A bit of food for thought.

Criminalizing Kids II

Misdemeanor Mistakes and Felony Forgetfulness

 

It was a cool, clear October day in Washington, D.C., when the closing bell rang and twelve-year-old Ansche Hedgepeth ran out the door of Alice Deal Junior High School. She stopped at a fast-food restaurant for an order of hot French fries and then headed for home. Ansche took the escalator down into the Tenleytown/American University Metrorail station to catch her train. In the station, she ate a single French fry. Moments later, the junior high student was in handcuffs and headed for jail.

 

Ansche had no idea that the Washington Metropolitan Area Transit Authority (WMATA) had picked that Monday to kick-off a week of “zero tolerance” enforcement of “quality of life offenses.” They had ordered undercover officers to automatically punish even minor infractions.

 

D.C. Code § 35-251(B) makes it a violation to “consume food or drink” in a Metrorail facility. For a first offense, adults could be fined from $10 to $50. Only for a second offense can an adult be arrested. Minors, however, cannot be fined. Officers can either warn them, or arrest them, but the zero tolerance policy made arrest the only option.

 

An undercover officer saw Ansche eat the one fry and quickly placed her under arrest. The twelve-year-old girl was searched and her jacket, backpack, and shoelaces were confiscated. Her hands were cuffed behind her back and she was put into a paddy wagon and driven to the Juvenile Processing Center. Three hours after the arrest, Ansche was finally released into the custody of her mother.

 

In a decision reluctantly upholding Ansche’s arrest, the judge noted that she was totally compliant, never resisting, only crying throughout the process. She had never eaten in a Metrorail station before, nor had she ever been warned not to eat there. The judge mocked the harsh, zero tolerance enforcement of the “serious offense of eating a French fry on a subway platform.”

 

The district judge lamented the “humiliating and demeaning impact of the arrest” and suggested that the WMATA “re-think any other ‘foolish’ operating procedures before subjecting – or continuing to subject – unwary users of mass transportation to the indignity and horror suffered by [Ansche].” The Supreme Court, in a decision finding no constitutional problem with a similar incident, cited news reports of Ansche’s treatment as an example of a “comparably foolish, warrantless misdemeanor arrest” (Atwater v. City of Lago Vista).

 

In the face of public criticism, the WMATA rescinded their “zero tolerance” policy that required arresting minor children for minor infractions. Many overzealous zero tolerance policies remain, however, and most continue to target children. An American Bar Association (ABA) report cited some horrific examples:

 

* A 12-year-old with hyperactivity disorder told students ahead of him in the lunch line to leave some potatoes, or “I’m going to get you.” The principal called the police and the Louisiana boy was arrested for making a terrorist threat. He spent two weeks in jail awaiting a hearing.

* In Arlington, Virginia, two 10-year-old boys put soapy water in their teacher’s drink. The teacher insisted that the young boys be charged with felonies, although their case was later dismissed.

* An 11-year-old girl was arrested after asking her teacher for permission to use a smooth-edged steak knife that she had brought from home to cut a piece of chicken that she was eating for lunch.

* A disabled 14-year-old was charged as an adult with strong-armed robbery and jailed for six weeks. The boy, who had no criminal record, was accused of taking $2 from a classmate. After 60 Minutes II showed an interest in the case, all charges were dropped.

 

Where did this rush to lock up kids come from? The ABA traced the origin of the modern “zero tolerance” for children movement to the fear of school shootings that developed during the 1990s. The Clinton Administration trumpeted legislation that required “‘zero tolerance’ for guns in schools,” but even this well-intentioned move has become a symbol of overcriminalizing kids.

 

Eight-year-old Hamadi Alston found an L-shaped piece of paper in a school book. While playing “cops and robbers” with his friends during recess, Hamadi used the paper as a pretend gun, exclaiming “Pow, pow!” At the conclusion of recess, Hamadi was taken to the school office and interrogated to tears. Hamadi was arrested by the Irvington, New Jersey, Police Department for “threatening to kill other students” with his paper pistol. He spent almost five hours in police custody and was required to make two court appearances before charges were finally dropped.

 

Numerous students have been punished, some suspended or even expelled, for bringing toy guns (plastic, rather than paper) to school. Nine-year-old Austin Crittenden was suspended for “possession of a weapon – firearm replica,” when he brought a tiny plastic G.I. Joe handgun to his elementary school. The third grader’s principal “had to tape the gun to a piece of paper to keep from losing it,” Austin’s grandmother reported.

 

In Georgia, a five-year-old kindergarten student was suspended on the second day of school for violating White Bluff Elementary’s zero tolerance policy on “violent toys.” Principal Jane Ford-Brocato claimed that the kindergartener’s quarter-sized plastic gun would have “a negative impact” that justified zero tolerance. Defending the suspension, she said “we need to apply consequences as appropriate, with the understanding we want to guide the children into making good choices.” After a local television station called the school, however, the youngster’s suspension was immediately lifted.

 

Similar cases have sparked debate over zero tolerance policies across the country. In Spokane, Washington, an eight-year-old was suspended for having two tiny plastic G.I. Joe guns at school. At Oak Mountain Middle School in Alabama, two boys were suspended for playing with toy guns that one had brought in for a school-sanctioned project.

 

Much worse than suspensions or expulsions, some students have faced criminal charges for toy guns. One nine-year-old student was arrested for aggravated assault and disrupting a school function for playing with his toy gun as he left school at the end of the day. A ten-year-old student in Alabaster, Alabama, was likewise arrested for supposedly threatening behavior with a toy gun. Reasonable people might disagree about whether a student should be suspended for possessing a squirt gun on school property. But when students are arrested for such alleged crimes, the expansion of the boundaries of criminal law undermines the very concept of justice.

 

In January, Adam Liston made a mistake. The 18-year-old Davis High School senior dropped off a few friends at school on his way to the gun range with a new shotgun in his gun rack. Apparently someone reported seeing the gun, and the next day at school the vice principal asked to search Adam’s Ford F-250 truck. Adam readily agreed.

 

Six police cars arrived and officers swarmed Adam’s truck. As they searched, he realized he had made a major error. He forgot to take the shotgun, unloaded and still in its original box, out of his truck after target shooting the day before. Adam broke down in tears as officers pulled the gun from his truck and placed him under arrest. He was handcuffed and taken to the Yolo County Jail.

 

Adam was charged with two felony violations of California Penal Code § 626.9, possessing a firearm within 1,000 feet of a school. He was released on $25,000 bail, and on February 19, the school board voted 3-1 to expel Adam from Davis High.

 

The Sacramento Bee pointed out that Adam “had been a model citizen since the first grade.” He “had never been a discipline problem in school and … never had a run-in with the law.” Adam maintained good grades and already had college plans. His mother was president of the PTA.

 

One of Adam’s former teachers called him a “very thoughtful, very respectful, very charming and fine young man.” When his mother resigned her PTA position in response to her son’s “banishment,” several other parents resigned with her to protest Adam’s treatment. The Davis High School Student Council delivered a letter from Davis students to the Davis superintendent, stating the obvious: “Adam Liston is not a threat to this school district.”

 

A collection of letters to the editor of the Sacramento newspaper expressed the community’s outrage. The authorities acted without “common sense,” several writers opined. Adam’s act was “unintentional” and “an honest mistake.” This kind of zero tolerance enforcement perpetuates a “paranoid atmosphere” and is “morally bankrupt” and “a real travesty of justice.”

 

Another letter writer rhetorically asks, “Where is the criminal intent in this case?” Apparently, most Americans inherently understand the foundational concept of criminal law: a wrongful act (actus reus) is a crime only if done with wrongful intent (mens rea). Causing a traffic accident is entirely different from intentionally ramming someone with your car. Forgetting to remove an unloaded shotgun from your truck before driving to school is not the same as carrying a concealed loaded pistol to class.

 

Somehow, a number of school administrators, police, prosecutors, and lawmakers have cast aside this critical distinction in favor of mechanistic “zero tolerance.” While relieving decision makers from the burden of making decisions, zero tolerance undermines the very notion of justice, particularly when aimed at youth. School kids “care most about fairness,” said one attorney quoted in the ABA report. “When they see two students whose ‘offenses’ are vastly different being treated exactly the same, that sense of fairness is obliterated and replaced with fear and alienation.”

 

Civil society flourishes where people can rely on law to approximate justice as best it can. Law, at its best, provides protection and predictability, essential qualities for progress and ordered liberty. When the objective of law strays from justice, both concepts are tarnished. Law, no longer the protector, becomes the oppressor. Justice is twisted into a rationalization or dismissed as a phantasm.

 

The recent expansion of criminal law, manifest in part by zero tolerance policies, mocks the legacy of Anglo-American jurisprudence. As Roscoe Pound, a preeminent legal scholar of the early 20th Century, explained, “criminal law is based upon a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.” When we punish innocents for their mistakes, we turn lady justice into a child swinging for a piñata, blindly waiving her razor-sharp sword amongst the crowd.