Prosecutors in the Passing Lane: Racial Disparities, Public Safety, and Prosecutorial Declinations of Pretextual Stops

Abstract

In response to a growing set of empirical studies demonstrating their widespread discriminatory effects, pre textual stops have been subjected to decades of criticism from scholars, the public, and jurists. However, pre textual stops have been defended by some as a necessary public safety measure, particularly in the fight against violent gun crimes. Following a series of highly publicized police shootings of unarmed Black drivers during pre textual stops, and in the absence of substantial judicial or legislative guidance, a growing number of prosecutors have developed policies deprecating the prosecution of pre textual stops absent a clear public safety benefit. Without empirical evaluations of pre textual stops, however, it has been difficult for practitioners or justice advocates to rebut complaints that these new policies remove an important deterrent to crime and the circulation of illegal firearms.

This Article reports the results of the first empirical evaluation of the impact of pre textual stops on crime and gun seizures, made possible by the Ramsey County Attorney’s decision to both decline prosecution of non-public-safety stops and to share data about those stops. We find that reduced stops have led to decreased racial disparities without affecting crime rates. Notably, the most common justification for pre textual stops—the recovery of illegal firearms—remained constant in the largest police department aligned with the new policy. We urge prosecutors to review the growing body of evidence we describe and contribute to this evidence base by gathering and sharing data about their policies with researchers. To that end, this Article provides a comprehensive review of relevant empirical evidence, reports the findings of the Ramsey County evaluation, and outlines how prosecutors and police departments in other jurisdictions can utilize the Ramsey County model to engage in evidence-based reform.

Keywords: criminal procedure, pretextual stops, policing, crime, firearms, criminal justice reform, racial disparities, evaluation

JEL Classification: K14, K42, J15, I38, K00, D63