CASE STUDIES | Criminalizing Kids II
Misdemeanor Mistakes and Felony Forgetfulness
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.
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.
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.
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.
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.”
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).
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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
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.”
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.”
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.
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
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.
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.