Law Commons^™

Profiling And Consent: Stops, Searches, And Seizures After Soto, Jeffrey A. Fagan, Amanda Geller

Faculty Scholarship

Following Soto v. State (1999), New Jersey was the first state to enter into a Consent Decree with the U.S. Department of Justice to end racially selective enforcement on the state’s highways. The Consent Decree led to extensive reforms in the training and supervision of state police troopers, and the design of information technology to monitor the activities of the State Police. Compliance was assessed in part on the State’s progress toward the elimination of racial disparities in the patterns of highway stops and searches. We assess compliance by analyzing data on 257,000 vehicle stops on the New Jersey Turnpike …

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 and …

Probabilities, Perceptions, Consequences And "Discrimination": One Puzzle About Controversial "Stop And Frisk", Kent Greenawalt

Faculty Scholarship

A troubling aspect of the practice of "stop and frisk" in New York and other cities is the evidence that this police tactic is employed predominantly against young men in racial minorities. On August 12, 2013, the federal district court ruled in Floyd v. City of New York that New York's practices and policies regarding stop and frisk violated the Equal Protection Clause of the Fourteenth Amendment and its Due Process Clause, which makes the Fourth Amendment ban on "unreasonable searches and seizures" applicable against the states. Judge Shira A. Scheindlin found that a number of specific stops and subsequent …

Punitive Preventive Justice: A Critique, Bernard E. Harcourt

Faculty Scholarship

This chapter identifies the origins of contemporary preventive endeavour in the work of the RAND Corporation in America, which developed highly technical studies of crime prevention based upon systems analysis. It suggests that RAND promoted a decidedly punitive style of prevention based upon policing and punishment that is replicated in modern ‘punitive preventive measures’. It criticizes these measures, emphasizing the perils they pose and the weakness of their empirical foundations. Most worryingly, these measures typically claim an apolitical, neutral emphasis on efficiency that fails to engage with the political values underlying them. In so doing, it tends to displace much …

Henry Louis Gates And Racial Profiling: What's The Problem?, Bernard E. Harcourt

Faculty Scholarship

A string of recent studies has documented significant racial disparities in police stops, searches, and arrests across the country. The issue of racial profiling, however, did not receive national attention until the arrest of Professor Henry Louis Gates, Jr., at his home in Cambridge. This raises three questions: First, did Sergeant Crowley engage in racial profiling when he arrested Professor Gates? Second, why does it take the wrongful arrest of a respected member of an elite community to focus the attention of the country? Third, why is racial profiling so pervasive in American policing?

The answers to these questions are …

Against Prediction: Sentencing, Policing, And Punishing In An Actuarial Age, Bernard E. Harcourt

Faculty Scholarship

Actuarial methods – i.e., the use of statistical rather than clinical methods on large datasets of criminal offending rates to determine different levels of offending associated with one or more group traits, in order to (1) predict past, present or future criminal behavior and (2) administer a criminal justice outcome – now permeates the criminal law and its enforcement. With the single exception of racial profiling against African-Americans and Hispanics, most people view the turn to the actuarial as efficient, rational, and wealth-maximizing. The fact is, law enforcement agencies can detect more crime with the same resources if they investigate …

Rethinking Racial Profiling: A Critique Of The Economics, Civil Liberties, And Constitutional Literature, And Of Criminal Profiling More Generally, Bernard Harcourt

Faculty Scholarship

New reporting requirements and data collection efforts by over four hundred law enforcement agencies across the country – including entire states such as Maryland, Missouri, and Washington – are producing a continuous flow of new evidence on highway police searches. For the most part, the data consistently show disproportionate searches of African-American and Hispanic motorists in relation to their estimated representation on the road. Economists, civil liberties advocates, legal and constitutional scholars, political scientists, lawyers, and judges are poring over the new data and reaching, in many cases, quite opposite conclusions about racial profiling.

Guns, Crime, And Punishment In America, Bernard E. Harcourt

Faculty Scholarship

There are over 200 million firearms in private hands in the United States, more than a third of which are handguns. In 1993 alone, it is estimated that 1.3 million victims of serious violent crime faced an offender with a gun. In 1999, there were approximately 563,000 such victims. Estimates of defensive uses of firearms – situations where individuals used a gun to protect themselves, someone else, or their property – range from 65,000 to 2.5 million per year. Punishments for crimes committed with a firearm are severe: under the federal firearms enhancement statute, the mandatory minimum sentence for use …

Street Stops And Broken Windows: Terry, Race And Disorder In New York City, Jeffery Fagan, Garth Davies

Faculty Scholarship

Patterns of "stop and frisk" activity by police across New York City neighborhoods reflect competing theories of aggressive policing. "Broken Windows" theory suggest that neighborhoods with greater concentration of physical and social disorder should evidence higher stop and frisk activity, especially for "quality of life" crimes. However, although disorder theory informs quality of life policing strategies, patterns of stop and frisk activity suggest that neighborhood characteristics such as racial composition, poverty levels, and extent of social disorganization are stronger predictors of race- and crime-specific stops. Accordingly, neighborhood "street stop" activity reflects competing assumptions and meanings of policing strategy. Furthermore, looking …