Posts Tagged ‘justice system’

Ray Kelly on Stop-and-Frisk: You saved HOW many lives?

Tuesday, July 23rd, 2013

NYC’s Police Commissioner Ray Kelly wrote a piece for today’s WSJ titled “The NYPD: Guilty of Saving 7,383 Lives” and subtitled “Accusations of racial profiling ignore the fact that violent crime overwhelmingly occurs in minority neighborhoods.” In it, he makes a great case for the fact that his cherished stop-and-frisk program is not effective policing, and may in fact lead to more crime.

That’s not his intent, of course. His purpose is to defend the NYPD’s much-maligned stop-and-frisk program (and also its surveillance of political dissidents). He doesn’t succeed. In fact, he does a great job of discrediting himself right off the bat. Which is a shame, because he makes it too easy to roll your eyes at him, and that would be a mistake. This stuff demands serious discussion.

He starts off with a burst of illogic and bad math, to wit:

(A) During the 11 years Bloomberg’s been mayor, unspecified tens of thousands of weapons have been seized by the police;
and
(B) During those same 11 years, there were 7,383 fewer murders than in the preceding 11 years [though he cites 13,212 and 5,849 as the figures, so the actual difference would be 7,363];
therefore
(C) The NYPD has saved 7,383 lives.

Uh huh. Right.

Well, he IS right that crime is way down. A careful statistician might even observe that crime in this city is way WAY down. And this is a good thing.

But to what extent is it a result of the police seizing all those weapons? (And how many weapons did they seize in the 11 years before Bloomberg? He doesn’t say.) In fact, to what extent is the drop in crime the result of policing policies at all? Most research I’ve read seems to support demographic shifts and maturing community attitudes as its primary causes.

Kelly makes this “we saved lives” point in order to justify the NYPD’s stop-and-frisk program. He makes other arguments, too. Taken together, his arguments all boil down to “it works, therefore it’s justified.”

No. Wrong.

Just because something works, that doesn’t make it right. Or even legal. Just think of the atrocities the State could commit if mere effectiveness was all the justification it needed. Better yet, don’t think of them. I don’t want to give you nightmares.

But put that aside for now. Is he even right to claim that it’s working, in the first place?

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It is silly to deny that good policing can affect crime rates. When the police are effective — when criminals stand a good chance of being caught and punished — then that effectiveness serves as a deterrent. People who otherwise might have committed a crime are more likely to think twice about it.

Then again, we are talking about violent crime, here. How much violent crime is even capable of being deterred? Most assaults and murders are unplanned, spur-of-the-emotions stuff. The odds of being caught and punished aren’t exactly being weighed. Even an effective police force will have an iffy deterrent effect there, at best.

But that’s not what stop-and-frisk is about. And it’s not really about getting weapons off the streets, either.

Stop-and-frisk is about making the risky people take their risky behavior somewhere else.

The NYPD is doing it because they think it will work. That it has worked. That it is working.

And they are wrong.

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First things first: It is (more…)

Federal Sentencing: A Long Way to Go

Tuesday, May 25th, 2010

guidelines

Tonight, we attended a panel discussion on federal sentencing that was actually worth commenting on. Usually, these things are either so basic or insubstantial as to be a waste of time. But this one had a few choice moments we’d thought we’d share with our readers.

The panelists included John Conyers (Chairman of the House judiciary committee), William Sessions (Chair of the U.S. Sentencing Commission and Chief Judge of the District of Vermont), Jonathan Wroblewski (policy director for the DOJ, among other things), Alan Vinegrad (former US Atty for the EDNY and now a white-collar partner at Covington), Tony Ricco (mainstay of the federal defense bar), and Rachel Barkow (NYU professor, didn’t speak much). It was moderated by Judge John Gleeson of the EDNY, and we recognized in the standing-room-only audience a number of distinguished jurists and counsel.

Everyone seems to agree that the Guidelines are in need of a major overhaul. As Judge Gleeson put it, “when even the prosecutors are saying that sentences are too severe… the sentences are too severe.”

But not everyone agrees on what changes ought to be made, how drastic the changes ought to be, or even what’s causing the problems in federal sentencing.

Here’s the take-away: Everyone knows what the right thing to do is. Judges want to do the right thing, regardless of what the Guidelines say. The DOJ forces its prosecutors to do what the Guidelines say, regardless of what they think is just. Congress is incapable of doing the right thing, in its efforts to pander and blame rather than solve. And the Sentencing Commission is afraid to be independent of Congress, preferring instead to make baby steps toward eventually maybe doing the right thing.

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“Unnecessary cruelty”

For as long as we’ve been practicing law, everyone has been complaining bitterly about (more…)

Massive Rise in Hung Juries? Deal With It.

Monday, March 23rd, 2009

holdout.png

Although juries have existed in one form or another since ancient times, the jury as we now know it originated in 12th-century England. At first an accusatory formality, the jury evolved into a check on governmental power. Nowadays, an accused’s right to have the evidence against him judged by members of his community is one of the most essential requisites of criminal justice. Juries also ensure a public perception that the system is just — a necessary precondition for the system to actually work.

But justice requires that juries actually make a decision. And new statistics show that they’re refusing to in ever increasing numbers.

When someone is accused of a crime, the law prescribes certain actions that can be taken by the justice system. It’s so formulaic that much of it could be done by a computer: if the defendant did X, Y and Z, then he goes to prison; if he only did X and Z, he gets probation; if he only did X, then he does not get punished. But before the law can be applied to the facts, the law needs an official version of the facts. We need it so we can move on to the next step, so defendants and victims and witnesses can get on with their lives. A computer can’t do that. It is the job of real people, the jury, to define that official version of the facts.

If a jury refuses to make a decision, justice is delayed. The accused must suffer continued anxiety and uncertainty until another trial closes this distressing chapter in his life. He must double down on the expense of defending himself, and on the stress it puts him and his family through. Victims and witnesses have to go through the trauma of testifying all over again. Another pool of jurors has to take time out of their lives.

But modern sensitivities have made the hung jury ever more commonplace. We’re not supposed to be judgmental. For decades, ethical relativism and cultural sensitivity have been a major part of our socialization. Gen-X kids like me, taught to be politically correct in college, are now entering middle age. The Millennials now entering the workforce have learned these sensibilities since birth, and for many it is viscerally wrong to pass judgment on another. This oversimplifies the matter, of course, but the fact remains that a huge portion of the population now feels significantly more uncomfortable in the role of juror.

These same generations had parents, teachers and professors who lauded the civil rights protests of the 1950s and the antiwar protests of the 1960s. Now they are more likely to use their jury service as a protest — they don’t care what the facts are, they have an agenda in conflict with their role as jurors. Maybe they simply don’t want to put another young black man in jail, and further decimate their community. Maybe they simply want to use their jury service as a vague protest against an oppressive system. We’ve seen plenty of those kinds of jurors, too.

The results have been dramatic in recent years, as the numbers of hung juries have skyrocketed. In the birthplace of the modern jury, the BBC reports that hung juries increased 30.7% in 2007, and a whopping 70.6% in 2008.

Still, this isn’t cause for alarm. Careful jury selection can often identify people who simply cannot pass judgment, as well as those who have a political agenda. Lawyers and judges can use voir dire to educate jurors about the importance of their role, so that they overcome their discomfort and do their job.

Alarmists want to prevent hung juries by allowing majority verdicts in criminal trials. If a holdout is holding up justice, reformers would negate that holdout’s influence, and let a vote of 10 out of 12 be sufficient (as it already is in England). But that is an end run around justice — the principled holdout who refuses to give in to pressure is an iconic figure in public perception. Norman Rockwell painted it, for crying out loud.

No, we’re going to have to play the hand we’re dealt. If the venire is more likely to harbor holdouts, we are just going to have to do a better job of getting across to them, or weeding them out. The jury is the democratic participation of the community in the administration of justice, a system better adapted than any other to the protection of the individual against oppression by the state. As Lord Devlin said, a tyrant cannot rise unless he “overthrow or diminish trial by jury.”