Law and Policy

Today was a big day for criminal justice in the US. 

Attorney General Eric Holder announced a ""Smart On Crime" plan which includes asking prosecutors to remain silent on the amount of drugs involved in non-violent, low-level drug offenses in order to avoid triggering mandatory minimum sentences: "For example, in the case of a defendant accused of conspiring to sell five kilograms of cocaine — an amount that would set off a 10-year mandatory minimum sentence — the prosecutor would write that “the defendant conspired to distribute cocaine” without saying how much. The quantity would still factor in when prosecutors and judges consult sentencing guidelines, but depending on the circumstances, the result could be a sentence of less than the 10 years called for by the mandatory minimum law, the official said." This is an interesting use of policy to trump law (which still remains in place, but is more selectively enforced -- which begs the question of why we should have mandatory minimum sentences in the first place, but anyway...). 

Meanwhile, New York's Stop and Frisk policy was ruled unconstitutional by a federal judge.  Here was have a case of law supervening on policy, although it's not clear how effective the ruling will be in curbing the practise by which a disproportionate number of people of color are stopped and searched by police.  I blogged about this policy about a year and a half ago, in response to Adam Gopnik's endorsement of the policy.

It will be interesting to see, in the coming months and years, how effective either of these tactics will be in addressing the problem of mass incarceration and the hyper-incarceration of people of color.  My gut feeling is that the policy shift will have a greater impact than the legal decision, even though it remains an insufficient coping mechanism for an inherently problematic sentencing structure.  I'm reminded of Dean Spade's observations in Normal Life:

“[P]ower is not simply about certain individuals being targeted for death or exclusion by a ruler, but instead about the creation of norms that distribute vulnerability and security” (23).  Such norms “consign those who are perceived to fall outside these norms to abandonment and imprisonment” (23).  They “determine who lives, for how long, and under what conditions” (26).

Spade’s emphasizes “how essential participatory movements are that center the leadership of people facing the most direct harms from systems of subjection” (26).  He focuses on norms and policies in order to track the ways in which legal structures distribute life chances and reproduce vulnerability for certain populations.  After all, what does it matter if you have a legal or constitutional right to something, if these rights are not actualized through norms and administrative policies?  “Through this lens," Spade writes, "we look more at impact than intent.  We look more at what legal regimes do than what they say about what they do” (30).

Today's announcements are promising, but we will have to pay close attention to what they do, how they do it, and to whose overall benefit.