CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, August 30, 2018

Ross on Stop and Frisk

Josephine Ross (Howard University School of Law) has posted Warning: Stop and Frisk May Be Hazardous to Your Health (25 William and Mary Bill of Rights Journal 689 (2016)) on SSRN. Here is the abstract:
In deciding Utah v. Strieff in 2016, the Supreme Court squandered an opportunity to examine Terry v. Ohio’s legacy in light of new data that reveals that police stops and frisks harm individuals and communities. “Warning” proceeds in two parts. The first part explores the Court’s analysis in Strieff juxtaposed against Justice Sonia Sotomayor’s literary and searing dissent. The second part of this Article introduces the most recent social science studies on the effects of stop and frisk policing. This research supports Justice Sotomayor’s pronouncement that “unlawful ‘stops’ have severe consequences much greater than the inconvenience suggested by the name.” The Strieff majority claims that the Court simply applied the attenuation doctrine to limit the applicability of the exclusionary rule on the facts before it. The decision clearly expanded the attenuation doctrine, but that is not its only problem. This Article argues that the decision rests on a cost-benefit analysis of Terry stops, in essence revisiting the same policy debate from fifty years before.
While the costs and benefits of Terry stops should be re-examined, here the Court did so without looking at the data produced by fifty years of stop and frisk policing. Research proves that stops and frisks have caused numerous harms, including the loss of trust between police and community. Less known are the health risks. Indeed, recent studies indicate that the aggressive policing methods sanctioned by the Supreme Court in Terry and Strieff cause pronounced negative health outcomes for individuals who have experienced repeated stops or invasive frisks. Aggressive policing can even “shape the health of people who have not yet entered into [the criminal justice system’s] gates.” Indeed, stop and frisk may be hazardous to our health. These health consequences create moral and financial arguments against stop and frisk policing. In addition, they change Terry v. Ohio’s Fourth Amendment cost-benefit analysis that led the Court to sanction the policing practice known as stop and frisk.

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