2L Note Blog: Predictive Policing: the Constitutional Implications of Forecasting Crime

From the film Minority Report

From the film Minority Report

This Note examines the implications of predictive policing and seeks ways to avoid legal snares. Predictive policing is the practice of using computer algorithms that predict the time and place crimes are likely to occur. “Crime maps” and other statistical law enforcement tools are not new and are part of an overall trend towards intelligence-led policing.[1] However, recently the Los Angeles Police Department, as well as other law enforcement agencies, has spearheaded the use of software that interprets vast amounts of data and makes predictions well outside of human intuition.[2] So far studies have shown predictive policing techniques to be generally successful.[3] Some police agencies have pinpointed 500-square-foot “hot spots,” lowered crime, and saved money by distributing manpower in accordance.[4]

Simultaneously fascinating and terrifying, predictive policing is increasing in viability, and will likely play a large part in the future of law enforcement.[5] However, police must first deal with several problematic legal issues.

First, it will invariably affect probable cause and reasonable suspicion calculations made to justifying searches and seizures. Will the use of these computer predictions as factors run afoul of the Fourth Amendment against unreasonable search and seizures? If not, will these predictive “tips” be enough alone to support a Terry stop as the technological accuracy increases? As there has not yet been a Fourth Amendment challenge to a predictive policing case, it is only a matter of speculation.

Second, normal use of predictive policing techniques logically leads to the stigmatization of neighborhoods and an ensuing, racially-disparate effect. This results from the relaxation of reasonable suspicion standards for stop-and-frisks, as well as the simple reallocation of police manpower based on predictive techniques. This may have an impact on Equal Protection Clause of the Fourteenth Amendment.

Third, the Federal Rules of Evidence are not likely to allow predictive policing evidence in court. Even if the technique becomes acceptable under the Daubert standard, telling a jury that a computer determined a high-percentage chance of a specific crime occurring in a specific place has no individual indicia of reliability. Furthermore, because of its science fiction feel, is liable to be prejudicial and have a disparate impact on the jury.

Finally, predictive policing is easily misused when applied by people who do not fully understand it. Because the predictions are limited in place and time, good faith errors made searching suspects after a predictive tip has expired, or slightly outside of the geographic scope, will likely be commonplace. In addition, the reliability might diminish as criminal respond tactically by avoiding extended patterns.

 

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.


[1] Charlie Beck and Colleen McCue, Predictive Policing: What Can We Learn from Wal-Mart and Amazon about Fighting Crime in a Recession? 76 The Police Chief, (November 2013). http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=1942&issue_id=112009.

[2] Gordon, supra note 1; see also Joel Rubin, Stopping Crime Before It Starts, L.A. Times, Aug. 21, 2010, available at http://articles.latimes.com/2010/aug/21/local/la-me-predictcrime-20100427-1.

[3] Carrie Kahn, At LAPD, Predicting Crimes Before They Happen, Weekend Edition Saturday (National Public Radio broadcast Nov. 26, 2011), available at http://www.npr.org/2011/11/26/142758000/at-lapd-predicting-crimes-before-they-happen.

[4] Zach Friend, Predictive Policing: Using Technology to Reduce Crime, FBI Law Enforcement Bulletin (April 9, 2013) available at http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/2013/April/predictive-policing-using-technology-to-reduce-crime.

[5] Id.