Over the last few years, nothing has been more controversial in the American criminal justice system than the New York City Police Department’s “stop and frisk” policy. Stop and frisk refers to the authorization of police officers to stop an individual on the street and search his or her person. There are limits to the circumstances under which police officers can conduct these searches, but these conditions are amazingly vague. The Supreme Court ruled in the 1968 case Terry v. Ohio that stop and frisk policies do not violate the Fourth Amendment protection from unreasonable searches and seizures, as long as a search is based upon a “reasonable suspicion” that “the individual is about to commit a crime or is in the process of committing a crime.”
This broad criterion places enormous power into the hands of police officers. By the standard established under the Supreme Court’s ruling in Terry v. Ohio, it is legally nearly impossible for an individual to claim that a stop and frisk search violates his or her Fourth Amendment rights. Unsurprisingly, this low legal standard leads to racial profiling and discrimination, especially in New York City. Over the last decade, blacks and Latinos have accounted for 85% of all stop and frisk searches, even though they make up only about 52% of New York City’s population. Jeffrey Fagan, Professor of Law at Columbia University, found that the race of the suspect best predicts a police officer’s decision to stop and search. The evidence regarding racial profiling and discrimination in the application of stop and frisk searches in New York City is astonishing, and it goes on.
There is also research to show that in most cases of racial profiling by police officers, “implicit” or “subconscious” rather than “explicit” or “overt” racism is most likely to be to blame. Michelle Alexander, professor of law at Ohio State University, in her book, The New Jim Crow, explains that especially since the beginning of the War on Drugs in the 1970s, the media has perpetuated the stereotype in the minds of Americans that criminals are young men of a racial minority. Additionally, a 1995 survey asked respondents, “Would you close your eyes for a second, envision a drug user, and describe that person to me?” The astonishing results were published in the Journal of Alcohol and Drug Education: 95% of respondents pictured a black drug user, while only 5% pictured another racial group, whereas statistically, then and now, African Americans constitute only 15% of drug users. In another study conducted in 2000, 60% of respondents, when presented with a news story that contained no image of a suspect, falsely recalled seeing one. Of those respondents, 70% believed that the suspect was African American. In another study, participants were presented with a series of pictures of black and white suspects who were wither holding a gun or another object. The participants had to decide whether or not to shoot the target. The study found that participants were more likely to shoot an unarmed black suspect and not shoot an armed white suspect than the opposite. There are many more studies that have shown our unconscious racial biases.
If average Americans demonstrate such consistent racial bias and profiling against minority groups, it is reasonable to expect that police forces do so as well. The fundamental problem with stop and frisk practices is that these policies empower police officers to search individuals with little to no factual evidence. The result is that these hidden racial biases dominate the decision to stop and search an individual, and more often than not, these decisions are legally not contestable or reviewable. In other words, practices similar to stop and frisk “maximize- not minimize- the amount of racial discrimination,” as Michelle Alexander goes on to explain.
Based upon this logic, countless civil rights advocacy groups have challenged New York City’s stop and frisk policy in the court system. The most notable case was Floyd v. City of New York, which is a class action lawsuit. In August 2013, a federal judge, Justice Shira Scheindlin, ruled that stop and frisk searches violated minority rights under the Fourth Amendment. The judge did not, however, rule that stop and frisk searches must stop. Instead, she called for a “federal monitor to oversee broad reforms.” Just this week, New York City Mayor, Bill de Blasio, announced that the city will end its appeal of the decision and accept the reforms called for by the federal judge. This marked a victory for civil rights advocates and for many racial minority populations in New York City. Hopefully, these reforms can begin to put an end to the implicit and explicit rampant racial profiling and discrimination that is currently ongoing in the New York City police department.
But in all likelihood, New York City would have won its appeal, because the criminal justice system in the United States is stacked against any individual or group that claims racial discrimination. To see this, we must examine past Supreme Court rulings. Let’s begin with McClesky v. Kemp: in this case, Warren McClesky, a black man, was facing the death penalty for killing a police officer during a robbery in Georgia. His legal team challenged his sentence on the basis that Georgia’s death penalty exhibited systemic racial bias and discrimination. In support of this claim, McClesky’s advocates presented the famous “Baldus Study,” which examined over 2000 cases of murder in Georgia. The study’s authors found that prosecutors sought the death penalty in 70% of cases with black defendants, while prosecutors sought the death penalty in merely 19% of cases with white defendants. Even when the authors controlled for 35 non-racial barriers, defendants that killed white victims were 4.3 times more likely to receive the death penalty than those charged with killing black victims. To anyone, this study presented damning statistical evidence on racial discrimination.
The Supreme Court did not see it that way, and rejected McClesky’s claim under the Fourteenth Amendment. The Court ruled that statistical evidence was not sufficient to prove unequal treatment under the law. Instead, only explicit, intentional discrimination could prove unequal treatment under the Fourteenth Amendment. Michelle Alexander points out that under this standard, racial discrimination can only be demonstrated through “an admission that a prosecutor or judge acted because of racial bias.” The implications of this ruling mean that in most cases, evidence of “implicit” racism is insufficient to prove racial discrimination in court. Anthony G. Amsterdam, professor of law at New York University, called McClesky v. Kemp “the Dred Scott decision of our time.”
What does the Supreme Court’s ruling in McClesky v. Kemp mean for stop and frisk? In all likelihood, it means that New York City would have likely won its appeal had it not decided to settle. The decision of Justice Shira Scheindlin was based upon the study conducted by Jeffrey Fagan. However, under McClesky v. Kemp, this type of statistical evidence is not sufficient to demonstrate racial discrimination and unequal treatment. The decision by Mayor de Blasio to settle the stop and frisk case is a victory. But it is a victory that must be taken with a grain of salt. Given the Supreme Court’s decision in McClesky, the ruling of Justice Scheindlin likely would have been overturned had New York City decided to appeal.