Author:Fagan, Jeffrey


The use of proactive tactics to disrupt criminal activities, such as Terry street stops and concentrated misdemeanor arrests, are essential to the "new policing." This model applies complex metrics, strong management, and aggressive enforcement and surveillance to focus policing on high crime risk persons and places. The tactics endemic to the "new policing" gave rise in the 1990s to popular, legal, political, and social science concerns about disparate treatment of minority groups in their everyday encounters with law enforcement. Empirical evidence showed that minorities were indeed stopped and arrested more frequently than similarly situated Whites, even when controlling for local social and crime conditions. In this Article, we examine racial disparities under a unique configuration of the street stop prong of the "new policing"--the inclusion of non-contact observations (or surveillances) in the field interrogation and observation activity of Boston Police Department officers. We show that Boston Police officers focus significant portions of their field investigation activity in two areas: suspected and actual gang members, and the city's high crime areas. Minority neighborhoods experience higher levels of field interrogation and surveillance activity, controlling for crime and other social factors. Relative to White suspects. Black suspects are more likely to be observed, interrogated, and frisked or searched controlling for gang membership and prior arrest history. Moreover, relative to their Black counterparts, White police officers conduct high numbers of field investigations and are more likely to frisk or search subjects of all races. We distinguish between preference-based and statistical discrimination by comparing stops by officer-suspect racial pairs. If officer activity is independent of officer race, we would infer that disproportionate stops of minorities reflect statistical discrimination. We show instead that officers seem more likely to investigate and frisk or search a minority suspect if officer and suspect race differ. We locate these results in the broader tensions of racial profiling that pose recurring social and constitutional concerns in the "new policing."

TABLE OF CONTENTS Introduction 541 A. The New Policing 541 B. Policing Crime, Policing Race 544 C. Stops and Stares: The Surveillance Prong of the "New Policing" 547 D. This Article 550 I. Terry Stops, Race, and the New Policing 553 A. Expansion and Deregulation of Investigative Stops 553 B. Normative Tensions 558 C. Is It Bias? Approaches to Studying Police Stops and Searches 560 II. Data and Methods 567 A. The Research Site 567 B. Empirical Strategy 569 1. Disparate Treatment by Race 572 2. Measures and Model Specification 573 3. Benchmarks 580 III. Results 584 A. Suspects and Officers 584 B. Race, Crime, and FIO's 591 1. FIOs by Neighborhood Crime and Social Conditions 591 2. FIO Activity by Suspect Characteristics 595 3. Frisks and Searches by Suspect Race 598 4. FIO Activity by Unit and Officer Race 600 5. Frisks and Searches by Officer Race and Assignment 604 6. Officer-Suspect Racial Asymmetries 606 Conclusion 611 INTRODUCTION

  1. The New Policing

    In an essay published in 2000 in the Fordham Urban Law Journal Professor Philip Heymann credited the "new policing" for the sharp crime declines of the preceding decade. (1) Three essential features characterized the "new policing." First, police innovators developed real-time policing metrics both for internal personnel management and to inform how and where police are deployed across their respective cities. (2) They noted the importance of the strategic concentration of police resources in the city's highest crime areas based on new methods of crime mapping and analysis. (3) Second, these metrics were used to hold local police commanders accountable for crime trends in their precincts. (4) Failure to lower crime rates resulted in a form of public shaming in meetings of high-level police executives, and possibly demotion and re-assignment. (5) Accountability and heightened management control were essential tools to incentivize commanders to closely watch and react to local crime conditions.

    The third new policing tool was the use of proactive tactics to disrupt criminal activities. Aggressive street stops were one of the tactics highlighted by both Livingston and Heymann. (6) They and others (7) discussed the new police focus on order maintenance and the aggressive enforcement of quality-of-life crimes, (8) on the enforcement of minor crimes as a way to suppress more serious crimes, on stop and frisk tactics to disrupt crimes and especially to seize weapons, and on new developments in community policing that brought police into closer collaborative relationships with citizens. (9)

    Decades earlier, the U.S. Supreme Court had expanded the legal boundaries under which police could conduct field interrogations, or street stops, in a 1968 decision, Terry v. Ohio. (10) Terry permitted temporary stops and detentions based on reasonable suspicion that crime was "afoot," supplanting the more demanding probable cause standard (11) and memorializing police discretion as the gateway to street stops. (12) Subsequent decisions further expanded the tolerances around the concept of "reasonable suspicion." (13) The "new policing" embraced the use of street stops as a critical tool to disrupt criminal activity, despite the absence of any evidence of the comparative advantage of street stops over other policing tactics. (14)

    Proactivity was the animating theory of the "new policing," whether in the context of data-driven management metrics such as CompStat, (15) a computerized crime accounting system, the aggressive use of arrests for minor crimes, or the conduct of street stops at the first signs of suspicious behavior. (16) In the current era, the term was first used without fanfare by Professors Jerome Skolnick and David Bayley in their description of policing innovations in the 1980s. (17) New York City police first used proactive policies to disrupt open-air drug markets starting in the early 1990s. (18)

    Over time, proactivity became a broad umbrella for a wide range of police tactics. One study defines "proactive policing" as the vigorous enforcement of law against minor (misdemeanor) offenses. (19) Other studies mention the use of stop and frisk, or investigative stops, as central to a proactive policing policy. (20) Still others portray a curious admixture of drug enforcement and community policing as "proactive." (21) Accordingly, there is no consensus on what constitutes "proactive policing" other than its emphasis on anticipation of criminal activity and directing action to those places or persons, and its commitment to systematic criminal enforcement of minor crimes. (22) Tactics such as investigative stops (stop and frisk, or Terry stops), order maintenance and aggressive responses to quality of life enforcement, the same tactics cited by Livingston, are basic to many conceptions of proactive policing, and are the focus of this Article. (23)

  2. Policing Crime, Policing Race

    The metrics of the "new policing" pointed to the neighborhoods with the highest crime rates as the targets of police activity. These usually were the places with concentrated poverty and often were minority neighborhoods. (24) At first glance, this seems a rational and proportional response, consistent with most benchmarking strategies to assess fairness or bias. (25) Yet, regardless of the distribution and allocation function to assign police to neighborhoods--a linear allocation of police to neighborhoods based on differences in their crime rates, for example--disproportionate allocations raise both fairness and efficiency questions. (26) In such instances, minority citizens are exposed to "more" policing than their crime conditions would dictate, and persons in other neighborhoods placed at risk due to under- or de-policing of their neighborhoods. (27)

    Assuming limits on the effectiveness of police in an area--after all, there is only so much crime to go around--then over-policing risks adverse consequences from unnecessary and unproductive police contacts. (28) And since these stops are neither pleasant nor without consequences, (29) allocations framed this way raise constitutional questions of disparate treatment. (30) The persistence of these errors in the context of the extensive use of noxious tactics suggests that these practices and disparities took on the characteristics of a government program rather than the exercise of individual officers' judgment and discretion. (31)

    Court rulings often skirt the question of whether bias is the dynamic that produces disparities, preferring instead to examine discriminatory intent. The Fourteenth Amendment's Equal Protection Clause forbids state actors from denying the equal protection of the law. (32) Intentional discrimination by race is the standard, not simply whether a policy or practice has a disproportionate racial impact. (33) Whether that intent is a matter of bias or preferences is not central to a legal determination. Intent, instead, is the predicate to determine discrimination. Courts have developed standards to establish discriminatory intent that would satisfy an equal protection claim, such as intentionally classifying persons by race for differential treatment. (34) The standard most applicable for contemporary policing is an "as applied" determination: that a seemingly neutral policy is applied in an intentionally discriminatory manner. (35) Courts have argued that an equal protection claim is satisfied by evidence of a discriminatory "purpose" as a "motivating factor" for the practice under scrutiny. (36) The question of bias is secondary to the question of the complex task of discerning discriminatory intent. In the case of a widespread program (37) of Terry or street stops, an intentionally disproportionate application of...

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