Harvard Law & Policy Review

criminal justice

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Dismantling the School-to-Prison Pipeline: South Florida’s Approach

By Jeremy Thompson[1]

The U.S. incarceration rate has increased 700% since 1970.[2] As a result, the U.S. has the highest prison population in the world.[3] In the U.S., only 12% of the population is Black.[4] Yet, despite living in a “post-racial,” “colorblind” society,” 38% of the prison population is composed of Blacks.[5] Part of this disparity stems from the disparate impact of zero-tolerance policies in school discipline. These policies were influenced by the fear of the media-driven “Black super predator;” the War on Drugs; three strikes laws; and school shootings.[6] Similar to police officers’ implicit biases in the justice system, the implicit biases of teachers in schools is a primary reason why Black students are suspended and arrested at a rate two times greater than White students for the same offenses.[7] The disparate impact of zero-tolerance policies has created a pipeline from school to prison. Suspension, expulsion, and arrest are often the first steps in a chain of events that lead to academic disengagement and delinquency.[8] This phenomenon is recognized as the “School-to-Prison Pipeline,” which is a collection of punitive laws, policies, and practices that push young people, particularly Black students, out of school and into the justice system.[9]

Over the past several years, several school districts in the U.S. have had positive outcomes as a result of replacing zero-tolerance policies with restorative justice policies. After eliminating zero-tolerance policies for petty acts and misdemeanors and adopting restorative justice policies, Broward County Public School District (“Broward County”), the sixth largest school district in the U.S., and Miami-Dade County Public School District (“Miami-Dade”), the fourth largest school district in the U.S., dramatically increased graduation rates and decreased arrests and suspensions.[10] Both school districts are models for school districts wishing to eliminate the School-to-Prison Pipeline.

In 2009, Florida amended its zero-tolerance statute, which gave school districts the option of softening its zero-tolerance policies for petty acts of misconduct and misdemeanors.[11] As a result, Broward County and Miami-Dade decided to adopt restorative justice disciplinary policies for petty acts of misconduct and misdemeanors. Broward County created the Preventing Recidivism through Opportunities, Mentoring, Interventions, Supports, and Education Program (“PROMISE”).[12] Promise is an alternative to a suspension program.[13] Promise is one part of a collaborative agreement between the Seventeenth Judicial Circuit; Broward County’s Public Defender’s Office, Sheriff’s Office and Prosecutor’s Office; the NAACP; the Florida Department of Juvenile Justice; the Juvenile Justice Advisory Board; and the Fort Lauderdale Police Department.[14] Promise’s goal is to prevent students from entering the justice system. Instead of school suspensions or arrests for incidents such as theft, trespassing, drug possession, or disorderly conduct, students are sent to a designated education center where they receive counseling, behavioral services, and the opportunity to make-up school work.[15] Students leaving Promise return to school with a success plan. 90% of students who complete Promise do not reoffend.[16] Since its implementation in 2013, Broward County’s arrest rates decreased from 909 in the 2012-13 school year to 469 in 2014-15 school year.[17] Additionally, since 2009, Broward County’s graduation rate has increased by 3%. For the 2015-16 school year, more than 79% of Broward County students graduated.[18]

Miami-Dade also changed its disciplinary policies. Miami-Dade implemented a behavior support system into its student code of conduct.[19] This system uses data to identify students’ needs and monitors students’ progress. This system requires teachers and school officials to use restorative measures before referring students for arrest, suspension, or expulsion.[20] In 2014, Miami-Dade also created “Success Centers.”[21] Success Centers are establishments that suspended students are required to attend. In the Success Centers, students receive therapy and are also required to complete schoolwork. Since 2009, Miami-Dade reduced school related arrests by 69%.[22] Since 2005, Miami-Dade decreased outdoor suspensions by 44%. Thanks to these changes, in the 2015-16 school year, more than 80% of Miami-Dade students graduated (Miami-Dade’s highest graduation rate ever).[23]

The success that Miami-Dade and Broward County have experienced demonstrates that school districts can implement policies to eliminate the School-to-Prison Pipeline. School districts should focus on creating policies that limit the implicit biases schoolteachers have and on establishing programs that can help students. The statistics show that restorative justice policies decrease arrest rates and increase graduation rates. By adopting programs similar to Miami-Dade and Broward County, other school districts can help eliminate the School-to-Prison Pipeline and decrease the disparate incarceration rates in the U.S.

 

 

            [1] Jeremy Thompson recently graduated from Florida International University (“FIU”) College of Law in 2016. At FIU, Jeremy served as the National Black Law Students Association’s Director of Education and Career Development. He is now an Honors Attorney at the U.S. Department of Justice, Executive Office For Immigration Review. Jeremy is also an adjunct at Nova Southeastern University Shepard Broad College of Law.

            [2] ACLU, Overcrowding and Overuse of Imprisonment in the United States, Submission to the Office of the High Commission for Human Rights, http://www.ohchr.org/Documents/Issues/RuleOfLaw/OverIncarceration/ACLU.pdf (last visited January 28, 2017).

            [3] Id.

            [4] Eric Kayne, Census: White majority in U.S. gone by 2043, U.S. News, https://usnews.newsvine.com/_news/2013/06/13/18934111-census-white-majority-in-us-gone-by-2043 (last visited December 23, 2016).

            [5] E. Ann Carson, Ph.D, Prisoners in 2013, U.S. Department of Justice Bulletin, (https://www.bjs.gov/content/pub/pdf/p13.pdf).

            [6] Jeremy Thompson, Eliminating Zero-Tolerance Policies in Schools: Miami-Dade Public School’s approach, 2016 BYU Educ. & L.J. 325, 331 (2016).

            [7] Id. at 330, 333.

            [8] Id. at 333.

            [9] Id. at 331.

            [10] Caitlin R. McGlade, Graduation rates are up in Palm Beach, Miami-Dade and Broward, Sun Sentinel, http://www.sun-sentinel.com/news/education/fl-graduation-rates-20161219-story.html (last visited December 23, 2016); David Smiley and Michael Vasquez, Broward, Miami-Dade work to close the ‘school-to-prison pipeline’, Miami Herald, http://www.miamiherald.com/news/local/community/miami-dade/article1957319.html (last visited January 28, 2017).

            [11] Fla. Stat. § 1006.13 (amended 2009). Fla. Stat. § 1006.13 (2006) http://archive.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch1006/SEC13.HTM&Title=-%3E2006-%3ECh1006-%3ESection%2013#1006.13 (last visited Dec. 23, 2016).

            [12] Sammy Mack, Interview: Rethinking Zero Tolerance Discipline Policies In Florida Public Schools, State Impact, https://stateimpact.npr.org/florida/2014/01/26/interview-rethinking-zero-tolerance-discipline-policies-in-florida-public-schools (last visited December 23, 2016).

            [13] Robert W. Runcie, Eliminating the School-to-Prison Pipeline, http://www.browardprevention.org/wp-content/uploads/sites/89/2016/07/SY-2016-Eliminating-School-to-Prison-Pipeline.pdf (last visited December 23, 2016).

            [14] Id.

            [15] Id.

            [16]Christina Veiga, As school year starts, Miami-Dade rolls our new approach to student discipline, Miami Herald, http://www.miamiherald.com/news/local/education/article31934748.html (last visited January 28, 2017).

            [17] Runcie, supra note 13.

            [18] McGlade, supra note 10.

            [19] Thompson, supra note 6, at 343.

            [20] Id.

            [21] Marsha Halper, Troubled Miami-Dade students finding success amid suspensions, Miami Herald, http://www.miamiherald.com/news/local/education/article36755190.html (last visited December 23, 2016).

            [22] Thompson, supra note 6, at 346.

            [23] McGlade, supra note 10.

Disclaimer: the views, thoughts, and opinions expressed in the text belong solely to the author, and not necessarily to the author’s employers.

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ALEX WHITING: Through Actions and Words, President Obama has Promoted Criminal Justice Reform

President Obama’s eight-year term as President has corresponded almost exactly with a dramatic change in the national conversation about criminal justice. After decades of a tough on crime political consensus in this country, sentiment has shifted during the Obama years towards a recognition of the problems of mass incarceration and racial injustice in our criminal justice system. To be sure, some advocates were at this place all along, while others arrived at it from both the left and right for a variety of reasons, whether moral, financial, ideological, political, criminological, or pragmatic.

President Obama’s role in this debate has been important but also necessarily limited. Only about 10% of the nation’s approximately 2.3 million prisoners are in the federal system, and therefore the problems of mass incarceration and racial bias are primarily state issues. Moreover, criminal justice in the federal system is largely an issue for the Attorney General, who enjoys considerable independence from political actors, including the President. Finally, even the political consensus surrounding criminal justice has not always been able to overcome the political stalemate that is Washington, and therefore the President has not always been able to push criminal justice reform through Congress.

Nonetheless, Obama succeeded in making criminal justice reform a priority of his presidency, and he used tools at his disposal, as well as his national voice, to effectuate change and to shape the conversation about criminal justice.

On the legislative front, Obama’s biggest achievement was the Fair Sentencing Act of 2010, which reduced the sentencing disparity between crack and powder cocaine. The war on crack was a critical component of the tough on crime era, but in time the harsh penalties for crack came to be seen as excessively punitive and racially discriminatory.

Much of the criminal justice work in the Obama administration was spearheaded by Eric Holder, Obama’s Attorney General during the first six years of his presidency. In 2013, Holder launched a “Smart on Crime” initiative which sought to focus prosecutions on the most serious cases, enhance strategic thinking in investigations and prosecutions, adjust charging and sentencing practices to encourage greater use of discretion, and improve re-entry programs. Specifically, Holder instructed federal prosecutors to seek mandatory minimum sentences only when warranted by the facts of the specific case. The Department of Justice’s (DOJ’s) Civil Rights Division has also played an important role investigating police departments under its pattern and practice authority, as well as targeting fees and fines and bail practices that unfairly disadvantage poor people and people of color. Finally, the DOJ’s Office of Justice Programs has sought to fund criminal justice reform initiatives at the state and local level. In particular, the Justice Reinvestment Initiative seeks to assist states to identify ways to save money in the criminal justice system and reinvest the funds in evidence-based programs to increase public safety. In this way, the DOJ can promote and shape reform efforts beyond the federal sphere.

President Obama also used his executive powers to advance criminal justice goals. He ended solitary confinement for juveniles in federal facilities, banned the “box” requiring disclosure of criminal records on federal job applications, and tightened background checks for gun purchases. In 2014, he created the President’s Task Force on 21st Century Policing to study policing across the country, develop best practices, and make recommendations. Obama also used his clemency authority robustly in the last years of his presidency, granting relief to 944 prisoners sentenced to terms of incarceration that far exceed what we would impose today.

Finally, the President sought to shape the national discourse through speeches and White House roundtable discussions on criminal justice reform. In 2015, he became the first sitting President to visit a federal prison. These interventions have promoted frank discussion about the problems of policing, mass incarceration, and racial inequity.

In all of these ways, the Obama administration pushed forward criminal justice reform, despite the federal government’s limited role in law enforcement. Perhaps even more importantly, through its actions and words, the administration has helped promote and shape a national conversation about the need for reform. This may ultimately be the President’s lasting legacy, as it has become clear that a sustained political commitment is required to tackle the problems of our current criminal justice system. Now that Donald Trump has been elected to succeed Obama, there will no longer be this commitment in the White House. Reformers will need to concentrate even more intensely on the state and local level, where the core of the problems exist, in order to achieve progress.

Alex Whiting
Professor of Practice
Harvard Law Schol

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UPCOMING EVENT: Obama Legacy Symposium

In collaboration with ACS, DOS Grant Fund, and others, we bring you…

Ron Klain: The Economy & Ebola

Monday, November 14 at 12 p.m. in WCC B015

Serving as the “Ebola Czar,” chief of staff to VP’s Biden and Gore, and top debate prep advisor to a number of Democratic Presidential nominees are just a few of Ron Klain‘s many claims to fame in the political world. In Klain’s talk, he will discuss how President Obama made major domestic policy decisions, drawing on his experience overseeing implementation of the Recovery Act, serving as the Ebola Response Coordinator, and working in the VP’s office. Lunch will be served.

Ann Ravel: Campaign Finance

Wednesday, November 16 at 12 p.m. in Pound 101 

Federal Election Commission Director Ann Ravel, in conversation with HLS Professor Charles Fried, will discuss campaign finance reform through the heated election season, her work on a split and deadlocked FEC, her previous work as Deputy Assistant Attorney General for Torts and Consumer Litigation, and challenges for the future. Lunch will be served.

Jody Freeman: The Environment

Thursday, November 17 at 12 p.m. in B015

HLS’s Jody Freeman, former Counselor for Energy and Climate Change in the Obama White House, will discuss the President’s efforts to protect the environment and the challenges ahead. Professor Freeman served in the White House in 2009-10, where she was the architect of the president’s historic agreement with the auto industry to double fuel efficiency standards, launching the administration’s greenhouse gas program under the Clean Air Act. Lunch will be served.

RETROBAMA Blog Series

We’ve recruited the top experts, advocates, and administrators to share their thoughts on the President’s legacy on our blog in the coming weeks.

Here’s a sneak peek of what’s in store…

  • HLS Professor Alex Whiting will write on the President’s efforts to reform the criminal justice system
  • Chairman of the Legal Services Corporation John Levi on Obama and access to justice
  • HLS Professor Laurence Tribe on change and the man (Obama) himself
  • Commodity Futures Trading Commission Chairman Timothy Massad on efforts to bolster the economy
  • Jeff Zients, Director of the National Economic Council and Assistant to the President for Economic Policy, on responses to the economic recession

… but check our blog daily for some surprise posts from top administration officials and others.

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On Racial Bias and Police Shootings

By Simon Hedlin*

More than a hundred blacks have been shot and killed by the police this year. According to data compiled by The Washington Post, nearly 600 individuals have died in police shootings in 2016. About half of those killed were ethnic minorities, and blacks were more than twice as likely to be fatally shot as whites. The disproportionate police violence against blacks raises the question of whether, and to what degree, law enforcement discriminates against African-Americans in its use of lethal and non-lethal force.

New research indicates significant racial bias in law enforcement’s use of non-lethal force against racial minorities. In a paper released last month by the National Bureau of Economic Research, Roland Fryer of Harvard University investigated the existence of racial bias in the use of force among police officers. When Fryer looked at non-lethal use of force by the police, such as slapping or grabbing, there were substantial racial disparities. Accounting for more than 125 variables—including factors related to the behavior of the civilian and the context of the interaction between the civilian and the officer—Fryer found that blacks and Hispanics “are more than fifty percent more likely to have an interaction with police which involves any use of force.” What this result means is that in any given interaction between a civilian and a police officer, racial minorities are more likely to encounter non-lethal force. This finding lends clear support to the notion that a significant number of law enforcement officers discriminate against racial minorities—at least when it comes to use of non-lethal force.

Strikingly, however, when Fryer looked specifically at police shootings, the significant racial bias faded. He writes:

To be clear, the empirical thought experiment here is that a police officer arrives at a scene and decides whether or not to use lethal force. Our estimates suggest that this decision is not correlated with the race of the suspect.

In other words, Fryer’s data suggests that there is racial bias in the police use of force, but not when it comes to police shootings specifically. Since the data that he used for this specific examination come from a limited number of cities that represent merely four percent of America’s population, there could be important differences across cities that he did not take into account. The study cannot shed light on whether officers that serve in the communities that constitute the remaining 96 percent of the country do, in fact, exhibit racial bias in police shootings.

But other pieces of evidence support Fryer’s account. In a recent article in the journal Injury Prevention, Ted Miller of the Pacific Institute for Research and Evaluation in Maryland presents with his co-authors different data on police violence. Miller and co-authors found that about 1 in 291 arrests or police stops “resulted in hospital-treated injury or death of a suspect or bystander.” This rate did not vary based on ethnicity or race. In an interview, Miller summarized their results as follows:

What this study says is that it doesn’t matter what your race is when you’re in a stop and frisk situation or arrest situation with a police officer. Your chance of being injured or killed is the same regardless of race – it’s equally dangerous for everyone.

A new report by the Center for Policing Equity, a think tank, presents similar findings. Phillip Atiba Goff of John Jay College of Criminal Justice and co-authors gathered data from 12 law enforcement departments around the country. When they looked at racial disparities, they found no statistically significant difference in the average use of lethal force per arrest between black and white arrestees.

So, what do these findings mean for policymakers seeking to reduce police shootings of civilians in general and of racial minorities in particular? Ronald Weitzer of George Washington University points to the importance of diversifying police departments to make them better represent the local communities that they serve. Coupled with rigorous sensitivity training, this could help reduce discrimination against ethnic minorities. But if Fryer, Miller, and Goff are correct, these measures would primarily affect the use of non-lethal force; they would not be sufficient to tackle the overrepresentation of black fatalities in police shootings.

Importantly, the primary cause of racial disparities in officer-involved shootings appears to be not what happens during a given interaction, but that the interaction occurs in the first place. A report issued in July by the Blue Ribbon Panel on Transparency, Accountability, and Fairness in Law Enforcement in San Francisco supports this conclusion. It found that roughly 40 percent of the victims in police shootings in the city from January 2010 through July 2015 were black (even though African-Americans make up less than six percent of San Francisco’s population). Notably, this racial disparity in police shootings closely tracks the racial disparity in arrests; official data for 2005-2014 shows that 43 percent of all arrests in the city were of black individuals. This pattern can also be observed at a national level. As Sendhil Mullainathan, also of Harvard University, discussed last year, 31.8 percent of police-shooting victims across America were African-American—as were 28.9 percent of arrestees.

To make a substantial dent in police killings of blacks, it therefore appears that the number of civilian-police interactions must first be decreased. As Conor Friedersdorf emphasized in an article for The Atlantic, significant progress would be made simply by reducing unnecessary interactions during traffic stops. The aforementioned research indicates that reducing the number of arrests and police stops would save many lives, particularly the lives of ethnic minorities.

Yet, racial disparities in police shootings is not an issue for law enforcement alone to solve. It is true that many arrests and police stops (which are precursors to police shootings) appear to be driven by bias—as the Justice Department, for instance, found in its recent investigation into the Baltimore Police Department, concluding that blacks are subject “to disproportionate rates of stops, searches and arrests.” But that is not the whole story.

Mullainathan further notes that “the police are at least in part guided by suspect descriptions. And the descriptions provided by victims already show a large racial gap: Nearly 30 percent of reported offenders were black.” So, to the extent that racial bias is to blame for the disproportionate number of African-Americans killed by the police, it is likely that it is a systemic problem existing at a societal level, not just at a police department level. Eliminating the overrepresentation of blacks killed by law enforcement will thus require more than merely combatting prejudice among individual officers.

* Simon Hedlin is a 1L at Harvard Law School and a contributor to The Economist. He can be reached on Twitter: @simonhedlin