How Young Is Too Young to Be Arrested?

The pure legality of charging a juvenile as young as 6 with a crime varies across the U.S. Of 51 jurisdictions (the states and the District of Columbia), 33 have no lower-level limit on holding a young person criminally accountable, Levick says. That includes Florida. In effect, that means that an overzealous cop, legally, can arrest even an unruly 2-year-old.

Of those 18 other jurisdictions, most put the lower level that a kid can be charged with a crime at 10 years old. In those locations, a 6-year-old like the two in Florida simply could not be arrested or charged with a crime.

"Obviously, it begs the question, 'How can that be? How can we possibly have created a juvenile courts system that allows for the possibility that 6- and 7-year-olds can be arrested?'" Levick asks. "I think what I would say ... is that they never envisioned a 6- or 7-year-old would be hauled into court. I think that's a fair assumption. That's not who they designed the system for."

A police officer with Orlando's Reserve Unit arrested the two 6-year-olds on separate misdemeanor battery charges on Sept. 19, 2019. One was a girl who lashed out in a tantrum that was brought on by a sleep disorder, the girl's family told The New York Times. On Monday, Sept. 23, the Orlando Police Department fired the officer who made the arrests for not following protocol that required he get approval from his supervisor to arrest any minor younger than age 12. No charges were filed against the two children.

Cops in schools, of course, are not new. Florida is one of many states that has bumped up its police presence in schools over the years. The Florida legislature mandated it after a shooting at Marjory Stoneman Douglas High School in Parkland claimed 17 lives in February 2018.

The increased show of force, though, seems to come with some problems. For one: As the Orlando Sentinel points out, citing a report by the Education Week Resource Center, black students are arrested at school at a disproportionately high rate. At least one of the children arrested in Orlando was black.

"It's unfortunate that these are things that you have to think about while navigating a public school," Justin Henry, a political consultant and activist in Orlando, told the Sentinel. "Little black girls and teenage black girls, when they do have outbursts, it's looked upon as aggression."

The buildup of police in schools is understandable, of course. It has been more than 20 years since two students killed 13 people and injured 21 others at Columbine High School in Littleton, Colorado. Since Columbine, up until April of this year, America has been through 238 other school shootings, according to a year-long investigation by The Washington Post.

Still, as the recent news out of Orlando shows, police and schoolkids — even elementary school kids — just sometimes don't mix.

"We know where this is coming from. This fear of what happens when a child acts out in school — that there's going to be some catastrophic consequence — emanates from Columbine. For 20 years, we've been overreacting," Levick says. "I'm not aiming to trivialize schools being so quick to call law enforcement. There are obviously many situations [in which that is] appropriate. But this is one that defies common sense. Do we have no ability to discern a serious situation from a non-serious situation? We've lost our ability to exercise good judgment."

Most would agree that slapping cuffs on first graders probably is crossing a line. Zero tolerance, certainly, has its costs.

"Initially, the thought was that ... there would be some rationality, some reasonableness injected into the school environment that would curb those extreme and absurd responses," Levick says. "But it may be that trusting and waiting for common sense to kick in isn't going to work. It may be that it does require a legislative response."

Some movements across the nation aim to raise the minimum age that a child can be charged with a crime to 12 years old. In some of those 33 jurisdictions where no minimum age is set, there are calls to set something. "What I would like to see done, as an advocate, is to see all of those states put a number in," Levick says. "Put in a 10, or put in a 12."

Until then, though, school police officers may have to lean on something much less complicated than legislative action when faced with a pre-pubescent troublemaker.

A deep breath. Maybe a countdown from 10. And a little common sense.