The Lowdown on Stop and Frisk

Amid the crossfire of insults and exchange of wisecracks during last Monday’s presidential debate was a probing discussion on the contentious relationship between law enforcement and African American communities nationwide. The conversation about America’s criminal justice system has been especially pertinent given this past summer’s shootings in Dallas, which resulted in the tragic deaths of five police officers, alongside the more recent display of civil unrest in Charlotte, North Carolina.

Throughout the conversation, both candidates played deftly to their respective ideological visions. Clinton expressed a desire to restore trust in law enforcement in minority neighborhoods through criminal justice reform, along with imposing stricter regulations on firearms to curb gun violence. Trump countered with a pledge to bring back “law and order” policies, exemplified by “stop-and-frisk,” which he claimed significantly reduced crime rates under NYC mayors Giuliani and Bloomberg.

In recent years, New York law enforcement has substantially reduced its reliance on “stop-and-frisk” — otherwise known as “Terry stops” (after Supreme Court Case Terry v. Ohio, 1968) — which gave law enforcement liberty to search and question pedestrians reasonably suspected of criminal activity. Critics have disowned the controversial technique as racial profiling due to its disproportionate use in minority communities. And in 2013, District Judge Shira A. Scheindlin ruled that the way it was then carried out in New York to single out Hispanic and black men rendered it unconstitutional, though she withheld from completely discarding the practice altogether. Nevertheless, current Mayor Bill de Blasio has captured Judge Scheindlin’s sentiment in his approach to the policy, arguing that necessary steps should be taken to eliminate excessive stop-and-frisk techniques by New York City law enforcement.

Since the Supreme Court has never heard on the policy, stop-and-frisk remains effectively constitutional nationwide — and even in NYC — if done appropriately. In that vein, Trump was correct in maintaining that the constitutionality of the procedure is not yet settled, and half-correct in arguing murder rates have spiked in NYC since de Blasio took office. Although the homicide rate in New York has continued to decrease under de Blasio, following a trajectory that has persisted since the mid-1990s, it did uptick by 6 percent in 2015, before falling yet again this past year.

Clinton, on the other hand, was wrong in saying that Judge Scheindlin deemed stop-and-frisk unconstitutional because it was “ineffective.”  Judge Scheindlin explicitly stated this was not the case in her decision: “I emphasize at the outset, as I have throughout the litigation, that this case is not about the effectiveness of stop and frisk in deterring or combating crime.”

Its effectiveness, however, remains a matter of debate, and is ostensibly informed by one’s politics. Conservatives and many law enforcement agents believe it remains a formidable crime deterrent, while those who advocate criminal justice reform contend that its perceived effectiveness does not compensate for the destruction it causes to minority communities.

Regardless of one’s position on the matter, the focus of both Trump and Clinton on the policy, as well as criminal justice reform more generally, demonstrates the issue’s salience this election cycle and resonates the national conversation Americans are having about the role of law enforcement in our society.

It also underscores the significance of the role presidents have in choosing members of the Supreme Court and lower courts that represent their beliefs. If Clinton is elected, it may well be that stop-and-frisk does eventually become unconstitutional if she is able to appoint justices to the court who conform to her point of view. By contrast, Trump’s “law and order” rhetoric will almost certainly influence his judicial selections. If you need any more reason to see the importance of the presidency on public policy, this scenario simply reaffirms the far-reaching consequences a presidential election can have on the country.