Zero Tolerance is Alive and Well

I remember the first time I heard the phrase. I was a young public defender in juvenile court, helping my middle school-age client.

The prosecutor was apologetic. “I’m sorry. The school has a zero-tolerance policy on weapons. It’s dumb, but there’s nothing we can do”.

The dumb situation wasn’t just my client’s expulsion from school. It was more than just the Principal calling the police. It resulted in a criminal charge of Possession of an Assault Weapon.

The weapon? Teachers had found in his pocket a tiny silver fingernail clipper. Or, to be more precise, the little swing-out bit of metal used to file or clean under the nails. It was pointy, sort-of sharp, longer than it was wide (an inch and a quarter long, according to the formal police report) and therefore met the description of a knife as set forth in the school’s zero-tolerance policy.

Justice prevailed. Our judge had the nerve to do what the assistant county attorney didn’t: she dismissed the charge with a roll of her eyes. But my client had missed weeks of school and, worse, had internalized an image of himself as a wrongdoer. The consequences were crazily out of proportion with the accused misbehavior.

With countless clients thereafter, I found myself seething every time we heard “zero tolerance” as a rationale for making a decision. Zero tolerance became shorthand for saying “Look. I’m really lazy and don’t want to do the hard work of evaluating situations that exist in confusing gray areas of the spectrum. It’s far easier for me to just pretend the world is dichromatic, just black or white, yes or no … never maybe”.

In the years that followed, schools began to back away from their zero tolerance policies. There were too many absurd results, and the numbers showed the policies were disproportionately applied to students of color.

But the allure of lazy policy did not go away. Zero tolerance is fully alive in 2017 and zealously applied to obnoxious behaviors by men toward women. Senator Al Franken touched womens’ butts during photo ops, so he must go. After all, we have zero tolerance toward butt-touching. Party leaders weren’t willing to consider that Senator Franken is one of the only bulwarks protecting our country against totalitarian takeover by white supremacists and other alt-right extremists. Alone, he persistently questioned Attorney General nominee Jeff Sessions and caught him in a lie. Alone, he vigorously challenged Trump’s nominee for the Supreme Court. No other Senator has been as willing to expend personal energy and political capital to slow the destruction of American democracy.

But no more. Because some Democrats demand unquestioned moral purity in their leaders, Franken is soon gone. With a simple, dichromatic worldview, many find it impossible to see any difference between Roy Moore, a Senatorial candidate who denies multiple, credible accusations of child predation and attempted rape, and Senator Franken — who admitted butt-touching during photo ops. There is no gray area allowing debate and evaluation, and little ability to weigh the consequences of Franken’s expulsion against the harms of his acknowledged misbehavior. Apology and forgiveness? Impossible. When zero tolerance policies rule, thoughtful discussion cannot even begin.

Perversely, as Franken is headed to the scrap heap, Moore seems likely headed to the Senate.

The consequences are crazily out of proportion with the accused misbehavior. It’s dumb, but there’s nothing we can do.