Marcus: Common-sense justice requires balance of discretion




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?

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.

When officers bothered to fill out forms justifying stops, they checked off boxes with loose justifications such as “furtive movements” or “suspicious bulge/object.” People were questioned simply because of the suspicious fact of meeting a generalized description — young black male, 18 to 24 — in a high-crime area, with scant review of whether such stops were constitutional.

Such a combination is problematic standing alone. Fold in race — blacks and Hispanics account for about half the city’s population but 83 percent of those searched — and it becomes a toxic recipe for community resentment.

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. Police stops are not airport security checks, an inconvenience that everyone must undergo in the interest of public safety. They are more intrusive, humiliating and targeted.

New York City is a far safer place than it was several decades ago; Bloomberg may be correct, as he said in decrying the decision, that stop-and-frisk “has saved countless lives,” most of them “black and Hispanic young men.” 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 described a nation “coldly efficient in our incarceration efforts,” with a prison population that has grown by almost 800 percent since 1980, with almost half of the inmates serving time for drug-related crimes.

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. In the Senate, two bipartisan odd couples — Illinois Democrat Dick Durbin and Utah Republican Mike Lee, and Vermont Democrat Patrick Leahy and Kentucky Republican Rand Paul — have introduced measures to give judges more power to override mandatory minimums.

Leahy and Paul describe their broader measure as a “safety valve” in the current, rigid system, and that is a useful metaphor. Because true justice encompasses both rules and discretion; it provides certainty and safety valve.