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Full-Text Articles in Law and Race

Death By Stereotype: Race, Ethnicity, And California’S Failure To Implement Furman’S Narrowing Requirement, Catherine M. Grosso, Jeffrey A. Fagan, Michael Laurence, David C. Baldus, George W. Woodworth, Richard Newell Jan 2019

Death By Stereotype: Race, Ethnicity, And California’S Failure To Implement Furman’S Narrowing Requirement, Catherine M. Grosso, Jeffrey A. Fagan, Michael Laurence, David C. Baldus, George W. Woodworth, Richard Newell

Faculty Scholarship

The influence of race on the administration of capital punishment in the United States had a major role in the United States Supreme Court’s 1972 decision in Furman v. Georgia to invalidate death penalty statutes across the United States. To avoid discriminatory and capricious application of capital punishment, the Supreme Court held that the Eighth Amendment requires legislatures to narrow the scope of capital offenses and ensure that only the most severe crimes are subjected to the ultimate punishment. This Article demonstrates the racial and ethnic dimension of California’s failure to implement this narrowing requirement. Our analysis uses ...


The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey A. Fagan Jan 2019

The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey A. Fagan

Faculty Scholarship

In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we still have no idea how police officers understand and apply it in practice. This Article conducts the first empirical analysis of Wardlow by examining data on over two million investigative stops conducted by the New York Police Department from 2007 to 2012.

Our results ...


Fiscal Pressures And Discriminatory Policing: Evidence From Traffic Stops In Missouri, Allison P. Harris, Elliott Ash, Jeffrey A. Fagan Jan 2018

Fiscal Pressures And Discriminatory Policing: Evidence From Traffic Stops In Missouri, Allison P. Harris, Elliott Ash, Jeffrey A. Fagan

Faculty Scholarship

This paper provides evidence of racial variation in local governments' traffic enforcement responses to budget stress using data from policing agencies in the state of Missouri for the years 2001 through 2012. Like previous studies, we find that local budget stress is associated with higher citation rates. In addition, we find that there is an increase in traffic-stop arrests. However, we find that these effects are concentrated among white (rather than black or Hispanic) drivers. The results are robust to the inclusion of a range of covariates for traffic stops and to the inclusion of local population features interacted with ...


Police, Race, And The Production Of Capital Homicides, Jeffrey A. Fagan, Amanda Geller Jan 2018

Police, Race, And The Production Of Capital Homicides, Jeffrey A. Fagan, Amanda Geller

Faculty Scholarship

Racial disparities in capital punishment have been well documented for decades. Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death. Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims. These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines. This article backs up the research on racial disparities to ...


Aggressive Policing And The Educational Performance Of Minority Youth, Joscha Legewie, Jeffrey A. Fagan Jan 2018

Aggressive Policing And The Educational Performance Of Minority Youth, Joscha Legewie, Jeffrey A. Fagan

Faculty Scholarship

An increasing number of minority youth are confronted with the criminal justice system. But how does the expansion of police presence in poor urban communities affect educational outcomes? Previous research points at multiple mechanisms with opposing effects. This article presents the first causal evidence of the impact of aggressive policing on the educational performance of minority youth. Under Operation Impact, the New York Police Department (NYPD) saturated high crime areas with additional police officers with the mission to engage in aggressive, order maintenance policing. To estimate the effect, we use administrative data from about 250,000 adolescents aged 9 to ...


Race And The New Policing, Jeffrey Fagan Jan 2017

Race And The New Policing, Jeffrey Fagan

Faculty Scholarship

Several observers credit nearly 25 years of declining crime rates to the “New Policing” and its emphasis on advanced statistical metrics, new forms of organizational accountability, and aggressive tactical enforcement of minor crimes. This model has been adopted in large and small cities, and has been institutionalized in everyday police-citizen interactions, especially among residents of poorer, often minority, and higher crime areas. Citizens exposed to these regimes have frequent contact with police through investigative stops, arrests for minor misdemeanors, and non-custody citations or summons for code violations or vehicle infractions. Two case studies show surprising and troubling similarities in the ...


New Policing, New Segregation: From Ferguson To New York, Jeffrey Fagan, Elliott Ash Jan 2017

New Policing, New Segregation: From Ferguson To New York, Jeffrey Fagan, Elliott Ash

Faculty Scholarship

Modern policing emphasizes advanced statistical metrics, new forms of organizational accountability, and aggressive tactical enforcement of minor crimes as the core of its institutional design. Recent policing research has shown how this policing regime has been woven into the social, political and legal systems in urban areas, but there has been little attention to these policing regimes in smaller areas. In these places, where relationships between citizens, courts and police are more intimate and granular, and local boundaries are closely spaced with considerable flow of persons through spaces, the “new policing” has reached deeply into the everyday lives of predominantly ...


Stops And Stares: Street Stops, Surveillance, And Race In The New Policing, Jeffrey Fagan, Anthony A. Braga, Rod K. Brunson, April Pattavina Jan 2016

Stops And Stares: Street Stops, Surveillance, And Race In The New Policing, Jeffrey Fagan, Anthony A. Braga, Rod K. Brunson, April Pattavina

Faculty Scholarship

The use of proactive tactics to disrupt criminal activities, such as Terry street stops and concentrated misdemeanor arrests, are essential to the "new policing." This model applies complex metrics, strong management, and aggressive enforcement and surveillance to focus policing on high crime risk persons and places. The tactics endemic to the "newpolicing"gave rise in the 1990s to popular, legal, political, and social science concerns about disparate treatment of minority groups in their everyday encounters with law enforcement. Empirical evidence showed that minorities were indeed stopped and arrested more frequently than similarly situated Whites, even when controlling for local social ...


Stops And Stares: Street Stops, Surveillance, And Race In The New Policing, Jeffrey Fagan, Anthony A. Braga, Rod Brunson, April Pattavina Jan 2016

Stops And Stares: Street Stops, Surveillance, And Race In The New Policing, Jeffrey Fagan, Anthony A. Braga, Rod Brunson, April Pattavina

Faculty Scholarship

The use of proactive tactics to disrupt criminal activities, such as Terry street stops and concentrated misdemeanor arrests, are essential to the “new policing.” This model applies complex metrics, strong management, and aggressive enforcement and surveillance to focus policing on high crime risk persons and places. The tactics endemic to the “new policing” gave rise in the 1990s to popular, legal, political and social science concerns about disparate treatment of minority groups in their everyday encounters with law enforcement. Empirical evidence showed that minorities were indeed stopped and arrested more frequently than similarly situated whites, even when controlling for local ...


Group Threat, Police Officer Diversity And The Deadly Use Of Police Force, Joscha Legewie, Jeffrey Fagan Jan 2016

Group Threat, Police Officer Diversity And The Deadly Use Of Police Force, Joscha Legewie, Jeffrey Fagan

Faculty Scholarship

Officer-involved killings and racial bias in policing are controversial political issues. Prior research indicates that (perceived) group threat related to political mobilization, economic competition, and the threat of black crime are is an important explanations for variations in police killings across cities in the United States. We argue that a diverse police force that proportionally represents the population it serves mitigates group threat and thereby reduces the number of officer-involved killings. Count models support our argument. They show that group threat is largely driven by the threat of black crime. Black-on-white homicides increase officer-involved killings of African Americans but black-on-black ...


Inclusion, Exclusion, And The "New" Economic Inequality, Olatunde C.A. Johnson Jan 2016

Inclusion, Exclusion, And The "New" Economic Inequality, Olatunde C.A. Johnson

Faculty Scholarship

Is racial inequality an unwelcome intruder to the new discourse on economic inequality? The present discourse on economic inequality emphasizes decades-long trends that have increased economic inequality, whether as a result of reoccurring features in the structure of capitalist economies or more recent changes in institutional, structural, and economic conditions. Researchers direct us to the rising fortunes of the top earners and asset holders relative to the rest, the declining fortunes of the middle class harmed by stagnating wages, and the declining share of industries (like manufacturing) in the economy. This new economic inequality discourse has preoccupied economists, garnered its ...


Stops And Stares: Street Stops, Surveillance And Race In The New Policing, Jeffrey Fagan, Anthony A. Braga, Rod Brunson, April Pattavina Jan 2015

Stops And Stares: Street Stops, Surveillance And Race In The New Policing, Jeffrey Fagan, Anthony A. Braga, Rod Brunson, April Pattavina

Faculty Scholarship

The use of proactive tactics to disrupt criminal activities, such as Terry street stops and concentrated misdemeanor arrests, are essential to the “new policing.” This model applies complex metrics, strong management, and aggressive enforcement and surveillance to focus policing on high crime risk persons and places. The tactics endemic to the “new policing” gave rise in the 1990s to popular, legal, political and social science concerns about disparate treatment of minority groups in their everyday encounters with law enforcement. Empirical evidence showed that minorities were indeed stopped and arrested more frequently than similarly situated whites, even when controlling for local ...


Aggressive Policing And The Mental Health Of Young Urban Men, Amanda Geller, Jeffrey Fagan, Tom Tyler, Bruce Link Jan 2014

Aggressive Policing And The Mental Health Of Young Urban Men, Amanda Geller, Jeffrey Fagan, Tom Tyler, Bruce Link

Faculty Scholarship

We provide the first population-based analysis of the mental health implications of contemporary policing. Many cities have adopted “proactive” policing models, which engage citizens – often aggressively – at low levels of suspicion. We survey young men on their experiences of police encounters and subsequent mental health. We conducted a population-based phone survey of 1,261 young men in New York City. Respondents reported how many times they were approached by New York Police Department (NYPD) officers, what these encounters entailed, any trauma they attributed to the stops, and their overall anxiety. Data were analyzed using cross-sectional regressions. Participants reporting more police ...


Street Stops And Police Legitimacy: Teachable Moments In Young Urban Men's Legal Socialization, Tom Tyler, Jeffrey Fagan, Amanda Geller Jan 2014

Street Stops And Police Legitimacy: Teachable Moments In Young Urban Men's Legal Socialization, Tom Tyler, Jeffrey Fagan, Amanda Geller

Faculty Scholarship

An examination of the influence of street stops on the legal socialization of young men showed an association between the number of police stops they see or experience and a diminished sense of police legitimacy. This association was not primarily a consequence of the number of stops or of the degree of police intrusion during those stops. Rather, the impact of involuntary contact with the police was mediated by evaluations of the fairness of police actions and judgments about whether the police were acting lawfully. Whether the police were viewed as exercising their authority fairly and lawfully shaped the impact ...


Leveraging Antidiscrimination, Olatunde C.A. Johnson Jan 2014

Leveraging Antidiscrimination, Olatunde C.A. Johnson

Faculty Scholarship

As the Civil Rights Act of 1964 turns fifty, antidiscrimination law has become unfashionable. Civil rights strategies are posited as not up to the serious task of addressing contemporary problems of inequality such as improving mobility for low-wage workers or providing access into entry-level employment. This Article argues that there is a danger in casting aside the Civil Rights Act as one charts new courses to address inequality. This Article revisits the implementation strategies that emerged in the first decade of the Act to reveal that the Act was not limited to addressing formal discrimination or bias, but rather drew ...


Race And Selective Enforcement In Public Housing, Jeffrey Fagan, Garth Davies, Adam Carlis Jan 2012

Race And Selective Enforcement In Public Housing, Jeffrey Fagan, Garth Davies, Adam Carlis

Faculty Scholarship

Drugs, crime, and public housing are closely linked in policy and politics, and their nexus has animated several intensive drug enforcement programs targeted at public housing residents. In New York City, police systematically conduct “vertical patrols” in public housing buildings, making tens of thousands of Terry stops each year. During these patrols, both uniformed and undercover officers systematically move through the buildings, temporarily detaining and questioning residents and visitors, often at a low threshold of suspicion, and usually alleging trespass to justify the stop. We use a case‐control design to identify the effects of living in one of New ...


Crime And Enforcement In Immigrant Neighborhoods: Evidence From New York City, Garth Davies, Jeffrey Fagan Jan 2012

Crime And Enforcement In Immigrant Neighborhoods: Evidence From New York City, Garth Davies, Jeffrey Fagan

Faculty Scholarship

Immigration and crime have received much popular and political attention in the past decade, and have been a focus of episodic social attention for much of the history of the U.S. Recent policy and legal discourse suggests that the stigmatic link between immigrants and crime has endured, even in the face of evidence to the contrary. This study addresses the relationship between immigration and crime in urban settings, focusing on areal units where immigrants tend to cluster spatially as well as socially. We ask whether immigration creates risks or benefits for neighborhoods in terms of lower crime rates. The ...


Race And Selective Enforcement In Public Housing, Jeffrey Fagan, Garth Davies, Adam Carlis Jan 2012

Race And Selective Enforcement In Public Housing, Jeffrey Fagan, Garth Davies, Adam Carlis

Faculty Scholarship

Drugs, crime and public housing are closely linked in policy and politics, and their nexus has animated several intensive drug enforcement programs targeted at public housing residents. In New York City, police systematically conduct “vertical patrols” in public housing buildings, making tens of thousands of Terry stops each year. During these patrols, both uniformed and undercover officers systematically move through the buildings, temporarily detaining and questioning residents and visitors, often at a low threshold of suspicion, and usually alleging trespass to justify the stop. We use a case-control design to identify the effects of living in one of New York ...


Adopting, Using, And Discarding Paper And Electronic Payment Instruments: Variation By Age And Race, Ronald J. Mann Jan 2011

Adopting, Using, And Discarding Paper And Electronic Payment Instruments: Variation By Age And Race, Ronald J. Mann

Faculty Scholarship

This paper uses data from the 2008 Survey of Consumer Payment Choice to discuss the adoption, use, and discarding of various common payment instruments. Using a nationally representative sample of individual-level data, it presents evidence in unparalleled detail about how consumers use different payment instruments. Most interestingly, it displays robust evidence of significant age and race-related differences in payments choices. Among other things, it suggests that the range of payment instruments adopted and regularly used by blacks is narrower than that chosen by whites, presumably because of relatively limited access to financial institutions. With regard to age, it documents pervasive ...


Pot As Pretext: Marijuana, Race, And The New Disorder In New York City Street Policing, Amanda Geller, Jeffrey Fagan Jan 2011

Pot As Pretext: Marijuana, Race, And The New Disorder In New York City Street Policing, Amanda Geller, Jeffrey Fagan

Faculty Scholarship

Although possession of small quantities of marijuana has been decriminalized in New York State since the late 1970s, arrests for marijuana possession in New York City have increased more than tenfold since the mid-1990s, and remain high more than 10 years later. This rise has been a notable component of the city’s “Order Maintenance Policing” strategy, designed to aggressively target low-level offenses, usually through street interdictions known as “stop, question, and frisk” activity. We analyze data on 2.2 million stops and arrests carried out from 2004 to 2008, and identify significant racial disparities in the implementation of marijuana ...


Stimulus And Civil Rights, Olatunde C.A. Johnson Jan 2011

Stimulus And Civil Rights, Olatunde C.A. Johnson

Faculty Scholarship

Federal spending has the capacity to perpetuate racial inequality, not simply through explicit exclusion, but through choices made in the legislative and institutional design of spending programs. Drawing on the lessons of New Deal and postwar social programs, this Essay offers an account of the specificfeatures offederal spending that give it salience in structuring racial arrangements. Federal spending programs, this Essay argues, are relevant in structuring racial inequality due to their massive scale, their creation of new programmatic and spending infrastructures, and the choices made in these programs as to whether to impose explicit inclusionary norms on states and localities ...


Minority Practice, Majority's Burden: The Death Penalty Today, James S. Liebman, Peter Clarke Jan 2011

Minority Practice, Majority's Burden: The Death Penalty Today, James S. Liebman, Peter Clarke

Faculty Scholarship

Although supported in principle by two-thirds of the public and even more of the States, capital punishment in the United States is a minority practice when the actual death-sentencing practices of the nation's 3000-plus counties and their populations are considered This feature of American capital punishment has been present for decades, has become more pronounced recently, and is especially clear when death sentences, which are merely infrequent, are distinguished from executions, which are exceedingly rare.

The first question this Article asks is what forces account for the death-proneness of a minority of American communities? The answer to that question ...


Reducing Mass Incarceration: Lessons From The Deinstitutionalization Of Mental Hospitals In The 1960s, Bernard E. Harcourt Jan 2011

Reducing Mass Incarceration: Lessons From The Deinstitutionalization Of Mental Hospitals In The 1960s, Bernard E. Harcourt

Faculty Scholarship

In 1963, President Kennedy outlined a federal program designed to reduce by half the number of persons in custody in mental hospitals. What followed was the biggest deinstitutionalization this country has ever seen. The historical record is complex and the contributing factors are several, but one simple fact remains: This country has deinstitutionalized before. As we think about reducing mass incarceration today, it may be useful to recall some lessons from the past. After tracing the historical background, this essay explores three potential avenues to reduce mass incarceration: First, improving mental health treatment to inmates and exploring the increased use ...


Incarceration And The Economic Fortunes Of Urban Neighborhoods, Jeffrey Fagan, Valerie West Jan 2011

Incarceration And The Economic Fortunes Of Urban Neighborhoods, Jeffrey Fagan, Valerie West

Faculty Scholarship

New research has identified the consequences of high rates of incarceration on neighborhood crime rates, but few studies have looked beyond crime to examine the collateral effects of incarceration on the social and economic well being of the neighborhoods themselves and their residents. We assess two specific indicia of neighborhood economic well-being, household income and human capital, dimensions that are robust predictors of elevated crime, enforcement and incarceration rates. We decompose incarceration effects by neighborhood racial composition and socio-economic conditions to account for structural disadvantages in labor force and access to wealth that flow from persistent patterns of residential segregation ...


Originalism's Race Problem, Jamal Greene Jan 2011

Originalism's Race Problem, Jamal Greene

Faculty Scholarship

For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recommended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. Ifocus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common law adjudicative norm, but whose political and legal cultures less readily assimilate judicial restraint to constitutional historicism. I offer ...


Reading Charles Black Writing: "The Lawfulness Of The Segregation Decisions" Revisited, Kendall Thomas Jan 2011

Reading Charles Black Writing: "The Lawfulness Of The Segregation Decisions" Revisited, Kendall Thomas

Faculty Scholarship

The year 2010 marked the fiftieth anniversary of the publication of Charles L. Black, Jr.'s "The Lawfulness of the Segregation Decisions." Professor Black's magisterial essay on the Supreme Court's 1954-1955 decisions in Brown v. Board of Education and its companion cases is, by any account, a foundational text in the scholarly literature on race and law in the United States. Black's short but searing defense of Brown introduced ideas and arguments about race, about law, and about the law of race that transformed the field. I can think of no better way to celebrate this inaugural ...


Discrimination By Comparison, Suzanne B. Goldberg Jan 2011

Discrimination By Comparison, Suzanne B. Goldberg

Faculty Scholarship

Contemporary discrimination law is in crisis, both methodologically and conceptually. The crisis arises in large part from the judiciary's dependence on comparators – those who are like a discrimination claimant but for the protected characteristic – as a favored heuristic for observing discrimination. The profound mismatch of the comparator methodology with current understandings of identity discrimination and the realities of the modern workplace has nearly depleted discrimination jurisprudence and theory. Even in run-of-the-mill cases, comparators often cannot be found, particularly in today's mobile, knowledge-based economy. This difficulty is amplified for complex claims, which rest on thicker understandings of discrimination developed ...


Randomization And The Fourth Amendment, Bernard E. Harcourt, Tracey L. Meares Jan 2010

Randomization And The Fourth Amendment, Bernard E. Harcourt, Tracey L. Meares

Faculty Scholarship

Randomized checkpoint searches are generally taken to be the exact antitheses of reasonableness under the Fourth Amendment. In the eyes of most jurists, checkpoint searches violate the central requirement of valid Fourth Amendment searches – namely, individualized suspicion. We disagree. In this article, we contend that randomized searches should form the very lodestar of a reasonable search. The fact is that the notion of “individualized” suspicion is misleading; most suspicion in the modern policing context is group-based and not individual specific. Randomized searches by definition are accompanied by a certain level of suspicion. The constitutional issue, we maintain, should not turn ...


Risk As A Proxy For Race, Bernard E. Harcourt Jan 2010

Risk As A Proxy For Race, Bernard E. Harcourt

Faculty Scholarship

Today, an increasing chorus argues that risk-assessment instruments are a politically feasible way to resolve our problem of mass incarceration and reduce prison populations. In this essay, I argue against this progressive argument for prediction: using risk-assessment tools to decrease prison populations would unquestionably aggravate the already intolerable racial imbalance in our prison populations and will not address the real source of mass incarceration, namely the admissions process. Risk has collapsed into prior criminal history, and prior criminal history has become a proxy for race. This means that using risk-assessment tools, even for progressive ends, is going to significantly aggravate ...


Activating Systemic Change Toward Full Participation: The Pivotal Role Of Boundary Spanning Institutional Intermediaries, Susan Sturm Jan 2010

Activating Systemic Change Toward Full Participation: The Pivotal Role Of Boundary Spanning Institutional Intermediaries, Susan Sturm

Faculty Scholarship

Racial and social justice advocacy is in an era of transition. Race continues to permeate people's lives and to structure the social and economic hierarchy, but often in complicated ways that elude bright line categories. Disparities frequently result from cognitive bias, unequal access to opportunity networks, and other structural dynamics, rather than from intentional exclusion. For example, disparities in access to higher education persist as a result of differences in access, information, resources, networks, and evaluation, which give rise to achievement differentials at each critical turning point affecting successful advancement. These differences accumulate to produce substantial disparities in college ...