an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The central tenets of current Fourth Amendment doctrine-- the primacy of the warrant, the insistence on individualized suspicion, and the importance of subjecting police practices to judicial review—sometimes look like answers to the pressing questions of an earlier era. Although safeguards like the warrant and the exclusionary rule continue to play a vital role, for significant categories of police activity they are ineffectual or beside the point.
The standard Fourth Amendment framework assumes a court-centric criminal justice system whose role is to resolve individual disputes between the state and individual defendants. It relies on judicial authorization of individual searches and after-the –fact judicial exclusion of evidence to limit police illegality. This case by case framework is an inadequate response to policing as an instrument of pervasive social control. It is proving inadequate to grapple with burgeoning arrests for minor “quality of life” offenses (minor traffic infractions, loitering, trespass, open container) that afford police nearly unlimited discretion to pick and choose whom to arrest. It is further challenged by aggressive maintenance order policing of entire neighborhoods that relies on extensive stop and frisk activity as well as quality of life arrests. (Maintenance order policing targets “broken windows” neighborhoods--areas with high physical and social disorder—on the theory that addressing visible signs of disorder will decrease more serious crime.) The irrelevance of probable cause to curbing police discretion in individual low-level cases
The current framework emphasizes the importance of probable cause to limiting police discretion and protecting zones of privacy from police intrusion. But the broader the net of criminalization of everyday conduct, the less the probable cause threshold acts as a brake on police discretion or police power. If we are all violating some traffic law or municipal ordinance, probable cause is no longer a meaningful limit. For the most part, the Court has opted to leave the reasonableness standard amorphous and toothless. For example, it has declined to use reasonableness analysis to inquire into whether an arrest for a minor traffic violation was pretextual, or was too minor to support a custodial arrest (though last term in Arizona v. Gant it placed some welcome limits on car searches incident to arrest). For the vast majority of low level misdemeanor or quality of life arrests the Fourth Amendment provides no meaningful limits on police discretion.
Aggressive maintenance order policing in certain neighborhoods builds on this combination of overcriminalization and ineffectual Fourth Amendment safeguards, relying on large numbers of arrests for everyday activities in targeted areas. These arrests are based on readily available probable cause, and require no warrant, since they occur in public places. As Jeff Fagan, Garth Davies and others have shown, the neighborhoods targeted are inevitably areas with high poverty and largely minority populations. (In recent years 86% of those arrested for misdemeanors in New York City, and nearly 90% of those stopped and frisked, were non-white). As former Bronx assistant public defender David Feige notes, “reality, as many poor people eventually understand it, is that between rules about truancy, trespass, loitering, disorderly conduct, and dog walking, most any adventure can wind up getting you a summons. And that’s if you’re lucky.” A record of low level arrests (with escalating consequences) in some neighborhoods becomes a rite of passage, not a reliable means of identifying habitual criminals.
The Limits of the Exclusionary Rule: No Day in Court
Just as ex ante probable cause and warrant requirements are ineffectual in these cases, so is the Fourth Amendment’s primary ex post remedy. Standard Fourth Amendment doctrine has one main tool for reshaping future police incentives: exclusion of illegal evidence at trial. Yet for the arrestee, in the vast majority of cases there will be no opportunity to contest the evidence. Cases are overwhelmingly dismissed at an early stage, and a vanishingly small number go to trial. In New York City, for example, Babe Howell reports in a recent article that only 0.2% of misdemeanor and violation cases are ever tried.
To compound the problem, much aggressive maintenance order policing is not aimed toward generating arrests. In each of the last several years, New York City police have stopped and frisked well over half a million people, more than five times the number of felony arrests, and more than double the number of misdemeanor arrests. The program is aimed at getting weapons off the street (though whether it succeeds in doing so is hotly contested), at improving quality of life, or, seen in another light, at routine harassment and social control. When illegal police behavior is not aimed toward obtaining a conviction, or when there is no real possibility that a court will ever review the constitutional basis of a stop and frisk or an arrest, exclusion becomes an irrelevant remedy. The Court in Terry v. Ohio foresaw this problem, though not the extent of it. It emphasized the judicial responsibility to guard against police conduct that is harassing and overbearing, and suggested that other remedies might supplement (rather than simply supplant) the exclusionary rule.
The need for a broader institutional response to systemic police illegality
Fourth Amendment doctrine has not generally been animated by the notion of a judicial responsibility to guard against police misconduct. There is plenty of room for judicial improvement. A more muscular reasonableness clause could be used to limit pretextual searches and seizures, to insist on a nexus between the type of crime and the accompanying search incident, and to oversee not only when stops and frisks occur, but with how much force they are effectuated. The Court could improve its ability to guard against patterns of police harassment by lowering the barriers it has created to standing for injunctive relief and Sec. 1983 municipal liability.
The current Fourth Amendment framework, for all its limitations, was premised on a clear-eyed understanding that courts play an indispensible role in supervising police conduct. The political process is generally least responsive to those groups hardest hit by police illegality. Nevertheless, other institutions, notably the Department of Justice, have played an essential role in addressing patterns of harassment and unequal enforcement. And ultimately, both overcriminalization and misdirected policing priorities will need to be addressed by a wider array of federal, state and local institutions—a topic I will explore in my talk. The balance between liberty and security is best safeguarded by an ongoing dialogue about what intrusions we should be forced to accept in a free and open society, and our best option is to insure the dialogue is inclusive, informed and vigorous.