When will it stop? I’m asking. When? These are supposedly educated people. (If all the supposeds in the world were actuals, the world would be a far, far better place than it has ever been before: all the cows would come home to hear the fat lady sing.) When will the people who would lead us, when challenged on their wrongful acts and policies, cease to introduce in argument the red herring of the irrelevant appeal to efficacy? When they cease to try to mislead us or themselves, one might answer. Or when reporters begin regularly to call them on it.
Challenge members of the George W. Bush administration, then or now, on that administration’s torture policy, and you will hear in response how many terrorist plots the policy thwarted and how many lives were accordingly saved.
Challenge figures in the national security apparatus during the current administration about sweeping and excessive data collection on American citizens, and you hear from every Tom, Dick, and Obama how many terrorist plots the policy thwarted and how many lives were accordingly saved.
Challenge his royal mayor of New York – Bloomberg the First, by the Grace of Billions, of the Five Boroughs and its lesser Islands, Head of the City and Defender of the Untermed Out – about the racial profiling at the foundation of New York City’s Stop-and-Frisk policy, and he will reply,
Every day Commissioner Kelly and I wake up determined to keep New Yorkers safe and save lives. Our crime strategies and tools – including Stop-Question-Frisk – have made New York City the safest big city in America. And I’m happy to say we are on pace for another record low number of shootings and homicides this year because our police officers follow the law and follow the crime.
They fight crime wherever crime is occurring, and they don’t worry if their work doesn’t match up to a census chart. As a result, today we have fewer guns, fewer shootings, and fewer homicides. In fact, murders are 50 percent below the level they were 12 years ago when we came into office – something no one thought possible back then.
Stop-Question-Frisk – which the Supreme Court of the United States has found to be constitutional – is an important part of that record of success. It has taken some 8,000 guns off the street over the past decade – and some 80,000 other weapons.
….
The fact that fewer guns are on the street now shows that our efforts have been successful. There is just no question that Stop-Question-Frisk has saved countless lives. And we know that most of the lives saved, based on the statistics, have been black and Hispanic young men.
It’s worth remembering that as recently as 1990, New York City averaged more than six murders a day. Today, we’ve driven that down to less than one murder a day.
Think about what that change really means: if murder rates over the last 11 years had been the same as the previous 11 years, more than 7,300 people who today are alive would be dead.
Stop-Question-Frisk has helped us prevent those and other crimes from occurring – which has not only saved lives, it has helped us to reduce incarceration rates by 30 percent, even as incarceration rates in the rest of the nation have gone up.
That’s why people across the country and around the world have come to learn about how the NYPD has been so successful, and how we’ve driven crime down to record lows. We are the poster child that everybody wants to follow.
The issue of racial profiling is a legal one. It is a legal issue because it is a moral one. The judge based her decision on Fourth and Fourteenth Amendment violations, and asserted her power of injunctive relief based upon those violations, and the moral considerations around them, not on the effectiveness of stop and frisk.
The effectiveness of stop and frisk is an entirely separate matter, and Bloomberg’s argument in support of the policy on those grounds is markedly deceptive and easily challengeable in its own right. I presented that case here.
Bloomberg followed the comments above by stating,
Throughout the trial that just concluded, the judge made it clear she was not at all interested in the crime reductions here or how we achieved them. In fact, nowhere in her 195-page decision does she mention the historic cuts in crime or the number of lives that have been saved.
She ignored the real-world realities of crime…
The mayor is a bright enough man to know that the reason the judge was, by Bloomberg’s lights, “not interested” in those issues is that they were not the issue before her. She did not rule on the effectiveness of stop and frisk, but on the constitutional violations it was argued before her the policy entails. Yet contrary to what Bloomberg claims, Judge Shira Scheindlin was cognizant of the “real world.”
With regard to the public interest, the City has expressed concern that interference in the NYPD’s stop and frisk practices may have a detrimental effect on crime control. However, as previously noted, I am not ordering an end to stop and frisk.
However, unlike the mayor, Judge Scheindlin properly understood the legal and ethical issues that were the purview of the legal challenge brought before her.
Furthermore, as in Ligon, it is “‘clear and plain'” that the public interest in liberty and dignity under the Fourth Amendment, and the public interest in equality under the Fourteenth Amendment, trumps whatever modicum of added safety might theoretically be gained by the NYPD making unconstitutional stops and frisks.
If one does not recognize the essential germaneness of this point, if, worse, one chooses demagogically to ignore the essential germaneness of this point, then one does not understand or chooses to ignore the very idea of American democracy and constitutionalism, and the purpose of the Bill of Rights.
Judge Scheindlin states later,
I have always recognized the need for caution in ordering remedies that affect the internal operations of the NYPD, the nation’s largest municipal police force and an organization with over 35,000 members. I would have preferred that the City cooperate in a joint undertaking to develop some of the remedies ordered in this Opinion. Instead, the City declined to participate, and argued that “the NYPD systems already in place” — perhaps with unspecified “minor adjustments” — would suffice to address any constitutional wrongs that might be found. I note that the City’s refusal to engage in a joint attempt to craft remedies contrasts with the many municipalities that have reached settlement agreements or consent decrees when confronted with evidence of police misconduct.
If the overriding value is effectiveness – efficacy – what works – then we might spy on everyone without regard to any foolish notions of private lives and individual integrity, we might torture every suspect and hope we get the goods on him – we can claim we did, anyway – and we might even more surely lock up every black male under the age of thirty-five in a Supermax prison. Those policies will surely diminish the costs of terrorism and lower the black on anybody crime rate.
If that rhetorical flight strikes as absurdly hyperbolic – absurdly because it is so clearly excessive and transgressive of bounds – bounds somewhere that most of us at some point would finally notice and observe, then that is the point. Before we can stand on the efficacy of a policy or course of action, we need rise first on an ethical foundation rooted in our values and the principles of our constitutionalism. When challenged on ethical grounds, one cannot resort to leaping onto functional planks. Even if one wishes to argue that practical considerations – what works and what does not – have influence over formation of our ethical understanding, still one recognizes the primacy of the moral ground of consideration and can argue honestly only in acknowledgment of it and by addressing it.
As long as our Bloombergs and our Cheneys (oh, the former surely thinks himself different from the latter, don’t you think) arrogantly disperse through the filter of their commanding judgment – their rule of the real world – our visionary, liberating, and founding ideals, they do not serve, but disserve us. And they argue badly, too. Or boldly deceive us.
AJA
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