The coincidental delivery on August 12 of Attorney General Eric Holder’s speech calling for measures to reduce overincarceration and racial disparities in our criminal justice system, and federal judge Shira Scheindlin’s 195-page opinion declaring the New York Police Department’s aggressive “stop and frisk” practices unconstitutional, have led some to suggest that we are at a turning point in confronting the excesses and injustices of America’s criminal law. In fact, the turn began some years ago. Both Holder’s brave speech and Scheindlin’s powerful decision reflect a growing recognition over the past decade—in law and in politics—that something is fundamentally wrong with the enforcement of criminal law in America.
Racial injustice in the enforcement of the law, and its disturbing consequences, have been with us for centuries. As President Obama reminded the nation in his remarks after the conclusion of the Trayvon Martin trial last month, “there is a history of racial disparities in the application of our criminal laws, everything from the death penalty to enforcement of our drug laws.” African-Americans today are far more likely to be arrested, convicted, and sentenced to prison for drug possession, even though studies consistently find that whites and blacks use illegal drugs equally. African-Americans are only 13 percent of the general population—and about the same percentage of those who use and sell drugs. Yet African-Americans account for roughly 35 percent of those arrested on drug charges and 53.5 percent of those entering prison for a drug conviction. Much of the rise in the nation’s prison population over the past forty years has been fueled by drug convictions, and African-Americans have borne the brunt of the policy.
But there are encouraging signs that we are moving away from the worst of these practices. While the nation’s incarceration rate has skyrocketed since the 1970s, in the last three years the state prison population has decreased. The drop in 2012 was the largest yet. And racial disparities are also diminishing. As I wrote in a 2011 article in the Ohio State Journal of Criminal Law:
The number of black prisoners in federal or state prisons declined by about 18,400 since year-end 2000, which reduced the total number of blacks in state or federal prison to about 591,900 at year-end 2008. In contrast, over the same time period, the number of imprisoned whites rose by 57,200 to reach 528,200 at year-end 2008. From 2000 to 2006, the number of black state prisoners fell by 53,300 to 508,700; 55.5 percent of the decrease was due to the incarceration of fewer black drug offenders. Between 1988 and 1993, blacks were arrested for drug offenses at rates 5.1 to 5.5 times higher than whites; yet, in 2007, the disparity had fallen to, at its lowest, between 3.5 and 3.9.
The very fact that Holder could make the speech he did further reflects how much has already changed. For decades, the only politically acceptable approach to crime was to “get tough.” Congress had one and only one response to the myriad social problems that contribute to criminal behavior—to mandate longer sentences and build more prisons. State legislatures followed suit, with mandatory minimums, three-strikes-and-you’re-out life sentences, the elimination of parole, and the like. As recently as the 1990s, President Clinton successfully promoted a crime bill that radically restricted prisoners’ ability to obtain federal court review of their convictions through habeas corpus.
Yet the last two times Congress has enacted crime bills, it has sought to ameliorate the harshness of the system. In 2008, President George W. Bush signed the Second Chance Act, which commits federal resources to reintegrating prisoners into society and to reducing recidivism. In 2010, President Obama signed into law the Fair Sentencing Act, which reduced the disparity in sentencing between crack cocaine and powder cocaine, laws that had disproportionately harmed black offenders. State legislatures, meanwhile, faced with tightened budgets, have sought ways to save on criminal justice expenditures, in part by shortening criminal sentences and facilitating the early release of nonviolent offenders.
Thus, it is now politically feasible for the nation’s top law enforcement officer to urge that we should be “smart” rather than “tough” on crime. This is not to minimize the courage Holder showed in making his speech. No attorney general has ever spoken so candidly about the flaws in our criminal justice system, or proposed as much reform. As Holder put it, “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” The solution, he argued, lies in concentrating enforcement resources on the worst criminals, while limiting our reliance on incarceration for nonviolent offenders. He has ordered his prosecutors to avoid mandatory minimum sentences for nonviolent drug offenders by omitting the amounts of their drugs from their indictments, or by allowing state prosecutors to charge the crimes instead. (State drug sentences tend to be significantly less draconian than federal sentences). He ordered an expansion of the criteria used to identify federal prisoners eligible for early release. He has called for more funding for indigent defense, and an expansion of drug treatment and diversion programs as alternatives to prison sentences for nonviolent crimes.
Holder is not blind to the problem of crime in the inner cities. But he argued that “by targeting the most serious offenses, prosecuting the most dangerous criminals, directing assistance to crime ‘hot spots,’ and pursuing new ways to promote public safety, deterrence, efficiency, and fairness—we in the federal government can become both smarter and tougher on crime.” This approach is in direct contrast to the aggressive “stop-and-frisk” policing that the NYPD has used, intimidating inner-city communities with “show me your papers” tactics that swept up tens of thousands of innocents, rather than identifying and focusing on the small number of individuals who commit most of the serious crimes in those communities. Judge Scheindlin’s decision found that the NYPD’s practices violated both the Fourth Amendment, which requires that police stop and frisk only those about whom they have “reasonable suspicion” of criminal activity, and the Fourteenth Amendment, which prohibits racial profiling.
New York Mayor Michael Bloomberg, reprising the old politics of tough-on-crime, reacted with visible anger to the federal court’s decision. In defending his department’s unconstitutional practices, he has trumpeted the dramatic drop in crime that New York City has seen over the course of his administration—and indeed over the past two decades—and implied that the end justifies the means. But as I showed in a review of Franklin Zimring’s The City That Became Safe: New York’s Lessons for Urban Crime and Its Control, there is little basis for claiming that the improvement in New York’s crime rates can be attributed to “stop and frisk.” Zimring identified multiple changes in NYPD tactics that contributed, including an increase in the number of police on the streets, a focus on “hot spots,” and a computer mapping program that permitted far more effective monitoring of where crime occurs and what officers are doing to respond to it. Crime has dropped dramatically across the nation, including in many cities that have not adopted New York’s aggressive stop-and-frisk tactics. And New York City experienced a decade-long decline in crime before it even began the practice of widespread stops and frisks.
Crime remains a serious problem, nowhere more so than in the inner city. As President Obama said in his remarks on the Trayvon Martin case, the African-American community is not “naive about the fact that African-American young men are … disproportionately both victims and perpetrators of violence.” But as the incarcerated population has radically increased, the counterproductive effects of locking up so many people for longer and longer periods of time are harder to ignore. The costs of mass incarceration are substantial—according to Holder, more than $80 billion in 2010 alone. It costs more to keep a young man in prison than to send him to college. And consistently high recidivism rates show that incarceration hardly solves the problem, and may exacerbate it, as those released from prison find few lawful ways to support themselves, and return to crime in desperation.
Meanwhile, as crime has dropped across the country (and indeed, across the world), the fear that drove policy for so long is waning. At the same time, the “war on terror” may have made the “war on crime” less politically necessary, as politicians can demonstrate their toughness on a different “other”—the terrorist. Whatever the underlying causes, we may be at a historic juncture—but only if the nation is willing to abide by the lessons of Attorney General Holder and Judge Scheindlin.