The Right People: Using Statistical Inference as Evidence of Discriminatory Intent

• In Event: The Right People: The Purposive Policing and Correctional Control of People of Color

Abstract

In Whren, the Supreme Court held that law enforcement actions are reasonable where there is probable cause that a crime – even if “minor” – occurred. Taken with Terry v. Ohio, officers enjoy broad enforcement discretion, circumscribed only by the Fourteenth Amendment’s Equal Protection Clause. Statistical analysis of law enforcement activity, the stop-and-frisk tactic and so-called “Broken Windows” policing, reveals substantial racial disparities in the utilization of enforcement techniques. In McCleskey v. Kemp, the Court held that statistical tests showing a significant relationship between race and enforcement decisions are not enough to bring an Equal Protection claim. Instead, either a “stark pattern” of discriminatory enforcement must be shown or evidence must prove “purposeful discrimination” having an impact in the defendant’s specific case. Because these cases, nearly a decade apart, seemingly uphold conflicting standards of evidence, we suggest the McCleskey standard be revisited. To construct a standard that allows statistical evidence as proof of discriminatory intent in racial profiling claims, we examine statistical methodologies used or sustained by other courts and test these standards in an analysis of 2006 stop-and-frisk data from the New York City Police Department. We propose an alternate standard for using general statistics in Equal Protection cases.

Authors

• Yunho Yeom, City Universtiy of New York, Graduate Center

• Kwan-Lamar Blount-Hill, John Jay College / Graduate Center, CUNY