Wednesday, September 5, 2018
Eric J. Miller (Loyola Law School Los Angeles) has posted Reasonably Radical: Terry’s Attack on Race-Based Policing (Idaho Law Review, Forthcoming) on SSRN. Here is the abstract:
In this article celebrating the 50th anniversary of Terry v. Ohio, I argue that the criminal justice system is not an integrated system, but a fragmented one. One way it is fragmented, the Terry Court recognizes, is between crime control and public-order policing. Crime control has high-judicial visibility, allowing illegally-gained evidence to be excluded at trial. Public-order policing has low-judicial visibility. What happens on the street stays on the street, and rarely makes it to the courtroom. Read this way, Terry tells lawyers something uncomfortable. In a fragmented criminal justice system, there are some forms of police misconduct that the Court, and the exclusionary rule, just cannot remedy. Doing social activism through law is not enough. The Fourth Amendment lacks the resources to protect us from race-based policing.
For the most part, the race-based criticism of Terry focuses, understandably enough, on the Court’s failure to engage with a race-conscious approach to the problems of race-based policing. Many of these critiques are urgent and important. However, in an attempt to place the blame for subsequent doctrinal novelties at the feet of the Terry Court, they generally embargo and explain away the Court’s explicit discussion of race-based policing and the Court’s references—express and implied—to the recently published Challenge of Crime in a Free Society.
To reclaim a sense of Terry’s powerful engagement with race and reasonableness, I want to separate out Terry from its progeny and suggest that the Court was engaged in a conversation with the 1967 President’s Commission Report, The Challenge of Crime in a Free Society. I begin by discussing the President’s Commission’s radical critique of race-based policing and its even more radical recommendations for reform: recommendations that have largely been ignored and unfulfilled. I then explain how Terry’s approach to stop and frisk responds to race-based harassment by, not only adopting, but rendering more stringent, the President Commission’s recommendations on the use of stops and frisks. I suggest that Terry’s precise, rule-like approach to stop-and-frisk policing precludes its use as a device for low-level racial harassment and limits its use to investigating crimes of violence. This precision enabled the Court to tackle head-on a problem identified by both the Terry Court and the Report: the central place occupied by physical displays of police authority—often called “command presence”—to dominate racial minorities. I conclude by suggesting that critics, frustrated at the way the reasonable suspicion standard has been co-opted by a pro-police agenda, miss the Court’s central regulatory claims. Three claims are particularly important: (1) that there is not one criminal justice system, but many overlapping systems; (2) that the police conduct is highly visible in minority communities; but (3) that same conduct is low visibility in the courts that are supposed to regulate their behavior. Constitutional litigation is thus a limited resource against the sort of low-visibility policing that remains separate from the process of criminal prosecution and so incapable of judicial oversight.