Going too far: Where the Americans go we should fear to tread

Lawyers, Guns and Money is one of my favourite American political blogs. It touches on politics, gender relations and defence and strategic studies issues, all of which are fascinating to me.

There is a recent post entitled "The Police State and the Private" which is a worthwhile read. It addresses in small part the disturbing tendency of American police and prosecutorial authorities to strip away not only rights but basic human dignity from youth simply because they are in school and their elders are downright hysterical about drugs. The fear-based attitude itself is nothing new: the statement of the Norwegian criminologist Nils Christie that schools exist to keep a large and potentially troublesome portion of the population occupied is many decades old, for example. But when taken this far it is insane and verges on child abuse.

"On the basis of an uncorroborated tip from the culpable eighth grader, public middle school officials searched futilely for prescription-strength ibuprofen by strip-searching thirteen-year-old honor student Savana Redding. "

Fortunately, the court concluded that:

"the school officials violated Savana's Fourth Amendment right to be free from unreasonable search and seizure. The strip search of Savana was neither "justified at its inception," New Jersey v. T.L.O., 469 U.S. 325, 341 (1985), nor, as a grossly intrusive search of a middle school girl to locate pills with the potency of two over-the-counter Advil capsules, "reasonably related in scope to the circumstances" giving rise to its initiation. Id. Because these constitutional principles were clearly established at the time that middle school officials directed and conducted the search, the school official in charge is not entitled to qualified immunity from suit for the unconstitutional strip search of Savana."

The American blogger aimai nails it in a post on that LGM thread:

The weirdest thing of all to me about these school cases in general and this one in particular is how bizarre it is that almost everyone concerned just assumes that the same tactics appropriate to prisons and armies (both situations in which individual members voluntarily or involuntarily give up their civil rights and can be presumed to be hostile to the rules governing their behavior) are applied to children seeking education in a communal setting.

A school is not a prison. School children are not prisoners. Moroever, the interests of a student are not, and can not be, understood to be different from those of administrators or the administrators want the wrong thing for the children.
[...]
Whatever you think of the kid the correct pedagogical strategy is to create a space in which the school is not a prison, the teachers and staff are not the enemy. And if you can't do that to start with you can't teach the kids. You've already failed.

The same lunacy is found in a case where teenagers took pictures of each other in bra and panties at a slumber party are being threatened with child pornography charges. (For more details please read the post found at Radley Balko's blog, "The Agitator", and the links below.)

Sadly, this is not an uncommon bit of lunacy:

• In one Florida a judge convicted a 17 year old boy and a 16 year old girl of child pornography because they took digital pictures of each other whilst fooling around, a decision that was upheld on appeal. One judge therein spoke of the harm that these pictures could do to these children. ( Frankly, if I was seventeen and told that I had a choice between a lifetime as a convicted criminal labelled as a sexual deviant on the one hand, and the embarassment of somebody seeing me have fumbling teen sex on the other I'd reach for the camera and red face be damned.)
• In Ohio a 15 year old girl is facing felony charges and forced registration as a sex offender for sending pictures of herself to classmates (and charges against the classmates may be pending).
• In Denton, Texas, a 13 year old boy is under arrest for receiving a picture sent by a female teenage classmate and thus having it on his cellphone.

Watch the video regarding the Wyoming, Pennsylvania case. I trust that I'm not the only person who feels uncomfortable with a prosecutor upon being asked "what exactly did she do wrong?" state "that's not the issue before the federal court"? (Please do remember that the United States Supreme Court has held that actual innocence of the crime is not a bar to a valid conviction, absent an underlying constitutional violation.) He is bringing ludicrous charges which will put a young girl in prison for years and label her a sex offender for life for the crime of taking a picture of herself in a bra at a slumber party, tried to blackmail the child into a bogus rehab program and when faced with Constitutional oversight says that the court shouldn't even be involved. He seems profoundly put out by the fact that anything could get in the way of a DA charging somebody, even if the charge is crazy and he should be ashamed of himself. (This does not even address the problems inherent with such programs. Two Pennsylvania judges were recently caught accepting bribes to send innocent teenagers to jail; private prison operators gave them money for every kid that was sent to them. Efforts are being made to clear the children's names, but it does rather beg the question of whether sending children to jail for harmless activity should be permitted at all.)

No-one would argue that "sexting" is a remarkably foolish thing to do; in a worst case scenario it can even lead to tragedy. But placing poor-judgment teenagers into the same category as the vermin who ogle pictures of children is bizarre and destructive.

Our Canadian courts have flaws, and our society has flaws, but our cops, prosecutors and judicial system have not completely taken leave of their senses. They aren't putting children in prison for doofus idiocy yet, nor are these professionals demanding that we do so. For that we should be profoundly grateful, thank them, and very, very wary of any Canadian figure who starts to look longingly south for hideous ideas posing as good ones.

Further reading:

• "The new pornographers: What's more disturbing -- that teens are texting each other naked pictures of themselves, or that it could get them branded as sex offenders for life?" - Tracy Clark-Flory, Salon Magazine, February 20, 2009.
• "Students Sue Prosecutor in Cellphone Photos Case", Sean D. Hamill, New York Times, Marc 25, 2009.
• "`Sexting' teens strike back!", Tracy Clark-Flory, Salon Magazine, March 27, 2009.