Criminalizing Kids
True Tales of Zero Tolerance Overcriminalization
(December 2003 Case Study)
Lindsay Brown had good reason to be excited. She was just weeks from her graduation from Estero High School. The honor student and National Merit Scholar had an academic scholarship to Florida Gulf Coast University and had spent the weekend moving into her own apartment. Everything seemed perfect until Monday afternoon when a security officer asked Lindsay to accompany him to the school parking lot.
The officer pointed out a kitchen knife lying on the floor of Lindsay's car. She was surprised to see the knife and realize that it must have fallen out of one of her moving boxes. For unknowingly having the kitchen knife in her car, Lindsay was arrested, handcuffed, and hauled off to the Lee County jail. She was suspended from school and banned from graduation events.
Lindsay's story reveals one of the most devastating effects of overcriminalization: the movement toward "zero-tolerance" policies aimed at school children. Estero Principal Fred Bode declared that the school's zero-tolerance policy justified the excessive punishment of Lindsay. Sheriff Lt. Bill Byrus ironically claimed, "this young lady made a bad choice." In fact, she made no choice at all.
Lindsay was charged with felony weapons possession. After nine-hours in jail – with real criminals – Lindsay's parents bailed her out. A week later, common sense finally interceded when State Attorney Joe D'Alessandro dropped the charge. He pointed out that the law required proof beyond a reasonable doubt that Lindsay knew the knife was in the car.
This element of criminal intent that saved Lindsay from a possible five-year prison sentence has deep roots in common law jurisprudence. Criminal law, after all, is about punishing those who deserve it. To be culpable for a bad act (actus reus) a person must also have criminal intent or a "bad mind" (mens rea).
Until recently, criminal law has been used only to punish culpable individuals for criminal acts. The civil justice system exists so that private parties can seek compensation or dispute resolution separate from the heavy hand of the criminal courts. Redress for harm caused by negligence or accidents, even for serious injuries or loss of life, has normally been limited to the civil courts.
The Supreme Court, in the 1952 case Morissette v. United States, chastised a trial court for instructing a jury to disregard the defendant's intent in a criminal case. An otherwise upstanding man had collected $84 worth of rusty scrap metal that turned out to belong to the federal government. Joe Morissette never thought that he was violating the law and had done nothing to conceal his actions. He readily acknowledged collecting the scrap when questioned by investigators. He had no wrongful intent, but based on the trial judge's instructions he was convicted of stealing government property. The Supreme Court threw out the conviction, noting that the only proper action against the defendant would be for damages in civil court.
As Justice Robert Jackson wrote for the Court: "The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil."
Zero tolerance policies ignore the distinction between wrongful intent and innocent intent, instead focusing mechanistically on the act alone. Supporters of zero tolerance claim that it serves the interests of efficiency or that it prevents biased enforcement, but to innocent kids struck by the sword of supposed justice it is only arbitrary and unjust.
Last year at a Florida middle school, a sixth grader armed with a calculator was arrested for felony weapons possession. Cortez Curtis's mother had bought the inexpensive calculator out of pity for a roadside-stand salesman. The novelty item was not just for math, but included a variety of foldout tools. The evening before her son's arrest, she lent it to him for his homework. The next day, Cortez brought the calculator to school. He accidentally dropped it while working on his math, and a little pocketknife blade rotated partly out.
One of the Cortez's classmates told the teacher, who could not initially even find the two-inch blade in the calculator. The teacher told school administrators, who had Cortez arrested and booked into to juvenile detention.
If school officials wanted to punish Cortez for inadvertently bringing his calculator-knife to class, they had ample school-based remedies. Instead, the well-meaning 13-year-old was arrested as a felon for an unintentional, if careless, act that threatened no one. Anglo-American legal history teaches that Cortez's actions are not the equivalent of a student who brings a switchblade to school and pulls it out to threaten another student. Zero-tolerance policies blindly deny any distinction between such acts, treating Cortez like just one more dangerous thug.
Eleven-year-old Jerry Preece learned this difficult lesson at the beginning of sixth grade. Jerry, an honor student, became the subject of a bully's unwanted attention. One day, while enduring taunts and punches and being shoved to the ground, Jerry finally socked the bully. River Road Middle School suspended Jerry and the Potter County Sheriff's Office gave him criminal citations for disorderly conduct and fighting in a public place. For defending himself in the midst of an assault, Jerry was made a criminal.
Ironically, if Jerry was an adult, it is nearly certain that his actions would not have been considered criminal. It is well known, perhaps instinctive, that legitimate acts of self-defense are not criminal, not deserving of punishment. More than two millennia ago, the Roman orator Cicero explained that logic, necessity, tradition, and "nature itself," all teach that there is a right to use force against an attacker. A person acting in self-defense, like Jerry punching the bully, has no wrongful intent. Like Lindsay and Cortez, Jerry fell victim to the zero-tolerance mindset targeted at school kids that punishes the innocent along with the guilty.
Other troubling cases abound: a high school student arrested on four felony charges for conducting a common chemistry trick, off-campus, that makes a plastic soda bottle burst; a sixth-grader with a manicure kit charged with possession of a weapon on school grounds; a high school junior arrested on two felonies after a sketch of military planes attacking a school inspired a search of the student's car that turned up a utility knife used for the student's part-time job. All of these cases exhibit willful blindness to the lack of culpable intent on the part of the arrested youth. It is "zero-tolerance" out of control.
This kind of "justice" can only succeed in undermining the faith in the fairness of our system of laws that is an essential element of a free society. Targeting such morally arbitrary enforcement at school children is particularly corrosive. The message of zero-tolerance overcriminalization is that justice is amoral. It is not about the choices you make, but simply a roll of the dice that determines whether you will be hauled away in handcuffs. The mechanistic legalism of zero tolerance can send a kid to jail for a forgetful slip, a well-meaning action, or even something entirely beyond her control.
Lindsay was not blameworthy, not deserving of criminal punishment, yet she was arrested on a felony charge that could have put her in prison for five years. The suggestion that criminal sanctions might apply to Lindsay and other similar youths is yet another symptom of the modern trend to criminalize everything. Zero-tolerance overcriminalization threatens to teach school kids that justice is an uncaring and indiscriminate mechanism, a Sword of Damocles hanging above their little heads. That is just wrong – we should have zero tolerance for misguided zero-tolerance policies that simply forget what the criminal law is all about.
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