Until recently she served on the Superior Court of Santa Clara County, where she
heard both juvenile and adult cases. A state court trial judge since 1982, she
presided over Manny's fitness case.
A number of recent surveys have shown that there are profound racial
disparities in the juvenile justice system, that African-American and Hispanic
youth are more likely to be tried as adults. They are more likely to receive
longer sentences, they're more likely to be in locked facilities, and on and on
and on, even when charged with the same offense as whites. Do you think that
. . . . I believe, absolutely, that what you have described exists in the
system. The statistics prove it--they're there. What is hard is that if you
go up to your average juvenile court judge, and that judge is the one who sends
these kids off--we're the ones ultimately responsible for these
statistics--that judge will look you dead in the eye and say, "I'm not unfair,
I'm not racist, I'm not prejudiced. I do the best I can." And that judge is
telling you the truth. . . .
But what is at play here in most cases? I'm not saying there aren't those
judges who are so prejudiced and so racist; there are those. But I think, in
the main, most are not. But I think what happens is that stereotypes are so
embedded in the psyche of human beings, that those stereotypes come to play.
So that when a young black kid comes into court before a white male judge, who
perhaps doesn't have any experience dealing with young black males, and this
black male has on baggy pants, has an attitude, may have a tattoo, immediately
a picture, a mindset comes up in that judge's head. We make assumptions;
that's what stereotypes are. Assumptions get made. . . . I think, in the
main, that's what happens, and I think that's what accounts for those
statistics. . . .
Now, how do we solve it? How do we remedy it? One way is to increase the
number of judges on the bench who are judges who look like the people who come
before them. So, if I have judges who are African-American, who are Latino or
Latina, who are from the Asian-American communities, they are less likely to
engage in that kind of stereotyping when some young kid who is of the same
background or same ethnic background comes before that judge. . . . The other
is, there are judges who are white, black, whatever, who have those biases.
The idea is to address those biases, to get them to address it, which means
judicial training. . . . where we say, "We've got to talk about this, we've got
to put it on the table and talk about stereotypes and your biases, so that when
you go back to work, we change the system that we have." The numbers are
astounding, shocking, and they are indeed a reflection of what's going on in
the system. . . .
Until recently he was the presiding judge of the Juvenile Court of Santa Clara
County, a division of the California Superior Court and presided over Shawn's
case. He heard between 300 and 350 cases a month.
Many of the kids we've interviewed believe that white middle-class kids get
a break--that they are more likely to be kept at home, they are less likely to
get the stiff sentences, they are more likely to be given opportunities to
continue their education. Do you think that's true?
Well, all the studies and the statistics say it is true. I know we talk
about that a lot in our judges' educational workshops and conferences. I have
yet to hear anybody who has a definitive answer, and I sure as heck don't. I
don't know of anybody who has a solution to it, other than to simply raise the
consciousness of the judges the best we are capable of doing and to try to
apply the resources that we have at our disposal . . . in a fair and equal way.
. . .
Some people might argue that if you have the social advantages of being
white and middle class, then you deserve even less of a break. So why . . .
does the system seems to be so inclined to tolerate these disparities?
It all depends on what perspective you're giving it. Probably most judges who
would disagree with that statement, who would want to be defensive about it and
argue with you, would say pretty much something like this: they would say that
kids who come from inner cities, kids who come from economically deprived
areas, are more likely to come from an ethnic group, a minority group, in our
culture. They also come from areas that don't have strong neighborhood
resources. Their parents do not have enough money to provide the type of
supervision through a public school or a mentoring or after-school activities
that a kid from an affluent white neighborhood would. So why should the system
then put the white affluent kids in custody, when the parents can do as good or
a better job, spending their own money doing it?
The kids who don't have those resources, if we just turn them loose to let them
go home, they'll be back on the streets running with the gangs again, getting
into more trouble, and perhaps even hurting themselves the next time around.
So why don't we do what we can for them in the system? And that means
detaining them. A white kid goes home to an affluent neighborhood. But what
the story doesn't tell you is that that a set of parents is putting out big
bucks in order to do what we do through the taxpayers dollars in the system.
So there's your statistic.
So you hear all these different arguments, but you still can't lie about the
figures. We have to deal with them. There is a disproportionate minority
population in our custody facilities, and there shouldn't be. My solution is
to front-end the whole thing and to make our communities healthier and
stronger, which means that you work with the people who live in those
communities, such as in our restorative justice programs that are starting to
really take hold around the country. Starting to work with community based
organizations and the faith community. . . .
Former supervisor of the juvenile division of the Santa Clara County Public
Defender's Office, she represented Shawn at his disposition.
The system is not fair. Institutional racism is alive and well in the
juvenile justice system, as it is in the criminal justice system. It's easier
to identify with people that are more like yourself, so if you have judges that
are predominantly from that same community, they can identify. . . . The same
thing happens with people who have money versus people who don't have money--if
they can demonstrate a support system that can act as a safety net or think
they can act as a safety net for them on the outside, judges are more prone to
buy into that.
The supervising deputy district attorney for the Juvenile Division of the Santa
Clara County's District Attorney's office, he's practiced exclusively in
juvenile court for the past six years. He was the prosecutor for Manny's
You can't go into any courtroom in this state and take a look at the kids that
are in custody and the kids that are out of custody and deny that there is
racial disparity in the juvenile justice system.
...I think there are a number of reasons why there are racial disparities in
the system. The law is skewed with respect to the social factors that are
considered, in terms of making a determination of who gets locked up and who
doesn't. And since it is skewed in such a way as to essentially favor more
affluent kids or to punish kids that are less affluent, that has racial and
A perfect example is if a kid comes from a wealthy family where mom doesn't
have to work, and another kid comes from a single-parent family. Those two kids
come to court in a detention hearing. And the affluent mom says, "Your Honor,
I can stay at home. I can watch my child, we can provide for all of these
services. He will never be outside of adult supervision, we will have him go
to a private counselor, we will do this, we will do that, because we can afford
it." And the judge says, "Sounds good to me. I will take advantage of these
resources. It won't be a drain on the system. You're out of custody." You
take another kid who does not come from that privileged background, who may be
from a single-parent family who can't afford time off, who doesn't have
extended family to watch over him. And it doesn't mean that there is no less
love in that family. It's just that the circumstances can't provide for this
privatization of vigilance that can be provided in a more affluent family. I
think it's there.
Is it a good thing or a bad thing that this happens?
. . . I don't think that it is
necessarily a bad thing for that white kid, but the problem is that it's a bad
thing for that kid of color who doesn't have that access. And it's a bad thing
for the system as a whole, because it creates the racial disparity. There's
more to [the racial disparity] than that. We talked earlier about trying not
to react with your gut . . . and I had mentioned that I try as best I can not
to be subjective in my criteria. ... Subjectivity in prosecution, defense, and
the courts, and frankly even out on the street with law enforcement, is another
reason that there is racial inequity in our system.
The Color of Justice
This study, released by the Justice Institute in February, 2000, found that in California, African American, Latino and Asian American youth are significantly more likely to be transferred to adult court and sentenced to incarceration than white youths who commit comparable crimes. Compared to white youths, minority youths are 2.8 times more likely to be arrested for a violent crime, 6.2 times more likely to wind up in adult court, and 7 times more likely to be sent to prison by adult court.
Youth Crime/Adult Time: Is Justice Served?
This study released on October 26, 2000 by Building Blocks for Youth, found that minority youth, particularly African American youth, were over-represented and received disparate treatment at several points in the process. In the 18 jurisdictions in the study, 82% of the cases that were filed in adult courts involved a minority.
And Justice for Some
This 2000 study was prepared by The National Council on Crime and Delinquency for the Building Blocks for Youth Initiative. It concludes that "African American juveniles are overrepresented with respect to their proportion in the population at every decision point" in the juvenile justice process.
manny · shawn · marquese · jose
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