Different but equal? Exploring potential catalysts of disparity in remand decision-making in the youth court

Yannick Van Den Brink

doi:10.1177/09646639211033709

Abstract

The disproportionate use of remand detention (i.e. pre-trial detention) for vulnerable and marginalized youth is an issue of concern globally and demographic disparities in youth remand decision outcomes have been found in many jurisdictions, including England and the Netherlands. This article aims to explore and identify potential catalysts of disparity in the collective process of remand decision-making in youth courts. Drawing from Ulmer’s ‘inhabited institutions’ perspective, and the related ‘court community model’ and ‘focal concerns model’, and empirical findings from research in Dutch and English youth remand courts, this article suggests that several distinctive mechanisms and features of the youth remand decision-making process might function as catalysts of disparity. The findings indicate that the focus on ‘risk’ and ‘welfare needs’, the distinctive context defined by time constraints, limited information, shortages of readily available services, interdependency and interdisciplinary, and high stakes, combined with the profoundly human nature of courtroom workgroup decision-making, make the remand decision-making process in youth courts particularly prone to producing unwarranted disparities. Ultimately, informed by the theoretical perspectives and empirical findings, the article provides insights into how and why disparities might occur in youth remand decisions and offers suggestions for policy, practice and future research.

Highlights

The vast overrepresentation of youth from ethnic minorities, youth with disabilities and youth from low socioeconomic backgrounds in prisons and detention centres is a reality in many youth justice systems worldwide (Nowak, 2019)
This article has aimed to explore and identify potential catalysts of disparity in the collective process of remand decision-making in youth courts
Drawing from Ulmer’s (2019) ‘inhabited institutions’ perspective, and the related ‘court community model’ and ‘focal concerns model’, and empirical findings from research in Dutch and English youth remand courts, this article suggests that several distinctive mechanisms and features of the youth remand decision-making process might function as catalysts of disparity in remand decision outcomes

Summary

Introduction

The vast overrepresentation of youth from ethnic minorities, youth with disabilities and youth from low socioeconomic backgrounds in prisons and detention centres is a reality in many youth justice systems worldwide (Nowak, 2019) Research indicates that this overrepresentation can be partially due to differential offending rates and selective or discriminatory law enforcement practices (cf Robles-Ramamurthy and Watson, 2019), but can be fuelled by disparities in court decision-making. As Lynch (2019) points out, the question of whether disparities in criminal justice decisionmaking exist has been studied and answered many times, but the questions about their sources and how they are produced or sustained have received remarkably less attention in empirical court research In this regard, Ulmer (2019: 483) calls for more methodological diversity, as he signals that ‘theory and methods in the study of courts and sentencing are out of balance: theories emphasize interpretation, culture, and processes, while empirical inquiries focus largely on statistical studies of aggregates and outcomes’. There is a need for theoretically informed, qualitative empirical research which unravels court decision-making as a ‘collective process’ (Ulmer, 2019; Van der Woude, 2016) and furthers our understanding of how disparities in decision outcomes are produced (Lynch, 2019), in the specific context of youth justice

Objectives

Methods

Findings

Conclusion