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Is Proposition 21 Incriminating Our Youth?
By Tom Lee

Imagine returning from a vacation abroad. After a long flight all you want to do is go home, collapse onto your warm bed, and rest your tired body. But just as you make it out of the airport, just when you think you’re home at last, you get stuck at the customs line. U.S. Customs Service inspectors single you out and force you to strip off every piece of your clothing. You are then handcuffed and shipped to the nearest hospital for a full body probe and X-rays.

Think that can’t possibly happen to you? It could if you are African American and female. According to a congressional report released in April, black women are nearly twice as likely to be strip-searched at airports as white men and women and three times as likely as black men. This disproportion was not justified by a higher rate of discovery of drug smuggling by black women. In fact, the report found that men and women either black or white were equally likely to be carrying contraband.

Racial profiling, whether people like to admit it or not, has always been a part of the American criminal justice system. From Japanese internment camps during World War II, to the Rodney King case, race has played a major role in how law enforcement approaches what it deems as crime. But racial profiling is not something that only applies to adults, say youth advocates; it is reaching lower and lower into the ranks of this nation’s young people.

With California’s recent passing of Proposition 21, the Gang Violence and Juvenile Crime Prevention Act, critics say the nation’s trend of racial profiling only continues. The proposition, passed by a 62 percent majority of Californian voters in the March primary election, makes it easier to prosecute juveniles as adults. It makes it easier to send juveniles to prison instead of rehabilitation centers. Prior to the new law, judges were the ones who had the discretion to decide if a juvenile should be prosecuted as an adult depending on the circumstances. The new provisions allow prosecutors to try juveniles as adults without getting the judge’s consent.

Besides Proposition 21’s obvious effects on juveniles as a whole, youth advocates say the new law unfairly targets minorities. Specifically, one provision of the proposition expands the definition of a gang. A group of youths gathering together in one area who are dressed in a certain way and have a certain look may give police enough ammunition to approach them. The police can base their assumptions on just the youth’s appearances.

“When law enforcement tries to identify members of gangs, they look for groups of color. Prop. 21 increases their ability, makes it easier to criminalize so-called gang activities. There is a very strong danger these provisions would affect people of color,” says Robert Kim, staff attorney of the American Civil Liberties Union of Northern California. “There’s going to be a devastating effect on youth. The danger of communities of color being disproportionally impacted is real.”

Kim pointed out that the juvenile justice system already disproportionally affects minorities to begin with. In fact, a study released on February 2 by the Justice Policy Institute, found that youth of color in California are 2.5 times more likely than white youth to be tried as adults and 8.3 times more likely to be incarcerated by an adult criminal court. The study, entitled The Color of Justice, also claimed that Asian youth in California are 4.5 times more likely than white youth to be sent to prison.

Another recently issued study reported similar findings. According to And Justice For Some, prepared by the National Council on Crime and Delinquency, the nation’s oldest criminal justice think tank, Asian American youth are in police custody at almost three times the rate of white youth in states such as Minnesota and Rhode Island. It also found minority youth experience harsher treatment than white youth at every stage of the juvenile justice system. This disadvantage translates to higher rates of minority youth being detained and leads to over-representation in the criminal justice system. And youth of color are more likely than white youth to be tried in adult criminal court instead of juvenile court, according to the study.

Critics of Proposition 21 say the new law only makes the situation for minority youth worse: With the common assumption that gang members are often minority youth, they are who the police target the most.

“Look at the statistics. Gangs are usually made up of persons of color. Of course police are going to target minorities first,” says Roy Quinto, resource coordinator for the Pilipino Academic Student Services at U.C. Berkeley. “Proposition 21 makes it easier to arrest ‘gang members’ or anyone who fits a profile of a ‘gang member’ and those are usually youth of color.”

Others agree. “Racial profiling is illegal in California but it is still happening,” says Katherine Ulveling, development associate to Californians for Justice. “The proposition is making it easier for police to track what it defines as gang activity and easier for them to harass. It gives police more license to make assumptions not based on fact but based on appearance.

“The long term effects of the proposition are more [minority youth] in prisons and more license for police harassment,” she says.

Law enforcement officials, on the other hand, have a very different view of the law. El Dorado County Sheriff Hal Barker stresses that the act “makes California a safer place to be.”

“Our violent youth must be held to a higher standard of punishment and control,” he said. “When young people of any color commit heinous crimes, strong action should be taken early against them. The law does not discriminate.”

Barker denies the initiative authorizes police to stop juveniles because of their race or appearance and believes that youth advocate groups are exaggerating this claim through inflammatory rhetoric in order to court young supporters. However, he does confirm the possibility that police may stop groups of individuals whom they suspect are in gangs. Various things police may look for to determine if a group is affiliated with a gang include colors and modes of dress attributed to well known gangs such as red handkerchiefs worn on the head.

Barker sees this practice of profiling by dress as a routine precautionary procedure for police to prevent crimes. “Police should have the right to stop groups who [look like they] may be in a gang. I don’t think there’s anything wrong in the U.S. to determine if some group is gathered for good or evil,” he says. “It could be a gang looking to commit crimes or it could be a gang gathered to do good, but [the police] should have the right to make this inquiry to determine what they are gathered for.”

An inquiry from the police does not need to be a negative experience, according to Barker. “Young people don’t have to be afraid of the police because of Prop. 21. Interactions with the police don’t have to be in an unhappy nature,” he says. “If the group is determined to be innocent—and it is up to the police to determine if they are innocent—then [the police] can make friends out of those folks, make it into a positive experience. No harm done.”

Due to its confusing terminology and broad mandates, even law enforcement officials don’t know what the exact effects Proposition 21 will have on minority youth.

“We are restricted from racial profiling and I would absolutely not tolerate that kind of target profiling,” says San Francisco Police Chief Fred Lau. “However, we don’t know the exact impact [Proposition 21] has on youth of color [because it is written in] so much technical terminology.

“If lawyers can’t interpret the language, how is the general public going to interpret it?”

But advocacy attorneys have examined the proposition and some are alleging it violates the California state constitution. The American Civil Liberties Union, along with the League of Women Voters, Children’s Advocacy Institute, Coleman Advocates for Children and Youth, and former head of the Youth Law Center, Peter Bull, filed a suit to overturn the proposition, charging it was too wide in scope. It, therefore, violated the 1948 single-subject law, which requires an initiative deal with only one subject, according to the plaintiffs.

“Proposition 21 was presented in a misleading and improper fashion. It’s too broad. It led to voter confusion when [voters] thought they were deciding on only one topic,” says Kim.

Specifically, Kim maintains that Proposition 21 violates the single subject rule by addressing three topics: provisions in what constitutes gang activities, as well as changes in the three strikes law and juvenile court proceedings.

Kim also claims that the initiative was misrepresented as a juvenile crime law. In fact about half of its provisions on gangs and the “three strikes law” pertain to adults as well, he says.

One of the most egregious aspects of the law, however, is that the people it most affected—youth under 18—did not have a say in its passing because they were not old enough to vote, say critics.

“The youth were dealt an unkind blow. It was passed by people living in the suburbs, people who don’t live in the communities and don’t understand the issues concerning these communities,” said Quinto.

Many youth advocates see Proposition 21 as only a short-term solution to youth crime. Instead, says Quinto, alternative solutions to help minority youth need to be examined. After-school programs, community centers, or programs to provide juveniles with role models for troubled youth may be the answer.

“It’s a mistake to not increase spending for programs like mentorships and schools, but to increase by millions to send kids to the end solution—jail,” Quinto argues. “[Proposition 21] discourages minorities from going to higher education. It punishes minorities and discourages them from pursuing anything else,” said Quinto.

When youth are placed in adult prison opportunities for rehabilitation are minimal at best. State prisons simply do not have the resources needed for juveniles.

“In prison, without the treatment and education available in the juvenile system, they will be confined with lifetime career criminals,” said Raymond Wingerd, president of the Association of Chief Probation Officers. “They will learn how to be better criminals.”

Similarly, Pasadena Police Chief Bernard Melekian says, “Every kid we walk over [to the adult criminal justice system] is a kid we’ve decided to throw away.”

California youth are not taking this blow to their community sitting down, however. Many have formed workshops to educate people on Proposition 21 issues and have organized protests to oppose it.

“For the first time, not just college students are taking action. High School students are taking a stand. This [proposition] affects them the most,” said Jenny Leung, 17, a high school student who participated in a recent Berkeley protest.

“One of the major things this proposition brought about is that all of a sudden there’s a warning cry. If we don’t respond now, sooner than later, there would be no voice for the youth,” said Quinto. “We still have a fight ahead and it’s by no means over. The passing of Prop. 21 just got everyone on their feet.”

Even law enforcement officials applaud these youth efforts. “I strongly encourage young people to voice their opinions. It is a legislation that impacts youth directly and they should have a strong say in it,” Lau says.

Civil rights organizations have also been vocal in their opposition to Proposition 21. During the election, Californians for Justice held statewide organizing efforts in communities of color to educate and inform about Proposition 21, Ulveling says, reaching over 650 precincts across the state, including Oakland, Richmond, San Jose, Los Angeles, and San Diego.

But while the ACLU lawsuit burrows its way through the justice system, increasing numbers of California counties are implementing Proposition 21. Its effects have already been felt. Seventeen-year-old Manuel Ortega is the first juvenile in California to be prosecuted under the new provisions of Proposition 21. Ortega is being tried as an adult and faces up to 10 years in state prison for participating in a street brawl. If convicted, he would also have one “strike” against him under California’s “three strikes and you’re out” law. Had the street brawl occurred prior to the passing of Proposition 21 on March 7, Ortega would have been prosecuted under juvenile court and faced a penalty of three years or less in a juvenile camp.

All across California, cases like Ortega’s are being replayed. Fifteen-year-old Carlos Martinez of Pasadena, Calif., and 16-year-old Carlos Sanchez of Santa Ana, Calif., are being tried as adults in separate incidences of drive-by shootings and face life imprisonment without parole.

Innocent people have also felt the repercussions of the law. One U.C. Berkeley graduate student of Filipino descent who requested anonymity says since Proposition 21 passed, he has been stopped by police twice in the Oakland hills.

“They had no reason to stop me except for the reason that I looked like I might be in a gang,” he says. “I’m 31 but I look 18. And I have dark skin and dress in a certain way. That’s all there is to it. You look a certain way and they can get you.”