Racial Disparities in South Carolina’s Juvenile Justice System: Why They Exist and How They Can be Reduced
Grace E. Driggers*
South Carolina’s juvenile justice system, like many other juvenile justice systems across the country, is afflicted by significant disparities between the numbers of Black children and White children that comprise its population. As of 2019, Black children account for only 31% of South Carolina’s population under the age of eighteen. However, they account for 61% of arrests across all categories of crimes or offenses and 57.63% of referrals to the South Carolina Department of Juvenile Justice made within that same year. The difference of as many as thirty percentage points between the number of Black children who call South Carolina home and the number that are brought into contact with the state’s juvenile justice system begs two questions: what has caused these disparities, and how can they be reduced?
The disparities at each stage of South Carolina’s juvenile justice system, which are particularly pronounced at the intake and pre-trial detention stages, are caused—at least in part—by racially biased decisions made by various individuals within the system. Individuals’ implicit or explicit biases can lead to racial disparities within the system due to the significant discretion they are currently afforded in handling each child’s case. South Carolina permits police officers, solicitors, and judges to make arrest, intake, and pre-trial detention decisions in light of what those actors believe is in a particular child’s best interest, with few if any restraints placed on those actors’ exercise of that discretion. Thus, those actors’ biases are able to influence their decisions and produce, at times, unfair results born out of bias rather than a legitimate need for a child to be arrested, prosecuted, or detained. Accordingly, disparities in the state’s juvenile justice system can be reduced by amending the South Carolina Children’s Code (S.C. Children’s Code) to place limitations on state actors’ ability to exercise broad discretion while handling a child’s case and to require that police officers attend implicit bias training.
The recent introduction of the South Carolina Juvenile Justice Reform Act (JJRA) is a promising development that could result in the reduction of racial disparities in South Carolina’s juvenile justice system. The JJRA contains at least three provisions that are likely to target and reduce the aforementioned racial disparities: Section 23, Section 26, and Section 28, which collectively would establish a presumption in favor of diversion and would reduce state actors’ authority to formally intake and detain children. The JJRA does not currently contain any provision that would require South Carolina’s law enforcement officers to undergo implicit racial bias training, although the addition of such a provision would be a positive change, consistent with the aims of the bill as it currently stands. Nevertheless, the aforementioned JJRA provisions would constrain the discretion currently afforded to officers, solicitors, and judges to make intake and pre-trial detention decisions. In turn, this would reduce the influence those individuals’ biases can have on the handling of a particular child’s case. Placing constraints on individual actors’ discretion would ensure more equal treatment of Black and White children, reduce the disparities between Black and White children present at each stage of South Carolina’s juvenile justice system, and reduce the total number of children present within the juvenile justice system. In light of the stark racial disparities that currently exist in South Carolina’s juvenile justice system and the need for prompt action to remedy those disparities, South Carolina’s legislature should make the passage of the JJRA a high priority.
Part II of this Note discusses the need for South Carolina’s legislature to target racial disparities in order to curb the impact of individual actors’ implicit and explicit racial biases on Black children and to prevent the broad discretion granted to many of these actors from creating and compounding racial disparities. Part III of this Note identifies specific provisions of the JJRA that would be especially effective at targeting and reducing racial disparities within South Carolina’s juvenile justice system. Part IV points to successful efforts made in other states, counties, and cities to target and reduce racial disparities as useful examples that South Carolina ought to follow. Part V of this Note discusses three things: how targeting early stages of the juvenile justice system is an especially effective way to reduce racial disparities; how particular portions of the JJRA would effectively reduce racial disparities present at the intake and pre-trial detention stages of South Carolina’s juvenile justice system by limiting actors’ discretion; and how an additional provision requiring implicit bias training for police officers across the state would complement and further the JJRA’s aims. Part VI concludes by highlighting the need for immediate action aimed at addressing racial disparities and the benefits all South Carolinians would reap from holding our juvenile justice system accountable to its stated goals and ideals.
There has been much scholarly debate over the cause of the racial disparities that exist in juvenile justice systems across the United States. Disproportionate Minority Contact (DMC) literature has identified several contributing factors, including disproportionate offending on the part of Black youth; environmental factors such as poverty and neighborhood location; and conscious and unconscious racial basis exhibited by police officers, school officials, and other decision-makers. These factors can be grouped into two overarching frameworks, which some researchers term “differential offending” and “differential selection.” While differential offending can explain some of the racial disparities present in South Carolina’s juvenile justice system, differential selection accounts for the bulk of the racial disparities.
Although Black children commit some offenses at higher rates than White children, those instances of differential offending do not provide a satisfactory explanation for the racial disparities in arrest, prosecution, and detention rates for all charges. Differential offending describes the “real, underlying differences between White and minority youth in the actual extent of engaging in (or the severity of) law-breaking behaviors.” For example, Black children commit certain violent crimes at a higher rate than White children. According to a study of “self-reported risk behaviors of White and African American youth” conducted by Dr. Delbert S. Elliot, 36% of Black children reported involvement in “at least one ‘serious violent offense’ by the time they were 17 years old” compared to 25% of White youth. However, Black children commit property crime at similar rates as White children, and Black children commit drug-related crimes at lower rates than White children.
Use of a differential offending framework necessitates acknowledgement of the environmental “risk factors” that many Black children face, which contribute to the aforementioned differences in crime rates. Black children disproportionately reside in “economically disadvantaged communities,” which in turn results in poor access to healthcare, education, and community programming, as well as increased exposure to “poverty, residential segregation, and neighborhood disadvantage.” Such disproportionate exposure to the aforementioned “risk factors” is “predictive of juvenile arrest” and contributes to the rate at which Black children offend. On the one hand, there are differences of a few percentage points in the rates of violent crime generally committed by Black and White children. However, the slight differences in crime rates for certain crimes do not offer a satisfactory explanation for the disparities of up to thirty percentage points in DMC in juvenile justice systems both nationally and in South Carolina specifically.
Differential selection, on the other hand, offers a more thorough explanation for the disparities between Black and White children at every stage of South Carolina’s juvenile justice system, which are generally present even where the two groups offend at similar rates. The differential selection hypothesis argues that “police, . . . prosecutors, intake officers, judges, and other justice system officials . . . [are] the primary source of racial disparities.” This framework suggests that a combination of differential treatment by police and “differential processing by the justice system” results in the over-representation of Black children in “official records.” Arrest data supports this hypothesis, with both national and state-specific data showing that Black children are arrested at significantly higher rates than White children, despite similar rates of self-reported criminal activity. Specifically, although Black children commit drug crime at lower rates than White children, Black children are arrested at higher rates for drug-related crimes in South Carolina and across the United States. Such disparate treatment is also prevalent at the intake and pre-trial detention stages of juvenile justice systems, where Black children are referred and detained at higher rates than their White counterparts. Differential selection—or racially disparate treatment of Black and White children—thus begins at the arrest stage and persists throughout subsequent stages of the system, playing a major role in the creation of racial disparities which exist both in South Carolina’s juvenile justice system and in juvenile justice systems across the country.
A significant body of research supports the argument that disparate treatment of Black and White children stems partially from racial bias which influences the decisions made by actors within the juvenile justice system and which can operate unchecked because of the discretion those actors are granted by law. For instance, officers who have relatively unchecked discretion to make initial arrests have been shown to engage in racial profiling or stereotyping of Black children, viewing Black children with heightened suspicion as well as interpreting their behavior to be “less cooperative, more gang-involved, and more threatening.” Additionally, Black children live in neighborhoods that officers tend to view as more dangerous, which means that these children interact with and are arrested by police officers at higher rates simply by virtue of the perceived character of the places in which they live.
Judges, in turn, have broad discretion to decide whether a child should be detained and what the disposition of the child’s case will be which, combined with bias, can result in unfair outcomes for the children whose cases over which they preside. A juvenile probation officer interviewed by Eleanor Hoytt and her fellow researchers in the course of writing “Reducing Racial Disparities” explained that “judges look for red flags . . . [t]hings that say a kid is going to reoffend . . . or whether things are okay for the child, like whether or not they are doing well at home.” Unfortunately, many of the “red flags” that judges have come to identify are disproportionately present in Black children’s cases, as Black children often lack access to the “family or community resources” which could qualify them “for alternatives to detention.” Accordingly, many judges “incarcerate kids for help, [because they] think that incarcerating them is the only way to get them treatment.” Bias exercised by officers, solicitors, judges, and others does not necessarily resemble the explicit racial bias that comes to mind when racial bias is discussed; it is more often implicit—and perhaps even born out of—a belief that the child’s best interests are being served by the differential treatment. However, such bias must still be curbed if Black children are to be treated equally and not disproportionately subjected to the harms that result from detention and further progression into South Carolina’s juvenile justice system.
Implicit bias, in short, refers to “the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner.” Implicit bias is particularly difficult to curtail because it “occur[s] below the level of consciousness,” as a result of “schemas, or ‘mental maps,’ developed from life experiences to aid in ‘automatic processing.’” Individuals’ implicit biases can shape how they view many things, including groups of people. Explicit bias, on the other hand, refers to conscious bias, in which an individual is “aware of their prejudices and attitudes towards certain groups,” including behaviors such as “overt racism and racist comments.” Importantly, implicit bias “does not require animus; it only requires knowledge of a stereotype” which can then produce differential treatment. Implicit bias—assumptions and stereotypes about a particular group—can thus lead a judge to believe, for example, that a Black child needs to be incarcerated in order to receive help. More broadly, implicit bias can lead a legislature or other state actor to decide that only children with certain family backgrounds or with access to particular resources should be eligible for diversion. Accordingly, implicit bias can color individuals’ decision-making without their full awareness, nevertheless resulting in discriminatory decision-making and inequitable results.
The South Carolina Children’s Code allows officers, solicitors, and judges to exercise a high level of discretion when making various determinations including intake, diversion, and pre-trial detention decisions. For example, South Carolina’s “Intake and Probation” statute places no restrictions on a solicitor’s authority to prosecute a child. The statute broadly allows the solicitor to evaluate the “recommendations [made] by the department” and then make their own determination in light of “the circumstances and needs” of that child. If the solicitor does not elect, within their discretion, to prosecute the child, “the intake counselor shall offer referral assistance for services as appropriate for the child and family.” Similarly, South Carolina’s pre-trial detention statute broadly permits children to be placed in pre-trial detention at a secure facility if the child “has no suitable alternative placement and it is determined that detention is in the child’s best interest or is necessary to protect the child or public, or both.” Judges are permitted to make a determination that secure detention would be in a child’s best interest regardless of whether that child has committed a violent crime or poses a risk of substantial harm to themselves or others. Notably, the S.C. Children’s Code does not currently contain a standard to guide state actors in determining whether prosecution, diversion, or dismissal is most fitting in a particular case. Although discretion in arrests also contributes to the existence of disparities, it is more difficult and arguably impractical to pass legislation curtailing the discretion afforded to law enforcement officers to make arrests and to detain children. However, the racially disparate effects of officers’ use of that discretion can be curtailed through implicit bias training, a proposal which this Note will later explore in greater detail.
Ultimately, at each of the aforementioned stages—arrest, intake, and pre-trial detention—actors are granted broad discretion to arrest a child, prosecute a child, and detain that child prior to their adjudicatory hearing simply because that actor feels it is in the child’s best interest. Because that discretion is so broad, those actors’ biases are able to creep in and influence the decisions those actors make with respect to the children whose cases they are handling. This unfettered exercise of discretion by biased actors thus contributes to and compounds the racial disparities visible at each of those stages in South Carolina’s juvenile justice system.
South Carolina’s legislature should explicitly target racial disparities because such action is necessary both to bring the state’s juvenile justice system into alignment with its rehabilitative aims and to remedy inequities which the system is causing. People often shy away from conversations about racial disparities and racial injustice for numerous reasons: the topic makes them uncomfortable, they worry that they will make an offensive or incorrect statement, and some individuals simply do not accept the premise that racial disparities within the justice system are caused by bias or discriminatory choices made by individuals in power. However, the mere fact that conversations about racial disparities within South Carolina’s juvenile justice system are difficult to have and easy to avoid means that legislators will have to deliberately pursue those conversations—and they must. The difficulty South Carolinian legislators likely anticipate facing in having these conversations pales in comparison to the harms to which Black children are being subjected as they are disproportionately arrested and referred to the state’s juvenile justice system. Children who are introduced to South Carolina’s juvenile justice system, or any juvenile justice system, often experience negative effects that have long-lasting repercussions in their lives including trauma, exposure to more serious offenders, and a higher risk of recidivism. Even limited interaction with the juvenile justice system, such as when a child’s case results in a disposition of probation, can result in similar harms. Discomfort in prioritizing discussions about and action related to racial injustice is understandable and is a hurdle that must be acknowledged. However, working to remedy the injustices currently being done to the Black children whom the juvenile justice system is disproportionately harming ought to take priority over the human tendency to avoid difficult, sensitive undertakings.
South Carolina’s legislature should specifically target racial disparities within the state’s juvenile justice system for two reasons: (1) actors within the system are making decisions which lead to racial inequities, and (2) the system is failing to fulfill its rehabilitative mandate while it continues to perpetuate racial inequities. First, the racial disparities within South Carolina’s juvenile justice system are not primarily the result of external forces or children’s individual choices; they are created and perpetuated at least in part by implicitly (or explicitly) biased actors exercising their statutorily-granted discretion to arrest, prosecute, and detain Black children at significantly higher rates than their White counterparts. Accordingly, South Carolina’s legislature has a duty to take appropriate steps to remedy the inequities state actors are creating and compounding using the power granted to them by the legislature. There is a moral imperative to ensure that children are treated equally, and that Black children and White children do not experience different likelihoods of arrest, referral, pre-trial detention, or of further progression into the juvenile justice system for the same or similar offenses.
Second, the stated aim of the Department of Juvenile Justice and of South Carolina’s juvenile justice system broadly is to rehabilitate children who offend, a goal that is not being met in light of the system’s current treatment of Black children. Research at the intersection of juvenile justice and child development continues to demonstrate that even brief dispositions of probation are non-rehabilitative and can be harmful, and harsher dispositions such as placement in a secure facility or long-term probation pose even greater risks of harm. Accordingly, the disproportionate exposure of Black children to every stage of South Carolina’s system suggests that the system’s treatment of Black children is not fulfilling its stated rehabilitative purpose. Black children ought to be afforded equal opportunities to receive less risk-laden, more rehabilitative dispositions. Additionally, South Carolina’s legislature should prioritize legislation that will both hold the state’s juvenile justice system accountable to its stated rehabilitative goals and halt the racial inequities which that system is specifically creating.
Ultimately, the fact that authorities are arresting, prosecuting, detaining, and sentencing Black children at disproportionate rates to White children is not an academic, abstract question. These disparities described in arrest data and reports produced by state agencies reflect real children’s lives and real harm that the system is doing to those children—harm that will impact them for the rest of their lives. Reticence to address and meaningfully respond to these disparities does a disservice to the Black children who are currently being harmed by racially disparate treatment to which state actors are subjecting them. Further, hesitation by South Carolina’s legislature to remedy these harms reflects a failure of the legislature and its juvenile justice system to be accountable to their stated goal of providing children who commit offenses in their youth with equal, rehabilitative treatment. Black children in South Carolina deserve to be treated with equality and dignity, and South Carolina’s legislature has the opportunity, through the JJRA, to take meaningful steps towards providing these children with the equal treatment they deserve.
On January 16th, 2020, Senator Malloy and Senator Shealy first introduced the South Carolina Juvenile Justice Reform Act (JJRA) in the South Carolina Senate. The bill aims to remedy a host of defects in South Carolina’s juvenile justice system, but it does not purport to specifically address the racial disparities existing at each decision point of that system. Although the bill would amend § 63-1-20 of the S.C. Children’s Code, which lays out the purpose for the state’s “children’s policy,” the proposed amendment primarily emphasizes the overarching need for South Carolina’s juvenile justice system to be rehabilitative. Where the bill mentions race, it does so only to require that data regarding the race of children who are diverted or referred be collected and reported annually and to note that children have the right “to be free from . . . discrimination or harassment on the basis of his or her actual or perceived race.” While the right to freedom from racial discrimination is acknowledged, the amendments and new provisions within bill do not otherwise explicitly address the significant racial disparities that exist in South Carolina’s juvenile justice system or propose specific methods by which those disparities could be reduced.
Although the reduction of racial disparities within South Carolina’s juvenile justice system is not a specifically stated goal of the JJRA, several of the bill’s provisions would likely have the effect of reducing racial disparities at multiple stages of South Carolina’s system. Section 23, which would establish pre-detention intervention programs; Section 28, which establishes a presumption that children who meet certain qualifications will be sent to diversion programs rather than prosecuted; and Section 26, which places restrictions on where and for how long children may be detained, are all provisions which would reduce the number of children interacting with the juvenile justice system at its intake and pre-trial detention stages. Importantly, these provisions resemble practices which have successfully reduced racial disparities in other states and jurisdictions, and the provisions are additionally promising because they target a child’s early interactions with South Carolina’s juvenile justice system.
The United States Department of Justice funded a report published in 2016 and authored by Elizabeth Spinney et al. that specifically studied efforts on the part of nine jurisdictions across the United States to reduce disproportionate minority contact, or racial disparities, in their juvenile justice systems. This Part discusses specific strategies implemented by three of those jurisdictions that resemble the JJRA provisions addressed within this Note to highlight the success of such provisions in other jurisdictions at reducing racial disparities.
Approximately thirty years ago, Bernalillo County, New Mexico decided to prioritize “DMC reduction” and partnered with the “Annie E. Casey Foundation’s Juvenile Detention Alternative Initiative” (JDAI) to pursue that goal. Among many things, Bernalillo County created a “Prevention Unit,” which it employed to prevent children from entering its “formal juvenile justice system” or returning to court after an initial interaction with the juvenile justice system. Children who are “referred from law enforcement on a first, second, or third misdemeanor charge are eligible to go to the ‘Prevention Unit,’” which is a collection of services to which youth are referred by Bernalillo’s Youth Services Center. Bernalillo County utilized a “graduated sanctions framework,” through which children are sent to a different program depending on whether they are facing their first, second, or third charge. Notably, Bernalillo County “diverts about 50 percent of the youths referred to probation by law enforcement through the Prevention Unit.” Between the years of 2004 and 2010, Bernalillo witnessed a “decrease [in] racial disparities among law enforcement referrals to probation, referrals to the [Children’s Court Attorney,] and diversions from the juvenile justice system for African American, Hispanic, and Native American Youth.” While Bernalillo took a multi-faceted approach to reform, its attentiveness to diverting as many children as possible outside of the system was one important factor that led to the county’s overall success in reducing racial disparities within that system.
Bernalillo’s use of diversion to successfully reduce racial disparities in its juvenile justice system resembles the JJRA’s focus on diversion found in Sections 28 and 23 of the bill and suggests that those sections would effectively reduce disparities in South Carolina’s system. Specifically, Bernalillo’s use of a Prevention Unit to keep children from formally entering the juvenile justice system is similar to Section 23 of the JJRA’s requirement that each judicial circuit establish a pre-detention intervention program “for the purpose of offering an alternative to referral to the juvenile justice system.” The JJRA does not specify exactly how those pre-detention intervention programs will be structured; instead it provides leeway for the programs to “us[e] approaches that are evidence‑based, culturally relevant, trauma‑informed, developmentally appropriate, and that promote long‑term success for children.” However, South Carolina’s Department of Juvenile Justice, which is charged with developing “a plan for the establishment, implementation, and oversight” of these programs might find inspiration in the wide range of approaches Bernalillo’s Prevention Unit utilized. Notably, Bernalillo’s Prevention Unit is automatically open to more children than the JJRA’s pre-detention intervention programs would be, as children in Bernalillo can enter the Prevention Unit even if they are alleged to have committed a second or third misdemeanor. The JJRA’s programs, on the other hand, would only be mandatory for “first-time, non-violent” offenders. Otherwise, the JJRA establishes a presumption in favor of diversion for certain non-violent offenses but does not require it. Although the programs are not identical, and diversion under the JJRA is currently only mandatory for first-time offenders, their aims are the same and they offer children a similar opportunity: to receive rehabilitative treatment.
Bernalillo’s successful use of diversion to reduce racial disparities in its juvenile justice system is additionally promising because it demonstrates that expanding diversion to include more children who have committed low-level offenses can curtail the effects of differential selection on those children. Racial disparities between the rates at which Black children commit non-violent offenses and the rates at which they are arrested and subsequently referred for committing those offenses are especially pronounced. Establishing a presumption in favor of diverting those children, and mandating it for first-time non-violent offenders, can effectively curtail differential selection by limiting the options available to officers and solicitors when handling low-level offenders and requiring them to treat all children equally regardless of a child’s characteristics or background. Accordingly, Bernalillo’s success in reducing racial disparities in its system by expanding diversion for children who have committed misdemeanors suggests that the similar provisions within the JJRA would effectively reduce racial disparities in South Carolina’s system.
In 2008, Utah began exploring ways in which it could effectively reduce racial disparities in its juvenile justice system. The state elected to target the diversion stage of its system “with special attention on three counties, including Utah County.” Utah’s legislature and its judiciary were both involved in this effort, with judges “expand[ing] diversion eligibility” for crimes which were identified as “disproportionately affecting Hispanic youth.” The legislature also made property offenses which resulted in up to $250 of damage eligible for diversion, when only offenses resulting in $100 or less of damage had formerly been eligible. Further, Utah County began to rely more heavily upon “receiving centers” rather than sending children to “secure care at arrest.” Children are taken to these receiving centers by their arresting officer “to be processed and wait for a parent or guardian to pick them up.” While the child waits at the receiving center, they “speak with a diversion officer,” and if they “admit to the allegation,” the child is given a “nonjudicial closure,” which is legally the same as a diversion. Additionally, diversion officers “were made aware of the racial disparities in diversion,” and they “became more concerned with keeping low-risk offenders out of the system.” Utah County ultimately reduced racial disparities in its system at every stage, primarily for Hispanic children, which comprise the largest minority demographic in the county.
The tandem efforts of Utah’s judiciary and legislature to make more children eligible for diversion resemble the aims of Sections 23 and 28 of the JJRA, which would also make more children eligible for diversion. First, Utah County’s decision to create a lower threshold for diversion eligibility for children who commit specific offenses resembles JJRA Section 23’s requirement that all “first-time, non-violent” offenders be diverted. Although the JJRA does not target specific crimes in expanding diversion eligibility, it does increase the number of children who will be automatically diverted rather than referred. Thus, the JJRA goes a step further than Utah County had at the time of the Department of Justice’s report, as it had not yet made diversion for any children mandatory. Utah has since passed legislation which requires that children be diverted, or offered “nonjudicial adjustments,” if they meet certain criteria, just as the JJRA does. Section 28 of the JJRA further broadens the group of children who may be diverted by creating a presumption in favor of diverting certain non-violent offenders without prior adjudications. Establishing this presumption would allow more children to be eligible for diversion, although Section 28 does not mandate diversion for eligible children. This same strategy of expanding eligibility for diversion but not mandating diversion was employed by Utah County in making children who committed property offenses eligible for diversion but not mandating that those children be diverted. Utah’s success in reducing racial disparities in its juvenile justice system by prioritizing diversion and making more children eligible for diversion suggests that the JJRA’s provisions which aim to do just that would be effective at reducing racial disparities in South Carolina’s own system.
Lastly, Montgomery County, Alabama “began concentrating on improving [its] juvenile justice system” in 2007 primarily by seeking to decrease the number of children being confined or eventually detained. Montgomery County did so by developing a “risk assessment instrument” and using that instrument to alter its requirements for detention eligibility. Ultimately, the county determined that “only youths who were public safety risks would be recommended for detention.” The JJRA, despite not using a risk assessment tool, has a similar overarching requirement–to keep children from being detained before trial unless such is necessary “to prevent an unreasonable flight or public safety risk.” Montgomery County saw a “52 percent decrease” in the total number of children being detained between 2009 and 2011, and the county also experienced a reduction in “racial disparities for Africa[n] American youth at both secure detention and secure confinement.” South Carolina’s focus on preventing children who do not pose a danger to the public and who are not a flight risk from being detained is promising and appears likely to succeed based on the success of the similar measure implemented in Montgomery County.
The aforementioned jurisdictions partnered with the Annie E. Casey Foundation or the Office of Juvenile Justice and Delinquency Prevention, developed a plan to target and reduce racial disparities in their juvenile justice systems, and accomplished their goals by doing the following things: requiring that certain children be automatically diverted; making more children eligible for diversion; and preventing children from being detained in a secure facility prior to trial. These three jurisdictions each accomplished their goal of reducing racial disparities at multiple stages of their juvenile justice systems in addition to reducing the total population of their juvenile justice systems. Therefore, by following the lead of other successful jurisdictions and passing the JJRA, South Carolina has an opportunity to reduce the racial disparities in its own juvenile justice system, particularly at the referral and pre-trial detention stages.
Recent literature reviews discussing Disproportionate Minority Contact (DMC) generally suggest that “racial disparities disadvantaging minority youth tend to be more evident at the earlier juvenile justice stages than the later stages.” For instance, Spinney et al. conducted an extensive review of DMC literature in 2018 which discovered that “82 percent of studies that examined arrest, 86 [percent] of studies that examined referrals to court, and 85 [percent] of studies that examined pre-adjudication detention” showed disproportionate minority contact at those stages. Additionally, data suggests that Black children are arrested, detained, and placed in confinement facilities in disproportionate numbers, but that they are “diverted and referred to probation” in lower numbers than their White counterparts. In other words, Black children are generally introduced to juvenile justice systems at disproportionate rates, while White children are diverted or placed on probation at disproportionate rates. Racially disparate contact with the system at its earlier stages, including detention, is especially harmful because “youths who are placed in detention are likely to move deeper into the system.” Accordingly, efforts to reduce the number of children being arrested, referred, or detained in the first place could reduce racial disparities at the system’s later stages. Addressing racial disparities at the earliest stages of South Carolina’s juvenile justice system would thus have a domino effect of reducing racial disparities at subsequent stages of the juvenile justice system, making efforts to target the early stages of the state’s system especially important.
Data collected and published by the South Carolina Department of Juvenile Justice (SCDJJ) and the South Carolina Law Enforcement Division (SLED) confirms the accuracy of Spinney’s assessment that disproportionate minority contact is particularly pronounced at early stages of contact with the juvenile justice system. For example, according to data on juvenile arrests published by SLED in 2019, Black children comprise 61% of arrests across all categories of crimes or offenses. Further, 57% of children referred to the DJJ in 2019 were Black. The greatest disparity in South Carolina’s juvenile justice system, according to the SCDJJ’s 2019 report, exists at the pre-adjudication detention stage. In 2019, 64% of children who were detained were Black. According to that same 2019 report, White children comprised 38% of referrals and just 31% of children detained pre-adjudication. In the later stages of evaluation, probation, and commitment, Black children comprised 57% of the population at each stage, while their White counterparts comprised 35%, 36%, and 35% of the population at each of those stages respectively. Thus, the racial disparities in the earlier stages of South Carolina’s system, particularly at the detention stage, are greater than the disparities which exist at the system’s later stages. Placing children in detention puts those children at risk for re-offending, increased mental illness, interruptions to their education, and further progression into the system. Referring a child to the SCDJJ at all, rather than diverting them, poses similar risks. Accordingly, a concentrated effort to prevent state actors from arresting, referring, and detaining children wherever possible would be an effective and rehabilitative way to reduce racial disparities in South Carolina’s system both at its early stages and at the stages following detention.
Section 28 of the JJRA would amend the 1976 Children’s Code and limit state actors’ discretion to prosecute children by creating a presumption in favor of diversion and by limiting solicitors’ authority to ignore that presumption and prosecute a child. First, Section 28 would establish a presumption that a “child brought before the family court or referred to the department for a status offense or an offense which would be a crime if committed by an adult” should be “referred to a diversion program and not for prosecution” if that child meets certain criteria. A child would be eligible for diversion under this provision if they do not have any prior adjudications or if the offense for which they have been referred is not a “violent offense as defined in Section 61-1-60.” Importantly, Section 28 would allow even children who have been through diversion previously to be diverted a second time as long as their previous diversion did not occur within the previous year, although a second diversion would not be mandatory. Second, Section 28 allows defense counsel and the family courts to serve as a limit on solicitors’ authority to overcome the presumption in favor of diversion. The solicitor or “solicitor’s authorized assistant” may ignore the presumption established by this provision and “may prosecute the child in family court” if they have “good cause to believe that diversion is insufficient to meet the purposes of this chapter.” However, in order to do so, the solicitor or their authorized assistant must make a petition which includes specific reasons for the solicitor’s “departure from the presumption of diversion.” In response, the child whom the solicitor is seeking to prosecute may make a motion seeking the family court’s reversal of the solicitor’s decision to prosecute, and the family court may override the solicitor and “refer the child for diversion” if they find that “no good cause exists” to prosecute the child in question. Some counties would inevitably choose to prosecute children who are presumed eligible for diversion under Section 28, as not all judges would override solicitors’ decision to prosecute. However, this provision would still place reasonable limits on decision-makers’ discretion and cause more children to be diverted which would reduce racial disparities at the earliest stage of South Carolina’s system, a strategy which has been remarkably successful in other jurisdictions.
Second, Section 23 of the JJRA would require each judicial circuit to establish pre-detention intervention programs through which first-time, non-violent offenders would be automatically diverted. First, Section 23 would amend Article 3, Chapter 19, Title 63 of the current code to include a provision requiring “at least one pre-detention intervention program” to be established in “each judicial circuit in the state.” Those pre-detention intervention programs would “provide services to all children in all counties in that circuit” as an “alternative to referral to the juvenile justice system.” Children would qualify for the intervention program so long as the violation in question was their first and was non-violent in nature “as defined by Section 16-1-70” of the 1976 Code. Importantly, Section 23 states that children who qualify for such intervention programs “must be referred” to the appropriate program in their judicial circuit, important language that curtails the ability of law enforcement officers and others to refer the children to the SCDJJ for adjudication. The provision goes on to state that “if a referral to the juvenile justice system is received” for a child who is qualified for diversion, “the referral shall not be accepted and shall be returned to the referral source with instructions” that the child be placed in the appropriate pre-detention diversion program. Notably, this provision would require that records of those diverted in accordance with this provision’s requirements be kept entirely separately from records of “children referred to the juvenile justice system.” Ultimately, Section 23 would target the stage of South Carolina’s juvenile justice system at which racial disparities between Black and White children are the most pronounced. The provision would require that the first-time, non-violent offenders within that population be entirely shielded from further interaction with the juvenile justice system, a practice that has been successfully tried elsewhere and would likely reduce racial disparities both at that stage and at subsequent stages of the system.
Third, Section 26 of the JJRA would limit state actors’ discretion to place children in a detention facility and would narrow the criteria that make a child eligible to be detained. This Section would amend § 63-19-820 of the Children’s Code to provide that: “Pre-trial detention is authorized only when that is the least restrictive option available to prevent an unreasonable flight or public safety risk, taking into account the overall rehabilitative purposes of the juvenile justice system and the likely harm to children and to public safety from unnecessary detention, and the child’s presumption of innocence.” This provision further states that “a child is eligible for detention in a secure juvenile detention facility” only if the child meets certain very limited requirements. Section 26 would eliminate many of the extremely broad criteria that currently render a child eligible for secure detention. Under the current code, a child can be detained if: the child is “already detained or on probation,” the child “has a demonstrable recent record of wilful [sic] failures to appear at court proceedings,” the child “has a demonstrable recent record of adjudications for other felonies or misdemeanors,” or the child has willfully failed to comply with recent placement orders, among other things. Conversely, Section 26 states that a child is not eligible for detention unless they “meet the [limited] criteria provided in this subsection” and that a child should still not be detained if they “can be supervised adequately at home or in a less secure setting or program.” In addition to eliminating certain provisions in the current code which make many children eligible for detention, Section 26 further limits those who can be detained by providing, in part, that status offenders may not be detained.
A status offense is “an offense which would not be a misdemeanor or felony if committed by an adult including, but not limited to, incorrigibility . . . truancy, [or] running away.” The primarily noncriminal nature of status offenses, together with the fact that they are only “offenses” because they are committed by children, makes children who commit those offenses particularly poor candidates for detention. Engaging in rebellious or negative behaviors such as running away or drinking underage is oftentimes nothing more than “experimentation [which] allows youths to discover the negative consequences of their behavior and learn from their mistakes.” Further, studies of “juvenile delinquents” suggest that detaining status offenders places them at a higher risk of committing future offenses. Codifying a prohibition on detaining status offenders would therefore spare these children from the harmful effects of detention and allow them to learn from their mistakes without unnecessary trauma, interruption to their education, and increased risk of recidivism.
Lastly, Section 26 makes many young children ineligible for detention. First, the provision makes ineligible for detention children who are ten years old or younger. Second, the provision states that children “eleven or twelve years of age who are taken into custody” for offenses which could be crimes “if committed by an adult” or for violating their probation relating to those offenses can be detained “only by order of the family court.” Ultimately, Section 26 limits state actors’ discretion to detain children, bars them from detaining certain children altogether, and requires that the children who are detained only be detained if they meet very limited criteria. Similar limitations on state actors’ authority to detain children have reduced racial disparities in juvenile justice systems elsewhere, and Section 26 would likely have a similar effect if implemented in South Carolina.
Each of these provisions would limit the discretion which state actors currently exercise and would accordingly limit the extent to which individuals’ pre-existing biases can influence their decisions and impact the children whose cases they are handling. The presumption established by Section 28 would prevent solicitors from prosecuting children simply because the solicitor believes it is in the child’s best interest, absent further justification. The creation of pre-detention intervention programs under Section 23 would further limit officers’ and solicitors’ discretion to refer a child into the juvenile justice system. Section 23 would also entirely prevent those children from spending time in a secure facility or in pre-trial detention if they are a first-time, non-violent offender. Children that satisfy those requirements would instead be referred immediately to a diversion program, regardless of the offense committed or any other circumstances accompanying the child’s referral. Research generally suggests that diversion is much more effective than prosecution or even probation at reducing recidivism and rehabilitating a child. Lastly, Section 26 would place numerous limitations on an officer’s and a judge’s currently broad discretion to place a child in pre-trial detention, particularly where that child is very young, is a non-violent criminal, and does not otherwise pose a risk to themselves or the public. Each of these provisions would amend the broad language of the S.C. Children’s Code and would require children to be diverted, kept with their families, and kept out of pre-trial detention placement wherever possible, while still considering the safety of both the child and the general public. These requirements thus appropriately target early stages of South Carolina’s juvenile justice system, reduce the discretion individual actors have to act in what they perceive to be a child’s best interest, and serve as a safeguard against the influence of implicit racial bias upon those actors’ decisions.
The JJRA does not currently contain a provision which would implement implicit bias-related training for law enforcement officers, but such a provision would be a beneficial addition to the proposed legislation in light of the success which such proposals have had in other jurisdictions. Police officers possess a great deal of discretion in making arrests. Accordingly, training which better equips officers to be aware of their biases and to avoid relying on them when making arrests or pre-trial detainment decisions would be an effective way to combat racial disparities in South Carolina’s juvenile justice system. Connecticut, for instance, developed a “training curriculum for police officers” which was “effective in enhancing officers’ knowledge of DMC and strategies for interacting with youth,” and which was implemented in 2007. Connecticut’s curriculum was titled “Effective Police Interactions with Youth,” and its goal was to “reduce DMC at the arrest stage.” Later evaluations of that training indicated that it “enhance[d] police officers’ knowledge and improve[d] their attitudes towards youth.” Hillsborough County, New Hampshire went on to implement Connecticut’s “Effective Police Interactions with Youth” training in its own police department with apparent success, including positive responses from police chiefs and long-term reduction in total arrests and in racial disparities between White and minority youth. Tulsa, Oklahoma also implemented Connecticut’s “Effective Police Interactions” training with some modifications. Tulsa ultimately saw a decrease in racial disparities at its arrest stage as well as its diversion and detention stages. Tulsa is a particularly appropriate jurisdiction to rely upon as an example of effective practices to implement in South Carolina, as Tulsa “has a long history of racial tensions,” much like South Carolina. Despite this history, Tulsa’s “state DMC coordinator” and others worked to take an approach that “[took] group responsibility and [did] not place blame,” and which also encouraged that same “group responsibility” mindset with respect to “finding solutions.” Ultimately, Tulsa also saw a decrease in the racial disparities which existed in its arrest rates as well as “substantial” improvement in its diversion disparities.
In light of the success other jurisdictions have found in implementing police trainings aimed at reducing racial disparities in juvenile arrests, including those with a similarly fraught racial history, South Carolina’s legislature should consider including a similar proposal in the JJRA. Ideally, the proposal would provide for the establishment of a taskforce or committee whose job it would be to develop the training program in cooperation with local police officers. The training itself would aim to increase officers’ awareness and understanding of racial disparities in South Carolina’s juvenile justice system; the role that their biases play in contributing to those disparities; and their ability to play a part in reducing racial disparities at the arrest and pre-trial detention stages, where disparities are especially pronounced. Additionally, the training would encourage officers not to simply acknowledge their existing bias and the struggles faced by minority members of their communities but to understand that they have the ability to reduce racial disparities and promote the safety and wellbeing of each child they work with by doing so.
Addressing racial disparities, their causes, and best practices for reducing them is a weighty and difficult task. It should come as no surprise that legislatures often do not or cannot pursue the goal of reducing racial disparities in their state’s juvenile justice system because the hurdles of skepticism, disagreement about how to define the problem, and disagreement about how to best pursue a solution are collectively insurmountable in many cases. However, the introduction of the JJRA has given South Carolina’s legislature the opportunity to pass legislation which would limit the discretion exercised by various state actors at the juvenile justice system’s early stages and thereby reduce the impact that those individuals’ biases can have on their decision-making. By reducing the discretion granted to state actors at these early stages of South Carolina’s juvenile justice system, at which racial disparities are most pronounced, South Carolina’s legislature would reduce racial disparities both at those early stages and at the system’s subsequent stages. Black children’s lives are incalculably valuable, and they deserve to be treated equally, with dignity, and in a rehabilitative manner. South Carolina’s legislature should pass the JJRA in order to take a small yet meaningful step towards reducing the racial disparities within the state’s juvenile justice system. Doing so would make progress towards ensuring that Black children in this state no longer experience disparate treatment at every stage of our juvenile justice system, that they do not suffer the harms that come from even brief exposure to the system, and that they are afforded the equitable treatment which their humanity demands.