as the beha­vior of peers — even their very pres­ence, in fact — and the influ­ence of unstable envir­on­ments.

But neur­os­cience tells us that the regions of the adoles­cent brain govern­ing impulse control and risk avoid­ance have not yet fully formed. The good news is that these traits are not fixed; volat­il­ity and impetu­os­ity are trans­it­ory. As young people mature into their mid-20s, they are better able to resist emotional impulses and regu­late their beha­vior thanks to the devel­op­ment of brain struc­tures and systems involved in exec­ut­ive func­tion and impulse control. By the time young people reach their mid-20s, most will stop enga­ging in crim­inal conduct.

In recent years, this evid­ence has begun to persuade a grow­ing number of courts and poli­cy­makers to ques­tion the national reflex to desig­nate younger and younger people as adults in the crim­inal justice system. But the dark under­belly of that hope­ful story is that not all chil­dren enjoy the bene­fits of that new approach. Even as we exper­i­ence a reduc­tion in our youth justice popu­la­tion, racial dispar­it­ies persist. The prism of race distorts our percep­tion of the Black youth­ful offender and misshapes the Black child’s exper­i­ence of justice. Three inter­sect­ing phenom­ena are at play: stereo­typ­ical assump­tions, dehu­man­iz­a­tion, and “adul­ti­fic­a­tion.”

The “Black person as crim­inal” stereo­type, which equates danger­ous­ness with skin color, has demon­strated remark­able resi­li­ence over time. It persists even in light of conflict­ing data. Indeed, the narrat­ive is so pervas­ive and cultur­ally ingrained in Amer­ica that we impli­citly make the connec­tion even when we expli­citly reject the view. We see young Black offend­ers as anim­als or savages who engage in “wild­ing” beha­vior. The process of dehu­man­iz­a­tion turns Black chil­dren into undif­fer­en­ti­ated objects. It deprives them of their indi­vidual features, those qual­it­ies that make them valu­able and unique. Instead, we brand them as name­less pred­at­ors.

When we add adul­ti­fic­a­tion to the mix, the justice exper­i­ence for Black chil­dren warps even further. Research reveals that we see Black boys and girls as older than their actual chro­no­lo­gical age. Parti­cipants in a series of compre­hens­ive stud­ies misper­ceived 13-year-old Black boys as 17-year-olds. Just as import­antly, the older that the parti­cipants considered the child, the more culp­able the child seemed. In a separ­ate set of stud­ies of Black girls, respond­ents considered Black girls more adult than white girls at almost all stages of devel­op­ment. That adul­ti­fic­a­tion led respond­ents to conclude that Black girls needed less nurtur­ing and protec­tion than their white peers. The bottom line is simple: together, these phenom­ena prema­turely strip Black chil­dren of the priv­ilege and protec­tions of child­hood, provok­ing danger­ous rami­fic­a­tions for them in the justice context.

We can trace an indelible through-line from this coun­try’s racist origins to today’s racial­ized mistreat­ment of young people in our justice system. During slavery, white slavers separ­ated Black chil­dren from their moth­ers because a child could garner a greater profit. This was not just prof­it­eer­ing; it was an expli­cit insist­ence that Black chil­dren were chat­tel, not human. During Jim Crow, white mobs lynched Black chil­dren if they dared cross a racial bound­ary that white soci­ety inven­ted and ruth­lessly enforced. Again, the declar­a­tion: Black chil­dren were not like other chil­dren. They needed to “know their place” in the racial caste or risk the ulti­mate sanc­tion. Our history primed this nation to expect and accept the dispar­ate treat­ment of Black chil­dren as some­how appro­pri­ate or deserved.

The 20th century justice system delivered on that expect­a­tion. Politi­cians, academ­ics, and the media created and spread a “super­pred­ator” myth­o­logy fore­cast­ing a tidal wave of viol­ence by a new breed of offend­ers. This myth­o­logy conten­ded that Black chil­dren were more pred­at­ory, more danger­ous, more adult-like than white chil­dren. Although juven­ile crime rates actu­ally dropped in this period, the threat stoked fear that white Amer­ica was in danger. That mischar­ac­ter­iz­a­tion allowed Amer­ic­ans to with­stand any tug of moral constraint in the rush to charge Black chil­dren as adults in the crim­inal justice system — chil­dren as young as nine. Politi­cians pushed “adult time for adult crime” legis­la­tion and then filled our pris­ons with young Black kids.

Even as recently as the summer of 2020, we continue to trip over remind­ers of this racial­ized treat­ment. When a white 17-year-old, Kyle Ritten­house, opened fire on protest­ers in Kenosha, Wiscon­sin, killing two protest­ers, conser­vat­ive pundits and polit­ical oper­at­ives were quick to describe him as a “little boy out there trying to protect his community.” Even when he walked past police toting a semi-auto­matic rifle, they did not stop or ques­tion him; almost certainly, an armed Black 17-year-old would not have lived to tell the story. But Ritten­house was not perceived as danger­ous. He was seen as a child. Contrast that with 12-year-old Tamir Rice, a child play­ing with a toy gun in his neigh­bor­hood park. A Clev­e­land police officer sized up Tamir in an instant. He considered him danger­ous, shoot­ing and killing him within two seconds of getting out of his patrol car — evid­ence, once again, of the perni­cious power of racial­ized percep­tions in our discre­tion­ary calls.

Retain­ing the discre­tion to charge a young offender in adult court leads to an unten­able form of racial excep­tion­al­ism: an adoles­cent’s signa­ture traits will be treated as “mitig­at­ing qual­it­ies” unless the offender is Black. Adoles­cent char­ac­ter­ist­ics skew differ­ently when we add race to the mix. Impuls­iv­ity morphs into danger­ous unpre­dict­ab­il­ity. Misbe­ha­vior in the company of peers becomes “gang activ­ity.” The inab­il­ity to appre­ci­ate long-term risks devolves into intrinsic irre­spons­ib­il­ity. So long as we allow the discre­tion­ary call to charge some offend­ers in the adult system, we will continue to see prosec­utors in juven­ile court weapon­iz­ing adult prosec­u­tion as a way to coerce a more severe outcome in juven­ile court. We will continue to see Black kids shouldered out of rehab­il­it­at­ive care even when they engage in the exact same beha­vior as white chil­dren. We will continue to see prosec­utors misper­ceiv­ing Black chil­dren’s wrong­ful conduct as will­ful rather than the product of imma­tur­ity. Break­ing this racism habit requires us to prohibit the prosec­u­tion of anyone under 21 in the adult crim­inal system.

Kim Taylor-Thompson is a professor of clin­ical law emer­ita at NYU School of Law.