Is Today the Beginning of the End of America’s ‘Tough on Crime’ Policies?

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Change is afoot. Photo: Spencer Platt/2004 Getty Images

Fifty years from now, when college students read about the history of America’s criminal-justice system, August 12, 2013 may turn out to be one of those watershed moments: a day when America took a hard look at the human costs of its criminal-justice policies — and began to reverse course.

This morning, Judge Shira A. Scheindlin delivered her decision in Floyd, et. al. vs. the City of New York, in which she blasted the NYPD’s practice of stopping-and-frisking people and ordered the appointment of an independent monitor. Meanwhile, in California, Attorney General Eric Holder announced this afternoon that the Justice Department will be taking a less punitive approach to dealing with drug offenders.

The timing is coincidental — but there’s no doubt that each chips away at America’s longtime love affair with “tough-on-crime” policies, pushing the pendulum back in the other direction and raising questions about what, exactly, these policies have cost us.

In the long-running battle over stop-and-frisk, Scheindlin’s decision is not too surprising to anyone who spent time in her courtroom listening to her lambaste the city’s attorneys during the nine-week Floyd trial. Her decision affirmed what a handful of NYPD whistleblowers have long been saying: that their bosses pushed them so hard to meet quotas (or “performance goals,” in NYPD parlance) that they and their fellow officers felt pressured to make illegal stops — to stop people even when they had no “reasonable suspicion” that the person had committed (or was about to commit) a crime.

As a veteran cop explained it to me, “We can’t just stop everybody. And that’s what they’re teaching the new guys to do: Just stop everybody … Just to get the numbers. That’s it. Doesn’t matter. Just get the numbers.”

The number of street stops officers made skyrocketed between 2002 and 2011: from a total of 97,296 stops a year to 685,724. The overwhelming majority of the people stopped were African-American or Latino. And in most cases — nearly 90 percent — the cops didn’t hand out a summons or make an arrest.

The most powerful evidence at the trial may have been the tape recordings made by NYPD whistleblowers Adrian Schoolcraft, Adhyl Polanco, and Pedro Serrano. Each taped their bosses at great risk to their own careers. And, in the end, their efforts paid off. “The three officers’ recordings provide a rare window into how the NYPD’s policies are actually carried out,” Scheindlin wrote in her decision. “I give great weight to the contents of these recordings.”

Parsing the exchanges captured on the recordings, she concluded: “The NYPD maintains two different policies related to racial profiling in the practice of stop and frisk: a written policy that prohibits racial profiling and requires reasonable suspicion for a stop — and another, unwritten policy that encourages officers to focus their reasonable-suspicion-based stops on ‘the right people, the right time, the right location.’”

She calls this policy “indirect racial profiling” because, she says, it leads to the “disproportionate stopping of the members of any racial group that is heavily represented in the NYPD’s crime suspect data.” Her order today does not abolish the NYPD’s practice of stop and frisk, but instead appoints an independent monitor to ensure that police officers only make stops that are constitutional.

Meanwhile, at the annual conference of the American Bar Association in San Francisco, Attorney General Eric Holder announced today that the Justice Department will be changing its approach to dealing with low-level drug offenders, so that fewer of them will be subjected to mandatory-minimum prison sentences.

This idea of punishing drug offenders with mandatory sentences based on the weight of the drugs involved — not whether they were a first-time courier or a major kingpin — started 40 years ago in New York State. On January 3, 1973, when Governor Nelson Rockefeller gave his annual state-of-the-state speech in Albany, he pushed for a new approach to stamping out drugs: life sentences for drug sellers.

His announcement marked a major reversal; at the time, the preferred approach to addressing the drug problem was treatment. Even Rockefeller’s staff was against his tough-on-drugs idea. But Rockefeller pushed ahead — with one eye on the Oval Office — and convinced legislators to pass a slightly less punitive version, featuring mandatory prison sentences of fifteen years to life.

Rockefeller’s idea spread like wildfire through the country: Almost every state and the federal government adopted their own mandatory minimums, helping to fuel a massive prison expansion. Today, the U.S. has the world’s highest incarceration rate; our jails and prisons hold 2.2 million people.

Four decades after Rockefeller’s speech in Albany, Holder is beginning the process of reckoning with the legacy of locking up so many of our fellow citizens — or, as he put it in his speech today, reckoning with the “vicious cycle of poverty, criminality, and incarceration [that] traps too many Americans,” while admitting that “many aspects of our criminal justice system may actually exacerbate this problem rather than alleviate it.”

Both Scheindlin’s decision and Holder’s speech seem to send the same message: Our nation’s myopic approach to crime control — our single-minded obsession with “tough-on-crime” policies — needs to stop. No longer can we afford to ignore the human cost of our own criminal justice system, whether it’s the impact on the hundreds of thousands of New Yorkers who endured illegal street stops, or all the low-level drug offenders now sitting in prisons with steep sentences.

Today’s low-crime era seems perfectly suited for a new approach to crime control. For years, politicians were loathe to lobby for less punitive crime policies, lest they be labeled “soft on crime.” Today Holder jettisoned the old phrase “tough on crime,” replacing it instead with “smart on crime.” Perhaps this slogan will stick, and instead of fear-driven crime policies, we’ll wind up with a criminal-justice system that is more fair, that no longer robs some citizens of their constitutional rights — or locks them up with unjust sentences — in the name of public safety.