Adam J. McKee, Ph.D.
Section 5.5: Order Maintenance v. Civil Rights
Stop and Frisk
The police practices of questioning, frisking, and searching citizens are well established and guided by legal precedents on the necessary preconditions required to engage in each of these acts lawfully. While stopping and questioning pedestrians is a routine police activity, frisking citizens can only be done lawfully on the basis of reasonable suspicion that the individual is armed and poses an immediate danger to the officer or the public. Searching an individual requires an even higher standard of probable cause for engagement in illegal activities. Each of these acts alone and in combination is designed to enable officers to question prospective suspects and witnesses, deter potential offenders, and apprehend active perpetrators.
In recent years, however, the use of these practices has taken on new meaning due to the application of “stop and frisk” in New York City and other urban jurisdictions, particularly in communities of color. These jurisdictions have encouraged officers to stop and question pedestrians in specific high-crime areas as well as to increase the frequency of frisking these pedestrians. This more intensive use of stop and frisk has prompted questions and extensive debate about its legality and its effects on individuals and minority communities. The limited research conducted thus far indicates that while these more concentrated stop and frisk interventions have the potential to reduce crime, they may also negatively impact police-community relations and harm the legitimacy and efficacy of policing efforts. Given these findings and the heated public debate surrounding stop and frisk, today’s police executives must think critically about how the acts of stopping, questioning, frisking, and searching can best be used to achieve crime-control goals in a manner that minimizes their negative effects.
In the fall of 2011, the Urban Institute convened a roundtable with a wide array of police executives, practitioners, and researchers to develop a better understanding of both the challenges and opportunities surrounding the intensive use of stop and frisk (see appendix A for a list of participants). Prior to the roundtable, the attendees wrote a series of papers examining the use of this policing tactic, and at the roundtable they engaged in a wideranging discussion of the implications of intensive stop and frisk for public safety and police-community relations.
This guide draws upon the knowledge gained during the roundtable and research in the field to describe both the legality and impacts of agency-led intensive stop and frisk strategies and to explore the ways in which individual officers, with guidance from their leadership, can employ their stop, frisk, and search activities in a manner that is lawful, responsible, and effective.
To be clear, this publication is not an instructional manual on how to engage in stop and frisk, and it does not provide legal guidance on the topic; rather, its purpose is to help law enforcement officials think carefully about the ways in which these practices should be employed in the interests of promoting public safety while developing and reinforcing strong, mutually beneficial ties between police and the community. The following is a summary of the content covered in this guide:
Terry v. Ohio (1968) first established that pedestrian stops and frisks were constitutional. This case provided that officers only conduct stops when they have “reasonable suspicion” that the pedestrian in question is connected to criminal activity in some way. During a stop, Terry stipulated that an officer may conduct a limited search, or frisk, of the pedestrian during a stop if he or she believes the pedestrian to be carrying a weapon that could either endanger the officer or the general public. Subsequent court cases expanded upon the concept of reasonable suspicion. Today, officer level observations, tips from informants, and other factors such as individuals’ appearance and behavior can all contribute to “reasonable suspicion.” Although Terry specified that law enforcement officers were to conduct frisks for the sole purpose of detecting weapons that posed a threat to officer or public safety, subsequent case law has also allowed officers to confiscate drugs or other illicit substances found during legally executed frisks and enter them as evidence.
Outcomes of stop and frisk
The widespread use of stop and frisk in specific high-crime communities is intended to prevent crime by deterring individuals from carrying weapons or narcotics. By contrast, individual officer’s use of stop, question, frisk, and search activities is intended to protect the officer’s safety and that of the public.
While stop and frisk may have contributed to reductions in crime in recent years,2 the long term, potentially negative effects of the practice have not been studied. Research does show that pedestrians who are stopped and frisked by police officers often view the experience as unjustified and feel that they are subject to unfair and overly aggressive treatment. The negative effects of stop and frisk may be most pronounced for minorities.
- Stop and frisk may disproportionately impact minority populations, even once relevant background differences are taken into account.
- Minorities experience police stops more negatively than Whites and are more likely to perceive that officers conduct stops unfairly.
Citizens’ views of the police strongly contribute to their willingness to cooperate with and empower law enforcement. Therefore, minimizing the negative effects of stop and frisk is crucial for overall police effectiveness and is especially important for improving relations with communities of color.
Stop and frisk and community policing
Both legal precedent and the literature to date raise questions about the wisdom of employing stop and frisk as an intensive crime deterrence strategy. While these cautionary findings may lead some police executives to discourage officers from stopping pedestrians, doing so would greatly inhibit the ability to enforce the law and enhance public safety. Moreover, hot spot policing strategies, whereby police are deployed in specific high-crime areas, may give the appearance of stop and frisk by nature of the higher ratio of officers to citizens in those locations.
These considerations suggest that police leaders should focus on training and accountability measures that view police acts of stop, question, frisk, and search in the context of both case law and community policing. Doing so can help ensure law enforcement officers interact with citizens in a lawful, respectful manner that is ultimately beneficial to the community as a whole. Strong leadership from the police executive and responsibility at the level of the individual officer are both crucial to this approach.
The role of the police executive should include the following:
- Communicate clear expectations within the department, and reinforce a culture of ethical and respectful behavior.
- Recruit officers who are service-oriented, representative of the communities they serve, and diverse in terms of their backgrounds and perspectives.
- Communicate with and solicit input from both internal and external stakeholders.
- Build accountability through measures such as documenting police interactions with citizens, analyzing data, and holding officers responsible for their actions.
- Train officers in the proper procedures for conducting stops and frisks and provide opportunities for continuing education.
- Assign officers to patrol the same neighborhoods to build relationships with the community.
The responsibilities of the individual officer should include the following:
- Have sound justification before deciding to stop an individual.
- Communicate clearly the logic behind the stop and walk the individual through the process.
- Employ frisk and/or search activities only if legal guidelines justify doing so.
- Treat individuals respectfully during stops.
If implemented correctly, stopping—and potentially frisking or searching—pedestrians has the potential to reduce crime; however, the manner in which some agencies engage in this practice today may yield an adverse impact on police-community relations in high-crime communities due to its potentially discriminatory and inappropriate application. To minimize the negative outcomes associated with stop and frisk, police departments should rethink who is engaging in this practice and whether it is truly justified. Employing a community policing approach to the standard police tools of stop, question, frisk, and search can help officers take into account the needs and interests of the communities where police presence is most prevalent. Doing so will help improve public perceptions of law enforcement, which may bolster police effectiveness over time. Police departments and researchers must also collaborate to improve law enforcement’s and the public’s understanding of how pedestrian stops are employed in different contexts and regions across the country, as well as to identify the best practices currently in use.
Source: COP Office / Urban Institute. Stop and Frisk: Balancing Crime Control with Community Relations.
The article below was written by Emily Gold and Melissa Bradley.
The Case for Procedural Justice
Today’s criminal justice leaders have a number of promising and evidence-based practices to draw upon when implementing new public safety efforts. CompStat and hot spot policing have revolutionized the way data is used in crime prevention. Public health approaches to community violence have helped to reduce shootings and homicides. And community policing and other community collaborations have reshaped how law enforcement organizations interact with the neighborhoods they serve.
Among these reforms is a frequently practiced but often overlooked approach that has increasingly been identified by researchers as an evidence-based and cost-effective way to reduce crime: procedural justice. Procedural justice (sometimes called procedural fairness) describes the idea that how individuals regard the justice system is tied more to the perceived fairness of the process and how they were treated rather than to the perceived fairness of the outcome. In other words, even someone who receives a traffic ticket or “loses” his case in court will rate the system favorably if he feels that the outcome is arrived at fairly.
Leading researchers on this topic, including Professor Tom Tyler of Yale Law School, have identified several critical dimensions of procedural fairness: (1) voice (the perception that your side of the story has been heard); (2) respect (perception that system players treat you with dignity and respect); (3) neutrality (perception that the decision-making process is unbiased and trustworthy); (4) understanding (comprehension of the process and how decisions are made); and (5) helpfulness (perception that system players are interested in your personal situation to the extent that the law allows).
Underlying procedural justice is the idea that the criminal justice system must constantly be demonstrating its legitimacy to the public it serves. If the public ceases to view its justice system as legitimate, dire consequences ensue. Put simply, people are more likely to comply with the law and cooperate with law enforcement efforts when they feel the system and its actors are legitimate. For example, a recent study examined the impact of police officers’ use of a procedural justice script during randomized breath test checkpoints—with language geared toward conveying key elements such as decision-making neutrality, voice, and respect.2 Would drivers’ perceptions of fairness and compliance with law enforcement directives improve? The script explained the officer’s motives for conducting the stop, gave the driver an opportunity to suggest other crime prevention tactics, and conveyed respect by addressing the drivers at eye level and thanking them for their time. In fact, drivers who participated in the study were more likely than the control group to report satisfaction with the interaction and to be compliant with police orders. Indeed, these findings are comparable to those seen in a range of other criminal justice settings, from courts to corrections to re-entry.
Notions of fairness and respect are relatively uncontroversial aims for the criminal justice system, but implementing practices that support these ends can be challenging. The Center for Court Innovation—in partnership with the U.S. Department of Justice’s Bureau of Justice Assistance and the National Judicial College—has spent the past two years developing and piloting a curriculum to help judges and other court players to translate the precepts of procedural justice into daily practice. The initiative has relied upon the expertise of judges, court administrators, legal theorists, and communications experts to develop and test improved communication strategies and create practical “how to” recommendations for court staff. To date, project activities have included the convening of a national working group, the development and piloting of a one-day training, issuing a national solicitation for additional training sites, and the development of an online learning system based on the curriculum.
The unfortunate reality is that court proceedings—like other stages in the criminal justice process—can be confounding and dehumanizing experiences. Courtroom actors do not deliberately attempt to cause confusion or undermine confidence in the system, of course—they are simply trying to communicate complex, technical information as quickly as possible. There are numerous real-world obstacles to effective communication, including overwhelming caseloads and increasing cultural and linguistic diversity among court participants. Similar challenges exist during routine traffic stops, probation intake sessions, parole board hearings—the list goes on and on.
Procedural justice provides a platform to begin addressing some of these shortcomings. In courts, among other things, this takes the form of rethinking how courtroom rules are posted, explained, and enforced, or how court clerk or court officers provide information while court is in session.
There are countless analogs from the court environment that are applicable to other justice system players, including law enforcement. Below are a few strategies for implementation that can be applied by police departments to enhance procedural justice:
- Humanize the experience: Appearing approachable and accessible is a key component of procedural justice. When interviewing suspects or witnesses, make eye contact and use body language to convey respect. Thank citizens for their cooperation with the process as a means of yielding increased cooperation in the future.
- Explain what you’re doing and why: For many individuals, a routine traffic stop or other interaction with law enforcement can be a traumatic event. The legal jargon and procedures (familiar to practitioners in the field) can be confusing and intimidating to the average person. Whenever possible, use simple terms to explain your actions, the legal and/or practical reasons for doing so, and any consequences they may have for the person. For example, when issuing a summons, clearly explain the process for appearing in court to resolve the matter—including providing directions to the courthouse, if and how a lawyer will be provided, and whether there are options to resolve the matter by mail or online. These strategies can help promote compliance.
- Create opportunities for individuals to be heard: Giving people an opportunity to speak and have their concerns heard can add a few extra minutes to the average interaction, but it is time well spent. Research shows that having your voice heard increases perceptions of fairness, even when the person is told that his views will not influence the ultimate decision or outcome. Consider how to maximize the citizens’ voice in contexts where it may be limited, such as traffic and street stops or walk-in inquiries.
- Consider environmental factors: Criminal justice facilities—like many government buildings—can be difficult to navigate for those unfamiliar with their halls. As an exercise, try to examine your facility with fresh eyes from the perspective of a new user. In high-traffic areas, ensure that building rules and instructions for getting assistance are clearly posted, easy to read, and provided in commonly spoken languages other than English, if necessary.
- Use research to show the value of procedural justice: As with any new approach, there will be skeptics, but the research that supports the concept is compelling. Providing colleagues with the research on the impact of procedural fairness can offer a concrete and focused foundation for trainings and other implementation efforts, helping to counteract knee-jerk skepticism.
Law enforcement professionals are typically the first point of contact for people processed through the justice system. Procedural justice strategies like the ones listed above—when delivered early in the process—can help shape an individual’s perception of the system and improve compliance. With budget cuts and the resulting pressure on the justice system to do more with less, procedural justice offers an evidence-based approach that can help law enforcement agencies—as well as the system as a whole—enhance legitimacy and reduce crime: the proverbial win-win.
Source: COPS Office. The Case for Procedural Justice: Fairness as a Crime Prevention Tool.
Modification History File Created: 08/10/2019 Last Modified: 08/10/2019
This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.