A Welcome Fork in the Familiar Road: Restorative Justice as Diverting the Path of Schools to Prisons

• Publication year: 2019
• Author: By Elica M-Zadeh*

A welcome Fork in the Familiar road: restorative Justice as Diverting the path of Schools to Prisons

By Elica M-Zadeh*

I. Introduction

If you could travel back one hundred odd years, what would you imagine criminal justice in the future to look like? Villemard's Vision, En L'an 2000 ("in the year 2000"), is a series of French works from 1910 depicting the imagined scientific advancements of the year 2000.¹ "In Pursuit of a Smuggler," as pictured above, portrays law enforcement with webbed wings and pointed revolvers in hot pursuit of a flying felon.² Alas, at the head of 2019, short of taking to the skies to expand our legal horizons, we find ourselves still in the epoch of humans in cramped cages under the guise of criminal justice.³

As humans, we have a tendency to over inflate our capacity for change. We believe that tomorrow promises an end to school shootings, an answer to mass incarceration, and a female president. This is not to say that, at a macrocosmic level, we do not possess the faculty for meaningful change, but rather, our ability to embrace that faculty is frustrated by the zeitgeist—the spirit of the time. In the hollow chambers of our antiquated courtrooms, the spirit is, and always has been, characterized by a fear of the unfamiliar, and a misguided contentment with the status quo. Sticking to "what works" has been the hallmark of the 19th century and beyond,⁴ but only insofar as what works—locking up delinquents with sentences disproportionate to the crime⁵—is what has worked for the privileged, while demonstratively hampering both indigents and ethnic minorities (particularly African-American males).⁶ And yet, the system continues to exercise an overhaul-inertia.⁷ Indeed, Congress admits that the Federal Rules of Evidence, for example, are rooted "more in history and experience than in logic."⁸ This means that, in terms of realizing social, political, and judicial advancements over the next one hundred years, we are, quite simply, getting in our own way.

So, what does this mean for the future of juvenile detentionees in the realm of reformist criminal justice? The "school-to-prison pipeline" [STPP] is a term of art that characterizes the systematic tendency of students of color to leave schools and enter detention facilities at an alarmingly disproportionate rate.⁹ Statistics have shown that, overall, "black juveniles are about four times as likely as their white peers to be incarcerated."¹⁰ While the reasons for this are not easily attributable to one factor, pipeline theorists typically identify classism, infrastructure, the disparate treatment of minorities, and harsh, "zero-tolerance" policies that criminalize childhood behavior as paving the intersection between education and the criminal justice system.¹¹ As a result of attacking the symptoms of disruptive behaviors and ignoring the underlying causes, students prematurely ferreted out of the education system are "nearly three times more likely to be in contact with the juvenile justice system the following year."¹² Now, with a growing collective consciousness, and with eighteen states operating at over 100% prison capacity, is America ready for a rebirth of criminal justice jurisprudence at last?¹³

The restorative justice model (RJM) is an initiative that is aimed at repairing the harm caused by crime. In school contexts, RJM can be used to temper crime and diminish the probability of juvenile incarceration. This article will address whether implementing RJM in schools can divert the school-to-prison pipeline, thereby serving as a welcome fork in the familiar road.

Part II of this article explores the background of the school-to prison pipeline, Part III fleshes out the restorative justice model, Part IV incorporates this model as a proposed solution to the school-to-prison epidemic, and Part V concludes by proposing RJM as a meaningful remedy.

II. The Genealogy of School to Prison: From Cradle, to School, to Jailhouse

To contemplate a remedy for STPP, it is first necessary to explore its meaning and genealogy. STPP is a metaphor commonly used to describe modern schools as having become a conduit to correctional facilities.¹⁴ As previously mentioned, STPP disproportionately affects students of color in impoverished areas.¹⁵ An historical evaluation of these neighborhoods elucidates the reasons behind this.

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a. The Writings on the Cradle Wall

Mass incarceration in the U.S. today is a descendent of its jilted ancestor, slavery. Even after enacted legislation abolished slavery in the 1800's, African-Americans (AA's) were still deprived of the benefits of citizenship, or even personhood.¹⁶ While abolitionists fought to end slavery, they failed to advocate for the full integration of AA's into society.¹⁷ Segregationist laws continued through the Jim Crow era into the 1960's, and as a result, AA's were streamlined into impoverished neighborhoods that lacked the fundamental resources to sustain a surviving economy.¹⁸ They were denied education, the right to vote, and basic human dignity.¹⁹ Thus, the babies born into these communities were, and still are, born with the writings on the cradle wall—a prognosis of unavoidable doom.²⁰

As these babies grew, crucial points in their development were stymied by a mountain of disadvantages—lack of access to health care, lack of quality childhood education, malnourishment, neglect, child abuse, an absent and/or poorly educated parent—all of which converge to inhibit the path to functional adulthood and facilitate the path to jail.²¹The school environment, then, is tasked with counteracting the underwhelming prospects for AA youths. In stark contrast, however, schools in these neighborhoods have become a laboratory for failed governmental initiatives, creating the breeding grounds for future detainees. A cursory glance at these initiatives explains why.

b. Zero Tolerance Policies and the Criminalization of Childhood Behavior

Zero-tolerance policies are "no nonsense rules that call for punitive punishments in school settings."²² Minor infractions of school rules, under zero-tolerance policies, lead to the criminalization of adolescent behaviors without the discretion of an overseeing body.²³ This includes suspension, expulsion, and the intervention of law enforcement for, for example, acts of "willful defiance."²⁴ The overuse of these zero-tolerance policies notably increases the odds of juveniles entering the criminal justice system.²⁵ Moreover, suspensions and expulsions are linked with lower academic performance rates, lower overall quality of school environment, and an increased likelihood of dropouts.²⁶ Combined with an inherent presumption of guilt,²⁷ AA youths in particular are therefore devastated by inexorable policies that set them on the path to prison.

c. Educational Facilities as Resembling Jailhouse Infrastructure

Zero-tolerance policies are not exclusively to blame for the criminalization of juveniles. Many of the aforementioned neighborhoods house educational facilities that are poorly maintained and mirror prison-like infrastructures.²⁸ In this way, students are made to feel like criminals before having ever received a citation. These overcrowded, structurally degenerating facilities resemble "fortresses, complete with barbed-wire . . . fences, bricked up windows, and heavy locks on iron doors."²⁹ Some schools have gone so far as to outfit holding stations for police precincts on their campuses.³⁰ In these predominantly minority schools, standard jailhouse procedures such as video surveillance, searches, seizures, and frisks are frequently administered.³¹The use of overly stringent security protocols prime students for jailhouses.

d. A Community Disenfranchised

Aside from the central concern of pushing minority juveniles into increasingly overcrowded prisons, STPP serves as an impediment to regional functionality in areas that are already economically frustrated.

In economics, the term "human capital" is used to describe "[t]he knowledge and skills embodied in people. . . . [It has] the potential to create value as a source of output and income."³² Because human capital is said to increase individual productivity, by extension, higher levels of collective human capital beget higher levels of regional productivity.³³ Of course, the converse is also true. In a study on economic activity in urban areas, Jason Abel and Todd Gabe found that "[u]sing educational attainment as an indicator of human capital . . . a strong positive relationship [exists] between the proportion of residents with a college degree and the level of economic activity."³⁴ Since education is a close nexus to human capital, the existence of STPP as impeding on the learning faculty of urban youths demonstratively inhibits individual productivity and, in turn, regional productivity. Not only does ineffective education diminish human capital, but also productivity is even more acutely sterilized by the physical confiscation of juveniles from the community and into correctional facilities. In this way, STPP constrains the advancement of the entire community.

III. The Restorative Justice Model

At its core, RJM is a response to two fundamental deficiencies of the criminal justice system: the oversight of victims and the ostracism of prisoners.³⁵ Under our current system, the interests of victims are severely undercut by a preoccupation with the criminal suspect. Moreover, detaining the suspect is hardly a panacea, as our prison system has...