The Crime Drop and the Fourth Amendment: Toward an Empirical Jurisprudence of Search and Seizure

43 Pages Posted: 20 Sep 2005

See all articles by Lawrence Rosenthal

Lawrence Rosenthal

Chapman University, The Dale E. Fowler School of Law

Abstract

Thinking about constitutional criminal procedure has been impoverished by its failure to take account of sociological and criminological reality, especially as it relates to high crime inner-city policing. High rates of violent crime in the inner city have had an enormously destructive impact in the affected communities. There is a strong empirical case to be made that aggressive stop-and-frisk tactics effectively drive down rates of violent crime in these areas. There is, however, reason to doubt that these tactics comport with constitutional standards articulated by the courts. In this paper, I argue that the success of of aggressive police tactics over past decade helps to demonstrate their consistency with the Constitution. While critics of stop-and-frisk tactics brand them as a type of racial tax on minorities, it unfair to characterize tactics that have saved thousands of lives and mitigated the destructive impact of violent crime on inner-city minority communities as a racial tax. Nor should stop-and-frisk tactics be branded as unreasonable within the meaning of the Fourth Amendment. A jurisprudence that condemns as unreasonable the policing methods that show the greatest promise for ending the horrific slaughter in the inner city neither attractive nor just. Such a jurisprudence disproportionately confers its benefits on the middle class, the liberty of which is enhanced by a host of rules that constrain police authority, but which does not experience the cost of this jurisprudence in terms of constraining the ability of the police to provide effective security in high-crime communities. The Fourth Amendment should not protect the liberty of the middle class at the expense of the security of the poor.

Keywords: search and seizure, racial profiling, fourth amendment, urban police

Suggested Citation

Rosenthal, Lawrence, The Crime Drop and the Fourth Amendment: Toward an Empirical Jurisprudence of Search and Seizure. New York University Review of Law and Social Change, Vol. 29, p. 642, 2005. Available at SSRN: https://ssrn.com/abstract=804684

Lawrence Rosenthal (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

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