That is not to say that zero tolerance is totally ineffective in all applications. As construed by Mothers Against Drunk Driving (MADD), it has inspired legislation that has significantly reduced the number of drunks on the road. Drive drunk, they take your license away. I think we’d all agree that the only acceptable number of drunks on the road is none. But is there any limit? How far do we go to get to zero?
According to Rich Laffin, MADD vice chairman for California, MADD is now pushing to have driving under the influence listed as a violent crime and included in California’s “three strikes” statute. Alcohol is a legal drug, and its use is encouraged by the culture as a whole. Should drunks go to jail for life? I asked Laffin if he thought their efforts could go too far.
Laffin considered the question, then reached abroad for an answer. “In El Salvador, don’t make the mistake of getting behind the wheel if you’ve been drinking, because your first DUI will be your last. You’ll be executed by firing squad,” Laffin said. “I think that’s a little extreme.”
You certainly don’t have to go as far as El Salvador to find zero tolerance twisting justice into cruel and unusual punishments. You only have to look in Southern California, where our minimum-sentencing and “three strikes” laws, both zero-tolerance answers to the “problem” of lenient judges, are creating what’s been called a “new American gulag.”
Take the case of Michael Riggs, currently serving his sixth year of a 25-to-life sentence in Corcoran State Prison for shoplifting a bottle of vitamins. He had some youthful scrapes with the law in his 20s, passed some bad checks and even did a stint in jail. By the 1980s, Riggs had gotten himself right — he had become a car salesman, and he lived in West Covina with a wife and three kids in a house with a pool. One day he received a phone call at work telling him that one of his sons had drowned in the family pool. The pain and guilt caused by his son’s death initiated a long slide into depression and petty crime that would be his ruin. He started drinking and eventually doing heroin. During one weekend in 1988, he robbed a series of ATM customers for drug money. He was caught and convicted on four counts.
After he got out of jail, Riggs ended up living in his car. Homeless, broke and using again, he drifted into an Albertsons on October 13, 1995, and lifted a bottle of vitamins. According to court records, when the store employees chased him down in the parking lot, “He said at one point he was hungry. He was very sorry,” and he told the employees that “If we gave him a job, he’d scrub floors or clean the place to pay for what he had.”
After Riggs’ public defender recommended against taking a six-year plea bargain, the prosecutor re-filed the misdemeanor shoplifting as a “third strike.” And since he was caught red-handed, he’ll do at least 24 years before getting parole. Why? Is this the sort of crime people want to get tough on? Do we really want to pay for it? (In 1995, Justice Department figures show, it cost $71,184 a year to keep an inmate.) Or is this a strategy of convenience for a society that simply can’t deal with a broken guy like Riggs, who’s probably no different from tens of thousands of lifetime recidivists who struggle with depression and substance abuse?
“You’re just one step shy of what people were fleeing [in] 18th-century England, when they were hanging shoplifters,” says Donald Falk of Mayer, Brown & Platt of Palo Alto. Falk has filed a federal appeal of Riggs’ conviction on grounds that it was mishandled by his public defender and violates the Eighth Amendment as cruel and unusual punishment. “In a sensible, civilized, ordered society, you cannot put any set of facts together to bump misdemeanor shoplifting to a life sentence.”
But that’s just what we’re creating: the kind of society that festers under repression. One of outward conformity and constant fear. Depressed and cynical due to rampant miscarriage of justice. Replete with finks and shits. In such a culture, the only critique that accounts for the poor, disabled or just plain weird is that they must have done something wrong.
Maybe the hypocrisy of scapegoating youths, pot smokers and petty thieves for the ills born of institutionalized inequality, poverty, racism and plain old diversity is finally beginning to nag at the average citizen. Cracks have recently appeared in the armor of zero tolerance. California is now figuring out how to apply Proposition 36. Pot laws were recently relaxed again in Nevada, despite the Supreme Court ruling that medical-marijuana clubs violate federal law. New York Governor Pataki is finally taking a look at changing the 30-year-old Rockefeller Drug Laws, which were the first mandatory drug-sentencing laws in the nation. Right now in the Senate, there’s a bill co-sponsored by unlikely bedfellows Orrin Hatch and Joe Biden, putting money into treatment instead of Colombia — a growing, if still minority, sentiment in Congress.