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Probabilities, Perceptions, Consequences and 'Discrimination': One Puzzle About Controversial 'Stop and Frisk'

37 Pages Posted: 7 Feb 2014  

Kent Greenawalt

Columbia University - Law School

Date Written: February 2014

Abstract

The essay focuses on a particular issue about “stop and frisk” raised by the concern about concentration on young men in racial minorities. Although reference is made to the recent decision in Floyd v. City of New York, my focus is not on what has actually happened in New York and elsewhere, but whether, if there is substantial evidence that a higher percentage of members of a group commit certain kinds of crimes more than members of other groups, it is appropriate for police to stop partly on the basis of whether movements that are somewhat suspicious are made by members of that group, or whether that constitutes inappropriate discrimination.

Using an imagined private analogy and made up statistics about levels of criminal behavior and innocence among different groups, I contend that given the level of probability needed for a stop, i.e., “reasonable suspicion,” the likelihood that a group characteristic could figure importantly in the necessary probability is somewhat higher than when a more demanding standard such as “probable cause” is in play. In respect to a person’s gender and age, I suggest that use of that in applying a probability standard is really uncontroversial. But race is different. Both because of the risk of nonobjective appraisals, based partly on prejudices or implicit cultural assumptions, and because of the harmful negative message conveyed to members of minorities subject to stops, I conclude that police should not explicitly use race as a factor (unless they are looking for a person already identified by his race). I also believe this problem is serious enough so that such use should be viewed as a constitutional violation.

Keywords: criminal process, Fourth Amendment, Constitutional Law, Search and Seizure, stop and frisk, race, discrimination, criminal behavior

JEL Classification: K14

Suggested Citation

Greenawalt, Kent, Probabilities, Perceptions, Consequences and 'Discrimination': One Puzzle About Controversial 'Stop and Frisk' (February 2014). Ohio State Journal of Criminal Law, Vol. 12, No. 1, Fall 2014; Columbia Public Law Research Paper No. 14-369. Available at SSRN: https://ssrn.com/abstract=2391927

Kent Greenawalt (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

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