Double jeopardy: the modern dilemma for juvenile justice.

• Jurisdiction: United States
• Author: Anderson, Christina L.
• Date: 01 January 2004

INTRODUCTION

Recent media reports focusing on specific, high-profile incidents of adolescent crime would have American society believe that juvenile violence rates have reached epidemic proportions. Magazine and newspaper editors brand today's teenagers "the most damaged and disturbed generation the country has ever produced" (1) and perpetuate the myth of the adolescent "superpredator." (2) Much of this media hype has centered its sensationalism around the violence occurring on school grounds. Particularly in the wake of the Columbine High School shootings, the public responded to its media-generated fear by demanding a "get-tough" policy for violence in schools. Though "zero tolerance" had been present before such events, politicians and school administrators found themselves increasingly familiarized with the term in the late 1990s.

In acknowledgment of the intensifying public pressure, school administrators began expanding the federal mandates surrounding weapons policies to include a wider variety of behaviors and harsher sanctions. In addition, educational institutions began intertwining their disciplinary duties with those of law enforcement agents. Increasingly, police officers were called into schools to handle conflicts, and as a result, young students frequently found themselves faced with dual punishments, a "double jeopardy" of sorts: suspension/expulsion on one hand and criminal penalties on the other.

This concentration on severity as a way to deter juvenile violence has resulted in not only a lack of disciplinary alternatives for cases with mitigating circumstances, but also a lack of adequate support systems for the affected juveniles. As authorities increasingly relinquish responsibility by simply removing students from schools, these youth find themselves distanced from the exact social institutions charged with teaching them the conformist norms necessary to become successful citizens. This social disconnect not only isolates them from mainstream conformist voices, but also leaves them vulnerable to the call of deviant subcultures, thus encouraging further delinquency and disadvantage.

As the overwhelming majority of schools have already become entrenched in their zero-tolerance mentality and courts have consistently upheld such punitive measures, reform efforts aimed at reconnecting juveniles to the systems so readily discarding them must focus on implementing supplemental approaches to counterbalance the zero-tolerance model. Restorative justice provides such counterbalance. This alternative justice system, which may be implemented through a number of formats, such as victim-offender mediation, community reparative boards, circle sentencing, or family group conferencing, employs a different framework than the traditional, retributive model. Instead of concentrating solely on consequences, restorative justice ideology looks to a broader range of concerns: the parties' relationships, voices, and social context. Restorative justice approaches lend victims, offenders, and community members the chance to congregate, communicate, and develop reasonable, mutually agreeable, reparative solutions. Specific to educational discipline, then, restorative justice practices can offset an absolutist, punitive trend by presenting both schools and communities with an opportunity to define their own versions of justice while, at the same time, providing a forum for the reintegration of deviant youth.

This Comment evaluates and exposes the realities of inflexible penalties for youth as well as unearths the spectrum of equitable alternatives to the "get-tough" model. To begin the exploration of this continuum, Part I focuses on the existing disciplinary system in the majority of states. Section A supplies a recent chronology of the zero-tolerance movement in schools and discusses the socio-political and legal factors which surround the zealous retributive trend. Section B examines the realities of school crime, questioning the appropriateness of mandatory suspension/expulsion measures in addressing the daily deviance of young students.

Part II then focuses on the simultaneous upsurge in the imposition of formal sanctions by the juvenile justice system. Sections A and B assess how the disciplinary goals and tactics of educational facilities have begun to overlap with those of the juvenile justice system, creating a type of "dual enforcement" wherein the institutions share information, authority, and social functions. Section C documents the social and legal entrenchment of this pervasive, punitive mentality.

Part III, however, identifies a reasonable alternative to such hard-nosed, retributive recourse: restorative justice. Section A first explains the general restorative theory, next references particular models for the implementation of restorative justice, and lastly, offers examples of successful, real-world applications. Section B details the benefits of supplementing harsh punishments with a more individualized and integrative forum. After summarizing the administrative, social, and personal advantages incurred through restorative justice practices, Section B concludes with an emphasis on the critical potential for reintegration generated by such mechanisms and a report on restorative justice's recent success.

1. ZERO-TOLERANCE POLICIES

   1. The Recent Trend Toward Increased Punishment

      "Zero tolerance" has become a familiar and prevalent term in American parlance, connoting a "policy that mandates predetermined consequences or punishments for specific offenses." (3) We often hear about lawmakers' "zero-tolerance" approaches to drug use and possession, but the term has carried particular significance with regard to school administrative strategies. School guidelines on weapons, while leaning toward "zero tolerance" prior to amplified media hype, (4) significantly increased in both number and severity following the highly publicized school shootings that occurred during the late 1990s. (5) "[M]andatory expulsion became the rule rather than the exception in matters of school discipline."

      (6)

      After the passage of the Gun-Free Schools Act of 1994, (7) all fifty states introduced zero-tolerance legislation. (8) The Gun-Free Schools Act requires local educational agencies to mandate a one-year expulsion for students who bring weapons to school. (9) Additionally, the Act mandates the referral of law-violating students to the criminal or juvenile justice systems. (10) Congress has conditioned the receipt of certain federal funding on the implementation of this weapons mandate. (11)

      Currently, ninety-four percent of all public schools have executed at least one zero-tolerance policy. (12) Furthermore, zero-tolerance policies now cover a wide range of behavior. Besides the most notable guidelines involving the possession of weapons, schools have implemented zero-tolerance-type policies pertaining to violence, (13) bullying, (14) threatening, (15) the use of profanity, (16) and alcohol/tobacco consumption. (17) In addition, some schools have attempted to place strict punishments on those students engaging in ambiguously defined acts such as "intimidation." (18) Interestingly, then, even though the federal requirement was established to prevent the possession of weapons in school, from 1996 to 1997, 50,961 expulsions occurred as a result of fights; 30,522 as a result of an alcohol-, tobacco-, or drug-related offense; and only 18,841 as a result of weapon possession (broadly defined). (19)

      Thus, educational institutions have extended zero-tolerance efforts considerably beyond the federal mandate established in the Gun-Free Schools Act. Furthermore, not only have schools incorporated a more diverse array of behaviors within their supervisory scope, but they have also gone beyond the required sanctions for such behaviors. Some schools have begun to experiment with permanent expulsion as opposed to the mandated minimum of a one-year expulsion. (20) Even more drastic, a couple of states now require permanent expulsion in certain circumstances. (21)

      This exponential growth of zero tolerance has even affected the very youngest students. Minneapolis schools have suspended more than 500 kindergarteners in the last two years for varying levels of misconduct; (22) schools in Greenville, South Carolina, suspended 132 first-graders as well as 75 kindergarteners during the 2001-2002 school year; (23) and Philadelphia schools suspended 33 kindergarteners in one quarter alone (fall 2002). (24) The rather shocking amount of suspensions for primary school attendees has been connected to school administrators' drive for compliance with their zero-tolerance policies. (25) These statistics provided fodder for sensationalists, who rushed to broadcast them and label these children, just as they did older students following incidents such as the Columbine shootings. A recent news article, immediately headlined on television news stations, termed the children "kamikaze kindergarteners." (26)

      In order to prevent the unnecessary inflation of penalties, the Gun-Free Schools Act specifically allows for administrative officials' discretion and case-by-case analysis when determining a student's punishment. (27) However, schools have often disregarded this provision, preferring blanket enforcement over individual assessments. (28) While qualitative evidence appears to serve as the only current measurement of this phenomenon, such stories abound. Newspapers have reported a number of high-profile, zero-tolerance cases in which extreme, non-discretionary enforcement was evident. For example, in Pensacola, Florida, a principal recommended expulsion for a teenage girl who brought nail clippers to school; (29) in East Lake, Florida, a high school senior was suspended for the remainder of the academic semester after taking a sip of sangria at a luncheon for a school-sponsored internship; (30) in Ewing, New Jersey, a young male was suspended...