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.
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 whistle-blower 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 decadeslong 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.
• Jeffrey Scott Shapiro is a former prosecutor in Washington, D.C.