Race, Policing, and Technology

Privacy and Security and Artificial Intelligence

Article Snapshot

Author(s)

Bennett Capers

Source

North Carolina Law Review, Vol. 95, pp. 1241-1292, 2017

Summary

The Supreme Court has failed to address problems such as police violence, racial profiling, and underenforcement. Use of surveillance technology, facial recognition, and big data can deracialize criminal justice.

Policy Relevance

Use of technology in policing can create a society where all are equal before the law.

Main Points

  • Police violence against black and brown individuals has become national news, but such violence is not new or surprising to members of communities of color.
     
  • The state fails to provide some communities with equal protection from crime, the problem of underenforcement.
     
    • Prosecutors are less likely to seek the death penalty when the victim is a minority.
       
    • Black victims of rape are undervalued, with the perpetrators receiving lesser sentences.
       
  • Racial profiling is pervasive in pedestrian and traffic stops; a far higher percentage of the black or Hispanic population is forcibly stopped than the white population.
     
    • In New York City, 21.1 percent of the black population was subjected to pedestrian stop and frisk procedures, compared with 2.6 percent of whites.
       
    • In San Francisco, black drivers were stopped 24 percent more often than one would expect, given their population.
       
    • The error rate in stop-and-frisk searches is high, as for every twenty stopped, nineteen were not engaged in criminal activity.
       
  • The Supreme Court facilitates unequal policing; in Terry v. Ohio, the Court approved police detention of two African-American men, despite a lack of probable cause to believe they had committed a crime.
     
  • The Supreme Court has ruled that police do not need probable cause or even reasonable suspicion to question an individual, if a reasonable person would feel "free to leave;" the brunt of these unregulated stops is borne by racial minorities.
     
  • Technology can deracialize policing, as technology does not have implicit bias or suffer from unconscious racism, and stops would turn on actual reasonable suspicion of criminality, rather than the proxy of race; useful technologies include:
     
    • More public surveillance cameras.
       
    • Facial recognition systems that match faces to drivers’ license and social media photos.
       
    • Access to big data.
       
    • Terahertz scanners that reveal concealed weapons.
       
  • Scanners and cameras can reveal police use of excessive force and educate judges about how the Fourth Amendment is really being applied; everyone would be subject to some soft surveillance, but no one would be singled out because of race.
     
  • The enjoyment of privacy has been unequal, and should be redistributed; equalizing privacy would counter cynicism about the law.
     
    • Those who believe the legal system is fair are more likely to comply with the law.
       
    • Technology can also better distribute privacy between citizens and the police.
       

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