Katie Jill Herchenroeder

Research Paper

“What age is a black boy when he learns he’s scary?” Jonathan Lethem asked in his work “The Fortress of Solitude.” In CNN’s tribute to W.E.B. Du Bois, “The first time I realized I was black,” people answered. Singer Sebastian Kole knew when at a church camp the police were called on him (Sambou). Comedian W. Kamau Bell understood when a record shop employee threw him to the street after confirming he did not steal anything (Sambou). Musician AsaTheProdigy learned when his 4th grade white crush was afraid to tell her mother about him (Sambou). These feelings of difference and ostracization translate to the likelihood of interaction with and incarceration by law enforcement (Nicholson-Crotty, Birchmeier, Valentine, 2009). According to  Sean Nicholson-Crotty, Zachary Birchmeier, and David Valentine’s “Exploring the Impact of School Discipline on Racial Disproportion in the Juvenile Justice System,” youth of color are, across the board, “more than eight times as likely as their white peers to be housed in  juvenile detention facilities.” While this disparity is due to a plethora of different reasons, the following words, sentences, and paragraphs argue that the infamous war on drugs – ushered in by President Richard Nixon and perpetuated to this day – negatively impact youth of color, and has led to increased amounts of discrimination within the juvenile justice system.

By employing social scientific and anecdotal evidence, this piece shows that the systemic jailing of black and brown people extends beyond criminal court to the very edges of the United States’ juvenile justice paradigm. In order to aptly make this assertion, however, one must not depend merely on opinion, although it does have merit. Rather, by looking at the numbers staring at society, the stories begging to be heard, and the history aching to be learned from, this argument builds its foundation commandingly. Beginning with a – in no way comprehensive – retelling of the ailling war on drugs, moving on to statistics and personal testimony which stir conviction, and ending with a solutions framework, this piece resembles a roller coaster – scary and compelling. Now then, buckle up, grab a box of tissues, and lean in for a second glance at the juvenile justice system.

Wait, What Is The War on Drugs?

1971 in America’s rearview mirror is wrought with drug abuse and the abuse of people struggling with addiction. From the Nixon administration to President Trump’s current rhetoric, the U.S. government’s attack on substance issues centers around the scourge on certain citizens and not others. The life-threatening impacts of heroin and crack cocaine on the black communities across the nation did not serve the 1970s governments as a catalyst for change (Center for Addiction, 2018). Rather, once the problem oozed into white society, they took action (Wilcke, 1970). In a New York Times piece entitled “Startling Abuse of Drugs Is Found in Business World,” published on July 7, 1970, they noted “While increased idleness among the hardcore unemployed was most frequently cited as the major reason for the growing drug abuse, drug use in the last two years has affected employes at all levels” (Wilcke, 1970). In line with this orientation, the war on drugs can be more reasonably described as a battle between unwanted addicts and the fate of wanted constituents (Bernards, 1990). In short, the war on drugs becomes the war on certain people, often people of color. People easily stand at the receiving end of a battle against an inanimate object. James Bowman, an American physician and specialist in pathology, hematology, and genetics, described this phenomenon in his work in The Spectator:

The ‘war’ metaphor, which is a legacy from Lyndon Johnson’s ‘war on poverty,’ has never been very satisfactory. In none of these wars is anything that could be called a final victory even imaginable: there will always be poor people; there will always be drugs and drug-users; there will always be civil violence. The “war,” therefore, consists of a series of gestures – a drug bust, the capture of a cocaine shipment, an invasion of Panama – all highly publicized, all with clear-cut good and bad guys, and all triumphs for the good. These are just like the wars in 1984, only adapted to democratic conditions (Bernards, 1990).

In practice, the war on drugs continued in two interdependent avenues. First, executive rhetoric propped up the idea that drug addictions were assumed, even encouraged, in some communities while sympathized with in others. Gerald Ford, Nixon’s successor and the 38th president, told Congress in 1976, “These criminals must know with certainty that, if convicted, they will go to jail for a substantial period of time. Only then will the risk of apprehension be a deterrent rather than just another cost of doing business” (Ford, 1976). Quite the wordsmith, Ronald Reagan, the 40th president and a smoker himself (Galindo, 2013), also had some things to say about drugs: “I now have absolute proof that smoking even one marijuana cigarette is equal in brain damage to being on Bikini Island during an H-bomb blast;” “I’ve heard drug experts say they believe if penicillin were discovered today, the FDA wouldn’t license it;” and “Let us not forget who we are. Drug abuse is a repudiation of everything America is” (King, 2013; Havasi, 2012; Gerald, 1986).

The second avenue, more officially regulated but equally as impactful, involves legislative moves to further criminalize drug users of color. In 1973, just two years after Nixon declared “drug abuse as ‘public enemy No. 1,’” Nixon created the Drug Enforcement Administration (NPR, 2007). The DEA, at its core, existed to coordinate the efforts of all other agencies towards the common goal of enacting Nixon’s war. Fast forward to 1994, Bill Clinton signed the “Violent Crime Control and Law Enforcement Act” (Chung, Ed, Betsy Pearl, and Lea Hunter, 2019). More commonly known as the “Crime Bill,” this move has been widely cited to have caused “disproportionate incarceration of a generation of African American men in the name of public safety” (Chung, Ed, Betsy Pearl, and Lea Hunter, 2019). While Clinton has since admitted, to some extent, his guilt in “[signing] the bill that made the problem worse,” the impacts of these men’s legislative moves, along with others in government, has negatively impacted communities of color – including their children (Merica, 2015).

A Steep Divide: Young Black Boys and Girls Incarcerated

As drug abuse rose across the country and poor communities of color become the poster child for addiction, people began to take notice of inequities in the juvenile justice system. In a television review for the Times dated May 3, 1971, John J. O’connor wrote about N.B.C’s latest: “This Child Is Rated X: An N.B.C. News White Paper on Juvenile Justice” (O’connor, 1971). Martin Carr, the producer, writer, and director of “The Child” shared with the Times, “The system does not dispense equal justice to black and white. The system does not dispense equal justice to rich and poor. The system does not distinguish between the neglected child and the delinquent child” (O’conner, 1971). If only people had listened.

Two decades later, between 1990 and 1991, George S. Bridges and Sara Steen studied the incongruencies within the probation and processing aspects of the court system. In “Racial Disparities in Official Assessments of Juvenile Offenders: Attributional Stereotypes as Mediating Mechanisms,” they found that reports of black youths were more likely to include negative internal attributions than reports on white youths (Bridges, George S. and Sara Steen,  1998). Conversely, Bridges and Steen’s evidence showed that white youths were considered to have more external attributes (Bridges, Steen,  1998). All together, they found three sociologically-tested and noteworthy assertions:

1. Court actors assumed black children were in court because of their personal decisions, while white kids were given the benefit of the doubt, having outside factors influencing their actions (Bridges, Steen, 1998).
2. The placement of these attributes on the children led officers, in turn, to assume black youth were more likely to commit crimes in the future (Bridges, Steen, 1998).
3. Due to the two prior tendencies to both see youth of color as innately criminal and potentially dangerous to society in the future, black youth are more likely to receive harsher recommendations from the juvenile justice workers involved in their case (Bridges, Steen, 1998).

Over a decade later, in 2003, Michael J. Leiber looked at race in pre- and postdetention. He, amongst other things, learned that “African American youths are more likely than similarly situated Whites to be detained pre adjudication by almost 2 to 1 once all factors are controlled” (Leiber, 2009, p. 405). In this decade, as recent as 2014, black youth accounted for 37% of all cases, yet make up about 14% of the population, according to the U.S. Justice Department (Hyland, 2018. Child Trends, 2018). Across time and location, black youth are consistently overrepresented in the U.S.’s systems of confinement and punishment. While this vast disenfranchisement can not be wholly deduced within these pages, one considerable factor centers around who society sees as old enough to make independent actions. As reported by the American Psychological Association, black boys as young as ten are “more likely to be mistaken as older, be perceived as guilty and face police violence if accused of a crime” (APA, 2014). Yet, the point glares, if older black men were not viewed as inherently criminal, would this dynamic be so harmful?

Real People, Real Stories

Although anecdotal evidence falls short of numerical, statistical, needs for arguments such as this one, it undoubtedly supports it with fervor and empathy. Below are the tales of two young men and their interactions with law enforcement. Their stories involve charges linked to the war on drugs, thus alluding back to the larger point at hand. Whereas the following assertions may imply that the individual of color was treated too harshly, they do not intend to further conclude that lighter sentences are obtuse and should be avoided. Rather, in calling a spade a spade and recognizing how white people receive better treatment, this work hopes to inspire a more amicable approach to juvenile justice overall.

Roger Darnell Brown

On February 15, 2019, 16 year old Roger Darnell Brown was beaten to the ground by multiple police officers in Delaware. Video footage, recorded by Brown’s friend Jaiden Palmer, shows the young black man laying on the driveway outside of his own home as officers scream “Stop Resisting!” to Brown’s extremely nonaggressive and apprehended body (Murdock, 2019). The officers were there to apprehend the person who met their “detailed description of the suspected drug dealer” (NCCP, 2019). Brown’s mother, Mary Fleming, told The News Journal a different reasoning. She contends that “someone had called the cops because his friend rode here on a dirt bike. They didn’t like the noise” (Murdock, 2019). In the police’s released statement, they refer to brown as “drug dealer,” “suspect,” and only refer to his age once, noting what he was charged with (NCCP, 2019).

Despite video evidence to the contrary, Brown was charged with one count of felony Resisting Arrest, one count of felony Manufactures, Delivers, or Possesses with intent to Manufacture, Deliver a Controlled Substance, two counts of misdemeanor Offensive Touching of a Law Enforcement Officer, one count misdemeanor Possession of a Controlled Substance, one count of misdemeanor Criminal Mischief and one count of Possession of Drug Paraphernalia Marijuana Related, a civil violation (NCCP, 2019). Immediately following the arrest, he was detained and held at Castle County Detention Center with $6,500 bail (NCCP, 2019).

Tyler Pagenstecher

Described as “a pretty fine young person that went down a bad trail,” by his sentencing judge, Tyler Pagenstecher was selling drugs in his high school since age 15. On October 22, now 18, Pagenstecher was sentenced to six months in a juvenile prison (CBS, 2012). After avoiding authorities – more aptly, after not being accused of a crime by the people of his community – the legal adult sat in court and was convicted of selling up to $20,000 worth of high-grade marijuana per month to his peers in southwestern Ohio (CBS, 2012). His mother, Daffney Pagenstecher, was given the opportunity to speak about her son kindly, saying he “just thought he was using a recreational drug and selling it to his friends, and that was it” (CBS, 2012). Implying his humility, she pleaded, “He wasn’t out to become, you know, a big drug dealer. He didn’t buy a new car. He didn’t buy fancy clothes. He wasn’t making the money that a drug dealer would make and flaunting it” (CBS, 2012). Unlike Brown, who was considered a serious drug dealer with $1,000 in cash, Pagenstecher was unflashy and modest in his exploits. Also unlike Brown, Pagenstecher was white.

Even within the article that details his journey, he is spoken about with admiration and respect. They refer to him as “pale,” “bespectacled,” and “soft-spoken” (CBS, 2012). The journalists also included that he was but three months away from graduation and would receive educational supplementation inside of the juvenile facility. Again, this description, while slightly over the top, is not wholly immoral. In a society that often insists on incarcerating instead of seeing humanity, it is vital to keep the human aspects in these reports. But, and an important but at that, until young black men are described in the same manner, these discrepancies remain glaring and reprehensible. Giving a comfort that Brown did not feel, Judge Thomas Lipps told Pagenstecher, “I do think there’s hope for you in the future” (CBS, 2012).

These two instances serve as a snapshot of a racially divided criminal justice system, at both adult and juvenile levels. In the same system, Pagenstecher was, as told by neighbors, thought to just have “a lot of friends,” and Brown’s friend was told to go inside the house instead of recording injustice (CBS, 2012. Murdock, 2019). In the same system that considered Brown guilty before proven innocent, Pagenstecher was allowed dignity in custody. In the same system that named the white boy a “little czar” for his ambitious business, Brown’s head was rammed into the concrete without even checking his home for evidence (CBS, 2012. Murdock, 2019). In a recent report by the Equal Justice Initiative, a non-profit that provides legal representation to prisoners who may have been wrongly convicted of crimes, explains that:

The presumption of guilt and dangerousness assigned to African Americans has made minority communities particularly vulnerable to the unfair administration of criminal justice. Numerous studies have demonstrated that white subjects have strong unconscious associations between blackness and criminality. Implicit biases have been shown to affect policing—marking young men of color for disparately frequent stops, searches, and violence—and all aspects of the criminal justice system—leading to higher rates of childhood suspension, expulsion, and arrest at school; disproportionate contact with the juvenile justice system; harsher charging decisions and disadvantaged plea negotiations; a greater likelihood of being denied bail and diversion; an increased risk of wrongful convictions and unfair sentences; and higher rates of probation and parole revocation (EJI, 2019).

Echoing this idea, Victor M. Rios takes the streets of Oakland to challenge stereotypes of black and Latino boys in the area. In his book “Punished,” Rios refutes that inasmuch as Oakland has the fourth largest violent crime rate in the country, its youth are not inherently involved in gangs or violence themselves (Rios, 2011). He continues, “Far from criminal ‘superpredators,’ most youth in Oakland are living productive, normal, everyday lives, surviving and persisting” (Rios, 2011). Rios, holding to realistic expectations, admits that some do partake in unofficial economies and engage in criminal behavior. Yet, the equity lies in allowing children of color to show the world who they want to be, instead of telling them in both words and actions what is expected of them.

Inspiration and Mirroring

When looking at the similarities between the criminal and juvenile justice systems, onlookers must analyze it as both inspiring down and mirroring up. The former entails an acknowledgement that actors within the juvenile justice system look at criminal court as the epitome of success, as something to be working towards. Alexes Harris explores the impact of bench officers who aspire to move up in the justice systems, rather than serve those in juvenile court. She shares, “The literalist bench officers tended to have more ambitious career aspirations than those labeled as rehabilitative, aspirations that would, they hoped, lead them beyond the juvenile court. Many of these bench officers viewed juvenile court as a less-significant realm where they were ‘stuck’ in the meantime” (Harris, 2007). The literalist bench officers, Harris spells out, were individuals who “did not attempt to broadly evaluate youth and their life circumstances when determining whether a youth was fit or unfit to remain in juvenile court” (Harris, 2007). While applying the law similarly across the board can be admirable, these judges assume all children end up in court in identical, objective ways. Which, due to institutional inequality across America, is simply not true. Put differently, until the world fairly doles out opportunity, objectivity without nuance is inconsistent with society as a whole. By embodying qualities they think will further their career to criminal courts, these judges are inspired by adult systems and acclimate their own work to their opined ideal.

The seeds of the latter, mirroring, were laid in 1966 with the Gault case. Just four years before Nixon declared his war, The Supreme Court decided that Gerald Francis Gault’s case violated the Due Process Clause of the Fourteenth Amendment (Supreme Court, 1967). The clause states that, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (LII, 2019). After this monumental case, the lines between juvenile and criminal increasingly blurred. Today, over 50 years later, law and order’s reign over both incarceration structures successfully lessens the differences between juvenile and criminal court daily. The Sentencing Project, an organization combating imprisonment and racial inequality, succinctly expounds, “This tough-on-crime era left in its wake state laws that still permit or even require drug charges to be contested in adult courts. Scant data exist to track its frequency, but fully 46 states and the District of Columbia permit juveniles to be tried as adults on drug charges” (TSP, 2016). In effect, this looks like the juvenile justice system mirroring itself off its parent institution, flaws and all. One such weakness being its inequitable treatment of people of color across the United States.

What Now?

Despite the fact that questions abound and answers seem far and few between, here are 3 tangible steps that advocates, social scientists, and community leaders enact to move toward a resolution together:

1. Society can actively decide to change perceptions of black men, young and old, to reeducate the American public in a less problematic manner. The “56 Black Man Project,” along with other artistic ventures, is choosing to remove the fear associated with black men in hoodies. This photographic series honors Trayvon Martin, shot to death by George Zimmerman in 2012, who cited Martin’s hoodie as justification for the killing (Lammy, 2019). Displaying successful black men in hoodies, this project is just one way that Americans can question implicit biases.
2. Organizations like the Marijuana Policy Project and the Drug Policy Alliance argue that legalizing marijuana is an important response to the war on drugs (German, 2018). In addition to halting all nonviolent drug offenses that lead to mass incarceration, federally legalizing marijuana would allow the most impacted communities to engage with recent money-making trends. One such example is weed yoga – which white people have taken the lead on (Posner, 2018).
3. According to The 74 Million, a non-profit education news site, “School security officers outnumber counselors in four out of the 10 largest public school districts in the country – including three of the top five” (Barnum, 2016). In fact, New York City, Chicago, Miami-Dade County, and Houston schools all value security over counselors. This choice threatens to continue a school to prison pipeline, that often unduly burdens communities of color. In shifting how America’s public education system views its priorities, children have a better shot of navigating an unequal society with ambition and an increased sense of freedom.

While reading these disparities, it is natural to become angry, discouraged even. Yet, put bluntly, it is the job of the reader to take on some of the onus that is disproportionately placed upon disadvantaged groups in this patriarchal, capitalist, and racist paradigm called the greatest experiment in democracy. With this responsibility noted, it is well past time to take a solutions framework to not only the war on drugs, but the negative impact it has had on the juvenile justice system.

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