The Rage of Innocence: How America Criminalizes Black Youth
Lawyers have long recognized that part of their job is to tell their clients’ stories. In the legal academy, storytellers use narratives as central to scholarship and policy advocacy. They often rely on “voices from the bottom” – stories about and by women and people of color portraying their oppression. Critics sometimes dismiss storytelling as anecdotal evidence and question whether they are typical or accurate. Professor Kristin Henning has compiled an overwhelming number of stories drawn from cases and media reports, bolstered by empirical data and scientific research, that attest to their veracity and give voice to Black youths whom she has defended for twenty-five years.
Henning is Blume Professor of Law and Director of the Juvenile Law Clinic at Georgetown University Law School. She has written many law review articles advocating for juvenile law reform. Rage of Innocence: How America Criminalizes Black Youth uses compelling stories to demonstrate how the childhoods of Black youth differ from those of their white contemporaries, and the challenges they and their families face.
Henning’s thesis is straight-forward. Throughout American history, we have failed to see Black children as children when they engage in ordinary childhood activities. As a result, when Black children engage in normal adolescent behaviors, police, schools, and other people are more likely to perceive them as threatening and dangerous. These differential perceptions lead to the criminalization of commonplace Black teen-age behavior and traumatize its young victims. This is a powerful but painful book to read because the breadth and depth of racism to which these children are exposed is so pervasive.
In Chapter 1, Henning reviews developmental psychology and neuroscience research on adolescent brain development that helps explain youths’ generic impulsivity, recklessness, and susceptibility to peer pressure. Self-report data confirm the normality of adolescent offending and similar rates for most offenses between White and Black youths. She then contrasts how police and the justice system respond when Black and White youths commit similar crimes – disparities that produce different life trajectories. She uses compelling narratives across multiple dimensions of adolescent life to demonstrate how law enforcement and schools respond differently to Black and white youths engaged in similar conduct.
In Chapter 2, Henning addresses the criminalizing of Black adolescent play. Although play is a normal part of adolescent development, she argues that Black youths do not receive the same mitigation white youths receive when at play. Police and the public perceive Black youths to be older and more culpable, and white youths are seen as younger and more innocent. Her stories highlight the police responses to Black youths engaged in normal behavior: police shooting 12-year-old Tamir Rice holding a toy gun within two seconds of arrival; police violently removing a Black girl from class for using her cellphone; and police shooting Jordan Edwards while he was driving away from a party. She uses examples of differential police enforcement of juvenile curfew laws to illustrate similar disparities. She argues persuasively that these low-visibility discretionary decisions readily lend themselves to discriminatory application, either subconsciously or deliberately.
In Chapter 3, Henning uses stories to illustrate how laws and school dress codes effectively criminalize aspects of Black adolescent culture. She notes how certain fashions – hoodies and sagging pants – became signifiers of criminality when worn by young Black men. She describes how police enforce laws prohibiting sagging pants almost exclusively against Black youths. These laws precipitate intra-racial conversations about “respectability” to avoid attention and reduce whites’ feelings of threat and Black youths’ ability to exercise sartorial self-expression. She uses examples of schools’ dress codes that reinforce gender stereotypes and lend themselves to discriminatory application against Black girls. Similarly, schools’ regulations of hairstyles and prohibitions on Black fashions – braids, cornrows, dreadlocks – inevitably have disparate racial impact. She notes how schools and the public respond to rap music lyrics versus equally “offensive” words from other genres such as country music. A similar disjunction occurs in responses to youthful aggregations – white peer groups or fraternities versus Black gangs – with disparate surveillance and criminalization of the latter.
In Chapter 4, “Criminalizing Adolescent Sexuality,” Henning uses the metaphor of the hyper-sexed Black “Brute” and the promiscuous Black “Jezebel” to highlight youths’ vulnerability to criminalization. Examples from the Scottsboro boys to the Central Park 5 illustrate the impact of racial sexual stereotyping on criminal injustice. Whether society affords the excuse “boys will be boys” depends on whether the boys are Black or white. A similar disparity in gender stereotypes depicts Black girls as more mature, less innocent, and thereby subject to harsher responses by schools and police.
In Chapter 5, Henning depicts the challenges of growing up Black in America and how police actions shape young men’s identities. Young people who live in heavily policed neighborhoods experience high rates of fear, anxiety, and hopelessness. This has a significant impact on their sense of themselves – who they are, who they can become, and whether it’s worth trying to participate in mainstream society. It is a challenge for parents to help their child create a positive racial self-identity while simultaneously teaching them how to navigate the inevitable racism they will encounter. While democratic participation and civic engagement are positive activities for young people, when Black youths protest racial inequities, they’re more likely to be charged with disruption or riot than their white counterparts, for example Black Lives Matter demonstrations.
In Chapter 6, “Cops in Schools,” Henning contrasts the schools she attended more than three decades ago with the more prison-like contemporary schools – metal detectors, heightened surveillance, and the ubiquitous presence of police school resource officers (SROs). Henning attributes the initial emergence of police in schools to post-Brown v. Board of Education fears by white staff of newly integrated schools, and reaction to the more aggressive civil rights movement of the 1960s. Police presence greatly expanded in the 1990s in response to concerns about “super-predators” and school shootings. Even though most school shootings have involved white perpetrators in suburban schools, Black students are more likely to attend heavily policed schools and to be referred by them to juvenile courts. Schools and police have criminalized minor disobedience, disrespect, disorder, or disruption and fueled a school-to-prison pipeline.
In Chapter 7, Henning describes how police use low-visibility minor offenses like loitering, disorderly conduct, obstructing justice, or resisting arrest to convert youths’ disrespectful behavior – “contempt of cop” – into crimes. She contextualizes why young Black males are more likely to react adversely to police contacts. She portrays a vicious cycle in which over-policing of Black youths heightens hostility, resentment, and resistance which exacerbates police stereotypes, distrust, excessive use of force, and disproportional arrests.
In Chapter 8, “Policing by Proxy,” Henning examines white vigilantes who kill young Black men and become heroes. She draws on a history of white violence directed at Blacks to contextualize cases like Bernhard Goetz – the subway shooter – and George Zimmerman shooting Trayvon Martin. She explains how “Stand Your Ground” laws exacerbate racially biased homicides. She then turns to the long list of disproportionate police killings of Black men, many unarmed. When questioned about Black homicides, police typically blame the victim, vilify their character, and emphasize their perceived threat. She uses other examples of whites violently securing “white spaces” against those who “look out of place” in their neighborhoods and calling the police about “suspicious” Black youths.
In Chapter 9, Henning describes how heightened police surveillance and constant stops traumatize Black youths. She explains its physical and emotional impact on their attitudes, behavior, and well-being. Black youths’ personal encounters with police, their word-of-mouth exposures to others’ experiences, and viral media depictions of police violence reinforce those traumas. The story of one of her clients provides a through-line with which to describe how policing affects Black youths’ mental health and life trajectories.
Henning begins Chapter 10 with a review of earlier cases in which states have executed innocent Black children. Although states no longer execute children, they are more likely to transfer Black children to criminal court and sentence them more harshly than white youths convicted of the same crimes. Youths incarcerated with adults experience physical violence, verbal threats, bullying, and sexual assaults in facilities ill-equipped to meet their needs, and some seek relief through suicide.
Although Chapter 10 focuses on youths tried in the criminal justice system, Henning does not address the profound racial disparities in the juvenile justice system. Because Henning represents youths in juvenile courts, this is a surprising omission. Racial disparities in juvenile courts are even greater than those in the criminal justice system. In the context of macro-structural changes, I have argued that the expansion of civil rights in the 1960s precipitated a conservative backlash that fueled “Get Tough” era policies of the 1980s and 1990s, many of which remain in place (Feld 1999; 2017). At every stage of juvenile justice decision-making – police referral, intake, detention, charging, adjudication, and sentencing – racial disparities cumulate and compound. Youths’ prior records reflect earlier discretionary decisions and increase likelihood of transfer and adult sentence enhancement.
In Chapter 11, Henning describes how Black youths’ families’ cope with their children’s trauma. Some who lost children to violence transformed their pain into reform advocacy to spare others the same fate. She portrays other parents, like those of the Central Park Five, who suffered because they were unable to help their children navigate the criminal justice system. Youths’ incarceration – often in distant facilities – weakens familial ties. She describes her own personal loss – a brother who died in prison – and the stigma and shame family members feel.
In Chapter 12, Henning argues that because Black youths inevitably will experience racism in various forms, they need resilience to withstand those assaults. They need a network of supportive adults to help them develop a strong racial identity and coping strategies. She advocates the end of School Resource Officers who fuel the school-to-prison pipeline and for creative alternatives for routine discipline. Given the trauma Black youth face, schools should be equipped with mental health resources. Restorative justice programs should supplant zero tolerance policies. For schools that retain SROs, she prescribes clear guidelines for their limited role, and training in adolescent development and de-escalation tactics. She advocates fundamental changes in police practices – community policing, procedural justice, implicit bias training, and the like. She advocates increased accountability of police officers by schools and departments. She proposes limiting supposedly race neutral rules and laws – prohibitions on sagging pants, clothing styles, hairstyles, “disturbing school” – that disproportionately criminalize Black youths. She advocates reforms for prosecutors, judges, and corrections officials to enable them to recognize that Black children are children. Prosecutors should exercise greater care in charging and judges in sentencing. Corrections officials should provide Black youth the rehabilitative services to which white youths have access.
Although Henning intends her book to be a call for action that “will be helpful to guide practice, training, and policy (p. 347),” she could have provided a summary of take-aways at the end of each chapter and given concrete examples of actions to achieve those goals. Her stories drawn from cases and media reports are copiously footnoted, but she does not employ a user-friendly citation format. After an initial full-citation, she uses short-hand references that do not refer back to the original citation – for example, “see note supra” – which makes it difficult to find authorities. An academic’s quibble!
Henning’s powerful compilation of stories depicts a bitter, sad, and depressing reality. In this era of racial reckoning, social structure and political economy create daunting challenges and burdens for Black youth. In my book on the racialization of juvenile justice, I concluded that “[i]t is my fervent hope that future, more enlightened generations of Americans will look back with shame on the contemporary child abuse inflicted by the state. . . ‘Have you no sense of decency, sir? At long last, have you left no sense of decency’” (Feld 2017:289). Henning gives voice to those children who cannot wait for future generations. With passionate eloquence, she articulates their plea for decency, equality, and childhoods like their white contemporaries.
Feld, Barry C. 1999. Bad Kids: Race and the Transformation of the Juvenile Court. New York, NY: Oxford University Press.
Feld, Barry C. 2017. The Evolution of the Juvenile Court: Race, Politics, and the Criminalizing of Juvenile Justice. New York, NY: New York University Press.
Barry C. Field, Centennial Professor of Law Emeritus, University of Minnesota Law School