Whither the Criminal Court: Confronting Stops-and-Frisks

For the past few years, the New York City Police Department has been embroiled in class-action civil litigation challenging the NYPD’s rampant and hyper-aggressive use of stop-and-frisk tactics. Such litigation, however, belies a stark reality: New York City Criminal Court has rendered itself invisible and willfully irrelevant in enforcing our constitutional protections against unlawful stop-and-frisks. Many have critiqued the NYPD, its Commissioner, and political leaders, but few have turned a similar, critical eye toward the criminal court, whose role it is — and was envisioned by the U.S. Supreme Court to be when it fashioned the exclusionary rule — to review and regulate the police through suppression hearing litigation. Rather than provide careful, constitutional scrutiny of everyday police conduct, the New York City Criminal Court instead puts a premium on assembly-line efficiency and plea bargaining. By abdicating its critical oversight role, the criminal court effectively shields police behavior from any external review, thereby allowing — and implicitly encouraging — the current epidemic of stop-and-frisk policing. Indeed, the very use of the phrase “stop-and-frisk” implies that the practice employed by the NYPD is somehow imbued with legality through the Supreme Court’s landmark decision in Terry v. Ohio. However, it behooves all concerned to consider whether, and to what extent, the Supreme Court in fact meant to authorize more than 685,000 street stops in a single city in a single year. More to the point, it is now necessary to ask whether a criminal court that fails to hold a meaningful number of suppression hearings — let alone trials — can rightfully be called a “court.”