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Denying the influence of racism in deciding a “stop and frisk” case is like denying the existence of “wetness” in a lake because you don’t see “wetness” in any individual molecule of H2O.

Last month, the Massachusetts Supreme Judicial Court did just that.

Zahkuan Sweeting-Bailey was a passenger in the back seat of a car when it was stopped by the police in New Bedford, MA for an improper lane change.  A front-seat passenger jumped from the car, argued with the police, and took what was described as a “threatening” stance.

The police knew this passenger, and decided that his histrionics were designed to distract their attention because there was a firearm inside. They ordered all the passengers—all were Black and all were categorized as “gang-affiliated”—out of the car and frisked them.

Sweeting-Bailey had a gun in his waistband.  He was charged, and he challenged the frisk in court.

The state’s Supreme Judicial Court (SJC) upheld the search.  The outcome was decided by a single vote.

And in a very fundamental sense, the case’s resolution is captured in a single word in Justice Dalila Argaez Wendlant’s concurring opinion.  The decision to uphold the search, Wendlant wrote, “Neither solves systematic racism, nor contributes to it.”

This focus on “systematic” racism (that is, racism that is “methodical, with a fixed purpose”) blinds us to the fact that the existential problem our society faces isn’t racism systematically pursued.

The racism that haunts our culture is “systemic.”  It is an emergent property of the criminal system in operation, not an explicit, purpose-built component of the system.

The SJC’s decision not only “contributes” to systemic racism; it silently incorporates it, ratifies it, and—by ignoring it—helps to perpetuate it.

Rigging the Error Costs

We use “error cost”—the product of the likelihood of an error x the cost of the error should it occur—to strike a balance.

Sometimes we recognize that the odds in favor of  a mistake are low, but the price of the  mistake would be catastrophic. In those cases, we don’t act.

Sometimes, although the price for a slip will be low, an error is practically guaranteed.  We don’t do those things either.

The emergent systemic property we confront here is an automatic, silent, discounting of both elements of the “error cost” whenever the security of young Black men is at issue.

There is something deeper and more intractable reflected in Sweeting-Bailey than the simple bigotry captured by an objection such as  “They wouldn’t do this to Karen-From-Brookline or her backseat passenger.”

Could This Be A Mistake?

To the cops (and, apparently, the Supreme Judicial Court) the likelihood of any error in frisking Sweeting-Bailey was minimal.

They would say Sweeting-Bailey’s race had nothing to do with their calculation—that race aside, he was simply a different sort of person in a different sort of place.  He had a “criminal history,” was in a “high crime area,” and was riding with people judged to be “gang-affiliated.”

But all of the factors the Court cataloged—the criminal history, the “high crime area” residence, and the gang affiliation tag—are indications of police behavior over time as much as they are indications of anything else.

All are racially correlated. Sweeting-Bailey lives in an intensively surveilled zone where criminal records are handed out like party favors.

He has a criminal history because the police have arrested him before. They did that in part because he lives in a high crime area.  He lives in a designated high crime area because the police make more arrests there by applying the same error cost calculation to everyone around him and have for decades. (Of course, there really are crimes there, but the arrest rates in drug cases, for example, are dramatically racially skewed.)

When he was labelled “gang-affiliated”  the elements of  any “error cost” for that labeling seemed lower to the officials doing the labeling because, after all, they were considering a kid with a record, and from a high crime area.

The Safety Costs of Error?

And, as the system depresses the likelihood of error, it depresses awareness of the cost of an erroneous frisk too.

After all, the thinking goes, Sweeting-Bailey has his own criminal history, is a resident of a “high crime area,” and hangs with the “gang-affiliated.”  The operating assumption is that he (or anyone like him) will shrug off a mistaken frisk.

This is no shocking new experience for him. That cohort must be accustomed to being frisked down; so no trauma will be inflicted by frisking one more time.

The flip side of the surveillance that Kathyrne Young and Joan Petersilia point out—of our obsessive program of “keeping track” of young Black men’s movements, histories, relationships, homes and activities in which routine traffic stops are one component—is the criminal system’s  resolute refusal to recognize and account for the iatrogenic harms done to those relationships, homes, and futures by the system’s own efforts at control.

Decisions such as Sweeting-Bailey are reflexively presented as balancing the citizen’s safety from a trivial intervention against the intervening cop’s safety from fatal armed violence.

But because we practice blindness to the error costs of harassing frisks, that is  a rigged game.

Resorting to it creates a systemic downward pressure on the security of young Black men that doesn’t require a methodical program of action: frisks will just happen, one at a time. Lots of them.

There are alternatives available that enhance everyone’s safety.

As UCLA law professor Joanna Schwartz has argued, if  we attended to everyone’s safety, the police would limit their use of traffic stops. Schwartz notes that:

One-third of police-civilian contacts in our country happen through traffic stops. Eleven percent of police killings nationwide in 2015 occurred following traffic stops, and people killed following traffic stops are disproportionately likely to be unarmed. Black people are more likely than white people to be stopped, searched, and subjected to physical violence.

Our War on Improper Lane Changes can be waged by other means―means that protect both cops and citizens.

Whose Safety?

The  “systematic” thing going on here is the legal system’s methodical campaign to ignore what is happening in front of its nose.

An endemic racially sensitive discounting of  the likelihood of error and price of error is a feature of our contemporary criminal justice system, not a bug. It nourishes itself, and it is voracious.

A ratchet effect takes hold.  When, finally, a cop decides to frisk with next to no individualized basis, relying only on demographics, he isn’t signaling overt racism; he is playing the apparent—but systemically generated—odds, at the expense of  Black communities.

It is the role of the  courts to apply the Fourth Amendment to interrupt this insidious process.  In Sweeting-Bailey the Massachusetts court evaded that responsibility and, in practical terms, encouraged its metastasis instead.

That is what our courts do.

James Doyle

If we wait and require that systemic racism declare itself—announce a specific racist purpose and a systematic program for accomplishing it—before racism can be repudiated, racism will regulate the streets forever.

Systemic racism is racism too. We have to call it out now.

James M. Doyle is a Boston defense lawyer and author, and a regular columnist for The Crime Report. He enjoys hearing from readers.

This content was originally published here.

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