C. What Causes Racial Disparities?
The United States has struggled with these issues since its inception and so a full discussion
of the influence of race and culture on the justice system—including the factors that led to current
societal divides and the history of racial inequality—is too complex and multifaceted for one
36 Additionally, changes to the criminal justice system alone will not rectify the conflict.
Yet the aim of this Article is to contribute to the conversation by exploring the terminology and
significance of the issue within the realm of the justice system as it pertains to youth. As a result,
various causes might include legislative policies, decision-making by criminal justice practitioners
who exercise broad discretion in the justice process at one or more stages in the system, or law
enforcement emphasis on particular communities.
It is indisputable that race, culture and Indigeneity broadly affect one’s experience in
37 Within the realm of the justice system, examples of explanations include the early life
38 which highlights the correlation between youth who experience the child
welfare system and the justice system.
39 Under this theory, many professionals believe that the
Disproportionality Movement in Child Welfare: False Facts and Dangerous Directions, 51 ARIZ. L. REV. 871, 923
36Racial disparities in imprisonment in the United States, for example, were much smaller at the beginning of the
twentieth century, closer to 2 to 1, compared to more than 6 to 1 today. Pamela Oliver, Racial Disparities in
Imprisonment, DEP’T OF SOC., UNIV. OF WIS. MADISON,
http://www.ssc.wisc.edu/~oliver/RACIAL/Reports/meparticledraft3.htm. (Dec. 25, 2004). See, e.g., Margaret Simms,
et al., , Racial and Ethnic Disparities Among Low-Income Families, THE URBAN INSTITUTE (Aug. 2009),
http://www.urban.org/uploadedpdf/411936_racialandethnic.pdf (explaining that low-income status varies
significantly by race and ethnicity); The Persistence of Racial and Ethnic Profiling in the United States: A Follow-Up
Report to the U.N. Committee on the Elimination of Racial Discrimination, AM. CIVIL LIBERTIES UNION AND THE
RIGHTS WORKING GRP. (2009) (analyzing the prevalence of racial profiling on the federal, state, and local levels);
Elizabeth N. Jones, Disproportionate Representation of Minority Youth in the Juvenile Justice System: A Lack of
Clarity and Too Much Disparity among States “Addressing” the Issue, 16 UC DAVIS J. JUV. L. & POL’Y 155, 157
(2012)(stating “The overrepresentation of youth of color in the juvenile justice system reveals a dissonance between
our country’s treasured philosophy of judicial equality for all and the cold reality of racial disproportionality.”).
37Paul Brest, Forward: In Defense of the Antidiscrimination Principle, 90 HARV. L. REV.
1, 4-5, 22-26 (1976). See,
e.g., Richard A. Primus, Equal Protection and Disparate Impact: Round Three, 117 HARV. L. REV. 493 (2003)
[hereinafter Primus, Three Rounds], (analyzing whether modern equal protection doctrine can prohibit the passing of
disparate impact statutes). See also Richard A. Primus, The Future of Disparate Impact, 108 MICH. LAW. REV. 1341
(2010) [hereinafter Primus, The Future](analyzing how the Supreme Court’s decision in Ricci v. DeStefano affects
the relationship between disparate impact and equal protection); JUST SCHOOLS: PURSUING EQUALITY IN SOCIETIES
OF DIFFERENCE (Martha L. Minow, Richard Shweder & Hazel Rose Markus eds., 2008) (examining the specific issues
of equality, freedom, and fairness in schools); Unshared Bounty: How Structural Racism Contributes to the Creation
and Persistence of Food Deserts, AM. CIVIL LIBERTIES UNION & N.Y. LAW SCH. RACIAL JUST. PROJECT (2012),
(discussing the correlation between food deserts and race).
38Caitlin E. Burns, Examining Juvenile Delinquency Contributors through Life-Course and Strain Theory, EAST
TENNESSEE STATE UNIVERSITY 2, 1, 15 (2013), http://dc.etsu.edu/cgi/viewcontent.cgi?article=3655&context=etd.
39Shay Bilchick and Michael Nash, Child Welfare and Juvenile Justice: Two Sides of the Same Coin, JUVENILE AND
FAMILY JUSTICE TODAY
http://cjjr.georgetown.edu/pdfs/Fall%2008%20NCJFCJ%20Today%20feature.pdf; Emmeline Chuang and Rebecca
Wells, The Role of Interagency Collaboration in Facilitating Receipt of Behavioral Health Services for Youth Involved
with Child Welfare and Juvenile Justice, CHILD YOUTH SERV REV. 1814-22 (Dec. 1, 2010),
h.gov/pmc/articles/PMC2976554/; Cindy Blackstock and Nico Trocmé, Community-Based
Child Welfare for Aboriginal Children: Supporting Resilience Through Structural Change, 24 SOC. POL’Y J. NZ 12,
29 (Mar. 2005), http://www.mcgill.ca/files/crcf/2005-Communiy-Based_Welfare_Aboriginals.pdf; Dorothy Roberts,