Abstract

In Terry v. Ohio, the U.S. Supreme Court relied on a balancing test to uphold the reasonableness of the practice known as “stop and frisk,” balancing the contribution of the practice to effective crime prevention and detection against the nature and quality of the intrusion to individual rights. In recent years, statistics have been powerfully deployed by legal scholars, jurists, and policymakers to challenge the assumption that stop and frisk leads to frequent discovery of contraband or other criminal behavior, and to address stark racial and ethnic disparities in the deployment of stop and frisk. But the other side of the Terry equation — the nature and quality of the intrusion — has received far less attention from the legal community. With few exceptions, Terry jurisprudence portrays the Terry frisk simply as a brief pat-down of the outer clothing and treats each Terry stop as an isolated encounter for purposes of measuring the harm involved. Yet there is a robust social science literature on the effects of stop and frisk on individuals, including data on its effects on individuals from marginalized or vulnerable groups, on individuals over time, and on communities as a whole. Moreover, stop and frisk in the current era has evolved from a tool in the arsenal of individual officers to a systematic, widely deployed strategy. This article argues that the failure to grapple with the application of modern knowledge to modern policing practices leads to a mismeasurement on both sides of the Terry equation. Not only does stop and frisk cause a wide range of emotional and psychological harms; these harms may also interfere with the ability of law enforcement to prevent and investigate crime. Even apart from any legal doctrinal implications for stop and frisk jurisprudence, recognizing the flawed assumptions described in this article should encourage all the relevant stake-holders to re-evaluate the consequences of the Terry regime.

Citation:

Bandes, Susan A. and Pryor, Marie and Kerrison, Erin and Goff, Phillip, The Mismeasure of Terry Stops: Assessing the Psychological and Emotional Harms of Stop and Frisk to Individuals and Communities (February 6, 2019). 37 Behavioral Sciences & the Law Issue 2 (2019). 
 
This article originally appeared on SSRN

Susan A. Bandes

DePaul University - College of Law

Susan Bandes is widely known as a scholar in the areas of federal jurisdiction, criminal procedure and civil rights, and more recently, as a pioneer in the emerging study of the role of emotion in law. Her legal career began in 1976 at the Illinois Office of the State Appellate Defender. In 1980, she became staff counsel for the Illinois A.C.L.U., where she litigated a broad spectrum of civil rights cases, and helped draft and secure passage of the Illinois Freedom of Information Act. She joined the DePaul faculty in 1984, and was named a distinguished research professor in 2003. She has received numerous awards from both the law school and the university for her teaching, scholarship and service.

Marie Pryor

City University of New York - Center for Policing Equity

Marie Pryor, Ph.D., is the Project Director of the Data Policy Division at CPE. Prior to joining CPE, Marie worked as the Chief Program Analyst for the New Jersey Reentry Corporation, an employment-based reentry program with five reentry centers in New Jersey that provide supportive services to the formerly incarcerated. While there Marie managed the data department, performing all of the program evaluation, grants management and report writing for the agency’s varied grant programs. She was also appointed to the New Jersey Supreme Court Committee on Minority Concerns in 2017.

Erin M. Kerrison

University of California, Berkeley

Erin M. Kerrison is an assistant professor at the University of California, Berkeley. Her work extends from a legal epidemiological framework, wherein law and legal institutions operate as social determinants of health. Specifically, through varied agency partnerships, her mixed-method research agenda investigates the impact that compounded structural disadvantage, concentrated poverty and state supervision has on service delivery, substance abuse, violence and other health outcomes for individuals and communities marked by criminal justice intervention.

Phillip Goff

UCLA Department of Psychology

Phillip Atiba Goff is the inaugural Franklin A. Thomas Professor in Policing Equity at John Jay College of Criminal Justice. He is the co-founder and president of the Center for Policing Equity, and an expert in contemporary forms of racial bias and discrimination, as well as the intersections of race and gender. Dr. Goff serves as one of four Principal Investigators for the CPE’s National Justice Database, the first national database on racial disparities in police stops and use of force. More recently, Dr. Goff led the CPE in becoming one of three Principal Investigators for the U.S. Department of Justice’s National Initiative for Building Community Trust and Justice, which will contribute information to the National Justice Database. Dr. Goff conducts work exploring the ways in which racial prejudice is not a necessary precondition for racial discrimination. That is, despite the normative view of racial discrimination—that it stems from prejudiced explicit or implicit attitudes—his research demonstrates that situational factors facilitate racially unequal outcomes.

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