Policy Determinants of Inequitable Exposure to the Criminal Legal System and Their Health Consequences Among Young People

Abstract

Criminalizing young people, particularly Black- and Brown-identified young people, has increasingly been a feature of US rhetoric, policies, and practices. Thus, the domains in which young people are exposed to the legal system have continued to expand, encompassing their communities, schools, and homes. Importantly, public health researchers have begun exploring links between legal system exposure and health, although this literature is primarily focused at the interpersonal level and assesses associations within a single domain or in adulthood.

Using critical race theory and ecosocial theory of disease distribution, we identified potential policy-level determinants of criminalization and briefly summarized the literature on downstream health outcomes among young people. Our analysis suggests that policy decisions may facilitate the targeting of structurally marginalized young people across domains.

Future research should (1) position these legislative decisions as primary exposures of interest to understand their association with health among young people and inform institutional-level intervention, (2) measure the totality of exposure to the criminal legal system across domains, and (3) use theory to examine the complex ways racism operates institutionally to shape inequitable distributions of associated health outcomes.

The criminalization of young people is increasingly a feature of US rhetoric, policies, and practices.¹ Therefore, the domains in which young people engage with the criminal legal system in their daily lives have expanded. These domains include their communities (e.g., police stops), schools (e.g., officer-involved punitive discipline), and homes (e.g., caregiver incarceration). Importantly, exposure to the US legal system in these 3 domains disproportionately affects structurally marginalized young people, specifically those who identify as Black and Brown; lesbian, gay, bisexual, transgender, and queer/questioning; economically disenfranchised; disabled; houseless; and undocumented.^2–5 Several explanations have been put forth in the education and criminology literature for this disproportionate distribution and its consequences, including negative impacts on educational attainment⁶ and pushout into confinement pathways (e.g., incarceration, sex trafficking).⁷ More recently, the public health literature has begun exploring exposure to the legal system as a determinant of adverse health outcomes. To date, this literature has been largely focused at the interpersonal level (e.g., injury and death from law enforcement violence)⁸ and primarily assesses these associations within a single domain (e.g., jails or prisons)⁹ or in adulthood.¹⁰

To engage this conversation, we explore structural determinants of criminalization across domains of community, school, and home, specifically focusing on federal, state, and local policy decisions. We then briefly summarize the current literature on potential downstream health outcomes among young people. We conclude with recommendations for further study (see the box on page S44) and their implications for efforts to intervene at institutional levels.

BOX 1— Recommendations for Research on the Structural Determinants of Exposure to the Criminal Legal System in Young People’s Lives.

Recommendation	Rationale
Explore federal, state, and local policy as primary exposures	The current public health literature on criminal legal system exposure is primarily focused on its interpersonal manifestations (e.g., legal intervention injury), which can inadvertently narrow the scope for intervention to just those who operate at the interpersonal level (e.g., community policing). Thus, study of the institutional-level determinants of this exposure may inform preventive measures at institutional levels. Quasiexperimental/selection on unobservables designs may be useful methodological approaches for examining these exposures. For studies that do explore interpersonal manifestations of criminal legal system exposure, researchers should consider using the Introduction and Discussion sections to situate these analyses in federal, state, and local policy contexts.
Conduct intersectional analyses	Empirically, analyses that center multiple marginalizations may help to uncover important ways these associations may be uniquely affecting young people (e.g., whereas boys and Black children are the most likely targets of school discipline, an intersectional analysis suggests that Black girls are more likely than almost all boys, aside from Black boys and American Indian/Alaska Native boys, to experience school discipline. Furthermore, its consequences for Black girls may also differ7).
Account for multiple domains across which exposure is operating	Assessing exposure to the criminal legal system in a single domain may result in misclassification of young people’s total exposure and therefore bias estimates of the association between total criminal legal system exposure and health. In addition to addressing this issue, accounting for multiple domains may also facilitate inquiry on how exposures in an institutional setting can be synergistic with exposures in another setting and throughout the life course. We recommend incorporating a transdisciplinary literature (e.g., legal, education, and public health studies) to guide these analyses.
Document how this exposure operates in young people’s lives	Although all young people’s early life course experiences are marked by several critical and sensitive developmental periods, studies suggest that the extent to which their chronological age coincides with their biological (e.g., stress-induced premature aging) or social (e.g., “adultification”) age varies by race.11 To build on the previous recommendation of conducting intersectional analyses, research should endeavor to capture the unique ways racially marginalized young people differentially experience the criminal legal system with respect to dimensions of time. This may facilitate a better understanding of disproportionalities in its immediate and cumulative impacts on health outcomes.
Ground research using theory	Using theory to delineate underlying mechanisms, situate analyses, and interpret results is key to implementing these recommendations. We recommend theories such as critical race theory and ecosocial theory of disease distribution to guide research in this area. Given their (1) application across disciplines, (2) recognition of racism as central in the structuring of systems and health consequences, (3) interrogation of the intersections between race and other axes of marginalization, and (4) examination of the role that institutions and researchers play in shaping and understanding pathways to embodiment, they facilitate an understanding of the role of the criminal legal system in US society and the inequitable distribution of outcomes to which it has been linked.12,13

We frame our analysis using Ford and Airhihenbuwa’s adaption of critical race theory (CRT) for public health¹² and Krieger’s ecosocial theory of disease distribution.¹³ In its application to public health, CRT centers racism as a determinant of health inequity and challenges the field to adopt race consciousness: understanding the social constructedness of race, racism’s pervasiveness in society, and the complex ways racism operates institutionally to shape distributions of health.¹² Ecosocial theory further illuminates particular pathways to embodiment and their multilevel interplay, that is, how “the societal and ecological context” across levels (e.g., national, state, local) and domains (e.g., home, school, community) becomes biologically embedded.¹³ Both help us to (1) interrogate the intersectionality of racism and other axes of marginalization, (2) acknowledge the transgenerational latitude of these macrolevel exposures, and (3) hold accountable agents who are empowered by their social location to shape institutional operations and the production of scientific knowledge about health and health inequity.^12,13

CRIMINALIZATION AND CRIMINAL LEGAL SYSTEM

For this analytic essay, we employ the Robert Wood Johnson Foundation’s definition of the justice system as

the set of government agencies, policies, and practices responsible for prosecution and punishment, including law enforcement, courts and accompanying prosecution and defense lawyers, correctional facilities, and community reentry and post-release supervision.¹⁴

To this, we make 2 changes: (1) we elect to use the language of the criminal legal system in acknowledgment of its unjust application, and (2) we extend this definition beyond elements of the system that fall within traditional settings (e.g., courts responsible for prosecution, correctional facilities) to include its manifestations in spaces largely perceived as beyond its traditional purview (i.e., community, school, home). Unless we conceptualize this exposure across each of the domains in which it operates, we may underestimate its total effect. We also conceptualize this exposure with respect to time (e.g., life course, transgenerationally). Finally, we use the language of criminalization to refer to the social construction of criminal activity through the enactment of legislation that deems behaviors or identities illegal or that facilitates systems of legal surveillance.¹⁵

DETERMINANTS OF LEGAL SYSTEM EXPOSURE

We examined the structural forces, namely federal, state, and local policies, that may shape inequities in exposure to the legal system. Although this section is organized by domains of community, school, and home, it is critical to emphasize that just as young people’s lived experiences are not confined to any one of these domains, neither is the reach of the policies explored herein. Thus, whereas policy development and implementation may be guided by a particular federal department (e.g., Department of Education, Department of Justice), its implications may extend beyond these perceived silos. Furthermore, policies seemingly unrelated to the legal system, such as those governing the public safety net, may have implications for legal system exposure and should be explored in tandem (e.g., Johnson administration era War on Poverty policies, which scholars have argued laid the groundwork for the criminal legal system’s spillover into social service provisions).¹⁶

We begin this section against the backdrop of the War on Drugs for 4 reasons: (1) as an illustration of the legal system manifesting across domains of community, school, and home; (2) as a well-researched example of legislation that criminalized Black and Brown communities in its design and implementation; (3) as a precursor to similar legislation that mirrored its legal system-centered approach; and (4) as a system of oppression rooted in historical practices of using discriminatory policy (e.g., antiopium laws, anticocaine laws) to surveil and target immigrant and racially minoritized populations (e.g., Chinese immigrants, Black Southerners).¹⁷

First launched in 1968 by President Richard Nixon, the War on Drugs failed to achieve its stated goal of stemming illicit drug use and sales, instead leading to precipitous increases in incarceration, family separation, and community division.^18,19 President Ronald Reagan later recommitted to the War on Drugs by approving the 1986 Anti-Drug Abuse Act, creating mandatory minimum sentencing and codifying inequities in the prosecution of cocaine versus crack use.²⁰ As this era saw the rollout of this “tough on crime” legislation, it witnessed the rollback of social safety net provisions, as in the 1983 Social Security amendments and the Family Support Act of 1988.²¹ These actions served as a model for Clinton administration era divestment from public safety net spending and investment in the legal system (e.g., 1994 Violent Crime Control and Law Enforcement Act), with implications for legal system exposure among individuals and families.^21,22

At state and local levels, these federal policies were accompanied by the propagation of “three-strikes” laws, minimum occupancy laws, and stop-and-frisk policies, which essentially operationalized quotas for policing and incarceration.²³ Importantly, this complex web of federal, state, and local policies and their implications for young people cannot be understood without explicitly acknowledging the work of structural racism.¹² Communities of color have been disproportionately targeted in the design and application of this legislation,^13,24 resulting in accordingly patterned population distributions of legal system exposure and involvement.²⁵ Informed by this race consciousness, we now identify potential institutional-level determinants of the legal system’s presence in young people’s lives within and across these 3 domains.

The Legal System in Communities

Although “community” can be defined in a number of ways, we use it to understand how young people are engaged by the legal system in their neighborhoods. Several studies have examined this^26,27 and found a high prevalence of contact between law enforcement officers and young people, particularly in major US cities. For example, in 1 study, 23% of city-dwelling young people reported having personally been stopped by an officer and 75% reported having witnessed or been informed about the stop of someone they know, with first stops occurring as young as aged 8 years and most taking place “on the street.”²⁸ These studies note inequities in police contact by race and sex. For example, Black boys experience more frequent stops than do White boys (45% vs 26%, respectively) with similar patterns observed among Black and White girls (18% vs 8%, respectively).²⁸ They also find that as many as 94% of stops result in no charge.¹⁹

Exposure to the legal system in a community is often justified by invoking safety—a rationale that CRT might argue is predicated on the construction of Black and Brown children as dangerous.^12,25 Indeed, the prevalence of arrest among young people increased rapidly during the 1980s and 1990s in parallel with rhetoric that constructed them as threatening, with 1 estimate suggesting that from 1983 to 1992 White children experienced 110 more arrests per 100 000 compared with 470 more arrests per 100 000 among Black children over the same period.²⁹

Citing safety concerns has also been linked to federal spending on local police force expansion and training that not only has remained robust to reductions in support for the public safety net but has continued to increase since the Reagan administration.²² This spending has primarily been concentrated in communities of color, with 1 study finding that between 1980 and 2010, grants from the US Department of Justice’s Office of Community Oriented Policing Services predicted increases in local police spending and, after adjustment for crime and economic inequality, were disproportionately associated with spending in cities with larger populations of Black residents.²² In particular, this literature cites the Clinton administration era’s Violent Crime Control and Law Enforcement Act and federal grants from the Department of Homeland Security since its 2002 formation as precipitating this spending.²²

Scholars have argued that this allocation of resources has contributed to how communities are designed—both physically (e.g., locks barring entry to parks) and demographically (e.g., neighborhood segregation)—to facilitate ease of policing as opposed to the health and well-being of community residents. At the federal, state, and local levels, law enforcement agencies have championed design strategies such as Crime Prevention Through Environmental Design, which posits that the built environment can be designed to reduce crime through territorial reinforcement, access control, and surveillance.³⁰

These design approaches, however, have also been implicitly linked in the literature to the criminalization of young people of color. For example, under the Crime Prevention Through Environmental Design principle of “territorial reinforcement,”³⁰ signage such as “Neighborhood Watch” encourages residents to monitor their communities and report suspicious individuals or activities. Scholars have suggested that in predominantly White neighborhoods, where people of color are constructed as out of place, this can lead to experiences of law enforcement surveillance and violence.³¹ By contrast, in predominantly Black or Brown neighborhoods, people of color are exposed to law enforcement surveillance and violence as a result of being constructed as threatening.³¹ In all, this suggests that these approaches may serve to delineate “legitimate and illegitimate” users of space that explicitly and implicitly determine who belongs in a community, who does not belong, and who should be removed.^30,32

The Legal System in Schools

Motivated by empirically unsupported perceptions of growing violence among Black and Brown young people,¹ the prevalence of law enforcement officers assigned to US schools increased steadily through the 1990s, with at least 42% of schools deploying armed officers in 2016—the most recent year for which estimates are available.³³ This increase has been primarily concentrated in larger, city-based public high schools that serve communities of color.³⁴ The literature suggests that this and other manifestations of the legal system’s reach into school spaces have been shaped by the implementation of federal education policy and the accompanying disbursement of federal funds and state-level subsidies.³⁵ In a comprehensive review of these policies, Mallet notes several such examples, including the 1986 Drug Free Schools Act, which repackaged the War on Drugs’ punitive accountability measures for school-based implementation and the 1994 Gun-Free Schools Act, which required that states receiving federal funding for K–12 education expel students found on campus with a firearm and refer them to the legal system.^36,37 That same year, the Safe Schools Act funded the deployment of school-based law enforcement with the express objective of fortifying school to local law enforcement collaboration and improving school safety.³⁶ This decade also saw the promulgation of “zero tolerance” policies at state and local levels, extending federally mandated, punitive disciplinary action from possession of weapons or drugs to nonfederally mandated infractions such as disobedience and truancy.^36,37 This included state laws that permitted disciplining students for behaviors subjectively assessed as defiant or disruptive to school activities—laws that persist in at least 40 states.^7,38 Notably, the literature has not shown these punitive approaches to improve school safety.³⁷

It is well documented that structurally marginalized students have been inequitably targeted by these zero tolerance policies—not only being disciplined more often for subjective behaviors but experiencing harsher discipline.^37,39 In particular, this has been shown for Black and American Indian/Alaska Native boys, Black girls, and students with disabilities, with studies suggesting disabled Black or Brown students bear the greatest burden of inequitable targeting.^2,7,39,40 With upward of $350 million in Department of Justice funding to hire school-based law enforcement in 2000 and an increasing reliance on calling local law enforcement to school campuses for behaviors such as truancy and bullying, the responsibility of enforcing these changing regulations, a role historically performed by school teachers and administrators, has largely shifted to the purview of the legal system, fueling school to confinement pathways.^7,15,35,41

Understanding the role of policy in exposing Black and Brown young people in particular to the legal system in their schools necessitates research on policies that appear to be beyond its scope. For example, Bush’s 2001 reauthorization of the Elementary and Secondary Education Act (i.e., No Child Left Behind) was signed into law as a means of holding schools accountable for student achievement. Yet the punitive nature of No Child Left Behind’s accountability measures (i.e., “high stakes testing” environment) has since been linked to incentivizing the use of zero tolerance policies in an effort to push out students who performed poorly on standardized exams or were perceived as disruptive to class instruction.^7,36 As Mallett notes, while permitting the inequitable distribution of material resources across highly segregated schools to persist, No Child Left Behind earmarked funding for the prevention of drug abuse and violence on school property (i.e., Safe and Drug Free Schools and Communities Act) via state formula grants.³⁶ In keeping with the precedent set by previous legislation, expanding law enforcement in schools was among the activities authorized for use of these funds.³⁴

President Barack Obama’s 2015 Every Student Succeeds Act, which replaced No Child Left Behind, authorized the use of federal funds for alternatives to punitive disciplinary action (e.g., restorative justice, positive behavioral interventions and supports) but left decisions to target funding for these alternatives to state- and local-level decision-makers.⁴² Moreover, it left in place incentives for school-based policing.³⁴ Since then, legislation such as the Trump administration’s 2018 Student, Teachers, and Officers Preventing School Violence Act has continued to authorize federal funding through the Department of Justice to further bolster school–local law enforcement coordination in the name of school safety.⁴³

The Legal System at Home

Finally, the legal system is present in the homes of young people through the incarceration of a household member, systems of legal surveillance, or the criminalization of seeking public safety net services and houselessness. Thus, we use the language of “home” both to imply a physical house and to describe the intimate familial spaces and relational networks to which young people belong.

Estimates suggest that 1 in every 28 children currently has an incarcerated parent⁴⁴ and 1 in every 14 ever has.⁴⁵ Parental incarceration disproportionately affects Black and Brown children, with Black children having 7.5 times the risk and Latinx children having 2.5 times the risk of parental incarceration than do White children.⁴⁶ With parents serving an average 6.5 years in state prisons and 8.5 years in federal prisons⁴⁷ built in largely inaccessible rural locations,⁴⁸ this can lead to extended periods of family separation. As a result, children often either reside with a relative, enter the foster system,⁴⁶ or become houseless.⁴⁹ For those experiencing houselessness, interactions with law enforcement are commonplace, particularly for Black and Brown young people.⁵ When a household member is detained at home, as is the case for individuals facing immigration-related court cases and formerly incarcerated people returning to their communities, the legal system is often physically present in their homes via systems of surveillance (e.g., electronic monitoring, parole).

The design and implementation of policy has facilitated the legal system’s reach into home spaces. For example, the 1997 Adoption and Safe Families Act requires that states begin the process of terminating parental rights if a child has been in foster care for 15 of 22 consecutive months, a time frame that is shorter than most prison sentences served by incarcerated parents.⁴⁸ Once caregivers have a felony record, they no longer qualify for federal public housing assistance because of restrictions imposed by legislation such as the 1996 Housing Opportunity Program Extension Act.²³ In some cases, they also face challenges accessing employment because of federal- and state-mandated ineligibility for vocational licenses.^23,50 Still other legislation criminalizes seeking public safety net provisions. For example, the 1996 passage of the Personal Responsibility and Work Opportunity Reconciliation Act and the Illegal Immigration Reform and Immigration Responsibility Act has been linked to reductions in access to public benefits, such as health care, among immigrant and noncitizen families over concerns of risking deportation.⁵¹ Finally, the criminalization of houselessness manifests through state and local laws prohibiting behaviors such as sitting on public sidewalks and sleeping in public spaces.⁵² Each of these policy decisions may shape young people’s exposure to the legal system and contribute to precarity in their home environments.

In sum, these examples suggest that policy decisions may facilitate the inequitable targeting of structurally marginalized young people across domains of community, school, and home. Moreover, a single young person may have multiple points of legal system contact when they wake in the morning, move through their neighborhoods, attend their schools, and return home in evening.

MECHANISMS FOR THE EMBODIMENT OF ILL HEALTH

Having presented policy decisions that may shape the criminalization of young people across domains, we now examine the extent to which their associations with health have been assessed. Whereas an extensive literature documents links between exposure to the legal system within more traditional settings (e.g., current incarceration and health), we focus on domains perceived as outside its traditional purview (i.e., community, school, home). In accordance with ecosocial theory, we then present possible pathways to embodiment—how the material and social environment becomes biologically embedded producing observed distributions of health outcomes¹³—as proposed by this literature, and we discuss their life course implications.

A brief review of the literature demonstrates that public health researchers have begun examining associations between the legal system and health, with fewer studies focusing on young people specifically. To date, although this literature appears to primarily operationalize exposure to the legal system at the interpersonal level, some studies do explore institutional-level predictors. For example, an analysis of state-level E-Verify mandates (i.e., programs for verifying work eligibility piloted under the Illegal Immigration Reform and Immigration Responsibility Act) found that they were associated with a 20% increase in the odds of preterm delivery among infants born to immigrant mothers and a 15% increase among infants of US-born White mothers.⁵³ Notably, E-Verify mandates were enacted in omnibus bills that included legislation permitting law enforcement to obtain immigration status during police stops.⁵³ Most studies, however, look at direct police contact (e.g., legal intervention),²⁸ anticipatory contact (e.g., neighborhood-level surveillance),²⁴ and vicarious contact (e.g., witnessing police stops).²⁸

Health outcomes that have been studied among young people span indicators of physical and mental health, including birth outcomes,⁵⁴ nonfatal injury,⁵⁵ symptoms of anxiety and posttraumatic stress disorder,²⁸ and death.⁸ They generally find adverse and inequitably distributed impacts on health. For example, an estimated 57 375 years of life were lost because of police violence in 2015, followed by 54 754 years of life lost the following year.⁸ Although people of color comprised 38.5% of the population between 2015 and 2016, they accounted for 51.5% of all years of life lost, with the greatest burden borne by young people of color.⁸

Material, psychosocial, and behavioral pathways have been posited to explain how these exposures become embodied as ill health. First, material pathways to embodiment include the loss of economic and other material resources. For example, young people with an incarcerated parent are at a greater risk of household income loss and housing instability,⁴⁹ both of which have been linked to adverse health outcomes. Second, psychosocial pathways are defined by a physiological stress response to an external stressor. For example, grieving the loss of an incarcerated caregiver (vicarious contact) and experiencing surveillance (anticipatory contact) have been linked to adverse mental health outcomes.^28,56 Third, behavioral pathways occur when young people are pushed into or inadvertently adopt health-harming behaviors in an effort to adapt to and survive exposure to the legal system. This may include externalizing behaviors⁵⁷ that place them at increased risk of law enforcement officer contact^58,59 and pushout of school spaces into sex trafficking.⁷ Lastly, these material, psychosocial, and behavioral pathways may operate at different points in time: in young people’s immediate experiences, accumulating throughout their life course, and across generations.

A recent publication by Gee et al.¹¹ helps us frame time as a life course determinant of health among young people that is patterned by exposure to the legal system. The authors conceptualize time as the biological aging of young people of color and associated morbidity and mortality during the life course that result from experiences of racism as acute and chronic stressors. They provide evidence of how these experiences may be exacerbated by the social aging of young people of color, whereby perceptions of their being older than their chronological age are used as justification for harsher and more frequent contact by the legal system.¹¹

In conceptualizing time as privilege, the authors also discuss how time scarcity is inequitably distributed so that structurally marginalized populations are systematically denied time to pursue healthful lives.¹¹ Geller et al. provide evidence of this in their findings that Black young people are significantly more likely than are their White peers to report stops by police, and these stops are significantly more likely to be intrusive (i.e., involving searches, officer’s use of harsh language and racial slurs, and threat and use of physical force).²⁸

Lastly, Gee et al. suggest that because these exposures occur at sensitive and critical developmental periods in early life, this may result in persistent health inequities throughout the life course.¹¹ Transgenerational dimensions of time, whereby young people’s lifetime health experiences are affected by previous familial and community exposure to the legal system, are also salient. For example, a federal immigration raid in Postville, Iowa was shown to be associated with a 24% increased risk of low birth weight infants born to US- and foreign-born Latina mothers throughout the state,⁵⁴ indicating both biological and social (e.g., disrupting community processes via incarceration and family separation) transmissions of exposure.

FUTURE DIRECTIONS

Taken together, this literature suggests there may be multiple plausible pathways by which exposure to the legal system becomes embodied as ill health throughout the life course and across generations. It also helps us to frame recommendations for future inquiry (see the box on page S44). Using ecosocial theory’s guidance on the cumulative interplay among these pathways and their manifestation across levels (e.g., federal, state, local), domains (e.g., community, school, home), and time (e.g., life course, transgenerationally),¹³ we encourage future research to assess multidomain exposure to the legal system over time. Additionally, we recommend that future work incorporate CRT as a transdisciplinary theory to frame an understanding of (1) the role of the legal system in US society, (2) the centrality of race and its intersections with other axes of marginalization in structuring this system, and (3) the inequitable distribution of outcomes to which this system has been linked.

Lastly, ecosocial theory’s tenet on accountability and agency helps us interrogate both the role that institutions play in shaping pathways to embodiment and researchers’ own contributions to the production of knowledge around these pathways.¹³ Given that the current public health literature on legal system exposure is primarily focused on its interpersonal manifestations (e.g., legal intervention injury), research is needed to explicitly assess how policies shaping inequitable exposure to the legal system may affect health outcomes among young people. In addition to enhancing existing knowledge of these pathways to embodiment, this may serve to inform preventive measures at institutional levels that seek to disentangle carceral structures from the communities, schools, and homes that young people navigate daily.

CONCLUSIONS

Criminal legal system policies at the federal, state, and local levels continue to extend beyond their traditional domains into community, school, and home. Thus, young people’s social, economic, educational, and political mobility may be rooted in a policy context that increasingly disrupts their lives, social networks, and health. By examining macrolevel predictors of inequitable exposure to the legal system, we seek to encourage research aimed at understanding how they may be associated with health among young people. In so doing, we will be better positioned to devise appropriately targeted institutional-level interventions to reduce exposure, particularly among structurally marginalized young people, to its adverse health effects.