Raise the Age? A Warning About Relying on the Criminal Justice System to Solve Gun Violence

By Natasha Baker, New Leaders Council Silicon Valley

Following the mass shooting at Marjory Stoneman Douglas High School earlier this year (which was followed by others, including in Texas, Indiana, Wisconsin, and Maryland), the debate on raising the age to buy guns has spread across the country. Major retailers such as Dick’s Sporting Goods and Walmart have taken it upon themselves, without legislative prompting, to stop selling guns to those under the age of 21. Legislators may follow suit, but I hope that raise-the-age laws will not repeat the mistakes of prior attempts to police young people in the name of keeping them safe.

Following the mass shooting at Columbine High School in 1999, the nation responded by expanding zero-tolerance policies in schools that had begun to take hold in the 1980s, ushering in a new reality of criminalizing adolescent behavior, particularly that of youth of color. The broken windows theory used to police black and brown bodies on the streets bled over into schools; students were now being suspended, expelled, arrested, and incarcerated for minor misbehavior out of a belief that this approach could prevent the next mass shooting. Police replaced counselors, metal detectors replaced open doors, and juvenile hall replaced after-school detention. Common sense, empathy, and second chances were silenced out of school administrators’ fears of being the next school to be on the receiving end of violence and lawsuits.

The United States has largely come to realize that the zero-tolerance approach to school violence is a failure. It has not prevented school shootings. It has not made students feel safer. There is an enormous amount of literature about the school-to-prison pipeline and how zero-tolerance feeds that pipeline and there are concerted efforts across the country to roll back the devastating consequences of zero-tolerance policies.

Following the latest series of mass shootings, the nation is once again focusing its attention on young people and how to best prevent them from engaging in gun violence. Raise-the-age legislation may have consequences similar to those of the zero-tolerance policies that followed Columbine. That is, another mass shooting perpetuated by another young white man may result in policies that do not actually prevent further mass shootings, but instead result in more young people of color getting locked up. The disparities and disproportionate minority contact that are present in every other aspect of the criminal justice system also appear in the firearms context.

Simply creating new criminal penalties for gun possession for young people misses the point of why some young people have guns. Through my work as a juvenile defense attorney in D.C., I have met many young people who have been affected by gun violence. Some carry guns out of fear for their own safety. Some have been injured or killed by guns themselves, or had loved ones so harmed. If a young man is carrying a gun because gang members threaten him every time he walks to school, locking him up does not solve anything. If a young man is carrying a gun because he has gotten jumped before, expelling him does not solve anything. Research shows that the effective responses to gun violence are those that take a public health approach, such as that of Dr. Gary Slutkin and his organization Cure Violence. The criminal justice system is a blunt tool focused on punishment and retribution, not healing and hope; it cannot solve the root causes of gun violence. We can look to the inadequacy of the criminal justice system in responding to the public health issues of the crack epidemic or current opioid crisis for examples of where reliance on the criminal justice system results in worse, not better, outcomes.

The tragedy of Parkland has not moved away from the national spotlight because other school shootings have unfortunately followed in rapid succession. But in this era of 24-hour news cycles, the staying power of the mass shooting issue means that we have time to get things right. And to get it right means not having a knee-jerk reaction to depending on the criminal justice system to solve deeper issues. Just as zero tolerance policies did not stop mass shootings, raising the age to purchase guns may not stop them either. This isn’t an argument that “bad people will find a way to get guns no matter what so no point in restricting gun access.” Dick’s and Walmart should be commended for at least working towards some kind of change because gun reform is badly and urgently needed. There are many great solutions out there and ultimately, many reforms will have to take effect simultaneously to really have an impact. But locking up young men of color who carry guns out of fear because they live in dangerous neighborhoods is not the way to prevent school shootings. These could be the very youth most likely to be arrested under new raise-the-age laws.

The Parkland students understand that to truly address gun violence in this country, we must not leave behind communities of color and how they are uniquely affected by such violence. Parkland youth made a point to speak with black and brown students in Chicago and DC prior to the March for Our Lives to make sure that their message was inclusive, and that they were advocating for the lives of all youth. The clear message from the March for Our Lives was that to truly fight gun violence, we must also fight racial and socioeconomic disparities that result in some lives being perceived as more valuable than others, and resources and services concentrated in some communities, but not others. If any young person is picking up a gun, we must ask why. We must apply the logic, science, and best practices that we have learned from the zero tolerance debate on adolescent brain development, racial disparities, poverty, etc. to the gun debate if we are to have a real impact on gun violence among young people.

Natasha Baker is a Skadden Legal Fellow at Open City Advocates, where she provides post-disposition representation to youth in the juvenile justice system in Washington, DC. She is a 2012 NLC Silicon Valley Fellow and a Senior Fellow on the Commission on Criminal Justice of the Millennial Policy Initiative. She can be reached at natasha@opencityadvocates.organd on Twitter @natashatbaker. All views expressed in this article are her own.