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Is There a National Trend Toward Treating Children as Children?

By Bryn Martyna

9ab96ebbdaThere are signs that states, cities, and school districts throughout the country are questioning the wisdom of funneling children into the adult criminal justice system, and treating school-related misbehavior as criminal. This seems to be part of a broader movement towards treating children as children, and responding to their behavior accordingly. Multiple forces appear to have prompted this trend, including research on children’s capacity to change and recognition of the ineffectiveness of harsh punishment.

Scientific Research on Adolescent Brain Development

There is now a wealth of research on the development of the adolescent brain, and increasing awareness of that science. Research has shown that “the brain is a good deal more plastic or changeable than we once thought” and confirmed that critical “structural changes are taking place well into adolescence and beyond.”1

The U.S. Supreme Court has begun taking this neurological research into account in juvenile justice cases. In the 2012 case Miller v. Alabama, the court referred to adolescents’ “diminished culpability and heightened capacity for change” in deciding to bar mandatory life sentences without the possibility of parole for those who committed their crimes before the age of 18.2

In the wake of that decision, a number of states have made changes to their laws to keep young offenders in the juvenile system. For example, in their first legislative session since Miller, California, Wyoming, and Delaware passed legislation that completely removed life without parole as a sentencing option for youth.3 Other states have taken various approaches, including modifying laws regarding transfer to adult court, changing mandatory minimum sentencing for youth charged as adults, and broadening the power of the juvenile courts.4

A recent report by the Campaign for Youth Justice (CFYJ) documented the extent of this movement to keep juveniles in the juvenile justice system.5 According to the report, over the past eight years, 23 states have enacted 40 pieces of legislation to reduce the prosecution of youth in adult criminal courts and end the placement of youth in adult jails and prisons. The authors of the report see this as a moment when there is a real opportunity for reform. “States are recognizing that youth have developmental differences from adults as well as great potential for rehabilitation, both of which should be taken into account in sentencing,” said Jessica Sandoval, CFYJ’s vice president.6 However, the extent of the trend should not be overstated. The report notes that half the states have not yet undertaken reforms at all, including Florida, New York, Wisconsin, North Carolina, and the District of Columbia.7

Similarly, so-called “zero tolerance” school discipline policies have been criticized for failing to take into account “recent research on adolescent brain development that mischief is a foreseeable derivative of adolescence.”8 Zero tolerance refers generally to school policies and practices that mandate “the application of predetermined consequences, most often severe and punitive in nature” that are to be imposed regardless of the individual circumstances.9 This includes mandatory suspensions or expulsions as well as referrals to the criminal justice system for school-related misbehavior that used to be dealt with at school.

In part because of the recognition that zero tolerance is in “conflict to some degree with current best knowledge concerning adolescent brain development”10, some schools are turning away from punitive and rigid zero tolerance policies and towards using positive approaches to conflicts or misbehavior at school: restorative justice and PBIS (positive behavior intervention and support).11 In the school setting, restorative justice programs use a collaborative approach to addressing infractions. There are often circles in which youth talk without interrupting and share their perspective and experience, followed by a group effort to generate ideas of how the wrongdoer can make up for the harm he or she has caused. Relatively new restorative justice programs in school districts in Oakland, Chicago, Denver, and Portland, Ore. are popping up. This approach “tries to nip problems and violence in the bud by forging closer, franker relationships among students, teachers and administrators. It encourages young people to come up with meaningful reparations for their wrongdoing while challenging them to develop empathy for one another.”12 It is showing promise. A two-year study of a pilot restorative justice disciplinary program in West Oakland showed that suspensions declined by 87 percent and expulsions declined to zero when the restorative justice program was used in place of the school’s zero tolerance disciplinary program. 13

Questioning the Effectiveness of Punishment

The move away from shunting juvenile offenders into the adult system also comes from a more practical recognition that extremely punitive policies are generally ineffective and costly. Similarly, zero-tolerance policies have not improved school safety, while having significant negative effects.

In the 1980s and 1990s, many states enacted harsh laws making it easier for youth to be prosecuted in adult criminal courts. According to the recent Campaign for Youth Justice report there are still too many children in the adult criminal justice system, an estimated 250,000 in adult court every year, and nearly 100,000 youth placed in adult jails and prisons each year.14

Around the same time, in the mid-1990s, the zero-tolerance approach to school discipline began with the federal Gun Free Schools Act (1994), which mandated that schools expel students found with firearms or lose federal funding. As this law was implemented throughout the country, zero-tolerance policies varied considerably from district to district, and many districts frequently extended zero tolerance well beyond the federal requirements. Some of the most egregious examples of these policies gone awry caught the public eye — such as the 10-year old girl who was expelled for having a knife in her lunchbox that her mother had put in to cut her apple — but the problems with zero tolerance ran far deeper than the extreme cases.

As these laws and policies were in effect over many years, research began revealing their flaws. It became evident that they were not effective, either in terms of safety or reduction in crime or disruptive behavior. With respect to putting children in the adult criminal justice system, research has shown that youth are more likely to re-offend when prosecuted in adult criminal court.15 “Research shows that past policies didn’t work to increase public safety or reduce juvenile crime,” according to Carmen Daugherty, policy director for CFYJ. “We now have more evidence on what does work to reduce juvenile crime, which is rehabilitation and treatment over incarceration. Public opinion strongly favors rehabilitation and treatment over incarceration and judicial review over automatic prosecution in adult court.”16 Similarly, research on zero-tolerance policies has found little evidence supporting its effectiveness. For example, there is no correlation between stricter security measures and reductions in school violence or students’ perceptions of school violence.17

The Unintended Negative Side Effects of These Policies

Not only have these approaches been ineffective, both have had negative ripple effects. Research on zero-tolerance policies has shown that harsher punishments may actually increase criminal behavior by invoking a “go for broke” mentality in students; if they know they will be suspended or expelled without question, they will try to commit the most severe form of the offense, or commit additional offenses in addition to their initial act.18

Zero tolerance has become notorious for its disproportionate impact on minority students. This continues to be widely documented, most recently by an ACLU report on Pennsylvania schools. The report aggregates data from across the state for all major forms of school discipline for the first time, and clearly shows a dramatic disparity in the treatment of black and Latino students and students with disabilities.19 Zero tolerance policies also lead to more students being arrested or referred to court; nationwide, more than 70 percent of those students are black or Hispanic, according to federal data.20 These stark disparities are prompting some districts to turn away from zero tolerance. For example, Broward County, Fla., “entered into a wide-ranging agreement last month with local law enforcement, the juvenile justice department and civil rights groups like the N.A.A.C.P. to overhaul its disciplinary policies and de-emphasize punishment.”21

It is also well documented that minority youth are disproportionately funneled into the adult criminal justice system. African American youth are 13 percent of the juvenile population, but 40 percent of those transferred to adult prison.22 In California, which recently eliminated life without possibility of parole sentences for juveniles, a 2008 Human Rights Watch publication found “[e]ighty-five percent of youth sentenced to life without parole are people of color, with 75 percent of all cases in California being African American or Hispanic youth. African American youth are sentenced to life without parole at a rate that is 18.3 times the rate for whites.” 23

As Michelle Alexander, law professor and author of “The New Jim Crow: Mass Incarceration in the Age of Colorblindness” has pointed out, it is not just the inequity and injustice of this situation that is prompting change; there are also very practical financial pressures.24 The policy of transferring youth to the adult criminal justice system ended up costing state and local governments significantly more than if they tried to keep youth in the juvenile system. In this era of fiscal crises at all levels of government, this provides another practical reason to keep youth in the juvenile justice system. For example, in Illinois, a report of a state advisory group found that there was a “net fiscal benefit” in sending youth, even those who committed a felony, to juvenile court instead of adult court.25 Based on that and other findings, Illinois passed a law to raise the age of juvenile court jurisdiction to 18 in July 2013.26

Practical considerations have similarly prompted school districts to turn away from zero tolerance. Schools are realizing that the policy undermines their purpose as educators. “A knee-jerk reaction for minor offenses, suspending and expelling students, this is not the business we should be in,” said Robert W. Runcie, the Broward County Schools (Florida) superintendent. “We are not accepting that we need to have hundreds of students getting arrested and getting records that impact their lifelong chances to get a job, go into the military, get financial aid.”27

Looking Forward

Advocates have reason to be hopeful about these trends. According to Michael Harris, senior attorney at NCYL, “For years punitive policies have been foolishly imposed on young people, both in juvenile justice and in education.  Finally, the pendulum is beginning to swing the other way.  We are now seeing policies that are based on empirical research once again treating teenagers like teenagers.” At the same time, there is a long way to go until all states and localities treat youth appropriately given their developmental stage and capacity for change. Punitive policies have been shown to be ineffective, costly, and often counter-productive or even harmful. The momentum of the states, counties, and cities that are trying new approaches may be enough to bring others along. And as these new approaches garner their own body of research, if they are shown to be effective, there will be a clear path for others to follow.


Bryn Martyna is a former Skadden Fellow and staff attorney at the National Center for Youth Law. She now works for the Wisconsin Supreme Court in Madison, Wisconsin.


  1. Sarah Spinks. Adolescent Brains Are a Work in Progress, PBS/Frontline, accessed December 20, 2013, available at: www.pbs.org/wgbh/pages/frontline/shows/teenbrain/work/adolescent.html
  2. 132 S. Ct. 2455 (2012).
  3. Kelly Orians, One Year Later: State Level Response and Implementation of Miller v. Alabama, Youth Law News, Vol. XXXII, No. 3, July-Sept. 2013.
  4. John Schwartz, A Bid to Keep Youths Out of Adult Prisons, New York Times, Oct. 29, 2013.
  5. Daugherty, Carmen, State Trends: Legislative Victories from 2011-2013 Removing Youth from the Adult Criminal Justice System, Washington, DC: Campaign for Youth Justice (2013).
  6. Campaign for Youth Justice, Press Release, New Report Shows Nearly Half of States Moving Away from Prosecuting, Detaining, and Sentencing Youth in the Adult Criminal Justice System, October 10, 2013.
  7. Daugherty, Carmen, State Trends: Legislative Victories from 2011-2013 Removing Youth from the Adult Criminal Justice System, Washington, DC: Campaign for Youth Justice (2013).
  8. Teske SC, A study of zero-tolerance policies in schools: a multi-integrated systems approach to improve outcomes for adolescents, Journal of Child and Adolescent Psychiatry and Nursing, May 2011.
  9. American Psychological Association Zero Tolerance Task Force, Are Zero Tolerance Policies Effective in the Schools?, American Psychologist, Vol. 63, No. 9, 852-862 (December 2008).
  10. Id.
  11. Although this article focuses on restorative justice, PBIS is also taking hold as an alternative to zero tolerance. For more on PBIS, see www.pbis.org
  12. Patricia Leigh Brown, Opening Up, Students Transform a Vicious Circle, New York Times, April 3, 2013.
  13. School-based Restorative Justice as an Alternative to Zero Tolerance Policies: Lessons from West Oakland, U.C. Berkeley School of Law, Thelton E. Henderson Center for Social Justice (November 2010).
  14. Daugherty, Carmen, State Trends: Legislative Victories from 2011-2013 Removing Youth from the Adult Criminal Justice System, Washington, DC: Campaign for Youth Justice (2013).
  15. Center for Disease Control and Prevention, Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult System (2007).
  16. Campaign for Youth Justice, Press Release, New Report Shows Nearly Half of States Moving Away from Prosecuting, Detaining, and Sentencing Youth in the Adult Criminal Justice System, October 10, 2013.
  17. American Psychological Association Zero Tolerance Task Force, Are Zero Tolerance Policies Effective in the Schools?, American Psychologist, Vol. 63, No. 9, 852-862 (December 2008).
  18. Id.
  19. New Study Looks at Impact of ‘Zero Tolerance’ Practices in Pennsylvania Schools, Dignity in Schools Blog, November 15, 2013.
  20. Lizette Alvarez, Seeing the Toll, Schools Revise Zero Tolerance, New York Times, December 2, 2013.
  21. Id.
  22. National Conference of State Legislators, Disproportionate Minority Contact, Juvenile Justice Guidebook for Legislators.
  23. Human Rights Watch, When I Die, They’ll Send Me Home: Youth Sentenced to Life Without Parole in California (2008).
  24. See Bill Moyers Interview with Michelle Alexander, December 20, 2013, available at: billmoyers.com/segment/michelle-alexander-locked-out-of-the-american-dream/
  25. Illinois Juvenile Justice Commission, Raising the Age of Juvenile Court Jurisdiction, (2013).
  26. Daugherty, Carmen, State Trends: Legislative Victories from 2011-2013 Removing Youth from the Adult Criminal Justice System, Washington, DC: Campaign for Youth Justice (2013).
  27. Lizette Alvarez, Seeing the Toll, Schools Revise Zero Tolerance, New York Times, December 2, 2013.
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