The "crime control" laws enacted in the last two decades have had a negative impact on children of color. The changes in juvenile justice are imposing a form of social control over children of color. However, increased laws and punishments have not deterred juveniles engaged in delinquent behavior. Instead, these changes have merely increased the number of criminals. An alternative solution would be to teach children about the justice system through education on the Constitution. Young people, including children of color, will be inclined to obey the law if they understand the laws and their individual relationship to the Constitution, the courts, and the political process.
In America, conservative members of hegemonic groups are using a call for improved "crime control" measures as a mechanism to control members of marginalized groups by supporting strict criminal codes to control and restrict the constitutional rights of these politically marginalized groups (McNeil, 2002). Federal and state governments in the United States, from the 1960s to the present, have increasingly used crime control measures to restrict the rights of citizens with the major negative results falling on members of non-hegemonic groups-African Americans, Hispanic Americans, Native Americans, and Asian Americans. We examine the impact of these crime control measures designed to exercise increased social control over the poor, with restrictions of the rights of minority children enrolled in our public schools. We restrict our research to public schools because the Bill of Rights in our federal Constitution applies to state action as required by the 14th Amendment to the Constitution and not to the private actions of nonpublic schools. Further, most children of color are enrolled in our public schools (Orfield & Yun, 1999).
In 1994, the U.S. Congress enacted the Violent Crime Control and Law Enforcement Act of 1994. The 1994 act, known as the "Three Strikes" Crime Bill, also directed the U.S. Sentencing Commission to make mandatory prison sentencing for certain illegal drug use and sale. For example, the possession of crack cocaine would result in a five-year sentence for a first offense, but for a first offense for the possession of powder cocaine results in a one-year sentence. Further, the possession of 5 grams of crack would result in the same prison sentence as 500 grams of powder cocaine. At the end of 1995, African Americans constituted 85% of all persons convicted of drug use or sale under this law (Brown, 2002). The 1994 Crime Bill also made it possible to prosecute children as young as 13 years old as adults.
The federal government and 26 states have three strikes laws, but California is the only state that does not require that the third strike be a violent crime. In California, a nonviolent crime of residential burglary may qualify as a first or second strike (Skipitares, 2002a). In the seven years since the passage of California's Three Strikes Law, nonviolent residential burglary is the second most common third strike accounting for 11% of all cases with robbery being the most common. In 2002, nearly half of the state's 7,206 threestrikers received 25 years to life sentences for a nonviolent third strike, including drug possession and petty theft. For example, Jed Miller in 1995 was sentenced to the maximum for stealing two bicycles and a truck; and another person drew a 25 years to life sentence for shoplifting two bottles of cognac from a Safeway supermarket (Skipitares, 2002b). African Americans make up 7% of California's population, 31% of the overall prison population, and 44% of all the three-strikers in prisons (Skipitares, 2002c). Even in Santa Clara County south of San Francisco where African Americans comprise only 4% of the population, they comprise 32% of the three-strikers. Some claim that robbery, the most frequent crime for which three strikes defendants are jailed, is disproportionately aimed at African Americans; and the statute is picking on African Americans as a group.
The California three strikes law has been challenged in court and has reached the U.S. Supreme Court (Lane, 2002). In April 2002, the Court agreed to hear a case on appeal from the 91 Circuit ruling on California's statute. The Court concluded that the U.S. Constitution "does not permit the application of a law which results in a sentence grossly disproportionate to the crime" (Lane, 2002, p. A2). Approximately 57% of the 7,000 individuals serving sentences under the California law were convicted on nonviolent third felonies, including 644 convicted of drug possession and 340 convicted on charges of theft (Lane, 2002). The cases involve Lockyer v. Andrade (No. 01-1127) and Ewing v. California (No. 01-6978). Oral arguments are expected in the fall of 2002 before the U.S. Supreme Court and a decision is expected before July 2003. In one case, the person drew a life sentence under the statute for petty theft to support a drug habit.
The following sections address major issues regarding the law and children 18 years and younger (juveniles) enrolled in public schools and other issues that influence the new limits and conditions for children of color living in America. Those influences include the changing definition of juvenile crimes by U.S. Congress and state legislative bodies and implications of these changes for minors brought before adult courts for violation of federal and state laws. However, the legal process has never been devoid of values, preferences, or policy positions. Ultimately, the legal process has always acted as an expression of social control. This control includes juvenile behavior.
Laws affecting juveniles, however, cannot be confined to the delinquent behavior of students' lives while enrolled in school but they have consequences for life after school. In the past, juvenile crimes brought before a juvenile court were closed to the public. Now juvenile records are available to be counted as a third strike later in life. The transfer of student delinquents from juvenile courts to adult courts has other implications. We need to ask if 13- and 14-year-olds are mature enough and have sufficient knowledge to defend their rights under the Constitution in adult courts. The age at which a juvenile may be transferred from juvenile court to adult courts differs from state to state. Even the language differs from state to state: some refer to such a transfer as a "waiver" of juvenile rights, "bindover" from juvenile court to adult court, or a "trigger" delinquent behavior requiring a transfer from a juvenile court to an adult. Examples of cases where juvenile delinquents transferred to adult courts are presented and discussed but an exhaustive review of court cases on this subject is beyond the scope of this article.
All categories of students are not considered alike under the laws of the federal and state governments. Special education students, at least theoretically, are treated differently if they have an emotional disability. Children from ages 3 to 21 with a disability must be provided with special education services according to the federal law. The Individuals with Disabilities Education Act (IDEA) requires that special education students may not be expelled from school due to violent behavior if that behavior is caused by his/her disability (Murdick, Gartin, & Crabtree, 2002). The U.S. Supreme Court in Honig v. Doe (1988) ruled that such behavior must not be a manifestation of the student's disability. Schools may suspend such a student for a minimum of 10 days, unless there is evidence that the student may do harm to himself/herself, another student, or teacher (see East Islip Union Free School District v. Anderson, 1994; School Board of Pinellas County v. J.M. by L.M., 1997). However, IDEA allows school officers to report criminal behavior by a special education student to law enforcement authorities or supply a special education student's disciplinary records to law enforcement authorities (Murdick et al., 2002). School authorities have the right to transfer a student with a disability to an interim alternative setting for up to 45 days for the possession of a weapon or illegal drugs on school grounds or at a school function under the Gun-Free Schools Act and the Drug-Free Schools Act (Murdick et al., 2002).
These laws extend beyond schools to housing for the poor. These laws affect the poor only, because middle-income families do not qualify for federally funded public housing. The Federal "Zero-Tolerance" laws of 1994 and 1996 involving weapons and illegal drugs on school grounds also included weapons and drug possession in any federally funded housing (Stevenson, 2002). The law states that anyone entering a public housing unit who is connected to illegal drugs will cause the tenant to be evicted, even if the tenant did not know the visitor or did not invite the person to their home. The U.S. Supreme Court upheld this part of the law as just, but some lower courts are not abiding by the strict legal guidelines supported by the Supreme Court (Stevenson, 2002). For example, a public housing resident who likes to braid hair to make extra income had a potential client to inquire about getting his hair braided. He made an appointment but was arrested for drug use before he could keep the appointment. The Public Housing Authority in Durham, North Carolina sought an eviction of the tenant because a police officer observed the person visiting the home prior to his arrest for the possession of illegal drugs. However, a North Carolina Appellate Court ruled in favor of the tenant-a disabled mother with three small children (Stevenson, 2002). Others are not likely to be as fortunate. Still, the importance of this case should not be lost on minority children who become involved with drugs for any reason. If the children are convicted of using or selling illegal drugs, or are found in the presence of those who traffic in drugs, their parents may be evicted from public housing. Additionally, if they are convicted of the sale or use of drugs and wish to attend college, they will not be able to qualify for government guaranteed student loans. Again, it is unlikely that the wealthy will find themselves in this position because mainly children from poor and lower middle-income families can qualify for such loans.
In addition to changing the rules of the game for juvenile justice, states are now requiring schools to share juvenile delinquent behavior with law enforcement and social service agencies. In 2000, school personnel and school boards in 10 states increased requirements to improve school safety and several went further to foster greater cooperation between schools, the police, and the courts (Dagley, 2001). Colorado authorized information sharing between schools and other service and law enforcement agencies. Information to be shared includes incidents such as truancy and disciplinary records maintained by school authorities. In Florida, schools must provide access to the school district's database on students' records. Iowa authorized peace officers to make reasonable efforts to notify parents of students who violate school rules and share these data with juvenile courts and social service agencies. Maine, Minnesota, and Missouri permit the disclosure of school records of preadjudicated juveniles to their criminal justice systems. New York requires juvenile courts to provide notice to schools of enrolled juveniles sentenced for crimes. Virginia requires law enforcement officers to inform schools of drug law violations. Washington requires education records to be provided upon request by social service agencies and the state courts set a minimum sentence for the allowable number of days of suspension for the consumption of controlled substances and alcohol on school grounds.
In a technology-based society, the sharing of information has important life implications for young delinquents. In the past, young delinquents who appeared before a juvenile justice system were accorded a certain degree of privacy; their records were closed to all public agencies. If juvenile delinquent records must be shared with law enforcement agencies now, later in life when they seek employment where criminal background checks are required, finding employment may be difficult or impossible. Research tells us that African American males who cannot find employment and have little chances of finding legal employment cannot find a female who will marry them, even when they father children with their female companions (Stack, 1974) and it appears logically that this situation holds true for other minority males. This situation will increase the number of single-parent head of households and poverty for children of color.
MINORITY POPULATION CHANGES
Changes in the size and composition of the K-12 student population should have enormous consequences for schools. The minority student population in America increased from 10.4 million in 1985-86 to 13.7 million in 1994-95, which constitutes 34% of K-12 school enrollment in 1994-95 from 29% in 1985-86 (Garcia, 2001). Already a majority of the high school graduates in California, Hawaii, Mississippi, New Mexico, and the District of Columbia are from racial and ethnic minority groups. By 2006, about 50% of all K-12 students will be minority students (Garcia, 2001). In 2000, only 64% of schoolchildren were White, non-Hispanic American; 15% were Black, 4% were Asian, 1% was Native American, and 16% were Hispanic American (Imig, 2002). Also, the percentage of school age students speaking a language other than English or have difficulty speaking English has doubled over the past two decades, increasing from 2.8% to 5.0% in 1999 (Imig, 2002).
According to Hodgkinson (1999), two factors serve to increase minority enrollments in our schools: immigration and fertility. Nearly 85% of immigrants come to this country from non-European countries, and the average Black female gives birth to 2.6 children compared to 1.7 children for the White population (Hodgkinson, 1999). By 2020, half of the students will be non-White; and by 2050 or sooner half of all Americans will be nonWhite. The White school age population will continue to decline and the minority school age population will continue to increase (Hodgkinson, 1999). Today, more than 180 different language groups are represented in LEP programs funded under Title VII (Garcia, 2001). Many of these students also qualify for support under Title I programs for students at risk for academic failure. Also, many minority students are immigrants and need special services.
There is a concentration of minority children in single-race urban schools where resources are limited and crime control is a major safety and political issue. This concentration makes it easier to target minority children for criminal behavior. The recent decision by the U.S. Supreme Court ending their 1954 decision in Brown v. Board of Education to racially integrate the public schools will likely increase the ability of local governments to target minority students for greater social control with crime and safety issues. Beginning in 1960 Whites left the inner cities for suburbia in large numbers to escape school integration (Fleming, 1975). For Whites who remained in the cities, intradistrict segregation became the norm along with ability grouping or tracking and the placement of minority students in special education classes (Flemming, 1975). The concentration of minority children in single-race schools will make it easier to target this population for further regulation through crime control mechanisms supported by legislative bodies and the courts.
Juvenile Crime and Minority Life in America
Juvenile crime is not new in America, but the rationale for changing the way we treat juvenile delinquents is new. In 1970, Ramsey Clark (1970), former U.S. Attorney General under President Lyndon B. Johnson, addressed crime in America. He concluded that, in 1968, most individuals arrested for serious crimes were African Americans. Indeed, in 1968, two-thirds of all persons arrested for serious crimes were under 21 years of age but crimes by minors were less violent than adult crimes (Clark, 1970). Millions of poor people have been forced to testify against themselves and those they know (Clark, 1970) despite the 5' Amendment and the Miranda Rule approved by the U.S. Supreme Court stating that a person arrested must be made aware of his/her rights and provided with representation by an attorney paid for by the State if he/she can not afford one. Some judges sentence long, some short (Clark, 1970). There are examples of inequality in sentencing daily, often in different courtrooms and the same courtroom. Some judges regularly give juvenile offenders prison terms for first-offense car theft, while others turn them over to the custody of their parents.
A powerless person accused of a crime is helpless against the power of the state via the police; and many powerless minority juveniles have been imprisoned by the state with the insistence that they testify against themselves and their friends. Further, accused minority juveniles could spend many weeks and months in jail waiting for a trial and miss time away from school. The sole purpose of law enforcement is to maintain control over juvenile behavior as viewed and defined by the hegemonic group; and the question remains, how the powerless or marginalized groups can gain power or in this case get fair treatment from society's behavioral control agencies.
For most children, school occupies their lives for six or seven hours a day, 180 days a year for 13 years. Schools are in a position to help mediate the criminal behavior of students (Johnson, 1996). Johnson (1996) in her analysis of crime in school cites several factors influencing juvenile delinquency:
Education-more youth who drop out of school commit crimes than those who remain in school and graduate;
Gender-males exhibit more delinquent behavior than females;
Race and ethnicity-racial and ethnic minority youths exhibit more delinquent behavior than majority youths; and
Drugs-more juveniles who use drugs are confined to youth correctional institutions throughout the country.
In addition to these factors, there is a strong correlation between a child's family income level and his/her school behavior Johnson, 1996). It is within the family as a social unit that children learn nurturing, morals, and basic social values. The social economic status of the family also strongly influences a child's behavior in school. A child of color from a poor family generally resides in an unsafe neighborhood, receives a poor education, has possible gang influence, and receives poor parenting.
Recent juvenile crime in public schools reported by the U.S. Department of Education and the U.S. Department of Justice provides an overview of crimes committed in schools by students (Kaufman, Phillip, & Associates, 2001).
The percentage of students in grades 9-12 threatened or injured with a weapon on school property has not changed significantly in recent years, ranging from about 7-8% of students reported being threatened with a weapon in school.
In 1999, 12-18 year old students living in urban and suburban locales were equally vulnerable to serious violent crime at school. Away from school, however, urban students were more vulnerable to serious violent crime than were suburban students and suburban students were more likely to experience serious violent victimization than were rural students. Yet, student vulnerability to theft at school and away from school in 1999 was similar in urban, suburban, and rural areas.
Young students (ages 12-14) were more likely than older students (ages 15-18) to be victims of crime at school. However, older students were more likely than young students to be victimized away from school.
Elementary schools were much less likely than either middle or high schools to report any type of crime in 1996-97. Elementary schools were much more likely to report vandalism (31%) than any other crime (19% or less).
At the middle and high school levels, physical attacks or fights without a weapon were the most commonly reported crime in 1996-97 (9 and 8 per 1,000 students, respectively). Theft or larceny was more commonly at high schools than at middle schools (6 vs. 4 per 1,000 students).
The percentage of public schools that reported violent crimes to the police was 56.7 and minority enrollment was about 46.7 for a school less than 5% minority; 57.7% with a minority of 5-19%; 58.1% of schools with a minority of 20-49% and 68.3% of the schools reported a crime to the police with a minority enrollment of 50% or more.
We will now discuss what happens to juveniles who are convicted of a crime. Generally, juveniles who are convicted of a crime must interact with state's system of justice. New York City was the first American city or state to open a juvenile detention facility in 1825 but in 1899, Illinois became the first state to adopt a uniform juvenile code and established the country's first juvenile court (Reader, 1996). Until the 1950s, most juveniles were confined to juvenile detention facilities for delinquent behavior; and the courts were given jurisdiction over those who committed adult crimes or exhibited noncriminal status type behavior. Status offenders include truants, runaways, children who cannot be controlled by their parents or guardians, and those considered incorrigible (Reader, 1996).
It is well established that school officials do not need a search warrant or even probable cause to search a student for contrabands, such as illegal drugs or weapons (State v. Crystal B., 2000). But, a recent case that came before the Kansas High Court (In the Matter of L.A., 2001) is an excellent example of how most state courts deal with the rights of juvenile crimes on school property. This case involved a petition by a student to suppress evidence of illegal drugs found on his person. The juvenile contended that (a) the search by school officials constituted governmental action, which violated his Fourth Amendment rights, and (b) his admission after a Miranda warning to a law enforcement officer was not admissible because a prior unwarned statement tainted it. The Kansas Supreme Court (In the Matter of L.A., 2001) concluded that:
1. At the hearing on a motion to suppress evidence of illegal drugs found during a school search, the state bears the burden of proving to the trial court the lawfulness of the search and seizure. Great deference is given to the factual findings of the trial court.
2. The accommodation of the privacy interests of schoolchildren with the substantial interest of teachers and administrators in maintaining order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law.
3. The legality of a search of a student by a teacher or other school official depends on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider whether the action was justified at its inception, and second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances that justified the interference in the first place.
4. Under ordinary circumstances, a search of a student by a teacher or other school official will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.
5. A search of a student will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.
6. The statutory function of a school security officer is to protect school district property and the students, teachers, and other employees on the premises of the school district. A school security officer is not employed by an entity whose primary responsibility is law enforcement. During an investigation of a violation of school policy, a school security officer is not required to give a student Miranda warnings (right of a criminal suspect to remain silent and a right to counsel under the Fifth Amendment to the U.S. Constitution).
7. The Sixth Amendment to the United States Constitution, as applied to the states through the Fourteenth, requires that defendants tried as adults who are accused of serious crimes be afforded the right to trial by jury, and the right is applicable to any offense where imprisonment for more than six months is authorized.
8. Under the Kansas Juvenile Justice Code, there is no federal or state constitutional right to a trial by jury. However, if the offense the juvenile is accused of would be a felony as if an adult committed it, the judge has the discretion to order a jury trial for the juvenile.
Recently, the federal government has expanded its coverage of what constitutes criminal behavior, including crimes committed by juveniles. Therefore, it is important that we understand these new standards.
New Federal Standard of Review for Criminal Behavior
The Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 (Public Law No. 104-132, 110 Statute 1214) altered the standard of review federal courts must apply when reviewing applications for a writ of habeas corpus (the right to appeal a conviction to a higher court of law). The Act applies to all habeas corpus petitions filed after April 24, 1996. The Act, including the amended standard of review, 28 U.S.C. (sec) 2254(d) imposes the following standard of review that a federal court must utilize when reviewing applications for a writ of habeas corpus. An application for a writ of habeas corpus on behalf of a person in custody due to the judgment of a state court shall not be granted with respect to any claim adjudicated in state court proceedings unless the adjudication: (a) resulted in a decision that was contrary to, or involved an unreasonable application of established federal law as determined by the Supreme Court of the United States; or (b) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Federal courts generally follow state courts' definition of what offenses should be tried as a criminal offense; and several states consider juveniles as young as 13 as adults for certain criminal offenses.
Federal courts are bound by a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of established federal law (Franklin v. Francis, 1998; Harris v. Stovall, 2000). A federal court must presume the correctness of state court factual determinations (Cremeans v. Chapleau, 1995). Federal courts must give complete deference to state court findings unless they are clearly erroneous. In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court, a determination of a factual issue made by a State court shall be presumed to be correct. This statement is important because some states judicial systems may not accord minority students and White students will get equal justice for similar offenses.
In another case, where the defendant was a minor under the law at the time the criminal act was committed (Jamie Key v. U.S., 2002), the court concluded that a minor petitioner was informed of his Miranda rights and understood them even as a legal minor without the assistance of parents or guardians. While petitioner's parents or guardians were not present during his interrogation, there was no evidence that the petitioner requested that they be present or requested an attorney. The court concluded without consideration that the petitioner was 16 years old at the time of his offense and his interrogation; and while he was not a legal adult, the petitioner completed the 10", grade and was of normal intelligence. Like this state court, most state courts will consider juveniles mature enough to be tried before an adult under adult rules without constituting a violation of their basic constitutional rights for their decisions made in court as a minor without the assistance of parents or guardians. Juvenile criminals who are tried under adult courts may not be mature enough to properly defend themselves in adult criminal courts.
Student Search and Seizure
The federal government and the states have increased the number of adult criminals by either lowering the age for juveniles tried in adult courts and/or increasing the amount and kinds of behavior classified as criminal (Rosenberg, 1996). In 1994, Alabama, like many other states changed its statutes on juvenile delinquency in two ways: a prosecutor may petition to have a child who is at least 14 years old tried as an adult; or any one 16 years or older who commits a felony is automatically tried as an adult (Cross, 1998). These changes have resulted in more juveniles tried in adult courts.
In general the courts, federal and state, use a balancing test that weighs a student's privacy interests against the government's interest in maintaining order, discipline, and security in schools (Rosenberg, 1996). When applying the Fourth Amendment to public school officials, the U.S. Supreme Court has ruled that neither a search warrant nor probable cause is required for searches of students; but instead the standard for searches of students by school officials is a reasonableness test (New Jersey v. T.L.O., 1985). It seems logical to assume that evidence seized by school administrators from students by searches based upon a reasonable suspicion will be considered legal by a court of law. Further, students compared to adults outside of school are not given full protection under the Eighth Amendment against excessive punishment, a due process hearing before punishment may be administered (Ingraham v. Wright, 1977), nor do students have the right to a jury trail in juvenile court proceedings.
The U.S. Supreme Court has concluded that under the Fourth Amendment to the U.S. Constitution, searches of students by school officials do not have to adhere to the standard of "probable cause" imposed upon law enforcement officers off school property but upon the "reasonableness" of the search in light of all the circumstances. There must be reasonable grounds to believe that the search will reveal a violation of school rules or produce evidence of unlawful activity. The states remain free to provide greater protection for students against searches by school personnel, as Louisiana and California have done. In New Jersey v. T.L.O. (1985), the U.S. Supreme Court responded to the search of a student's purse by the school's assistant principal that yielded marijuana. A juvenile court hearing was held and the girl was adjudged a delinquent. This judgment was appealed. Contending that her constitutional rights had been violated by the search of her purse, she argued that the evidence should have been excluded from the juvenile court proceeding. Her appeal was upheld by the New Jersey Supreme Court but the U.S. Supreme Court took the case and ruled that the search did not violate the Fourth Amendment prohibition against unreasonable search and seizure if: (a) the search was justified by a reasonable suspicion and the scope, and (b) conduct of the search was reasonably related to the circumstances which gave rise to the search, and school officials took into account the student's age, sex, and the nature of the offense. The Court also upheld the right of school officials to require students who participate in extracurricular activities to submit to drug testing (Vernonia School District v. Acton, 1995).
Several state courts have taken the position that when police are involved in a student search, the Fourth Amendment standard of probable cause must exist and the students must be advised of their rights. A middle grade student brought a gun to school to protect himself from bullies who had harassed him (In the Matter of V.P., 2001). School officials and a school policeman were advised of the gun and escorted him to a school office for questioning where he admitted to having a weapon. The officer left the room during the questioning and the student asked to speak to his mother and lawyer. A Texas district court placed the student in a treatment facility for 14 months. The student appealed the decision to the Texas Court of Appeals arguing that his confession and the seized gun evidence should have been suppressed because he had not received his Miranda warnings. The Texas Appeals Court denied his appeal. The Texas Appeals Court's decision in this case is similar to rulings from state courts in Rhode Island, New Jersey, Massachusetts, Florida and California that school officials are not required to meet the strict requirements of probable cause and need not issue Miranda warnings when questioning students about school rules violations (In the Matter of V.P., 2001).
However, a Minnesota Court of Appeals held that the questioning of a middle grade student in the principal's office with the participation of a police officer was a custodial interrogation requiring the reading of the student's criminal rights (In the Matter of the Welfare of G.S.P., 2000). The presence of the police officer made the Miranda warning necessary and as a result, the student's admissions could not be used in juvenile court proceedings. The warnings are required when a law enforcement officer initiates questioning after a person has been taken into custody or has been deprived of freedom in any significant way, his Fifth Amendment Rights must be upheld (In the Matter of the Welfare of G.S.P., 2000). The student was told that he had no choice but to answer the questions. But in general, students have a lesser expectation of privacy than that enjoyed by the general population, as their movements are controlled by teachers and administrators (Milligan v. City of Slidell, 2000).
A court case in Alaska gives another view of juvenile justice given the state's definition of who carries the burden of proof in transferring a minor from the juvenile justice system to adult courts. In 1994, Alaska amended its juvenile justice provisions to include an automatic waiver law from their juvenile justice court to an adult court (May, 1998). The automatic waiver law removes from the protection of Alaska's juvenile justice system for children, without a judicial hearing, 16-17-year-olds who are charged with (a) a class A felony and a felony crime against a person; or (b) first degree arson. The removal of a minor from juvenile supervision causes the minor to be charged, prosecuted and sentenced in an adult court. The statute also provides that if a minor is convicted of an offense that would not originally trigger the waiver provision, the minor must prove, by a preponderance of the evidence, that he/she is amenable to rehabilitative treatment, which depends upon: the seriousness of the offense, the minor's history of delinquency, the probable cause of the delinquent behavior, and facilities available for treatment. But, the state must show that the minor cannot be rehabilitated by the age of twenty.
The ultimate result of the Alaska automatic waiver law and the burden-shifting provision is to entrust to the prosecutor substantial authority to determine a juvenile's proper jurisdiction (May, 1998). This determination continues to be influential even when judicial processes have determined that the evidence does not support it. The charges continue to influence disposition of the minor's case even where the minor is acquitted of the triggering charges. Critically, the state interest in automatic waiver cases also lies in the total discretion of the prosecutor to decide in which forum the minor will be adjudicated, eradicating the need for a judicial waiver hearing. The initial charging decision combined with a grand jury indictment determines whether the juvenile will be tried in adult court.
The lack of a meaningful judicial determination before transferring a minor to an adult court has caused some states to reject similar waiver or transfer provisions as unconstitutional. The Supreme Court of Delaware rejected the constitutionality of a state statute that provided for automatic transfer of children who had committed crimes as minors but who had reached the age of 18 prior to adjudication (May, 1998). The State High Court found the statute arbitrary and bearing no rational relationship to a legitimate government interest, because the prosecutor could exercise complete discretion in delaying a trial until the minor's 18th birthday. The Court determined that the lack of judicial review in the waiver process resulted in uncontrollable authority of the state to impose potential arbitrary charging decisions. Pursuant to the waiver statute, decisions are not made in public with reviewable judicial determination-taking into account a child's individual circumstances-but behind the closed door of the prosecutor's office (May, 1998).
If a juvenile is originally charged with an offense that would not trigger the waiver provision, the minor is presumed to be amenable to treatment under the Alaska's Delinquency Rules for Juveniles for the same lesser crime, the state bears the burden to have the juvenile placed in an adult court. However, California, in a similar situation shifts the burden of proof to the juvenile. The presumption against the juvenile merely serves to make it more difficult for the minor to get a hearing before a juvenile court, and reduces the state's responsibility at the waiver hearing. The minor can be returned to the juvenile system for sentencing if he or she is not convicted of the serious felony but is instead convicted of a charge that would not have triggered the waiver provision. However, to regain the benefits of juvenile treatment, the minor must demonstrate at a judicial hearing that he or she is amenable to treatment in juvenile rehabilitation programs. The burden then shifts to the minor to justify a return to the juvenile justice system; and for a child of color this burden could prove difficult.
The U.S. Supreme Court in Kent v. United States (1996) noted that the juvenile justice system was not providing young offenders with the same protection accorded adults nor the proper care designed for children. In Gault (1967), the Court held that juveniles were entitled to the same procedural due process protections accorded adults (the right to counsel; the right to notice of specific charges; the right to confront and cross examine witnesses; the right to remain silent; and the right to subpoena witnesses in defense). The Court expanded these protections further in Winship (1970) by requiring that guilt must be proven beyond a reasonable doubt in juvenile proceedings. But the Court in McKeiver v. Pennsylvania (1971) refused to extend the right to a trail by jury to juvenile proceedings; and later placed more restrictions on the constitutional rights of students on school property. The Court in Ingraham v. Wright (1977) held that excessive corporal punishment of students did not violate their Eighth Amendment rights and their procedural due process rights did not require a prepunishment hearing. The Court in New Jersey v. T.L.O. (1985) and Vernonia School District v. Acton reduced the constitutional protection of students against unreasonable searches and seizes.
In general, school police officers or school liaison officers have the right to search students without providing them with the constitutional rights afforded adults. If a school police officer directs, participates, or acquiesces in the search, based on reasonable suspicion, rather than probable cause, a police officer is not required to justify the search, if employed by the district School Board (Bough, 1999). The courts feel that once a school official has reasonable suspicion that a student is carrying a weapon he or she may perform the search without concerns about the student's Fourth Amendment rights. The courts distinguished searches for weapons as opposed to drugs because a school official or police officer needs only reasonable suspicion to conduct such a search.
Defense in an Adult Court
Can a minor perform a quality defense of his rights in an adult court? The following case will highlight some of the difficulties of such a case. Jamie Key (Jamie Key v. U.S., 2002) was found guilty of possessing narcotics with intent to distribute while legally a minor but was tried as an adult and convicted. He was assigned a court appointed attorney, as his defense counsel whom, he claimed, did not adequately represented him at trail. Key was incarcerated at the time under a multiyear sentence. He petitioned the court to vacate, set aside, or correct his sentence of 20 years under 28 U.S.C. (sec) 2255. His petition was denied.
At trial, a jury found Key guilty of ten counts of possessing heroin with intent to distribute in violation of 21 U.S.C. (sec) 841. Key was a minor at the time of his arrest, but he was tried as an adult and received a 20-year sentence. On appeal, the Seventh Circuit affirmed his conviction and sentence (U.S. v. Jarrett, 1998). Key asserted that his counsel incorrectly advised him that he could only be sentenced based upon the amount of heroin reflected in the indictment in which he was specifically named, and he was a juvenile when the crimes were committed. According to Key, his counsel stated that his offense level according federal sentencing guidelines would cause Key to serve about seven years in prison if found guilty. But, his counsel did not advise him that under U.S.S.G.
(sec)1B1.3(a)(1)(B) he would be liable for the entire amount of heroin sold during the course of the conspiracy, with a mandated 20 years in prison if found guilty. Key claimed that if he knew this information he would not have risked a jury trial, but would have entered into a plea bargain to the stipulated amount of heroin; and sought a three-point reduction for acceptance of responsibility under U.S.S.G. 3E1.1 (a) & (b). His counsel was ineffective because he incorrectly advised him about his sentence. But to establish that counsel provided ineffective assistance, Key had to demonstrate: (a) that his attorney's performance was deficient; and (b) that such representation prejudiced his case. The first prong is satisfied by a showing that counsel's performance fell below the "objective standard of reasonableness" guaranteed under the Sixth Amendment. To satisfy the second prong, he must show counsel's errors resulted in the unfair outcome of his trial or sentencing. Because counsel is presumed to have been effective by the court, Key bore a heavy burden in proving that counsel was ineffective. The court held that attorneys have a duty to inform their clients of a plea agreement offered by the prosecution but Key did not seek a plea, therefore no plea agreement existed. Key also asserted that his attorney never advised him of the value of a plea where Key would have resulted in 6.5 years instead of 20 years in confinement. Key did not meet the court's definition of ineffective counsel, which reveals how difficult it is for someone to correct a mistake or challenge the behavior at trail of an incompetent court appointed counsel. This lack of expert advice by Key's counsel added an additional 11 years in prison for a person who committed a nonviolent crime as a minor. As Clark observed in 1970, and little has changed in this area (Johnson, 1996), the law may not accord a poor youth his/her constitutional rights, but the law will not ignore the poor either. A major function of law enforcement is to preserve social order in a capitalist society by controlling the behavior of those in society lacking the basic needs of life. The groups that fit into this category in the United States are racial and ethnic minority families and their children.
The criminal statutes in this country are unfairly designed to control the delinquent behavior of juveniles from minority groups compared to the juveniles from the controlling hegemonic majority group. The children from minority group backgrounds are more likely to experience needs deprivation (poverty) and seek illegal means to meet those needs. Second, minority youths are monitored more closely by law enforcement agencies than majority youths. Third, certain legal statutes are harsher on the illegal behavior more common to minority youths than for offenses more common among majority youths. For example, more costly powder cocaine typically preferred by middle class majority youths carries less of a penalty if convicted of possession than relatively inexpensive crack cocaine more accessible to poor and minority youths.
One way to reduce this unequal treatment between poor minority children in school and majority children in general would be to eliminate poverty, which produces a greater need to get involved in delinquent behavior. The elimination of poverty seems impossible in a capitalist society. Therefore, we may assume that poverty will continue to exist and continue be pervasive for minority children. Yet, laws that heightened punishment for juveniles have resulted in producing more adult criminals. We argue that the best avenue is to teach information about the justice system as it relates to the Constitution (Johnson, 1996). More knowledge about our Constitution and justice system should motivate more children to obey the law and improve their chances of becoming productive citizens. Education policy makers should focus on advising schools that serve large populations of minority children to take measures to educate students, parents and communities about laws aimed at controlling juvenile behavior.
We recommend that schools find ways to integrate lessons about the criminal justice system into the curriculum. In predominately minority schools, it is more important to teach about the criminal justice system than to teach curricula units on drug abuse, or other related topics unless we teach how and why these topics interact with the criminal justice system. A curriculum unit on the criminal justice system may be included with a unit on the Constitution in order to give the Constitution greater meaning for the daily lives of students. Students will soon learn that the 41, 5611 8111, and 14th Amendments to the U.S. Constitution have different means for police officers, and the courts; and a similar conclusion may be drawn about state laws. We believe that once students and parents understand the criminal statutes and justice system they will be more knowledgeable in making discriminating decisions about their behavior. If they chose to involve themselves in illegal activities, they will be in a better position to defend them. Minority parents, then, can better gauge the impact of this knowledge on the possible future well being of their children. For example, parents may reflect on their delinquent behaviors when they were in school and conclude that similar behaviors today will get their children expelled, placed in a juvenile detention center or in jail. A felony committed by a student in school may contribute a strike towards a life sentence later under federal and state three strikes laws. If a student is convicted of a felony for illegal drug use, he/she will not be able to qualify for federal student loans as a college student; will not be able to find employment with a government agency; and may not be able to vote in state and federal elections. Parents should also understand that a felony conviction by their child for illegal drug use might result in the family's eviction from their home if they reside in federally funded public housing.
We recommend, delinquent schoolchildren should be first treated at school and secondly treated through the juvenile justice system, and in adult courts as the last option. A minor has an interest in being sentenced as a juvenile. Adult sentencing is significantly different from juvenile sentencing (May, 1998). As a juvenile, a minor is entitled to privacy, treatment, and leniency. Juveniles convicted as adults face harsher penalties and a permanent criminal record. Minors have little likelihood of rehabilitation when incarcerated with adult felons in prisons that lack suitable treatment programs. For school districts we recommend they place delinquents in alternative schools designed to return these students to regular schools as soon as possible; and for special education children we recommend that schools seek to correct their behavior through individual education programs as required by federal special education law.
A critical component of the curriculum for expelled or institutionalized in a juvenile detention center or jailed students should include a unit on the criminal justice system and the Constitution. This may be included in a civics course for middle grade students and a history course for high school students. States should consider mandating education in an alternative setting or with home instruction for students with long-term suspension or expulsion.
Alternative schools are used for students who cannot be adequately educated in regular schools because of delinquent behavior. Alternative schools prevent violence in the following ways: (a) these schools prevent offenders from roaming the streets; (b) they focus on the education of troubled students; and (c) they provide juveniles with an education to decrease future criminal behavior. Furthermore, alternative schools attempt to teach self-control, encourage a sense of community and provide proper counseling for this population of students (Beresh-Taylor, 2000). Each school district should implement crisis prevention and response teams, mediation and conflict resolution programs; and violence prevention should be comprehensive. In addition, because potentially violent students come from diverse backgrounds, schools must not target a particular group of students for treatment for violence behavior (Beresh-Taylor, 2000).
Finally, we recommend that schools institutionalize the dissemination and discussion of the law and citizenship in the United States at all grade levels. Even in kindergarten, it is important. For example, children living in public housing need to understand the perils of being associated with anyone dealing or using drugs. Besides harming these children, their association may cause their family to be evicted as tenants in federally funded public housing. These classes should produce a broad base discussion of the criminal justice system and growing up in America, make it easier to secure films and speakers on the subject, and make for a more critical analysis of the United State Constitution and laws. Ignorance of the law, as we have seen in this paper, is not allowed in courts, even for juveniles. We should inform our children about life in the same manner as we inform them about proper diets, physical conditioning, and harmful drugs. Jamie Key (2002), for a crime committed as a juvenile, discovered too late that ignorance of the law, even as a minor increased his prison sentence by 12 years. We encourage school systems and textbook companies to include extensive units on the criminal justice system as it relates to the Constitution. This suggestion goes hand in hand with this recommendation because textbook writers have a tremendous impact on what is taught in schools. We anticipate that if children discuss these topics in schools, they will more than likely carry on these discussions at home and in their communities. A multiplier effect will take place where students of color and their families will gain more knowledge about the criminal justice system and its impact on their lives. Finally, there is also strong evidence that children will continue to be incarcerated for criminal behaviors in the harshest way regardless of the reasons for such criminal behavior, including crime against poverty. Therefore, education becomes an important tool in reducing criminal behavior among school age children. For most children, school occupies their lives for six or seven hours a day, 180 days a year for 13 years. Schools are in the best position to education students on the bleak consequences of criminal behavior and immensely minimize such behavior (Johnson, 1996).
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Frank Brown, Charles J. Russo, and Richard C. Hunter
Frank Brown, Boshamer Professor of Education, Department of Educational Leadership, School of Education, University of North Carolina at Chapel Hill; Charles J. Russo, Panzer Chair in Education, School of Education and Allied Professions, University of Dayton; and Richard C. Hunter, Professor, Department of Educational Organization and Policy, College of Education, University of Illinois at Urbana-Champaign.…