A Disparate Impact Standard for Police Stops and Searches

David Thacher, University of Michigan

ABSTRACT
Recent studies of police stops and searches have their roots in litigation and legal scholarship, and they bear the imprint of those origins in their underlying conception of equity as the absence of discriminatory treatment. That conception, prominent in 14th amendment jurisprudence, prohibits government from treating individuals differently because of their race. This paper proposes a more demanding, disparate impact conception of equity that finds support in other areas of law and philosophy. I argue that morally-identital individuals should not run diffferent risk of being stopped or searched depending on their race--even if officers never directly use race to make stop and search decisions. Thus the risk that an innocent person will be stopped or searched should be equal across racial groups, and the same should be true for a person guilty of any particular crime (as well as for those guilty of equally-serious crimes). This standard offers a novel way for empirical research to assess the equity implications of specific police practices, such as focusing surveillance on particular thoroughfares or using certain (nonracial) characteristics as part of a "profile" of suspicious persons. The paper reports progress on a research project designed to assess police practices in that way.

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Updated 05/20/2006