Twelve-year-old Ansche Hedgepeth grabbed an order of French fries after school on her way to the Tenleytown/American University Metrorail station in Washington, D.C. The Washington Metropolitan Area Transit Authority had decided to kick off a week of “zero tolerance” enforcement of “quality of life offenses.” When a police officer noticed Ansche, unaware of the no-eating rule on the metro, consuming her first French fry, she was immediately searched; her jacket, backpack, and shoelaces were confiscated; and she was handcuffed and taken to the Juvenile Processing Center in a paddy wagon. Ordinarily an adult is fined on a first offense and arrested on a second. A minor can be warned but not fined, and the zero-tolerance policy removed the officer’s ability to warn Ansche, leaving arrest as their only other option.
When Ansche was brought to court, then-Judge John Roberts of the U.S. Court of Appeals for the D.C. Circuit (now Chief Justice of the U.S. Supreme Court) mocked the harsh, zero-tolerance enforcement of the “serious offense of eating a French fry on a subway platform” and lamented the “humiliating and demeaning impact of the arrest.” The goal of zero-tolerance policies is to eliminate undesirable conduct by imposing automatic punishment for rule-breaking behavior. But when this policy is applied to children and students, what starts out as a well-intentioned effort to mold and shape good behavior often turns into an abuse of the criminal law. Ansche’s story could be read as a stand-alone case with a positive ending that did not include jail time or other penalties, but it is hardly an isolated incident. This case study and other accounts of over criminalizing kids can be found at Overcriminalized.com.
This policy of enforcing zero-tolerance for children has been magnified in part by the fear of school shootings that developed in the 1990s. In the post-Columbine shooting era, it was reasonable that school safety became of even greater concern to parents, educators, and lawmakers. Schools now take extra steps to identify troubled youth and discourage behavior that brings violence of any kind into the academic sphere.
These prudent safety measures, however, have become a hazard to unsuspecting children who like to play “guns,” “cops and robbers,” or make the mistake of saying something that seems threatening. Countless students across the country are being suspended or expelled or are even facing criminal charges for a wide array of non-violent behavior in the school setting. Examples include:
- A five-year-old Georgia kindergartener who had a plastic gun in class that was the size of a quarter;
- An eight-year-old from Spokane, Washington, who had two tiny plastic G.I. Joe guns at school; and
- Hamadi Alston who found an L-shaped piece of paper in a school book which he then used as a pretend gun during a recess game of “cops and robbers” shouting “Pow! Pow!”
The first two students were suspended. The third, eight-year-old Hamadi, was arrested and required to appear in court twice before charges were dropped.
Most reasonable Americans understand child’s play and criminal acts are different, but schools across the country fail to show such understanding and are inconsistent from student to student when punishments are administered. Justice is not being done in the application of criminal law and punishment to such cases.
Criminal punishment is inappropriate because there is no criminal intent on the part of these students. In many of these cases, the children are not even aware that they are making a mistake. They are not aware of the historical events that cause adult concerns and do not understand the growing concern over fake firearms in school settings for any reason whether educational, recreational, or otherwise. And when some students are suspended or expelled while others are arrested for similar acts, there is a lack of fairness and thus justice. It is merely gross over-reaction on the part of supposedly sensible adult authorities.
Further, our treatment of children is part and parcel of how society has been changing. Throughout America, criminal laws that fail to require criminal intent are being enacted, and zero-tolerance policies (with real jail time at the end) have been enacted and applied to adults. You can read about this in our new book, One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors and Activist Judges Threaten your Liberty.
Our laws must provide protection and predictability in order to ensure progress, ordered liberty, and a flourishing civil society. The objectives of zero-tolerance policies in law enforcement directed at children and students—whether they are on public transportation, in the classroom, or on the playground—do not serve to promote justice. Rather, these zero-tolerance policies change the law from being the protector to the oppressor and teach children to mistrust the law.
Finally, when the criminal law and its enforcers are quick to turn children into criminal defendants, can any adult trust that the benign intentions of his actions are sufficient to protect him from criminal punishment and that his liberty is secure?
Stephen Laudone is an intern in the Center for Legal and Judicial Studies at The Heritage Foundation. For more information on interning at Heritage, please visit: http://www.heritage.org/about/departments/ylp.cfm