Pubdate: Sun, 23 Apr 2000
Source: Washington Post (DC)
Section: A Look At
Copyright: 2000 The Washington Post Company
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Author: Jeffrey Rosen

ZERO TOLERANCE WHEN GOOD POLICING GOES BAD

THE CONCEPT is an artificial one--no police force can arrest all 
lawbreakers. But that's not the only thing wrong with the way some police 
forces are applying a once-innovative idea, the author argues.

At the end of March, Baltimore's police commissioner resigned after a group 
of New York consultants urged him to adopt a "zero tolerance" 
crime-fighting strategy similar to the one New York City Mayor Rudolph 
Giuliani had implemented there.

The dispute in Baltimore casts light on a national debate about how to 
police inner-city crime. Mayor Martin O'Malley promptly named as acting 
commissioner Edward Norris, a former New York City police officer who had 
risen through the ranks by promoting zero tolerance. "There's a crisis 
going on here," Norris told a radio call-in show. "The mayor won the 
election with a zero tolerance program. That tells me a lot of people are 
tired of having people standing in the neighborhood selling drugs openly." 
With that, Norris committed himself to reducing the city's crime rate by 
using a method of policing that advocates arrest for nearly every crime and 
has become particularly controversial since the recent deaths in New York 
City police shootings of two unarmed men, Amadou Diallo and Patrick Dorismond.

By insisting that zero tolerance is the key to fighting crime, Norris--like 
O'Malley and Giuliani--is confusing two very different theories of 
policing. "Broken windows" policing aims to deter the social disorder that 
breeds more serious crime by giving cops broad discretion about whether to 
makes arrests for low-level offenses. Zero tolerance focuses on discovering 
(not deterring) crime by mandating that police stop, frisk and arrest vast 
numbers of people--many of whom are young black and Hispanic men--for minor 
offenses, in the hope that subway turnstile jumpers and pot smokers will 
turn out to be guilty of more serious offenses. That's a crucial 
distinction. Broken windows has brought down crime rates in cities around 
the nation; zero tolerance threatens to undermine the popular support on 
which effective crime-fighting ultimately relies.

For most of American history, the police enjoyed free rein to enforce or 
not enforce vague vagrancy laws, which protected health, safety and morals. 
 From the late 1880s until the 1950s, more than half the arrests in 
America's large cities were for drunkenness, disorderly conduct, vagrancy 
and suspicious conduct.

This was not zero tolerance, because vagrancy laws were enforced 
selectively. As Robert Ellickson of Yale Law School has noted, until the 
'50s, cities like New York operated under the so-called skid row system, 
which tolerated far greater levels of public disorder in certain areas than 
in others. But public loitering laws came under constitutional and 
political fire in the 1960s for the same reason Giuliani's zero tolerance 
policy is under attack today: discriminatory enforcement. Because of the 
laws' vagueness, critics charged, police used them to single out vulnerable 
groups--especially racial minorities.

Citing these concerns, the Supreme Court in the '60s and '70s began 
striking down public disorder laws on the grounds that they were too vague. 
This constitutional revolution had a disastrous effect on law enforcement. 
As William Stuntz, a professor of criminal procedure at the University of 
Virginia has pointed out, once it became harder for foot patrols to remove 
the disorderly, police retreated into their patrol cars--turning to a more 
reactive style of policing. Ironically, this transformation occurred at the 
very moment research began to demonstrate that reactive strategies could 
not effectively combat crime. In 1982, James Q. Wilson and George Kelling 
published their celebrated "Broken Windows" article in the Atlantic 
Monthly, arguing that policing lower-level public disorder--loitering, drug 
use, gang activity and public drinking--was the most effective way to 
diminish the fear and social disorder that allowed more serious crime to 
flourish.

In the '80s and '90s, responding to this new conventional wisdom, city 
councils around the country passed new laws prohibiting specific acts of 
public disorder. By framing the new "quality of life" laws more narrowly 
than their predecessors, cities avoided the untrammeled discretion that had 
led courts to invalidate previous legislation. Cities such as New York and 
San Francisco prohibited loitering for the purposes of engaging in 
prostitution or selling drugs, and allowed the police to disperse 
panhandlers lingering within 30 feet of a cash machine.

This, still, was not zero tolerance. If the new laws prohibiting minor 
quality-of-life offenses--from jaywalking to drinking in public--had truly 
been enforced without exception, most residents of New York and Baltimore 
would be facing charges. The broken windows approach instead urged cities 
to use quality-of-life offenses to increase police discretion, not to 
eliminate it. By allowing police to choose among a wide variety of 
sanctions for public disorders--from informal warnings to formal 
citations--the broken windows policy viewed arrest as a last rather than as 
a first resort.

William Bratton, then New York's transit police chief, cracked down in 1990 
on low-level disorder in the subways, such as turnstile jumping. Subway 
felonies dropped 75 percent, and robberies dropped 64 percent. When 
Giuliani made Bratton police commissioner in 1994, Bratton brought his 
approach to the entire city. Between 1990 and 1997, misdemeanor arrests 
increased by more than 80 percent. And the initial reviews were positive, 
even in minority communities. In a New York Times poll conducted in 1997, 
at the end of Giuliani's first term, 44 percent of African Americans said 
the NYPD was doing a good or excellent job.

But, around that time, the broken windows approach morphed into zero 
tolerance, and a crucial opportunity to win minority support evaporated. 
The police began seeing the arrests of fare beaters as a tool of criminal 
investigation rather than an end in themselves. Stopping and frisking 
numerous ordinary citizens, Giuliani, Bratton and Howard Safir (Bratton's 
successor) reasoned, would make the people carrying illegal guns fear that 
their weapons would be discovered during an arrest for a more minor 
offense. And this would deter them from carrying guns in the first place.

It was this approach that led to undercover operations such as Operation 
Condor, under which officers shot Dorismond last month after approaching 
him to buy drugs he didn't possess, and to the formation of the infamous 
Street Crimes Unit, four of whose officers shot the unarmed Diallo. Under 
Operation Condor, narcotics officers volunteered to work overtime to arrest 
people for minor crimes, such as smoking marijuana and trespassing. Between 
1999 and 2000, narcotics division arrests for misdemeanors increased by 68 
percent. As the New York Times has noted, 75 percent of Operation Condor's 
arrests have been for misdemeanors and trivial crimes. In other words, the 
zero tolerance thesis--that turnstile jumpers would turn out, under 
investigation, to be carrying illegal guns--proved to be wrong: Many pot 
smokers were guilty of nothing more than smoking pot. Members of the 
narcotics unit found themselves arresting scores of low-level offenders. 
These were precisely the people who, under the broken windows approach, 
might have been given a warning rather than a handcuff. The result was 
rioting on Flatbush Avenue.

What's more, in an age of limited resources and rampant criminalization, 
the promise of zero tolerance is, by definition, a lie. The police cannot 
possibly prosecute all minor offenders with equal force: New York's jails 
are not large enough to put all the pot smokers behind bars. Instead of 
genuine zero tolerance, the police must inevitably exercise discretion 
about where to focus their limited resources. The result is an ironic 
inversion of the old skid row system. Now people in the upscale 
neighborhoods can misbehave with impunity while those in rougher parts of 
the city are held to the most exacting standards. And that raises the 
following objection: Why should pot smokers in the Bronx be arrested under 
zero tolerance, while pot smokers in the wealthy neighborhoods of Manhattan 
light up without fear of police interference?

One way of avoiding this discrimination would be to adopt a genuinely zero 
tolerance approach, targeting the rich as well as the poor, using search 
warrants and high-tech investigations to surprise rich white drug users in 
their Manhattan apartments and suburban country homes instead of focusing 
exclusively on open-air drug markets in Brooklyn, Harlem and the Bronx. 
Such a strategy would provoke the same demonstrations on Park Avenue that 
it inspired on Flatbush Avenue--which is why it will never happen.

A better solution would be to abandon the misleading rhetoric of zero 
tolerance--except in higher-crime neighborhoods where it enjoys political 
support. In a little-noticed but highly successful experiment early last 
year, the 33rd Precinct designated West 163rd Street in Washington Heights 
as a "model block." The police held a community meeting explaining their 
strategy for getting rid of drug dealers; they then set up barricades on 
both ends of the block, checked the IDs of all passersby and investigated 
even the most minor infractions. Once the benefits of the effort had become 
obvious--crime dropped by 20 percent--residents practically begged the 
police not to take the roadblocks down.

The Washington Heights experiment confirms what cities that have 
successfully applied the broken windows strategy have long known: The 
politics of law enforcement are just as important as the sociology of law 
enforcement. As Dan Kahan of Yale Law School says, order maintenance is "a 
drug whose primary effect is that it will reduce crime, and its side effect 
is that it may exacerbate political tensions."

In Boston, the police department reached out to gang members and ministers 
from black churches to build community support for aggressive strategies to 
reduce gun violence. In Chicago, the city council passed an anti-gang 
loitering law, with key support from the city's black neighborhoods. "The 
only way to make order-maintenance policing a lasting presence is to make 
sure that the people affected have a role in the process, so they don't 
feel that they're being controlled by an occupying army," says Kahan.

If the zero tolerance fiasco teaches anything, it is that the dream of 
removing prosecutorial discretion--in other words, politics--from law 
enforcement is the surest way of subverting the public support on which 
successful prosecutions rely. Like the backlash against Kenneth Starr's 
investigation of President Clinton--another failed effort based on zero 
tolerance of relatively minor offenses--the backlash against Giuliani 
reminds us that effective law enforcement officials must seek the political 
support of the communities they serve.

Jeffrey Rosen is an associate professor of law at George Washington 
University and legal affairs editor of the New Republic, in which a longer 
version of this article originally appeared.

Zeroing In

Zero tolerance has recently been associated with inner-city policing. But 
the idea is elastic, and it is used in other walks of life. Some examples 
of its waxing and waning appeal:

CHANGING CUSTOMS

* In 1986, U.S. Customs Commissioner William von Raab, saying "we cannot 
tolerate any drugs in our society. . . . We will show no mercy," began a 
zero tolerance anti-drug program that permitted authorities to seize 
thousands of boats, cars, planes and trucks at U.S. borders even if minute 
amounts of illegal substances were found on board.

* "Heavy-handed" is how a Customs spokesman described the policies only two 
years later, as Congress modified seizure guidelines to avoid penalizing 
commercial fishing companies and boat charters that had lost their vessels 
because of the drug use by employees or guests. By 1989, the program was 
deemed "never workable" by a Bush administration official.

AT SCHOOL

* Reacting to a rise in gang activity on the streets, parents and police in 
the Yonkers, N.Y., School District developed a 12-step zero tolerance 
program for public schools in 1990 that called for suspension of any 
student "involved in a disruption," adult monitors on all school buses and 
drug education courses. By 1996, more than 30 states had tougher suspension 
and expulsion rules.

* More recent stories of zero tolerance policy abuse included a Chicago 
fourth-grader who forgot to wear his belt and was suspended for violating 
the dress code; a 13-year-old in Texas who was suspended for carrying a 
bottle of Advil in her backpack instead of giving it to the school nurse; 
and an 8-year-old Louisiana girl who was suspended from her magnet school 
for bringing a family heirloom to show-and-tell that consisted of a 
gold-plated pocket watch and fob with a 1-inch knife attached to it.

D.C.'S OWN

* Then-District Police Chief Larry Soulsby's zero tolerance crime 
initiative, which started in March 1997, put more police officers on the 
streets making more arrests for minor offenses such as disorderly conduct, 
panhandling and traffic violations. Many city residents felt their 
neighborhoods were safer as a result; others decried the increased 
harassment of certain segments of the population, such as young black men. 
Three months after the initiative began, the number of reported crimes was 
down 16 percent. And there were 4,253 more arrests for minor offenses in 
1997 than the previous year.

ONE CONCLUSION

* In 1998, police in Bowling Green, Ohio, relaxed their zero tolerance 
policy on college drinking violations a year after adopting them in a move 
to crack down on alcohol-related violence near Bowling Green State 
University. Deputy Police Chief Sam Johnson said, "We came to the 
conclusion that it sounds sort of Gestapo-ish," explaining the force's 
desire to avoid clashes with students over the same issue at other 
universities.
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