john brittain pp
TRANSCRIPT
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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
We also invite comments on the law review article,
An Offer They Cant Refuse until August 31, 2009
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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