A Voice in the Wilderness In Defense of "Mere Conservatism"

Criminalizing Kids

The Heritage Foundation recently published a book entitled One Nation, Under Arrest which makes the case that our nation, especially congress, is turning to criminal law to "fix" all of society's problems.  The term they use to delineate this disturbing tendency is "overcriminalization".

“Overcriminalization” describes the trend in America – and particularly in Congress – to use the criminal law to “solve” every problem, punish every mistake (instead of making proper use of civil penalties), and coerce Americans into conforming their behavior to satisfy social engineering objectives. Criminal law is supposed to be used to redress only that conduct which society thinks deserving of the greatest punishment and moral sanction.

But as a result of rampant overcriminalization, trivial conduct is now often punished as a crime.  Many criminal laws make it possible for the government to convict a person even if he acted without criminal intent (i.e., mens rea). Sentences have skyrocketed, particularly at the federal level.

My friend Scott Burton wrote a great review of the fifth chapter, "Criminalizing Kids", in One Nation, Under Arrest.  He shares the story of one particular 12 year old student in Georgia who had his life turned upside-down for no other reason than he brought his Boy Scouts pocket-knife with him to school one day last year.

Unfortunately, cases like these have become increasingly common. In an effort to solve specific problems, lawmakers and public officials are eager to pass laws and implement policies that criminalize behavior regardless of the offender’s intent. Miles’s case is a perfect example. After showing some of his friends the two-inch pocket knife, one of them informed the teacher. None of the students who saw the knife said they felt threatened, nor did they think Miles might harm someone. There was no evidence that Miles had any intention of doing anything wrongful with the knife. While a school has every right to impose reasonable and appropriate discipline upon a student if his behavior violates school policy or poses a risk to others, the school board’s actions in this case were downright ludicrous. As if the humiliation of being treated like a common criminal in his own school and in front of his peers was not enough, that is only half of Miles’s story.

After being taken to a detention facility, Miles was brought to juvenile court where Henry County officials added additional restraints. The presiding judge, who coincidentally also served as the attorney for the school board, decided that Miles should remain in the detention center. Only after Miles had spent 48 hours away locked up were his parents able to pick him up on conditional release. Following his stint in juvenile detention, the school held a disciplinary hearing, where he freely admitted to bringing the knife to school. The frightened 12-year-old was subsequently expelled for the remainder of the year. The Rankin family appealed the punishment, but the Henry County school board simply reviewed the transcript without conducting an independent inquiry of its own before affirming the school’s decision. Compounding the hardship Miles faced, the juvenile court deemed Miles “in a state of delinquency” and ordered him to serve thirty days under house arrest, imposed a curfew on him, and placed him on 180 days of probation.

Everyone is afraid of a lawsuit and thus we live in a country of cowards and reactionaries.

Miles Rankin’s legal troubles stemmed from the zero-tolerance policy in his school. Zero-tolerance policies result in part from the propensity of many parents to challenge and even sue school officials for almost any exercise of professional judgment and discretion. Many school boards and administrators try to protect themselves by adopting zero-tolerance policies that allow for no exercise of judgment at all. Zero-tolerance policies do nothing, however, to engender respect for the law or for the officials who tie their hands with them.

Of course, protecting students is a top priority, but in the process of ensuring safety, lawmakers and public officials must not abandon common sense and professional judgment. Miles Rankin and his family’s life have been scarred by an indiscriminate group of administrators who found it easier to hide behind a zero-tolerance policy than to exercise sound judgment. They were so caught up in their own policy that they could not appreciate the real-life consequences of such an irresponsible application of law.

I don't know what the solutions to this problem are, but I intend on finding out when I read One Nation, Under Arrest this summer.  You should do the same.

Read Mr. Burton's full column right here (and send it to 10 people today).