Saturday, January 2, 2016

Zero Tolerance and Big Government

NOTE: I am reproducing a number of essays from my defunct blog because either (1) they are cited in the essay "Reconsidering My Earlier Justifications of the Death Penalty" which I decided to reproduce first, or (2) they are cited in one of the other essays cited in that essay. Though I am only fixing the links in "Reconsidering My Earlier Justifications of the Death Penalty" and not the additional essays, at least not at this time, I think it best to try to ensure as many essays as possible are reproduced so, when I do decide to fix all those links, the essays are available.

It is a shame when a good idea gets such a bad reputation. Zero tolerance is an idea mocked routinely on both the right and the left these days, but in the process many forget that, not only did the right once strongly support the idea, but they agreed that it was a great solution for a host of problems. Now, granted, the left was always critical, but that is inevitable when a project involves strict punishment, but the right, like most of the public, have bought into a (rather convenient*) confusion of two terms, which have led to the rejection of a valid concept, as well as providing another argument for those who dismiss "absolutes" and heap inordinate praise on "flexibility" and "discretion"**.

But I am getting ahead of myself. Let us first describe exactly what "zero tolerance" means, or, rather, what it originally meant, and what additional meaning was later grafted onto it, leading to the current confusion.

Originally, zero tolerance was applied to the policing approach made famous in New York City during the Giuliani administration, though it had been used successfully any number of other places a well. The idea, put simply, was that allowing small crimes to "slide" makes it easier to allow bigger crimes to pass unnoticed too. The logic behind this was twofold. First, when the citizens, and police, get used to ignoring "little" infractions, they become used to ignoring bigger ones as well, and eventually they get so used to crime that they fail to report even the most serious. Second, when we ignore small crimes it is obvious (the example used was a broken window going without repairs). Criminals notice the lack of attention to law, and so do the citizens. For the citizens it becomes a message that crimes that are reported will be ignored, and so they don't even bother. For the criminals, it sends a similar message, that crimes can often be committed with impunity. 

And working form those assumptions, the original zero tolerance movements made the simple assumption that, if ignoring small crimes makes crime grow worse, then perhaps enforcing small "quality of life" laws, we might discourage worse crimes. The original movement said nothing about the penalties for such minor infractions, did not establish policies demanding jail time for misdemeanors, or anything of the sort. All the original policy said was that we need to enforce all the laws diligently, and, in so doing, we will end up helping to discourage not just those minor crimes, but the major ones as well.

The term, however, was eventually co-opted by other, related movements, most notably a movement within the public schools advocating strict, immutable punishment for seemingly minor violations***. It is easy to see how this came to be associated with the original concept of zero tolerance, as the imposition of harsh punishments could be seen as a logical extension of the concept of refusing to ignore minor infractions, but sadly, the new zero tolerance is not quite the same as the old, at least in three very important ways.

First, though it has often been characterized as a hard nosed policy with no room for individual thought, the original zero tolerance did not deny officers any ability to exercise discretion. What zero tolerance decried was the policy of "writing off" certain neighborhoods, or simply accepting certain categories of criminal acts. For instance, it was common in many cities to completely ignore loitering and public drinking laws. Zero tolerance did not say the police had to round up everyone violating such laws. What the policy said was that police needed to begin enforcing those laws again, and doing so openly enough that it become common knowledge that such actions would not be tolerated. And so, unlike the public school zero tolerance, the original zero tolerance did not force the arrest of every violator, nor did it eliminate all discretion in when and who to arrest. The original policy simply directed officers to arrest in sufficient numbers that it was clear the law was being enforced.

Second, zero tolerance did not involve harsh punishments for minor infractions. While the public school approach draws that conclusion from the zero tolerance logic, assuming that adding harsh punishments to minor crimes will "show we are serious and prevent larger crimes, the original zero tolerance policy did not advocate any change in penalties, simply the enforcement of existing laws and the imposition of the current punishments for those minor crimes. The idea being that it was not the punishment which mattered, what would change the society was the knowledge that crime, even minor crime, would not be tolerated. And that message could be sent with small punishments, at least for minor crimes, as well as with large punishments.

Finally, the original zero tolerance did not modify the laws. There was nothing in the policy which endorsed expanding current laws to cover new areas of behavior. The original zero tolerance was perfectly content with the laws as they stood at the time. On the other hand, modern public school "zero tolerance" took existing rules and extended them, sometimes by analogy, to entirely new areas. For example, taking drug dealing rules and extending them to include those students who gave over the counter medications to friends. Or taking laws against weapons and expanding them to cover fake weapons, drawings of weapons, even fingers held in the shape of a gun. This extension of the laws to cover actions not previously illegal was not part of the original zero tolerance policy. Only the new incarnation included this peculiar modification.

And thanks to those changes, "zero tolerance" began to take on a new meaning, and began to suffer general ridicule. As a result, the concept that crime is best deterred by consistent enforcement of all laws, big and small, was forgotten, because of the laughter directed at attempts to suspend elementary school students for drawing pistols. But that did not make the idea itself invalid. In fact, subsequent experience has shown that it is every bit as valid as ever. In those few places where the original zero tolerance concept persisted, despite public mockery, it has continued to work. On the other hand, in the many places which rejected the original idea, crime has seen a resurgence.

So, what is my point? I suppose I could have written this just to give rambling, tedious history lesson, but regular readers know I usually have some other motive behind my examinations of the past. And this is no exception.

The reason I mention zero tolerance is because it relates well to a topic which has come up several times recently. In "Pyrrhic Victories"and "Continuing Foolishness", I mentioned the way that conservatives, trying to embarrass the Obama administration, took them to task for insufficiently regulating BP, basically giving up their commitment to small government to gain some small political advantage. In "Who Is Safer?", "Impractical Pragmatists" and "The Inevitable Corruption of Protectionism"I discussed the tendency of conservatives to respond to various crises by making exceptions for "reasonable regulations". In "Best of the Web gets It Very, Very Wrong" and "Free Speech, Absolute Rights and the Absurdity of "Balancing Tests""I discussed the similar tendency for conservatives to abandon principle when public opinion makes principled stands unpopular. And, of course, in the past, I discussed many times, the habit of turning to the government for solutions, even when it was an inappropriate solution, from "Authoritarian Oil Talk" discussing regulation of oil during the 2007 crisis to "Doing Something" and "Don't Blame the Politicians" talking about the general pattern of always turning to the government to "The Single Greatest Weakness", explaining the way that a lack of understanding of principles can lead to such habits.

What all such essays have in common is the principle I described in "Inescapable Logic", and then elaborated upon in "The Endless Cycle of Intervention" and later "Smaller Government , Fair Weather Friends and Special Cases". And that logic is identical to the logic of zero tolerance. If we allow for small "exceptions", if we embrace popular interventions in order not to alienate the public, we allow for the slow creep of intervention until we have essentially surrendered to the big government advocates. 

What makes this troubling is how few on the right seem to realize this. What once was the group supporting principles, willing to spend time in the political wilderness rather than sacrifice core values, has instead become two different things. First, the "soft right", willing to sacrifice values for political gain. (No, I do not oppose all compromise, only compromise on principles -- see "Cigarettes, Sudan and Abortion" for the distinction.) Second, the "populist right", which has decided to forgo principles in favor of emotional responses. Angry over this issue or that, they respond emotionally, not intellectually, not with principles, and they end up often becoming indistinguishable form the left. One need only look at the "paleo-con" platform to see how emotional reactions can lead the supposed right to a conclusion almost indistinguishable from the left. (See "Misplaced Blame and A Power Play", "Remember I Predicted It" and "A Question for "Paleo-Conservatives"".)

What we need is simple. We need clear and definite principles. We need to make those principles clear to everyone. (See "A True Conservative Platform" for one suggestion.) More than that, we need to make clear to everyone why we uphold those principles. And finally, we need to make clear that, while we may compromise on the methods, accepting half-solutions as a step toward a full solution, we will not compromise on our principles themselves.

And, as with zero tolerance, I think this sort of approach will have a beneficial effect. The public has become used to opportunism, lack of principle and simple deceit. ("Deadly Cynicism", "Self-Serving Cynicism and Our Cultural Immaturity", "The Presumption of Dishonesty", "Lying Politicians and "Other People"", "An Interesting Comment") If they are confronted with a party, or even a faction within a party, adhering to clear principles, acting with honor and consistency, they will begin to expect the best, rather than the worst, and instead of the opportunists having the upper hand, the ethical will. But that only works if we are brave enough to risk everything on a principled position, to surrender the dubious benefits of opportunism and populist manipulation.

Of course, we have gained very little from those "realistic" positions other than more and more big government and intrusive regulation. ("The Shortcomings of Pragmatism", "Pragmatism Revisited", "Pragmatism Revistied, Again", "The Plural of Anecdote is Not Data", "Rules of Grammar and Pragmatism") Which makes me wonder why we are so reluctant to give them up. ("Defending Freedom?")

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* It seems that some may have confounded the two types of "zero tolerance" not out of laziness, but with a motive. After all, if the original concept of zero tolerance can be made a topic unfit for discussion by confusing it with the other, then we will be unable to assess the success of that original idea, and any attempt to revive it, or something similar, can be dismissed as "zero tolerance" and rejected based on the failings of a different idea entirely.

** I won't go into it here, but there are times for absolutism and times for compromise. See "Cigarettes, Sudan and Abortion" for some examples. The problem I am mentioning here is that punishment should not be certain, but should be "flexible" and "discretionary". As I have argued repeatedly ("The Problem With Evolving Standards",  "Empathy" Threatens not "Justice" but Predictability", "Sotomayor and Empathy", "Interpretation and Activism", "Why Judicial Activism Hurts",  "The Problem With Tort Reform", "Red Herring", "The Fascination with Change", "Education And Testing"), predictability is the cornerstone of a successful society. Some may argue that fixed sentences can produce injustices in a handful of cases, but I would argue that the possibility of a lenient sentence does more harm by creating more crime. When a harsh sentence is certain, then the criminals will act or not based entirely on our punishments. When punishment is flexible, they may risk crime based on a belief in personal charm, the impression juries are lenient in a certain region, hope in "jury nullification" based on nationality, race, sex, religion or whatever, or any of a dozen other reasons. In short, while harsh sentences may punish a few of the guilty "too harshly" by someone's standards, or compound the damage done by a wrongful conviction, the damage done by flexible sentences is far worse, as it leads too many potential criminals to try "rolling the dice", when a certain sentence would more likely discourage them.

*** My dislike for the public school "zero tolerance" policies may seem to contradict my fondness for fixed sentences, but it does not. My objection to the schools' use of zero tolerance is not the fixed punishments, those could be perfectly acceptable if used properly. My problem is with what they choose to punish (eg. Midol and aspirin being treated the same as heroin, or the "guns" made for Lego figures being treated the same as an FN-FAL) and the scale of the punishment they chose to impose (eg. several days of suspension for the aforementioned Midol or aspirin). There is nothing inherently wrong with fixed sentences. Some argue they give no "discretion", but the discretion should come long before punishment, when teachers and others decide whether to make an issue of a specific action in the first place. If the teacher decides a very minor, technical violation is not worth reporting, then there is no need to worry about the punishment mandated. The problem with much of public school zero tolerance is not the punishments so much as the teachers who (either through choice or because they are restricted by policy) do not exercise sufficient discretion in choosing when to punish. (And no, this does not violate the original concept of zero tolerance, as even the original concept allowed that some technical violations may not merit punishment. Originally, zero tolerance did not mean failing to use one's powers of discrimination. Though in modern times it seems to mean just that.)

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POSTSCRIPTI made very similar arguments in "You Lose When You Think You Win", "Why We Lose", "Giving Away the Game", "Of Wheat and Doctors", "Selling Yourself Cheap", "The FairTax's Liberal Assumptions", The Difficulty of Principle", "What We Deserve", "What is Wrong with Us" and "Pyrrhic Victories". As I mentioned adopting clear principles, I suppose I should provide some of those as well. So, if anyone is interested, my suggestion for a valid basis for conservatism can be found in my posts "My Vision of Government", "My Vision of Government Part II", "Man's Nature and Government", "Prelude", "Negative and Positive Rights", "Symmetry and Asymmetry in Government", "Planning For Imperfection", "Why I Am Not A Libertarian", "The Benefits of Federalism", "Reticent To Adopt a Title", "Culture and Government" and "Greed Versus Evil".

Originally posted in Random Notes on 2010/06/26.


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