Monday, April 23, 2018

Articles related to Racial Profiling

The Stories, the Statistics, and the Law: Why "Driving While Black" Matters

David A. Harris, The Stories, the Statistics, and the Law:  Why "Driving While Black" Matters , 84 Minnesota Law Review 265-326 (1999) (200+ footnotes omitted)


Each one of those stops, for me, had nothing to do with breaking the law. It had to do with who I was. . . . It's almost like somebody pulls your pants down around your ankles. You're standing there nude, but you've got to act like there's nothing happening.

It has happened to actors Wesley Snipes, Will Smith, Blair Underwood, and LeVar Burton. It has also happened to football player Marcus Allen, and Olympic athletes Al Joyner and Edwin Moses. African-Americans call it "driving while black"--police officers stopping, questioning, and even searching black drivers who have committed no crime, based on the excuse of a traffic offense. And it has even happened to O.J. Simpson lawyer Johnnie Cochran.

In his pre-Simpson days, Cochran worked hand-in-hand with police officers as an Assistant District Attorney in Los Angeles, putting criminals behind bars. Cochran was driving down Sunset Boulevard one Saturday afternoon with his two youngest children in the back seat when a police car stopped him. Looking in his rearview mirror, Cochran got a frightening shock: "the police were out of their car with their guns out." The officers said that they thought Cochran was driving a stolen car, and with no legal basis they began to search it. But instead of finding evidence, they found Cochran's official badge, identifying him as an Assistant District Attorney. "When they saw my badge, they ran for cover," Cochran said.

The incident unnerved Cochran, but it terrified his young children. "[The officers] had their guns out and my kids were in that car crying. My daughter said, 'Daddy, I thought you were with the police.' I had to explain to her why this happened."

Cochran's experience is a textbook example of what many African-American drivers say they go through every day: police using traffic offenses as an excuse to stop and conduct roadside investigations of black drivers and their cars, usually to look for drugs. Normally, if police want to conduct stops and searches for contraband they need probable cause or at least reasonable suspicion that the suspect is involved in an offense. But with the Supreme Court's recent cases involving cars, drivers, and passengers, none of this is necessary. Traffic offenses open the door to stops, searches, and questioning, based on mere hunches, or nothing at all. And African-Americans believe they are subjected to this treatment in numbers far out of proportion to their presence in the driving population.

But is this just a problem of perception, the product of years of mistrust between police and minorities? Is it a problem only in large urban centers? Are these claims supported by statistical evidence, or are they merely strong feelings born of anecdotes?

To answer these questions, a number of African-Americans--all middle class, taxpaying citizens--described their experiences in interviews. The interviewees were drawn from Toledo, Ohio, an almost prototypical medium-sized Midwestern city. Statistics from courts in Toledo and in three other Ohio cities--Dayton, Akron, and Columbus--were analyzed. Research from other areas of the country was also reviewed.

The interviews reveal that African-Americans strongly believe that they are stopped and ticketed more often than whites, and the data from Ohio and elsewhere show that they are right. For example, the Toledo Police Department is at least twice as likely to issue tickets to blacks than to all other drivers. The numbers in Akron, Columbus and Dayton are similar: blacks are about twice as likely to get tickets as those who are not black. When adjusted to reflect the fact that 21% of all black households do not own vehicles, making blacks less likely to drive than others, these numbers increase to even higher levels. All of the assumptions built into this statistical analysis are conservative; they are structured to give the law enforcement agencies the benefit of the doubt. Statistics from cases in New Jersey and Maryland are similar. Sophisticated analyses of stops and driving populations in both states showed racial disparities in traffic stops that were "literally off the charts."

Police departments engage in these practices for a simple reason: they help catch criminals. Since blacks represent a disproportionate share of those arrested for certain crimes, police believe that it makes sense to stop a disproportionate share of blacks. Lt. Ernest Leatherbury, a spokesman for the Maryland State Police (a department that has been sued twice over race-based traffic stops), explained to the Washington Post that stopping an outsized number of blacks was not racism, but rather "an unfortunate byproduct of sound police policies." Carl Williams, Superintendent of the New Jersey State Police, put the matter even more bluntly in an interview with the Newark Star-Ledger. With narcotics today, he said, "it's most likely a minority group that's involved with that." In other words, officers may be targeting blacks and other minorities, but this is a rational thing to do.

This type of thinking means that anyone who is African-American is automatically suspect during every drive to work, the store, or a friend's house. Suspicion is not focused on individuals who have committed crimes, but on a whole racial group. Skin color becomes evidence, and race becomes a proxy for general criminal propensity. Aside from the possibility of suing a police department for these practices--a mammoth undertaking, that should only be undertaken by plaintiffs with absolutely clean records and the thickest skin-- there is no relief available.

Pretextual traffic stops aggravate years of accumulated feelings of injustice, resulting in deepening distrust and cynicism by African-Americans about police and the entire criminal justice system. But the problem goes deeper. If upstanding citizens are treated like criminals by the police, they will not trust those same officers as investigators of crimes or as witnesses in court. Fewer people will trust the police enough to tell them what they know about criminals in their neighborhoods, and some may not vote to convict the guilty in court when they are jurors. Recent polling data show that not just blacks, but a majority of whites believe that blacks face racism at the hands of police. "Driving while black" has begun to threaten the integrity of the entire process not only in the eyes of African-Americans, but of everyone.

This Article begins in Part I by discussing the experiences of three of the African-Americans who were interviewed for this Article. Their stories, selected not because they are unusually harsh but because they are typical, speak for themselves. The frightening and embarrassing nature of the experiences, the emotional difficulties and devastation that often follow, and the ways that they cope, bring to life the statistics, which are discussed in Part II. Part III then shows how the problem is connected to larger issues at the intersection of criminal justice and race. Part IV puts the problem of "driving while black" into its legal context and explains how the law not only allows but encourages these practices. Finally, Part V concludes with a discussion of some approaches that might be taken to address the problem.


Talk to almost any black person any place in the country and you will hear accounts of pretextual traffic stops. Some say they have experienced it many times. All of those interviewed--not criminals trying to explain away wrongdoing, but people with good jobs and families--described an experience common to blacks, but almost invisible to whites. The stories of several of these individuals illustrate what the experience is like and how it has impacted their lives.

Karen Brank, a licensed social worker in her early thirties with a young son, had never been in trouble with the police. But one morning, on her way to work for a monthly staff meeting, all of that changed when Brank was pulled over for speeding. Brank recalls being one of several cars that were traveling down a main thoroughfare at about the same rate of speed. The officer who stopped her told her she was going too fast. He then asked for her license and registration and took these items to the squad car. When he returned, the officer told Brank that there were outstanding warrants for her arrest for unpaid traffic tickets. Brank remembered the tickets because she did not get many and told the officer that she had paid them weeks before. But when she could not produce a receipt to prove payment (and who could have?), the officer said he would have to arrest her.

Brank was stunned. Arrest me? she thought. What do you mean arrest me? I'm not a criminal--I'm on my way to work! This could not be happening--and yet it was. It turned out later that the warrants were incorrect. Brank had paid, but a clerical error had kept the tickets in the computer system. Additional squad cars arrived, making the area around her car look like a crime scene. Mistake or not, minutes later Brank stood by the side of the road in handcuffs so tight that they left ugly red marks on her wrists for several days. She was distraught, breaking down in tears standing next to a public street. She can still feel the sting of embarrassment.

I was really upset. I was like, "Why are you guys handcuffing me about some tickets?" They had me standing outside with all these people passing by. It was so humiliating.

Months afterward, the pain she experienced during these moments still becomes visible on her face as she recalls the incident. She was put into a squad car and sat there, afraid to say anything.

I didn't say nothing, because I figured if I said anything, if I moved, that would just give them permission to beat me. And I did not want that to happen because I have a little boy.

Brank watched as the police searched her car. She says that the other officers on the scene--perhaps four or five--exchanged high fives with the arresting officer, accompanied by phrases like "good job" and "you got another one." Eventually, she was taken downtown and released. Brank felt unable to go to work that day. In the days that followed, her co-workers could tell something was wrong, but for some reason she hesitated to tell them what had happened. "I didn't want anyone to know. I was so embarrassed."

Brank is firmly convinced that she was singled out from the other cars around her, which she says were going the same speed, because she is black. She is sure that a white person would not have been handcuffed and humiliated the way she was. But the police officer who stopped her denies this. "The only reason I stopped her was because of a violation--speeding," he says, adding that he caught her on radar. "I don't care if you're black, blue, beige, brown, whatever--if you're violating the law, I'll stop you." And he categorically denies that any high fives or congratulatory words were exchanged.

James, a well-dressed, 28-year-old advertising account executive with a media company, also has been stopped for numerous traffic offenses. "I'm not one of those guys who says, 'Oh yeah, blacks, we've just got it bad," ' he says. But being stopped repeatedly by police is such an unchangeable part of life for him that "it's like the fact that I'm black."

James described an incident that took place recently in an upscale neighborhood, where he had visited a friend. After socializing for a while, James left the house and got in his car to leave. As soon as he pulled out of the driveway, James noticed that a police car was following him. Although he drove with extra care, the officer pulled James over and questioned him, accused him of weaving, checked his license and registration, and threatened to give him a citation for not wearing a seat belt. "I think he saw a black male in that neighborhood and he was suspicious," James says. Months later, the anger James felt that night remains fresh.

I feel like I'm a guy who's pretty much walked the straight line and that's respecting people and everything. But if cops will even bother me, that makes me think, well, it's gotta be something . . . [W]e just constantly get harassed. So we just feel like we can't go nowhere without being bothered . . . I'm not trying to bother nobody. But yet I got a cop pull me over says I'm weaving in the road. And I just came from a friend's house, no alcohol, no nothing. It just makes you wonder--was it just because I'm black?

It would be a mistake to think that pretextual traffic stops are limited to younger blacks. Michael, 41, is tall, attractive, and well-spoken. He is the top executive in an important public institution and has been stopped by the police many times. One afternoon, Michael was driving to a local high school to work out. As he approached the parking lot, he saw a parked police cruiser, so he drove with extra caution. "As I pulled up and put it in park and turned the key off, this police car comes screeching up behind me--the lights flashing, the whole deal," Michael says. The squad car blocked him in to the parking space, so he could not leave. But when the officer walked up to the window, he immediately noticed Michael's official identification. Without offering any explanation for why he had treated Michael as if he were a dangerous criminal, the officer "just backed away and he was gone. Just disappeared."

Michael was angry and frustrated at being treated this way, but it was not the first time it had happened. As he has done many times before, he distanced himself from the experience as a kind of emotional self-defense.

You've gotta learn to play through it. Even though you haven't done anything wrong, the worst thing you can do in a situation like that is to become emotionally engaged when they do that to you. . . . Because if you do something, maybe they're going to do something else to you for no reason at all, because they have the power. They have the power and they can do whatever they want to do to you for that period of time. . . . It doesn't make a difference who you are. You're never beyond this, because of the color of your skin.

For many blacks, the emotional cost is profound. Karen Brank missed work and experienced depression. For some time afterwards, she felt a wave of fear wash over her every time she saw a police car in her rearview mirror. In that one brief encounter, her entire sense of herself--her job, the fact that she is a mother and an educated, law-abiding person working on a master's degree--was stripped away. Kevin, an executive in his thirties with a large financial services corporation, a husband, and father with several young children, says his experiences have left him with very negative feelings about police. "When I see cops today, I don't feel like I'm protected. I'm thinking, 'Oh shoot, are they gonna pull me over, are they gonna stop me?' That's my reaction. I do not feel safe around cops."

To cope, African-Americans often make adjustments in their daily activities. They avoid certain places where they think police will "look" for blacks. Some drive bland cars. "I drive a minivan because it doesn't grab attention," says Kevin. "If I was driving a BMW"--a car he could certainly afford--"different story." Some change the way they dress. Others who drive long distances even factor in extra time for the inevitable traffic stops they will face.

But nowhere does the effect of racially-biased traffic stops become more painful than when blacks instruct their children on how to behave when--not if--they are stopped by police. Michael remembers, "[M]y dad would tell me, 'If you get pulled over, you just keep your mouth shut and do exactly what they tell you to do. Don't get into arguments, and don't be stupid. It doesn't make a difference [that you did nothing wrong]. Just do what they tell you to do." ' Officer Ova Tate, a thirteen-year veteran police officer and an African-American, told his teenage son not to expect special treatment because Tate is a police officer. "[If] you're black, you're out in the neighborhood, it's a fact of life you're going to be stopped. So how you deal with the police is how your life is going to be. They say you did something, say 'O.K.,' and let them get out of your life." Karen Brank's son is young, but she says that when the time comes, she will know what to say to him. Perhaps thinking of her own experience, she acknowledges the emotional cost, but knows it cannot be avoided.

[The police] are supposed to be there to protect and to serve, but you being black and being male, you've got two strikes against you. Keep your hands on the steering wheel, and do not run, because they will shoot you in your back. Keep your hands on the steering wheel, let them do whatever they want to do. I know it's humiliating, but let them do whatever they want to do to make sure you get out of that situation alive. Deal with your emotions later. Your emotions are going to come second--or last. These instructions will undoubtedly give black children a devastatingly poor impression of the police, but African-American parents say they have no choice. They know that traffic stops can lead to physical, even deadly, confrontations. Christopher Darden, the African-American prosecutor in the O.J. Simpson case, says that to survive traffic stops, he "learned the rules of the game years before . . . Don't move. Don't turn around. Don't give some rookie an excuse to shoot you." This may seem like an overreaction, but given the facts of life on the street, it seems likely that most African-American parents would agree.

The Statistical Analysis

Talking with African-Americans leaves little doubt that pretextual traffic stops have a profound impact on each individual stopped, and on all blacks collectively. There is also no doubt that blacks view this not as a series of isolated incidents and anecdotes, but as a long-standing pattern of law enforcement. For those subjected to these practices, pretextual stops are nothing less than blatant racial discrimination in the enforcement of the criminal law.

But is there proof that would substantiate those strongly-held beliefs? What statistics exist that would allow one to conclude, to an acceptable degree of certainty, that "driving while black" is, indeed, more than just the sum of many individual stories?

Data on this problem are not easy to come by. This is, in part, because the problem has only recently been recognized beyond the black community. It may also be because records concerning police conduct are either irregular or nonexistent. But it may also be because there is active hostility in the law enforcement community to the idea of keeping comprehensive records of traffic stops. In 1997, Representative John Conyers of Michigan introduced H.R. 118, the Traffic Stops Statistics Act, which would require the Department of Justice to collect and analyze data on all traffic stops around the country--including the race of the driver, whether a search took place, and the legal justification for the search. When the bill passed the House with unanimous, bipartisan support the National Association of Police Organizations (NAPO), an umbrella group representing more than 4,000 police interest groups across the country, announced its strong opposition to the bill. Officers would "resent" having to collect the data, a spokesman for the group said. Moreover, there is "no pressing need or justification" for collecting the data. In other words, there is no problem, so there is no need to collect data. NAPO's opposition was enough to kill the bill in the Senate in the 105th Congress. As a consequence, there is now no requirement at the federal level that law enforcement agencies collect data on traffic stops that include race. Thus, all of the data gathering so far has been the result of statistical inquiry in lawsuits or independent academic research.

A. New Jersey

The most rigorous statistical analysis of the racial distribution of traffic stops was performed in New Jersey by Dr. John Lamberth of Temple University. In the late 1980s and early 1990s, African-Americans often complained that police stopped them on the New Jersey Turnpike more frequently than their numbers on that road would have predicted. Similarly, public defenders in the area had observed that "a strikingly high proportion of cases arising from stops and searches on the New Jersey Turnpike involve black persons." In 1994, the problem was brought to the state court's attention in State v. Pedro Soto, in which the defendant alleged that he had been stopped because of his ethnicity. The defendant sought to have the evidence gathered as a result of the stop suppressed as the fruit of an illegal seizure. Lamberth served as a defense expert in the case. His report is a virtual tutorial on how to apply statistical analysis to this type of problem.

The goal of Lamberth's study was "to determine if the State Police stop, investigate, and arrest black travelers at rates significantly disproportionate to the percentage of blacks in the traveling population, so as to suggest the existence of an official or de facto policy of targeting blacks for investigation and arrest." To do this, Lamberth designed a research methodology to determine two things: first, the rate at which blacks were being stopped, ticketed, and/or arrested on the relevant part of the highway, and second, the percentage of blacks among travelers on that same stretch of road.

To gather data concerning the rate at which blacks were stopped, ticketed and arrested, Lamberth reviewed and reconstructed three types of information received in discovery from the state: reports of all arrests that resulted from stops on the turnpike from April of 1988 through May of 1991, patrol activity logs from randomly selected days from 1988 through 1991, and police radio logs from randomly selected days from 1988 through 1991. Many of these records identified the race of the driver or passenger.

Then Lamberth sought to measure the racial composition of the traveling public on the road. He did this through a turnpike population census--direct observation by teams of research assistants who counted the cars on the road and tabulated whether the driver or another occupant appeared black. During these observations, teams of observers sat at the side of the road for randomly selected periods of 75 minutes from 8:00 a.m. to 8:00 p.m. To ensure further precision, Lamberth also designed another census procedure--a turnpike violation census. This was a rolling survey by teams of observers in cars moving in traffic on the highway, with the cruise control calibrated and set at five miles per hour above the speed limit. The teams observed each car that they passed or that passed them, noted the race of the driver, and also noted whether or not the driver was exceeding the speed limit.

The teams recorded data on more than forty-two thousand cars. With these observations, Lamberth was able to compare the percentages of African- Americans drivers who are stopped, ticketed, and arrested, to their relative presence on the road. This data enabled him to carefully and rigorously test whether blacks were in fact being disproportionately targeted for stops.

By any standard, the results of Lamberth's analysis are startling. First, the turnpike violator census, in which observers in moving cars recorded the races and speeds of the cars around them, showed that blacks and whites violated the traffic laws at almost exactly the same rate; there was no statistically significant difference in the way they drove. Thus, driving behavior alone could not explain differences in how police might treat black and white drivers. With regard to arrests, 73.2% of those stopped and arrested were black, while only 13.5% of the cars on the road had a black driver or passenger. Lambert notes that the disparity between these two numbers "is statistically vast." The number of standard deviations present--54.27--means that the probability that the racial disparity is a random result "is infinitesimally small." Radio and patrol logs yielded similar results. Blacks are approximately 35% of those stopped, though they are only 13.5% of those on the road--19.45 standard deviations. Considering all stops in all three types of records surveyed, the chance that 34.9% of the cars combined would have black drivers or occupants "is substantially less than one in one billion." This led Lamberth to the following conclusion:

Absent some other explanation for the dramatically disproportionate number of stops of blacks, it would appear that the race of the occupants and/or drivers of the cars is a decisive factor or a factor with great explanatory power. I can say to a reasonable degree of statistical probability that the disparity outlined here is strongly consistent with the existence of a discriminatory policy, official or de facto, of targeting blacks for stop and investigation. . . .. . . .. . . Put bluntly, the statistics demonstrate that in a population of blacks and whites which is (legally) virtually universally subject to police stop for traffic law violation, (cf. the turnpike violator census), blacks in general are several times more likely to be stopped than non-blacks.

B. Maryland

A short time after completing his analysis of the New Jersey data, Lamberth also conducted a study of traffic stops by the Maryland State Police on Interstate 95 between Baltimore and the Delaware border. In 1993, an African-American Harvard Law School graduate named Robert Wilkins filed a federal lawsuit against the Maryland State Police. Wilkins alleged that the police stopped him as he was driving with his family, questioned them and searched the car with a drug-sniffing dog because of their race. When a State Police memo surfaced during discovery instructing troopers to look for drug couriers who were described as "predominantly black males and black females," the State Police settled with Wilkins. As part of the settlement, the police agreed to give the court data on every stop followed by a search conducted with the driver's consent or with a dog for three years. The data also were to include the race of the driver.

With this data, Lamberth used a rolling survey, similar to the one in New Jersey, to determine the racial breakdown of the driving population. Lamberth's assistants observed almost 6,000 cars over approximately 42 randomly distributed hours. As he had in New Jersey, Lamberth concluded that blacks and whites drove no differently; the percentages of blacks and whites violating the traffic code were virtually indistinguishable. More importantly, Lamberth's analysis found that although 17.5% of the population violating the traffic code on the road he studied was black, more than 72% of those stopped and searched were black. In more than 80% of the cases, the person stopped and searched was a member of some racial minority. The disparity between 17.5% black and 72% stopped includes 34.6 standard deviations. Such statistical significance, Lamberth said, "is literally off the charts." Even while exhibiting appropriate caution, Lamberth came to a devastating conclusion.

While no one can know the motivation of each individual trooper in conducting a traffic stop, the statistics presented herein, representing a broad and detailed sample of highly appropriate data, show without question a racially discriminatory impact on blacks . . . from state police behavior along I-95. The disparities are sufficiently great that taken as a whole, they are consistent and strongly support the assertion that the state police targeted the community of black motorists for stop, detention, and investigation within the Interstate 95 corridor.

C. Ohio

In the Spring of 1998, several members of the Ohio General Assembly began to consider whether to propose legislation that would require police departments to collect data on traffic stops. But in order to sponsor such a bill, the legislators wanted some preliminary statistical evidence--a prima facie case, one could say--of the existence of the problem. This would help them persuade their colleagues to support the effort, they said. I was asked to gather this preliminary evidence. The methodology used here presents a case study in how to analyze this type of problem when the best type of data to do so is not available.

In the most fundamental ways, the task was the same as Lamberth's had been in both New Jersey and Maryland: use statistics to test whether blacks in Ohio were being stopped in numbers disproportionate to their presence in the driving population. Doing this would require data on stops broken down by race, and a comparison of those numbers to the percentage of black drivers on the roads. But if the goal was the same, two circumstances made the task considerably more difficult to accomplish in Ohio. First, Ohio does not collect statewide data on traffic stops that can be correlated with race. In fact, no police department of any sizeable city in the state keeps any data on all of its traffic stops that could be broken down by race. Second, the state legislators wanted some preliminary statistics to demonstrate that "driving while black" was a problem in all of Ohio, or at least in some significant--and different--parts of the whole state. While Lamberth's stationary and rolling survey methods worked well to ascertain the driving populations of particular stretches of individual, limited access highways, those methods were obviously resource- and labor-intensive. Applying the same methods to an entire city--even a medium-sized one--would entail duplicating the Lamberth approach on many major roads to get a complete picture. It would be impractical, not to mention prohibitively expensive, to do this in communities across an entire state. Thus, different methods had to be found.

To determine the percentage of blacks stopped, data was obtained from municipal courts in four Ohio cities. Municipal courts in Ohio handle all low-level criminal cases and virtually all of the traffic citations issued in the state. Most of these courts also generate a computer file for each case, which includes the race of the defendant as part of a physical description. This data provided the basis for a breakdown of all tickets given by the race of the driver.

The downside of using the municipal court data is that it only includes stops in which citations were given. Stops resulting in no action or a warning are not included. In all likelihood, using tickets alone might underestimate any racial bias that is present because police might not ticket blacks stopped for nontraffic purposes. Since using tickets could underestimate any possible racial bias, any resulting calculations are conservative and tend to give law enforcement the benefit of the doubt. Similarly, the way the racial statistics are grouped in the analysis is also conservative because the numbers are limited to only two categories of drivers: black and nonblack. In other words, all minorities other than African- Americans are lumped together with whites, even though some of these other minorities, notably Hispanics, have also complained about targeted stops directed at them. Using conservative assumptions means that if a bias does show up in the analysis, we can be relatively confident that it actually exists.

The percentage of all tickets in 1996, 1997, and the first four months of 1998 that were issued to blacks by the Akron, Dayton, and Toledo Police Departments and all of the police departments in Franklin County are set out in Table 1.

With ticketing percentages used as a measure of stops, attention turns to the other number needed for the analysis: the presence of blacks in the driving population. Given the concerns about the use of Lamberth's method in a statewide, preliminary study, another approach--a less exact one than direct observation, to be sure, but one that would yield a reasonable estimate of the driving population--was devised. Data from the U.S. Census breaks down the populations of states, counties, and individual cities by race and by age. This data is readily available and easy to use. Using this data, a reasonable basis for comparing ticketing percentages can be constructed: blacks versus nonblacks in the driving age population. This was done by breaking down the general population by race and by age. By selecting a lower and upper age limit--fifteen and seventy-five, respectively--for driving age, the data yield a reasonable reflection of what we would expect to find if we surveyed the roads themselves. The data on driving age population can also be sharpened by using information from the National Personal Transportation Survey, a study done every five years by the Federal Highway Administration of the U.S. Department of Transportation. The 1990 survey indicates that 21% of black households do not own a vehicle. If the driving age population figure is reduced by 21%, this gives us another baseline with which to make a comparison to the ticketing percentages. Both baselines--black driving age population, and black driving age population less 21%--for Akron, Dayton, Toledo, and Franklin County are set out in Table 2.

Table 2. Population Baselines

The ticketing percentages in Table 1 and the baselines in Table 2 can then be compared by constructing a "likelihood ratio" that will show whether blacks are receiving tickets in numbers that are out of proportion to their presence in the driving age population and the driving age population less 21%. The likelihood ratio will allow the following sentence to be completed: "If you're black, you're ___ times as likely to be ticketed by this police department than if you are not black." A likelihood ratio of approximately one means that blacks received tickets in roughly the proportion one would expect, given their presence in the driving age population. A likelihood ratio of much greater than one indicates that blacks received tickets at a rate higher than would be expected. Using both baselines--the black driving age population, and the black driving age population less 21%-- the likelihood ratios for Akron, Dayton, Toledo and Franklin County are presented in Table 3.

Table 3. Likelihood Ratio "If You're Black, You're __ Times as Likely

to Get a Ticket in This City Than if You Are Not Black"

Table 4 combines population baselines from Table 2 and likelihood ratios from Table 3.

Table 4. Combined Population Baselines and Likelihood Ratios

The method used here to attempt to discover whether "driving while black" is a problem in Ohio is less exact than the observation-based method used in New Jersey and Maryland. There are assumptions built into the analysis at several points in an attempt to arrive at reasonable substitutes for observation-based data. Since better data do not exist, all of the assumptions made in the analysis involve some speculation. But all of the assumptions are conservative, calculated to err on the side of caution. According to sociologist and criminologist Joseph E. Jacoby, the numbers used here probably are flawed because blacks are probably "at an even greater risk of being stopped" than these numbers show. For example, blacks are likely to drive fewer miles than whites, which suggests that police have fewer opportunities to stop blacks for traffic violations. In statistical terms, the biases in the assumptions are additive, not offsetting.

What do these figures mean? Even when conservative assumptions are built in, likelihood ratios for Akron, Dayton, Toledo, and Franklin County, Ohio, all either approach or exceed 2.0. In other words, blacks are about twice as likely to be ticketed as nonblacks. When the fact that 21% of black households do not own a vehicle is factored in, the ratios rise, with some approaching 3.0. Assuming that ticketing is a fair mirror of traffic stops in general, the data suggest that a "driving while black" problem does indeed exist in Ohio. There may be race-neutral explanations for the statistical pattern, but none seem obvious. At the very least, further study--something as accurate and exacting as Lamberth's studies in New Jersey and Maryland--is needed.

Why it Matters

The interviews excerpted here show that racially biased pretextual traffic stops have a strong and immediate impact on the individual African-American drivers involved. These stops are not the minor inconveniences they might seem to those who are not subjected to them. Rather, they are experiences that can wound the soul and cause psychological scar tissue to form. And the statistics show that these experiences are not simply disconnected anecdotes or exaggerated versions of personal experiences, but rather established and persistent patterns of law enforcement conduct. It may be that these stops do not spring from racism on the part of individual officers, or even from the official policies of the police departments for which they work. Nevertheless, the statistics leave little doubt that, whatever the source of this conduct by police, it has a disparate and degrading impact on blacks.

But racial profiling is important not only because of the damage it does, but also because of the connections between stops of minority drivers and other, larger issues of criminal justice and race. Put another way, "driving while black" reflects, illustrates, and aggravates some of the most important problems we face today when we debate issues involving race, the police, the courts, punishment, crime control, criminal justice, and constitutional law.

A. The Impact on the Innocent

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures, and specifies some of the requirements to be met in order to procure a warrant for a search. Since 1961--and earlier in the federal court system--the Supreme Court has required the exclusion of any evidence obtained through an unconstitutional search or seizure. From its inception, the exclusionary rule has inspired spirited criticism. Cardozo himself said that "the criminal is to go free because the constable has blundered," capturing the idea that the bad guy, caught red handed, gets a tremendous windfall when he escapes punishment because of a mistake in the police officer's behavior. We need not even go all the way back to Cardozo to hear the argument that the exclusion of evidence protects--and rewards--only the guilty.

The justification advanced for the exclusionary rule is that while the guilty may receive the most direct benefit when a court suppresses evidence because of a constitutional violation, the innocent--all the rest of us--are also better off. The right to be free from illegal searches and seizures belongs not just to the guilty, but to everyone. The guilty parties who bring motions to suppress are simply the most convenient vehicles for vindicating these rights, because they will have the incentive--escaping conviction--to litigate the issues. In so doing, the argument goes, the rights of all are vindicated, and police are deterred from violating constitutional rules on pain of failing to convict the guilty. One problem with this argument is that it takes imagination: the beneficiaries of suppressed evidence other than the guilty who escape punishment are ephemeral and amorphous. They are everybody--all of us. And if they are everybody, they quickly become nobody, because law-abiding, taxpaying citizens are unlikely to view ourselves as needing these constitutional protections. After all, we obey the law; we do not commit crimes. We can do without these protections--or so we think.

It is not my intention here to recapitulate every argument for and against the exclusionary rule. Rather, I wish to point out a major difference between the usual Fourth Amendment cases and the most common "driving while black" cases. While police catch some criminals through the use of pretext stops, far more innocent people are likely to be affected by these practices than criminals. Indeed, the black community as a whole undoubtedly needs the protection of the police more than other segments of society because African- Americans are more likely than others to be victims of crime. Ironically, it is members of that same community who are likely to feel the consequences of pretextual stops and be treated like criminals. It is the reverse of the usual Fourth Amendment case, in that there is nothing ghostlike or indefinite about those whose rights would be vindicated by addressing these police practices. On the contrary, the victims are easy to identify because they are the great majority of black people who are subjected to these humiliating and difficult experiences but who have done absolutely nothing to deserve this treatment--except to resemble, in a literally skin-deep way, a small group of criminals. While whites who have done nothing wrong generally have little need to fear constitutional violations by the police, this is decidedly untrue for blacks. Blacks attract undesirable police attention whether they do anything to bring it on themselves or not. This makes "driving while black" a most unusual issue of constitutional criminal procedure: a search and seizure question that directly affects a large, identifiable group of almost entirely innocent people.

B. The Criminalization of Blackness

The fact that the cost of "driving while black" is imposed almost exclusively on the innocent raises another point. Recall that by allowing the police to stop, question, and sometimes even search drivers without regard to the real motives for the search, the Supreme Court has, in effect, turned a blind eye to the use of pretextual stops on a racial basis. That is, as long as the officer or the police department does not come straight out and say that race was the reason for a stop, the stop can always be accomplished based on some other reason--a pretext. Police are therefore free to use blackness as a surrogate indicator or proxy for criminal propensity. While it seems unfair to view all members of one racial or ethnic group as criminal suspects just because some members of that group engage in criminal activity, this is what the law permits.

Stopping disproportionate numbers of black drivers because some small percentage are criminals means that skin color is being used as evidence of wrongdoing. In effect, blackness itself has been criminalized. And if "driving while black" is a powerful example, it is not the only one. For instance, in 1992, the city of Chicago enacted an ordinance that made it a criminal offense for gang members to stand on public streets or sidewalks after police ordered them to disperse. The ordinance was used to make over forty-five thousand arrests of mostly African-American and Latino youths before Illinois courts found the ordinance unconstitutionally vague. Supporters said that the law legitimately targeted gang members who made the streets of black and Latino neighborhoods unsafe for residents. Accordingly, the thousands of arrests that resulted were a net good, regardless of the enormous amount of police discretion that was exercised almost exclusively against African-Americans and Hispanics. Opponents, such as Professor David Cole, argued that the ordinance had, in effect, created a new crime: "standing while black." In June of 1999, the U.S. Supreme Court declared the law unconstitutional, because it did not sufficiently limit the discretion of officers enforcing it.

The arrests under the Chicago ordinance share something with "driving while black": in each instance, the salient quality that attracts police attention will often be the suspect's race or ethnicity. An officer cannot know simply by looking whether a driver has a valid license or carries insurance, as the law requires, and cannot see whether there is a warrant for the arrest of the driver or another occupant of the car. But the officer can see whether the person is black or white. And, as the statistics presented here show, police use blackness as a way to sort those they are interested in investigating from those that they are not. As a consequence, every member of the group becomes a potential criminal in the eyes of law enforcement.

C. Rational Discrimination

When one hears the most common justification offered for the disproportionate numbers of traffic stops of African-Americans, it usually takes the form of rationality, not racism. Blacks commit a disproportionate share of certain crimes, the argument goes. Therefore, it only makes sense for police to focus their efforts on African-Americans. To paraphrase the Maryland State Police officer quoted at the beginning of this Article, this is not racism--it is good policing. It only makes sense to focus law enforcement efforts and resources where they will make the most difference. In other words, targeting blacks is the rational, sound policy choice. It is the efficient approach, as well.

As appealing as this argument may sound, it is fraught with problems because its underlying premise is dubious at best. Government statistics on drug offenses, which are the basis for the great majority of pretext traffic stops, tell us virtually nothing about the racial breakdown of those involved in drug crime. Thinking for a moment about arrest data and victimization surveys makes the reasons for this clear. These statistics show that blacks are indeed overrepresented among those arrested for homicide, rape, robbery, aggravated assault, larceny/theft, and simple assault crimes. Note that because they directly affect their victims, these crimes are at least somewhat likely to be reported to the police and to result in arrests. By contrast, drug offenses are much less likely to be reported, since possessors, buyers, and sellers of narcotics are all willing participants in these crimes. Therefore, arrest data for drug crimes is highly suspect. These data may measure the law enforcement activities and policy choices of the institutions and actors involved in the criminal justice system, but the number of drug arrests does not measure the extent of drug crimes themselves. Similarly, the racial composition of prisons and jail populations or the racial breakdown of sentences for these crimes only measures the actions of those institutions and individuals in charge; it tells us nothing about drug activity itself.

Other statistics on both drug use and drug crime show something surprising in light of the usual beliefs many hold: blacks may not, in fact, be more likely than whites to be involved with drugs. Lamberth's study in Maryland showed that among vehicles stopped and searched, the "hit rates"--the percentage of vehicles searched in which drugs were found--were statistically indistinguishable for blacks and whites. In a related situation, the U.S. Customs Service, which is engaged in drug interdiction efforts at the nation's airports, has used various types of invasive searches from pat downs to body cavity searches against travelers suspected of drug use. The Custom Service's own nationwide figures show that while over forty-three percent of those subjected to these searches were either black or Hispanic, "hit rates" for these searches were actually lower for both blacks and Hispanics than for whites. There is also a considerable amount of data on drug use that belies the standard beliefs. The percentages of drug users who are black or white are roughly the same as the presence of those groups in the population as a whole. For example, blacks constitute approximately twelve percent of the country's population. In 1997, the most recent year for which statistics are available, thirteen percent of all drug users were black. In fact, among black youths, a demographic group often portrayed as most likely to be involved with drugs, use of all illicit substances has actually been consistently lower than among white youths for twenty years running.

Nevertheless, many believe that African-Americans and members of other minority groups are responsible for most drug use and drug trafficking. Carl Williams, the head of the New Jersey State Police dismissed by the Governor in March of 1999, stated that "mostly minorities" trafficked in marijuana and cocaine, and pointed out that when senior American officials went overseas to discuss the drug problem, they went to Mexico, not Ireland. Even if he is wrong, if the many troopers who worked for Williams share his opinions, they will act accordingly. And they will do so by looking for drug criminals among black drivers. Blackness will become an indicator of suspicion of drug crime involvement. This, in turn, means that the belief that blacks are disproportionately involved in drug crimes will become a self- fulfilling prophecy. Because police will look for drug crime among black drivers, they will find it disproportionately among black drivers. More blacks will be arrested, prosecuted, convicted, and jailed, thereby reinforcing the idea that blacks constitute the majority of drug offenders. This will provide a continuing motive and justification for stopping more black drivers as a rational way of using resources to catch the most criminals. At the same time, because police will focus on black drivers, white drivers will receive less attention, and the drug dealers and possessors among them will be apprehended in proportionately smaller numbers than their presence in the population would predict.

The upshot of this thinking is visible in the stark and stunning numbers that show what our criminal justice system is doing when it uses law enforcement practices like racially-biased traffic stops to enforce drug laws. African- Americans are just 12% of the population and 13% of the drug users, but they are about 38% of all those arrested for drug offenses, 59% of all those convicted of drug offenses, and 63% of all those convicted for drug trafficking. While only 33% of whites who are convicted are sent to prison, 50% of convicted blacks are jailed, and blacks who are sent to prison receive higher sentences than whites for the same crimes. For state drug defendants, the average maximum sentence length is fifty-one months for whites and sixty months for blacks.

D. The Distortion of the Legal System

Among the most serious effects of "driving while black" on the larger issues of criminal justice and race are those it has on the legal system itself. The use of pretextual traffic stops distorts the whole system, as well as our perceptions of it. This undermines the system's legitimacy, which effects not only African-Americans but every citizen, since the health of our country depends on a set of legal institutions that have the public's respect.

1. Deep Cynicism

Racially targeted traffic stops cause deep cynicism among blacks about the fairness and legitimacy of law enforcement and courts. Many of those African-Americans interviewed for this Article said this, some in strong terms. Karen Brank said she thought that her law-abiding life, her responsible job, her education, and even her gender protected her from arbitrary treatment by the police. She thought that these stops happened only to young black men playing loud music in their cars. Now, she feels she was "naive," and has considerably less respect for police and all legal institutions. For James, who looks at himself as someone who has toed the line and lived an upright life, constant stops are a reminder that whatever he does, no matter how well he conducts himself, he will still attract unwarranted police attention. Michael describes constant police scrutiny as something blacks have to "play through," like athletes with injuries who must perform despite significant pain.

Thus, it is no wonder that blacks view the criminal justice system in totally different terms than whites do. They have completely different experiences within the system than whites have, so they do not hold the same beliefs about it. Traffic stops of whites usually concern the actual traffic offense allegedly committed; traffic stops of blacks are often arbitrary, grounded not in any traffic offense but in who they are. Since traffic stops are among the most common encounters regular citizens have with police, it is hardly surprising that pretextual traffic stops might lead blacks to view the whole of the system differently. One need only think of the split-screen television images that followed the acquittal in the O.J. Simpson case--stunned, disbelieving whites, juxtaposed with jubilant blacks literally jumping for joy--to understand how deep these divisions are. Polling data have long shown that blacks believe that the justice system is biased against them. For example, in a Justice Department survey released in 1999, blacks were more than twice as likely as whites to say they are dissatisfied with the police. But this cynicism is no longer limited to blacks; it is now beginning to creep into the general population's perception of the system. Recent data show that a majority of whites believe that police racism toward blacks is common. The damage done to the legitimacy of the system has spread across racial groups, and is no longer confined to those who are most immediately affected.

Perhaps the most direct result of this cynicism is that there is considerably more skepticism about the testimony of police officers than there used to be. This is especially true in minority communities. Both the officer and the driver recognize that each pretextual traffic stop involves an untruth. When a black driver asks a police officer why he or she has been stopped, the officer will most likely explain that the driver committed a traffic violation. This may be literally true, since virtually no driver can avoid committing a traffic offense. But odds are that the violation is not the real reason that the officer stopped the driver. This becomes more than obvious when the officer asks the driver whether he or she is carrying drugs or guns, and for consent to search the car. If the stop was really about enforcement of the traffic laws, there would be no need for any search. Thus, for an officer to tell a driver that he or she has been stopped for a traffic offense when the officer's real interest is drug interdiction is a lie--a legally sanctioned one, to be sure, but a lie nonetheless. It should surprise no one, then, that the same people who are subjected to this treatment regard the testimony and statements of police with suspicion, making it increasingly difficult for prosecutors to obtain convictions in any case that depends upon police testimony, as so many cases do. The result may be more cases that end in acquittals or hung juries, even factually and legally strong ones.

2. The Effect on the Guilty

As discussed above, one of the most important reasons that the "driving while black" problem represents an important connection to many larger issues of criminal justice and race is that, unlike many other Fourth Amendment issues, the innocent pay a clear and direct price. Citizens who are not criminals are seen as only indirect beneficiaries of Fourth Amendment litigation in other contexts because the guilty party's vindication of his or her own rights serves to vindicate everyone's rights. Law-abiding blacks, however, have a direct and immediate stake in redressing the "driving while black" problem. While pretextual traffic stops do indeed net some number of law breakers, innocent blacks are imposed upon through frightening and even humiliating stops and searches far more often than the guilty. But the opposite argument is important, too: "driving while black" has a devastating impact upon the guilty. Those who are arrested, prosecuted, and often jailed because of these stops, are suffering great hardships as a result.

The response to this argument is usually that if these folks are indeed guilty, so what? In other words, it is a good thing that the guilty are caught, arrested, and prosecuted, no matter if they are black or white. This is especially true, the argument goes, in the black community, because African- Americans are disproportionately the victims of crime.

But this argument overlooks at least two powerful points. First, prosecution for crimes, especially drug crimes, has had an absolutely devastating impact on black communities nationwide. In 1995, about one in three black men between the ages of 20 and 29 were under the control of the criminal justice system--either in prison or jail, on probation, or on parole. In Washington, D.C., the figure is 50% for all black men between the age of eighteen and thirty-five. Even assuming that all of those caught, prosecuted, convicted and sentenced are guilty, it simply cannot be a good thing that such a large proportion of young men from one community are adjudicated criminals. They often lose their right to vote, sometimes permanently. To say that they suffer difficulties in family life and in gaining employment merely restates the obvious. The effect of such a huge proportion of people living under these disabilities permanently changes the circumstances not just of those incarcerated, but of everyone around them.

This damage is no accident. It is the direct consequence of "rational law enforcement" policies that target blacks. Put simply, there is a connection between where police look for contraband and where they find it. If police policy, whether express or implied, dictates targeting supposedly "drug involved" groups like African-Americans, and if officers follow through on this policy, they will find disproportionate numbers of African-Americans carrying and selling drugs. By the same token, they will not find drugs with the appropriate frequency on whites, because the targeting policy steers police attention away from them. This policy not only discriminates by targeting large numbers of innocent, law abiding African-Americans; it also discriminates between racial groups among the guilty, with blacks having to bear a far greater share of the burden of drug prohibition.

3. The Expansion of Police Discretion

As the discussion of the law involving traffic stops and the police actions that often follow showed, police have nearly complete discretion to decide who to stop. According to all of the evidence available, police frequently exercise this discretion in a racially-biased way, stopping blacks in numbers far out of proportion to their presence on the highway. Law enforcement generally sees this as something positive because the more discretion officers have to fight crime, the better able they will be to do the job.

Police discretion cannot be eliminated; frankly, even if it could be, this would not necessarily be a desirable goal. Officers need discretion to meet individual situations with judgment and intelligence, and to choose their responses so that the ultimate result will make sense. Yet few would contend that police discretion should be limitless. But this is exactly what the pretextual stop doctrine allows. Since everyone violates the traffic code at some point, it is not a matter of whether police can stop a driver, but which driver they want to stop. Police are free to pick and choose the motorists they will pull over, so factors other than direct evidence of law breaking come into play. In the "driving while black" situation, of course, that factor is race. In other law enforcement areas in which the state has nearly limitless discretion to prosecute, the decision could be based on political affiliation, popularity, or any number of other things. What these arenas have in common is that enforcement depends upon external factors, instead of law breaking.

Arguments examining law enforcement discretion have great resonance in the wake of the impeachment of President Clinton. The President was pursued by Independent Counsel Kenneth Starr for four years. Starr had an almost limitless budget, an infinite investigative time frame, and an ever- expandable mandate to investigate a particular set of individuals for any possible criminal activity, rather than to investigate particular offenses. In other words, Starr had nearly complete discretion. This was foreseen in 1988 by Justice Scalia in his dissent in Morrison v. Olsen, the case in which the Supreme Court held the independent counsel statute constitutional. In a long final section of his opinion, Scalia decried the Independent Counsel Act not only as unconstitutional but also as bad policy, precisely because it gave the prosecutor nearly unlimited discretion. Among the words Justice Scalia chose to express this idea were those of Justice Robert Jackson, who, as Attorney General, talked about prosecutorial discretion in a speech to the Second Annual Conference of United States Attorneys. Jackson could just as easily have been discussing police discretion to make traffic stops; in fact, he used that very activity as an illustration.

"Law enforcement is not automatic. It isn't blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. . . . We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning. . . . If the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. . . . It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself."

By substituting "the police" for "the prosecutor" in this excerpt, one gets a strong sense of the unfairness of pretextual traffic stops. The person subjected to a pretextual stop is not targeted for his or her law breaking activity, but for other reasons--in this case, membership in a particular racial or ethnic group thought to be disproportionately involved in drug crimes. And the law leaves police absolutely free to do this.

4. Sentencing

"Driving while black" also distorts the sentences that African-Americans receive for crimes. Research shows that blacks receive longer sentences than whites for the same crimes. One might hope that, with the advent of guidelines systems designed to limit judicial discretion in sentencing through the use of strictly applied nonracial criteria, this discrepancy might begin to disappear, but it has not.

A recent federal sentencing decision illustrates the point. In December of 1998, Judge Nancy Gertner of the Federal District Court for the District of Massachusetts sentenced a defendant named Alexander Leviner for the crime of being a felon in possession of a firearm. Under the Federal Sentencing Guidelines, a major determinant of the sentence a defendant receives is his or her record of prior offenses. The worse the record, the greater the offender score; the greater the offender score, the longer the sentence. Judge Gertner found that Leviner's record consisted "overwhelmingly" of "motor vehicle violations and minor drug possession offenses." Since all of the available evidence indicated that African-Americans experience a proportionally greater number of traffic stops than whites, Judge Gertner reasoned that allowing Leviner's offender score to be inflated by these traffic stop-related offenses represented a continuation of the racial discrimination implicit in the prior offenses into the sentencing process. The judge felt this was improper, and as a result accorded Leviner a "downward departure"--a cut in the usual sentence he could expect, given his criminal record.

It is not clear whether Judge Gertner's decision will survive an appeal. It may be true that police, in general, discriminate against black motorists in their use of traffic stops. But this does not mean that any of the particular stops Leviner experienced in the past were the result of bias. Thus, an appellate court may not find Leviner deserving of the downward departure. Nevertheless, Judge Gertner's opinion points out something important, and not just in Leviner's case. "Driving while black" can have grave consequences not just immediately, when drivers may be at best irritated and at worst arrested or abused, but in the long term, as a minor criminal record builds over time to the point that it comes back to haunt a defendant by enhancing considerably the sentence in some future proceeding. This is simply less likely to happen to whites.

E. Distortion of the Social World

"Driving while black" distorts not only the perception and reality of the criminal justice system, but also the social world. For example, many African-Americans cope with the possibility of pretextual traffic stops by driving drab cars and dressing in ways that are not flamboyant so as not to attract attention. More than that, "driving while black" serves as a spatial restriction on African-Americans, circumscribing their movements. Put simply, blacks know that police and white residents feel that there are areas in which blacks "do not belong." Often, these are all-white suburban communities or upscale commercial areas. When blacks drive through these areas, they may be watched and stopped because they are "out of place." Consequently, blacks try to avoid these places if for no other reason than that they do not want the extra police scrutiny. It is simply more trouble than it is worth to travel to or through these areas. While it is blacks themselves who avoid these communities, and not police officers or anyone else literally keeping them out, in practice it makes little difference. African-Americans do not enter if they can avoid doing so, whether by dint of self-restriction or by government policy.

Another recent example shows even more clearly how "driving while black" can distort the social world. In 1998, the federal government launched "Buckle Up America" in an effort to increase seat belt use. The goal of this national campaign was to make the failure to wear seat belts a primary offense in all fifty states. In many states, seat belt laws are secondary offenses--infractions for which the police cannot stop a car, but for which they can issue a citation once the car is stopped for something else and the seat belt violation is discovered. If seat belt laws are made primary instead of secondary laws, the reasoning is that this would increase seat belt use, which would save thousands of lives per year. Since studies have shown that young African-Americans and Hispanics are more likely to die in automobile accidents than whites because of failure to wear seat belts, any effort to increase seat belt use would likely benefit the black and Hispanic communities more than any other groups.

Given that less frequent use of seats belts has a high cost in the lives and suffering of people of color, one would think that any responsible black organization would do everything possible to support efforts like Buckle Up America. And that is what made the position taken by the National Urban League on the issue so puzzling, at least at first blush. The Urban League told the Secretary of Transportation that its "affiliates' willingness to fully embrace [the] campaign began to stall" because of concern that primary seat belt enforcement laws would simply give police another tool with which to harass black drivers. The League said it could not sign on to the campaign without assurances "that the necessary protections will be put in to ensure that black people and other people of color specifically are not subject to arbitrary stops by police under the guise of enforcement of seat belt laws."

This is a truly disturbing distortion of social reality. Faced with a request to join a campaign to save lives through encouraging the use of a known and proven safety device, the use of which might require some greater degree of traffic enforcement, the decision is not easy for African-Americans. On the contrary, it presents an agonizing choice: encourage the seat belt campaign to save lives and hand the police another reason to make arbitrary stops, or oppose the campaign because of the danger of arbitrary police action, knowing that blacks will be injured and killed in disproportionate numbers because they use seat belts less frequently than others do. Stated simply, it is a choice whites do not have to make.

F. The Undermining of Community-Based Policing

Until recently, police departments concentrated on answering distress calls. The idea was to have police respond to reports of crime relayed to them from a central dispatcher. In essence, the practice was reactive; the idea was to receive reports of crimes committed and respond to them.

But over the past few years, modern policing has moved away from the response model. It was thought to be too slow and too likely to isolate officers from the people and places in which they worked. The new model is often referred to as community policing. Though the term sometimes seems to have as many meanings as people who use it, community policing does have some identifiable characteristics. The idea is for the police to serve the community and become part of it, not to dominate it or occupy it. To accomplish this, police become known to and involved with residents, make efforts to understand their problems, and attack crime in ways that help address those difficulties. The reasoning is that if the police become part of the community, members of the public will feel comfortable enough to help officers identify troubled spots and trouble makers. This will make for better, more proactive policing aimed at problems residents really care about, and engender a greater degree of appreciation of police efforts by residents and more concern for neighborhood problems by the police.

In many minority communities, the history of police/community relations has been characterized not by trust, but by mutual distrust. In Terry v. Ohio, the fountain head of modern street-level law enforcement, the Supreme Court candidly acknowledged that police had often used stop and frisk tactics to control and harass black communities. As one veteran African-American police officer put it, "Black people used to call the police 'the law.' They were the law . . . . The Fourth Amendment didn't apply to black folks because it only applied to white folks." For blacks, trusting the police is difficult; it goes against the grain of years of accumulated distrust and wariness, and countless experiences in which blacks have learned that police are not necessarily there to protect and serve them.

Yet, it is obvious that community policing--both its methods and its goals--depends on mutual trust. As difficult as it will be to build, given the many years of disrespect blacks have suffered at the hands of the police, the community must feel that it can trust the police to treat them as law-abiding citizens if community policing is to succeed. Using traffic stops in racially disproportionate numbers will directly and fundamentally undermine this effort. Why should law-abiding residents of these communities trust the police if, every time they go out for a drive, they are treated like criminals? If the "driving while black" problem is not addressed, community policing will be made much more difficult and may even fail. Thus, aside from the damage "driving while black" stops inflict on African-Americans, there is another powerful reason to change this police behavior: it is in the interest of police departments themselves to correct it.

The Legal Context

When they hear some of the personal stories concerning traffic stops, some lay people (almost always whites) are genuinely surprised. Aside from issues concerning the racial aspects of the problem, the same questions almost always come up: Can the police do this? Does the law allow police to stop any driver, any time they wish? Don't they have to have a reason, some rationale, to think the occupants of the car committed a crime? The answer usually surprises them. Yes, police need a reason to stop the car, but they virtually always have it, without seeing any criminal activity. And the law makes it very easy to proceed from the stop to questioning and searching, with no more evidence than a hunch.

For many years, the Supreme Court has allowed police to stop and search a vehicle without a warrant when they have probable cause to believe that it contains contraband or evidence of a crime. The Court reasoned that since automobiles were inherently mobile, it made no sense to require officers to leave and obtain a warrant because the suspect would simply drive away. Over the years, the Court has broadened the rationale for the "automobile exception," saying that in addition to mobility, the fact that cars are heavily regulated and inherently less private means that warrants should not be required.

But the automobile exception only represents the beginning of the Court's cases that allow police considerable discretion over cars, their drivers, and their passengers. In 1996, the Supreme Court addressed directly the constitutionality of pretextual traffic stops. The Court used Whren v. United States to resolve a circuit split, ruling that police can use traffic stops to investigate their suspicions, even if those suspicions have nothing to do with traffic enforcement and even if there is no evidence of criminal behavior by the driver upon which to base those suspicions. The officer's subjective intent makes no difference. This is true, the Court said, even if a reasonable officer would not have stopped the car in question. As long as there was, in fact, a traffic offense, the officer had probable cause to stop the car. The fact that traffic enforcement was only a pretext for the stop had no Fourth Amendment significance, and no evidence would be excluded as a result. Since no one can drive for even a few blocks without committing a minor violation-- speeding, failing to signal or make a complete stop, touching a lane or center line, or driving with a defective piece of vehicle equipment--Whren means that police officers can stop any driver, any time they are willing to follow the car for a short distance. In other words, police know that they can use the traffic code to their advantage, and they utilize it to stop vehicles for many nontraffic enforcement purposes.

But Whren does not stand alone. It represents the culmination of twenty years of cases in which the Court has steadily increased police power and discretion over vehicles and drivers. Once the police stop a car, utilizing Whren, the plain view exception may come into play. During the traffic stop, officers have the opportunity to walk to the driver's side window and, while requesting license and registration, observe everything inside the car. This includes not only the car and its contents, but the driver. If it is dark, the officers can enhance a plain view search by shining a flashlight into any area that would be visible if it were daylight. If the officers observe an object in plain view and it is immediately apparent, without further searching, that it is contraband, they can make an arrest on the spot. During this initial encounter, they can also have both the driver and the passenger get out of the vehicle, without any reason to suspect them of any wrongdoing.

If there is an arrest, the police can go further. They can do a thorough search of the passenger compartment and all closed containers inside. They can also "frisk" the car if there is anything resembling a weapon in plain view. Even if nothing is seen in plain view, police can question the driver and passengers without giving them Miranda warnings. The officers are likely to keep the tone of the questioning amicable, but this is more than just carside chit-chat. It is a purposeful, directed effort to get the driver talking. The answers may disclose something that seems suspicious.

Police may continue questioning even after a driver answers every question satisfactorily and in a way that does not raise any suspicion of guilt. The real goal of the questioning is to gather information and impressions that will help the officers decide whether they want to search the car. In the event that they do, the officers will try to obtain the driver's consent. A great number of vehicle searches begin with a request for consent. The initial friendly discussion helps put the driver in the frame of mind to respond to the troopers helpfully, making cooperation and consent more likely. And this technique usually works. Whether out of a desire to help, fear, intimidation, or a belief that they cannot refuse, most people consent. The police need not tell the driver that she has a right to refuse consent, or that she is free to go. As one veteran state trooper told a reporter, in two years of stops, "I've never had anyone tell me I couldn't search." And while a driver could surely limit consent-- "You can look through my car, but not my luggage"--most of the searches are in fact quite thorough and include personal effects.

But even if there is no contraband in plain view, and the driver refuses consent, the officers' quiver is still not empty: they may still use a dog trained to detect narcotics. Since the Supreme Court has declared that the use of these dogs does not constitute a search, police may use them without probable cause or reasonable suspicion of any kind. This makes them ideal tools for the "no consent and no visible evidence" situation, because no consent or evidence--in fact, no justification at all--is necessary. Any police department with the funds to pay for them has one or more "K-9 teams" available at all times. The dogs can be called in to search when there is a refusal. Better yet, officers might short circuit the whole process by using the dog as soon as a car is stopped, without even seeking consent. If the dog indicates the presence of narcotics by characteristic barking or scratching, that information itself constitutes probable cause for a full-scale search.

The upshot is that officers are free to exercise a vast amount of discretion when they decide who to stop. And as the statistics show, police stop African- Americans more often than their presence in the driving population would predict, since blacks and whites violate the traffic laws at about the same rate. There are two likely explanations for this. First, the decisions of the last twenty years surveyed here allowing police ever-greater power over vehicles, drivers and even passengers, come from the crime-control model of criminal procedure. One can see this in numerous decisions, but especially in the consent search cases, Schneckloth v. Bustamonte and Ohio v. Robinette. In both, the Court used the rhetoric of balancing, but in reality gave short shrift to any interest other than law enforcement. It would be "thoroughly impractical" to tell citizens they have a right to refuse to consent to a search, the Court said in Schneckloth, because this might interfere with the ability of the police to utilize consent searches. In other words, if people were told they did not have to consent, some might actually exercise this right and refuse. Because of law enforcement's interest in performing consent searches, it is preferable to enable the police to take advantage of citizens' ignorance of their rights. Robinette, decided more than twenty years later, sounded the same note. It would be "unrealistic" to tell citizens whom the police have no reason to detain that they are free to go before the police ask for consent to search. This statement is unaccompanied by even the barest explanation or analysis, save reference to Schneckloth. Years of cases like these make it obvious that the Court has control of crime at the top of its criminal law agenda, and it has decided cases in ways designed to enable the police to do whatever is necessary to "win."

Second, by making the power of the police to control crime its top priority in criminal law, the Court--whether intentionally or not--has freed law enforcement from traditional constraints to such a degree that police can use blackness as a proxy for criminal propensity. In other words, officers are free, for allpractical purposes, to act on the assumption that being black increases the probability that an individual is a criminal. The statistics presented here suggest that is exactly what the police are doing. But this means that all African-Americans get treated as criminal suspects, not just those who have committed crimes. And there are virtually no data that tell us just how many innocent people police officers stop for each criminal they catch.

Addressing the Problem

With the Supreme Court abdicating any role for the judiciary in regulating these police practices under the Fourth Amendment, leadership must come from other directions and other institutions. What other approaches might be fruitful sources of change?

A. The Traffic Stops Statistics Act

At the beginning of the 105th Congress, Representative John Conyers of Michigan introduced House Bill 118, the Traffic Stops Statistics Act of 1997. This bill would provide for the collection of several categories of data on each traffic stop, including the race of the driver and whether and why a search was performed. The Attorney General would then summarize the data in the first nationwide, statistically rigorous study of these practices. The idea behind the bill was that if the study confirmed what people of color have experienced for years, it would put to rest once and for all the idea that African-Americans who have been stopped for "driving while black" are exaggerating isolated anecdotes into a social problem. Congress and other bodies might then begin to take concrete steps to channel police discretion more appropriately. The Act passed the House of Representatives in March of 1998 with bipartisan support, and then was referred to the Senate Judiciary Committee. When police opposition arose, the Senate took no action and the bill died at the end of the session. Congressman Conyers reintroduced the measure in April of 1999.

The Traffic Stops Statistics Act is a very modest bill, a first step toward addressing a difficult problem. It mandated no concrete action on the problem; it did not regulate traffic stops, set standards for them, or require implementation of particular policies. It was merely an attempt to gather solid, comprehensive information, so that discussion of the problem could move ahead beyond the debate of whether or not the problem existed. Still, the bill attracted enough law enforcement opposition to kill it. But even if the Act did not pass the last Congress and subsequent bills also fail, it seems to have had at least one interesting effect: it has inspired action at the state and local level.

B. State Legislation

As important as national legislation on this issue would be, congressional action is no longer the only game in town. In fact, efforts are underway in a number of states to address the problem. For example, last year in California, Assembly Bill (A.B.) 1264, a bill patterned on Representative Conyers' federal effort, passed both houses of the state assembly. Weakening amendments were attached during the legislative process, but A.B. 1264 nevertheless represented the first state-level legislative victory on this issue. Unfortunately, then-Governor Pete Wilson vetoed the bill. A new bill was introduced in the California State Assembly in 1999. The bill passed both houses of the state legislature by large bipartisan margins, but it was vetoed by Governor Gray Davis, who then urged all California police departments to collect this data voluntarily.

This is not the only effort underway. By mid-1999, two state bills had become law: one in North Carolina and one in Connecticut. Bills have also been introduced in Arkansas, Rhode Island, Pennsylvania, Illinois, Virginia, Massachusetts, Ohio, New Jersey, Maryland, South Carolina, Oklahoma, and Florida. While all of these measures differ in their particulars, they are all variations on Representative Conyers' bill--they mandate the collection of data and analyses of these data. But it is important to remember that legislative efforts can take other approaches. There is no reason not to consider other options, such as the use of funding as either carrot or stick or both, to require the enactment of state law that mandates implementation of specific law enforcement policies, or the like.

C. Local Action

Of course, legislative action is not required for a police department to collect data and to take other steps to address the "driving while black" problem. When a department realizes that it is in its own interest to take action, it can go ahead without being ordered to do so. This is precisely what happened in San Diego, California. In February 1999, Jerome Sanders, the city's Chief of Police, announced that the department would begin to collect data on traffic stops, without any federal or state requirement. The Chief's statement showed a desire to find out whether in fact the officers in his department were engaged in enforcing traffic laws on a racially uneven basis. If so, the problem could then be addressed. If the numbers did not show this, the statistics might help to dispel perceptions to the contrary.

Thus far, San Diego, San Jose, Oakland, and Houston are the largest urban jurisdictions to do this, but they are not alone. Police in over thirty other cities in California, as well as departments in Michigan, Florida, Washington and Rhode Island, are also collecting data. Police departments, not courts, are in the best possible position to take action--by collecting data, by re-training officers, and by putting in place and enforcing policies against the racially disproportionate use of traffic stops. Taking the initiative in this fashion allows a police department to control the process to a much greater extent than it might if it is mandated from the outside. And developing regulations from inside the organization usually will result in greater compliance by those who have to follow these rules--police officers themselves. This represents a promising new approach to the problem. The police must first, of course, realize that there is a problem, and that doing something about it is in their interest.

D. Litigation

Another way to address racial profiling is to bring lawsuits under the Equal Protection Clause and federal civil rights statutes. In Whren, the U.S. Supreme Court said that under the Fourth Amendment of the U.S. Constitution courts can no longer suppress evidence in pretextual stop cases. But the Court did leave open the possibility of attacking racially-biased law enforcement activity under the Equal Protection Clause with civil suits. There are a number of such suits around the country that are either pending or recently concluded, including cases in Maryland, Florida, Indiana, and Illinois.

It is important not to underestimate the difficulty of filing a lawsuit against a police department alleging racial bias. These cases require an "attractive" plaintiff who will not make a bad impression due to prior criminal record, current criminal involvement, or the like. They also require a significant amount of resources. For this reason, organizations interested in this issue, particularly the American Civil Liberties Union, have taken the lead in bringing these cases. Last but not least, it takes a plaintiff with guts to stand up and publicly sue a police department in a racially-charged case. Most people would probably rather walk away from these experiences, no matter how difficult and humiliating, than get into a legal battle with law enforcement.

E. Search and Seizure Challenges Under State Constitutional Provisions, Case Law, and Statutes

Another possibility is the use of state constitutional provisions, cases and statutes to challenge these stops. For example, in the New Jersey case for which Lamberth conducted his study, the defendant brought his motion to dismiss under state case law that is different from Whren. New Jersey law affords more protection to its citizens than the federal Constitution does. Under New Jersey case law, a judge can grant a motion to suppress when there is evidence of racial bias, but the Fourth Amendment, as interpreted by the Supreme Court in Whren, would not allow this. A second example comes from New York. In People v Dickson, a New York state judge recently reaffirmed that New York's state constitution prohibits the use of pretextual stops, in direct contradiction to Whren. And in Whitehead v. State, the Maryland Court of Special Appeals ruled that even if the pretextual stop of the defendant met Whren's constitutional standard, the detention that followed the stop was too long, resulting in the suppression of evidence. All of these cases represent promising approaches spurred by state court hostility to pretextual traffic stops, which made these courts willing to consider creative state law-based legal theories.


Everyone wants criminals caught. Few feel this with more urgency than African-Americans, who are so often the victims of crime. But we must choose our methods carefully. As a country, we must strive to avoid police practices that impose high costs on law abiding citizens, and that skew those costs heavily on the basis of race.

African-Americans clearly feel aggrieved by pretextual traffic stops. It is virtually impossible to find black people who do not feel that they have experienced racial profiling. The statistics presented here show that this is more than just the retelling of stories based on isolated instances of police behavior. Rather, the patterns in the data are strong, even when the data are not ideal. These experiences have a deep psychological and emotional impact on the individuals involved, and they also have a significant connection to many of the most basic problems in criminal justice and race.

Surely a solution will not be easy to achieve. There are, after all, many among the law enforcement community and its supporters who disfavor even the most basic first steps toward an understanding of the problem through the collection of comprehensive, accurate data. Yet it is with these same people that the best hope for any solution rests. Changes in law enforcement policies, training, and supervision, and a determination from the top to end race-based policing are where the effort to come to grips with this problem will ultimately succeed or fail. And lest we lose hope, the first effort to legislate the collection of data--Rep. Conyers' H.R. 118--has spawned a dozen imitators on the state level.

The bottom line is that we--every citizen and every police officer--must realize that "driving while black" is a problem not just for African-Americans, but for every American who believes in basic fairness. When blacks feel like criminals whenever they do something as common as driving a car, and when they feel so distrustful of the police that they will not believe officers testifying in court, things have come to a dangerous point. "Driving while black" destroys the ideal that holds us together as a nation: equal justice under law. And when that goes, we are all in trouble.

Eliminating Racial Profiling - The French Approach?

excerpted from:   Throwing out the Baby with the Bathwater: How Continental-style Police Procedural Reforms Can Combat Racial Profiling and Police Misconduct, 19 Arizona Journal of International and Comparative Law 1025-1058, 1040- (Fall, 2002) (213 Footnotes Omitted) (Student Paper)


A. Introduction: The Perils of a Double-Duty System of Law Enforcement under the Adversarial System

Much of the stress facing the police in the United States comes from the pressure of its ever-mounting responsibilities. The police are charged with maintaining order, enforcing the law, collecting evidence, and investigating crimes when violations of the law have occurred. Most American law enforcement officials are at the disposition of local authorities, who are responsible for properly training them in constitutional law, and the legal procedures that must be followed to avoid due process violations. This training is essential to prevent the order-maintaining function from interfering with the evidence-gathering function, a breach that can lead to police misconduct and racial profiling.

A possible solution would be to physically separate these two functions, following the French model of maintaining administrative and judicial police forces. Though this separation is not always absolute, the principle works to ensure that only those officers with a few years of law enforcement experience will have the capability to seize evidence, initiate the garde vue, and perform other invasive investigatory functions. Such a principle might be easily imported or modified in America.

Those commentators who favor the continental inquisitorial system have long advocated such a shift. In his book criticizing the American criminal justice system, Lloyd Weinreb proposes the adoption of several continental- style reforms. He notes the inherent difficulty in asking law enforcement officials to respect the intricacies of the criminal process when their primary responsibility is to act decisively to maintain order in dangerous circumstances: "We cannot expect [the police] to act in dangerous, violent, unpredictable, and uncertain circumstances with the minimum of harm to themselves or others and also to act judiciously, with discretion, and mindful of conflicting interests [between the state and the accused]."

In sum, Weinreb argues, the police's peacekeeping function is perpetually at odds with the criminal justice system's guarantee of due process. The police must both stop crime and arrest the people responsible for those crimes. To a certain extent this is unavoidable, and often even desirable. For example, police are often best situated to collect evidence in so-called "emergencies," and the Supreme Court has repeatedly afforded them the capability to do so. Suppose a police officer arrives at the scene of a bank robbery and apprehends a person believed responsible for the robbery. The officer has now performed his peacekeeping duties, but his responsibility does not end there. He must now, with the aid of his fellow officers, collect evidence and question suspects, usually subject only to the oversight of his immediate superiors. The combined pressures of preventing crime and scrupulously following procedure to ensure that individual constitutional rights are not violated results in an overburdened police force that may be ineffective in suborning its law enforcement role to demands of criminal process.

To prevent the police from allowing its peacekeeping function to inhibit or pollute the operation of justice, the Supreme Court has issued constitutional rulings to guide police conduct. These decisions maintain the balance between having an efficient, effective peacekeeping force on the one hand, and a respect for civil liberties on the other. Despite these rulings, official abuses and due process violations inevitably occur, and the recent trend has been to interpret the Fourth Amendment in such a way that a violation does not lead to an exclusion of evidence at trial. These reversals suggest that a regimen of judicially enforced rules may not be the best way to combat police misconduct. In light of the Court's more conservative climate, any effort to extend rules to hamstring police effectiveness will likely result in an adverse reaction leading to further erosion of due process protections.

Weinreb proposes a system in which the peacekeeping and criminal process functions are split among separate agencies. In particular, he proposes that a judicial officer, not unlike that found in the French system, be charged with clerical tasks like booking and fingerprinting, as well as investigative tasks like lineups and witness questioning. Weinreb argues that the state should minimize the individual's contact with the police force, which he considers the agency that, more than any other, represents "the physical power of the state." According to Weinreb, the exertion of physical power on the part of the state has the potential to corrupt the outcome of the criminal process. This is a view shared by many international jurisdictions that apply the inquisitorial system. Such a system would presumably rely less upon exclusionary rules and other judicial remedies designed to curb constitutional abuse by placing control at the hands of administrators specially trained in the trade of evidence gathering.

Assuming this separation of enforcement and investigating powers would cause a decrease in racial profiling and other forms of police misconduct, a profound shift in people's trust and confidence in police could result. This change might cause the most significant psychological impact on minority communities. A key element of this separation is the detachment of the examining magistrate from law enforcement. In the American system, the magistrate often becomes little more than a rubber stamp for the police, signing on to warrants when requested without much thought. But an independent magistracy according to the French model is of a different conceptual character: a neutral party charged with searching for the truth.

Of course, accepting continental-style reforms requires that policymakers choose between the virtues of an adversarial system versus those of an inquisitorial one. Rudolph Schlesinger, an advocate of the inquisitorial system, pitches the debate in terms of "truth-seeking" versus "truth-defeating" rules. He cites examples of truth-defeating rules, including exclusionary rules and the rule prohibiting the drawing of natural inferences from the silence of the accused. Schlesinger then urges a reexamination of those rules in light of the benefits they provide at the expense of truthfulness.

Schlesinger's discussion of truth-defeating rules provides an excellent crossroads for this analysis in Part III. A discussion of the merits of the exclusionary rule naturally leads into a discussion of rules and their impact on police misconduct. Accordingly, the first subsection will examine the benefits of adopting a truth-seeking rule, the first step of which would be to vest much of the police's investigatory power into a independent magistracy and judicial police. The second subsection will address the truth-defeating rule in Griffin, and examine how its abolishment coupled with the adoption of inquisitorial mode of evidence gathering and witness questioning might have positive ramifications for the problem of racial profiling.

B. Eliminating the Atwater Problem through Neutralization of the Truth-Defeating Exclusionary Rule

The exclusionary rule, as stated above, exists to deter police misconduct. In particular, it seeks to prevent constitutional violations that deny individuals their rights to privacy and freedom from illegal search and seizure. The heading of this section is a bit misleading; a solution to the Atwater problem of "rogue" police misconduct will not directly result from an abolition of the exclusionary rule, or even from a policy shift toward favoring so-called "truth-seeking" rules. However, the bureaucratic reforms that would precede such a policy shift could have an immediate impact on our ability to punish and restrain the Officer Tureks of the American law enforcement system.

The first step in employing such a system would be to create a "judicial police" force, similar to the French model under the purview of the examining magistrates and the attorney generals. At first, this need not be an institutional distinction; a rudimentary division could be implemented even within the same organization following the rules set forth in the French model. For example, the French Code of Criminal Procedure includes the following within the ranks of the judicial police: mayors "and their adjuncts," and officers and noncommissioned officers of the gendarmerie plus those gendarmes that have served longer than five years. Also counted within the ranks of the judicial police are certain members of the National Police, including inspectors general, police commissioners, and "civil servants of the police inspector's corps of the National Police having at least two years of active service in the corps with tenure" appointed by the Ministers of Justice and the Interior following the recommendations of a commission.

While a possible American analogue would inevitably differ --the above model includes officers who would be considered operators at the state and federal level under our system, requiring a different set of laws for each -- the French system sets forth well-defined requirements for an officer or civil servant to meet before she may join the judicial police. Regardless of any possible differences in application, the philosophy is the same: officer training takes on a positive, rather than a negative quality. Rather than setting negative limits on conduct through an exclusionary rule, it enforces positive guidelines for promotion, and sets a premium on education.

Most importantly, it appears to be an effective means of improving the trust factor between citizens and law enforcement. If only the best--or at least, the better--among law enforcement are permitted to wield the investigatory power, then the public will be more inclined to have faith in the police, and will be more willing to cooperate with them.

C. Combating the Whren Problem of Pretextual Searches Through Adoption of French Inquisitorial-Style Limitations on Police Authority

A solution at the criminal procedure level to the racial profiling problem as posed in Whren may lie within two distinct approaches: an institutional solution and a judicial solution. In an institutional solution, procedural reforms akin to the French inquisitorial model may equally prevent racial profiling. In a judicial solution, the adoption of deeper French inquisitorial style reforms may have an immediate impact on the number of minorities incarcerated.

Implementing the changes proposed in the section above may also reduce the instances of racially-motivated traffic stops. The logic behind this argument is simple: if there is a more sophisticated screening system for choosing the police who actually have the power to seize evidence, question witnesses and the like, then there will be fewer chances for abuse. It bears mentioning, however, that the Whren case is not as clear an example of police misconduct as Atwater. Though it appears from the facts of Whren that the defendants were stopped on the pretext of a minor traffic offense so that the police could conduct a vehicle search for drugs, such conclusions are difficult to surmise. Justice Scalia was certainly inhospitable to this argument when he wrote that holding the police to a "reasonable officer" standard would be to "plumb the collective consciousness of law enforcement," or to "speculat[e] about the hypothetical reaction of a hypothetical constable -- an exercise that might be called virtual subjectivity."

In other words, it is unclear whether the police in cases like Whren acted improperly. Whether this was an actual incident of racial profiling depends largely on one's point of view. Some commentators characterize Whren as placing an implicit stamp of approval on racial discrimination. Others have criticized the decision on constitutional grounds. Some, such as Justice Scalia, view the decision as a "run-of-the-mill case" that does not merit the overhauling of the probable cause standard for search and seizure. The law as it stands today would allow certain officers to engage in Whren-style racial profiling without repercussions. However, without any uniform standard of what is acceptable profiling and what is not, these kinds of activities will continue.

A French-style division of authority among the police ranks has the advantage of doing an end run around the constitutional problem of racial profiling. Rather than preventing racial profiling as a matter of law, the selection and promotion process theoretically would filter out the cops more likely to engage in racial profiling, thereby reducing the number of objectionable stops. If racial profiling is an unfortunate by-product of the "broken windows" theory of police enforcement, then limiting the authority of the police to conduct invasive searches while separating the preventive and investigatory functions of the police may correct this unfortunate side effect.

Procedural forms according to the French inquisitorial model have implications for the racial profiling problem outside of vehicular stops. Recall that the French criminal procedure code distinguishes between "flagrant" and "non-flagrant" felonies, and creates different search and seizure provisions for each. This distinction, and the concomitant limitation on authority to search of individual police officers, might limit the most grievous invasions of privacy under the current American system. The flagrant/non-flagrant felony distinction places limits on police authority to search, and thus reduces the possibility of abuse. Of course, conservatives and strong law-and-order advocates will decry such a policy as an unnecessary, even dangerous impediment to police effectiveness. The numbers tell a different story: in spite of such impediments, the French "clearance rate" or percentage of known crimes that police believe to have been solved, compared quite favorably to American clearance rates during a two-year study conducted in 1979-80.

Any discussion of the possible benefits of adopting French inquisitorial- style reforms must consider the possible downsides. It simply will not do to view the French system with rose-colored glasses; many have criticized the system and its putative benefits. One of the most chiefly criticized aspects of the French system is the effectiveness of the examining magistrates. This is troublesome, since one of the most oft-cited benefits of the French inquisitorial model is the impartiality and unique station of the examining magistrate. In practice, the examining magistrate's authority is limited by the growing authority of the police and the discretion of the prosecutor.

The judicial police's authority to search independently in case of flagrant offenses -- once a factor that severely curtailed its independent authority -- has been steadily eroded over the years. Most notably, the French Code of Criminal Procedure was amended in 1958 to allow an enquete de flagrance, an investigative inquiry conducted when a flagrant offense is committed, in cases of delicts punishable by imprisonment. This means that police authority to search is actually greater than might be presumed under a cursory review of the French system. Additionally, administrative features of the French system that have been praised by various writers, such as the division of authority between the administrative and judicial police, are not always as effective as they seem. This distinction is, according to the description of one writer, "functional and not institutional: the same police officer may act as a member of the administrative police one moment and as a member of the judicial police the next." This does not mean that the distinction is meaningless. For example, only judicial police can conduct an enquete de flagrance, and there are certain tenure requirements that prevent just any police officer from becoming a member of the judicial police. These criticisms do not foreclose the possibility of employing French inquisitorial-style procedural reforms, but they are nonetheless important to consider.

In addition to flaws inherent in the administrative division between judicial and administrative police, the prosecutor's discretion to bring certain charges over others, and the shortage of available examining magistrates, cripples the benefits of the French inquisitorial system. The number of examining magistrates is dwarfed by the sheer number of judicial investigations that must be carried out per year. As a practical matter, the French parliament legalized a procedure called the enquete preliminaire (preliminary inquiry, formerly known as an enquete officieuse or official inquiry) in 1958, which allowed the police to investigate non-flagrant offenses with or without the authority of the prosecutor. Such inquiries do not carry the force of an official judicial investigation, but they give the police considerable power nonetheless. Additionally, these inquiries allow the police to engage in a similar kind of pretextual searching so deplored by critics of Whren. Often, when a prosecutor cannot find sufficient evidence to charge a person with a felony or severe delict, she will initiate a preliminary investigation for a lesser offense in hopes of turning up evidence for the greater offense.

Although these flaws slightly diminish the luster of the French inquisitorial system, they do not mean that an application of French inquisitorial-style reforms would be ineffective at combating racial profiling. After all, no system is perfect. Abuses of any prosecutorial and investigatory system, while regrettable, should not commit that system to the dustbin of uselessness. Such flaws merely inform us of concerns that should be addressed through application of the system. Perhaps these problems could be addressed by increasing the number of examining magistrates, or by imposing stricter controls on preliminary investigations to prevent prosecutorial abuse. In sum, these flaws counsel us to be both "idealistic and realistic" in our efforts to apply continental solutions to American criminal justice problems.

D. Approaching the Racial Profiling Problem Via a Reexamination of the Adversarial System's Approach to Defendant's Testimony at Trial

The French inquisitorial model has applications beyond the realm of criminal procedure. As noted above in Part II, the French system has quite a different approach to questioning witnesses. Examining magistrates play an essential role in the questioning of witnesses, both in the pre-interview stage of collecting evidence and conducting investigations and in the actual conducting of the interview. An adoption of this model in America, either in whole or in part, might go a long way toward closing the "trust divide" between minority suspects and the police, and thus curb the psychological and social effects of racial profiling.

Defendants in the American criminal justice system have long had a strong disincentive to testify on their own behalf. The Fifth Amendment guarantees defendants the right against self-incrimination. The Supreme Court held in Griffin v. California, the definitive ruling on a defendant's "right to remain silent" in the courtroom, that a jury may not draw inferences from the silence of the accused. The decision also provided a forum for the justices to discuss their feelings on the adversarial and inquisitorial systems.

In Griffin, the Court held that commenting on the defendant's refusal to testify violates the Self-Incrimination Clause of the Fifth Amendment. Justice Douglas, author of the Court's opinion, derides the notion of permitting a jury to make inferences from the silence of an accused as a relic of the inquisitorial system of justice. The ruling ran in contrast to California's constitution at the time, which allowed "the court or counsel" to comment upon the silence of the accused, and allowed it to be considered by the jury.

Justice Stewart, in his Griffin dissent, expressed misgivings about whether California's rule was unconstitutionally offensive to the Fifth Amendment. He noted that under the California rule, while the prosecution will undoubtedly put a negative spin on the defendant's silence, the defense will have an equal opportunity to explain that silence, thereby "rebut[ting] the natural if uneducated assumption that it is because the defendant cannot truthfully deny the accusations made." He argued that the rule is not coercive at all, but rather an attempt to rationally deal with a problem juries inevitably face: how to interpret the silence of an accused. Then, in describing California's approach to criminal procedure, he confronts the primary concern of inquisitorial system advocates: the promotion of "truth-seeking" rules:

The California procedure is not only designed to protect the defendant against unwarranted inferences which might be drawn by an uninformed jury; it is also an attempt by the State to recognize and articulate what it believes to be the natural probative force of certain facts. Surely no one would deny that the State has an important interest in throwing the light of rational discussion on that which transpires in the course of a trial, both to protect the defendant from the very real dangers of silence and to shape a legal process designed to ascertain the truth.

With its concern for promoting and protecting the probative force of facts, it seems as though Justice Stewart is describing the French system.

The Court has examined the Griffin rule in the context of a prison disciplinary hearing, and Justice White, who joined in Justice Stewart's dissent in Griffin, wrote the majority opinion in Baxter v. Palmigiano, disparaging the Griffin rule without dispensing with it entirely. Citing Justice Brandeis, who opined that "[s]ilence is often evidence of the most persuasive character," Justice White questioned whether the rule served a legitimate purpose. The Court in Baxter, however, went no further than criticizing the existing rule, and refusing to extend it to prison disciplinary hearings.

Griffin provides an excellent starting point for a discussion of French inquisitorial-style reforms both in the courtroom and interrogation room, in that it raises questions about how to determine and evaluate facts. Under the present American system, defendants are given an incentive not to testify at trial, and not to disclose information to police when they are arrested. The American system, in favoring adversarial proceedings, emphasizes an approach that, in practice, may contribute to the lack of trust for the law enforcement community generally held by minorities.

The distinction proposed by Schlesinger between truth-seeking and truth- defeating rules becomes most apparent in this area. In assessing the value of a truth-defeating rule, such as the Griffin rule prohibiting inference drawing from a defendant's silence, Schlesinger proposes the following three criteria:

First, the "other value" invoked as overcoming the value of truth must be clearly spelled out. Secondly, it must be shown in the light of reason and experience that the truth-defeating rule actually serves such other value. And thirdly, the other value must be found to be so strong that it justifies suppression of the truth, even though such suppression may lead to conviction of the innocent or to massive release of the guilty.

The "other value" in the Griffin rule is quite clear: protection of the Fifth Amendment right against self-incrimination. Or at least, this is the reason typically given as its justification. But the Court in Baxter, as noted above, has already questioned the utility of the rule. Once we begin to consider the Court's insistence on maintaining the Griffin rule in spite of the generally inhospitable climate it fosters for defendants, the "other value" becomes more difficult to discern.

In light of the perceived trust deficit between minority communities and the police, rules coming from decisions such as Griffin should be reevaluated to consider their continuing usefulness. This leads to the second step in Schlesinger's comparative analysis structure: whether in the "light of reason and experience ... the truth-defeating rule actually serves such other value." While the Griffin rule ostensibly prohibits the jury from drawing inferences from the silence of an accused, there are exceptions. Human nature being what it is, a jury will naturally reach its own conclusions from a defendant's silence, whether officially or unofficially. Prosecutors may even use the Griffin rule as a weapon against the defendant. While the Griffin rule is well-intentioned and may protect Fifth Amendment values, in many cases it may turn out to be a paper tiger when put against the natural feelings and prejudices of a jury.

Finally, having contemplated the first two elements of Schlesinger's analysis, we arrive at the third question: whether the "other value must be found to be so strong that it justifies suppression of the truth, even though such suppression may lead to conviction of the innocent or to massive release of the guilty." While the Griffin rule does indeed protect the Fifth Amendment right against self-incrimination, the pursuit of that goal may not be worth the cost. Consider an analogy to the other truth-defeating rule previously mentioned in Part III: the exclusionary rule. Neither the exclusionary rule nor the Griffin rule is an explicit guarantee, although the Supreme Court has found that the Constitution guarantees both. In particular, the Griffin rule is, in the words of Justice Douglas, "a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly." But even Justice Douglas recognizes doubts of the "rule against inferences from silence" in the next line when he notes that "the inference of guilt for failure to testify as to facts peculiarly within the accused is in any event natural and irresistible, and that comment on the failure does not magnify that inference into a penalty for asserting a constitutional privilege." It is possible that the Griffin rule does more harm than good. Although the Griffin rule theoretically works in the interests of the defendant, its true effectiveness is hard to quantify, and the ramifications of eliminating the rule are worth considering.

The implications that might follow from abandoning the Griffin rule, beyond the constitutional ones that will be considered in Part IV, are difficult to predict. However, such a step would be a necessary prerequisite to establishing a more inquisitorial-style system in the French vein. Also, the potential benefits of such reforms are predicated on the existence of other features unique to the French system. Some of these features would be difficult to adopt under our Constitution; these features will also be discussed further in Part IV.

Shifting into a "truth-seeking," rather than a "truth-defeating" mindset could have interesting implications for alleviating the trust deficit between police and minority communities by decreasing the disincentive for witnesses to testify on their own behalf. At the very least, the introduction of an inverse Griffin rule -- an instruction that juries may draw inferences from the silence of the accused -- would probably encourage defendant testimony. Professor Frase goes one step further by recommending that evidence rules be amended to allow admissibility of prior criminal records as encouragement for witnesses to testify.

These provisions, combined with an adoption of the French inquisitorial style in which the judge has a strong role in controlling the direction of the case, would create a "truth-seeking" environment in an American courtroom. This would defuse two of the most powerful disincentives on the part of defendants to testify, both from a strategic and psychological perspective: the threat of impeachment by prior criminal record, and the risk of perjury charges. It would also somewhat diminish the dominating presence of the prosecuting attorney in the courtroom. A shift towards the French "truth-seeking" model could create a sense of trust for law enforcement by reintegrating the defendant into the trial process by encouraging his testimony and providing a hospitable environment for that testimony.

. Candidate for J.D. in May, 2003 from the University of Arizona James E. Rogers College of Law.

Massacuhsetts Addressses Racial Profiling Head On

Suzanne Leone

excerpted from: Massacuhsetts Addressses Racial Profiling Head On: the Efficiency of Chapter 228 of the Acts and Resolves of 2000 , 28 New England Journal on Criminal and Civil Confinement 335-376, 339-342 (Summer, 2002) (270 Footnotes)

Just as the anecdotal evidence of racial profiling was accumulating and being vocalized across the nation, the phenomenon was further compounded by the Supreme Court's 1996 decision in Whren v. United States to "remov[e] race from Fourth Amendment analysis." In Whren, petitioners asked the Court for a new Fourth Amendment test to deter pretextual traffic stops. Rather than requiring the existence of probable cause to justify a traffic stop, petitioners argued the standard should be "whether a police officer, acting reasonably, would have made the stop" for the actual traffic violation asserted by the police officer. They reasoned that, due to the vastly abundant and minutely technical regulation of automobile usage,

total compliance with traffic and safety rules is nearly impossible, [and, therefore,] a police officer will almost invariably be able to catch any given motorist in a technical violation .... [This opportunity,] creat[es] the temptation to use traffic stops as a means of investigating other law violations, as to which no probable cause or even articulable suspicion exists.

In Whren, probable cause was substantiated by the fact that the police officers observed the defendant violating several technical traffic violations of the state code. In response, the petitioner argued that a police officer can stop any motorist for probable cause based on a traffic violation. The police officer can choose to stop any motorist driving in his vicinity at any given time, provided that the motorist has committed a legitimate traffic infraction. A traffic violation can be as simple as an equipment failure, failure to signal, or driving above the speed limit. Petitioners argued that among the multitude of motorists, the officer is more likely to discriminately stop a motorist based on the race of the vehicle occupants. The Court agreed that, "the Constitution prohibits selective enforcement of the law based on considerations such as race." Nevertheless, the Court rejected the Fourth Amendment argument as the protection from selective law enforcement, and held, "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." Instead, the Court declared that when a motorist raises a selective enforcement defense, the proper basis for that argument is the Fourteenth Amendment Equal Protection clause. Consequently, the impact of Whren renders anecdotal evidence of racial profiling useless because it disables a claim that an unlawful, pretextual stop was made based on the defendant's race. "[B]y removing the subjective motivation of the arresting officer from the Fourth Amendment calculus, the Whren Court effectively stripped defendants of their ability to establish that unlawful considerations such as race played a part in the decision to stop and arrest ...."

Unfortunately, even though the Court prescribed the Fourteenth Amendment as a remedy, the Fourteenth Amendment argument has proven to be nearly impossible to litigate. Not being a viable means, the Court's prescribed remedy is rendered ineffective. This is because "[c]laims of selective prosecution brought under the Equal Protection Clause of the Fourteenth Amendment are hampered by the burden of proof .... To prove such a claim, plaintiffs must show both disparate impact and discriminatory intent." Proving disparate impact by conducting statistical surveys and analysis is possible, albeit time consuming and costly. But, proving discriminatory intent of the individual officer is nearly impossible.

The Supreme Court has construed the Equal Protection Clause to permit almost any government action that avoids explicit discrimination, unless it can be shown to be based on outright hostility to a racial or ethnic group. As a consequence, the Clause provides no protection against ... unconscious bias on the part of generally well-intentioned officers.

For a claimant to prove that an officer stopped him based on his race, the claimant would have to gather substantial evidence to prove the officer's discriminatory intent. For example, the claimant must produce documentation that shows the police officer was following an established "'de facto' departmental policy of selective enforcement against minorities." To do this, the claimant must acquire probative evidence from reports and testimonies showing that the officer has a record or a tendency to make stops based on race. Prior to state and municipality policies requiring the collection of data on traffic stops, there had been no documentation to help a claimant prove such tendencies on behalf of the officer, leaving the claimant with anecdotal evidence. Even "[i]n the unlikely chance that documentary proof of racial profiling is acquired by the victim, admitted by the court, and accepted by a judge or jury, a forceful and effective remedy for the underlying constitutional violation simply is not in place." "There is no Supreme Court precedent ... for relief. Instead, the Court has declined to state just what remedy, if any, a criminal defendant is entitled to if he establishes that he is the victim of racial profiling." Why then should a claimant risk the social ramifications of publicly accusing a law enforcement officer of such derogatory behavior?

In sum, the Whren decision buttressed the broad discretion exercised by law enforcement in making traffic stops and essentially licensed law enforcement officers to perform traffic stops based on subjective, discriminatory motivation. Individuals who believe they were stopped based on their race, rather than probable cause, are left with essentially no recourse.

Annotated Bibliography - Racial Profiling

Student Work
Race, Racism and the Law
Spring, 2012

Statutes and Regulations

  • Title VI of Civil Rights Act of 1964, 42 U.S.C.A. § 2000d (West)
  • TX CRIM PRO Art. 2.131
  • W. Va. Code Ann. § 30-29-10 (West)


  • Alexander v. Sandoval, 532 U.S. 275 (2001)
  • Whren v. U.S., 517 U.S. 806 (1996)
  • U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975)
  • Com. v. Lora, 886 N.E.2d 688, 691 (Mass. 2008)
  • Terry v. Ohio, 392 U.S. 1, 27 (1968)


Law Review Articles

  • R. Richard Banks, Race-Based Suspect Selection and Colorblind Equal Protection Doctrine and Discourse, 48 UCLA Law Review 1075 (2001)
  • Floyd D. Weatherspoon, Racial Profiling of African-American Males: Stopped, Searched, and Stripped of Constitutional Protection, 38 John Marshall Law Review 439 (2004)
  • Kevin R. Johnson, How Racial Profiling in America Became the Law of the Land: United States v. Brignoni-Ponce and Whren v. United States and the Need for Truly Rebellious Lawyering, 98 Geo. L.J. 1005, 1009 (2010)
  • Wayne R. LaFave, The "Routine Traffic Stop" from Start to Finish: TooMuch"Routine," Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843, 1844 (2004)

Non-Legal Journals

  • Matthew Petrocelli, Alex Piquero, Michael Smith, Conflict theory and racial profiling: An empirical analysis of police traffic stop data, 31, Journal of Criminal Justice (2003)

  • Michael A. Ikner, Janice Ahmad, Alejandro Del Carmen, Vehicle Cues and Racial Profiling: Police Officers’ Perceptions of Vehicles and Drivers, 2, The Southwest Journal of Criminal Justice (2005)


Statute (Federal/State)

  • Title VI of Civil Rights Act of 1964, 42 U.S.C.A. § 2000d (West)

This Federal statute was enacted in July of 1964. It is part of the Civil Rights Act of 1964 that addressed acts of discrimination towards African Americans. The 1964 Act ended Jim Crow laws that were prevalent in many southern states throughout the Country. The statute specifically prohibits discrimination based on race, color, or national origin under any program or activity receiving Federal financial assistance. The statute is important in large part because it is Federal law and will thus trump State laws that are inconsistent with it. The statute will serve as a foundation to support the prohibition of racial profiling by police officers. It is a good indicator that the mindset of the lawmakers in this Country is shifting towards a nation that does not discriminate against any particular groups simply based on their race. The Federal statute served as a model for many State statutes that prohibited the same type of discrimination at the State level.


  • TX CRIM PRO Art. 2.131

This Texas state statute became effective September 1, 2001. This statute expressly prohibits the use of racial profiling by peace officers. The statute is brief and direct. It only addresses the issue of racial profiling and illustrates that a problem existed and that Texas is making strides to correct the problem. Texas is a state that borders Mexico and as a result has a large population of Mexican-Americans and Mexican aliens as compared to other states. The high number of Mexican-Americans and aliens may have increased the likelihood that police officers were engaging in the practice of racial profiling. This statute is useful to show that the practice of racial profiling is prevalent enough for states to begin to enact statutes to prohibit the practice. The statute also indicates that state governments and law makers believe that the practice is discriminatory and has a disparate impact on a group of individuals.

  • W. Va. Code Ann. § 30-29-10 (West)

This West Virginia state statute became effective June 11, 2010. The statute prohibits racial profiling by any law enforcement officer. The statute is very detailed and does not leave a lot of room for interpretation. It defines law enforcement officers “as any duly authorized member of a law-enforcement agency who is authorized to maintain public peace and order, prevent and detect crime, make arrests and enforce the laws of the state or any county or municipality thereof.” It even goes a step further and defines what the legislature considered to be racial profiling. “The term “racial profiling” means the practice of a law-enforcement officer relying, to any degree, on race, ethnicity, or national origin in selecting which individuals to subject to routine investigatory activities, or in deciding upon the scope and substance of law-enforcement activity following the initial routine investigatory activity.” The statute is not ambiguous which will not lend it to litigation based on loopholes or semantics. The statute also gives guidance on how an officer who engages in racial profiling should be disciplined. The statute gives some legislative history and policy concerns in regards to the practice of racial profiling. It is a newly enacted statute that is addressing an ever more prevalent issue in the state. 

Cases (Federal/State)

    • Alexander v. Sandoval, 532 U.S. 275 (2001)

The Supreme Court of the United States decided this case in January of 2003. Respondent, a driver’s license applicant brought this class action suit to challenge the Alabama Division Public Safety’s policy of administering its driver’s license exam in English only. The respondent argued that the practice was in violation of Title VI of the Civil Rights Act of 1964 that prohibits discrimination in covered programs and activities. Respondent argued that administering the exam in English only was discriminatory towards non-speaking test takers. The District Court enjoined English only administration of the exam. The Court of Appeals affirmed. In reversing the Court of Appeals decision, the Supreme Court held that Title VI of the Civil Rights Act provides no private right of action to enforce disparate impact regulations. The Court went on to provide that Title VI only protects individuals against intentional acts of discrimination. The case is not directly relate to the above thesis statement but does address regulations that have a disparate impact on a minority group.  

    • Whren v. U.S., 517 U.S. 806 (1996)

The Supreme Court of the United States decided this case in June of 1996. Two plainclothes policemen who were patrolling a high drug area pulled over the petitioners in their jeep. The police officers relied on the suspicious driving of the petitioners to satisfy the probable clause requirement. Upon approaching the vehicle, the police saw bags of crack cocaine in the hands of the petitioner. They were arrested on federal drug charges. The District Court convicted the petitioners on the federal drug charges. The Court of Appeals affirmed. The petitioners argued that the crack cocaine should be suppressed as the grounds for the police officers’ traffic stop was pretextual and in violation of their fourth amendment rights. The case addresses the issue of non-white motorists being stopped for minor traffic violations that may not have resulted in the stopping of white motorists. The Court held that the stop was not in violation of the petitioners’ fourth amendment rights and that the “reasonable officer” test is not determinative of whether probable cause exists to stop a vehicle.

    • U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975)

The Supreme Court of the United States decided this case in June of 1975. Two police officers were observing traffic at the San Diego border. The officers stopped Brignoni-Ponce because, according to the officers, he and his two passengers looked like Mexicans. After the traffic stop, the officers discovered the two passengers were illegal’s and Brignoni-Ponce was convicted on two counts of transporting illegal immigrants. The Supreme Court examined whether race could be the sole factor for an officer to stop a vehicle. The Court held that under appropriate circumstances, a roving patrol may perform a limited search and seizure without having probable cause to arrest the person. These circumstances include information that the person may have drugs or weapons, a visual scan of the person’s vehicle reveals something suspicious or as in this case a visual reason to believe that the person is carrying illegal aliens in to the country. Although the court found that none of these circumstances were present in this case, the decision, in effect gave broad discretion to law enforcement agents to perform traffic stops in the absence of traditional probable cause.

    • Com. v. Lora, 886 N.E.2d 688, 691 (Mass. 2008)

This case was decided by the Supreme Court of Massachusetts in 2008. A Massachusetts state trooper followed a car for three-quarters of a mile until he was able to see that the two occupants of the vehicle were dark skinned. The state trooper pulled the vehicle over. The vehicle had been neither speeding nor swerving prior to being pulled over by the state trooper. Cocaine was discovered in the vehicle and the drive was charged with trafficking cocaine. The defendant moved to suppress the evidence of the cocaine on the basis that the stop was not warranted by probable cause. In the course of the defense, counsel studied the amount of traffic citations given to African Americans as opposed to whites. The number was significantly disproportionate to the racial make-up of the town. African Americans accounted for 0.6 percent of the town’s population and nearly 12 percent of the traffic citations given. The suppression of the evidence by the lower court was reversed by the Supreme Court which held that the burden was on the defendant to show that produce evidence that similarly situated persons were treated differently because of their race. This case set precedent that allowed evidence, produced from a traffic stop in which an officer admittedly pulled a vehicle over on the sole basis of the occupants’ race, to be used in court.

    • Terry v. Ohio, 392 U.S. 1, 27 (1968)

This case was decided by the Supreme Court in 1968. The case involved a Cleveland police detective who two men acting in a way he thought was suspicious. Acting on nothing more than his own suspicions, the detective approached the men and asked them their names. The detective eventually patted the men down and found a weapon on one of them. The defendants asserted that the search was a violation of the Fourteenth Amendment guarantee against unreasonable searches and seizures. The Supreme Court held police may perform a quick surface search of the person’s outer clothing for weapons if they have reasonable suspicion that the person stopped is armed. This reasonable suspicion must be based on "specific and articulable facts" and not merely upon an officer's hunch. This standard proved vital to the effort to stop racial profiling. It aimed to make sure that officers could not merely pull over, seize or search people based solely on their race but rather needed to have reasonable suspicion based on specific and articulable facts.

Law Review Articles

    • R. Richard Banks, Race-Based Suspect Selection and Colorblind Equal Protection Doctrine and Discourse, 48 UCLA Law Review 1075 (2001)

Richard Banks wrote this law review which was published in 2001. Mr. Banks is a law professor at Stanford Law School and has published several articles on the subject of racial injustice. This article discusses how the use of race-based suspect descriptions disparately impacts innocent members of society that happen to share the same race as suspects. The author discusses how racial profiling has been condemned but law enforcement is using the practice of race-based suspect description without any scrutiny. This article specifically focuses on the impacts this practice is having on African Americans. Mr. Banks calls into question the colorblindness of the equal protection doctrine. He asserts that race-based suspect descriptions lead law enforcement officers to limit their search based on race more so than they would based on every other suspect description. The results leads to race, rather than other physical features, being the predominant suspect description relied upon by law enforcement. The trickle down affect of this reliance is that law enforcement is selecting its suspects based on race without enough consideration of other physical descriptions. The article included a bibliography.

    • Floyd D. Weatherspoon, Racial Profiling of African-American Males: Stopped, Searched, and Stripped of Constitutional Protection, 38 John Marshall Law Review 439 (2004)

Floyd Weatherspoon wrote this law review article which was published in 2004. Mr. Weatherspoon is a law professor at Capital University Law School and is regarded as an expert on African American males, mediation and dispute resolution. This article explores a phenomena in which police officers have developed an idea of what is a prototypical criminal. The article discusses how stereotypical biases towards African American males have impacted law enforcements’ sentiment towards them. The article asserts that African American males are stopped while driving their vehicles and searched disproportionately. The author bridges the gap between the biases that law enforcement has developed towards African American males and the rate at which they are being pulled over. The disproportionate amount of stops transcends car stops to include airport stops. The author attempts to prove that airport security has also developed biases towards African American males. These stereotypes and biases include the notion that African American males are likely drug traffickers and thus are being stopped more in airports to be searched. The author attributes the lack of support from the state to lack of African American political clout. The Article does include a bibliography.

    • Kevin R. Johnson, How Racial Profiling in America Became the Law of the Land: United States v. Brignoni-Ponce and Whren v. United States and the Need for Truly Rebellious Lawyering, 98 Geo. L.J. 1005, 1009 (2010)

Kevin Weatherspoon wrote this law review article which was published in 2004. Mr. Johnson is the Dean of the UC Davis School of Law as well as a professor of public interest law. He is nationally respected as a scholar in civil rights and immigration law. This article explores the notion that racial profiling in law enforcement is permitted if not encouraged by Constitutional law. The essay examines two post civil rights movement decisions that affirmatively contributed to the predominance of racial profiling in modern law enforcement. United States v. Brigoni-Ponce and Whren v. United States were both decided after the civil rights movement of the 1960’s but each, in effect, allow for racial profiling in law enforcement to go unchecked. The author uses these cases to illustrate the difficulties that lawyers face when trying to bring social change and racial justice in regards to this law enforcement practice. The essay aims to promote victims of the practice to become empowered and become their own advocates. The author also challenges attorneys to empower poor clients as through grassroots advocacy programs facilitated by attorneys. The Essay concludes, by contending that, to truly root out racial profiling from law enforcement, the law must impose limits on the consideration of race in law enforcement, restrict law enforcement discretion in making stops, and afford a meaningful remedy for impermissible stops. The article does include a bibliography.

    • Wayne R. LaFave, The "Routine Traffic Stop" from Start to Finish: Too Much "Routine," Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843, 1844 (2004)

Wayne R. LaFave wrote this law review article which was published in 2004. Mr. LaFave is a law professor at the University of Illinois College of Law. He is an extremely active scholar and author and has published several works in this area of the law. This article focuses on how the war on drugs has impacted police behavior with respect to routine traffic stops as a pretext for search a person’s vehicle for drugs or drug paraphernalia. The author asserts that police officers have developed a new tactic to attempt to apprehend drug traffickers. Using the new technique, police officers will first develop a hunch based on arbitrary factors including race and then will find a technical or trivial offense to produce the necessary stop. The law refers to these sorts of stops as pretextual stops. The officer will then run the “routine” criminal history and outstanding warrant search. The officer will ask routine questions about the driver’s identity or what the driver is doing. The officers’ questioning may induce the driver to permit the officer to search the vehicle, the ultimate goal of the officers’ stop. The article examines the Fourth Amendment legalities to traffic stops of this sort and what can legally be done with evidence that is found during searches that occur after these sorts of stops.

Non-legal Journals

    • Matthew Petrocelli, Alex Piquero, Michael Smith, Conflict theory and racial profiling: An empirical analysis of police traffic stop data, 31, Journal of Criminal Justice (2003)

Matthew Petrocelli wrote this interdisciplinary article which was published in 2003. Mr. Petrocelli is an associate professor of criminal justice at Southern Illinois University. He holds a Ph.D in sociology and criminal studies. The article was published in volume 31 of the Journal of Criminal Justice. The article examines a compilation of data collected over a two-year period by a Virginia Police Department. The data collection was an effort to study the stop, search, and arrest practices that were employed according to the racial and socioeconomic factors of the driver of the vehicle. The article discusses the conflict theory that dominant groups will use their resources including the law and its mechanisms to minimize threats from minority groups whom they have labeled dangerous. The article postulates that culturally dissimilar groups are viewed as threats and that this may be a reason for police officers to disproportionately stop minority drivers. The article did include a detailed bibliography.

    • Michael A. Ikner, Janice Ahmad, Alejandro Del Carmen, Vehicle Cues and Racial Profiling: Police Officers’ Perceptions of Vehicles and Drivers, 2, The Southwest Journal of Criminal Justice (2005)

Michael Ikner wrote this interdisciplinary article that was published in 2005. The article was published in volume 2 of the Southwest Journal of Criminal Justice. The article centers on a study conducted at a North Texas police department. The study examined police officers’ perceptions of vehicle driver characteristics and the likelihood of individual officers to be involved in racial profiling based on the type of vehicle. The article examines police officers’ decisions to make traffic stops based on associating a particular type of vehicle with a specific racial group. The article asserts that the media has created a drug courier profile as part of the war on drugs phenomena. Part of this profile is the type of vehicle that the drug courier drives. Police officers, like the rest of us, are susceptible to developing preconceived notions. Ikner asserts that police officers have developed an idea of what a drug dealer should look like, act like and drive. Police officers then use this idea to seek out who potential suspects instead of relying on substantive probable cause which is required by law. The results of the study did not seem to support Ikner’s assertion. Ninety percent of the officers tested associated a white driver with the vehicle shown to him or her. This may have been a result of the officers’ suspicion of the test or overcompensation by the officers. The test has value and will be employed by other police departments in the future to try to curb the practice of racial profiling that unquestionably exists around the country.

September 11th and Racial Profiling

Milton Heumann and Lance Cassak

excerpted from   Afterward: September 11th and Racial Profiling , 54 Rutgers Law Review 283-291, 287-291(Fall, 2001) (35 Footnotes)

Of course, there is nothing wrong with re-opening the debate over racial profiling or taking it ina different direction, particularly in connection with so important a topic as efforts to detect and prevent terrorism. Reconsideration of whether there is a role for racial profiling in the battle against terrorism to a large extent raises again some of the issues we have explored in Profiles in Justice? Police Discretion, Symbolic Assailants, and Stereotyping, although in a radically new setting. Whether the new debate clarifies any of the old issues remains to be seen.

Most important in this regard, there is the question, still largely skirted as this issue has become revisited, of what exactly one means by racial profiling. Is it consideration of race or ethnicity alone, or consideration of race or ethnicity as one of a number of factors? Is it enough, for example, to pull an Arab or a Muslim person off a commercial airplane based on that fact alone, or does law enforcement need to know more, such as how long before the flight the person had been in the United States, what he did while he was in the United States, with whom he had associated with, and/or whether he had taken flying lessons? For better or worse, based on some of the incidents so far in the wake of the attacks, it appears that a person's Middle Eastern ancestry alone has been enough to prompt action (at least by citizens).

Nonetheless, it is possible to envision use of racial profiling in the battle against terrorism consistent with some of the strictures laid down so far. We might begin with the assumption that stopping a person for questioning based solely on the fact that he appears to be Arab or Muslim is not permissible. However, as long as the Supreme Court and other federal courts remain wedded to the principle set forth in the United States v. Martinez-Fuerte, that race or ethnicity may be one factor among many that can be considered in the decision to stop someone, one might argue that a stop based on the fact that a person is Arab or Muslim combined with other factors, could justify the stop. But what are the "other factors" that could legitimately be added to the profile? Would it be enough that there was not one person of Middle Eastern descent, but a group of Arabs or Muslims? Does it strengthen or weaken the decision to stop if the group has congregated near an Arab-American community in cities such as Brooklyn, New York, Dearborn, Michigan, or Paterson, New Jersey? Near an airport or reservoir? In any of the cities--for example, Boston, Massachusetts or Daytona Beach, Florida--associated with those who carried out the September 11th hijackings?

Assuming that one can identify the appropriate "other factors" to be included in the profile, there is also the issue of what the investigative stop would entail. Questioning alone might not cross the line; treatment analogous to what Japanese-Americans suffered during World War II clearly would (and no one has argued for that, yet). But what about a broad range of investigative tools in between? Assuming that law enforcement has stopped someone based on the fact that the person is Arab or Muslim plus the hypothetical "other factors" needed to justify the stop, how far, if at all, can they go to determine whether the person is up to anything? Evidence of the threat posed by the person in this setting might be more elusive than the type of evidence police routinely look for in a stop at an airport based on the drug courier profile or in connection with a traffic stop. How far beyond mere questioning, if at all, can police go to require a person to demonstrate proof of long time residency in a location, significant ties to a "mainstream" community, or any other fact that would allay concerns that prompted the stop in the first place? Could the police, for example, remove such a person from an airplane or train, or insist that some members of the group take a later flight or train? At this point at least, we believe that even if attitudes towards racial profiling change, prompting more leeway for law enforcement to employ the practice, the intrusions that change occasions will stop short of the most extreme measures that are universally considered to be indefensible (such as what happened to Japanese-Americans during World War II). But there is considerable play in how we balance the variables in this regard. Exactly where that line will be drawn and whether that will be consistent with cherished attitudes toward civil liberties or a significant compromising of those attitudes has become a central issue in the new debate.

Other issues in the current debate also loom in this new setting. Of course, there is the issue of whether a racial profile, however it is composed, actually increases the effectiveness of law enforcement in rooting out the problem. At this point, it is difficult to tell whether racial profiling will serve as anything more than a placebo, reflecting some action being taken by a nation hungry for such signs, yet without any measure that the action is effective. Moreover, even if it is effective, are the psychological and other costs of racial profiling stressed by commentators such as Randall Kennedy sufficiently high with regard to Arabs or Muslims so as to counsel against the practice? Or does the argument only apply to racial profiling as it came to be understood in the 1990's, largely against African-Americans as a discrete and insular minority that has had a history of discrimination and similar mistreatment at the hands of law enforcement in this country?

But there is more. Consideration of the use of racial profiling in any efforts to prevent terrorism, in addition to re-stating familiar issues, raises new ones. The central one involves context. It is worth remembering that the new category of investigative stops created by Terry v. Ohio that gave rise to what has evolved into racial profiling was borne out of a pragmatic balancing of the relative interests involved. Without minimizing the problems associated with illegal drug use, there are few who would question that the threat posed by what occurred on September 11th exceeds--by a considerable amount--the threat posed by illegal drugs. Terrorism, in a word, convincingly "trumps" drugs. However one strikes the balance when a racial profile is used to stop drug couriers, the stakes appear much higher now. Where is the balance to be drawn when the conduct law enforcement hopes to detect and prevent could result in the deaths of thousands, if not more, and the disruption of major cities, financial centers, and government institutions?

This is the critical new issue that, in fact, overwhelms all others. Indeed, if this is a War Against Terrorism, much of the debate of the past couple of years becomes irrelevant, or at least requires a decidedly different approach. Inter arma, silen leges; in times of war, law is silent, goes the old expression. This may not be absolutely true but, just as the initial formulation of the "clear and present danger" test, in many regards hostile to free speech, was arguably influenced by the backdrop of World War I and the Red Scare, so too the context in which racial profiling is now being considered is certain to raise a host of new questions and provoke answers to those questions different than the previous debate would suggest. Not only is there the question of how the balance is to be struck--including who is properly the target of racial profiling in this setting and what investigative practices we will allow--but perhaps more important is the question of who determines how the balance is struck.

Also, who in law enforcement should do the racial profiling: law enforcement officers trained in counter-terrorism measures or any law enforcement personnel assigned to guard airports, patrol the highways, or walk the streets? If the former, are there sufficient resources and manpower to accomplish anything meaningful and, just as important, satisfy the cry for action that has prompted the reconsideration of racial profiling? If the latter, can we be certain that racial profiling in this circumstance will involve the drawing of reasonable inferences based on years of relevant law enforcement experience, or instead, become the type of "hunch policing" that has appropriately attracted the harshest criticism?

Finally, there is yet another new issue raised by the prospect of using racial profiling in light of September 11th related to the issue of context just discussed. Assume that the imperatives of the fight to eradicate terrorism produce a consensus that racial profiling in some form is a legitimate law enforcement tool. Would that consensus be necessarily limited to the fight against terrorism or would it expand, either as a theoretical matter or practical matter, to other areas of law enforcement? Can we realistically restrict the use of racial profiling only to the fight against terrorism or is the reconsideration of the practice in this context going to prompt a sea of change in attitudes about racial profiling in general, such that those who approve of the practice will become the dominant voices? This remains to be seen.

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