The Next Wave Of "Zero Tolerance"


Everyone is looking for ways to cut government spending. But few seem willing to consider where truly great savings can be realized: the criminal justice system. At a cost of $30,000 per year to house an inmate, one would think that lawmakers would be keen on ways to empty beds, not fill them.

But the rush to transform the nation into a string of penal colonies rushes along. The New York Times reports the latest fad in law enforcement: White collar crime. Let’s lock up the bankers, seems to be the new cry. It has all the appeal of a cigarette at dawn. Something to calm the nerves along the gasping trot to death’s door.

After a meeting with the new United States Attorney General, Richard Blumenthal chirped: "It’s clear that he and other top-level members of the Obama administration want to seize the opportunity and send a message of zero-tolerance for mortgage fraud."

Zero tolerance? Haven’t we heard that before?

We wanted zero tolerance for narcotics sales. So we cracked down, built prisons, lengthened sentences for sale and possession of various drugs, and then set about filling prisons with addicts. The war on drugs hasn’t been much of a war at all. Addiction rates are still high. Kids are still making money hustling need on street corners. Even the prosecutors seem bored by at all.

And then we announced a new zero tolerance policy, this one directed at child sex. It seems as though hardly a day passes in our office without someone calling about a recent arrest. They touched a child, looked at a dirty picture of a child, been stung trying to meet a child on line. New laws require stiff penalties for these crimes. Where are we going to send all of these folks whose desires have led them astray?

On the horizon? Bankers and mortgage brokers.

I can hardly wait. I’ve long envied some of the gray beards of the Connecticut criminal defense bar. We have a cadre of lawyers in their late 60s and early 70s who earn top dollar barking about how they’ll fight, fight, fight. Yet when the ink dries on many a retainer the client finds he’s bought one of the most expensive guilty pleas in the state. I suspect a new rush of white collar cases will drive fees up.

In my mind’s eye, I see a new penal institution in every town. Each has seven wings. One is called lust, the other greed, the other anger. We’ll sort the convicted by the deadly sin that led to their undoing.

But there is nothing divine about such a comedy. It is expensive to keep churning out new batches of criminals. We need expensive law enforcement agencies. We need lots of prosecutors. We need new and better courthouses. And lots of lawyers, too. There is something for everyone in this cornucopia of crime. We prosecute, defend, convict, imprison and supervise, and to what end?

I have a proposal. Enact a law requiring every crime in the penal code to be reassessed each decade. Let lawmakers do an assessment of the need for the crime and the expense of enforcing it. In some cases, the assessment will be simple. Murder, I suspect, will remain year by year. But why not require lawmakers to look at statistics on a regular basis? How many convicted murderers are incarcerated? What is the length of each sentence? The expected cost for each inmate per year? Are sentences too long?

In some cases, the results will cause reassessment. Do we really want to send a young man to prison for a couple of years merely for the crime of looking at lewd pictures of children? Does it make sense to lock up a drug addict? And do bankers belong behind bars when all they did was give us what we wanted?

Don’t get me wrong. I am all for the penal code. It keeps me and my office busy. But I sometimes wonder whether I’d be as usefully employed rearranging deck chairs on a sinking ship.

Reprinted courtesy of the Connecticut Law Tribune.

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