In earlier columns, I began to describe the bedrock principles of a legitimate criminal justice system:
- People have a right to be treated with dignity;
- Government has an obligation to be fair;
- Communities deserve to thrive.
I devoted several columns to the inviolable right to dignity (here and here). This column begins a discussion of the second principle: Government must be fair.
When it comes to criminal justice, fairness has a very specific meaning. Police cannot arrest more than a small fraction of those who break the law. Within broad limits, therefore, they are free to decide where they will concentrate their limited resources. Law enforcement gets to decide who they will surveil, stop, search, and arrest. The same is generally true for prosecutors, whose discretion is nearly unlimited and practically unreviewable.
Discretionary choices like these lace throughout the criminal justice system. Legislators decide what conduct will be criminal and how severely it will be punished. Trial judges make countless discretionary judgments, from the first determination to set bail to the last interpretation of the law. Prison administrators decide where inmates are housed, the privileges they enjoy, and the programs in which they participate.
In this context, therefore, to be fair is to be even handed. Two people who commit the same offense, or who commit different offenses that cause equivalent harm, or who otherwise present the same claim for some right or privilege in society, may not be treated differently. Today we accept this as a foundational principle of democracy. Yet in criminal justice, it has proven impossible to achieve, in part because of the legacy of discrimination.
Still, the most careful research consistently shows that formal, overt discrimination of the sort that poisoned criminal justice in the age of Jim Crow plays only a small part in the modern criminal justice system. Today, the problem is much more insidious. Instead of Bull Connor, we are confronted with what the sociologist Eduardo Bonilla-Silva calls, “racism without racists,” which refers to the culturally embedded and far-reaching lattice of implicit biases and racialized practices throughout society that both derive from and perpetuate stereotypical assumptions about black criminality.
These biases are particularly pernicious in the criminal justice system. As scholars have long documented, white Americans tend to believe that crime has a black face. Worse, they believe that the behavior most feared in connection with crime—the menacing disorder, violence, and drug dealing—is a more serious problem when attributed to blacks than whites.
Thus, as many studies have shown, a black man who commits a murder is much more likely to be sentenced to die than a white man, even after controlling for other possible variables. The most famous of these studies was conducted about the death penalty in Georgia by David Baldus and his colleagues, which the Supreme Court considered in McCleskey v. Kemp. Other studies (e.g., here and here) have replicated Baldus’ findings in other states.
The much maligned war on drugs presents a comparable illustration. As a recent article in the New York Times describes, heroin is considered a “white” drug and has been constructed as a public health crisis requiring a therapeutic solution. Crack, by contrast, has long been viewed (wrongly) as a “black” drug requiring a law enforcement solution. So white addicts get treatment and black addicts get prison.
As a result of these deeply ingrained distortions, police come to focus on black communities far more than can be justified by crime statistics alone. The difference, in other words, cannot be explained by higher offending rates by blacks. In fact, research has shown that as the proportion of blacks in a city rises, so do arrest rates and the expenditures on policing, even after taking into consideration official crime rates. The social construction of black criminality, in other words, is used to justify a more aggressive police presence in black communities.
And what is true for policing is equally true for other discretionary decisions in the criminal justice system, from prosecution to prison. In short, fairness—defined as an even-handed application of neutral rules—is not and has never been the hallmark of the American criminal justice system, despite whatever progress we have made in repudiating formal discrimination.
A genuine commitment to even handedness by the government would change the face of criminal justice. Consider, for instance, “zero tolerance” policies like the stop and frisk program operated by the NYPD from 2004-2012. The avowed purpose of the program was to get guns off the streets. The department kept detailed records that tracked the program’s operation, including how often officers found a gun and how often they used force.
According to an analysis of those records by Columbia Law School Professor Jeffrey Fagan, over the course of eight years, the NYPD made nearly 4 and ½ million stops, or more than half the total population in the city. They found a gun in roughly one of every 700 stops, but used force in one of every five. Think about that. In operating the stop and frisk program, the police were about 140 times more likely to use force against a member of the community than they were to find a gun—and this for a program designed to keep the community safe by finding guns.
And to describe this encounter as a “frisk” trivializes what in fact takes place. Pockets emptied and belongings strewn on the street, papers demanded and scrutinized, names run through databases for outstanding violations, no matter how minor. Often the person is forced to wait out the ordeal in handcuffs, in full view of his friends and neighbors. In New York, the vast majority of these interactions did not produce evidence of criminal activity, except perhaps the “crime” that justified the original stop.
So the person walks away humiliated in his own community, furious at the police, and socked with a summons for jaywalking or failing to signal a turn when he knew full well that none of this would’ve happened in a different (white) neighborhood. If all segments of the population in New York had borne the brunt of this program evenly, we could at least say the policy was fair—foolish, but fair. Yet in every year of its operation, the police stopped, frisked, and used force on about nine blacks or Latinos for every white.
Though the destructive effects of “zero tolerance” enforcement programs are widely known and broadly condemned, some politicians and pundits are nonetheless calling for their return. New Jersey Governor and Republican presidential hopeful Chris Christie said that if he were mayor of New York, “Stop-and-frisk would be back in about five minutes and we would empower the police, not undercut them.”
Christie’s prattle is a sign of how far we have to go to transform criminal justice in this country. Enforcement strategies like the NYPD stop-and-frisk program fail to treat people and communities even handedly and should be no part of a criminal justice system. (Frankly, they also fail the other principles: The individual is deprived of his dignity and the community is treated as occupied territory.)
Government enjoys a monopoly on the lawful use of force, and if we allow that force to operate unrestrained—if we allow the government to flaunt its obligation to be even handed—everything else we try will fail.
Professor Margulies makes many good points but he fails to address the main issue which is why do the police, judges, and prosecutors have so much discretion. Why can law enforcement arrest, prosecute, and convict anyone they choose? Why do prosecutors joke among themselves that they can indict and convict a ham sandwich? The obvious answer is that there are too many laws. In the words of Lavrenti Beria, Stalin’s chief of secret police: “Show me the man, and I will find you the crime.” The obvious solution is to abolish the thousands and thousands of laws that violate basic human rights which include all drug laws, gun laws, possession laws, license laws, tax laws, regulation laws, stop and frisk laws, and thousands of other laws that criminalize peaceful humans and peaceful behavior. The police should not be authorized to bother anyone who is not suspected of committing a real crime such as theft or assault. The obvious solution to all the current injustice is to restore freedom. Freedom means that there are only three laws, not three million laws. Those three laws are the natural laws that prohibit assault, theft, and disturbing the peace.