The Crime Drop and the Fourth Amendment: Toward an Empirical Jurisprudence of Search and Seizure


Professors Kahan and Meares used a bold, even inflammatory title for their 1998 Foreword to the Georgetown Law Journal’s Annual Review of Criminal Procedure. In The Coming Crisis of Criminal Procedure, they argued that judicial decisions articulating the constitutional rights of persons accused of crime have unduly compromised the ability of high-crime, inner-city neighborhoods to combat rampant lawlessness in their midst. Kahan and Meares observed that much of the architecture of constitutional criminal procedure, and especially its skepticism about police discretion, was constructed before the civil rights revolution, and accordingly no longer corresponds to social and political reality. They therefore called for a new jurisprudence of constitutional criminal procedure more respectful of the ability of high-crime, inner-city neighborhoods to strike a balance between liberty and order. The following year, in his Foreword, Professor Cole denied the existence of a “crisis” in criminal procedure. He argued that judicial decisions have actually left too much discretion in the hands of the police, and that granting police even greater freedom from legal restraint is all too likely to result in discrimination against racial and ethnic minorities. Among legal scholars, Professor Cole’s position has far more support. For example, in recent years, legal scholars have produced a virtual avalanche of work attacking the law of search and seizure as granting police overly broad discretion that is all too often used to disadvantage racial minorities and the poor. In contrast, support for the view that constitutional law has made a wrong turn by unduly circumscribing the ability of the police to intervene in high-crime communities has been scant, equivocal, and grudging.

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