In his August 20, 2013, Washington Post commentary Eugene Robinson relied upon various statistics in support of United States District Judge Shira Sheindlin’s holding that New York City’s stop and frisk policy was unconstitutional. Robinson’s statistical analysis is typical of those who applaud the judge’s decision. Without opining about the correctness of Judge Sheindlin’s ruling, it is clear that the statistics are being misused by Mr. Robinson and others.
Robinson and others point out that, although Blacks and Hispanics comprise 50% of New York City’s population, Blacks and Hispanics were the subject of 87% of the stops. The problem with this comparison is obvious. Blacks and Hispanics commit a higher proportion of crime in New York City. Therefore, a fortiari, logic would dictate that they would be stopped in a higher proportion than their numbers in the population would suggest.
Next, Robinson quotes figures from the American Civil Liberties Union showing that, of those frisked following their detention, 4% of Whites were found to have weapons, while only 2% of Blacks and Hispanics were armed. On the surface, this might suggest that, on the whole, a higher level of suspicion was required before Whites were detained. However, these numbers, by themselves are insufficient. For the numbers to have meaning, it is imperative to know what kinds of weapons were found. An AK-47 and a switchblade knife are both weapons, indeed, any carpenter’s or gardener’s tool can be used as a weapon, but there is a world of difference between these various kinds of weapons. Since one of the purposes of NYPD’s stop and frisk operation was to rid the city of illegal firearms, leaving unaffected claw hammers, pruning shears and the like, it would be useful to know what percentages of Blacks, Whites, and Hispanics possessed illegal firearms when they were frisked. Generically referring to the items as weapons does not tell the entire story.
Robinson then follows with the truism that Blacks and Hispanics who come in contact with the criminal justice system are more likely to be arrested, charged, convicted, and serve long prison sentences than their White counterparts. This, again, begs the issue. Blacks and Hispanics, Blacks more so than Hispanics, commit proportionately more crime than their White counterparts. If you commit more crime, you get arrested, charged and convicted more frequently. If you get convicted more frequently, you receive longer prison sentences. The longer prison sentences are merely a reflection of recidivism.
The final statistic misused by Robinson is that, although Whites and Blacks use marijuana is roughly equal percentages, Blacks were the subject of 61% of marijuana stops whereas Whites were the subject of only 9% of the stops for the crazy weed. Presumably, the remaining 30% were Hispanics, the disparity between Hispanics and Whites and between Hispanics and Blacks goes unexplained, probably because it undercuts Robinson’s argument. This statistic overlooks one very basic reality about marijuana use. Whites purchase and use marijuana within the confines of their homes, not on the street where the police are present.
Robinson and others also fail to realize that Blacks and Hispanics live, to a higher degree than Whites, in high crime areas. Courts have long held that the character of the neighborhood is a relevant factor in determining whether a stop is justified. For example, if the northwest corner of Park Place and Boardwalk is a known open air drug market, a police officer witnessing one individual handing a packet of brownish weed to another in return for a sum of currency, would be more likely to suspect a marijuana transaction than if the transaction occurred in a suburban tobacco store.
Finally, in the seminal case of Terry v. Ohio, the Supreme Court sanctioned stops whenever the police have “reasonable suspicion” to believe that criminal activity is afoot. In the same case, the Supremes permitted police to conduct a frisk of a detained subject whenever there is ”reasonable grounds” to believe the detainee is armed and dangerous. With this in mind, the relevant comparison should be what percentage of stops of African-Americans fell below this standard as compared with the percentage of stops of Whites and Hispanics conducted without “reasonable suspicion”. If there is a disparity, there is racial profiling afoot. Absent this analysis, the statistics prove nothing.