Why There Can't Be a "Race-Neutral" Stop-and-Frisk

August 18, 2013 | Revolution Newspaper | revcom.us


Judge Shira Scheindlin's decision on stop-and-frisk (see Carl Dix's statement "Stop-and-Frisk Is Immoral and Illegitimate—Don’t Mend It. End It!") has the virtue of making it very clear and undeniable that the stop-and-frisk policy in New York City has been grossly racist and unconstitutional. But the judge also makes clear that she is not calling for an end to stop-and-frisk. Instead, she wants a "race-neutral" enforcement of the practice. She says that she wants stop-and-frisk to conform to the Fourth Amendment of the U.S. Constitution (which requires that the authorities have "probable cause" to suspect someone of a crime before they arrest him or her) and the 14th Amendment (which forbids discrimination on the basis of race).

Is such a thing possible? That is, can there be stop-and-frisk in America today that protects people's fundamental rights and, in particular, does not end up once again targeting Black, Latino and other oppressed peoples?

First of all, let's look at the legal history underlying WHY Judge Scheindlin may have felt constrained to maintain stop-and-frisk. For nearly two centuries in the U.S., there had to be "probable cause" that the individual had committed a crime. This was written into the Fourth Amendment of the U.S. Constitution. In 1968, however, in the case Terry v. Ohio, the Supreme Court modified this standard for a police stop to one of "reasonable suspicion." This meant that the highest court in the land had essentially changed the Constitution to allow the police to detain and search people based on a much lower standard. Note well that this occurred in 1968—at a time when Black people in particular were rising up against this system in rebellion and where this spirit had spread to many other sections of people and "revolution was in the air." This was a time when the capitalist ruling class, through its courts and legislatures, radically strengthened the hand of the repressive apparatus (that is, the police, prisons, etc.) and further unleashed the sharpest edge of that strengthened apparatus on Black and other minority people in particular. In other words, even if Scheindlin had personally wanted to end stop-and-frisk, she would have been going against established Supreme Court precedent. This certainly could have been done and it would actually have been good to do so, given how unjust this precedent is and how blatantly it curtails and cuts off fundamental rights—but it would have meant that it would be even more likely that her decision would be overturned at a higher level.

To be clear: the U.S. Constitution—which itself was set up as a framework for the expansion of capitalism and, originally, slavery—is hardly the highest vision of either individual or collective freedom to which anyone should aspire. And, in fact, the Constitution for the New Socialist Republic in North America (Draft Proposal) lays out a qualitatively more expansive and greater vision of rights—both the rights of the masses to rule and transform society and the rights of individuals to be protected in that process—in line with the radically different and radically more emancipating vision of freedom at the foundation of communism. But even the extremely limited version of freedom put forth in the U.S. Constitution cannot be consistently adhered to by the rulers of modern-day U.S. society (as shown in other arenas as well, such as the NSA scandal)—and this is especially so when it comes to the most oppressed in society. (See the series "Two Constitutions, Two Different Systems, Two Different Futures for African-American People".)

The lone dissenting Supreme Court justice to this decision warned at the time that this would be a slippery slope, and indeed it has been. Over time, this definition of "reasonable suspicion" became ever more elastic and became the legal ground for so-called "pro-active policing" (which Scheindlin also takes care to uphold in her decision). Rather than investigating and arresting people for crimes that have actually been committed, now police need only say that they "suspect" that "crimes are afoot"; and rather than have a "probable cause" to arrest someone, now they must only have a "reasonable suspicion" that someone is involved in this crime that is thought to be "afoot."

Can this be "race-neutral"? Let's take a current example to see why it cannot. Right now, there is a major move to require anyone who wants to register to vote to have a state-issued photo ID. These measures do not mention race and so they seem, on the surface, to be "race-neutral." But they are not—these new laws overwhelmingly will mean that the Black and Latino voters will either be dropped from the voter rolls or prevented from registering because their conditions of life tend to make it much more difficult to obtain such identification. Why? Because people of these oppressed nationalities are much less likely to own cars and/or have driver's licenses, they are much more likely to be unable to pay the fees often involved in getting state-issued ID, they are more likely to live further away from the offices doing this, more likely to be disabled and home-bound or caring for dependents and unable to take the time, etc. In other words, there are factors of oppression and inequality structured deep within the fabric of this society which guarantee that even the equal application of the law in the abstract will have very unequal and oppressive consequences in the concrete.

When you get to the system of the police, courts and prisons—the openly repressive arm of the state—this structural racism becomes all the more acute. It is indeed a fact that there is more crime in the ghettos and barrios—in large part because a) for several generations now other opportunities have been even more sharply closed off to the youth in these areas and crime has become, in the words of one capitalist theorist, "a rational choice" for Black and brown youth; and b) for generations before that and going on to the current day, the police channel and largely confine drug dealing, street prostitution, auto theft rings, etc. to such areas and are themselves deeply involved in all this. And this all plays out in the ideas that are pushed and promoted, to the point where an ex-prisoner at a recent forum in California recalled that when he was growing up, all the kids in his barrio wanted to end up at Pelican Bay prison because that was where all the heavy gangsters went—in other words, given that the avenues to "success" were closed off in his neighborhood, this was the most that many young people thought they could aspire to. Today this is linked to what Michelle Alexander called the "New Jim Crow" of mass incarceration—which, as Carl Dix pointed out in his statement, is a systemic response from the powers-that-be to a situation where millions and tens of millions of Black and Latino youth were no longer able to be profitably exploited and now had to be controlled in other ways.

So, no, stop-and-frisk (and the "pro-active" policing it is part of) cannot be race-neutral; nor can it, for that matter, adhere to the strictures of the Fourth Amendment (which Scheindlin's decision also calls for) because those strictures have already been tossed out for a whole section of people by the Supreme Court in Terry v Ohio. Scheindlin's decision in the real world—assuming that it is not overturned—will, even in its best interpretation, only mean that the police will have to take greater care to mask the overtly racist way that they carry out their repression. (The reasons they might feel compelled to do so are also spoken to in Carl Dix's statement—in short, the blatantly oppressive practices may harm their claims to legitimacy—that is, the right to rule—in the eyes of growing numbers of people, here and around the world.)

If the last 50 years show anything, it is that you cannot reform white supremacy out of the fabric of this capitalist-imperialist system; it is too integral to it. The underlying contradiction between the masses of Black and other oppressed nationality people, on the one hand, and the system of capitalism on the other—the ways in which the masses of Black, Latino, Native American and other oppressed peoples are "inserted into" (or hammered into) the economic, legal, cultural and political structures of this society—have become even deeper and more profound. These structures cannot be reformed, they must be uprooted—and such uprooting requires a revolution of the most profound sort—a communist revolution. And, again, to see how and why this is so, and how the world could be transformed into an emancipatory one, get into the Constitution for the New Socialist Republic in North America.


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