Zero Tolerance: It's the American Way

Ever wonder how the concept of "Zero Tolerance" wormed its way into the mainstream of American culture? Here's a thought-provoking essay on the origins and the insidious spread of "ZT," which sets the tone for so much criminal justice policy these days.

Guest commentary by Richard Rapaport

Does it feel like nobody listens anymore? That everyone is tuned into their own channel? That people in your daily life are working from some secret script designed to degrade and disenfranchise you? Welcome to ZT America.

ZT, or Zero Tolerance, is the mind-set and rationale used these days to justify actions ranging from the expulsion of elementary school students for bringing alcohol-based mouthwash to school, to the sentencing of a Virginia mother to two years in prison for serving beer to her 16-year-old son and his classmates at a party.

Zero Tolerance has been invoked against a kaleidoscope of recent allegedly anti-social behaviors: Republican colleagues of Idaho Sen. Larry Craig clawed each other raw to declare Zero Tolerance for his alleged misdeeds in the men's room at Minneapolis-St. Paul International Airport. Zero Tolerance was on the faces of University of Florida police as they Tasered student Andrew Meyer during a speech by John Kerry. Meyer's imbecilic behavior, in fact, illustrated his own Zero Tolerance for the time and opinions of others.

ZT is in the American political bloodstream. After Hurricane Katrina, President Bush declared Zero Tolerance for looters. Trying to defuse the crisis in California prisons, Gov. Arnold Schwarzenegger pronounced Zero Tolerance for "gang-related codes of silence." Mothers Against Drunk Driving avows to-the-death Zero Tolerance for underage drinking. The Defense Department proclaims ZT for sexual harassment.

Zero Tolerance has become a featured player in the American judicial pageant. Its tenets justify draconian overcharging and Methuselah-like jail terms. Zero Tolerance has helped transform American justice into an incarceration machine largely free from human interference or humane inference. ZT justice absolves officials from accusations of weakness on crime, while jailing people in record numbers. According to a recent Justice Department report, the United States now has the world's largest prison population and highest rate of incarceration, with 1 in 32 American adults enmeshed in the criminal justice system.

Like water hyacinth, the pestiferous houseplant invading Southern lakes and streams, Zero Tolerance is taking over the national fishpond, choking out once-treasured values like compassion, discretion and inventiveness. Over the past four decades, Zero Tolerance has metastasized from drug enforcement, to policing, into the court system, the public schools and now, perhaps worst of all, into the American social mainstream.

The institutionalization of Zero Tolerance policies signals the triumph of a bureaucratic mind-set more obstinately retrograde than the once-derided French or German models. I mean, have you been at the counter inside a Barnes & Noble, in line at the Century 20 ticket kiosk, or checking into a doctor's office, and asked for a slight bending of the house rules? Not this time, chump.

Nor does it take a genius to explain why Zero Tolerance is transforming America into "The Land Mercy Forgot." Zero Tolerance is, after all, the logical and syntactical equivalent of Total Intolerance. How unfortunate that there was no warning that we toiled under a system that has sanctioned total intolerance across the breadth of national life.

Originally culled from the engineering lexicon, Zero Tolerance first saw light in 1971, a PR slogan promulgated by New York public health officials who failed to detect tainted baby food in an upstate processing plant. In 1973, as Watergate's noose tightened, Nixon Justice Department officials appropriated Zero Tolerance as a tough-on-crime anodyne. In the early 1980s, the Navy adopted Zero Tolerance to add puissance to a purge of seagoing potheads. From there, it entered civilian drug enforcement and then spilled over into the general justice system, prospering as that ZT subspecies, Zero Tolerance for Crime, periodically trotted out to induce voters into backing law-and-order candidates.

In ZT America, God save the judge finding redemptive qualities in law-breakers. Creampuff sentencing is the Zero Tolerance equivalent of the scarlet "S," for Soft on Crime. Today, "victim's rights" organizations are twitching to replace "activist judges" with those favoring sentences that would have made Saddam Hussein blush. Having created a courtroom forum for victims and families, television now brings us a daily parade of the unmerciful, tasteless and overwrought, without seemingly a thought to the fading of John Adams' epochal instruction for "a nation of laws and not of men."

Discretion, once a tool of intelligent policing, has given way to drawn guns, takedowns and automatic arrest. Does anyone remember a time when a local cop might simply drive a tipsy taxpayer home? Not if MADD has anything to say about it. Zero Tolerance enforcement also sponsors a growing culture of entrapment that encourages the setups and stings that vacuum into the already full-to-bursting criminal justice system not the truly dangerous, but rather the merely stupid and weak.

The unhappiest consequence of Zero Tolerance, however, may be the rise of Generation ZT, children born beginning in the Reagan/Bush '80s, now the sacrificial lambs of Zero Tolerance and, paradoxically, as they have entered the workforce, its most loyal servants.

For these children of ZT, physiology is destiny: They are pudgy, raised indoors during the '90s Polly Klaas child-snatching hysteria. They are myopic, recipients of too much homework assigned too early. They walk hunched, from bulging book bags hefted after administrators sealed school lockers as potential drug magazines. Forbidden to explore local woods and instead accessories to parent-supervised play dates, they have little taste for solitude.

They are, however, anything but stupid. Beset on all sides, Generation ZT learned that a jesting lunchroom threat, a comb that looks like a switchblade, or a stick of caffeinated Jolt gum offered to a classmate could terminate Ivy League aspirations.

How much easier, then, to stifle the impulse to toilet-paper the assistant principal's car, or challenge the history teacher's lame Civil War interpretation. These days, however, any perceived act of resistance might bring the local police SWAT team charging through school's corridors. How much more practical to play it sly, pass through class without being the stuck-out nail pounded in by the hammer of Zero Tolerance. Yet, how sad to trim youthful sails to the winds of ZT at the age when gaudy mistakes are best made, the status quo mocked and hell generally raised.

Generation ZT has done few of those things. Having learned to love the subjugating rules required for success in the un-brave new world of Zero Tolerance, you can bet that their ascension up the American socio-economic ladder will mean an increasingly intolerant ZT eye cast on the often-unruly lives of the rest of us.

From the San Francisco Chronicle of Sept. 30; reprinted with the author's written permission.

Woman in ravine: A victim of police assumptions?

Who is victimized when police prematurely close in on the wrong suspect?

The suspect, of course.

I am writing from the Confessions and Interrogations conference in El Paso, where we heard yesterday from one such man. I've previously posted about Jeffrey Deskovic. Amazingly, he was convicted of a schoolmate's murder at age 16 despite DNA evidence of his innocence. He spent 16 years behind bars. He exhausted all of his appeals, and was freed last year only thanks to the random intervention of the Innocence Project and a new district attorney in his home county who was willing to re-test the DNA. He still looks a little dazed to be out. (As an aside, he is finishing up his bachelor's degree so that he can go on to law school, and his sole source of income comes from speaking engagements. He's an excellent speaker, so think about inviting him to your venue to discuss his case.)

But there are other types of victims who may not immediately come to mind.

How about all the women who are raped and murdered by the bad guys who remain on the loose? The serial rapist-killer in Deskovic's case went on to commit more violent crimes against women, as do many of the others, including the real perpetrators in the Central Park Jogger and the Norfolk Four cases.

There is another type of victim who is even less likely to come to mind.

Tanya Rider is an example of this type of victim. She went off the road while driving home from work one night, and spent the next eight days trapped in her car in a steep ravine near Renton, Washington.

What does she have to do with wrongful conviction?

Her husband learned about her rescue while sitting at the sheriff's station, waiting to take a polygraph examination. When he reported her missing, police turned the case into a criminal investigation with him as the prime suspect, he said today on national TV. This delayed and weakened the efforts to search for Tanya by several days, almost costing the young woman her life, he claims. And, if Tanya had not been found, he might well have become yet another in the growing list of wrongfully convicted.

She, meanwhile, remains hospitalized in critical condition. And, in another sign of the times, the couple has no medical insurance.

Nations competing to incarcerate more citizens

New Zealand's expensive new prison will teach history to indigenous people

As you, dear reader, already know, the prison population in the United States is enormous. The United States incarcerates more people both in raw numbers and in the proportion of its population than any other country.

But, like McDonalds and Starbucks, the prison nation concept is increasingly international. Around the world, prison populations are mushrooming. More than 9 million planetary residents are behind bars, with the proportion dramatically rising over the past 15 years.

This trend is not explained by rising crime rates or population growth. Rather, it is primarily due to a combination of public anxiety and fear, moral panics, harsh crime and drug policies, increasing use of incarceration to solve endemic social problems, and longer prison sentences for a larger variety of offenses.

New Zealand, a typical example, saw a 38% rise in its prison population during the 1990s, and anticipates another big jump over the next few years, largely due to longer prison sentences and imprisonment for more offenses.

Just this week, New Zealand opened a costly new prison near Auckland. With the prison business booming, it is expected to quickly fill.

The Spring Hill Corrections Facility is supposedly focused on rehabilitation and reintegration. It features a large rugby field and a wharenui (meeting house) where Māori people will be taught about their history. (Not unlike the disproportionate representation of minorities in U.S. prisons, Māoris are imprisoned at a rate of 568 per 100,000, as compared with a rate of 98 per 100,000 for non-Māoris.)

How's that for irony: Go to prison to learn about your history of oppression.

The International Centre for Prison Studies at King's College, London, has a remarkable interactive chart of worldwide incarceration rates. Go to New Zealand's TV3 for a news video about the new Spring Hill prison.

Hat tip to the Correctional Forum blog of Pennsylvania for alerting me to the New Zealand prison's opening.

Another fascinating disputed confession case

DNA catches real killer, but convicted men remain behind bars

Why read fiction, when real life is so much more compelling? Just in time for this week's University of Texas conference on confessions, I just read an expose on another fascinating case of multiple disputed confessions.

The Norfolk Four are Navy enlistees convicted and imprisoned in the 1997 death of a fellow enlisted man’s wife. The case could prove just as important as the Central Park jogger case in altering public perceptions about the reliability of confessions.

Indeed, the cases have major similarities. In both cases, multiple individuals confessed to a rape-murder after lengthy interrogations. And in each case, DNA evidence later tied the crime to a known sex offender who admitted acting alone. (Astonishingly, in the Norfolk Four case, police ignored the real killer despite the fact that he raped another young woman just 10 days later and a few hundred yards away.)

If the sailors' convictions are ultimately overturned or they succeed in their bid for gubernatorial clemency, this case may shine a welcome spotlight on the vulnerabilities of individuals with diminished mental capacities to coercive police interrogation. The enlisted man who was the focus of police suspicion, Joseph Jesse Dick Jr., is mentally slow, a factor that researchers have found to correlate with heightened susceptibility to falsely confess.

Prosecutors are fighting to uphold the convictions, and three of the men are still incarcerated.

A half-hour video on the case is available online, as is an excellent New York Times Magazine expose.

Hat tip to Jane for alerting me to this case.

The War on Drugs: "A 25-year quagmire"

Half a million Americans behind bars for drugs

The Sentencing Project has just released a scathing critique documenting the failures and unintended social consequences of the so-called War on Drugs. "A 25-Year Quagmire: The War on Drugs and Its Impact on American Society" assesses the strategy of combating drug abuse primarily with enhanced punishments at the expense of investments in treatment and prevention.

Among the findings:

• Drug arrests have more than tripled since 1980 to a record 1.8 million by 2005

• Four of five drug arrests are for possession offenses, more than a quarter involving marijuana

• Nearly 6 in 10 people in state prison for drug offenses have no history of violence or high-level drug selling

• A shortage of treatment options in many low-income neighborhoods contributes to the handling of drug abuse as a criminal justice problem instead of a social problem.

Ambiguous laws increase likelihood of racial profiling

The data are in, and – no surprise:

• Police do sometimes engage in racial profiling.
  

• People in general do sometimes engage in racist behaviors under ambiguous situations in which they can rationalize their decisions in some other way.
  

With those data in mind, here’s a great idea: Let's pass ambiguous new laws and see how they are enforced.

That's just what municipalities around the country are doing, in a recipe for increasing racially discriminatory arrest patterns.

Take "sagging."

Atlanta, the hip hop capital of the South and perhaps the world, is currently debating whether to follow other cities around the country that have enacted laws against wearing baggy pants that show one's undergarments. The ordinance would impose fines and even jail time for violators.

The ACLU of Georgia says that is unconstitutional. The issue is not just about baggy pants, but about the criminalization of young black men, says ACLU executive director Debbie Seagraves: "We are talking about creating one more ordinance, one more law that can be used to put more and more young black people into a system that is already eating them up."

Not so, says C.T. Martin, the 70-year-old city councilman who proposed the law.

"My legislation is designed to help young people, to enlighten them and help them understand," said Martin. "When the police pull you over, you can't say they are profiling you. You've already profiled yourself."

Would it surprise you to learn that Martin is a longtime African-American activist?

Not if you are familiar with the research on unconscious racism, which shows that African American police and probation officers, for example, are just as likely as anyone else to make racist judgments about black criminal suspects. What's ominous is that the underlying racist stereotypes are not conscious, so people don't even know they're relying on them.

Or, as another example of ambiguous laws, take anti-gang injunctions.

On the opposite side of the country from Atlanta, progressive San Francisco is enacting anti-gang injunctions that bar people named on a gang list from congregating, wearing gang symbols or clothing, or flashing gang signs in certain geographic areas. The injunctions, already in place but currently being expanded, also impose a 10 p.m. to sunrise curfew on these individuals, under penalty of jail.

Remember the research about racist behavior being most likely to occur under ambiguous circumstances in which it can be rationalized away?

Well, with gang signs and symbols constantly changing, police will be given the leeway to interpret which hand signals, clothing, or other symbols constitute evidence of membership in the Norteños and other gangs.

Criminal defense attorneys opposing the injunction argued in court that some of the people named on the list are not in gangs and are being targeted because they live in public housing or have rapped about gangster life.

Robert Amparán, who is representing four men on the list, went so far as to call the injunction "government-sponsored racial profiling" that gives police sweeping power to harass and arrest Latino men.

While that may be true, the social science data on modern racism predict that those involved will rationalize any racist conduct on other grounds. After all, no one in these modern times wants to be seen – or even to see themselves – as a racist.

Photo credit: "CR Artist" (Creative Commons license)

Attorney Neil Richards comments on the constitutionality of baggy-pants laws at the Concurring Opinions blog. The Chicago Tribune has a news analysis of those ordinances.

The San Francisco Chronicle provides coverage of the debacle over San Francisco's anti-gang injunctions.

Research data on unconscious racial stereotyping among police and probation officers includes: Graham, S., & Lowery, B.S. (2004). Priming Unconscious Racial Stereotypes About Adolescent Offenders. Law and Human Behavior, 28, 483-504.