Crime

Criminally Yours: Safety, But At What Cost?

Understanding the rewards reaped from constitutional intrusions is crucial to determining whether the sacrifice on freedom is worth it.

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It’s a given that everyone wants to stay safe from street crime and acts of terrorism, but at the same time, what are we willing to trade for that protection?

This past week, two issues came up that, although superficially unrelated, both deal with this question. How far should law enforcement go to keep us safe?

First, Congress weighed the costs and benefits of the Patriot Act, and although most of its strictures were left in place, they agreed to roll back the massive collection of meta-data relating to phone records.

With 14 years distance from the events of 9/11, cooler heads, from both sides of the aisle, prevailed in determining that giving the government total carte blanche on information gathering is too much. Deciding exactly how expansive the act should be and how much the public should be allowed to know is still uncertain, but the fact that a debate is in progress is good in and of itself.

At the same time last week, studies reported that gun violence is up in New York City since Mayor de Blasio eliminated (in conjunction with a federal mandate) the NYPD’s stop-and-frisk program.

While the stop-and-frisk program arguably rid the streets of some gun-toting teens, it came at a high price.

For years, just being a young African-American or Hispanic male in New York meant getting stopped randomly. Most of the people stopped not only had committed no crime to justify the stop, but, once frisked, had no contraband, weapons, drugs, etc. A few fish may have been caught in this over-inclusive net, but (to extend the metaphor), of the ones thrown back, how many were affected by the intrusion? My guess — all of them.

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Getting stopped by police for no reason hurts. Not only your time, but your sense of security. Bad feelings well up, suspiciousness of cops, a sense of insecurity when you walk down the street, a feeling that anything can happen at any time by the people posted there to protect you.

Since the pervasiveness of the program, I’ve had a heck of a time keeping young black males (the few that there are on Manhattan venires to begin with) on my juries. Almost to a one, they say they had been stopped by police for no reason sometime in their past, and therefore could not judge police officers fairly or keep an open mind in their regard. Because this sentiment made them unsuitable jurors, they were sent home — another blow to the jury-of-your-peers conceit.

Not much was done to end stop-and-frisk for a long time because it didn’t affect upper middle-class kids and white neighborhoods. But picture if it did. If police routinely stopped well-off white folks — the young, Wall Street analyst on the subway; the NYU college student waiting for the shuttle bus uptown, or even the middle-aged white woman waiting for the Hampton Jitney — they’d be furious, kicking and screaming about the violation of their civil rights and picking up the phone to dial their lawyers.

The difference with the NSA program is it does affect everyone. Everyone uses telephones, so everyone’s privacy is equally at risk. The argument I suppose is, well, I’m not doing anything illegal, so let them take my data.
Really? That’s when you really need the protection the most. The chipping away of constitutional protection rarely happens in one fell swoop in a democracy. It’s incremental, creeping, and always done for a “good” cause.

The interesting thing is, I’ve not seen statistics on how effective either the meta-data collection or the stop-and-frisk programs have been. Has the massive collection of information led to the arrest or interdiction of any terrorist? And how many of the people stopped and frisked in New York had absolutely nothing illegal to seize and therefore walked away angry?

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When investigations are run with such a scatter-shot, all-inconclusive approach, they touch far more people than necessary and their very scope can lead to their own undoing. The NSA, faced with deciphering that much data, has a much tougher time using the information than if they did some legwork first and then focused on the much smaller number of people that merited watching. And even if there was some small uptick in gun seizures based on stop-and-frisk, aren’t there better ways to do it without illegally targeting a particular group? It’s an ends justifying the means issue with a lot of losers and no easily quantifiable winners.

Transparency is key. Understanding the rewards reaped from the constitutional intrusions is crucial to determining whether the sacrifice on freedom is worth it. Without such data, it’s easy to confuse correlation with causation. Even though there’s been no foreign terrorist events on U.S. soil since 9/11, does that have anything to do with NSA’s amassing of records? Similarly, while gun use in New York may be up, that doesn’t mean the end of the stop-and-frisk program caused it.

In order to justify the need and efficacy of programs that challenge the very rights law enforcement exists to protect, let’s at least be clear on the scope of the intrusion, and whether it’s worth the cost.

Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.

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