Different but equal? Exploring potential catalysts of disparity in remand decision-making in the youth court
| Author | Yannick van den Brink |
| Date | 01 June 2022 |
| Published date | 01 June 2022 |
| DOI | 10.1177/09646639211033709 |
| Subject Matter | Articles |
Different but equal?
Exploring potential
catalysts of disparity in
remand decision-making in
the youth court
Yannick van den Brink
Faculty of Law, Vrije Universiteit Amsterdam,
The Netherlands
Abstract
The disproportionate use of remand detention (i.e. pre-trial detention) for vulnerable
and marginalized youth is an issue of concern globally and demographic disparities in
youth remand decision outcomes have been found in many jurisdictions, including
England and the Netherlands. This article aims to explore and identify potential catalysts
of disparity in the collective process of remand decision-making in youth courts.
Drawing from Ulmer’s‘inhabited institutions’perspective, and the related ‘court com-
munity model’and ‘focal concerns model’, and empirical findings from research in
Dutch and English youth remand cour ts, this article suggests that several distinctive
mechanisms and features of the youth remand decision-making process might function
as catalysts of disparity. The findings indicate that the focus on ‘risk’and ‘welfare needs’,
the distinctive context defined by time constraints, limited information, shortages of
readily available services, interdependency and interdisciplinary, and high stakes, com-
bined with the profoundly human nature of courtroom workgroup decision-making,
make the remand decision-making process in youth courts particularly prone to produ-
cing unwarranted disparities. Ultimately, informed by the theoretical perspectives and
empirical findings, the article provides insights into how and why disparities might
occur in youth remand decisions and offers suggestions for policy, practice and future
research.
Corresponding author:
Yannickvan den Brink, Faculty of Law, Vrije Universiteit Amsterdam, De Boelelaan 1105, 1081 HV Amsterdam,
The Netherlands.
Email: y.n.vanden.brink@vu.nl
Article
Social & Legal Studies
2022, Vol. 31(3) 477–500
© The Author(s) 2021
Article reuse guidelines:
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DOI: 10.1177/09646639211033709
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Keywords
Disproportionality, disparities, remand, pre-trial detention, youth court, youth justice
Introduction
The vast overrepresentation of youth from ethnic minorities, youth with disabilities and
youth from low socioeconomic backgrounds in prisons and detention centres is a reality
in many youth justice systems worldwide (Nowak, 2019). Research indicates that this
overrepresentation can be partially due to differential offending rates and selective or dis-
criminatory law enforcement practices (cf. Robles-Ramamurthy and Watson, 2019), but
can also be fuelled by disparities in court decision-making. Indeed, demographic dispar-
ities in remand and sentencing decisions are widely researched and well-documented in
many jurisdictions (Bishop, 2005; DeLone and DeLone, 2017; Maroun, 2019; McGrath,
2016; Rodriguez, 2010; Van den Brink et al., 2017; Youth Justice Board, 2021). Yet, as
Lynch (2019) points out, the question of whether disparities in criminal justice decision-
making exist has been studied and answered many times, but the questions about their
sources and how they are produced or sustained have received remarkably less attention
in empirical court research. In this regard, Ulmer (2019: 483) calls for more methodo-
logical diversity, as he signals that ‘theory and methods in the study of courts and senten-
cing are out of balance: theories emphasize interpretation, culture, and processes, while
empirical inquiries focus largely on statistical studies of aggregates and outcomes’.
Overall, there is a need for theoretically informed, qualitative empirical research which
unravels court decision-making as a ‘collective process’(Ulmer, 2019; Van der
Woude, 2016) and furthers our understanding of how disparities in decision outcomes
are produced (Lynch, 2019), also in the specific context of youth justice.
Building further on previous work (Van den Brink, 2018a, 2019, 2021a; Van den
Brink et al., 2017), this article focuses on remand decision-making in youth courts.
The disproportionate use of remand detention (i.e. pre-trial detention) for vulnerable
and marginalized youth is considered to be an issue of concern globally (Nowak,
2019) and evidence of demographic disparities in remand decision outcomes for youth
has been found in many jurisdictions (see Van den Brink, 2019), including England
(Youth Justice Board, 2021) and the Netherlands (Van den Brink et al., 2017). Such dis-
parities are seemingly at odds with the principle of equality and non-discrimination under
international children’s rights law (Article 2 United Nations Convention on the Rights of
the Child) and have profound and long-lasting consequences for the affected youth and
society (Van den Brink, 2021b). Disparities in the use of remand disproportionately
impact the well-being and future life chances of socially disadvantaged youth
(Freeman, 2008; Freeman and Seymour, 2010; Goldson, 2009; Goldson and Kilkelly,
2013; Liefaard et al., 2014; Van den Brink and Lubow, 2019), thereby reinforcing and
deepening social inequality (cf. Laub, 2018; Webster, 2018).
This article aims to further our understanding of the collective process of remand
decision-making in youth courts and seeks to explore and identify potential catalysts
of demographic disparities that lie within this process. Using the ‘courts as inhabited
institutions’perspective (Ulmer, 2019) as a theoretical framework, this article does not
478 Social & Legal Studies 31(3)
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