Thursday, October 4, 2012
Susan A. Bandes (DePaul University - College of Law) has posted The Challenges of 'Quality of Life' Policing for the Fourth Amendment (THE CONSTITUTION AND THE FUTURE OF CRIMINAL LAW, Cambridge University Press (Song Richardson & John Parry, Eds., 2013, Forthcoming)) on SSRN. Here is the abstract:
In New York City in the last several years, record numbers of people, overwhelmingly non-white, have been stopped and frisked by police. Only very rarely did those stops and frisks lead to discovery of a weapon or contraband. Only a small minority led to an arrest or summons. Even among those arrested, a miniscule number actually went to trial where the legality of the police conduct could be tested. In short, under the current Fourth Amendment framework, most of that police activity was never subjected to any judicial scrutiny, either before or after it occurred, to determine whether it was legally authorized or legally carried out.
The Fourth Amendment framework currently in use to control police discretion relies heavily on the courts, both to enforce before-the-fact limits like probable cause, reasonable suspicion and the warrant requirement, and to impose the primary after-the-fact remedy of exclusion. This article argues that the current framework is ill-suited to the task of regulating aggressive policing regimes. One basic problem with the current judicial framework for regulating police-citizen interactions is that on the whole, the Supreme Court’s Fourth Amendment jurisprudence is atomistic. It is focused on resolving individual disputes between law enforcement and individual suspects. This individualized focus is poorly suited to identifying and addressing shared harms, such as the effects of aggressive policing regimes on the quality of life of entire neighborhoods, or the injuries inflicted when the burden of police intrusion falls most heavily on certain racial or ethnic or economic groups, or the widespread intrusions authorized by the use of criminal law to regulate minor infractions, or the increasing number of so-called ‘special needs’ searches that require no individualized suspicion of wrongdoing. Second, the atomistic focus is poorly suited to addressing shared causes of harm. Fourth Amendment jurisprudence has yet to grapple with policing as an institution, or with the complex web of judicial, legislative, administrative and other institutions that influence policing.
The problem of police culture and police incentives is system-wide and must be addressed systemically. The courts, left to their own devices, cannot achieve this sort of reform. It requires some serious rethinking — both about how the courts can be brought back into the equation, and about what other institutions besides the courts should be doing to protect Fourth Amendment rights.