Friday, May 30, 2014
In Defense of Zero Tolerance, or, An Examination of Law, Common Sense and Consistency
NOTE: These seventeen essays were reproduced from my now defunct former blog, Random Notes, as they are going to be cited in an upcoming essay. For the most part they deal with three subjects, "common sense" and pragmatism, organics and GMO foods, and the belief in the inherent purity and superiority of all things "primitive". A few are on other topics, but I think those three cover most of them.
Before anyone gets upset, I am not thinking of the absurd policy enacted in many public schools to remove any flexibility in enforcing school policies when I say "zero tolerance". Those policies are problematic, though for reasons completely unrelated to the point of this essay.
Actually, that was my initial position when writing this essay, and I even began to draft a postscript to explain exactly why. But, the more I wrote, the more I came to recognize that the problems with school zero tolerance really did relate to my essay, and so, rather than push that topic to the side and launch immediately into my didactic pronouncements, I think it may be best to start by looking into those school zero tolerance problems and ask ourselves why it draws such criticism, and, as I discovered while writing that first draft, what unspoken realizations lie behind our dislike of zero tolerance.
Zero tolerance in public schools is, as most know, a policy enacted to remove all discretion in enforcement of school rules and policies. In effect, it says "if the policy says students may not give any medication to one another, then if one shared an aspirin with another, he shall be suspended regardless of circumstances." It is a policy which has drawn a lot of criticism, but in some ways it is understandable given both the circumstances within which public schools operate1, the frequent criticism they receive for being both too unfeeling and too lenient, and, most of all, the excessively litigious society in which we live2. Though I can easily write dozens of criticisms of zero tolerance policies, I can make a number of arguments for them as well, and can see why administrators would sometimes see them as solutions for impossible problems. (Eg. Criticisms from the public for being simultaneously too strict and too lenient.)
There is an obvious solution for such policies, which should surprise no one who reads my blog with any frequency, and that is to eliminate public schools3. Were all schools privately owned and run, this would not be an issue, parents would select the school for their child, and would judge which set of rules they found acceptable, as well as the degree of stringency with which these rules are enforced. A big part of the problem with zero tolerance is that students are effectively forced into public schools, which makes them forcibly subject to such rules, turning the school policies into, effectively, another set of laws. But, unlike most of our laws, laws which do not protect individuals from one another, but which attempt to proscribe a set of behaviors, and enforce standards of decorum.
Actually, there are two reasons people object to zero tolerance, though no one ever voices either quite clearly. The first is the one more4 specific to schools and the less relevant to the main purpose of this essay, though not entirely unrelated. And that is the problem that school rules, as I said above, tend to be intended to encourage certain behaviors. Normally, this isn't a problem, we are quite happy to have schools providing some sort of guidance to children, supplementing parental upbringing by holding children to certain standards of behavior. The problem comes into it when those expectations are given the force of law. And, even worse, when they not only are given force of law, but are made absolute. Just ask yourself how many times you would be punished if you were watched for perfect etiquette and you will see the problems with applying zero tolerance concepts to this sort of rule.
However, those rules tend to be in the minority, especially as modern schools, at least schools since the seventies or eighties, have gradually reduced the standards of behavior, allowed students much more freedom and held them to much lower expectations. As a result, there have been fewer and fewer rules governing behavior. Of course, with the birth and growth of the political correctness movement there has been a growth of different behavioral rules, but they have been slow in being formulated (mostly due to unpopularity among many parents) and so the behavioral rules seem to be the minority of those used in examples of foolish zero tolerance policies.
What form the bulk of examples of zero tolerance policies are rules which are much more akin to modern laws, rules intended to protect students from one another, or protect them from themselves5. So it is not the content of the laws which bother people criticizing zero tolerance. No, they argue that zero tolerance produces absurd results. But zero tolerance, in itself, does nothing. It does not create rules, does not change rules, all it does is force the enforcement of rules as written without discretion. In other words, it just makes everyone enforce the rules as they are6. But, if that is the case, is it not true that the problem is not zero tolerance, but the rules themselves? If the rules weren't such as to produce absurd results, then zero tolerance would not cause problems. It is because the rules are bad rules that we get such bad outcomes.
Yet no one ever mentions the possibility that the rules themselves are to blame. Instead, they pretend that it is zero tolerance, that the rules were just fine, only the strict enforcement of said rules is a problem. However, I would argue the opposite, that if rules can produce such bad outcomes, then it doesn't matter that the inconsistent application of the same was mostly harmless, the rules were the problem, not zero tolerance.
Which is why I restored all this talk of school zero tolerance policies. As should be clear from the last two posts7 made on this site, I have little problem with absolutes, with inflexible application of rules. When rules are well crafted, it is not a problem to make them absolute. In other words, zero tolerance is not a problem8, it is the use of bad rules which is the problem9. I suppose the most simple example of this would be my view of rights. Unlike those who choose to see rights as conditional, as dependent on behavior or circumstance, who like to define them as bundles of related rights and privileges10, I see rights as absolute. You can delegate others to exercise your rights, but you cannot even give your rights to another, when you deputize them, you retain your rights as well. Rights are total and absolute, and I see no problem in applying this vision with zero tolerance, allowing no exception of shading or nuance.
Similarly, I see true laws, those laws which are part of the proper function of government, such a protecting one's rights to life, liberty and property, as perfectly consistent with zero tolerance. If I define the laws as "you will not kill, injure or otherwise physically harm another without legally acceptable excuse or justification", "you will not take the property of another to which you have no right" and so on, is there any problem applying that law with complete consistency, as written? In other words, applying a zero tolerance principle11? In fact, would it not be more harmful to not apply zero tolerance?
It is only when we enter into laws of dubious propriety that we find people justifying them by calling upon common sense, upon restraint, upon all manner of words which basically mean nothing less than arbitrary application of the law. And that is what is often obscured by complaints about zero tolerance. Zero tolerance is not the problem, it reveals the problem, the problem was laws which were just not right, but managed to make themselves acceptable by inconsistent enforcement. Zero tolerance, by forcing consistency, makes these laws show their weaknesses, and yet zero tolerance is all too often blamed, rather than the underlying bad laws.
In my essay "Stupid Quote of the Day (January 15, 2012 - Delayed)" I pointed out several problems with such an approach to law, including the damage done by accepting laws founded upon principles with which we might disagree, the risk of someone in the future applying such rules consistently, the danger of additional laws being built upon the precedent of such rules and so on. Since those arguments have already been made, allow me to point out another problem, one I failed to emphasize sufficiently in the past. If common sense means nothing more than applying a law inconsistently, then does that not mean that such laws, requiring inconsistency to function properly, are likely to undermine the predictability upon which so much of our society relies?12
I have written many times that predictability is the basis upon which all action is founded, that without predictability we cannot act and I do not exaggerate. If you take an animal, or small child, and train him to expect praise when he does a certain thing, then suddenly begin to respond to that action with punishment, it produces confusion, even madness. It is the sort of thing that is used to produce violent, unpredictable animals, or to break down individuals in what was once called "brainwashing". (I think that term is no longer in vogue, but lack the time to plumb Wikipedia for the present nomenclature.) In any case, when one cannot predict the results of his action, he is not only unable to plan, which means he will not make any allowance for the future, but he becomes unable to act at all. It is only predictability that allows us to decide how to act.
Of course, the unpredictability brought about by arbitrary government is not the same as this sort of total unpredictability but it is still sufficiently confusing that individuals do not plan long term, make far too many provisions in case of sudden changes in fortune and generally act in a much more short term manner than they would in a much more consistent society. I am not exaggerating when I say that predictable laws are more important than good laws when it comes to the long term prosperity of a society. Consistent tyrants are easier for one to understand than the most well meaning but arbitrary rulers.
And common sense, as used in this case, is nothing but unpredictability. I know those who promote common sense would say it is predictable, as it is "common sense", but if it were that consistent, then it could be codified into the law. The fact that it cannot be laid down in the law shows that it is arbitrary, as does the fact that some individuals obviously do not share it. In other words, one man's common sense is not another's. And so, when someone suggests tempering a law with common sense, they are doing nothing more than saying the law should be arbitrarily applied, and, thus, more uncertainty introduced into everyone's life.
Once our goal was to have a government of laws not men, common sense is the opposite of that principle, while, in law in any case, zero tolerance is precisely that, and so, though it may sound unpopular, I would much rather see laws applied with zero tolerance than with the slightest nod to common sense.
1. See "Fear Driven Enterprises", "Inflexibility and Bureaucracy", "Adaptability and Government", "Redundancy as a Protective Measure", "Bureaucratic Management and Self-Policing" and "Bureaucracy and Arbitrary Power".
2. See "The Perversion of Liability Law" and "The "Right To Sue" As Our Only Right".
3. See "Why Private Schools Win", "Reforming Education", "Why Private Schools Win", "A Contradiction", "You Don't Drown in a Glass of Water - Vouchers Revisited", "Why Vouchers are not the Answer" and "Never Ascribe To Evil, A Discussion of Education".
4. I ask my readers to remind me in the near future to write a grammar nazi post on the problems with more/most and less/least when using small groups. It drives me mad to hear something described as the most of two things or the best or worst of a pair. It is somewhat trivial, but it was once a rule of grammar taught to fairly young children. Yet today, people who should know better seem unable to recall that a superlative requires at least three elements being compared. (For some past grammar nazi posts, see "The Irony of Lax Internet Standards", "In Defense of Standards", "Addenda to "In Defense of Standards"", "Grammar Nazi Comment on Greco-Latin Words", "Ye Olde Grammar Nazi", "The Grammar Nazi Versus George Lucas", "Something of a Paradox", "Why Worry About Grammar?", "Why Spelling Matters (Again)", "Why Spelling Matters, One More Time" and "Rules of Grammar and Pragmatism".)
5. I have made it very clear I do not think it is a proper concern of the law to protect individuals from themselves, but modern law seems to see these two categories as legitimate areas of criminal law, and so I use that definition when looking at schools rules. (For my opposition to such laws see "Drug Legalization", "The Danger Inherent in Banning "Bad Ideas"", "The Right Way", "Liberalism, Its Origins and Consequences - Chapter 2 - Saving You From Yourself", "Liberalism, Its Origins and Consequences - Chapter 12 - I'm OK, You're A Mess", "Tyranny Without Tyrants", "Perverting Self Interest ", "O Tempora! O Mores!, or, The High Cost of Supposed Freedom" and "Self-Serving Cynicism and Our Cultural Immaturity".)
6. I exclude here a few cases where individuals took zero tolerance to absurd lengths, such as identifying toy guns as equivalent to real guns, and thus confiscating tiny plastic Lego pistols at airport security and the like. While zero tolerance may have somehow created the environment which led to such idiocy, in those cases it was not the policy, but individual stupidity which is to blame. Likely even without zero tolerance, those individuals would have found ways to make fools of themselves, there just would not have been the unifying theme of zero tolerance to bring their foolishness to national prominence.
7. See "Stupid Quotes of the Day (January 16, 2012)" and "Stupid Quote of the Day (January 15, 2012 - Delayed)".
8. As mentioned above, when laws concern behavioral norms, the situation is quite different. Behavioral rules have nothing to do with protection of rights, and as most such norms are quite subjective, even in definition, there is much argument for allowing more leeway. But that is unrelated to my argument, as it is an entirely different situation. I suppose behaviors could be defined with precision (eg "Students shall arrive at 8:05 AM" or "Students shall wave with the arm perfectly horizontal from the shoulder, held completely straight, and extended for not less than 20 seconds and not more than 40 seconds" and the like -- just refer to many military manuals to see some examples), and enforced objectively with zero tolerance, and then my essay would apply, but in most cases, behavioral rules are both ill-defined and subjective, making zero tolerance often little more than an excuse to be over-zealous in enforcing one's own prejudices while blaming zero tolerance. But that is another issue, and perhaps a matter for another essay.
9. Sometimes people confuse attempts to establish the facts around an event with questions of legal definition. Of course people can always differ as to facts, we can make mistakes of proof, but that does not make law arbitrary, it simply means sometimes mistakes of fact are made, the law is still well defined and, within the limits of human behavior and the general uncertainty of life, entirely predictable. I had to mention all this, as confusion on such issues often causes pointless objections. (I wrote once on this topic, but have been unable to find the post, I will update this footnote should I find it.)
10. See "I Knew I Was On To Something", "Stupid Quote of the Day (December 30, 2011) ", "The Problem of Pornography", "Free Speech, Absolute Rights and the Absurdity of "Balancing Tests"", "Kelo, Home Schooling and Drug Laws - Inconsistent Theories of "Social Costs"" and "Inconsistent Reasoning".
11. I suppose some will make "Les Miserables" type argument, suggesting some circumstances may make theft justified, but I will argue against such exemptions later in this essay. For now, let me point out, while many make the case against legal absolutism by using such sympathetic arguments, in practice it seems legal lenience tends to favor, not these "righteous poor men" but career criminals. And since criminal gangs tend exist predominantly in poor neighborhoods, and do inordinate harm tot he poor in their own neighborhoods, it seems the position "sympathetic to the poor" actually does them more harm. (Cf "Perverse Incentives", "When Help Hurts", "How to Become a Victim of Crime" and "The Important Lesson of Racism" for related paradoxical outcomes.)
12. See "Predictability" , "Inflation and Uncertainty", "Traffic Lights, Predictability and Conservatism", "Expectations", "Conservatism, Incremental Change and Federalism", "Humor and Nightmare", "In Praise of Slow Changes" and "In Defense of Standards". I have also predicted some of this argument in my criticisms of common sense and pragmatism, see "The Lunacy of "Common Sense"", ""Seems About Right", Another Lesson in Common Sense and Its Futility", "A Look at Common Sense", "Res Ipsa Loquitur", "The Shortcomings of Pragmatism", "Pragmatism Revisited", "Pragmatism Revistied, Again", "The Plural of Anecdote is Not Data", "Rules of Grammar and Pragmatism", "The Problem of the Small Picture", "Keyhole Thinking" and "Impractical Pragmatists"..
Before anyone introduces straw man arguments about jailing children for shoplifting and the like, recall the difference between felony and misdemeanor. I am quite tired of hearing silly examples having children in prison for "three strikes" for stealing gum or pizza. Neither is a felony level theft (though with the inflation of the last three presidents, those may soon meet the requirement for Maryland's felony theft statute, and the taxes on cigarettes are pushing them closer as well), and so neither would trigger any three strikes statute of which I know. So if you must make extreme examples, at least keep them in the realm of the possible. (Not to say I like three strikes laws, I see them as a bad temporary solution to lenient prosecutors and judges, but they are usually used to craft absurd examples in these situations, so I had to mention them.)
And yes, I don't have a problem with children (at least over seven) being tried for misdemeanor crimes if they commit them. Obviously, in misdemeanor cases, the range of punishments are wide, and the prosecutor and judge have latitude in deciding punishment, so I don't see a "zero tolerance" policy here causing undue harm, and scaring children away from theft or vandalism may not be such a bad thing. But, of course, given limited resources, it is also likely some such cases will never be tried, as prosecutors, or even police, prioritize their tasks. All that is not "using common sense" in the way it is argued in this essay, it is simply assigning available resources well.
What I denounce here is the attempt to take bad laws and make them work by calling for "common sense", and sadly, that is all too common. If a law produces bad results, if it can be "taken to extremes" with detrimental outcomes, then we don't need common sense, we need to rewrite the law. Otherwise, we have a bad law, which may or may not be enforced that way (cf "The Right People, The Wrong People and "Just Plain Folks"", "The Wrong People") and which sets a precedent for even more bad law. The claims that "common sense" can fix a bad law strike me as akin to those who think "real communism" can work if only the right people are in charge. We don't need the right people or common sense, we need the right laws, and the right understanding of government.
UPDATE (January 17, 2012): In footnote 9, above, I mention an article discussing a specific point. That article is the third footnote to "A Look at Common Sense", and it is also discussed briefly in footnote 9 to "Exaggeration and the Law".
Originally posted in Random Notes on 2012/01/17.