The Sociology of Big Data Policing

Sarah Brayne, Predict and Surveil: Data, Discretion, and the Future of Policing (2021).

For those of us law professors who write about policing, sociologists have been a real boon.  From the pathbreaking work of scholars like Jerome Skolnick and Michael Brown to the more recent research of Monica Bell and Issa Kohler-Hausmann, these trained observers and interlocutors of human and institutional behavior, who usually obtain much of their knowledge by embedding themselves in the criminal system, have provided law professors with extremely valuable insights about how things actually work.  One of the newer sociologists to join this group is Sarah Brayne, an Associate Professor of Sociology at the University of Texas.

In her book Predict and Surveil, Professor Brayne paints a detailed portrait of how the Los Angeles Police Department (LAPD) uses big data and, in doing so, gives us a glimpse of what policing might look like in the future. The third-largest police department in the country, the LAPD has been at the forefront of the move toward predictive policing, the use of fusion centers, programs that compile detailed data about police-citizen interactions, and reliance on private companies to help make sense of all the information collected by police and other agencies. Over the course of five years, Professor Brayne’s research into these practices involved ride-a-longs in patrol cars and helicopters, dialogues with all tiers of the LAPD’s hierarchy, interviews with people in federal agencies and technology firms, deep dives into LAPD archives, and trawling the data the department uses for its investigations. (Pp. 7-8.) Continue reading "The Sociology of Big Data Policing"

The Costs of Privacy

Most scholarship about the impact of technology on policing has been of the sky-is-falling variety. The typical author recites a litany of technological advances, points out how those advances have made policing much more intrusive and pervasive, and then calls for a warrant requirement, some version of “privacy by design,” or perhaps even a prohibition on whatever surveillance technique is at issue. Maintenance of privacy is the main, if the not the dominant, goal.

In Smart Surveillance, Ric Simmons takes a completely different view. Adopting a cost-benefit analysis, he embraces technology that can make policing more efficient. The common scholarly refrain is that maximum Fourth Amendment protection must be imposed whenever technology gives the police a leg up—whenever, as the Supreme Court’s opinion in Carpenter v. United States put it when explaining why a warrant is required to obtain cell site tracking information, new technology makes enforcement efforts “remarkably easy, cheap, and efficient compared to traditional investigative tools.” To Professor Simmons, this stance makes no sense. Such thinking, he says, “turns the cost-benefit analysis on its head by seeking to deter some of the most productive searches available to law enforcement.” (P. 121.) Continue reading "The Costs of Privacy"

Gauging Genetic Privacy

James W. Hazel & Christopher Slobogin, “World of Difference”? Law Enforcement, Genetic Data, and the Fourth Amendment, 70 Duke L.J. 705 (2021).

Human beings leave trails of genetic data wherever we go. We unavoidably leave genetic traces on the doorknobs we touch, the items we handle, the bottles and cups we drink from, and the detritus we throw away. We also leave a trail of genetic data with the physicians we visit, who may order genetic analysis to help treat a cancer or to assist a couple in assessing their pre-conception genetic risks. Our genetic data, often but not always shorn of obvious identifiers, may be repurposed for research use. If we seek to learn about our ancestry, we may send a DNA sample to a consumer genetics service, like 23andMe, or share the resulting data on a cross-service platform like GEDmatch. If we are arrested or convicted of a crime, we may be compelled to give a DNA sample for perpetual inclusion in an official law-enforcement database. Law enforcement might use each of these trails of genetic data to learn about or identify us—or our genetic relatives.

Should law enforcement be permitted to make use of each and every one of these forms of genetic data, consistent with the Fourth Amendment of the U.S. Constitution? That is the question that motivates James W. Hazel and Christopher Slobogin’s recent article, “World of Difference”? Law Enforcement, Genetic Data, and the Fourth Amendment. Hazel and Slobogin take an empirical approach to the Fourth Amendment inquiry, reporting results of a survey of more than 1500 respondents and probing which types of data access respondents deemed “intrusive” or treading upon an “expectation of privacy.” Their findings indicate that the public often perceives police access to genetic data sources as highly intrusive, even where traditional Fourth Amendment doctrine might not. As Hazel and Slobogin put it, “our subjects appeared to focus on the location of the information, not its provenance or content.” That is, intrusiveness turns more on who holds the data, rather than on how it was first collected or analyzed. Hazel and Slobogin conclude that their findings “support an argument in favor of judicial authorization both when police access nongovernmental genetic databases and when police collect DNA from individuals who have not yet been arrested.” Continue reading "Gauging Genetic Privacy"

Reconciling Risk and Equality

Deborah Hellman, Sex, Causation and Algorithms: Equal Protection in the Age of Machine Learning, 98 Wash. L. Rev. __ (forthcoming, 2020), available at SSRN.

States have increasingly resorted to statistically-derived risk algorithms to determine when diversion from prison should occur, whether sentences should be enhanced, and the level of security and treatment a prisoner requires. The federal government has jumped on the bandwagon in a big way with the First Step Act,1 which mandated that a risk assessment instrument be developed to determine which prisoners can be released early on parole. Policymakers are turning to these algorithms because they are thought to be more accurate and less biased than judges and correctional officials, making them useful tools for reducing prison populations through identification of low risk individuals.

These assumptions about the benefits of risk assessment tools are all contested. But critics also argue that, even if these instruments improve overall accuracy, they are constitutionally suspect. While no instrument explicitly uses race as a “risk factor” (which in any event is probably barred by the Supreme Court’s decision in Buck v. Davis2), several do incorporate sex (with maleness increasing the risk score) and many rely on factors that are highly correlated with race or socio-economic status, which is said to violate equal protection principles.3 Continue reading "Reconciling Risk and Equality"

The Next Steps in Criminal Justice Reform

A number of books and articles have taken aim at America’s mass incarceration debacle. Smart Decarceration, a multi-author edited volume, assumes that the tide has turned. As the editors point out in the first chapter, several states have begun depopulating their prisons, eliminating mandatory minima, and creating more alternatives to prison, a movement sometimes dubbed “Smart Sentencing.” Smart Decarceration is about the sequel. Authored by academics with degrees in criminology, sociology, history, public health and social work, as well as by leaders in community organization, practicing lawyers, pastors, and formerly incarcerated individuals, this book is devoted to picturing what optimal decarceration should look like.

The diverse perspectives provided in Smart Decarceration ensure a nuanced, multi-disciplinary treatment of that issue. But there is also an overriding agenda, perhaps best summarized by Kathryn Bocanegra in her chapter, when she states that “exclusively focusing on reducing prison populations without considering the sustainability of such an effort is potentially dangerous.” (P. 115.) Continue reading "The Next Steps in Criminal Justice Reform"

Did Black Baptists Join the War on Drugs?

In Locking Up Our Own: Crime and Punishment in Black America, James Forman, Jr. shows how African American voters in Washington DC lobbied for longer prison sentences and more police officers. Forman’s argument complicates the story told by Michelle Alexander in The New Jim Crow: Mass Incarceration in the Age of Colorblindnesswhich is that white conservatives increased prison sentences and police in order to impose a new system of racial control on black Americans, all under the rubric of a War on Drugs. Underlying Alexander’s argument is the claim that African Americans were not in fact the primary consumers of drugs in the United States; whites were, though they suffered comparatively lower rates of incarceration and arrest.

Forman concedes Alexander’s point about white drug use, but argues that African American leaders played a significant role in the rise of mass incarceration. As he tells it, problems with narcotics coincided with a proliferation of firearms. Guns became the weapon of choice for drug distributors, who turned to crime out of economic necessity and used extreme violence to eliminate competitors, increase market share, and create an illicit, street level, drug market. This market driven violence, maintains Forman, became so intolerable that African American majorities voted for higher prison sentences and more police, effectively joining white conservatives in what Alexander has termed “mass incarceration.” Rather than a coordinated, right wing plot, however, Forman suggests that the story in Washington was a tale of incremental choices by desperate officials who implemented radical policies that had unanticipated effects. Continue reading "Did Black Baptists Join the War on Drugs?"

How and Why is the American Punishment System “Exceptional”?

Anyone interested in American criminal justice has to wonder why we have so many more people in prison—in absolute as well as relative terms—than the western half of the European continent, the part of the world most readily comparable to us. This book, consisting of eleven chapters by eminent criminal law scholars, criminologists and political scientists, provides both a detailed look at how U.S. punishment is different and an insightful analysis of why that might be so. While many chapters in the book describe previously declared positions of the authors, there is also much that is new in the book, particularly with respect to non-prison sanctions; whether veterans of the field or newcomers to it, readers should find this collection of the area’s leading scholars extremely useful. As the primary Reporter for the recently complete revisions to the Model Penal Code’s sentencing provisions and director of the Robina Institute of Criminal Law and Criminal Justice at Minnesota Law School, editor Kevin Reitz is ideally situated to bring this impressive compendium of material together.

In the opening chapter, Reitz lays out the reason for the book, describing the well-known American mass punishment phenomenon in ways that present the problem in a new light. For instance, he notes that the U.S. would have to release 1.8 million inmates simply to achieve the same imprisonment rate as England and Wales, western Europe’s leader in per capita imprisonment. Whether the focus is long-term confinement, the use of probation and parole, or the imposition of collateral consequences, Reitz notes, we “beat” all western European countries hands-down. Continue reading "How and Why is the American Punishment System “Exceptional”?"

The Causes of Punitiveness

Locking Up Our Own: Crime and Punishment in Black America is a look at the recent history of African-American attitudes toward crime. In many ways the book is a codicil to Michelle Alexander’s well-known work, The New Jim Crow: Mass Incarceration in the Age of the Age of Colorblindness, and to the writing of people like Glenn Loury and Ian Haney Lopez.  Alexander, Loury and Lopez argue that today’s hyper-incarceration and long sentences result from a white-dominated legal system bent on removing blacks from the streets, using the “war on drugs” as a cover, and imply that things would be different if blacks had been in control of the system. Locking Up Our Own contests those views.

Making Forman’s case is difficult, because largely white legislatures were and still are in charge of criminal justice in most jurisdictions. But Forman’s focus is on Washington, D.C., where, from the mid-1970s through the end of the twentieth century (the period covered by the first five chapters in his book) African-Americans were in power. Not only were that city’s chiefs of police black (as was the case in many major cities), but the municipal council—the body effectively in charge of crime definition and sentencing in D.C., given Congress’ acquiescence in matters of criminal justice—was usually majority African-American as well. Yet the criminal justice policies in that city were at least as punitive as those in other jurisdictions. Continue reading "The Causes of Punitiveness"

The Definition of Suspicion in an Era of Modern Policing

Jane Bambauer, Hassle, 113 Mich. L. Rev. 461 (2015).

Every Fourth Amendment scholar is familiar with the concept of “individualized suspicion.” The classic example comes from Terry v. Ohio, where Officer McFadden watched two men walk up and down in front of a storefront numerous times, consult with another individual, and then return to checking out the storefront. The Supreme Court held that, while McFadden did not have probable cause for arrest, he had a “particularized” belief that the three men were up to no good and thus could stop them and, when they gave unsatisfactory answers about their activity, frisk them as well.

That type of case is often contrasted with what are sometimes called “suspicionless” searches and seizures. The classic example of that type of police action is the license or sobriety checkpoint that stops individuals who drive up to it. The Court has indicated that such seizures are permissible despite the absence of suspicion that any particular driver seized has an expired license or is drunk, as long as the police stop everyone who comes to the checkpoint or rely on neutral criteria in deciding whom to stop (such as whether the car occupies a pre-selected position in line). Continue reading "The Definition of Suspicion in an Era of Modern Policing"

Are Prosecutors the Constitution’s Gatekeepers?

Russell M. Gold, Beyond the Judicial Fourth Amendment: The Prosecutor’s Role, 47 UC Davis L. Rev. 1591 (2014).

This is a bad time for the police officers. Last year, a series of cases in New York federal court exposed the NYPD’s stop and frisk policy as unlawful and racially biased. Following the shooting in Ferguson and the death of Eric Garner in Staten Island, thousands took to the streets to protest. The prosecutors in these two cases were widely criticized as well for failing to obtain indictments against the officers. Many wondered whether the prosecutors were complicit in a system fraught with inequality and prejudice. Secretary of State, Hilary Clinton, responded that the criminal justice system is “out of balance.” In a new article, Russell Gold argues that we can help restore the reputation of the criminal justice system by implementing what he calls, “administrative suppression.”

Administrative suppression would require prosecutors to decline to use illegally seized evidence even if courts would rule the evidence admissible. Prosecutors, in other words, have a constitutional and ethical obligation not to use evidence seized in violation of an individual’s Fourth Amendment rights. In the past few decades, the Court has radically restricted the scope of the exclusionary rule, and as a result, illegally seized evidence is often admissible in criminal cases. Gold argues that these decisions only pertain to the judicial branch. Rather than exploit the increasingly weak remedy to obtain more convictions, prosecutors, in their role as arbiters of justice and agents of the executive branch, should respond by refusing to use the tainted evidence in their cases. Continue reading "Are Prosecutors the Constitution’s Gatekeepers?"

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