Excerpted From: Subini Ancy Annamma and Jamelia Morgan, Youth Incarceration and Abolition, 45 New York University Review of Law and Social Change 471 (2022) (241 Footnotes) (Full Document)


AnnammaAndMorganIn July 2020, ProPublica broke a story about Grace, a Black girl with ADHD, who was found “guilty on failure to submit to any schoolwork and getting up for school.” This probation violation led to her being incarcerated at Children's Village in Michigan during the height of the COVID-19 pandemic, despite Michigan Governor Whitmer's executive order “[e]liminating any form of juvenile detention or residential facility placement for juveniles unless a determination is made that a juvenile is a substantial and immediate safety risk to others.” After an uproar surrounding the story, including a petition that had over 25,000 signatures, the judge still denied a motion to release Grace and it was only after the Michigan Appeals Court stepped in that Grace was freed.

In this Article, we will use Grace's incarceration in the current context of a global pandemic to illustrate our argument that youth incarceration should be abolished and present a set of principles guided by Disability Critical Race Theory (DisCrit) to imagine what would replace juvenile incarceration. By “youth incarceration,” we mean all youth incarceration for delinquency including youth who have been detained or committed in any type of institution, including youth prisons, camps, rehabilitation centers, and others. The COVID-19 pandemic has laid bare the dangers of the juvenile legal system, including isolation, missed opportunities, and abuse. This should make it harder to look away from the societal inequities that are exacerbated by youth incarceration. Indeed, the current moment has illuminated the power of social movements working to abolish the prison industrial complex, and as legal scholars have argued, lawyers and law professors should engage with these movements and their calls for abolition and transformative change. Yet, when we join conversations of abolition, we find them mainly centered on adult prisons. Though we appreciate and support the call for abolishing adult prisons, the absence of youth prisons from abolitionist movements and discourse is concerning to us given the violence and disparities that are reflected in youth incarceration. Furthermore, despite earlier calls to abolish the juvenile legal system, a sustained engagement with abolitionist theory and the juvenile punishment system has not featured in legal scholarship.

This Article sets forth an abolitionist critique of youth prisons using Disability Critical Race Theory (DisCrit) as a lens for analysis. DisCrit centers how “racism and ableism inform and rely upon each other in interdependent ways” and “emphasizes multidimensional identities rather than singular notions of identity, such as dis/ability, social class, or gender.” Applying a DisCrit lens, we discuss how COVID-19 has demonstrated the urgency of addressing the harms facing incarcerated youth, particularly incarcerated Youth of Color and disabled incarcerated Youth of Color. Building on scholars like Professors Kris Henning and Jyoti Nanda, we engage in intersectional analysis to illuminate the contours of abolitionist theory as applied to youth incarceration.

The Article proceeds as follows. In Part II, we discuss how the COVID-19 pandemic has laid bare the urgent need to decarcerate and abolish all forms of youth incarceration. In Part III, we review the literature to offer arguments for why youth confinement of all forms should be abolished. Our arguments are grounded and contextualized in an historical assessment and awareness of the social control purpose and deleterious effects of youth incarceration, particularly as it affects multiply-marginalized youth, those at the intersections of multiple oppressions. In Part IV, we apply a DisCrit lens to support our call for abolition. Part V concludes.

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In 1951, at the age of 83, W.E.B. DuBois was put on trial for Communist activities. DuBois wrote of his trial,

What turns me cold in all this experience is the certainty that thousands of innocent victims are in jail today because they had neither money nor friends to help them. The eyes of the world were on our trial despite the desperate effort of press and radio to suppress the facts and cloud the real issues; the courage and money of friends and of strangers who dared stand for a principle freed me; but God only knows how many who were as innocent as I and my colleagues are today in hell. They daily stagger out of prison doors embittered, vengeful, hopeless, ruined. And of this army of the wronged, the proportion of Negroes is frightful. We protect and defend sensational cases where Negroes are involved. But the great mass of arrested or accused [B]lack folk have no defense. There is desperate need of nationwide organizations to oppose this national racket of railroading to jails and chain gangs the poor, friendless and [B]lack.

DuBois' words continue to ring true through time and into youth prisons today. We are so glad that Grace's story has garnered public outrage and attention. Yet from our work with charged and adjudicated youth, we know that her story is not the exception, but the common narrative. Black disabled girls are criminalized in and out of schools. We continue to incarcerate our most vulnerable youth and no amount of reform has changed that. Consequently, we call for abolition of the entire youth incarceration system. Youth should not be incarcerated; it is that simple. Our call builds on existing juvenile justice scholarship that recognizes the racialized pathologies of criminalization and social control in their call to transform the juvenile legal system. We simply take these arguments to their next logical step. We also argue for a DisCrit abolitionist imaginary when considering what should take the place of youth prisons. We must abolish not only the physical prisons but eliminate the pathologizing thinking behind them. Youth must be supported in their communities through investment and redistribution of power. When youth do commit harm, we must meet them with caring and supportive ways where they can address the harm they have caused and learn from the situation. Anything less than total abolition is not enough.

Associate Professor, Graduate School of Education, Stanford University.

Associate Professor of Law, University of Connecticut School of Law.