New York Times (Op-Ed)
By Emily Yoffe
July 25, 2018
This Thursday the Trump administration faces a deadline handed down earlier this summer by a United States District Court judge: reunite the children separated from their parents at the border by federal law enforcement. There’s no way the White House will pull it off. Reports indicate that hundreds of parents will not be seeing their children because the government can’t locate the parents or has already deported them.
This entire catastrophe isn’t just the result of a deliberately cruel and incompetently implemented policy, though it is certainly that. These sundered families are the latest casualty of “zero tolerance” — a misguided mind-set that bludgeons the people it targets, no matter how vulnerable.
For a generation, American policymakers have been addicted to zero tolerance as a response to all social ills: crime, drugs, sexual violations — even misbehaving schoolchildren.
Start with crime. In the 1980s and 1990s, federal and state governments went on a criminal justice binge, vastly expanding our criminal codes, especially in the “wars” against crime and drugs and deploying zero-tolerance policing. The result is that some 70 million Americans have a criminal record — a number equal to Americans with a college degree, according to the Brennan Center for Justice. We remain the nation that “incarcerates a larger share of its population than any other,” according to a recent Pew Research Center report. This despite the fact that crime in the United States is at a modern low.
But zero tolerance wasn’t just part of the criminal justice system. Under federal mandate, it became entrenched in schools. Among those caught was a 14-year-old girl in Ohio who, in 1996, gave a Midol tablet to a friend for her menstrual cramps. School administrators at her public junior high school found out, and the girl who supplied the Midol was suspended as a drug dealer.
She was black, and the family brought a suit claiming racial discrimination. They ultimately won, but those who have tracked the implementation and consequences of zero-tolerance policies have documented how black and brown people are disproportionately punished by them.
In the years since, similarly absurd incidents have become a feature of school life. Take the 2015 case of the sixth-grade Virginia boy referred to juvenile court and suspended for almost the entire year because he had a leaf in his backpack that administrators thought was marijuana. Even after tests confirmed the 11-year-old was in possession of a leaf from a maple tree, the suspension stood because the leaf resembled cannabis, and the state policy required that administrators notify police and possibly expel students for possessing “imitation” drugs.
Widespread outrage over these kinds of cases has led some state legislatures, like Texas’s, to pass zero-tolerance reforms. But once zero tolerance has been adopted, it’s not easy to undo the bureaucratic incentive to punish indiscriminately.
This year, according to a report by Texas Appleseed and other public interest groups, more than 1,200 Texas schoolchildren were referred to law enforcement for making “terroristic threats,” a potential felony. One such “threat”: a 12-year-old with a disability who made a gun with his fingers and pretended to shoot at make-believe creatures in a hallway. He was arrested.
Usually at the beginning of a zero-tolerance campaign, those leading the charge promise it will vanquish the worst of the worst: the drug kingpins, the gang leaders, the serial sexual predators, the murderers. But it inevitably turns out there aren’t very many of them. So the definition of what will not be tolerated starts expanding, allowing politicians and other moral arbiters to say they are cleansing society of those who commit any kind of lapse. People who urge a more proportionate, incremental and individualized response to complex problems are tarred as being some percentage — usually 100 — tolerant of the menaces that trouble us.
A central example of this kind of category expansion is the sex-offender registry. It began more than 20 years ago after several horrific murders of children by serial predators. Today, around 900,000 people are on the registry. Exceedingly few of them are the kinds of criminals who prompted the list in the first place.
One is an 18-year-old in New Hampshire who asked a 15-year-old of his acquaintance for sex. Nothing happened. But adults found out about the proposition, and because the 18-year-old made the request via computer, he is on the registry for life.
Then there is the severely intellectually disabled Missouri man who was being molested by a younger male neighbor. The neighbor then convinced the man, who was then 26 years old and living with his parents, to expose himself to an underage female. Both the men were arrested, and the disabled man has been on the registry ever since. Because of his conviction, he can no longer participate in the Special Olympics or clear tables at a local restaurant where he used to work. The legal bills exhausted his parents’ retirement funds.
Despite the overwhelming evidence that zero-tolerance policies sweep up the harmless and the innocent, we are so habituated to thinking in zero-tolerance terms that when a new issue appears, it is often our default response. Some feminists, myself included, have raised this concern about this aspect of the MeToo movement. We worry that a zero-tolerance approach could undermine the movement’s moral authority by destroying the careers of accused men without first fairly assessing the allegations against them and by failing to make distinctions about a wide range of misconduct.
Zero tolerance is also washing over corporations in the form of firings for speech that is deemed offensive. You can agree that Roseanne Barr deserved to be fired for her overtly racist tweet about Valerie Jarrett and also be concerned that people are losing their jobs for far less.
Last December, a Netflix executive named Andy Yeatman was approached while coaching his daughter’s soccer game and asked why an actor on a Netflix series who had been accused of rape had not been fired. Mr. Yeatman was not connected to that series, and to end the conversation he said such things were taken very seriously at Netflix, but maybe in this case the accusations weren’t believed. He immediately regretted his remark — but it was too late. The woman who asked said she was a victim of the actor, and while still on the field, Mr. Yeatman got a call from a reporter. He was fired a few days later.
There is nothing like audio of terrified children, accounts of their deplorable detention conditions and the realization some families may never be reunited to cause national revulsion at this iteration of the Trump administration’s touted zero-tolerance stance. What happened is not only a moral outrage, but, in following the zero-tolerance playbook, has been a huge diversion of resources. The Department of Health and Human Services has “burned through at least $40 million in the past two months for the care and reunification of migrant children,” according to Politico.
To prevent such future injustices, and to address the many continuing ones, we should adopt a new approach: zero tolerance for zero tolerance.
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