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Balancing the interests

We talked about the exclusionary rule yesterday, and about its assumption that the only way of deterring 4th Amendment abuses by police is by excluding evidence they've wrongfully seized. There are a number of problems with that assumption, one of the main ones being that it depends upon the police having a reasonably clear idea of when their conduct crosses the line. In fact, that's one of the chief criticisms of the rule: search and seizure law has become so confusing that evidence is being suppressed not because a cop violated a clearly-announced precept, but because a bunch of people in suits spent a couple hours second-guessing his decision three months later and decided that he was wrong.

There's another situation, though, where the exclusionary rule is of limited value: where the police don't care whether the evidence gets suppressed.

Back in 1990, the crime problem was bad in this country, and most experts were predicting it would get worse. The exact opposite happened: over the past two decades, crime in this country has declined about 40%, to levels last seen in the early 1960′s. All sorts of reasons are advanced for that happening: the end of the crack cocaine binge in the 80′s, the aging of the population, increased incarceration. Some have even argued that the legalization of abortion in the early 1970′s played a role in reducing crime in the 1990′s.

Even given the general decline in crime, the decline in New York City has been nothing short of astounding. It's about a third of what it was at its peak in 1990. There were 2,605 homicides in the city that year; last year, there were a tad over 500. Again, various reasons have been cited for this. The "broken windows" theory of criminology was first employed there, and police began vigorously enforcing laws against seemingly less consequential crimes, such as prostitution and vandalism, believing that would restore order to the communities and reduce the amount of more serious crime. Concentration of resources on high-crime areas, using sophisticated technology and computer mapping, also played a role.

But so did a desire to keep drugs and guns -- especially the latter -- of the streets. New York City has one of the most restrictive gun control laws in the country. That's not to say that those laws are a panacea: Chicago and Washington, D.C., also have laws which virtually prohibit the possession of guns in the city (or at least did until the Supreme Court's decisions in Heller and McDonald ), but it's not doing them nearly as much good: D.C.'s homicide rate is about four times what it is in the Big Apple, and Chicago, with one-third the population of New York City, had 250 murders in the first six months of this year, compared to New York's 193.

So why the difference? One of them is New York City's enforcement policy, which essentially treats Terry v. Ohio as a green light for police to stop anyone who looks remotely suspicious, and pat them down for weapons. The city has a population of just over 8 million people. Last year, the police stopped 700,000 for questioning and frisks.

Suspicion, like beauty, is often in the eye of the beholder, and for cops, suspicion often takes the form of young blacks or Hispanics. That's the situation in New York; although those two groups comprise only 35% of the population, they're 85% of the people stopped by the police. As just about anything in this country does any more, that's resulted in litigation. That's one of the reasons we know that 85% of the stops have been of blacks and Hispanics; as part of a consent decree issued several years ago in a lawsuit brought by a civil rights group, the police were required to keep track of the details of every stop they make, including the person's race. Three months ago, to the surprise of no one, a Federal judge ruled that the records showed that many of the stops didn't meet constitutional standards for searches. As you'd guess, the evidence found in many of those searches is thrown out. When evidence is found; only one stop in sixteen results in an arrest.

But still the police do it. Why? Because if you know that the police are stopping people even when they don't need a reason, you're much less likely to decide to carry a gun with you. The ultimate goal of the police isn't to arrest and prosecute people for carrying guns, it's to get people to stop carrying guns. When getting a conviction becomes a secondary concern, the exclusionary rule doesn't have much force.

Other cities have sat up and taken notice, and many, like Philadelphia, have instituted a similar policy. There's a downside to aggressive policing, though: it breeds resentment. Those 700,000 stops out of a population of 8.2 million doesn't mean that 9% of the population was stopped; a lot of them were stopped more than once. Tyquon Brehon did a little documentary on New York's law; he claims he was stopped more than sixty times before he reached 18.

Philadelphia decided that it didn't like that, so, as this article notes, they instituted a number of reforms a year ago to make the procedure less abusive: they "set up an electronic database to track the legality of stops, adopted new training protocols, and accepted oversight by an independent monitor."

After Philadelphia instituted their policy in 2008, homicides declined by 22%. So far this year, under the kinder, gentler policy, it's a different story: "As of late Tuesday, 189 people had been killed in the city this year, compared with 169 at the same time in 2011."

Make of that what you will. Correlation does not prove causation. But liberty and order are in constant tension. Don't ever think that coming down on one side or the other doesn't have consequences.

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