The Problem of Policing
The legal problem of policing is how to regulate police authority to permit officers to enforce law while also protecting individual liberty and minimizing the social costs the police impose. Courts and commentators have largely treated the problem of policing as limited to preventing violations of constitutional rights and its solution as the judicial definition and enforcement of those rights. But constitutional law and courts alone are necessarily inadequate to regulate the police. Constitutional law does not protect important interests below the constitutional threshold or effectively address the distributional impacts of law enforcement activities. Nor can the judiciary adequately assess law enforcement practices or predict police conduct. The problem of policing is fundamentally a problem of regulation — a fact largely invisible in contemporary scholarship. While scholars have criticized the conventional paradigm, contemporary scholarship continues to operate within its limits.
Did Post-Floyd et al. Reforms Reduce Racial Disparities in NYPD Stop, Question, and Frisk Practices? An Exploratory Analysis Using External and Internal Benchmarks
Various methodological approaches to constructing external and internal benchmarks have been applied to estimate racial bias in police stop, question, and frisk (SQF) patterns. We apply an external benchmark of the race of the residential population and an internal benchmark of similarly-situated stops to estimate if racial disparities in New York City SQF data were impacted by the Floyd, et al. v. City of New York court settlement. We find that after the settlement, the racial composition of census tracts were no longer significant predictors of the stop rate after controlling for reported crime, socioeconomic factors, and police precincts. We further find that differences in SQF outcomes and hit rates between Blacks and Hispanics and similarly-situated others diminished substantially after the settlement. These findings suggest that court reforms may be an effective method for reducing racial disparities in SQF patterns.
Counsel for the Poor: The Death Sentence Not for the Worst Crime But for the Worst Lawyer
Courts have issued many pronouncements about the importance of the guiding hand of counsel, but they have failed to acknowledge that most state governments are unwilling to pay for an adequate defense for the poor person accused of a crime. Unfortunately, the Supreme Court has not been vigilant in enforcing the promise of Powell v. Alabama and Gideon v. Wainwright. Its acceptance of the current quality of representation in capital cases as inevitable or even acceptable demeans the Sixth Amendment. It undermines the legitimacy of the criminal courts and the respect due their judgments. No poor person accused of any crime should receive the sort of representation that is found acceptable in the criminal courts of this nation today, but it is particularly indefensible in cases where life is at stake. Even one of the examples of deficient representation described in this Essay is one more than should have occurred in a system of true justice.Providing the best quality representation to persons facing loss of life or imprisonment should be the highest priority of legislatures, the judiciary, and the bar. However, the reality is that it is not. So long as the substandard representation that is seen today is tolerated in the criminal courts, at the very least, this lack of commitment to equal justice should be acknowledged and the power of courts should be limited. So long as juries and judges are deprived of critical information and the Bill of Rights is ignored in the most emotionally and politically charged cases due to deficient legal representation, the courts should not be authorized to impose the extreme and irrevocable penalty of death. Otherwise, the death penalty will continue to be imposed, not upon those who commit the worst crimes, but upon those who have the misfortune to be assigned the worst lawyers.