Almost 20 years ago, in Illinois v. Wardlow, the Supreme Court endorsed a police stop and frisk.
The Court held that if the police had relied solely on the fact that Sam Wardlow fled the corner when the cops arrived on the scene the search would have been invalid, and the gun the cops seized from Wardlow would have been inadmissible as evidence.
But the police could point to the fact that their search of Wardlow occurred in a “high-crime area.”
That was good enough for the Supreme Court; and, so, it has been good enough for lower courts ever since. “High Crime Area” has become a staple in recipes for police and prosecutors defending against suppression motions.
The mental processes that the Wardlow opinion described are mechanical and linear. he police, starting with nothing, pile predictive facts on a balance until the scale tilts far enough to satisfy the Fourth Amendment.
Flight does not equal reasonable cause to search. But add one more token to the pile . . .
Then, the sum of flight + high-crime area does equal reason enough to stop and frisk a citizen for weapons.
In a striking new article Professors Ben Grunwald (Duke University School of Law) and Jeffrey Fagan (Columbia University) expertly mine the rich data supplied by New York Police Department (NYPD) officers’ post-stop reports, and challenge—on its own terms—the Court’s assertion that a location in a high crime area adds predictive justification to a cop’s decision to stop and frisk.
The researchers’ findings obliterate the unspoken empirical bases for the Court’s Wardlow rationale.
It turns out that the cops call almost every block in the city “a high-crime area,” and their assessments are nearly uncorrelated with actual crime data. The suspect’s race predicts whether the cop calls the place a “high-crime area” nearly as well as the actual crime statistics.
In fact, the racial demographic of the area and the identity of the particular cop are better predictors of whether a cop relies on a “high-crime area” justification than is the actual crime rate, and stops are less likely to turn up contraband when the cops rely on a “high- crime area” inference as one of their predictive factors.
The phrase “High-Crime Area” operates as a wild card in the police hand, deployed whenever they want to search but can’t explain much about why.
The Safety Lens
It’s time to banish “High-Crime Area” from our lexicon: from legal arguments, but from criminal justice journalism too. The term isn’t just mistaken; it’s a toxic illusion. As Grunwald and Fagan show, we now have the data with which to dispel it.
What if we looked at these street stops through the lens used by Safety commentators in aviation, medicine, and other dangerous fields?
I think that new lens would show all of us—criminal justice journalists included—that we can, and we should, live without the concept “High-Crime Area.”
To begin with, we would notice that from the Safety perspective the Supreme Court’s Wardlow approach isn’t talking in any serious way about everyone’s safety.
We don’t tally among the harms we want to avoid the iatrogenic (“from the treatment”) injuries such as the humiliations of innocent pedestrians inflicted during stops and frisks. A street stop’s harm to the individual pedestrian—not to a generic localized human—ought to be weighed in the balance before deciding to act if safety is our goal.
Besides, the Safety people would say that the whole image of cops mechanically weighing pre-determined factors, calculating a total, and only then deciding what to do, is a mirage.
Cops anticipating a stop and frisk aren’t methodically stacking counters one after another as the justices seem to think; a street cop’s situation is dynamic, fluid, ambiguous.
The cops are engaged, under time pressure and production pressure, in what Safety people call “sense-making”: trying to sort out swirling clouds of overlapping and often conflicting influences.
This “sense-making” experience includes the estimate of the likelihood of an error (e.g, a fruitless search). That influence is the focus of the Wardlow Court, and of the Grunwald and Fagan research.
The Cost of an Error
But the cops are dealing with more than the probability of a “hit” or a “miss”; the street cops are inevitably considering the cost of an error if one does occur.
Stopping the mayor’s son mistakenly will impose a higher cost than stopping yet another 18 year-old African-American kid in a “High-Crime Area.” Making a stop in an area where you don’t have the Wardlow case’s “High-Crime Area” wild card location in your hand might cost you in terms of later court action.
From the cops’ vantage point “High-Crime Area” depresses the potential costs at two moments.
It dilutes any pre-stop concerns that harm will be done by a mistaken stop. (“Hey, they live in a High-Crime Area; they’re all pretty used to it.”)
And it can reduce the retrospective fear of having to pay a disciplinary or evidentiary price: everyone knows that the local courts will follow Wardlow.
So, we have all of the ingredients to set in motion what the Safety researchers call “practical drift.” According to Sidney Dekker, there is:
…A long and steady progression of small incremental steps that unwittingly take an organization toward its boundaries. Each step away from the original norm that meets with empirical success (and no obvious sacrifice of safety) is used as the next basis to depart just that little bit more . . .
Not surprisingly, during two decades since Wardlow, “High-Crime Area” has drifted toward “Constitutional Free Fire Zone.”
There are no policemen agonizing over whether to search or not in the local High- Crime Area; at the point of decision the reality has crept closer to “What the Hell, why not?”
Whatever the phrase “High-Crime Area” has done for describing the likelihood of a “hit” in making a stop, it has certainly depressed to near invisibility any cost that the error might trigger and any inhibitions that fear of that cost might foster.
The higher number of stops that this dynamic generates inevitably leads to a higher absolute number of guns and drugs recovered, and that absolute number contributes to the High-Crime Area calculations’ plausibility.
It amounts to a prophecy that may or may not be fulfilled in an individual encounter but can be self-fulfilling in the aggregate.
An Area of Crime
The influence of the phrase High-Crime Area spreads much further than these point-of-contact moments alone might suggest.
One of the maxims of the safety analysts is that to understand an event it isn’t enough to go “down and in” to find the broken component, human or technical: the “eureka part.” They would say that you also have to look “up and out” at the environment that shaped the choices at the sharp end.
The phrase “High-Crime Area” now constitutes an important element of that environment: the phrase itself has become a condition that the frontline people confront.
Look at the data—as Grunwald and Fagan among many others have—and you realize that there is really no such thing as a “High-Crime Area.”
I live in Boston, where the general white population wouldn’t hesitate to tell you that Roxbury is a “high-crime area.”
And if you look at the map you can see red hot spot “high-crime corners” and red “high-crime block segments” in Roxbury. You might see, although they are harder to visualize, spidery networks linking high-crime activity in Roxbury to, say, neighboring Dorchester.
But despite white America’s determined effort—brilliantly explained in books such as Richard Rothstein’s The Color of Law—to drive minority citizens into contained areas of poverty, the crime map of Roxbury is an archipelago of these hot spots, not a solid color field of red crime saturation.
Constructing a Reality
The most destructive feature of our promiscuous use of “High-Crime Area” is that it constructs a social reality.
“High-Crime Area” conjures, and then sustains, a vision of a There to contrast with our Here. It describes a zone. A zone has a frontier and a boundary. That boundary is defended by a thin blue line of police, and the precinct captain occupies the role of a Lawrence of Arabia, our expert on the local mind.
Ordinary white Americans never go to High-Crime Areas because they believe that they know exactly what they should expect to experience if they do go.
If the media want to bring the public news from There, they interview the specialists, and the news passes through the refracting membrane the fulltime experts in black mischief constitute.
This conception leaves us all subject the pervasive, distorting “rigidly binomial opposition of ‘ours’ and ‘theirs’ ” that Edward Said decried in reviewing commentary on the colonial Third World.
A dominant mental climate affects individual frontline decisions (“What’s the harm if I stop and frisk?”) but it is also felt in the policy debates among the higher-ups that influence those frontliners’ decisions and in the overall political discourse that in turn influences those policy debates.
Continuing to use High-Crime Area is an error, and it’s a very costly error.
As Andrew Ferguson points out in The Rise of Big Data Policing we are entering an era in which the intelligent development and deployment of “blue data” about actual crime locations can help free us from the warped message of the phrase High-Crime Area.
It is a scourge on our society; we ought to try.
We can try to free our minds too.
James M. Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He welcomes readers’ comments