0 Tolerance

A policy of no exceptions sounds good but can lead to absurdity - even the opposite of intended results, experts say A

October 23, 2005|BY ALEC MACGILLIS | BY ALEC MACGILLIS,SUN REPORTER

The line of offenders is a motley one: "squeegee" men, alienated high-schoolers, rowdy fans - and now, those who would dare to take the wheel after enjoying a wine or beer.

The crime? Transgressions against the ever-expanding code of zero tolerance.

The news of the latest offense arrived with a sobering jolt among the legions who like a drink or two with their dinner out or ballgame hot dog, and who are proud of knowing their limits. It was reported this month that a 45-year-old woman, a lawyer and mother of two from Alexandria, Va., was arrested and charged with driving under the influence in Washington, D.C., this year after having a single glass of wine at a dinner in Georgetown. The woman's blood-alcohol content was .03, well below the legal limit of .08, but the officer cuffed her anyway, and she spent hours in jail before fighting for months to have the charge dropped.

More startling, the arrest was well within the rules. The district's laws have allowed officers to arrest drivers for DUI no matter how low their blood-alcohol content, if the officer has reason to believe the driver is impaired. Hundreds of people, it turns out, are arrested each year in the district with blood-alcohol levels below .08. Similar arrests have been reported elsewhere, though in many states, there is a limit - .05 in Maryland - below which one is presumed not to be under the influence. Amid an uproar over the woman's arrest, the Washington City Council voted for such a .05 threshold last week.

The district's approach until last week struck many as baffling: How could one be accused of a crime if one was shown, by law enforcement's own barometer, not to have violated the law? What such disbelief failed to take into account, though,was the breadth of the philosophy under which the district police are operating when it comes to DUI. As Elizabeth Wingo, chief of the criminal section in the Washington, D.C., attorney general's office, explained to The Washington Post:

"We have zero tolerance for drunk driving. It doesn't matter what your blood alcohol level is," she said. "If you blow .02 and officers can tell you're impaired, you'll be arrested for DUI."

Zero tolerance.

The concept, which took off in the tough-on-crime environment of the 1980s and '90s, has come to be applied to a broad swath of misconduct, from unruly behavior by sports fans to sexual abuse by priests. Its invocation by the D.C. authorities was only further proof of how malleable it has become, to the point where it is being used to outlaw behavior that is seemingly within the law.

But as popular as the phrase has become with law enforcement, school officials and others in authority, there is widespread doubt among sociologists about the strategy's effectiveness. There is little evidence that zero tolerance works as a deterrent for many behaviors, they say, and there is good reason to believe it can reduce the ability of authorities to maintain order, by limiting their freedom to respond to each incident on its own terms.

"It's a phrase that's caught on, but it's not a very reasonable proposition, ever, because it means no flexibility, no exercise of discretion, no judgment, no room for reflection," said Andrew Karmen, a sociologist at the John Jay College of Criminal Justice in New York. "It becomes a very automatic kind of policy."

That, of course, is the strategy's appeal to politicians or others in authority who invoke it, and to citizens who take comfort in it: Zero tolerance leaves no wiggle room for excuses, for scheming lawyers or squishy judges. It promises a more evenhanded and efficient application of the law, free of bias or favoritism.

The problem, sociologists say, is that it doesn't always work that way in reality. As fixed as the policy may seem, those in authority still make subjective judgments about when they will bring the zero-tolerance hammer down on a particular individual - in many instances a blanket application of zero tolerance simply isn't practicable for even the most zealous of enforcement bodies.

What results, sociologists say, is a less desirable form of discretion than exists in the absence of zerotolerance rhetoric. Rather than employing his judgment to decide whether a certain act or brand of behavior, in all its particulars, rises to the level of meriting a response, and then having the flexibility to calibrate the response to the nature of the infraction, the authority figure in a zero-tolerance regime has in mind a fixed definition of the violation and a fixed punishment. The discretion shifts simply to the question of whom to wield this blunt and heavy instrument against.

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