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University of Miami Law Review

Abstract

President Trump has called for increased use of the recently predominant policing methodology known as programmatic stop and frisk. This Article contributes to the field by identifying, defining, and discussing five key components of the practice: (1) administratively dictated (2) pervasive Terry v. Ohio stops and frisks (3) aimed at crime prevention by means of (4) data-enhanced 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 specific police practices by analyzing three levels of social activity: (1) the macro level of analysis is that of broad social discourses, (2) the meso level involves both criminal procedure doctrines and criminological policy advocacy, and (3) the micro level is where police departments engage in specific practices.

This new methodology, which explores what I have named 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 doctrine and Whren v. United States 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, influenced public policy. At the micro level, police departments increasingly took advantage of the doctrinal weaknesses by adapting the methodologies of backlash criminologists 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 that make promoting equality a primary goal of policing. For instance, the discourse supporting Whren 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 counter-discourse at the meso level would thus contend that Whren doctrine should not be extended to programmatic stops and frisks because such stops and frisks are, unlike pretext searches, merely uneducated guesses. Future scholarship should consider the discourse-to-practice-circuit in other contexts.

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