Professor Lauryn Gouldin: Why Is There Over-Policing for Low-Level Offenses?
(The Hill | April 23, 2021) Even as the country breathes a small sigh of relief that Derek Chauvin will be held accountable for killing George Floyd, police violence continues to dominate national headlines. One fundamental question arises in many of these cases: why do we police low-level offenses in ways that too often lead to death, serious injury and lasting community trauma? All of us (should) value liberty and, of course, life over these minor harms.
Daunte Wright’s expired registration and dangling air fresheners are not worth the time, cost and risk of a traffic stop. Neither are allegedly missing license plates (Caron Nazario) or failing to signal a lane change (Sandra Bland). The same can be said for street stops for jaywalking during a winter storm (Rodney Reese) or selling untaxed cigarettes (Eric Garner) that ripen into arrests.
So what explains the routine over-enforcement of these nickel-and-dime offenses? One part of the answer can be found in two Supreme Court cases that will celebrate milestone anniversaries in the coming weeks. Together, Whren v. United States and Atwater v. City of Lago Vista permit police to use stops and custodial arrests for low-level offenses to get information about more serious crimes. Officers are likely empowered by Whren to act on their racial biases and incentivized by Atwater to make unnecessary arrests. Those decisions demand reconsideration if the court is going to play its constitutionally required role to protect fundamental liberty rights. Otherwise, the court will continue to seem irrelevant to urgent national conversations about how to protect Black and brown communities from the police.
For officers, pretext stops can be a means to another end: Officers who have enough suspicion for a minor crime can stop a person in the hope that they might unearth weapons, drugs or other evidence of more significant crime. This is highly problematic because officers frequently lack the suspicion that would be necessary under the Constitution to gather this information …