Equal Protection Examined in the Context of Policing
Mayor Bill de Blasio speaks fervently of the need to take a progressive path, especially regarding the city's treatment of the poor, who, in New York City, are largely people of color. In the law enforcement context, that path must widen beyond stop-and-frisk to include progressive reform of the NYPD's overall approach to policing. Only by examining who gets arrested for what will the mayor and Police Commissioner William Bratton address the undeniable truth that black and brown people are arrested and incarcerated in huge and disproportionate rates for everything from minor infractions to serious felonies.
The historic decision by Southern District Judge Shira Scheindlin in the Floyd case focused attention on the Fourth Amendment and constitutional phrases like "reasonable suspicion" and "search and seizure." Commentators now regularly address what quantum of evidence police officers must have before they can interfere with someone's freedom of movement. Often overlooked is that part of the decision that found that the NYPD had systemically violated the Constitution's equal protection clause, that people of color were being unlawfully stopped based on race.
For most people, the phrase "equal protection" conjures up historic issues like school desegregation, affirmative action, gender equality and same-sex marriage. By analyzing the practice of the NYPD through an equal protection lens, Scheindlin's ruling brings to the fore an ongoing truth of criminal justice—people of color are policed differently and more heavily than white people. An emphasis on equal protection must inform any further conversation about reform; it can lead us to widen the lens to focus on policing writ large, not just limited to stop-and-frisk.
De Blasio's promise to end the current incarnation of stop-and-frisk may lead to more race-neutral stops. The equal protection problem, however, transcends stop-and-frisk; it extends to every facet of the criminal justice system. Enter any of New York City's Criminal Courts and you will see a multitude of young men of color facing criminal charges. Just as Scheindlin found that blacks and Latinos overwhelmingly and disproportionately bore the brunt of stops-and-frisks, so, too, is that the case for arrests generally.
Several years ago, I hosted a delegation of lawyers from the Japanese Federation of Bar Associations. We observed the arraignment courts in Manhattan for a few hours and then retired to a conference room for discussion. At one point, a questioner asked if the arraignment courts we visited were the only places where someone arrested in Manhattan would be taken to see a judge. I assured him that was the case. He repeated the question and I repeated my answer. He then asked, "If that's true, then where do they take the white people?"
New York's "tale of two cities" is on display, writ large, in the Criminal Court. A myopic focus on stop-and-frisk ignores the larger issue of equal protection and policing.
There are myriad explanations for racially disproportionate arrests. Some argue it stems from the effects of poverty and unemployment that characterize many communities of color. Relatedly, others suggest that a greater police presence in poor neighborhoods necessarily leads to more arrests in those areas. However, any analysis of who gets arrested and why, must begin with the question of for what?
Apropos of the reappointment of Bratton, it is important to examine the over-arching signature policy of the NYPD—quality-of-life policing, of which stop-and-frisk is a subsidiary. Bratton brought the "Broken Windows" theory and quality-of-life policing to New York City and oversaw the mass arrests of "squeegee" men, truants and panhandlers. These days, as quality-of-life morphed into zero tolerance policing, people are routinely arrested for drinking an open container of alcohol, riding a bike on the sidewalk, and taking up two seats on the subway. Even more so than stop-and-frisk, policing in New York is defined by the ongoing massive numbers of arrests for minor crimes and offenses. Predictably, the overwhelming majority of those so arrested are young men of color.
As pernicious as rampant stops-and-frisks may be, they pale in comparison to quality-of-life arrests. These arrests often result in a host of impenetrable and permanent negative consequences, including deportation, eviction and ineligibility for various loans and licenses. At a minimum, the arrest records that are generated make it that much harder for people to find jobs. Unbridled quality-of-life arrests, like stops-and frisks, must be addressed in any policy that aims to take on unequal treatment of poor people of color and New York's tale of two cities.
The author is a professor
at the City University
of New York School of Law.