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.