Occasionally, I’ve been asked why I chose to focus on children as my topic for Drug Law and Policy Blog. For many who knew me prior to law school, my interest in juvenile issues came as somewhat of a surprise. If you had asked me even two years ago what kind of law interested me, criminal juvenile issues would have been a) far too specific for my overwhelmed first-year brain to handle and b) not even in the realm of possibility. I’m just not a person who has ever enjoyed hanging out with kids. My motivation for choosing to focus on juvenile issues for Drug Law and Policy therefore came from a place of curiosity, not an already known passion. Over the course of the semester, both through writing for this blog and working extensively with youth in juvenile hall, the meaning behind my interest in juvenile law has shifted substantially. The two perspectives I have, the one I had when I began writing What About the Children and the one I established over the course of several articles, are in many ways very different, though I think each are equally relevant.
As I began writing, I believed that it was important to talk about the children because the effect of legal adult-use marijuana on children is one of the most common arguments used against legalization. I thought if I could shed some light on how much prohibition negatively impacts kids, then a lot of those counter arguments could be muted. My opinion at the time was that talking about the effects of legalization on children was only one way to discuss legalization. While that opinion hasn’t changed—surely we need to sort out taxes, how legal marijuana is going to be distributed and consumed, and what we mean when we talk about “legalization”—I’ve developed a more sincere belief that when we talk about any change in criminal law, we have to talk about the kids.
Talking about kids is important not because children are innocent or deserve special treatment but because children grow up. They grow into the adults that will live in the world tomorrow. I don’t mean this in a lovey-dovey, “the children are our future” sense, just that literally, the children of today will run the government—and populate the prisons—of tomorrow. So when laws or policies adversely affect children, or a specific group of children, that adverse affect carries on into our future.
Per labeling theory, as I discussed a couple installments ago, it then follows that children who are prosecuted for marijuana possession and see themselves as criminals, on the outside of normal society, are more likely to continue to see themselves that way into adulthood. This may mean those adults feel less obliged to follow whatever framework we instate for legal adult use, and instead function within the black market. It also means they may be more likely to function generally, not just in reference to the legal marijuana market, on the fringe of society, and be more likely to continue to be criminally involved.
Labeling theory creates enough of a propensity problem that we should consider changing how we address criminally involved youth. Yet there is another, compounding factor that needs to be discussed before we can fully grasp the vicious cycle of our criminal justice system. That factor is race. As I mentioned in my last article, we know suspensions and expulsions adversely affect students of color. For those of us living in the United States with an internet connection, it should come as no surprise that we also know the adult criminal justice system adversely affects people of color, both in incarceration numbers and treatment by police. Working in Santa Clara County, I have firsthand knowledge of how overrepresented Latinos are in the California criminal justice system. Yet when I began researching the numbers, I came into a bit of a problem. According to the statistics, Latinos are not egregiously over represented. By the numbers, Latinos make up 38% of Californians and 41% of incarcerated individuals—which is over representation, but nowhere near as egregious as the 6% to 27% Black Californians represent, respectively. Suspensions and expulsions were similarly only slightly disproportional when it came to Latinos.
So I tried going local with my research. Finally, I found this Santa Clara County Juvenile Justice System Annual Report, and things made sense. The report is very informative and I highly recommend reading through its entirety, but for summation purposes this table speaks volumes.
Much like the statewide statistics I’d found earlier, the Santa Clara County statistics indicate a huge disparity between the Black population and arrest rate. However, the disparity between the Latino population and arrest rate is more impactful given the overall population. The above table, and the report at large, indicates that Latino youth in Santa Clara County are 3.7 times more likely to be arrested than their White counterparts. Arrest rate doesn’t necessarily represent prosecutions, or in the case of juveniles, petitions, but sociology and labeling theory tells us the damage is done when a youth is arrested. The mere fact that children of color are more likely to be arrested, regardless of whether their case ends up on some kind of permanent record, is cause for concern. Youth who are arrested are more likely to see themselves as outcasts and criminals, and are more likely to disregard laws. Combine this with the known bias of police officers to target people of color, and it is no wonder the United States has giant problem incarcerating people of color. Given the disproportionate arrest rates of Latino youth in some counties (table above), that problem will be growing in years to come, when arrested teenagers turn into incarcerated adults.
Labeling theory, and the ripple affect it has on children who grow up, is why I think every criminal law discussion needs to include the kids. The impact arrests alone have on children is why I think legalizing marijuana for adult use is such an important step towards reforming our criminal justice system. While adult-use marijuana (obviously) won’t legalize possession for children, it will allow marijuana crimes to simulate alcohol or tobacco crimes more. Underage drinking, while serious, does not often result in arrests. In fact, I could nary find a study, document, or statistic about underage drinking arrest rates. Instead, what are readily available are studies on the risk and damage of underage drinking, treating the issue like a mental health problem. Taking a mental health approach to substance use will have a net-helpful effect on our kids, without the damage caused by arrest and (juvenile) prosecution. Further, if California chooses to maintain its current framework for simple possession, requiring infractions rather than misdemeanors for possession of up to an ounce, arrests, and the harm that comes with arrests, are almost entirely avoided.
For those of us drafting polices for legalizing adult-use marijuana, juvenile issues are likely not a priority. The nitty-gritty issues of licensing, land use, marijuana business, and DUI enforcement are complex enough and important enough to occupy a significant portion of time. But for those of us voting, and those of us who may hesitate to support legal adult-use marijuana due to the access it grants children, juvenile justice issues must be discussed. The criminal justice system has incredible power over all our youth, both those who have fallen under the jurisdiction of the system and those who live cautiously to avoid contact. It is important for us, as adults and voters, to ensure that the juvenile justice system does not do unnecessary damage to our children.
Clare McKendry for Drug Law and Policy – Follow us on Twitter @DrugLawPolicy
 In some jurisdictions, police officers are not required to issue uniform traffic or infraction tickets (New York is one), and may technically be allowed to take people into custody for infraction offenses (though it rarely happens). It’s further worth mentioning that if someone with a marijuana infraction fails to appear for a court date, a bench warrant will usually be issued, and the next time the person comes into contact with police they will be arrested.