Zero-Tolerance Policies

Recent stories have documented the ridiculous effects of zero-tolerance weapons policies in a Delaware school district: a first-grader expelled for taking a camping utensil to school, a 13-year-old expelled after another student dropped a pocketknife in his lap, and a seventh-grader expelled for cutting paper with a utility knife for a class project. Where's the common sense? the editorials cry.

These so-called zero-tolerance policies are actually zero-discretion policies. They're policies that must be followed, no situational discretion allowed. We encounter them whenever we go through airport security: no liquids, gels or aerosols. Some workplaces have them for sexual harassment incidents; in some sports a banned substance found in a urine sample means suspension, even if it's for a real medical condition. Judges have zero discretion when faced with mandatory sentencing laws: three strikes for drug offences and you go to jail, mandatory sentencing for statutory rape (underage sex), etc. A national restaurant chain won't serve hamburgers rare, even if you offer to sign a waiver. Whenever you hear "that's the rule, and I can't do anything about it" -- and they're not lying to get rid of you -- you're butting against a zero discretion policy.

These policies enrage us because they are blind to circumstance. Editorial after editorial denounced the suspensions of elementary school children for offenses that anyone with any common sense would agree were accidental and harmless. The Internet is filled with essays demonstrating how the TSA's rules are nonsensical and sometimes don't even improve security. I've written some of them. What we want is for those involved in the situations to have discretion.

However, problems with discretion were the reason behind these mandatory policies in the first place. Discretion is often applied inconsistently. One school principal might deal with knives in the classroom one way, and another principal another way. Your drug sentence could depend considerably on how sympathetic your judge is, or on whether she's having a bad day.

Even worse, discretion can lead to discrimination. Schools had weapons bans before zero-tolerance policies, but teachers and administrators enforced the rules disproportionally against African-American students. Criminal sentences varied by race, too. The benefit of zero-discretion rules and laws is that they ensure that everyone is treated equally.

Zero-discretion rules also protect against lawsuits. If the rules are applied consistently, no parent, air traveler or defendant can claim he was unfairly discriminated against.

So that's the choice. Either we want the rules enforced fairly across the board, which means limiting the discretion of the enforcers at the scene at the time, or we want a more nuanced response to whatever the situation is, which means we give those involved in the situation more discretion.

Of course, there's more to it than that. The problem with the zero-tolerance weapons rules isn't that they're rigid, it's that they're poorly written.

What constitutes a weapon? Is it any knife, no matter how small? Should the penalties be the same for a first grader and a high school student? Does intent matter? When an aspirin carried for menstrual cramps becomes "drug possession," you know there's a badly written rule in effect.

It's the same with airport security and criminal sentencing. Broad and simple rules may be simpler to follow -- and require less thinking on the part of those enforcing them -- but they're almost always far less nuanced than our complex society requires. Unfortunately, the more complex the rules are, the more they're open to interpretation and the more discretion the interpreters have.

The solution is to combine the two, rules and discretion, with procedures to make sure they're not abused. Provide rules, but don't make them so rigid that there's no room for interpretation. Give the people in the situation -- the teachers, the airport security agents, the policemen, the judges -- discretion to apply the rules to the situation. But -- and this is the important part -- allow people to appeal the results if they feel they were treated unfairly. And regularly audit the results to ensure there is no discrimination or favoritism. It's the combination of the four that work: rules plus discretion plus appeal plus audit.

All systems need some form of redress, whether it be open and public like a courtroom or closed and secret like the TSA. Giving discretion to those at the scene just makes for a more efficient appeals process, since the first level of appeal can be handled on the spot.

Zachary, the Delaware first grader suspended for bringing a combination fork, spoon and knife camping utensil to eat his lunch with, had his punishment unanimously overturned by the school board. This was the right decision; but what about all the other students whose parents weren't as forceful or media-savvy enough to turn their child's plight into a national story? Common sense in applying rules is important, but so is equal access to that common sense.

This essay originally appeared on the Minnesota Public Radio website.

EDITED TO ADD (11/11): Another example:

A former soldier who handed a discarded shotgun in to police faces at least five years imprisonment for "doing his duty."

Posted on November 3, 2009 at 11:17 AM • 49 Comments

Comments

Ride FastNovember 3, 2009 11:31 AM

I think an even better way is to deal in gross negligence, willful intent and damage.

Bringing a camping tool to school isn't negligent, there is no intent to harm and there is no damage. Therefore, no violation.

Bringing a bomb on an airliner is grossly negligent. Bust that fool.

Bringing a gun on plane is no problem, for example, unless one or more of the three violations is perpetrated.

This would easily cover 95% of all situations and eliminate 95% of the rules, laws and regulations.

Petréa MitchellNovember 3, 2009 11:39 AM

Actually, aspirin carried for menstrual cramps (or any other condition involving bleeding) *is* a bad idea. If you're thinking of the strip-search case that went to the Supreme Court recently, the drug in question was ibuprofen.

Other than that, I particularly liked this one, especially for noting the problems with unmonitored discretion.

nNovember 3, 2009 11:47 AM

In the absence of leadership or responsibility, you have rules. What kind of surprises me here Bruce, is that given your vocal position on so many other issues of people and organizations abdicating responsibility (wire-fraud oriented security?) is that you find this to be "nuanced," which is a typical way to weasel out of being judgmental.

It's pretty easy to write rules that allow for discretion. You have a rule against the undesired effect, not the means to do it. And accept, in that "managing risk" way, that it's never going to work 100% of the time and chill out.

I do hope people don't TL;DR before you get to the key element that's missing from most of these insipid authority setups, which is auditing. There is damn near zero evidence-backed auditing of any zero-intelligence policy.

HJohnNovember 3, 2009 11:52 AM

I agree that discretion and judges are problematic.

You know there is a problem when a judge in Vermont gives a grown man probation (and mandates therapy) for raping a girl repeatedly from the time she is 6 until 10, yet others do prison time if they look at a picture but never touch another human being. (Note, I 'm not saying looking at illegal pictures is okay, I'm saying that one can't argue that looking should be punished more harshly than touching).

Mike BNovember 3, 2009 12:02 PM

I think that something part in parcel with zero discretion policies is the concept of a Jobsworth. Poor policies have ALWAYS been a problem in life, but a zero discretion policy always requires people to implement it and more often than not these people have a choice in how hard they want to enforce a particular policy.

A Jobsworth is someone who for whatever reason feels it is necessary to enforce all those petty inflexible policies and rules and is usually applied to petty administrative types that one requires services from, but I think the concept can cover all manner of people who go out of their way to invoke "the rules."

Despite being "Zero Tolerance" this teacher had all of the discretion in the world to ignore that spork and so did the principle. An actual knife may have been more problematic, but teachers are not expected to be security screeners, they always have the ability to play like Sgt Schultz and see nothing and say nothing, yet some CHOOSE to get involved and make a stink.

Anyway, when encountering a Jobsworth I have tried various strategies like psychological tricks that make them want to help me or even getting angry or publicly shaming them. However, since I have a job with lots of discretionary income my new policy is to see how many of these sorts of people will accept bribes. It will be good to get data on just how much people value maintaining these zero discretion policies.

DuffNovember 3, 2009 12:21 PM

Mike B hits on an interesting wrinkle: in these absurd cases, how many events that trigger "zero tolerance" policy violations are being noticed (or go unnoticed) for external reasons?

When I was in high school, I was singled out and removed from an academic team that was important to me because I committed a minor honor code violation. (I used foul language at lunch) The real reason had to do with an argument in a history class where I proved a teacher to be factually wrong in an obnoxious way.

Because the violation was considered a "zero-tolerance" item, the context of it was immaterial. The fact that 5 other members of the team were doing the same thing, at the same time as I did was irrelevant. (The teacher only recalled hearing my voice)

It definitely forged my feelings towards authority, and I used my newfound disrespect for the school administration and my adolescent obnoxiousness well.

TimNovember 3, 2009 12:40 PM

"13-year-old expelled after another student dropped a pocketknife in his lap"

I *strongly* suspect there was more to it than this. And what makes you believe this kid anyway?

CraigNovember 3, 2009 12:43 PM

There can be problems with discretion, but there will be problems with any approach to these problems. Saying that the problem is not zero-tolerance, but poorly-written rules, basically just sets you off on a never-ending (and impossible to end) quest for the Perfect Rule, which you are about as likely to find as the Holy Grail. Leaving problem resolution to the discretion of real human beings does not guarantee equity or reasonableness in all cases, but it's better than any zero-tolerance policy.

BradNovember 3, 2009 12:51 PM

HJohn:

This is probably a difference in sentencing as written into law. I would assume there is little a Judge could do if the sentences for crimes are pre-defined by legislation.

VTBNovember 3, 2009 1:00 PM

The problem with trying to "cover all the bases" with rules is that you eventually end up dealing with the overarching rule of incompleteness. Since the world is bigger than any model, and the model is bigger than any possible implementation, there will always be cases the rules don't cover.

And then we're back to the TSA problem: Just how much judgment do we allow to be exercised by people we wouldn't trust to feed our dog?

kangarooNovember 3, 2009 1:19 PM

Bruce -- way wrong. The problem is that they're rigid. It's impossible to come up with universally applicable rules -- the best you can do is create guidelines for the implementers. Every situation is unique -- any regulatory system that ignores that obvious reality is a nightmare.

You can't write rigid rules well. It's impossible, because reality isn't rigid and regular.

You have to give authorities discretion -- and then you have to audit them and punish them for poor discretion. You have to give them POWER and RESPONSIBILITY. The failure in systems is that the second part is rarely implemented. Judges get discretion, but when they fail at that discretion there's almost no feedback. When principals act in a biased manner, there's very little that can be done.

So, the half-ass solution is rigid rules that work poorly for everyone, but at least they're "fair". What idiocy! It's regulatory theater, to steal a phrase.

You rage against security stupidities -- yet seem to fail to see the commonality that they all have, the replacement of complicated human judgment in the face of complicate situations with "process" which reduces the authorities themselves to automatons.

wiredogNovember 3, 2009 1:21 PM

I was thinking of this sort of thing when I saw this article this morning:
http://www.washingtonpost.com/wp-dyn/content/...

Basically, a 90 year old woman has trouble providing proper documentation to get an ID card in Virginia, a State which previously issued valid IDs to several of the 9/11 hijackers based on improper documentation.

Bryan FeirNovember 3, 2009 1:23 PM

@Mike B:

Ahh, yes, the Jobsworth. As in, "It's more than my job's worth, guv'nor." After all, you can't be (easily) fired for following the rules, no matter how stupid the result...

ZpNovember 3, 2009 1:25 PM

snake oil justice system... based on obscurity, coercion, protection money, violence and guilty pleas... just a racket... just that the decadent hell's angels would do a cheaper and more ethical job... if not hire the bandidos

kangarooNovember 3, 2009 1:27 PM

Duff's comment is particularly interesting.

The fact is that even in "zero-tolerance" rigid systems, the reality is of wide spread discretion by authorities. You can always "not see" something. You can always "forget" a rule. You can always find a second, contradictory rule to override the first. You can always lose paperwork. It's inevitable.

So, what do you really have? Zero-tolerance simply means that the discretion of authorities becomes UNAPPEALABLE. Once they've decided to start the turning of the wheel, there is no process to stop it, or to punish the authority for poor use of discretion -- since, nominally, no discretion exists.

It's the exact reverse of what is aimed for -- a blind justice system that is automatic and equitable. By removing discretion, you give authorities infinite discretion. By trying to do the impossible, you actually defeat the very purpose you claim.

You need clearly delineated discretion with clear appeals systems and punishments for poor application of discretion. You need a real system and not a mere process.

Clive RobinsonNovember 3, 2009 1:34 PM

@ Petréa Mitchell,

"...or any other condition involving bleeding) *is* a bad idea. If you're thinking of the strip-search case that went to the Supreme Court recently, the drug in question was ibuprofen."

As a person who is in near continuous pain and has to take a large dose of "rat poison" (warfarin) every day I can asure you that ibrpofen is equaly as bad as asprin as are nearly all Non Steroid Anti-Inflamatory Drugs (NSAIDs) when it comes to blood thining and bleeding.

Oh and the other pain relief drugs (CNS) like Tramadol hydrochloride (Zydol) also cause blood thining effects but to a lesser extent.

Unfortunatly for me at effective pain relief levels they cause what to me are unpleasent mental issues (though I'm told some people enjoy the trip) so I generaly only take them at night to help get to sleep.

Oh and other blood thining no no's are cranbury juice, cabbage etc, grapefruit and other things such as alcohol 8(

Mike BNovember 3, 2009 1:59 PM

I wanted to post a little followup to my earlier comment on the amount of discretion that people actually have in "Zero Discretion" situations.

One should keep in kind that a policy is only Zero Discretion is there is some sort of strong auditing process to ensure the policy is being followed. Without auditing workers workers will let the policy slide and instead of Zero Discretion you get Selective Enforcement. Again, this is nothing new because most laws are selective enforcement based on so called unwritten rules. The stink arises when people assume the unwritten rules are written and then are surprised when the Selective Enforcement is applied outside its usual context (like white people being stopped for speeding on I-95).

I bring this up because sometimes in live you can move from a Selective Enforcement regime back to Zero Discretion if auditing mechanisms kick in. This is why parking enforcement officers can't stop writing a ticket once they have begun. The ticket pads are audited so the officers can't solicit bribes. Sometimes this is a good thing like mandatory investigations of harassment or discrimination so that a victim cannot be pressured into withdrawing a complaint, but in terms of poorly written policies it can cause massive institutional stupidity to kick in because when things become "official" and auditable then a person finds themselves under threat by higher level jobsworths or of being made a scape goat if they make a choice to violate the policy.

The only advice here is to try to deal with policy problems before the decisions become auditable. One will find more room for discretion is nobody else is involved or aware of the situation. One might suggest to the decision maker ways that they can exercise discretion in an un-auditable fashion. For example had someone been on hand to strongly urge the principle that a spork is not a weapon BEFORE he filled out an incident report (an audit trail) the situation may have been resolved then and there.

Finally, I wanted to mention perhaps the best weapon against Zero Discretion, which are Zero Discretion policies themselves. The age of poorly written policies means that at any given time someone is probably violating some sort of rule, law or policy. The age of cell phone cameras means that these violations can be easily documented. If one wants to overcome a Zero Discretion policy one's best bet is to catch a worker violating some other policy then use that as leverage to convince them to look the other way in your favor.

I've done this a few times and the look on the Jobsworth's face when they know that you've got them over a barrel is just priceless. :-)

Impossibly StupidNovember 3, 2009 2:19 PM

You offer a false dichotomy. A third choice is to not impose the rule at all. A fourth choice is to give the individuals the ability/authority to agree with each other on a mutually agreeable policy.

DavidNovember 3, 2009 2:42 PM

Another interesting feature is zero-tolerance, zero-discretion rules that are overly broad. For example, my child's school categorically forbids knives (which at least is mostly enforceable), and "weapons", where a weapon is something that can be used to harm another person. (Yes, I believe the baseball team does have access to balls and bats.)

I am, as usual, carrying lots of things that are weapons by that criterion. I have shoelaces, which could be used as garrotes. I have pens, which can be used as thrusting weapons. I have a keyring, and hence the ability to have keys projecting between my fingers when I punch somebody. Alternatively, I have coins for a fistload.

No barely reasonable person is going to call me out on those, and I haven't heard of any outrageous applications in my district lately. However, I am in violation of a zero-tolerance policy by literal interpretation of those words. This means that the weapons policy is effectively completely at the discretion of whoever cares to invoke it. The potential for abuse is tremendous.

cakmplsNovember 3, 2009 2:52 PM

"...what about all the other students whose parents weren't as forceful or media-savvy enough to turn their child's plight into a national story?"

It seems to me this puts us right back in the situation of discriminatory enforcement.

Nomen PublicusNovember 3, 2009 3:21 PM

There is a bizarre desire for 100% security; a kind of Red Queens race where nobody ever loses. If no child has a knife, no child can be cut, so let's have a rule that no child can have a knife...Except in the canteen...and in the craft room...or the garden...or part of a Scout group...or as part of religious observance...Enough, this is too difficult let's just have a "no knife" rule. But what about scissors and pointed sticks?

These silly rules are driving out common sense; this is very bad.

pfoggNovember 3, 2009 3:30 PM

@Mike B: "Despite being "Zero Tolerance" this teacher had all of the discretion in the world to ignore that spork and so did the principle."

The 'camping utensil' is only 'a spork' if nothing happens. It included a short blade (the article had a photo), and if anything did happen (e.g. a minor accident or an ordinary childhood fistfight), and if that tool was present, it would become a case where "six year old has weapon confiscated after incident". That sort of thing can lead to public outcry, lawsuit, and so on.

A zero tolerance policy can often stem from zero tolerance in public reaction.

The same is true for 'racial discrimination and favoritism', and a much broader array of reasonable behavior is subject to the accusation of wrong-doing, since simple correlations and statistical skews can be taken as evidence of willful wrongdoing. (I have highly educated friends make the correlation == causation error, mostly because they're not in a field where they regularly see unrelated, irrelevant correlations leave footprints all over their raw data).

Logically, if we want to switch from zero tolerance to discretionary decisions with auditing and appeals to avoid favoritism and inappropriate discrimination, we should also have a 'discretionary' rather than 'zero tolerance' policy employed by the auditors when looking for favoritism and discrimination.

RHNovember 3, 2009 3:33 PM

Can auditing help this? It seems that the same discriminatory issues that plagued selective-enforcement would plague audits. Do we have quotas? (you must catch 6 white kids with sporks before you can catch your 7th minority with one). Quotas work horribly, see the college campuses where there's jobs unfilled because the employers have minority quotas to fill, but not enough minorities to fill them.

This seems remarkably similar to the security vs. usability. One always fights the other. Think of a triangle, security, usability, and difficulty-to-design. Likewise discretion, non-discrimination, political-appeal forms a triangle.

Tom SNovember 3, 2009 3:56 PM

When I was teaching in the NC school system a few years ago, I did request a written copy of the weapons policy. The policy stated that any object used in a threatening manner was considered a weapon. Hence, if a student picked up a chair and threatened to strike another student with it, that student would be charge with using a weapon in school.

It was up to the observers to use their discretion to determine what constituted threatening behavior.

RoyNovember 3, 2009 4:02 PM

The zero-discretion rules are applied discretionally, allowing unfair discrimination.

I once watched a school principal imperiously espousing that mantra about "anything that can be used as a weapon is a weapon", while wearing a genuine silk tie, which we all know is a tacitly-tolerated garrote. I could have strangled him with it. Or with the sleeve of his shirt, or a pantleg. Shoelaces are also tacitly-tolerated, as are pants belts. No doubt he drove to work, in which case his tire iron is a weapon. Even his spare tire is a weapon, especially when used to burn people alive. The steel door to the classroom could be used to bash someone's skull in. Walls can be used as weapons, as can floors. As can stick pens and wooden pencils. A heavy textbook would make a fine bludgeon.

How many women teachers wear high heels? They have been used as murder weapons. A heavy purse makes a fine bludgeon, and so is a weapon. And we know that pantyhose makes a fine garrote.

I see this as irrational and irresponsible intolerance exhibited in arbitrary and capricious fashion, motivated entirely by the wish to harm innocent children. It is malfeasance of office and should be punished with fines and imprisonment.

Have any doubts? Turn it around: how many faculty get fired when the students report them for infractions of the same rules? (Hint: No authority will make a written report.)

JimNovember 3, 2009 4:14 PM

I think that there is an element that Bruce has at the center of his article from a position standpoint, but is bigger than some of the rest of the article. It has to do with lawsuits.

In a completely unrelated area, as I sought the opinion of medical experts on the health care reform issue, they all responded that tort reform is the first and most effective element of healthcare reform.

Why are people writing these zero tolerance policies in the first place? Well, so that someone doesn't sue the administrators or teachers for using their best judgement?

And why are people so ticked by others using discretion? Well, there were some abuses. And if the administration reprimanded teachers, they would get hit with a lawsuit or a teachers' union action.

Do you see a pattern here? We go to law and policy to avoid developing wisdom, and conviction.

I was explaining to my son a little while ago why they used to use the term statesman, but we hardly ever see that anymore.

Sorry for the vent, but it is the lack of courage and conviction to do the right thing (sometimes in myself too), that has people hide behind nonsense.

I should say that well written policy or law which conveys the will of a community can be of benefit in terms of aligning goals, and communicating them.

RSaundersNovember 3, 2009 4:58 PM

I generally like the "rules plus discretion plus appeal plus audit" formula, but each term has an element of "openness" that the rule makers overlook.

Rules made without open comment are just arbitrary dictum. The FCC can manage to solicit and process feedback on rules for TV or Network Neutrality. The TSA can't seem to process feedback on their rules. Not that I agree with the FCC all the time, but they have an open rule making process.

Discretion depends on the judgment of the folks to whom the rules grant discretion. That means that the public needs an open view of the qualifications of the deciders. The school board members published their biographies when they ran for office and the principal has a professional degree and record. The TSA steadfastly defends the anonymity of their officers. This doesn't imply that they have no real background upon which to base their decisions, but they might not be worthy of more discretion. I guess their lack of discretion might be a good thing.

Appeal needs to be an open process, or at least a process with open metrics. For decades we saw police forces cover up racial bias by simply not collecting the data which would make their blunders obvious. Laws ended these practices, at least in some jurisdictions.

It all boils down to audit. We can't have audit unless the data is openly available to interested parties. Media and advocates need to be able to access the data upon which statistics and trends can be developed. Responding to FOIA requests with "we don't know" or "we don't keep track of that" continues to be the primary tool of power abusers, and the TSA.

GeorgeNovember 3, 2009 5:32 PM

"Zero Tolerance" is nothing more than the bureaucrat's Ultimate Wet Dream. It's a policy devised by officials with limited intelligence intended for implementation by lower-level administrators with zero intelligence. Simple-minded rules that can be mindlessly applied to any situation, regardless of whether the result is appropriate or sensible. No brains involved, just spinal reflexes.

Best of all, the cookie-cutter approach lets everyone involved evade any responsibility for the inevitable absurdity or injustice that results from the intentional avoidance of rational thought: Rules that always apply identically to everyone were applied in the correct brainless fashion, so nothing was wrong. That makes zero tolerance ideal for schools, and particularly for the TSA.

(Although the TSA, in their typical fashion, only has the appearance of zero tolerance. The rules appear simple, but they're intentionally vague, constantly changing, and inconsistently communicated to the people who implement them. Those people pretend to be enforcing zero tolerance, but because the deficiencies in designing and communicating the rules, they're constantly "interpreting" the rules to meet the infinite variety of passengers they encounter. Since they have zero intelligence, their "interpretation" is of course too often stupid and inconsistent. The only thing the TSA actually has in common with zero tolerance is the absurdity of the rules and the mindlessness of their application.)

As you note, bringing in accountability through a redress and audit procedure would serve as a check on the inevitable absurd and unjust results of zero tolerance application. Unfortunately, the intelligence required to administer the redress scheme and the audits would defeat the whole purpose of having a system that requires no intelligence or thought (and thus can be implemented by school principals or Transportation Security Officers). Which can only suggest that zero tolerance is a fad that has outlived its usefulness and deserves an undignified death.

And oh yes.... redress that is "closed and secret like the TSA" is no redress at all. The TSA, after all, does have redress procedures. But they're only available to those who know enough to specifically request them. And about the only way to know that is to spend the time wading through the responses to comments on the TSA's blog where TSA representatives sometimes disclose them in passing. They're not otherwise publicized, presumably for the valid reason that screening would slow to a crawl if passengers knew their rights and asserted them rather than being bullied into doing what's most convenient for the screeners.

For that matter, when redress is "closed and secret," there's no way to know whether the redress system actually consists of a claim form fed into a shredder in the back room. When audits are classified, there's no way to know whether the audit even took place. Redress and audit are useless without transparency.

Petréa MitchellNovember 3, 2009 6:29 PM

"As a person who is in near continuous pain and has to take a large dose of 'rat poison' (warfarin) every day I can asure you that ibrpofen is equaly as bad as asprin as are nearly all Non Steroid Anti-Inflamatory Drugs (NSAIDs) when it comes to blood thining and bleeding."

I did not know that. However, whatever the reason, AFAIK, ibuprofen is the recommended OTC treatment for menstrual cramps.

My sympathies on your health issues.

Clive RobinsonNovember 4, 2009 2:28 AM

The actual problem is one that can not be solved and that is "perspective".

When we make a "judgment" of any kind it is coloured by our perspective, not just in terms of physical view, time of view, etc but also by our past experiances.

In most cases the person making a judgment is not in possesion of sufficient facts to make the judgment, so it becomes a probabilistic choice at best.

This has happened since before humans put "pen to paper" and mostly it has not mattered.

The reason being that the punishment / reward was usually arbitary and generaly inline with the offence, and importantly usually not recorded.

Political preasure has resulted in two things of recent times,

1, Increased levels of punishment.

2, permanent recording of judgment.

The first has been shown to usually have an opposit effect that is tougher punishment leads to worse crime. And also increases the burden to society both directly and indirectly (taxation insurance prevention measures).

The second issue is one we have little detail on as it is a more recent problem and it leads to unjust and deffered punishment on individuals.

The first part of the problem is the "judgement" is recorded but invariably the circumstances and evidence not.

So there is now a life long stain on a persons charecter which will haunt them for the rest of their life. As for "safety" a perspective employer can only assume the worst, so the person is condemed for life.

But usually only the judgment is recorded no information about the events is added. So there is no hope of appeal against the judgment at a later date.

Historicaly this is a recognised problem which is why we have witness statment forms, chains of evidence and court records.

It is therefor of little surprise that people resort to using the law to protect their childrens future lives.

Then of course there are the "rewards" to be considered. For every loser there is a winner, it may not be obvious and the rewards may be less tangable than an ordinary person might expect.

Those in authority gain further authority by excersing authority. In the process they get other rewards such as increase in status that often leads to more material awards such as promotion.

This raises a third political inspired problem,

3, Efficiency targets

Politicos have entered into a very very stupid game of setting arbitary politicaly driven targets on publicaly funded organisations.

Supposadly to cut waste and inefficiency. The problem is they have no idea on how to make "valid measurments" and therby set "valid targets".

The result is most often greater waste and inefficiency as people are required to spend more time recording and colating information taking them away from what they are actually supposed to be doing.

But worse there is a reward system involved with such targets. This automaticaly makes the organisation "target orientaited" which as the targets are politicaly motivated automaticaly makes the "impartial" organisation "political".

One easy way to meet targets is to ensure that the rules are orientated to achiving them. Zero tolerance is a great way to achive meeting targets, as it ensures that the rule setters get the best personal benifit for themselves, and remove any opposition from those beneath them, as it alows those not using the rules to be punished. A win-win for those needing to meet targets.

Now you have a motive for making politicaly chosen choices with "life sentances", but no proper control on the process to redress the balance for those against whom the rules are being applied (remember it's not just the "offenders" but the "front line troops" as well).

The politico's want quick headline grabbing results and do not care about the consiquences as in their eyes the system rewards them irrespective of the real out come.

And best of all any counter argument is quashed by the unansweradle charge of "wasting public money" in the short term as their chosen figures show it to be true...

And the longterm they don't care about, as they either won't be there or will blaim those implementing the systems.

WinterNovember 4, 2009 2:43 AM

These points have been made a decade ago in:

"The Death of Common Sense: How Law is Suffocating America" (1996) by Philip K. Howard

Beside all the funny examples, the main point was two-fold:

1 The believe that justice could be done mechanically by excluding all human judgment, just apply the rules and justice will be done

2 Zero tolerance is indeed unappealable discretion. That is, zero tolerance is the hall-mark of a police state

Winter

csrsterNovember 4, 2009 2:51 AM

Tom S:
I _could_ give you a written copy of our weapons policy, but then you'd be in violation of our weapons policy as you might roll it up and hit someone with it

averrosNovember 4, 2009 3:27 AM

Clive provided a very nice synopsys of how ZT rules come into existence.

There's one more aspect to that: the very fact that these rules were thought up by somebody - and not laughed off as insanity is indicative of a very dangerous development. Basically, it is propensity of people in power and their electorate to think about people not as individuals bus as some homogenous mass of robots.

Making rules for robots makes sense, since they all have the same program and will follow the rules nicely, without creating situations when rules fail.

Accepting that people are different (not cosmetically different, but really different) flies in the face of the fundamental collectivist/democratic belief into literal equality. To resolve the cognitive dissonance between the reality and the ideal, the usual religious denial kicks in - and so apparently intelligent people fail to notice the inherent insanity of treating people like robots.

People (even kids) have rights. And these rights include the right to do whatever one wants as long he dosn't harm anybody else.

John BaberNovember 4, 2009 6:08 AM

> Your drug sentence could depend considerably on
> how sympathetic your judge is, or on whether
> she's having a bad day.


You're between a rock and a hard place.
+1 for representing a professional as a woman.
-1 for representing a woman as someone who lets their attitude affect their professional behavior.

Why not use they[1]? I'm sure you, like all computer scientists, have a well thought out policy on this, but I can't find it on your blog.

[1] http://www.crossmyt.com/hc/linghebr/austheir.html

uk visa lawyerNovember 4, 2009 7:46 AM

Hi Bruce
I thoroughly enjoyed your post and agree with your solution, perhaps it could be written as a rule/mnemonic as RDRA:
Rule, discretion, redress and audit.

paulNovember 4, 2009 10:41 AM

So ultimately the question seems to be "Where do you move the discretion to minimize unfair application of whatever rules are in place, and how do you make discretion transparent, so that people can see whether it's being exercised appropriately?"

I think this is one are where a mutual surveillance state might actually be useful. Just focusing on the events where someone is punished doesn't get you anywhere, because it's the distribution of events where people aren't punished that really counts. So all those CCTVs in the classrooms? Fine, just as long as anyone written up for doing anything in a CCTV-covered classroom gets access to the entire video file to see what potential infractions weren't noticed.

GeorgeNovember 4, 2009 10:54 AM

On second thought, I think it's wrong to assert that the TSA is an example of Zero Tolerance. It's actually a pernicious chimera that combines the worst attributes of both unfettered discretion and Zero Tolerance.

Screeners at checkpoints have unlimited discretion to implement and interpret "guidelines" that are both vague and secret, and are also inconsistently understood by the the people who supervise and train them. The vagueness and unlimited discretion guarantees that they will administer the "guidelines" capriciously and inconsistently. The secrecy means that we have no way of knowing whether a screener is correctly enforcing an actual rule, incorrectly imposing something based on an honest misunderstanding of an actual rule, making up a rule on the spot to compensate for a gap in what they've been told, or simply abusing their authority to get back at someone they don't like. The result is a lot of frustration, but not necessarily effective security.

On the Zero Tolerance side, once an individual screener decides what rules he or she will apply, those rules will be applied with Zero Tolerance. Another screener may apply the rules entirely differently, but with the same Zero Tolerance. As with actual Zero Tolerance schemes, a screener's determination is final. There is no appeal or redress, short of walking away from the checkpoint and forfeiting all travel plans.

Yes, a passenger "in the know" can ask for a supervisor, but because the rules are vague and secret that amounts to just another crapshoot. The supervisor most likely received the same training as the screener. There's an institutional attitude that passengers are enemies who don't understand "security" and are selfishly trying to defeat the system. And there's the pressure to keep the assembly line running at full speed. So the "appeal" will most likely be an affirmation of whatever the screener decided, with the possible addition of some form of retaliation to remind the passenger to behave like a good docile little sheep rather than causing trouble.

JimFiveNovember 4, 2009 11:10 AM

I'm going to disagree a bit. The real problem with zero tolerance policies is that they are zero tolerance. If it wasn't a one strike and you're out policy the cub scout would have been given a warning note to take home to his parents and everything would have been fine.

The effect of this is that the authorities have to decide to look the other way at the moment of the infraction instead of being able to enforce the rule without being worried about the effect of that enforcement on the future of their charge.

Certain zero-tolerance policies against, for example, fighting or selling illegal drugs, might make sense (I doubt it's the best solution, but it's possible). But zero-tolerance enforcement needs to be handled through an administrative process not just by the person who happens to be at hand.

RE: Those who said "there is always discretion"
Maybe not: Take the cub scout "knife" case. The kid was probably showing it off in the class and being distracting. The teacher says "give me that" and then realizes that it might qualify as a knife. A dozen kids now know that she has seen it, she can't unsee it at that point. So she passes the buck up to the principal who is now in the same position as the teacher. The rules say possession of knife = expulsion.

They can't really cover it up at that point. Too many people know.
--
JimFive

JimFiveNovember 4, 2009 11:12 AM

I meant to finish that up with:

That's why discretion needs to be moved into the "response" phase instead of the "discovery" phase of the incident.
--
JimFive

ChrisNovember 4, 2009 12:50 PM

I'm also curious about the kid with the knife dropped in his lap. I've also heard of a student expelled because of a knife dropped in the open bed of his pickup.

The thing about these cases is that the treatment is VERY different for the kids and adults. (Reminder: that "kid" with a pickup could also be an 18-year-old senior who is fully an "adult" off-campus.) If the police find a knife or gun on my patio... well, that's interesting but it doesn't really have anything to do with me unless the police can prove otherwise. It's accepted that I could be totally unaware that somebody dropped (or stashed!) the item there. Now if they found it inside my locked door....

But kids? They're facing extremely serious consequences for things beyond their control. I'm sure it's just a cover story in many, perhaps even most, cases. But sometimes it could be somebody being set up because of romantic rivalry or jealosy, truely innocent cases of somebody else dumping a weapon or drug while being pursued, etc.

Petey BNovember 4, 2009 1:11 PM

Great essay Bruce. Poorly thought out rules that are blindly enforced by authority figures really peave me. I find most of these poor rules are prevantative ones. For example, instead of making it illegal to stab someone, they make it illegal to carry knives, however just because you are carrying a knife doesnt mean you are going to stab someone. Infact I would wager that 99 times out of 100, people who are carrying knives arnt out to stab someone, yet these rules are put in place because of some astronimically small number of people choose to exploit an allowance. Even after these prevantative rules are put in place, that bad guy will just find a new way to stab somone, perhaps using a pen. Rendering the no-knife policy basically pointless. Would the next step be to dissallow pens as well? No, poeple have to understand that bad poeple are going to do bad things no matter the rules. It's good people with no ill intent who end up being caught in a web of terribly thought out preventative rules.

elegieNovember 9, 2009 12:32 AM

If a student at school is hurt by a violent attack with a weapon, a zero-tolerance policy may make it easier for the school to avoid liability along the lines of "Sorry, but we're not responsible for the student getting hurt. In particular, we have a zero-tolerance policy on weapons. In one case, we punished a student because there was a small knife in close proximity to them (or something like that.)" Of course, in such a case, the fact that an attack took place implies that the zero-tolerance policy was not 100% effective. One might compare the interests of the school, the interests of the school staff, and the interests of the students. When the school is trying to avoid liability of the just-mentioned kind, could inconvenienced students be an externality of sorts? When it comes to the interests of the school, the students, and the school staff, do the benefits of a zero-tolerance policy outweigh the costs?

Could security theater provide liability protection along the lines of "we tried to prevent such-and-such"? In particular, the blog entry "In Praise of Security Theater" ( http://www.schneier.com/blog/archives/2007/01/... ) may be of interest. At the same time, it would seem that security theater is not always free of costs. These costs could well outweigh the benefits.

When rules are posed to those who they cover (such as a zero-tolerance weapons policy being posed to students), one can imagine the presentation of the rules being biased in favor of the rules i.e. "these rules are necessary because of such-and-such threat" or "these rules are to protect you against such-and-such." Would explanations such as "these rules are necessary to comply with such-and-such law" or "these rules are to protect us from liability; they may not provide total protection for you" be quite as upcoming?

@Roy:

The blog entry "TSA Abuse of Power" ( http://www.schneier.com/blog/archives/2005/06/... ), about a school principal who got into difficulty at an airline security checkpoint, may be of interest.

MatthewFebruary 21, 2010 3:31 AM

Anyone who thinks that a zero weapons policy is doable, has a lot of rocks to polish. But hey, you could throw the polished ones too.

I like the Old West idea that, "God didn't make man equal, Colt did."

If we (and especially those who try to "police" us) knew that anyone we mess with could kill us, then I think we would be a bit more kind to one another. If not kind, at least a little more respectful.

And realize that even if we had a total gun ban, that the above is always the case. No guns (or weapons) are needed to do harm -- just the desire -- which usually stems from a sense of some injustice being done to someone. It can be as simple as, "You stepped on my toe and didn't say you were sorry."

"In the little world in which children have their existence, whosoever brings them up, there is nothing so finely perceived and so finely felt, as injustice."

-- Charles Dickens

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