If you sit as a trial judge in criminal cases you spend a fair amount of time ruling on stop and frisk cases. Some police officers and their departments are very aggressive and others less so. Frank Rudy Cooper (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted A Genealogy of Programmatic Stop and Frisk: The Discourse-to-Practice Circuit (University of Miami Law Review, Vol. 73, Forthcoming) on SSRN. Here is the abstract:
President Trump has called for increased use of the recently predominant policing methodology known as programmatic stop and frisk. One of this article’s contributions to the field is its identification of five key components of the practice: (1) administrator-mandated (2) pervasive Terry stops and frisks (3) aimed at crime prevention by means of (4) profiles of suspects that (5) target young racial minority men.
Whereas some scholars see programmatic stop and frisk as solely the product of individual police officer bias, this article argues for understanding how we arrived at any specific police practices by analyzing three levels of social activity. The macro level of analysis is that of broad social discourses, the mecro level involves both criminological policy advocacy and criminal procedure doctrines, and the micro level is where police departments engage in specific practices.
The new methodology exploring the “discourse-to-practice circuit” allows us to conduct a genealogy of how and why programmatic stop and frisk became a predominant practice. At the macro level, the late 1960s discourse calling for law and order linked backlash against civil rights to crime control. Meso level legal discourses—such as the general weakening of Terry stop doctrine and Whren pretext doctrine’s insulation of police officers’ racist motivations—allowed for more aggressive policing. Simultaneously, a meso level backlash version of criminology, exemplified by James Q. Wilson’s call for Fixing Broken Windows, then influenced public policy. At the micro level, police departments increasingly took advantage of the doctrinal weaknesses by adopting the backlash criminologists’ methodologies in the form of programmatic stop and frisk.
In light of that genealogy, this article argues for challenging programmatic stop and frisk with counter-narratives making promoting equality a primary goal of policing. For instance, the discourse supporting Whren pretext doctrine contends that we should refuse to suppress evidence discovered when searches are based on racist motivations in order to avoid second guessing officers’ split-second decisions. This article notes that such pretext searches are at least educated guesses based on a fair probability the particular suspect is involved in crime. However, programmatic stops and frisks are based only on specific and articulable facts, if not mere stereotypes. A macro level counter discourse would thus contend that Whren pretext doctrine should not be extended to programmatic stops and frisks because they are essentially uneducated guesses.