Thursday, December 7, 2017
L. Song Richardson (University of California, Irvine School of Law) has posted Implicit Racial Bias and Racial Anxiety: Implications for Stops and Frisks (Ohio State Journal of Criminal Law, Vol. 15, 2017, Forthcoming) on SSRN. Here is the abstract:
Fifty years ago, in Terry v. Ohio, the Supreme Court recognized that the practice of stopping individuals for questioning and conducting frisks for weapons was “a major source of friction between the police and minority groups.” Despite acknowledging that a frisk represents “a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment,” the Court held that officers could conduct them even in the absence of probable cause to believe that the individual was armed and dangerous. Furthermore, the Court also affirmed that police may approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. Experience in the years since Terry was decided demonstrates that stops and frisks continue to foster negative relationships between communities of color and the police, leading many in these communities to distrust the police and to question their legitimacy. In this Essay, I will use lessons from social psychology as a lens to explain why Terry and its progeny were destined to create unjustified racial disparities in policing regardless of officers’ conscious racial motivations. I conclude that these disparities in stops and frisks are inevitable and that the only way to prevent them is to eliminate the practice.