Zero tolerance reconsidered….It?s probably a mistake to make too much of the french fries case as part of the John Roberts brief; no doubt there will be more substantive grist arriving at the mill for an up or down vote on his qualifications for the Court. And of course my esteemed co-guest blogger, Lindsay Beyerstein, has already weighed in on the topic.

But the praise Roberts has been receiving from the Right for what is supposed to be a highly principled ruling in Hedgepeth v. WMATA seems a little feverish, as if they know full well the case is an embarrassment. Here?s Hugh Hewitt on the matter.

Hugh is one of those right-wing bloggers who always seems to be living in an alternate universe, but even so, calling this ?superb opinion writing? seems to be overreaching just a tad, no?

The truth is that this is precisely kind of case that makes the legal profession a hissing and a byword, as a P.G. Wodehouse character might put it. The problem lies in its acceptance of ?zero tolerance? programs, which are certainly among the leading governmental scourges of our time.

Zero tolerance is almost always an hysterical response to a social condition, but its dirty little secret is that it?s usually aimed less at violators than at law enforcement officers, prosecutors, and judges. The whole idea is to eliminate their discretion on the ground and in court, so that EVERY case is treated as an offense warranting the nuclear option. Generally the perpetrators of these policies hope that the wrongdoers will get the message, and figure out that if they infringe, there?s no hope of throwing themselves on the mercy of the court; the court, they?re to understand, has no mercy at its disposal. The subtext is that the reason we have school violence, street crime, dirty subways, etc., is that soft-hearted cops give some offenders a pass and soft-minded judges let others off easy.

The principle all these programs violate is that life is infinitely variable and individual circumstances are infinitely, well, individual. So what?s the harvest? An eight-year-old frog-marched to the police station for forgetting that a butter knife was nestled in the bottom of the knapsack he brought to school. A 12-year-old handcuffed and tossed into the back of police cruiser for eating a french fry. On a larger scale, the prisons fill up with petty drug offenders because there?s no give in the drug sentencing rules.

In California we have a ?three-strikes? law with all its attendant absurdities of street persons given life sentences for the theft of a slice of pizza, etc. That law looked to be on its way to a major reform by ballot, until Gov. Arnold Schwarzenegger stepped in and threw his photogenic torso in the way of the measure.

It?s always cheaper, in the short run, to withdraw discretion from employees in any system rather than provide the training necessary to allow them to make fine judgments. There?s not much harm in that choice when the employee is a telemarketing caller or a supermarket cashier, who wouldn?t make many fine judgments anyway. But when it?s a police officer or a judge, the potential for ludicrous outcomes is horrifically magnified.

It?s worth remembering that the policy at the heart of the Hedgepeth case was so absurd that it was canceled by DC transit officials before the case even reached Roberts?s bench. (For one thing, adults were given citations for eating in the Metro, but minors were arrested.) All Hedgepeth was asking was that her arrest be expunged, so she didn?t go through life, as Roberts observed, answering ?Yes? to the question, ?Have you ever been arrested??

Somehow, Roberts and his fellow jurists couldn?t find a legal principle in their books to rationalize the child?s request. Well, I?m not a lawyer, so perhaps their ruling is the exemplary application of settled law that Roberts?s fans would have us believe. And as I said, it?s probably wise not to make TOO much of this case. But as Dickens?s Mr. Bumble told us, ?the law is a ass.? And people who think this is the kind of reasoning that belongs on the Supreme Court are bigger asses.