Terry's Original Sin

• In Event: Race, Law and the New Policing

Abstract

50 years ago in Terry v. Ohio, the Supreme Court moved from a “probable cause” to a “reasonable suspicion” standard for conducting investigative stops. The standards do not tell a police officer doing modern police work either what kind of indicia of, or how much, suspicion is enough to satisfy constitutional standards. This paper asks whether Terry’s move away from probable cause was original sin – whether the dilution and expansion of standards for an investigative compromised or advanced the very law enforcement interests that animated the Terry opinion. Data on crimes and stops and from 2004-14 from the Floyd litigation in New York address these questions. The rationale for suspicion in each police-citizen encounter is parsed into probable cause versus other, more subjective, bases of suspicion. We find significant reductions in crime in neighborhoods as the number of probable cause stops increase, and the opposite holds true. Perhaps law enforcement interests are better served by a recalibration of Terry standards to move them closer them to Mapp’s more exacting probable cause standard, a standard that better lends itself to institutional, judicial and political regulation. Secondary benefits for legitimacy and procedural justice may well follow. Penance for Terry’s original sin is within reach.

Author

• Jeffrey Fagan, Columbia University