Criminalizing Normal Adolescent Behavior in Communities of Color: the Role of Prosecutors in Juvenile Justice Reform

There is little dispute that racial disparities pervade the contemporary American juvenile justice system. The persistent overrepresentation of youth of color in the system suggests that scientifically supported notions of diminished culpability of youth are not applied consistently across races. Drawing from recent studies on implicit bias and the impact of race on perceptions of adolescent culpability, Professor Kristin Henning contends that contemporary narratives portraying black and Hispanic youth as dangerous and irredeemable lead prosecutors to disproportionately reject youth as a mitigating factor for their delinquent behavior. Although racial disparities begin at arrest and persist through every stage of the juvenile justice process, this Article focuses specifically on the unique opportunity and obligation that prosecutors have to address those disparities at the charging phase of the juvenile case. Professor Henning implores juvenile prosecutors to resist external pressures to respond punitively to exaggerated perceptions of threat by youth of color and envisions a path toward structured decision making at the charging phase that is informed by research in adolescent development, that challenges distorted notions of race and maturity, and that holds prosecutors accountable for equitable decision making across race. While fully embracing legitimate prosecutorial concerns about victims’ rights and public safety, Professor Henning frames the charging decision as one requiring fairness, equity, and efficacy. Fairness requires prosecutors to evaluate juvenile culpability in light of the now well-documented features of adolescent offending. Equity demands an impartial application of the developmental research to all youth, regardless of race and socioeconomic status. Efficacy asks prosecutors to rely on scientifically validated best practices for ensuring positive youth development and achieving public safety. Thus, even when neighborhood effects and social structures produce opportunities for more serious and frequent crime among youth of color, prosecutors have a duty to evaluate and respond to that behavior with the same developmentally appropriate options that are so often available to white youth.