New York University Review of Law & Social Change
This Article considers the viability of a constitutional challenge to the disproportionate confinement of juveniles of color – a phenomenon known as “disproportionate minority contact” or “DMC.” Specifically, I ask whether, in the wake of McCleskey v. Kemp and its progeny, it is possible bring an Equal Protection claim based on statistical evidence that juveniles of color are significantly more likely to be detained by juvenile court judges than similarly-situated white youth. I argue that the nature of the juvenile detention decision places it squarely within the contours of the types of administrative decisions for which the Supreme Court has historically accepted statistical evidence of disparate impact to create an inference of discriminatory intent. I also argue that the developmental differences between juveniles and adults and the ideological differences between the juvenile and criminal justice systems make a challenge to the selective detention of youth of color less likely to run afoul of the four pragmatic concerns cited by the Court in McCleskey: the potential infringement on discretionary decision-making, the pre-existence of anti-bias prophylactic measures, the "slippery slope" rationale, and the risk of usurping the role of the legislature.
Perry L. Moriearty, Combating the Color-Coded Confinement of Kids: An Equal Protection Remedy, 32 N.Y.U. Rev. L. & Soc. Change 285 (2008), available at http://scholarship.law.umn.edu/faculty_articles/312.