John Brittain PP

7/30/2019 John Brittain PP

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SUMMIT ON RACIAL DISPARITIES IN THE

JUVENVILE JUSTICE SYSTEM

INDIANA STATE BAR ASSOCIATIONCOMMISSION ON DISPROPORTIONALITY IN

YOUTH SERVICES

Morning Keynote SpeakerJOHN C. BRITTAIN

PROFESSOR OF LAW

DAVID A. CLARKE SCHOOL OF LAW

UNIVERSITY OF THE DISTRICT OF COLUMBIAAugust 27, 2009


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Legal and Systems Change Strategy

TimeBanks USA

Racial Justice Initiative


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TimeBanks USA Background

Founded in 1980 by Edgar Cahn - a Think and Do Tank for

reweaving community

Network to exchange ideas and build social capital

TBUSA Time Dollar Youth Court, a large-scale diversionprogram for arrested youth in Washington, DC - reduces

juvenile recidivism

Hosted most recent conference, June 2009,Dismantling

Structu ral Racism in Ju veni le Jus t ice and Chi ld Welfare.Launched TUBSAs Racial Justice Initiative


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Overview of TBUSAs

Racial Justice Initiative

In 2008 Edgar Cahn secured a planning grant from

the WK Kellogg Foundation and began a major

effort to address structural racism, and recruited

Cynthia Robbins to co-lead the effort

TBUSAs Racial Justice Initiative combines a

targeted legal theory with Time Bankings core

principles to address disproportionality in juvenile

justice, child welfare and special education

See also the law review article, An Offer They

Cant Refuse, a focus on juvenile justice


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Background of the

Legal and Systems Change Strategy

June 30, 2009, University of the District of Columbia (UDC) LawReview released a pre-publication version ofAn Offer TheyCant Refuse: Racial Disparity in Juvenile Justice andDeliberate Ind ifference Meet Alternatives That Wo rk, by EdgarCahn and Cynthia Robbins

Intent Doctrine set forth in Washingto n v Davis(US 1976)created a significant burden for plaintiffs seeking relief fromgovernment discrimination because it requires them to provethat the government intended to discriminate.

Intent Doctrine hindered efforts to dismantle structural racismand address well documented Disproportionate MinorityContact and Confinement (DMC) within the JuvenileDelinquency System.

An Offer presents a new Legal and Systems Change Strategy


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Novel Legal Theory Overview

Basis of new theory is a unique application in the juvenilejustice and Equal Protection context of the DeliberateIndifference standard from City o f Canton v. Harris(1989)

UnderCity of Canton v Harr is, a municipality can be liable

under 42 USC 1983 only where its policies cause theConstitutional violation

Only if a municipalitys practices evidence deliberateindifference to the rights of its inhabitants can such ashortcoming be properly thought of as a city policy orcustom actionable under 42 USC 1983 (in this case, it wasa failure to train its employees)

Municipal liability under 42 USC 1983 attaches if, and onlyif, city policymakers deliberately choose a practice or policyfrom among various alternatives


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Text of 42 USC 1983

Every person who, under color of anystatute, ordinance, regulation, custom, orusage, of any State or Territory or the Districtof Columbia, subjects, or causes to be

subjected, any citizen of the United States orother person within the jurisdiction thereof tothe deprivation of any rights, privileges, orimmunities secured by the Constitution andlaws, shall be liable to the party injured in an

action at law, suit in equity, or other properproceeding for redress, . For the purposes ofthis section, any Act of Congress applicableexclusively to the District of Columbia shall beconsidered to be a statute of the District ofColumbia


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Proving Deliberate Indifference

A failure by policymakers to use knowledge abouteffective alternatives to incarceration that reduceDMC gives rise to liability under 42 USC 1983

To prove deliberate indifference for purposes of aclaim under 42 USC 1983, a plaintiff mustdemonstrate:

Injury to a right protected by the Constitution orfederal law

That the injury was relatively certain to occur

That the governments course of action was oneselected from among various alternatives


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A Path to Proving Deliberate

Indifference Once officials receive formal notice of the

racially-disparate injury caused by theirpresent practice and notice of the availabilityof effective alternatives, the governments

continuation of the status quo constitutesdeliberate indifference and proves intentfor 42 USC 1983 cases.

In the juvenile justice context, continuing

to incarcerate youth of color atdisproportionate rates instead of using moreeffective, less expensive alternativesconstitutes deliberate indifference


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A Path to Proving Deliberate

Indifference

To establish deliberate indifference in the juvenile

justice context, An Offer They Cant Refuse

proposes a Public Hearing process to put officials

on formal notice that:

Present system results in documented DMC that violates

the Constitution;

Racial disparity remains even when accounting for all race-

neutral factors;

Injuries flow from this disparity, specifically from the

disproportionately high detention and incarceration rates

for youth of color, but, in fact, at every point in the system

youth of color are subjected to harsher treatment;

Highly effective, evidence-based, replicable, and less-costly

alternatives would substantially reduce DMC.


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Achieving Systems Change

After receiving notice, if officials opt not to use more effectiveand less expensive alternatives to incarceration and continuethe status quo of disproportionate incarceration, then theywould be liable under 42 USC 1983

Officials who maintain the status quo will be politically

vulnerable

Litigation is costly and time consuming; it is a last resort

We are hopeful that, officials facing the threat of provableliability will feel compelled to adopt alternatives

The Racial Justice Initiative strategy will give officials thepolitical cover to establish community-based alternatives toincarceration for youth; the Initiative will insulate officialsagainst tough-on-crime opponents


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Next Steps

Comments Please send an e-mail with any support statement or

indicating a willingness to be called to develop a

brief statement

to [email protected]

We also invite comments on the law review article,

An Offer They Cant Refuse until August 31, 2009

via [email protected]

Actions

Would you or your organization be interested in

helping to organize a public hearing to address

disproportionality? Do you know legislators, judges

and/or administrators who might be willing to

convene a hearing to put officials on notice?
mailto:[email protected]:[email protected]:[email protected]:[email protected]


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Documents

John Brittain PP