By Ryan Lessard, Granite State News Collaborative

Black kids are far more likely to end up with harsher punishments than their white contemporaries when they get in trouble, with higher rates of arrests, detentions and incarceration, according to a statistical analysis by the Division of Children, Youth and Families. 

Also, minority children are reported to child services and placed into foster care at rates disproportionate to their population, while an undersized percentage of white children enter foster care. 

While DCYF Director Joseph Ribsam said some of these disparities may be the result of an overlapping income gap for minority families, he said that does not explain why minority children make up an outsized slice of the child welfare and juvenile justice pies.

“I think that’s part of the story. I don’t think it’s the whole story,” Ribsam said. “The deeper you get into the system the more exacerbated the numbers become. … you do see the disparities shift.”

While Ribsam said he can’t explain with certainty why the inequities exist, he said he’s sure unconscious or conscious bias on the part of decision makers at every stage of the juvenile justice and child welfare system plays a part.

DCYF compiled its report in April and discussed it at a panel that was open to the public but primarily attended by child welfare professionals, Ribsam said. It reviewed data from 2017, 2018 and 2019.

One of the “most striking bits of data,” Ribsam said, shows that Black children under 18 were nearly three times as likely as white kids to be arrested by police. From there, the disparities compound.

Minorities make up a disproportionate amount of cases referred to court, compared to how many are arrested, while white children are less likely to be referred by prosecutors.

When a judge makes a decision whether or not to release them or detain them in jail or at the Sununu Youth Services Center, minority children are two to three times more likely than white kids to be detained, and Black minors in particular are detained four times their population.

By the time youth are sentenced to be “committed,” or incarcerated, about half of the committed population is represented by minority youth, even though they are only about 13 percent of the state’s population of 10 to 17 year olds.

Black children make up 17.9 percent of those committed, but only 2.7 percent of all kids age 10 to 17 in the state. Similarly, Hispanic kids represent 23.9 percent of those committed, but only 6.4 percent of the appropriate age group. White minors, meanwhile, are only 50.7 percent of those committed, far less than the 87 percent of the population they represent.

Pamela Jones has been a New Hampshire Public Defender for 13 years and has developed a specialized focus on youth justice. 

“One of the things I’ve seen over the years is despite New Hampshire being a quote, unquote white state, we still have a lot of brown and Black kids in the system. Far too many if you look at the numbers,” Jones said.

She said she’s seen the disparities begin with police interactions. Often, children of color will run from police in cases where they’re simply walking on the sidewalk in the late afternoon, because they don’t trust police officers. Police respond to the running as a sign of guilt and pursue them. But Jones said she’s seen many cases where those kids didn’t do anything illegal.

“I’ve had many a client tell me ‘I ran because I didn’t trust what the police were going to do,’” she said.

She’s also seen cases where one brown kid with no record of wrongdoing is singled out of a group of white kids and recommended for probation by prosecutors, but the white kids who did the same conduct were not.

Jones said part of the solution has to be more implicit bias training for prosecutors, police and judges. Judges evaluate each case on an individual basis, but she said they are influenced by the prosecution and they may not reflect enough on how they treated a white youth in a similar case.

“We should all be trained in implicit bias because it’s really critical,” Jones said. “It’s one of the first steps we need to take in changing this.”

The public defenders have long been doing implicit bias training, provided by the National Juvenile Defenders Center in partnership with Georgetown Law School in Washington, DC, Jones said, but she’s noticed the frequency of such training has ramped up recently. 

She thinks prosecutors are not getting nearly enough of this same training, however.

Except for some extreme cases, most juvenile cases are handled by local town and city prosecutors.

Londonderry town prosecutor Michael Malaguti said the criminal justice system is imperfect because people are imperfect.

“As a prosecutor, I am committed to administering justice with impartiality and restraint. However, I too am imperfect,” Malaguti said. “Given the immense power of prosecutors in our criminal justice system, we should be open to examining and talking about our own potential biases to ensure we are delivering the ‘equal justice under law’ the Constitution demands.”

Another reason why Black youth may be held to a higher standard in the criminal justice system than white youth, may be a common misapprehension about their age. New Hampshire Child Advocate Moira O’Neill said there have been studies that have shown that white adults tend to guess higher than accurate ages when looking at the faces of Black youths. 

“A number of studies have found that Black children are consistently perceived as older than their actual age,” O’Neill said. “Being perceived as older prompts authorities to also perceive the children as being more responsible for their actions.”

Ribsam said a bill, SB 94, would help divert more disadvantaged youth away from the criminal justice system by offering a needs assessment when kids get arrested before they head to court. If the needs assessment identifies interventions that could mitigate risk, the arresting authorities will be advised not to file delinquency petitions. The bill passed the House and Senate and awaits the governor’s signature.

While the legislation would not target racial disparities directly, it would potentially nip potential disparities in the bud by keeping minority kids from getting too far into the system, where the greatest inequities occur.

In the child welfare setting, the disparities begin as soon as concerned educators, police officers, medical professionals and others report suspected issues of abuse and neglect to state child protection services. Black kids were the most overrepresented, with twice as many calls than the general population.

The state’s overall demographics are shifting, with a gradually growing share of minority families and a shrinking white majority. But Black children still make up only about 1.8 to 2.2 percent of the state’s youth between 2017 and 2019, and Hispanic children range from 5.7 to 6.2 percent. 

Despite this, Black children represented 4.3 percent, and Hispanic kids represented 9.4 percent of all children reported to DCYF for possible abuse and neglect in 2019. Meanwhile, 82.6 percent of white children were reported, slightly less than their population share of 84.9 percent.

Ribsam said this may be partly due to implicit bias among the reporting parties, the clear plurality of whom are adults in schools and law enforcement agencies. In 2019, 21.2 percent of cases were reported by educators, and 20.1 percent were reported by police. In 2020, police reported far more (23.5 percent) than educators (16.8 percent), probably because of the ways normal school life was disrupted during the COVID-19 pandemic, Ribsam said.

Perceptions about poverty and neglect may be somewhat skewed by race, but Ribsam said low incomes, depressed neighborhoods and a lack of access to community resources are often factors that already disproportionately affect communities of color. 

As such, rebalancing the inequities can’t be completely achieved without addressing some of those underlying socioeconomic gaps, according to Borja Alvarez de Toledo, the president and CEO of Waypoint.

“It has to be a total holistic approach,” Alvarez de Toledo said.

Waypoint, which changed its name from Child and Family Services in 2018, has been a private contractor in the state’s child welfare system since 1850.

He said about 12 to 13 percent of the clients they serve are recorded as nonwhite, plus 24 percent are recorded as “unknown,” of which Alvarez de Toledo estimates about 20 percent are likely nonwhite. While that’s more than their share of the population, he said it’s not dissimilar to the disparities seen in other states.

Waypoint also has federal contracts to provide outreach to runaway and homeless youth; both unaccompanied minors aged 12 to 18 years old, and homeless youth ages 18 to 25. Of those, in 2019, only 55.5 percent were white while 15 percent were Black.

Out of the thousands of cases of suspected abuse or neglect reported to DCYF, only a handful are substantiated by child protection investigators. Those smaller numbers mean the proportions fluctuate year to year. So while 2017 and 2018 saw more than the proportional number of Black youth substantiated, it was about on par in 2019, with only 23 cases. It was still outsized for Hispanic youth, which saw 9.1 percent of substantiated abuse and neglect, over a 6.2 percent segment of the population. 

Ribsam said that points to an issue of overreporting of minority cases. 

“The call volume is twice as common for Black families,” Ribsam said.

While the full picture is incomplete, due to a lack of data on some children entering foster care, the data show Hispanic kids are overrepresented and white kids are underrepresented, with only 76 percent of white youth entering foster care.

Both Ribsam and Alvarez de Toledo said their organizations need to do a better job at data collection. One of the ways they hope to do that is by letting subjects self-identify their race, rather than letting case workers decide. 

“We just check a box and I am afraid sometimes we guess,” Alvarez de Toledo said.

The number of unfilled boxes is why some proportions don’t add up to 100 percent. 

Ribsam also wants to be able to cross check the incidence of abuse and neglect cases with family income levels, either attributable to specific subjects or from aggregate census data.

There are some efforts underway to cut down on overreporting.

Ribsam said DCYF is rolling out a community response guide for teachers and other official reporters of abuse and neglect. If they aren’t sure about whether it meets the threshold, they can go through a web-based decision tree to figure out if a call needs to go to DCYF or some other community resource center. It also provides tips on how to navigate the issue with the families. The idea, he said, is to elevate reporters to being “supporters.”

Alvarez de Toledo said they hope to complete the launch of a prevention program called Community Based Voluntary Services, which flags families in need who don’t quite meet the threshold for DCYF interventions but have high enough risk factors that they could be referred to services.

The hope is to keep their situations from getting worse, and eventually ending up in the child welfare system. Alvarez de Toledo said about half of initially reported cases that don’t meet the threshold eventually do later on.

With the new state contract, Waypoint will be serving up to an estimated 960 families per year, to the tune of about $4 to $5 million, Alvarez de Toledo said.

These articles are being shared by partners in The Granite State News Collaborative as part of our race and equity project. For more information visit collaborativenh.org.