I was recently asked to contribute to a symposium where the participants were to offer their nominations for the most unhelpful, or even disastrous, Supreme Court opinion in American history. The problem was not to identify a decision thought to be clearly and unequivocally wrongly decided, but the one with long-term consequences that have been harmful to the nation and our system of constitutional justice. My nominee for this “honor” was the Supreme Court decision stating the Court’s ruling in Terry v. Ohio, 392 U.S. 1 (1968). (The contribution, hereafter, is contained in: Setting Us Up for Disaster: The Supreme Court’s Decision in Terry v. Ohio.) My central objection to the Court’s decision in Terry is its central role in fostering a pervasive practice of “racialized policing,” illustrated most powerfully in the well-known practice of “racial profiling.” Terry is famous for being the Supreme Court’s “stop-and-frisk” case, where the Court held that law enforcement could detain individuals, and impose a “frisk” to ensure that they were not armed and dangerous, based on “reasonable suspicion” rather than the probable cause required to justify full arrests or complete searches of one’s person or home.
Terry has contributed to racialized policing in a number of important ways: courts have construed and applied the “reasonable suspicion” requirement in a manner that shows enormous deference to law enforcement, with a result that “police frequently stop and frisk African Americans and Hispanic Americans based on very little evidence.” David Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 Ind. L.J. 659, 681 (1994). The net result “is the effect these stops have in widening the racial divide in the United States.” Id. Terry has also contributed directly to the frequent reliance by law enforcement on “investigative profiles,” as in their pervasive use of so-called drug courier profiles. Yet “the drug courier profiles are often so expansive that they operate much like the traffic code—virtually anyone the police choose to stop will fit multiple factors of the profile.” David Cole, Discretion and Discrimination Reconsidered: A Response to the New Criminal Justice Scholarship, 87 Geo. L.J. 1059, 1077 (1999).
Courts have rationalized lengthy and intrusive Terry stops, especially in the context of routine automobile stops for violations of traffic codes. Judicial decisions allowing expansive detentions, based on Terry, have served to provide “a positive encouragement to the police to engage in pretextual activity—making stops whose sole legal justification is a traffic regulation in order to seek out drugs when grounds are lacking to detain for a narcotics investigation.” Wayne R. LaFave, The “Routine Traffic Stop” From Start to Finish: Too Much “Routine,” Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843, 1869 (2004). And “in alleged pretextual stop cases, from 1993 to 1996, 80 percent of those stopped were minority drivers.” David Cole, No Equal Justice: Race and Class in the American Criminal Justice System 40 (1999) [Equal Justice]. Analogous to the “pretext stop” cases is the increasingly common usage of bus and train sweeps to discover drug carriers and dealers. Such sweeps are not based on either probable cause or reasonable suspicion, but are based on the legal recognition that not all police/citizen encounters are Fourth Amendment detentions--leading police to justify the sweeps based on the mere awareness that drugs are often carried on buses and trains. The major tactical device used in such sweeps are officer requests to search luggage, which courts have accepted based on “consent” so long as police don’t engage in overtly coercive behavior or speech. Once again these searches are often based on the practice of basically assuming that young members of racial minorities are more likely than others to be carrying drugs. Cole, Equal Justice 19. I have elsewhere in this blog reviewed a book characterizing the relationship between the criminal justice system and young African Americans as “the New Jim Crow.” (See Some Reflections on –and a Review of a Book on—The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), posed on June 23, 2011.) An important contributor to this unfortunate tendency for the system to marginalize young African Americans is the Supreme Court’s decision in Terry v. Ohio.