The Inverse Relationship Between the Constitutionality and Effectiveness of New York City "Stop and Frisk"

New York City sits at the epicenter of an extraordinary criminal justice phenomenon. While employing aggressive policing tactics, such as "stop and frisk," on an unprecedented scale, the City dramatically reduced both violent crime and incarceration - with the connections between these developments (if any) hotly disputed. Further clouding the picture, in August 2013, a federal district court ruled the City's heavy reliance on "stop and frisk" unconstitutional. Popular and academic commentary generally highlights isolated pieces of this complex story, constructing an incomplete vision of the lessons to be drawn from the New York experience. This Article brings together all of the strands - falling crime, reduced incarceration, and aggressive policing - analyzing the hazy historical and empirical connections between them, and evaluating the legal implications of a crime-fighting policy that might "work" to reduce both crime and incarceration precisely because of the factors that render it unconstitutional.INTRODUCTIONTwo distinct narratives dominate the academic commentary on New York City's fight against crime. One narrative rails against the aggressive, degrading, and "outright racist" tactics of the New York City Police Department ("NYPD").1 In this narrative, New York City epitomizes everything that is wrong with criminal justice policy. Its police force exploits and, at times, violates permissive Fourth Amendment case law and places the burden of crime control squarely on the backs of poor, minority youths.2 The second narrative, by contrast, holds the city out as a "beacon of hope" for a national criminal justice system otherwise reliant on mass incarceration; it is the one major American jurisdiction that "reduced crime while also reducing the number of residents sent to prison."3 Empirical evidence supports both narratives. Over the last two decades, crime in New York City dropped precipitously. While the City's population grew, homicides (the most reliable crime statistic) cratered, falling from a record high of 2,245 in 1990 to a record low of 419 in 2012.4 A few cities like San Diego and Dallas experienced homicide drops almost as steep as the drop in New York City, but cities in California and Texas reduced crime while contributing to skyrocketing state prison populations.5 As crime fell in New York, the number of people the City sent to prison dropped too.6Just as there are strong numbers to support New York's crime-fighting prowess, there are powerful statistics to condemn the tactics the City employed. Over the past two decades, the NYPD engaged in a steadily escalating number of coercive encounters with its citizenry.7 This pattern crested in 2011 when the department recorded almost 700,000 "stops" as part of a citywide effort to stop and frisk suspicious persons, ostensibly to find guns and deter gun-carrying.8 Almost all of those stopped (90%) were minority males,9 and the vast majority of the stops (88%) uncovered no evidence of wrongdoing.10 Given these numbers, it is not surprising that, in August 2013, a federal judge ruled that the NYPD's use of mass stop-and-frisk ("NYC Stop and Frisk") tactics violated the Constitution.11The confluence of New York's singularly aggressive policing strategies, unparalleled crime reductions, and shrinking prison population will occupy social scientists for decades.12 Still, preliminary evidence suggests that the three phenomena - aggressive policing, crime reductions, and decreased incarceration - may be related.13 This Article explores that relationship, canvassing the existing historical and empirical evidence on the miracle and nightmare that is New York City's fight against crime and analyzing the resulting legal implications.The question of how to reduce violent crime without increasing incarceration may be the most pressing dilemma facing American policymakers; New York City's experience hints invitingly at an answer. At the same time, if that answer requires a form of policing exemplified by the City's programmatic embrace of "stop and frisk," it may only be a cruel illusion. …