War Crimes and Misdemeanors: Undestanding “Zero-Tolerance” Policing as a Form of Collective Punishment and Human Rights Violation

Fabricant, M Chris


Volume: 3
Drexel Law Review


A fundamental principle of criminal law is that individuals may only be punished for offenses which they have personally committed; any punishment must be personal and individual. To that end, international law proscribes as collective punishment any sanction imposed on a population without regard to individual culpability for the offense that provokes the penalty. Compstat-based zero-tolerance or order-maintenance policing, the prevailing thesis in contemporary law enforcement, punishes entire communities for the crimes of a few. More specifically, zero-tolerance policing seeks to deter violent crime not by apprehending those relatively few perpetrators of crime, but by indiscriminate search-and-seizure operations and wholesale misdemeanor arrests for minor quality-of-life offenses in the neighborhoods where violent crimes occur, typically poor communities of color. As a form of collective punishment, such policing is contrary to international human rights law.

In one eight-block section of Brooklyn, the New York City Police Department (NYPD) stopped, questioned, and searched 52,000 people in four years, 94% of whom had committed no offense. Residents of communities targeted for this type of intensive policing by Compstat are not only stopped and searched without individualized suspicion, but they are also routinely arrested and jailed on criminal trespassing charges for failing to provide police with identification. The indiscriminate policing in these neighborhoods closely resembles a counterinsurgency strategy known as cordon and search, in which troops seal off geographic areas and subject entire communities to violent search-and-seizure operations to suppress terrorist activity and seize weapons. Scholars and human rights activists have condemned the indiscriminate use of this tactic against civilian populations in Afghanistan, Uganda, and Sri Lanka as contrary to the Geneva Conventions and as collective punishment, since it penalizes entire communities for the crimes of a few of its members.

Drawing on some of the language and principles of international humanitarian and human rights law, this Article offers a new theoretical framework to address the harm caused by zero-tolerance policing on targeted communities. It highlights the collective nature of the sanctions imposed by the strategy and the resulting erosion of the core due process norm of individual culpability. The policing strategy at issue is not characterized by the sensational atrocities typically associated with collective punishment regimes but by a mass of seemingly small harms that have, over time, perpetuated racial and socioeconomic segregation of inner-city communities and deepened resentment towards law enforcement among significant numbers of law-abiding citizens.

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