Expert’s analysis highlights ‘stop and frisk’ forum

The Feb. 20 presentation featured a keynote address by John Jay College of Criminal Justice Emeritus Professor Eli B. Silverman, an expert on the issue and the co-author of The Crime Numbers Game: Management by Manipulation. It was sponsored by the Black Law Students Association, the Latin American Law Students Association, the Asian Pacific American Law Students Association and the Federalist Society. Silverman’s address was followed by responses from H. McCarthy Gipson, former police commissioner of the City of Buffalo; Buffalo City Court Judge E. Jeannette Ogden ’83, and Associate Professors Anthony O’Rourke and Anjana Malhotra.

Silverman gave a brief overview of the law governing stops and frisks, in which police officers briefly detain and search individuals as a crime prevention measure. The seminal case, he said, was 1968’s Terry v. Ohio 1968, in which the U.S. Supreme Court held that an officer conducting a stop and frisk doesn’t violate the Fourth Amendment’s prohibition against unreasonable searches and seizures if the officer has a reasonable suspicion that the person has committed or is about to commit a crime.

Then, in an August 2013 U.S. landmark case in which Silverman’s testimony and research was cited, U.S. Dstrict Court Judge Shira Scheindlin ruled that the New York Police Department had instituted a policy of indirect racial profiling by directing officers to focus their activity on “the right people” – the demographic groups that appear most often in a precinct’s crime complaints. The judge ruled that such a policy had led police to impermissibly target blacks and Hispanics for stop and frisk at higher rates than whites.

“The judge did not say that the tactic of stop and frisk was illegal,” Silverman notes. “What she ruled was that the way it was practiced was discriminatory.”

Silverman addressed the argument of stop and frisk proponents that the practice is effective in fighting crime, and that it serves as a deterrent. “The reality is that there is no statistical correlation between the number of stop and frisks and the level of crime,” he said.

As for a deterrent effect, “The problem is that you can’t really measure a deterrent. You could be totally effective – just lock everyone up or chop someone’s hands off. If effectiveness is your only criterion, you couldn’t have a democratic society. You have to have effectiveness with justice.”

Silverman noted that most stops are for two reasons: the target’s presence in a so-called high-crime neighborhood, and ill-defined “furtive behavior.” The upshot is that consistently about 87 percent of stop and frisks in New York City target African-Americans and Latinos. “It’s not that the police are all prejudiced, it’s because of the way law enforcement is often practiced,” he said.

As a result, he said, young people in minority communities learn to distrust the police, are less likely to report a crime, and entire communities come to feel alienated from the authorities – paradoxically hampering effective law enforcement.

In his surveys of retired New York City police officers, Silverman said, 60 percent indicated that they lacked confidence in the accuracy of crime statistics. The results reflected increasing pressure on police to conduct more stop and frisks and to issue more summonses and arrests – but declining pressure to “obey legal/constitutional restrictions.”

In response to Judge Scheindlin’s ruling, Silverman said, New York’s City Council passed a community safety bill that includes some safeguards, including requiring that officers identify themselves prior to questioning and inform targets of their right to decline a search.

Among the respondents, the Law School professors addressed their remarks to Judge Scheindlin’s ruling, which O’Rourke called “an incredible, innovative opinion.” He noted that the judge’s analysis of the issue was remarkable in its use of Fourth Amendment doctrine to address the problem of subconscious racial bias.

Malhotra noted that Judge Scheindlin’s ruling “said something very powerful that I think could make this sustainable under equal protection,” asserting that officers were making an express classification based on race – the “right people” order.

For his part, Gipson said much racial profiling happens not as overt discrimination, but because of ingrained attitudes. “We are all products of our upbringing and the way that we are raised,” he said. He himself, said Gipson, has been pulled over for “driving while black.” The officer’s first question, he said, is typically, “What are you doing out here?”

“Wrong place, wrong neighborhood, wrong time,” he said. “It happens to so many people.”

Judge Ogden noted that in the execution of the criminal justice system – from investigating crimes, to arrest and prosecution, trial and sentencing – “there is a lot of discretion among the stakeholders in every phase of that process,” thus allowing for the influence of racial attitudes.

To the future lawyers in the audience she said, “You have to be dedicated to your client. You have to be prepared at all times, because racial profiling is going to exist. But it is up to you to work toward evening that playing field for your client. If you have just one person, if you’re willing to stand up and follow the law and distinguish between facts and fallacy, then you will make that difference.”