A new documentary on the New York City Police Department’s controversial stop-and-frisk program has prompted nearly 800,000 viewers on YouTube to gain an insiders perspective into cases of police misconduct and public discontent. The New York City Police Commissioner, Ray Kelly, and Mayor Michael Bloomberg have been proponents of the program since its inception nearly a decade ago and defend its use today. Bloomberg has been increasingly assertive of the program and New Yorkers have been subject to a six hundred percent increase in the number of stop-and-frisks since his first year in office (NYCLU, 2012). Implications of the policy reveal inequalities in its application as the stops have disproportionately affected visible minorities within the community. In fact, 87% of pedestrians stopped were either African American or Latin American (ibid). Despite the application of the Draconian law, around 87-89% of the total stops displayed no evidence of any illegal or dishonest behaviour; and about 49-55% of persons stopped were between the ages of fourteen and twenty-four. Officers, however, reportedly feel pressure from those who hold higher positions of authority within the department to achieve a certain quota; though New York State law that prohibits the use of quotas for arrests, summonses and stops (Law S2956A). Regardless, officers risk disciplinary action, such as working alone in known high-risk areas, if quotas do not meet or exceed the previous years number of people stopped, questioned, and frisked.
The Critical Legal Studies (CLS) approach highlights the conjunction of how ‘law’ and ‘society’ arose out of an anti-establishment ethos, and explores issues of social inequalities, social hierarchies, and how to create change in law from an altered system (Pavlich, p. 120). Applying a CLS approach to the stop-and-frisk program would explore the debate of how NYPD’s program invariably “reinforce(s) presumptions of ideologies that fuel existing hierarchies” by exposing inequalities resulting from the program (p. 121). Specifically, the method would examine how the legal institution of law and practices support a pervasive system of oppression. Without a doubt, visible minorities—notably the African American and Latino communities—face an unscrupulous over representation among the number of persons that are stopped and frisked in a given year. Critical Legal Studies arose in a period of civil unrest and civil rights movements. For that reason, proponents of CLS would be committed to reversing and removing the NYPD’s program that seems to serve wealthy, Caucasian Americans by placing resources on visible minorities in the street. In regards to race, Critical Race Theorists would suggest that the law and policy of the NYPD is responsible for reproducing unequal race relations (p. 130). Since Critical Race Theorists examine the legal racially constructed category, they would investigate how the program perpetuates the notion that certain negative attributes are associated with specific ethnic backgrounds. By looking at the results of the program, it is possible to mistakenly interpret that visible minorities commit a disproportionate amount of crime, despite the fact that most persons stopped are innocent. The Critical Legal Studies movement would further point out that the program reflects positions of inegalitarian relations and hierarchies by focusing predominantly on adolescents and young adults. Karl Marx and Friedrich Engels would highlight how the NYPD’s stop-and-frisk program consequentially creates alienation among visible minorities and youth as it impinges freedom to move about the city, as citizens may fear persecution from a lack of “egalitarian social connection” (Gabel and Harris, p. 371).
In relation to the notion of equality, a Feminist Jurisprudence approach aims to achieve a tolerant “social and political environment in which women and men of all ethnicities, class backgrounds, sexualities, and abilities are equally valued and empowered” (Pavlich, p. 125). When looking at the data from the NYCLU website, sex is one of the variables taken into account when officers create a report for a stop-and-frisk. Within the illustrated data sets, however, gender is not included in the analysis as the focus remains on race and age. Moreover, I was not able to gather information on how many men and women are stopped in a given year. The day-to-day application of the stop-and-frisk program is, for the most part, focused on young males that are visible minorities. It is interesting to note that statistics from the NYCLU amalgamates both females and males, with no distinction or particular focus on the female segment of the population that may be affected by this policy.
In terms of changing the law surrounding the controversial program, Smart (1989) makes a compelling argument that suggests, “law cannot be a vehicle for consequential social change—other struggles are more likely to achieve this” (p. 5). On the other hand, Matsuda (1989) explores how we are a “legalized culture” and if “law is where racism is, then law is where we must confront it” (Matsuda, p. 2341). Given the complexities of modern society, neither model is effective on its own as each holds unique strengths and weaknesses. A holistic approach to the problem is necessary in order to critically examine the complex phenomena. In any case, the NYPD’s stop-and-frisk program is an extraordinarily problematic policy as it gives law enforcement carte blanche to search and detain individuals under a broad definition of what constitutes “suspicious behaviour.” In summary, the program is an exemplar of how law governs behaviour within the context of rules. Law enforcement has discretion and therefore the ways they interpret, apply and implement the written law is subject to variance. The stop-and-frisk program is not blatantly racist or discriminatory, however its application is detrimental to specific demographics in the community.
Gabel, P. & Harris, P. (1983). “Building Power and Breaking Images: Critical Legal Theory and the Practice of Law.” New York University Review of Law and Social Change 11, 371.
Matsuda, M.J. (1989). “Public Response to Racist Speech: Considering the Victims Story”. Michigan State Law Review 87, p. 2341
New York Civil Liberties Union. (2012, May 9). New NYCLU Report Finds NYPD Stop-and-Frisk Practices Ineffective, Reveals Depth of Racial Disparities, http://www.nyclu.org/news/new-nyclu-report-finds-nypd-stop-and-frisk-practices-ineffective-reveals-depth-of-racial-dispar (accessed on November 3, 2012).
Pavlich, G. 2011. Law & Society, Refined. London: Oxford University Press.
Smart, C. (1989). “Feminism and the Power of Law”. Sociology of Law and Crime. London: Routledge.