52 Children’s Legal Rights Journal [Vol. 36: 1 2016]
poorer the child, the more at-risk that child is for abuse, neglect and for graduating into the youth
40 Dr. Randall Kennedy notes that “given the history of race and racism [in the
United States] [and] given the deplorable conditions suffered disproportionately by black
families—conditions that produce high rates of substance abuse and other self-destructive
behavior—it would be surprising if black children did not have higher rates of contact with the
child welfare system [and justice system] than white children.”
41 Because racism is an issue of
power and occurs when prejudice, privilege and power intersect, these theories stress not only the
correlation but also emphasize that history and context play a significant role in discussions.
Similarly, institutionalized or structural racism also stems from longstanding differential
To offer another example, there are also those that argue that disparity evinces bias, either
explicit (intentional / known) or implicit (not plainly expressed or clear), and that this is the root
of racial disparity.
44 Implicit bias has an especially astonishing effect on a range of human
interactions and has “significant implications for participants in the criminal justice system.”
danger lies in the fact that this bias is both implicit and pervasive, and so even those with the best
of intentions might not be aware of how personal bias can affect not only individual actions, but
also the experience of those in the system.
46 With regard to youth in the justice system, implicit
The Racial Geography of Child Welfare: Toward a New Research Paradigm 87 CHILD WELFARE 1, 2 (2008).
40See, e.g. Rolf Loeber, David P. Farrington and David Petechuk, Child Delinquency: Early Intervention and
Prevention, Child Delinquency Bulletin Series (Ed. J. Robert Flores), DEPT. OF JUSTICE
1, 6-7 (2003),
https://www.ncjrs.gov/pdffiles1/ojjdp/186162.pdf (describing early risk factors for delinquency and negative
behavior, including environment and discussing the correlation between environmental factors in the early years of
childhood and behavior); Andrea J. Sedlak et. al., Supplementary Analyses of Race Differences in Child Maltreatment
Rates in the NIS- 4, U.S. DEP’T OF HEALTH AND HUMAN SERVICES, 1 (Mar. 2010).
41Elizabeth Bartholet et al., Race and Child Welfare, CHAPIN HALL ISSUE BRIEF
1, 2 (June 2011),
http://www.law.harvard.edu/faculty/bartholet/RD%20Conference-%20Issue%20Brief%20- %20Final.pdf. One
professor even argues that the United States justice system is a vestige of slavery, which was itself a racially driven,
form of private policing. Victor E. Kappeler, A Brief History of Slavery and the Origins of American Policing,
EASTERN KENTUCKY U. (Jan. 7 2014), http://plsonline.eku.edu/insidelook/brief-history-slavery-and-origins-american-policing.
42How to Be a White Ally, Black Millennials (Oct. 16, 2014), http://blackmillennials.com/2014/10/16/how-to-be-a-
white-ally/ (explaining what racism is); Audrey Smedley, Racism, ENCYCLOPEDIA BRITANNICA,
http://www.britannica.com/topic/racism (last visited Mar. 31, 2015).
43Charles R. Lawrence, III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L.
REV. 317, 322 (1987) (arguing that “Americans share a common historical and cultural heritage in which racism has
played and still plays a dominant role” and that as a result “unconscious racism” is embedded within our civic
44See, e.g., Jerry Kang, Implicit Bias - A Primer for Courts, AM. BAR ASS’N
2 (Aug. 2009),
checkdam.pdf (introducing the concept of implicit bias and connecting the dots between the theory and issues around
race); Shawn C. Marsh, The Lens of Implicit Bias, JUV. AND FAM. JUST. TODAY 18 (2009) (describing implicit bias
and how this affects our decisions, including with regard to race). Suman Kakar, Understanding the Causes of
Disproportionate Minority Contact: Results of Focus Group Discussions, 34 J. CRIM. JUST. 369-81 (2006).
45Building Community Trust: Improving Cross-Cultural Communication in the Criminal Justice System, AM. BAR
(last visited Mar. 31, 2015).
46See This American Life, Cops See It Differently: Part One, National Public Radio (Feb. 6, 2015),
http://www.thisamericanlife.org/radio-archives/episode/547/cops-see-it-differently-part-one (explaining on an