"Disproportionate Minority Contact," Part II

In Baltimore and America we often lack a shared vocabulary to explain the persistance of racial inequality, and, moreover, we lack the shared tools to redress that inequality.

In the attempt to both explain and address persistent racial inequality in America's juvenile justice system, the language and approach written into the federal Juvenile Justice and Delinquency Prevention Act points to a potential way forward. The ground-level work of redressing "disproportionate minority contact" in the juvenile justice system, while unglamorous, is necessary if we are to change that system. Indeed, that ground-level work is a model for how to understand and begin to change the structures and systems that maintain racial inequality in America.
Olatunde Johnson, the Columbia Law School professor whose essay I noted in last week's post, offers an explanation as to why such significant racial disparity persists in the juvenile justice system:

In 1992, Congress required states receiving federal juvenile justice funds to reduce racial disparities in the confinement rates of minority juveniles. This provision, now known as the disproportionate minority contact standard (DMC), is potentially more far-reaching than traditional disparate impact standards: It requires the reduction of racial disparities regardless of whether those disparities were motivated by intentional discrimination or justified by “legitimate” agency interests. Instead, the statute encourages states to address how their practices exacerbate racial disadvantage.

... A limitation of the disparate impact framework, particularly in the context of Title VI of the 1964 Civil Rights Act, is that courts adopted a narrow view of causation, unwilling to risk holding public actors responsible for broader racial inequality. By contrast the DMC standard, enforced not through litigation but through federal government oversight and advocacy by nongovernmental organizations, requires public actors to address how their practices interact with conditions of racial inequality, even apart from their complicity in creating those conditions. The DMC approach innovatively responds to the complex mechanisms that sustain contemporary racial inequality.

The framework for this innovative approach that Johnson is talking about here already exists in Baltimore and Maryland. In incremental, ground-level ways, it is making a difference.

A 2011 report on DMC from the Institute for Governmental Service and Research at the University of Maryland, College Park notes this:

But there is some good news: Certain DMC reduction programs do appear to be effective. And the research reported here represents a substantive advance in knowledge about DMC in Maryland. With results and recommendations in hand, state and local experts and practitioners have the beginnings of a road map for improving current efforts and targeting the additional resources that will surely be needed if the state is serious in its commitment to DMC reduction. Hopefully, the report will also help spur the sense of urgency and assiduous engagement and monitoring that must accompany these expanded efforts.

Similarly, Lauren Jones, commenter on last week's post on DMC, points to the important work being done by the W. Haywood Burns Institute and other "nongovernmental" and "public actors":

Though not perfect and maybe has not reduced DMC in total, both the city and county of Baltimore have made some strides toward reducing DMC.

The W. Haywood Burns Institute, DMC specialists, worked with system stakeholders to develop policies that decreased the number of youth admitted to detention for failing to appear in court. The newly implemented strategies helped reduce the use of secure detention for African American youth failing to appear in court by nearly 50 percent.

This is a small dent in DMC in total but the political will to tackle this problem exists in Baltimore County. A truly cohesive solution will also require the system to collaborate with community.

This is precisely the micro "regulatory innovation" that moves us concretely forward beyond the limits of Civil Rights Era legislation and approaches in our quest for racial justice, as Johnson writes in her essay:

DMC points to regulatory innovation in addressing racial disparities, not yet acknowledged in the legal commentary, that moves beyond the limitations of traditional impact theory. The DMC regime responds to the problem of public indifference to racial disparities by requiring that states become conscious of racial harm. It seeks to interrupt what some commentators have called the “[r]outine, [o]rdinary [g]eneration of [i]nequality” by institutions in intentionally or unintentionally producing racial inequality over time. The DMC framework meets the complexity of the problem of racial disparity by aiming at racial inequality caused by bias (unintentional or intentional), but also at the way in which government practices interact with race-specific structures of opportunity.

Beyond our response to events like the tragic killing of Trayvon Martin, this is the necessary, multicultural, anti-racist, and difficult work of democracy now.

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