Journal article
Requiem for LaQuan McDonald: Policing as Punishment and Abolishing Reasonable Suspicion
Temple law review, Vol.89, p763
2017
Abstract
The socio-legal landscape of punishment is vast. While actions in courts during sentencing and in prisons and jails afterward are necessary considerations when thinking about punishment, an expansive examination of the institution of punishment encompasses more. To sufficiently interrogate punishment, we must also scrutinize policing, not as a precursor to punishment but rather as its opening moment. Given the fatal consequences of some opening moments, as well as the reality that policing inaugurates a process of incapacitation and abuse in which individuals are frequently unable to defend themselves due to a lack of economic, political, and legal capital,5 any true analysis of punishment must first grapple with policing-if it is to stand as an ethical analysis, that is.
Customarily "ethics" refers to a set of moral choices evaluated as either right or wrong; we, however, use "ethical" as Frank Wilderson does, as a sober and accurate assessment of the power relations in a given situation. To talk about and to practice law in this context without addressing the real power relations at play is to pretend as if policing represents the rule of law, rather than a regime of force at odds with legal principles of due process, privacy, and fairness. This, in essence, would be to flee from a displeasing reality in favor of a more comforting falsehood. Since we are uninterested in the evasive comforts of such legal untruths, we seek to deal with the world as it is, not as the prevailing legal discourse would purport it to be. We argue that when applied within the real-world context of policing, the legal fiction of "reasonable suspicion" is intrinsically and irreparably antiblack, perhaps even racist, and hence fundamentally unconstitutional. The fiction of reasonable suspicion; its legal counterpart, stop and frisk; and the case from which they arise, Terry v. Ohio, should not only be discredited and disavowed but also should be overturned and declared unconstitutional. This outcome would not only be ethical, either premised on moral interpretations of right and wrong or reconciliation with the sobering truths of antiblack legalisms, but more importantly, it would significantly recalibrate the relations of force such that policing would remain within more appropriately defined confines of the Constitution.
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Details
- Title
- Requiem for LaQuan McDonald: Policing as Punishment and Abolishing Reasonable Suspicion
- Creators
- Donald F Tibbs - Drexel University, Thomas R. Kline School of Law
- Publication Details
- Temple law review, Vol.89, p763
- Resource Type
- Journal article
- Academic Unit
- Thomas R. Kline School of Law
- Identifiers
- 991021902912104721