*1268 B. Juvenile Dispositions and the School-to-prison Pipeline
1. Judicial Discretion Allows for Punitive Dispositions
The expansive reach of judicial discretion in the juvenile justice system likely contributes to the school-to-prison pipeline. Entrenched principles of parens patriae allow juvenile-court judges to address all of a delinquent student's needs, creating real possibilities that students will be sent to out-of-home placements for disciplinary infractions in schools. For example, a student arrested in school on a minor charge may be dealing with complex mentalhealth issues. In a case like this, a judge will often order mental-health evaluations that can lead the student to be placed in a treatment facility. The student may also have a judge "who wishes to address many problems through various types of services, thereby causing her to remain in a placement for months or even years."
In one such case, a twelve-year-old boy with emotional problems was arrested and routed into the juvenile justice system in Pennsylvania after he brought a toy pistol to school. The student was then held in a secure detention facility for over two months so that he could be "assessed." Although the boy's psychiatrist thought it was appropriate for him to be disciplined, she did not agree with the judge's decision to detain him because placement in the secure facility had interfered with the boy's mental-health treatment. This story is just one example of how broad uses of judicial discretion can contribute to the school-to-prison pipeline. The student was pushed out of his school for a relatively minor offense and held in a detention facility, supposedly in service of his best interests. Yet the out-of-home placement was not beneficial to the student--it was actually detrimental to his mental well-being.
There are certainly cases in which judicial discretion is used to combat the school-to-prison pipeline. For example, some judges reject referrals of emotionally disturbed children "who behave precisely as they are expected to behave." In one case, a Pennsylvania judge reprimanded a school district "for referring a fourteen-year-old girl with serious emotional problems to juvenile court for making threats to a teacher." The case was dismissed, and the judge noted that the disciplinary problem could have been handled more effectively through the student's Individualized Education Program. In this way, the *1269 judge used discretionary power to prevent the young woman from being placed in a facility that might interfere with her mental health. Still, judicial discretion remains dangerous because it allows for the opposite result. The judge easily could have taken a punitive approach and placed this student in a treatment facility.
Moreover, it seems that judges often feel pressure to detain students who are referred to the juvenile justice system for disciplinary infractions. In an online survey of juvenile-court judges, 40% of respondents felt that school officials encouraged the use of detention in status-offense cases, and 51% of respondents stated that law enforcement encouraged them to use detention. Furthermore, most states fully cover the costs of incarcerating juveniles in state facilities, but probation systems commonly operate at the local level and receive little if any state funding. This gives juvenile justice systems strong financial incentives to send students to out-of-home placements instead of providing communitybased programs. Judges may also believe that school administrators are likely to deal with minor infractions internally and that they only refer cases to juvenile courts when a serious infraction has occurred. As a result, judges may view the disciplinary cases that come before them as serious and impose penalties accordingly. Though it is difficult to generalize about judges' thought processes as they approach these cases, judges have the discretionary power to make these types of decisions.
2. Prior Records and Probation Violations Result in Tougher Sanctions
When students are first arrested for violating zero-tolerance policies, they frequently receive fairly minor punishments from juvenile courts, but they also begin to develop criminal records. If a student later returns to juvenile court on another charge, the prior offense will typically increase the sanction the student receives in the second instance. This pattern largely results from the design of juvenile sentencing guidelines, which typically place significant emphasis on prior offenses. For example, in Texas, a "child's subsequent commission *1270 of delinquent conduct or conduct indicating a need for supervision" makes it permissible for a judge to assign a student to one sanction level higher than the level the student would originally be assigned. Over time, this can lead to sanctions that are significantly more severe, even for offenses that are relatively minor on their own.
Empirical evidence confirms this trend toward increasingly punitive dispositions. A study of Minnesota juvenile courts found that after controlling for the type of offense, juveniles with longer prior records tended to receive more severe dispositions. The largest increase in the severity of disposition occurred "between those juveniles with one or two prior referrals and those with three or four." Moreover, among juveniles appearing in court for the third or fourth time, 52.9% were removed from home, and 39.9% were confined. Thus, initial school referrals to the juvenile justice system can have detrimental effects for students because judges are likely to impose harsher penalties if students are arrested again for committing additional offenses.
Furthermore, even when judges do not initially send students to out-of-home placements, dispositions that impose probation often lead students to juvenile detention. Many courts give students probation for school disciplinary infractions such as truancy or fighting. If a student then violates any probationary terms, the judge may use her discretionary power to put the student in an out-of-home placement.
A significant number of young people end up in detention for violating probationary terms. In 2010, for example, 22% of detained juveniles were held for violating probation or parole, and 14% of committed juvenile offenders were incarcerated for probation or parole violations. It seems probable that at least some of those young people (if not a substantial number of them) were detained for violating probationary terms imposed for zero-tolerance infractions in schools.
In cases where probationary terms have been violated, judicial discretion has the potential to produce positive outcomes for court-involved youth and obstruct the school-to-prison pipeline. A technical violation of probationary terms should signal to the judge that sanctions previously imposed were not adequately serving the needs of the individual youth. Instead of focusing on retributive justice and imposing an out-of-home placement, the judge should use *1271 her discretion to craft new remedies that will better serve the young person's needs. This is the rehabilitative model that lies at the core of parens patriae.
Moreover, the benefits of the rehabilitative approach are clear. Research shows that out-of-home placements are generally ineffective in rehabilitating youth and often lead to high rates of recidivism. Imposing detention may lead students to become involved in continued patterns of misbehavior, engage in increasingly serious offenses, and even end up in prison. In most cases, a student would be better served by a community-based intervention program that focuses on reducing recidivism and rehabilitating the offender. Yet judges often send youth to out-of home placements for violating probation, rather than attempting to remedy the real problems that the young people face. The advantages of the rehabilitative model have been obfuscated in recent years by statutory changes and guideline systems that emphasize formality, incapacitation, and punishment.
3. Youth of Color Are Disproportionately Detained
Evidence also suggests that racial disparities persist at the disposition phases of juvenile delinquency cases, making students of color even more prone to the negative effects of zero-tolerance policies and the school-to-prison pipeline. In the Florida study discussed above, 31% of nonwhite youths were incarcerated or transferred at judicial disposition, compared to only 18% of white youths. Because of the cumulative effects of higher rates of formal processing, young people of color comprised 44% of those who were incarcerated or transferred, despite making up only 21% of the population initially processed. If this trend is combined with the disproportionate rates at which students of color are referred to juvenile justice systems through zero-tolerance policies, it seems that the proportions are likely even more stark. Moreover, it appears that the disproportionate incarceration of young people of color has increased in recent years. In 2001, youth of color made up 60.3% of youth in confinement nationwide, but they made up 67.6% of youth in confinement in 2010.
These patterns likely stem from juvenile justice systems embracing stereotypes about the capabilities of minority families and communities. Qualitative interviews have demonstrated that "black family systems generally tend to be *1272 perceived in a more negative light, that pre-disposition reports give disproportionate attention to assessments of family situations, and that judges rely heavily on pre-disposition reports in reaching dispositional decisions." Accordingly, if a black student is referred to the juvenile justice system for violating a zerotolerance policy, there is a good chance that the intake officer will view the student's family as unable to help the student rehabilitate. The intake officer is then likely to recommend harsher sanctions for that student in the predisposition report, and the judge is likely to give significant weight to that recommendation. In these ways, it seems that negative (and potentially inaccurate) perceptions of black families play an active role in moving students of color toward juvenile detention and long-term involvement with the juvenile and criminal justice systems.