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ORIGINAL FRENCH ARTICLE: « C’est une illusion »

by Laurent Mouloud

«It’s All an illusion » By Bernard Harcourt. Professor of Law. University of Chicago

Translated Monday 25 September 2006, by Claudia Incardona-Sanderlin

Is «Zero Tolerance» a solution to security issues?

«It’s All an Illusion»
By Bernard Harcourt. Professor of Law. University of Chicago

« C’est une illusion »
Par Bernard Harcourt, professeur de droit à l’université de Chicago [1]

HUMA: When was the «zero tolerance» concept created?

HARCOURT: The idea dates back to 1982, when an article by Geroge L. Kelling and James Q. Wilson, two rather conservative criminologists, was published. They developed the so-called theory of « broken windows ». According to these authors, if minor offenses, even the little ones, and minor urban degradation at large (infractions, urban vandalism, and so on) were issues known to never be dealt with, there would be the risk of an increase of uncivil activities. This would inevitably lead to more serious ones, like armed robberies or homicides. They thought it was fundamental to take care of minor problems within local areas, knowing that by eliminating the root-cause, it would be possible to eliminate crime. At first, the theory did not get a significant response and it stayed this way for about ten years. Finally, it was the mayor of New York, Rudolph Giuliani, who presented it within his electoral program at the time of the 1993 elections.

HUMA: Why?

HARCOURT: The context seemed favorable. At the beginning of the 1990s, the US crime rate was rather high. This was particularly due to the extremely violent smuggling that resulted from the crack and cocaine outbreak. When he became mayor in 1994, Rudolph Giuliani and his Police Chief William Bratton adopted the «broken windows» policy, which according to its needs took different names: «quality of life initiatives», « broken windows police»; hence, «zero tolerance ». Now, these measures did coincide with historically low rates of major crimes…And not exclusively in New York: Everywhere!

HUMA: What do you mean?

HARCOURT: What I mean is that there are no actual links between the decline of New York’s criminality and the «zero tolerance» policy. During that time, other major cities that had not adopted this type of measure revealed the same (crime rates) improvement. In Los Angeles, between 1991 and 1998, armed robberies noticeably decreased – more than in New York – even though the police department had less manpower and was involved with corruption matters! Same official report in San Diego. In short, the favorable rates pointed out by the New York authorities merely represent a trend recorded on a national level.

HUMA: Why this general downward trend?

HARCOURT: It’s due to several factors. First of all, the US has had to deal with a remarkable increase in the rate of imprisonments in the 1990s. In 1970, 200,000 people were arrested; in 2000, the rate reached 2 million. This imprisonment-rate growth accounts for the crime-rate drop (about 25%). Afterwards, the police department invested in new measures. In New York, for instance, the number of police officers went from 28,000 in 1992 to 40,000 in 1996. Finally and above all, the second half of the 1990s marks the end of the crack and cocaine epidemic and consequently the violence that came with it. Why? Certainly, because numerous youngsters, after witnessing the devastation that this drug brought about on the previous generation, quickly decided to stay away from it.

HUMA: Nevertheless, the implementation of the «zero tolerance» policy within the city of New York has had its consequences. Which ones?

HARCOURT: One of the most dramatic consequences has been the increase of lawsuits concerning police-related violence. Between 1993 and 1996, as death rates dropped by 50% on the basis of what we just discussed, the number of police-related abuse lawsuits increased by 68%. Generally, no scientific evaluation has been able to demonstrate that the «zero tolerance» policy has had a positive effect on delinquency. I have done some research myself on the 75 New York police districts. I wanted to find out if there was some sort of statistical correlation between misdemeanor arrest rates and felony arrest rates. Results: None. In detail, we can only see how the areas that have experienced a substantial drop in the crime rate have been the ones that, in the past, were mostly affected by the strongest increase during the «crack years». There has simply been a return to the norm. As the Newtonian theory of crime affirms: What goes up will inevitably go down and what goes higher will go lower…

HUMA: You denounce the costs of such policy as well…

HARCOURT: It is indeed a fact that the «zero tolerance» policy has high costs. Each arrest for minor offenses, (included interrogation, detention at the police station and transfers to the court house) which could have been settled otherwise, costs about $1,000 to society. If we add the multiplicity of police-related violence trials, we reach a total of $400m since 1994! A huge sum, which could have been employed more sensibly, investing for instance on the fight against felonies, gangs, and drugs and weapons trafficking.

HUMA: Do you see any similarities with the security policy advocated by Nicolas Sarkozy?

HARCOURT: Yes, I do. All of his rhetoric is imported from the US. Nicolas Sarkozy re-employs the same «marketing» strategy of the mayor of New York in the 1990s. According to his view, and to the supporters of the «tolerance zero» theory, we should not look for the cause of delinquency and criminality within serious issues like strikes, poverty or discrimination. It’s much simpler: It is merely an issue of «disorder» fostered by the people living in those areas at risk. They are the guilty ones and no one else! And all those college students who protest against these ideas appear to be some old Marxists living in privileged areas…

HUMA: In France, this policy has led to a deterioration of the relationship between the police force and its citizens…

HARCOURT: This is exactly what happened in New York from 1994 to 1998. Not only have we witnessed an increase in the number of lawsuits against police officers but, additionally, this era has been characterized by several serious abuses. In August 1997, a young man was sexually abused by police officers who were interrogating him. In February 1999, a young black man was shot down while he was grabbing his wallet from his pocket. In March 2000, another young man was killed while participating in a sit-in. All these events have speeded up the already damaged relations between the police department and African-American community, the primary victim of abuses.

HUMA: What kind of conclusions can you draw from your analysis of the «zero tolerance» theory?

HARCOURT: This theory is just an illusion. It is indeed fundamental to provide an external perception of order, but, in the end, we will waste the already limited police force’s resources if we demand further measures on issues that result from the social environment, like prostitution or occupation of building halls. All of this will underpin the isolation of the already marginalized people at the expense of a fight against the real criminality. In addition, there is a current general consensus that is emerging to denounce the «broken windows» theory, which believes that minor civil disorders will end up causing major crimes. Disorder does not cause crime. In fact, the two share the same origins. This report, which will henceforth bring together the scientific community and increasingly the heads of police departments as well, has unfortunately not been supported by the world of politics. It is also remarkable to see how France has borrowed this «zero tolerance» approach when we do know that it is just a blind alley.

[1«L’Illusion de l’ordre: incivilités et violences urbaines, tolérance zéro» ? Éditions Descartes et Cie. («Illusion of order: forms of incivility and urban violence, zero tolerance»?) Éditions Descartes et Cie.

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