A healthy criminal justice system — one that is simultaneously effective and fair — demands neither too much discretion nor too little. Monday’s welcome news about stop-and-frisk searches and mandatory minimum drug sentences illuminates both aspects of that moral imperative.
On the unbridled-discretion end of the spectrum, U.S. District Judge Shira Scheindlin ruled that New York City’s aggressive stop-and-frisk program violated the constitutional prohibition against unreasonable search and seizure as well as its guarantee of equal protection.
To read Scheindlin’s opinion is to feel sympathy both for the innocent targets of the unconstitutional stops and the police instructed to carry them out.
The targets are the easy part. But sympathy for the cops, who in Scheindlin’s recounting are often overeager to make stops and abusive in conducting them?
Yes, because they are both pressured from above to make stops, lots of them, and burdened with too much discretion in deciding whom to stop. Scheindlin’s opinion documents how the relentless drive for numbers trickled down from commander to rank-and-file.
The city has argued that the races of those stopped mirror the racial composition of those involved in committing crimes. If anything, New York Mayor Michael Bloomberg said in June, police “disproportionately stop whites too much and minorities too little.”
This dismissive attitude undervalues the corrosive impact of a stop-and-frisk program that is both inadequately supervised and racially skewed.
But Scheindlin did not order an end to stop-and-frisk. She ordered that it be conducted more carefully, with more training before the fact and more supervision afterward.
Attorney General Eric Holder’s announcement on mandatory minimum sentences dealt with the opposite problem: inadequate discretion when it comes to sentencing, once again an issue with racial overtones.
Holder singled out “draconian mandatory minimum sentences” for drug crimes. “Because they oftentimes generate unfairly long sentences, they breed disrespect for the system,” Holder said. “When applied indiscriminately, they do not serve public safety.”
Holder said he was instructing federal prosecutors to stop using mandatory minimum laws against “low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs or cartels.”
This is a useful step; an even better approach would be to restore more flexibility to judges.
This column was edited for space. Read the full column at .
