Governor Cuomo, Fracking, and Why Terry is the New Brown


On December 17 of last year, New York Governor Andrew Cuomo announced a state-wide ban on hydraulic fracturing or “fracking.” The New York State Department of Health’s December 2014 report entitled “A Public Review of High Volume Hydraulic Fracturing for Shale Gas Development” cited “information gaps” in the ability to properly evaluate the effect of fracking on public health outcomes. Furthermore, the report concluded that available studies were “suggestive of overall potential public risks” and that “[a]dditional population-based research and surveillance, and more studies involving field investigations in locations involving active [fracking] shale gas development, would be valuable.” As a result of the “scientific uncertainties” and the “array of complex concerns” articulated in the report, Governor Cuomo issued a ban.

The potential public health impacts detailed by the report were numerous and include: respiratory impacts as a result of exhaust and volatile chemicals, drinking water impacts as a result of fracking chemical seepage, surface water contamination, earthquakes and a host of economic impacts. The health impacts uncovered by published and unpublished studies are particularly disturbing. Fracking has been associated with low birth weight, congenital defects, skin rashes, nausea, vomiting and abdominal pain. And although the report could draw no definitive conclusions about the incidence of cancer near fracking sites, the presence of above-normal cancer-causing chemicals such as benzene, formaldehyde and hydrogen sulphide in 35 air samples from 11 fracking sites across five states is more than alarming. The results of that study, carried out primarily by residents trained to take air quality samples, were published in Environmental Health.

The logic undergirding the Cuomo administration’s policy posture on fracking has strong implications concerning how it must approach the equally serious problem of the racially discriminatory impact of stop-and-frisk. The issue is particularly pressing in light of the controversial police killing of Eric Garner in New York City. For both fracking and stop-and-frisk, the health risks are compelling, qualitatively distinct to be sure, yet strikingly similar with regard to fundamental notions of the invasion of bodily integrity, the transgression of personal liberty and the impermissible diminution in overall human health and well-being. Data compiled by NYCLU show that although overall reported stops have decreased dramatically, peaking in 2011 at 685,724 and falling to 191,598 in 2013, targeting of black and Latino residents remains overwhelmingly disproportionate. Additionally, the “success” rate remains abysmally low with near nearly nine of ten persons stopped being innocent.

The policy of stop-and-frisk also has a significant psychological health impact on its victims. If we extend the language of fracking, stop-and-frisk generates traumatic emotional and spiritual earthquakes which reverberate as shockwaves of fear, resentment, distrust and even hatred of law enforcement whose purported role as “peace officers” must constantly and reasonably called into question. Instead of fostering peace, discriminatory law enforcement practices only serve to destabilize and disrupt relationships within communities and, as stated, widen the chasm of humanity that yawns between the people and the police. Thus, the stop-and-frisk policy manifests psychologically as a perpetual tremor within the personal and public psyches of the members of the disparately impacted racial minority community.

Similarly, like fracking, the fumes from racially discriminatory police practices can be poisonous and suffocating. Imagine the atmosphere that exists within that moment of interaction between the officer and the young black man on his way home from work. The young man begins breathing heavy, underscoring the weight of the situation, and the frustration of having to prove his innocence becomes a suppressed burning in his lungs, leading to a reluctant, servile capitulation in the form of presenting valid identification, having his person molested from an agent in search of non-existent contraband and ultimately being released to the comfort of his home where he can finally, excruciatingly exhale. It is a forceful exhale, as he acknowledges that his refuge is transient because he has to venture outside and breathe the noxious fumes of dehumanization again the next day. Consequently, he endures the night with nausea, vomiting and abdominal pain. The repetitive, unpredictable, omnipresent terror of the possibility of being stopped coalesces in an all too familiar gas-induced psychosis, an agglomeration of interactions that both produces and is produced by the asphyxiating nature of stop and frisk. In the affected locality, air, like patience, becomes thin, and its toxicity makes everyone a reluctant huffer.

The psychological health implications of stop-and-frisk is an underestimated and understudied dimension of the policy’s deleterious impact upon minorities. While these health outcomes are concededly more difficult to measure than those associated with fracking, both are sufficiently unacceptable warrant cessation of the underlying unhealthy activity. As with fracking, any argument as to the efficacy must necessarily be rendered moot unless and until the preliminary inquiry of whether such tactics are in fact physically and psychologically safe is adequately resolved. The simple fact that the racial disparity in stops has been so glaring and so persistent, even as the overall number of stops has declined, indicates that the quantum of evidence required to demonstrate safety is lacking.

The psychological health implications inherent in stop-and-frisk policy force an inevitable conclusion: it is, in fact, impossible, at least in the immediate term, to implement the policy at all without a racially discriminatory impact. In this way, we are confronted with another Brown moment. In Brown v. Board of Education, the Supreme Court held the doctrine of “separate but equal” in public education to be inherently unconstitutional, largely because of the psychological consequences of state-sanctioned racial separation on black children. As Chief Justice Warren opined then in Brown, we now have knowledge of psychological health impacts to minorities that we did not have at the time of Plessy v. Ferguson, the 1896 decision that permitted state-sanctioned segregation. Similarly, we now have knowledge that we did not have at the time of Terry v. Ohio, the 1968 decision that affirmed the use of stop-and-frisk under the “reasonable suspicion” standard. Given the deleterious psychological health consequences that stop-and-frisk foists upon unsuspecting racial minorities and the “sense of inferiority” that, like “separate but equal”, the policy instills in both those personally victimized, stop-and-frisk must be ended.

The recent judicial actions to confront racial discrimination in stop-and-frisk in New York City, while positive, are nevertheless insufficient. To be sure, the proposed settlement agreement in the Davis case could improve reporting accuracy and training in public housing stops, and the directives of the Floyd remediation decision may lead to enhanced disciplinary procedures and monitoring. But in the second Davis opinion, Judge Scheindlin explicitly limits the scope of her ruling, making it clear that she is “not ordering an end to the practice of stop and frisk.” Rather, she seeks to balance the “rights and liberties of all New Yorkers” with the interest in providing “much needed police protection.” Given the current climate in New York it would be naïve to believe that eliminating racial profiling from police training manuals will end racial discrimination in stop-and-frisk. As Brown instructs us, some controversies transcend the theoretical shackles of any judicial balancing test. Some controversies are, either ironically or appropriately, black or white, right or wrong, without compromise and without a middle ground. Stop-and-frisk is one of them. It is thus now up to Governor Cuomo to end the practice of stop-and-frisk, at least until the uncertainties and the array of complex concerns regarding its racially discriminatory impact are adequately resolved.

In this current political crucible we cannot wait for doll studies or coloring tests, as the Court relied upon in Brown, to conclude that stop-and-frisk is an unnecessary, ineffective anachronism, and that a race-neutral application of the policy is today an oxymoronic impossibility. To paraphrase Chief Justice Warren from his Brown opinion, in the field of law enforcement, the doctrine of stop-and-frisk has no place. Vicious health impacts to the vulnerable led to the end of “separate but equal,” vicious health impacts to the vulnerable have led to a ban on fracking and vicious health impacts to the vulnerable must lead to an end to stop-and-frisk. Recent circumstances have presented Governor Cuomo with the opportunity to set the example for the nation by banning stop-and-frisk in New York State, just as he has done with fracking. It is an opportunity he and other governors must accept.

A. Rahman Ford is a Ph.D. Candidate in the Department of Political Science at the University of Pennsylvania.


Photo Credit: Les Stone (Al Jazeera America)