The Mismeasure of Terry Stops: Assessing the Psychological and Emotional Harms of Stop and Frisk to Individuals and Communities

37 Behavioral Sciences & the Law Issue 2 (2019)

34 Pages Posted: 16 Feb 2019

See all articles by Susan A. Bandes

Susan A. Bandes

DePaul University - College of Law

Marie Pryor

City University of New York - Center for Policing Equity

Erin Kerrison

University of California, Berkeley

Phillip Goff

UCLA Department of Psychology

Date Written: February 6, 2019

Abstract

In Terry v. Ohio, the U.S. Supreme Court relied on a balancing test to uphold the reasonableness of the practice known as “stop and frisk,” balancing the contribution of the practice to effective crime prevention and detection against the nature and quality of the intrusion to individual rights. In recent years, statistics have been powerfully deployed by legal scholars, jurists, and policymakers to challenge the assumption that stop and frisk leads to frequent discovery of contraband or other criminal behavior, and to address stark racial and ethnic disparities in the deployment of stop and frisk. But the other side of the Terry equation — the nature and quality of the intrusion — has received far less attention from the legal community. With few exceptions, Terry jurisprudence portrays the Terry frisk simply as a brief pat-down of the outer clothing and treats each Terry stop as an isolated encounter for purposes of measuring the harm involved. Yet there is a robust social science literature on the effects of stop and frisk on individuals, including data on its effects on individuals from marginalized or vulnerable groups, on individuals over time, and on communities as a whole. Moreover, stop and frisk in the current era has evolved from a tool in the arsenal of individual officers to a systematic, widely deployed strategy. This article argues that the failure to grapple with the application of modern knowledge to modern policing practices leads to a mismeasurement on both sides of the Terry equation. Not only does stop and frisk cause a wide range of emotional and psychological harms; these harms may also interfere with the ability of law enforcement to prevent and investigate crime. Even apart from any legal doctrinal implications for stop and frisk jurisprudence, recognizing the flawed assumptions described in this article should encourage all the relevant stake-holders to re-evaluate the consequences of the Terry regime.

Keywords: Criminal Procedure, Stop and Frisk, Terry Stop, Fourth Amendment, Policing, Excessive Force, Data Analytics, Procedural Justice, Racial Disparities, Search and Seizure

Suggested Citation

Bandes, Susan A. and Pryor, Marie and Kerrison, Erin and Goff, Phillip, The Mismeasure of Terry Stops: Assessing the Psychological and Emotional Harms of Stop and Frisk to Individuals and Communities (February 6, 2019). 37 Behavioral Sciences & the Law Issue 2 (2019). Available at SSRN: https://ssrn.com/abstract=3329712

Susan A. Bandes (Contact Author)

DePaul University - College of Law ( email )

25 E. Jackson Blvd.
Chicago, IL Cook County 60604-2287
United States
(312) 362-8701 (Phone)

HOME PAGE: http://www.susanbandes.com/

Marie Pryor

City University of New York - Center for Policing Equity ( email )

524 West 59th Street
Suite 6.63.30
New York, NY 10019
United States

Erin Kerrison

University of California, Berkeley ( email )

POB 13234
Oakland, CA 94661
United States

Phillip Goff

UCLA Department of Psychology ( email )

Los Angeles, CA 90095-1563
United States
310 206-3481 (Phone)

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