This week, Attorney General Eric Holder announced that the Justice Department will keep nonviolent small-scale drug sellers who have no links to criminal organizations from getting caught in the mandatory-minimum-sentence trap. Under current law, judges must impose a mandatory minimum prison term for defendants convicted of selling more than a specified quantity of illegal drugs.
With prison populations and costs mushrooming — America has more people behind bars than any other country in the world — Holder has instructed U.S. attorneys to evade the mandatory-minimum law by not specifying drug quantities when they charge qualifying suspects. He also wants alternatives to prison pursued where possible. While it’s good news that some people who would have faced long prison sentences now will not, we nevertheless should be concerned whenever the executive branch unilaterally declares it will write its own law.
The other decision, this one from a court, criticized New York City’s stop-and-frisk policy, under which the police can stop, pat down, and question anyone on the street who arouses suspicion, a highly subjective criterion indeed. Federal District Judge Shira Scheindlin ruled that the New York Police Department carries out the policy in a manner that violates the Fourth Amendment rights of blacks and Hispanics. The judge specified the ways that the city could fix the policy and appointed a monitor to keep an eye on the police.
In both matters, horrendous policies are to be tweaked to make them less egregious. But this won’t be satisfactory. New York police will still have the arbitrary power to stop people walking down the street, and the federal judges will still put some people away with long mandatory prison terms regardless of the particulars of their cases.
In other words, deeply flawed policies can’t be tweaked enough to make them acceptable. Stop-and-frisk and mandatory minimums should be abolished.
Yet even this would fall short of what’s needed. The problems purportedly addressed by stop-and-frisk and mandatory minimums are of the government’s own making. Thus, if we got to the root, the “need” for these bad policies would disappear.
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