Terry's original sin
As the 50th anniversary of the Terry opinion approaches, it is more than reasonable to ask whether Terry’s move away from probable cause was original sin – whether the dilution and expansion of standards for an investigative stop over time compromised or advanced the very law enforcement interests that animated the Terry opinion. Two criteria of (constitutional) focus are wrapped up in the “law enforcement interest” doctrine: catching offenders and seizing contraband (“hit” rates) and controlling crime (crime rates). Whether contemporary and expanded Terry standards can achieve or undermine these interests is the primary question for this paper.
Specifically, we ask whether certain types of sin pay. Sins where officers stop, temporarily detain, question and possibly frisk a person based on the persons’ vague or subjectively perceived actions (appearances, movements) may be less efficient in locating contraband or suppressing crime than stops based on actuarial characteristics (locations). Both may be less efficient that stops based on behavioral indicia of crime. In other words, this paper asks empirically whether stops based on indicia that approximate probable cause are more productive and advance law enforcement interests significantly more so than do stops based on the more subjective and vague standards that have become commonplace features of contemporary investigative stop programs.
About the Presenter
Jeffrey Fagan is a Professor of Law and Public Health at Columbia University, and Director of the Centre for Crime, Community and Law at Columbia Law School. His research and scholarship focuses on crime, law and social policy. His current and recent research examines capital punishment, racial profiling, social contagion of violence, legal socialization of adolescents, the social geography of domestic violence, the jurisprudence of adolescent crime, drug control policy, and perceived legitimacy of the criminal law. He is a member of the National Consortium on Violence Research and the Working Group on Legitimacy and the Criminal Law of the Russell Sage Foundation. He formerly was Vice Chair of the Committee on Law and Justice of the National Academy of Science, and served as the Committee’s Vice Chair for the last two years. From 1996-2006, he was a member of the MacArthur Foundation's Research Network on Adolescent Development and Juvenile Justice.