Missing Children Discrimination

Abstract

The problem of missing children in America—many of whom are victims of crime—has haunted society for decades. In response, a range of laws and policies have emerged, culminating in the nationwide adoption of the AMBER Alert system in the early 2000s. While often hailed as a success, this Article reveals a sad truth: Not all children benefit equally from AMBER. In particular, missing Black children are systematically underserved by the system, which ultimately contributes to the disproportionate impact of the missing children crisis on Black communities. While this issue received limited scholarly attention, states have recently started recognizing it. In January 2024, California offered the most comprehensive attempt to date by introducing a new alert system for “missing Black youth” (named “Ebony Law”). Since then, other states—including Alabama, Illinois, Massachusetts, and Pennsylvania—have begun discussing similar systems. This Article interrogates the crisis of missing Black children through the lens of race-conscious legislation like Ebony Law, situating these efforts within broader constitutional conversations on race-conscious remedies in criminal law.

This Article recognizes the importance of race-based legislation in addressing the disproportionate number of missing Black children in America. Additionally, this legislation holds expressive value by acknowledging past discrimination and the systemic failures in the treatment of Black children and their families. However, such legislation faces constitutional challenges under current equal protection doctrine, probably more so today after Students for Fair Admissions, Inc. v. Harvard. This Article tackles this tension. First, it offers changes to the current AMBER legislation by adopting three simple measures: a holistic—as opposed to cumulative—approach to initiating factors, a reconceptualization of child risk, and a shift in law enforcement burdens in decisions to initiate an alert. These proposed amendments can begin addressing some of the problems with current AMBER laws. Second, it calls for resisting the urge to address this issue by relying solely on a new colorblind legislation. Instead, the Article investigates whether Ebony-like provisions, if understood as race-conscious legislation in criminal law, can potentially withstand strict constitutional scrutiny as narrowly tailored interventions to address a compelling state interest.

This Article thus offers a new venue through which to assess the limits of the Supreme Court’s equal protection jurisprudence to challenge entrenched racial disparities and affect social change. It demonstrates that the continuous adherence to narratives of colorblindness might stand in the way of advancing meaningful mobilization and deeper recognition of the history and politics of racial inequality in the United States.

ISSN

0043-650x

Keywords

Race and the Law, Constitutional Law, Victims of Crime, Criminal Law, Equal Protection, Children and the Law

Disciplines

Constitutional Law | Criminal Law | Juvenile Law | Law | Law and Race

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