Tuesday, September 28, 2010

Constitution 2020: Randomization, Policing, and Citizenship

Guest Blogger

For the Constitution in 2020 conference on The Future of Criminal Justice.

Bernard E. Harcourt

In a new piece titled Randomization and the Fourth Amendment, Tracey Meares and I propose to remodel Fourth Amendment protections along the lines of the randomized checkpoint search in an effort to reduce police discretion, distribute more evenly the burdens of policing, and begin to remedy the problem of racial discrimination that plagues the criminal justice system in the United States. The current Fourth Amendment model ends up denying full citizenship rights to most members of targeted communities and imposing on them all the costs of policing. Our model, based on the random checkpoint evenly distributed throughout society, is a vision for the Constitution in 2020.

Today, the Fourth Amendment is based on the key concept of “individualized suspicion” and is essentially modeled on the Warrant Clause of the amendment. In order to stop or search, the police are supposed to have an “individualized” type of suspicion that identifies the specific person targeted with articulable reasons. Although this sounds good in theory, in practice it leads to excessive and unjustified discretion on the part of the police and ultimately condones racial profiling. It leads to the kind of situation that has been documented in New York City: in excess of 600,000 stops-and-frisks per year, predominantly of African-American and Hispanic citizens.

Tracey and I argue that the real problem with the current system is the notion of “individualized suspicion.” The term is misleading and has had detrimental effects on criminal justice. The term, which was born relatively recently in the 1960s, has become today more of a placeholder for the conclusion that a search or seizure is constitutional than a safeguard against unreasonable searches. As such, the term masks the level of suspicion that courts do and should demand in police encounters, and undermines the value of requiring suspicion as a protection of privacy interests.

What we suggest, instead, is that we model the Fourth on the Reasonableness Clause of the amendment. The notion of reasonableness at the core of the Fourth Amendment has a few aims. Two of the most important are controlling police discretion and avoiding discrimination—whether political, racial, or other. Our contention, primarily, is that the Fourth Amendment ought to be interpreted in a way that best constrains police power and makes it politically accountable to those against whom it is being deployed, most of the time citizens targeted in the inner city. In emphasizing discretion and discrimination, we do not mean to slight privacy protection. We think the checkpoint model protects privacy by ensuring an honest and open evaluation of the level of suspicion necessary to trigger the possibility of police intervention and coercion. Such a model would be tied to the first clause of the Fourth Amendment and would assess reasonableness in light of the amount of suspicion underlying a search or seizure and also with reference to the extent of evenhandedness law enforcers employ when engaging in searches and seizures.

In our opinion, it is time to discard the “individualized suspicion” standard. The expression is a misleading and conclusory term that has distorted the Fourth Amendment. It has become, over time, a substitute for the mere expression “constitutional” and has distracted courts and other criminal justice actors from focusing on what is truly important—namely, the level, the amount, the degree of reliable suspicion. Thus, instead of helping to guide relevant legal system actors to determine the quantity of suspicion necessary for government action in particular cases, the term “individualized suspicion” has functioned as a legal rubric that masks the actual basis of the judicial decision.

By replacing the existing model with a randomized checkpoint model, we hope to cabin police discretion so as to avoid socio-economic and racial discrimination, and to distribute more evenly the costs of policing throughout society. We realize full well that randomized checkpoint searches are generally taken to be the exact antitheses of reasonableness under the Fourth Amendment; that, in the eyes of most jurists, checkpoint searches violate the central requirement of valid Fourth Amendment searches. But this, we maintain, is short sighted. The constitutional issue should not turn on the question of suspicion-based versus suspicionless police searches, but on the level of suspicion that attaches to any search program and on the evenhandedness of the program. In essence, we argue for a new paradigm of randomized encounters that satisfy a base level of suspicion and that will provide the benefits of both privacy-protection (by ensuring a minimum level of suspicion) and evenhandedness (by cabining police discretion)—the very values inscribed and protected through the Fourth Amendment.

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