The zero-tolerance approach: do we really need to get ‘tough on crime’?

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Indigenous person in custody

In 1989, President Bush proclaimed “The rules have changed: if you sell drugs, you will be caught, and when you’re caught, you will be prosecuted; and once you’re convicted, you will do time.”

Many have declared the “war on drugs” a complete failure, with drug use and associated crime remaining a significant social problem, and American prisons filling to the brim with offenders who might have been positively directed towards getting help for their drug problems rather than thrown in prison where they will likely learn new criminal skills and become institutionalised.

Although the “war on drug” may have failed, such ‘zero tolerance’ approaches have garnered significant support beyond American borders.

Australian politician have proclaimed “zero-tolerance” approaches in a range of areas, including cyber-bullying, domestic violence, terrorism, alcohol-fuelled violence and child sexual abuse.

The traditional zero tolerance approach to crime means that even very minor crime should be punished.

It was based on the “broken windows” theory that petty crimes, left unchecked, quickly develop into serious problems.

The classic example is where a building has a single ‘broken window’.

The theory says that if the window is not fixed quickly, other windows will be smashed and the whole building will quickly degenerate and eventually be destroyed.

Similarly, if minor crimes are left unchecked, people will commit more and more of them, and this will lead to more serious crimes being committed and to the degeneration of society into criminality.

But where did zero tolerance concepts come from and why are they still popular today?

The most famous, and perhaps most successful, example of zero tolerance occurred in New York in the early 1990s.

New York City had an extremely high crime rate, with murders occurring on almost a daily basis.

One method that was used to combat the problem was a zero tolerance approach.

In what became known as the ‘New York Miracle’, crime rates dropped dramatically – for example, homicide went down by a whopping 70%.

The Major of New York, Rudolf Guiliani, declared that since most crimes are committed by a small number of people, reprimanding those people and even locking them away for minor crimes had prevented more serious crimes happening.

The New York experience found that arresting people for minor offences, such as being drunk and disorderly, often revealed more serious offences such as carrying illegal firearms.

In that context, the argument was that the fear of being arrested for a minor offence decreased the likelihood that a person would illegally carry a firearm which, in turn, reduced the incidence of gun-related crimes.

The homicide rate in New York was incredibly high before the implementation of zero tolerance, and the rapid decrease in that rate led to the approach being declared a success.

A zero tolerance approach in Australia?

It has been argued that the success of zero tolerance in New York was due to the specific problems in that city, and that such a policy is unsuitable to Australia where the homicide rate is relatively low – and where rates of serious crime are already declining.

Critics of zero tolerance approaches point out that the criminalisation of minor offenders here may unnecessarily lead to their stigmatisation, social alienation and further offending, and that diverting offenders away from the criminal justice system is far better in the long term.

Critics also point out that zero tolerance was only one of many strategies implemented in New York, although it received the most publicity.

There was also an increase in the visibility and numbers of police, and changes in police methods, and a number of social programs were implemented to better address underlying problems leading to drug use, homelessness and offending.

Zero tolerance was therefore just one of the initiatives that contributed to the reduction of crime in New York.

From a policing perspective, zero tolerance approaches can take away police discretion, and force police to charge every person who is suspected of committing a crime.

Police currently have a large amount of discretion in making arrests and charging people.

They are expected to use their judgment impartially and appropriately when exercising this discretion, although this is not always the case in practice.

According to a report by the Australian Institute of Criminology, zero tolerance could significantly reduce the exercise of discretion, meaning that law enforcement officers would be expected to charge every suspect.

And while politicians love to talk about being tough on crime, it is often an ineffective strategy that can impose unrealistic expectations of police and lead to the marginalisation and criminalisation of otherwise productive and law abiding members of the community.

Academics and more senior police have largely stopped advocating zero tolerance approaches, but this has not kept it from the public discourse.

Conservative governments often support ‘tough on crime’ approaches and we can see examples of this in NSW already.

Politicians are often heard criticising magistrates and judges for ‘going easy on criminals’, pushing for tougher rules.

Some of those rules aim to limit or remove judicial discretion in sentencing, such as the advent of ‘guideline judgments’, ‘standard non parole periods’ and the current government’s ‘one punch’ laws.

One consequence of this, predictably, is a rising prison population.

Prisons in NSW are filled to the brim, despite serious crime being in decline.

The difference can be partly put down to sentencing.

NSW has the largest prison population in Australia, with more than 30% of those in prison doing time in NSW.

According to the NSW Bureau of Crime Statistics and Research (BOCSAR), the NSW prison population fell after 2012, despite being on the rise for over a decade before then.

But this trend was short-lived as by 2014, the prison population was on the rise again, and inmates were spending longer in prison.

By March this year it had reached a record high of 10,917, according to BOCSAR.

There can often be detrimental effects on the lives of first time offenders who faced good chances of rehabilitation before being slapped with prison or a criminal record.

Those who have a criminal record may often face long-lasting stigma, making it difficult to find a job, and increasing the prospects of reoffending.

And harsher penalties may lead to less people pleading guilty, as those who may have pleaded guilty may wish to ‘roll the dice’ instead.

Forum sentencing – a rehabilitation and mediation-based approach where the victim and offender come together – has been criticised as being too ‘soft’ and ineffective.

However a BOCSAR study has shown that there was no real difference between the levels of reoffending between those who had been dealt with by forum sentencing and those who spent time in prison.

While it could be argued that forum sentencing is no more effective than a ‘tough on crime’ stance, this would be to ignore the other benefits of the scheme.

In Australia, it costs tens of thousands to house just one prisoner for a year, while supervision of a young offender costs very little.

Perhaps it is time to realise that being ‘tough on crime’ is just a piece of rhetoric, and not a useful criminal justice approach.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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