Pubdate: Mon, 19 Aug 2013
Source: Washington Times (DC)
Copyright: 2013 The Washington Times, LLC.
Contact:  http://www.washingtontimes.com/
Details: http://www.mapinc.org/media/492
Author: Jeffrey Scott Shapiro
Note: Jeffrey Scott Shapiro is a former prosecutor in Washington, D.C.

NATIONAL DEBATE IGNITES OVER CRIME, CIVIL LIBERTIES

Series of Events Shape American Tolerance

For the past quarter-century, the debate over law enforcement has 
leaned heavily in support of cracking down on crime and fighting the 
wars on drugs and terrorism. The Rev. Al Sharpton leads a protest of 
New York's "stop-and-frisk" program in 2012. Last week, a federal 
judge sitting in New York said the department made thousands of 
racially discriminatory street stops and appointed a monitor to direct changes.

But with the simultaneous rise of liberals in President Obama's 
Democratic coalition and Rand Paul-style libertarianism among 
Republicans, concern over government intrusiveness has moved to the 
forefront, sparking a debate that would have seemed unimaginable 
during the cocaine wars or in the wake of the Sept. 11 terrorist attacks.

The cracks in the once-unanimous law-and-order mentality were on full 
display during the whirlwind events of this month.

In stark contrast to the tough tactics of former prosecutors such as 
Rudolph W. Giuliani, Robert Morganthau and John Ashcroft, Attorney 
General Eric H. Holder Jr. declared unilaterally that he would direct 
federal prosecutors away from filing charges that contain minimum 
mandatory sentences for drug dealers.

Despite the U.S. Supreme Court's 1968 Terry v. Ohio ruling, which 
permits stop-and-frisk police searches, a federal judge held that the 
New York Police Department's systematic stop-and-frisk campaign was 
unconstitutional because it was overbroad. Other restrictions on the 
NYPD may be coming.

On Friday, Mr. Obama couldn't start his August vacation without first 
holding a televised news conference promising more oversight of the 
National Security Agency spying machine brought to light by Edward 
Snowden's leaks.

The conviction of FBI informant turned murderer Whitey Bulger raised 
the specter of a law enforcement culture that once placed the ends of 
crippling crime syndicates over the means of overlooking the criminal 
activities of its informants.

Such debate would have been unimaginable after 9/11 attacks or during 
the crime wave of the 1980s, when civil liberties advocates proudly 
declared that they were "card-carrying members of the ACLU" and 
Americans were angered by the soft-on-crime sentiment personified by 
the "Willie Horton" TV ad in the 1988 presidential race. Today, the 
debate has opened up from unanimous support for law enforcement to a 
more wary debate over limits on police powers.

"Tensions in this area have been characteristic of our governmental 
framework since the nation's founding. Thankfully, the 
self-corrective features of that framework inhibit excesses in either 
extreme carrying the day. ... It should come as no surprise that we 
are once again in the midst of such a process," said former Attorney 
General Dick Thornburgh.

John Avlon, former chief speechwriter for Mr. Giuliani, agreed that 
"the age-old tension between freedom and security should always be 
reassessed to meet new circumstances," but he warned about 
complacency, calling it a luxury that the policies themselves created.

"The threat of terrorism is not over, even 12 years after the attacks 
of 9/11, and although crime is down dramatically over the past two 
decades, the problem of violent crime is not over. There is an unwise 
temptation to take our gains for granted," he said.

On the legal front, advocacy groups such as the ACLU and the 
Electronic Frontier Foundation have stepped up challenges to police 
and intelligence tactics that they argue infringe on the First and 
Fourth amendments.

On that front, Mr. Avlon agreed that as the details of the 
surveillance state have become better known, many in Congress have 
turned against them.

"Since our laws have not kept pace with advances in technology, 
particularly with regards to personal privacy and the Fourth 
Amendment, I think it is healthy and hopeful to see a growing 
bipartisan coalition in Congress - from liberals to libertarians - 
question the expansion of state surveillance," he said.

Just how big Americans' appetite for change remains to be seen.

A Quinnipiac University survey released Thursday found New Yorkers 
sharply divided on racial lines over stop-and-frisk, with 57 percent 
of white voters and 25 percent of black voters approving.

Other polls suggest that Americans are growing weary with the 
surveillance state and the war on drugs. A healthy majority of those 
with an opinion see Mr. Snowden as a patriot and a whistleblower 
instead of a traitor, and more than 50 percent of Americans in 
surveys this year by Pew Research and Huffington Post/YouGov favored 
legalizing and regulating marijuana use.

Some political leaders and judges seem ready to test the limits of 
this social and political situation, leaving law enforcement 
scrambling for solutions or compromises.

New York lawmakers are scheduled to vote Thursday on an ordinance 
that would hamstring the NYPD in two significant ways - first, by 
creating an outside inspector general, separate from the existing 
public grievance boards and internal-affairs department, and second, 
by making it easier to pursue bias claims against the police.

At the federal level, members of Congress have introduced more than a 
dozen bills to rein in the NSA's mass phone-record program or alter 
the oversight system on foreign-intelligence gathering, and several 
privacy lawsuits have been brought against the NSA.

Mr. Holder's decision to stop using specific drug charges for 
low-level drug offenders could signal a shift from a decades-long 
national drug policy that many see as misguided. The reduction in 
filing minimum mandatory-based drug charges could open up prison 
space for violent criminals while freeing up the time of law 
enforcement officials and saving taxpayer money.

On Thursday, the U.S. Sentencing Commission made a broader 
declaration, voting unanimously to study problems with the mandatory 
minimum prison penalties and to push Congress to reduce the 
sentences' length and the range of offenses to which they are 
applicable. The seven-member panel also said Congress should look at 
broadening the law that exempts nonviolent offenders from mandatory minimums.

"With a growing crisis in federal prison populations and budgets, it 
is timely and important for us to examine mandatory minimum penalties 
and drug sentences, which contribute significantly to the federal 
prison population," said Judge Patti Saris, the commission chairwoman.

The war on drugs also is weakening on other fronts, as Colorado and 
Washington state have outright legalized the recreational use of 
marijuana. A score of other states now allow marijuana for medical 
purposes and have set up sales and growing regulations to enable such usage.

But backers of the war on drugs argue that reducing sentences for 
drug offenders sends a compelling message to dealers that if they 
operate independently and deal in low quantities at a time they can 
avoid prosecution.

Critics of stop-and-frisk say police officials in New York could 
redirect their efforts from these systematic campaigns into efforts 
that result in more successful arrests and convictions.

U.S. District Judge Shira Scheindlin, who issued a ruling in the case 
last week, justified her opinion by saying that "nearly 90 percent of 
the people stopped are released without the officer finding any basis 
for a summons or arrest."

Among the requirements she imposed: changes to the forms that 
document the stops and a test program for officers to wear cameras on 
their bodies.

Law and order advocates argue that some of the changes risk public 
safety. In an appearance Sunday on CBS' "Face the Nation," NYPD 
Commissioner Raymond Kelly criticized the stop-and-frisk ruling, 
saying its primary beneficiaries "ironically" are ethnic minorities.

"The losers in this case ... are people who live in minority 
communities. Ninety-seven percent of the shooting victims in NYC last 
year were people of color," Mr. Kelly said. "In the Bloomberg 
administration years ... if you compare those 11 years to the 
previous 11 years, there has been 7,363 fewer murders. So if history 
is any guide, clearly those lives saved are largely the lives of 
people of color."

Eliminating stop- and-frisk campaigns could create a chilling effect 
that obstructs police from legitimately searching valid suspects who 
carry firearms or other illegal weapons.

Mr. Kelly also noted the problems that police cameras would pose when 
they go beyond their usefulness in surveilling officers to deter them 
against misconduct.

"When do you have the cameras on?" he asked. "When do you turn them 
off ? Do you have it on during a domestic dispute? Do you have it on 
when somebody comes to give you confidential information? All of 
these issues have to be answered."

Although Bulger's prosecution was long overdue, engaging in the 
regular prosecution of less-controversial government informants may 
result in a drought of information needed to convict higher-level 
organized crime bosses.

America is facing a debate that is questioning opportunities and 
limits on the government's police and intelligence powers. The 
outcome remains uncertain, as events such as terrorist attacks, leaks 
and legal battles shape public opinion. But there's no doubt a debate has begun.
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MAP posted-by: Jay Bergstrom