Due Process: Racial Justice Amicus and Appellate Strategies

Challenges to Trying Youth in Adult Court

Disparate Impact and Historical Racism Arguments

While there is no right to remain in juvenile court, any related procedures must comport with the requirements of Due Process under the Fourteenth Amendment.  Evidence of bias and discrimination on the basis of race can bolster the argument that the procedures for trying a young person in adult court violates the right to Due Process. 


Our brief argued that the Court should require a robust and individualized amenability to treatment analysis when considering a transfer to adult court, given the grave consequences of prosecution in the adult system, which disproportionately impact youth of color, particularly Black boys.

Black youth are disproportionately bound over (waived to adult court), which exacerbates racial disparities in the justice system. Our brief argued that widespread harm to Black and Brown youth violates Due Process and the court’s commitment to eliminating racial discrimination.

Black youth are more likely to be subject to traffics stops, and when stopped, more likely to be searched and prosecuted for motor vehicle-involved charges. Our brief argued that as a result, mandatory waiver to adult court for youth charged with vehicle-related offenses deprives youth of due process in part because it disproportionately results in criminal prosecution of Black youth.

Historical Racism Arguments

Racism in the system, from slavery to Black Codes to the superpredator era, may violate Due Process. The U.S. Supreme Court touched on these connections in Timbs v. Indiana, noting that the Fourteenth Amendment itself is rooted in explicit recognition of the need to protect individuals from coerced labor, and in particular from the harms of Black Codes used to “subjugate newly freed slaves and maintain the prewar racial hierarchy.” 139 S. Ct. 682, 688 (2019). 


Our brief argued that the state’s transfer laws were driven by racist, discredited academic theories about “superpredators,” causing widespread harm on Black and Brown children and violating Due Process and the United States and Ohio Supreme Courts’ commitments to eliminating racial discrimination.

Adultification Bias Arguments

Research shows that compared to white children, Black youth, in particular, are likely to be perceived as older, less innocent, and more culpable. This “adultification” of Black youth contributes to harsher consequences in the criminal system. Confronting this bias can help in anchoring the importance of individualized determinations and fair court processes. 


We argued that the over-representation of Black youth in the adult criminal justice system calls for heightened attention to transfer procedures, and that the over-representation is caused, in part, by the “adultification” of Black youth.

Failing to provide robust constitutional protections in transfer proceedings results in racially disproportionate transfer. Our brief argued that the insertion of adultification bias in the probable cause hearing results in an overrepresentation of Black youth bound over to adult court in violation of due process.

Procedural Due Process

Disparate Impact Arguments

The right to procedural due process requires heightened protections when there is a heightened risk of erroneous deprivation of the relevant interest. When evidence shows that Black and  Brown youth are at greater risk of being deprived of their liberty, advocates can argue that their cases warrant heightened process.


Our brief argued that procedural Due Process under Mathews v. Eldridge requires heightened process for Black youth because they are at greater risk of erroneous deprivation of liberty and that this analysis supported the holding that a mandatory bindover (waiver to adult court) statute was unconstitutional.