II. CRIMINAL JUSTICE SYSTEM
A. Selective Enforcement
Most Americans, black and white, would agree there is an urgent need to “get tough on crime” in our country, particularly the elimination of the illegal sale, use, and distribution of illegal drugs. The federal government has in fact declared a “war on drugs” and has appointed a drug czar to implement such policies. The “war on drugs,” however, has resulted in a disproportionate number of African-American males being arrested, sentenced, and incarcerated. The mere fact that African-American males are being incarcerated for violating drug laws is not the issue. The concern is that African-American communities are the primary targets of drug enforcement sweeps, and that African-American males are the primary individuals targeted for arrest--normally receiving harsher sentencing for the same or similar offenses committed by whites. In fact, the “war on drugs” has almost become synonymous with policing the African-American community and black males. White suburbs are less likely to be targeted even though the National Institute for Drug Abuse reported in 1992 that, although minorities represented 38% of all individuals arrested for a drug violation, they represented only 17% of individuals using illicit drugs. African-American males are also targets of invidious and systematic discrimination from local law enforcement authorities when they travel in predominately white communities.
Cities have engaged in a practice of stopping and ticketing blacks who enter the city, particularly black males. In many cases, the immutable characteristic of being a black male is considered a sufficient basis for law enforcement officers to have probable cause to stop African-American male motorists for interrogation. This is not to imply that drug laws should not be enforced in the African-American communities; however, African-American communities should not be disproportionately targeted for enforcement. African-American males should not be more severely punished for violating the law than whites.
For example, in 1989, Todd Grier, an African-American male, alleged that he and his two-year old daughter were in his car attempting to start it with the aid of two white neighbors when they were approached by police. Grier got out of the car and was searched at gun point and arrested. He was subsequently released after having been mistakenly identified as an alleged bank robber. Grier brought a civil rights action against the city, alleging he was detained and threatened because he was a black person. The court, however, at the defendant's request, dismissed most of Grier's allegations. The court permitted Grier to further amend his complaint to clarify the issues.
To illustrate how African-Americans are harassed, ABC's television program 20/20 placed staff employees in two expensive cars and had them park in front of a restaurant in a predominantly white neighborhood at 3:30 a.m. The white male employees were placed in one car and the black male employees were placed in the other car. In moments, police approached the car with the black males and warned them that “people would say they look suspicious.” However, the white males were passed by more than 15 times by police officers without being approached or questioned. This scenario is reminiscent of Justice Marshall's experience as he waited for a train in a small Mississippi town in the 1940s. Fifty years later, little has changed. African-American males were, and remain, singled out for harassment.
In response to a question whether he believed black men are unduly harassed by police officers, Los Angeles Police Department Chief Willie Williams stated: “I think that African-American males and other minority males are more prone to be stopped for small or frivolous reasons than non-African-American males in not just big cities like Los Angeles and Philadelphia, but small, suburban and rural and country towns.” Whether you are Al Joyner, Olympic gold medalist; Blair Underwood, a Hollywood actor; a construction worker; or a law professor at a prestigious law school; if you are an African-American male, this may be “probable cause” for the police to stop and interrogate you.
The Constitution guarantees the right to travel without governmental interference. Although this right is enjoyed without thought by most Americans, African-American males are routinely stopped and singled out for interrogation, detainment, arrest, searches, and prosecution by the Drug Enforcement Agency's (“DEA”) practice of stopping African-American male passengers at airports and bus stations to determine whether they are transporting drugs. The DEA helped develop what are known as “drug courier profiles.” Drug courier profiles vary between state and federal enforcement agencies and by cities. In United States v. Elmore, a DEA agent provided the following characteristics of a drug courier profile:
The seven primary characteristics are: (1) arrival from or departure to an identified source city; (2) carrying little or no luggage, or large quantities of empty suitcases; (3) unusual itinerary, such as rapid turnaround time for a very lengthy airplane trip; (4) use of an alias; (5) carrying unusually large amounts of currency in the many thousands of dollars, usually on their person, in briefcases or bags; (6) purchasing airline tickets with a large amount of small denomination currency; and (7) unusual nervousness beyond that ordinarily exhibited by passengers. The secondary characteristics are: (1) the almost exclusive use of public transportation, particularly taxicabs, in departing from the airport; (2) immediately making a telephone call after deplaning; (3) leaving a false or fictitious call-back telephone number with the airline being utilized; and (4) excessively frequent travel to source or distribution cities.
These characteristics appear to be race neutral. Had race been listed it would have raised constitutional concerns, i.e., a violation of the Equal Protection Clause of the Constitution. Courts have consistently held that “[t]he discriminatory investigation of citizens on the basis of race certainly violates [the Constitution], engenders distrust of law enforcement officials, and perpetuates the perception among minority citizens that they are second-class citizens, and are likely to be suspected of wrongdoing solely because of their race or ancestry.”
Like many other law enforcement policies and practices that appear to be neutral on their face, “drug courier profiles” disproportionately impact the African-American community, particularly African-American males. The enforcement of the “drug courier profile” procedure by the government has resulted in African-American males being disproportionately detained in violation of their constitutional rights.
In Jones, the court expressed concern regarding substantiated evidence that officers had targeted investigations of minority passengers arriving at the Nashville airport, particularly African-American and Hispanic males. The court stated, “[i]t is clear from the testimony that [the] officers approached Mr. and Mrs. Carter because of their race . . . . ” The court also indicated that it was troubled by the fact that the “sole basis for [[[the officer's] investigation of Mr. Villarce and his companions was the knowledge that two Hispanic men were traveling in the company of a white woman . . . . ” Jones also presented evidence of other incidents where other minority males were stopped and interrogated, including a producer with the CBS news show “60 Minutes.” Even with this evidence, the court nevertheless refused to grant Jones's request for injunctive relief against the DEA. The court did require the government, however, to return Mr. Jones's property which had been seized.
The scenario in the Jones case has become a regular mode of operation for local and federal law enforcement officials. This practice of stopping and searching African-American males is also engaged in at bus terminals. A review of these practices by Congress is warranted to ensure that the constitutional rights of African-American males are protected.