“A society that will trade a little liberty for a little order will lose both, and deserve neither.”
You’re not going to see Drug War movies like Traffic made about Ryan Huntsman. He’s not a hotshot local drug dealer or anyone’s fortunate son or some kind of dudecharacter. He’s just an O.C. regular — a white kid from Newport Beach, now attending UC San Diego — who thought he had a little slack. In fact, he’s the kind of person being hit hard by the realities of America’s infatuation with zero tolerance: an ordinary kid who makes ordinary mistakes.
In February 1998, when Huntsman was a senior at Corona del Mar High, he headed out to run some after-school errands for his mom. The Newport Beach police stopped him for blasting the Grateful Dead out of his pickup truck, and during a search of the truck officers found a pipe and a baggie containing remnant amounts of marijuana. There wasn’t even enough for a ticket. Huntsman was free to go.
The cop who made the search, however, reported his findings to the high school authorities, and that is where Huntsman’s nightmare began. The school could make consequences where the law could not. Like thousands of school districts across the country, Newport-Mesa Unified has a zero-tolerance prohibition against drug paraphernalia on school grounds, at school functions, or even driving to or from school. No matter that Huntsman and his mother both asserted that he wasn’t going to or from school. Huntsman was suspended. The kicker was that when the suspension ran out, he was no longer welcome at school, so he was transferred to Newport Harbor High. He had no right of appeal, and the decision was final and effective immediately. It was only 89 days until graduation.
Huntsman’s bust landed him on the frontlines in what has become a national war over school discipline and, more broadly, our determination to make hard-line moral choices in an increasingly complex culture. Like hundreds of other students, he found out that school officials could not care less about his character, or the legal right to due process, or about the notion of intent. Since 1994, when Clinton signed the Gun Free Schools Act and zero tolerance became a grade school byword, cases of excess have become almost mundane. There were the two Dayton, Ohio, eighth-graders, Erica Taylor and Kimberly Smartt, expelled in 1996 for taking Midol for menstrual cramps. Or the 7-year-old Queens, New York, boy charged that same year with sexual harassment and suspended from the second grade for kissing (after being invited) a female classmate. Or the infuriating case of Wiley, a deaf boy recently expelled from a junior high in Canton, Texas; he was threatened with criminal prosecution for playing with a piece of small-caliber ammunition found on his playground, even though school officials had found the same ammunition there the week previous and never reported it to parents. Or the case of Brad Monroe, expelled last fall from Edison High in Huntington Beach, California, after school officials searched his truck and found a small pocket knife left there by his older brother, a city lifeguard.
These are just kids, and they’ll probably recover from their encounters with intransigence. But zero tolerance is more than just a tough-sounding quick fix for schools. Over the last 15 years, it has become the way we deal with ambiguity. Zero tolerance solves the problem of humanity by removing the human from the problem: It’s a kind of colorless, odorless solution in which all moral quandary is dissolved — not by deliberate assessment of intent or circumstance, but by rendering all such questions moot. It fuels a War on Drugs that cannot be won, that, indeed, doesn’t even have a definition for winning. It reduces interaction between the sexes in the workplace to a paranoiac limbo of connotation and silence. It prosecutes and jails needle-exchange advocates despite government findings that clean needles cut the rate of HIV transmission by half. It fosters the Peruvian policy of shooting down suspected drug-trafficking planes, which this year killed a missionary’s wife and infant child. It imprisons petty thieves for 25-to-life for boosting a package of AA batteries. It contributes mightily to the 2 million people in U.S. prisons (We’re Number One!) — about a half-million of them nonviolent drug offenders serving long sentences.
Combine fatigue with horror, and you end up with zero tolerance. It’s the product of fear, when the problems are daunting and conventional fixes don’t seem to work. Zero tolerance has made us hostage to paint-by-numbers morality, to political expediency at the expense of real lives and even the truth, to soundbites over sound policy. It has made us a nation of cowards.
Some people try to buck the trend. Carol Monroe not only sued to get her son’s pocket-knife expulsion suspended, but started an Internet support group called Parents Against Zero Tolerance. “The problem is that it’s a one-size-fits-all policy,” she said. “If a kid’s going to walk into school with a gun, that kid is expelled anyway. They don’t need a zero-tolerance policy for that.”
But Monroe, who worked for 10 years in the school where the incident occurred, is pessimistic. The policy remains in place, and the damage has already been done. “My son was a perfectly normal, happy kid,” Monroe said. “He doesn’t trust anybody anymore.”
Likewise, though Huntsman and his lawyer, David Shores, sued the Newport-Mesa schools and won, tolerance in that school district is still next to zero. When a Superior Court judge ruled that the school board had violated Huntsman’s right to due process, the Newport-Mesa district changed its policy only slightly to allow for a disciplinary hearing before handing down verdicts.
Huntsman also filed civil suits against the police and the city, and another challenging the school district’s zero-tolerance policy as unconstitutional. But Kathleen Huntsman, Ryan’s mother, told me over the phone that they recently dropped these lawsuits and stopped talking to the press. “He wanted to get on with his life,” she said.
Over the past year, a raft of such radical organizations as the American Bar Association, Harvard Law School and, in May, Indiana University all made strong recommendations that schools dismantle their all-or-nothing discipline codes. But at Newport-Mesa, fear proved more powerful: In April, under pressure from parents who could not shake the specter of the recent shooting at Santee High School near San Diego, the district became one of the first in the nation to implement a zero-tolerance policy against bullying.
Students will be referred to counseling for a first offense, and then suspended or expelled if found disturbing “safe and harmonious relations” at the district. I wonder what they would have done with Eddie Haskell?
About 10 years back, I visited a midtown recording studio in New York City to talk with rock legend Ted Nugent about his rabid advocacy for hunters’ rights. After introducing me to Jack Blades (former Night Ranger) and Tommy Shaw (the voice of Styx), he produced a hunting bow he had brought along. He was showing me how to draw and target the thing when he was suddenly distracted by something happening outside the window.
“Look down there,” said the Motor City Madman, aiming the empty weapon at two figures huddled in an alley across the street. “If they’d give me a permit, I could whack crackheads all day from up here. That’d solve the drug problem real quick. Whack ’em and stack ’em.”
It was an absurd notion, of course, but I had the feeling the Nuge was only half joking. And if you keep an eye on the headlines coming out of Washington, you’ll see he’s not alone. Maverick senator and media darling John McCain has gone on record advocating the death penalty for “drug kingpins.” And Dubya’s new drug-czar nominee, John Walters, has been gunning them down for almost a decade already.
Walters is widely regarded as the biggest Drug War hawk in Washington. As the deputy in charge of supply reduction under drug czar Bill Bennett during the first Bush administration, Walters dismissed efforts to reduce federal sentences for drug offenses, pressed for longer terms for marijuana violations and rejected federal subsidies for needle exchanges.
And, borrowing a page from Ted Nugent’s playbook, Walters was the architect of the Peruvian “shoot first” policy now under investigation by Congress. During recent hearings, the U.S. State Department testified that about 50 planes were destroyed during the 1990s. A couple of years ago, however, before this was a hot topic, General Charles Wilhelm testified for the U.S. Department of Defense that its last count was 123 planes. Whether any of the fliers truly are narco-traffickers is of course moot after they’re dead.
Bush may have a reputation as a dullard, but he was too crafty to name Walters without some sort of cover. Indeed, when the president outlined his approach to the Drug War at a White House news conference a couple of weeks ago, the * rhetoric was balanced with much discussion of prevention and treatment. But when it came to introducing Walters, Bush wrapped his soft talk around the old hard line, saying, “The only humane and compassionate response to drug use is a moral refusal to accept it.”
Advocates of a new strategy for the Drug War rose immediately to challenge the new czar. Arianna Huffington called it “an advanced case of rampant hypocrisy — the latest manifestation of the administration’s penchant for talking one kind of game while actually playing another.” Added Marc Mauer, assistant director of the Sentencing Project, a group fighting the use of mandatory minimum sentences, “I think any movement toward treatment is just designed to deflect criticism from the approach that [Walters] has been taking for many years now.”
Late in his life, in the science-fantasy novel The Place of Dead Roads, William S. Burroughs envisioned a world peopled by either “Johnsons” or “shits.” The Johnson is a classic American type, the kind of independent thinker lionized in John Ford Westerns and World War II comic books, a common-sense citizen who lives by his own lights and, in so doing, looks to protect his freedom and yours, too. The shit, by contrast, regards all that easygoing ambiguity as harboring evil. The shit has a pathological need to control, and instead of looking for space to be free, he’s looking for freedom to effect those controls. The ascendance of zero tolerance might be regarded as the triumph of the shits, a logical extension of our Puritan past. Today, the Johnsons are on the run.
The phrase “zero tolerance” derives from the physical sciences, and first began cropping up in public discourse in the 1970s. Curiously, perhaps because it is so intrinsically absolute, it always occurred in a moral context — in debates over environmental policy, or welfare cheats. But we can thank Ronald Reagan for giving us a good healthy shove down the road to shitdom, and then ourselves for going along with it.
In May 1981, a Marine Corps EA-6B Prowler jet crashed on the deck of the aircraft carrier Nimitz, and autopsies revealed that six of the 14 sailors killed had been smoking pot. Then–Chief of Naval Operations Admiral Thomas Hayward launched a new policy of zero tolerance for drug abuse, saying, “Not on my watch, not in my division, not in my Navy.” The policy spread quickly throughout the military, but that wasn’t enough for Reagan. In 1982, Reagan created the Vice President’s Anti-Drug Task Force under George Bush — first to tackle marijuana trafficking in Miami, then all drugs everywhere. Ron coordinated with his wife Nancy, who had already begun her infamous “Just Say No” campaign. Bush took his cues from the military and involved it heavily in interdiction.
Spending on drug interdiction tripled under the Reagan administration, but so did cocaine shipments, according to the DEA. Undaunted, in 1986 Reagan called for a renewed commitment against “public enemy number one.”
“The next step in the crusade for a drug-free America . . . is to enforce a policy of zero tolerance of illegal drug use.”
The timing of Reagan’s initial Drug War address said a lot about the way we’ve run things ever since. Just as he was announcing the Anti-Drug Task Force in 1982, a hefty report comprising six years of research from the prestigious National Academy of Sciences landed on his desk. Titled “An Analysis of Marijuana Policy,” the report openly recommended decriminalization of marijuana and states’ regulation of its sale and distribution.
“On the same day that that report came out, President Reagan came out with his first big Drug War speech,” says Kevin Zeese, former head of the National Organization to Reform Marijuana Laws and now president of Common Sense for Drug Policy. “He talked about ‘raising the battle flag’ and ‘no tolerance for drugs.’ Most people haven’t heard about that National Academy of Sciences report, because Reagan stole the day. He had the bully pulpit.”
Reagan’s true genius was that he could come off as a Johnson while acting like a shit. He shrugged off his scientific advisers as just another bunch of pinheads and pushed ahead with uncompromising criminalization. Along the way, he gutted an already inadequate treatment budget and closed clinics across the country. Just in time for the appearance of crack in 1982 and the explosion of drug-related crime, especially gang crime, which seemed to validate his approach.
“I think it began with the ‘get tough’ movement of the early ’70s or so,” says Mauer, “with that politically inspired approach that identified crime as being a product of individuals doing bad things, rather than looking at a whole set of causes and options. Once the punishment model was in place, then it kept getting ratcheted up.”
And in case you think I’m ignoring Richard Nixon, believe it or not, he looks positively judicious when it comes to drugs. To be sure, President Nixon coined the phrase “War on Drugs,” but according to The Fix, Michael Massing’s study of national drug policy, Nixon’s first priority was to honor a 1968 campaign promise to bring the crime numbers down. So he hired a real, honest-to-god pharmacologist and heroin expert, Dr. Jerome Jaffe, to do it. Unlike our last four drug czars, Jaffe was not a moralist (William Bennett), an ex-governor of Florida (Bob Martinez), a police chief (Lee Brown) or a four-star general (Barry McCaffrey). He was a doctor, and he recommended treatment on demand. Nixon gave him hundreds of millions of dollars to open methadone clinics and treatment centers. Sure enough, crime went down. Nixon didn’t have any tenderness for the drug user, but he created better, if not good, drug policy.
Subsequent administrations might have done well to follow Nixon’s example, because the numbers went against them. One of the more absurd contradictions of Drug War rhetoric is the use of an increasing number of arrests, prisoners, or dollars spent in interdiction efforts as evidence of success. Surely they confuse success with total failure. According to a 1999 FBI crime report, there were 328,670 arrests for drug-law violations logged into the FBI system for the year 1973. For the year 1998, that number rose to 1,559,100. Yet more, cheaper and better cocaine and heroin continue to be sold and used every year, like clockwork. Isn’t the Drug War supposed to be creating fewer users? Instead, it is creating more convicts. Right now, 1 out of every 137 U.S. citizens is in jail, and 1 out of every 34 is either in jail, on parole or on probation. For black men, the number is almost 1 in 3. Most of those are from nonviolent drug offenses.
“Cracking down actually has the opposite effect, in terms of affecting drug use and crime,” says Sanho Tree, senior drug-policy analyst at the Institute for Policy Studies. “Drug markets are Darwinian. We’ve been selectively breeding supertraffickers for decades now.”
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.
In one of the biggest turnarounds of all time, even the politically ultrapopular DARE program has had to reconsider its zero-tolerance approach. Over 75 percent of all schools nationwide pay for the Drug Abuse Resistance Education curriculum, as do 54 foreign countries, in which police officers come into the classroom to warn students of the health, social and criminal costs of drug use. A mountain of evidence suggesting that the program does little to curb drug use — in fact, statistics show that those who’ve gone through the program are slightly more likely to use drugs than those who haven’t — finally became too much to ignore. When the U.S. Surgeon General and the National Academy of Sciences came out with recent negative reports, the organization announced it was retooling.
One of the well-worn saws about addiction is that you can’t get better until you’ve hit bottom. Maybe that’s where we are at in terms of our public policy and our hearts, and so in some mad sense we’re lucky. We have nowhere to go but up.
“We’re about as mean as you can get,” says Kevin Zeese. “We’re shooting people out of the sky, we’re letting them get AIDS, we’re incarcerating because of race. We’re throwing people out of school. I don’t see us protecting health by making treatment available like any other health service. It’s a heartless and inhuman approach to dealing with people. Certainly not ‘compassionate conservatism.’ It is really abusive conservatism.”