Hunter's Point: Public Choice and Stop and Frisk

Isaiah Hunter* 

One of the perplexing issues of solving communal problems is that of the separation of the costs and benefits. Ideally, the costs fall on those who benefit. This is prudent because it will allow the beneficiaries to determine if the benefit justifies the cost. Also, this intuitively seems fair from a distributive perspective. For an example of the opposite of this approach, look no further than a major issue in the mayoral election in NYC – stop and frisk.

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A major plank of Democratic mayoral candidate Bill de Blasio’s campaign is curtailing stop and frisk: the police procedure of randomly stopping individuals and searching them for contraband. This practice has been heavily criticized for targeting poor minorities. In fact, the Southern District Court of New York recently ruled the NYPD practice unconstitutional. The case is currently on appeal to the 2nd Circuit.

Bill de Blasio’s opponent, Republican candidate Joe Lhota, claims that a repeal of stop and frisk will revert NYC to times where violent crime was rampant. The Wall Street Journal on Oct. 22, 2013 cited a poll that New Yorkers agree with Lhota on this issue – they would rather keep stop and frisk if the alternative meant higher crime rates.

Here is the example of a bifurcation of costs and benefits. The stop and frisk program falls primarily on a small group whereas the benefits of lower crime fall on a larger group. Because the larger group does not bear the cost of stop and frisk, they are unwilling to eliminate the program because it might bring them benefits. Indeed, they need not be sure whether it is a driver of lower crime. If it isn’t, the cost is borne by another. If it is, they benefit. Note that because the benefits and costs are bifurcated we are not sure the outcome is efficient – i.e. the costs justify the benefits. In fact, it is likely to be inefficient because the party benefiting is in this case the politically powerful party. Moreover, it seemingly violates notions of distributional fairness.

This problem is termed the tyranny of the majority. It was something Madison worried about, spelled out in the famous Federalist #10. The sister to this issue is where the benefits of a policy are concentrated whereas the costs are diffuse. The political valence is much higher for the benefiting party than for the losing party. Therefore, once more because of the bifurcation of costs/benefits the outcome is likely to be inefficient and unfair.

This analysis is nothing new to students of public choice theory. However, the stop and frisk example is important because it is non-pecuniary in nature. It is important to understand that public choice is not merely applicable to so-called economic rights, but also to civil rights. The public choice issue is an intractable issue for government intervention in any substantive field and should trouble the progressive or libertarian alike.

*Isaiah Hunter is a J.D. Candidate at New York University School of Law, class of 2014, Senior Articles Editor of the Journal of Law & Liberty and author of the column "Hunter's Point." 

Why Explanations Matter

James Maxwell Koffler*

On August 22, The New York Times had a great overall account of the presence of the Brooklyn Hasidim as a political force. While most of the article was well done, a key omission, however, was an explanation of Councilwoman Christine Quinn's support for New York City’s policy requiring “parents to sign a consent form so they could be alerted to the risks” of the practice of metzitzah b’peh —“oral suctioning of a circumcision wound.” As someone who leans libertarian, especially on issues relating to parental choice, I wanted to know the City’s basis for impeding parental ability to access this ancient religious procedure. As the article states:

"Most prominently, the city has battled with ultra-Orthodox Jewish representatives over the health risks in metzitzah b’peh, a technique for orally suctioning a circumcision wound. Instead of banning the practice outright, health officials instead required parents to sign a consent form so they could be alerted to the risks. But ultra-Orthodox Jewish leaders were still infuriated. The matter even became an issue in the mayoral campaign, with Christine C. Quinn defending the city’s policy and her Democratic opponents, including Anthony D. Weiner and John C. Liu, arguing that the Hasidic practice has stood the test of millenniums."

It is startling that The New York Times side-stepped Ms. Quinn’s rationale for supporting this intrusion, not only because the policy infringes on parental rights and religious liberties, but also because I recalled reading a rationale for such a restriction in a previous edition of The New York Times. After searching the periodical’s website, I found the answer to my inquiry in various articles. For example, an article printed on September 13, 2012 entitled “Denouncing City’s Move to Regulate Circumcision” reported that “between 2000 and 2011, 11 babies contracted herpes as a result [of the ritualistic procedure], and 2 of them died.” Aha.

Ordinarily, I err on the side of parental rights (Hey, Toddlers & Tiaras might not be in my kid’s future, but who am I to judge Mama June). In this case, requiring parents to sign a document stating that they know the specific risks posed to the child is actually a better policy than a poll-tested statement “the practice has stood the test of millenniums.” However, by failing to explain the rationale behind the City's policy, the Times provided readers with an incomplete picture of the lively debate surrounding metzitzah b’peh.

Journalists, when you write articles mentioning the “risks” justifying policies which infringe on parental rights and religious liberties, kindly explain the nature of such risks rather than merely glossing over the issue.          

* James Maxwell Koffler is an L.L.M. candidate at New York University School of Law, class of 2014, and is a Staff Editor of the Journal of Law & Liberty.