The Corner

Law & the Courts

Heather Mac Donald Fact-Checks Hillary Clinton on Systemic Bias and Stop-and-Frisk

At City Journal, Heather Mac Donald dismantles Hillary Clinton’s debate claims that the criminal justice system is infected with racism and that stop-and-frisk (which Trump has called for reviving) is unconstitutional and ineffective. As with anything Heather writes, the whole thing is worth your time. But I’ll home in on two points so I can make a couple of points of my own.

First, she explains the elephant in the room that no one (including Donald Trump last night) wants to confront: Mrs. Clinton’s “systemic bias” libel ignores that the statistical overrepresentation of blacks in the prison population (compared to their percentage of the overall population) is caused by patterns of offending.

Not only does crime reporting by victims bear this out. It is common sense. Outside of academia, the legal profession is second to none in its leftward bent and racialist worldview; and its conservative members believe in equal protection under the law. Participants in the system, particularly the judiciary, would not tolerate a situation in which black defendants were, as Clinton alleges, being given more severe sentences than white defendants for the same criminal conduct. Federal sentences (and sentences in most states) are computed under race-neutral guidelines that factor in both offense conduct and criminal history. The more crimes one commits, the heavier the sentence for any one crime. This is a recidivism thing, not a race thing.

Second, cavalier claims are being made about stop-and-frisk – an investigative method in which police, upon observing suspicious behavior, stop a person to ask questions and pat the person down to check for weapons. While Trump endorses the practice, both Clinton and Lester Holt suggested that it has conclusively been found unconstitutional by the courts; and Clinton insists that it is also ineffective. The claims are based on a ruling by a single, agenda-driven judge (who was actually removed from the case, as Ed Whelan explained at the time). But, as Heather relates, the Supreme Court sanctioned stop-and-frisk in the 1960s, so “[n]o federal judge would have the power to declare pedestrian stops unconstitutional.” Moreover,

Stop-and-frisk remains a lawful and essential police tactic. Criminologist David Weisburd examined the practice in New York City and found that it reduced crime in shooting hot spots. Federal district court judge Shira Scheindlin did rule that the New York Police Department’s practice of stops was racially biased, but her ruling applied only to the New York Police Department. That ruling was wholly unjustified and would likely have been reversed on appeal, had newly elected New York City mayor Bill de Blasio not dropped the appeal. Judge Scheindlin used a population benchmark for measuring the lawfulness of police actions: if police stops didn’t match population ratios, they were unconstitutional, in Scheindlin’s view. Such a methodology ignores the massive disparities in criminal offending in New York City. Blacks commit over three-quarters of all shootings, though they are 23 percent of the city’s population. Add Hispanic shootings to black shootings and you account for 98 percent of all shootings in New York City. Whites are 34 percent of the city’s population; they commit less than 2 percent of all shootings. Such disparities in gun violence mean that virtually every time the police are called out on a gun run—meaning that someone has been shot—they are called to minority neighborhoods on behalf of minority victims, and, if any witness or victim is cooperating with the police, being given a description of a minority suspect. The reality of crime, not phantom police racism, determines the incidence of police activity, including pedestrian stops.

I will just add to this an observation about smug suggestions, mainly on the Left, that Trump’s advocacy for stop-and-frisk indicates ignorance of how the justice system works – specifically, of the fact that cops on the beat work for state and local police departments and are not controlled by the president. Trump’s principal adviser on law-enforcement matters is Rudy Giuliani (who hired me as a prosecutor all those years ago). Before being mayor of New York City, Rudy was a federal prosecutor, a high-ranking official in the Reagan Justice Department, and the United States Attorney for the Southern District of New York. It is thus frivolous to intimate that Trump does not grasp the distinction between federal and state responsibilities when it comes to policing.

For eight years, Obama has used Justice Department “pattern and practice” civil lawsuits to coerce police departments across the country to conform to his preferred methods. It is thus surprising to hear those who’ve applauded him claim that American presidents are suddenly powerless in this area – or apparently may be come January 2017. (As I argued in Faithless Execution, those who are happy today with Obama’s imperial presidency are apt to be unhappy when subsequent presidents of less left-leaning inclination use Obama precedents in order to impose their differing policy preferences.) Moreover, it is worth remembering that the litigation over stop-and-frisk occurred in federal court, and that the Obama Justice Department intervened in order to encourage Judge Scheindlin to appoint a federal monitor to oversee the New York City Police Department.

The New York Times reports that murders surged in the U.S. in 2015, according to data released by the FBI yesterday. Violent crime is still way down from what it was 20 years ago, but the trend is alarming – and, as Heather’s essential new book, The War on Cops, persuasively argues, the “Ferguson Effect” is real. So is law-and-order as an issue in the presidential campaign … largely because of how much impact the presidency now has on policing.


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