THE LAW, DISCRETION AND ZERO TOLERANCE

Policies of zero tolerance can put police, teachers and other
enforcers of rules in very awkward positions. In Detroit, federal
authorities must stand guard over a big shipment of birdseed because
it contains a tiny trace of THC, the active ingredient in marijuana.
In Jacksonville, the city must pay a man $47,720 because he didn't
drink a glass of beer.

The problem is not with police, in the case of the costly beer mug, or
with the Drug Enforcement Administration, in the case of the 20 tons
of impounded birdseed. The fault lies with the growing popularity of
rules and laws that allow for no sensible discretion.

A prudent anti-drug policy would, for example, come down hard on
attempts to smuggle in useful amounts of psychoactive chemicals. It
would not, as in the case of the load of sterilized hemp seed, worry
that trace amounts of THC apparently rubbed off on some seeds from the
hemp leaves during harvesting in Canada, where industrial hemp is
legally grown.

A sensible policy would consider how many cigarettes of birdseed a
person would have to smoke to get the slightest measure of
intoxication, discover it to be in the thousands, and allow agents to
move on to more serious infractions, such as truckloads of cocaine.

Drug officers say it is illegal to import any amount of THC, so that
even though the intoxicant level of the birdseed was a mere 0.0014
percent, they must shield U.S. birds from it as though it were actual
marijuana, with a THC level of 4 to 20 percent, marketed to humans.
The seed importer, Canadian farmer Jean Laprise, asks the correct
question of the zero-tolerance policy: ``How many zeros do they want?``

He may find some encouragement in the recent ruling in Jacksonville.
In 1997, a young man celebrating his college graduation stepped
outside a Jacksonville Beach restaurant with a glass of beer in hand.
He was promptly arrested by an officer enforcing a zero-tolerance
policy for street drinking.

After hearing testimony that the man didn't actually drink any of the
beer, a jury awarded him enough money to keep him in beer the rest of
his life. In the meantime, Jacksonville wisely tempered its
anti-drinking policy.

There are places where zero tolerance of certain things is necessary -
bomb threats in schools or airports come to mind. But in most
circumstances, everyone is best served if punishment is calibrated to
match the size of the crime.