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excerptedfWrom: Racial Profiling: a Covertly Racist Nation Rides a Vicious Cycle, 20 Law and Inequality: A Journal of Theory and Practice 53-90, 67-81 (Winter 2002) (292 Footnotes)


At first glance, the United States appears replete with laws that speak directly to racial profiling: the Fourth Amendment protects citizens against "unreasonable searches and seizures," the Fifth and Fourteenth Amendments protect citizens from deprivation of liberty and promise equal protection of the laws, and the Civil Rights Act of 1964 provides various remedies for discrimination. However, Supreme Court rulings have limited, and in some cases eradicated, these remedies for victims of racial profiling.

A. The Fourth Amendment

Until recently, criminal defendants relied primarily on Fourth Amendment protection when alleging racist law enforcement. In so doing, they occasionally succeeded in suppressing evidence obtained as the result of racial profiling. Suppression of evidence often leads to acquittal, making this Fourth Amendment defense an extremely powerful one. Evidence suppression is one of the few substantive checks that the Fourth Amendment places on the infamous "Terry searches."

Nonetheless, in Whren v. United States, the Supreme Court effectively declared the Fourth Amendment dead with respect to protecting citizens against racial profiling. In its decision, the Court held it reasonable for police officers to pull cars over for nominal traffic violations with the specific intent to discover illicit drug use. The result of this decision is that police officers have the unfettered discretion to stop any car for any reason, since it is virtually impossible to drive without violating at least one traffic law.

After a police officer stops a vehicle, she is relatively free to perform a search. Police officers often search vehicles with the owner's consent. Either out of intimidation, a desire to be helpful, or ignorance of their right to deny a search, most drivers consent to police searches; however, courts occasionally find a search illegal on the grounds that consent was not freely given.

In the cases where consent is not given or an officer does not ask for consent, the officer must prove that she had probable cause to perform the search. To successfully establish probable cause, the police officer need only show "facts and circumstances" adequate to allow a "reasonable" police officer to believe that a suspect has committed or is in the process of committing a crime. By using a "totality-of-the- circumstances" test, police officers may find probable cause from a suspicious combination of innocuous activities. Application of a subjective reasonableness standard and a totality of the circumstances test create unpredictable probable cause adjudications, subject to the whim of the sitting judge.

By refusing to consider the subjective intention of the arresting police officer, the Whren Court severely undercut a defendant's ability to challenge a pretextual stop under the Fourth Amendment. However, not all courts have written off the Fourth Amendment as a viable protection against evidence obtained by officers during traffic stops based on racial pretexts. In People v. Dickson, a New York trial court held that "[i]t has never been, and should not now be, the law of our State that we cannot reject offensive, albeit subjective reasons for police action." In Dickson, the court suppressed evidence after a police officer admitted to a "pretextual motivation" for a traffic stop. In a similar case, the Superior Court of New Jersey suppressed evidence taken from seventeen African Americans because of data collected by Dr. Lamberth, illustrating disproportionate arrests of African Americans by the New Jersey state police. Despite the success of these few cases, the Court's decision in Whren significantly relaxed scrutiny against arresting officers in all states, even in New York and New Jersey.

In his infinite compassion, Justice Scalia explained that while the Fourth Amendment is not an appropriate protection against racial profiling, the Fourteenth Amendment offers a means for handling such claims. But the Fourteenth Amendment is not without its own problems: not only does it fail to provide for evidence suppression, but it has its own discouraging procedural hoops through which plaintiffs must jump.

B. The Fourteenth Amendment

On its face, Fourteenth Amendment protection appears strong and on point: "No state shall . . . deny to any person within its jurisdiction the equal protection of the laws." Its purpose is "at the very least . . . directed at governmental racial discrimination against Blacks." Racial profiling is facially discriminatory, and thus violates the spirit and the language of the Fourteenth Amendment.

Yet the Fourteenth Amendment makes it difficult for a victim of racial profiling to challenge either the law or law enforcement. With respect to challenges to legislation, the judiciary need not consider any discriminatory effects in determining the constitutionality of a statute; it need only illustrate that the statute serves a legitimate purpose and that the legislature did not enact it with racist intent. With respect to challenges to law enforcement, the plaintiff has the burden of proving a racist motivation behind traffic stops and searches, despite the fact that she is in the position with the "least access to the information necessary to establish a possible invidious purpose." Plaintiffs claiming that individual police officers violated their rights under the Equal Protection Clause must prove "purposeful and intentional acts of discrimination based on their membership in a class, as opposed to discrimination on an individual basis." Accomplishing this is often difficult when police officers, in searching "high-crime" areas, have available the excuse that the disproportionate number of African-American arrests are due to the fact that their search was legitimately limited to areas populated predominantly by African Americans. Moreover, qualified immunity protects police officers in the reasonable performance of their discretionary duties.

In confronting racial disparity resulting from the crack/powder distinction, the Fourteenth Amendment once again proves lifeless. Although the Minnesota Supreme Court in State v. Russell declared the crack/powder distinction in sentencing guidelines unconstitutional, it attributed its decision to the additional protection provided by its state constitution. Unfortunately, most courts have not followed suit, but instead offer only the minimal protection required by the Fourteenth Amendment and have consequently upheld the crack/powder disparity in sentencing.

In holding the disparate crack/powder ratio unconstitutional, the Minnesota Supreme Court studied the realistic application of the provision, and not simply its theoretical purpose. The provision lacked the "genuine," "substantial," and "evident" connection required by Minnesota's Equal Protection Clause to uphold laws with disparate effects on different social or racial groups. Virtually all other state and federal courts take the theoretical approach to analyzing Equal Protection claims. If a law's purpose can be supported by an unsubstantiated theoretical argument, such as that crack cocaine is one hundred times more threatening than powder cocaine, then the Equal Protection Clause has no power to combat the resulting disparity.

Even in United States v. Clary, the only reported federal court decision holding that the 100:1 ratio violated the Equal Protection Clause, the district court focused on the theoretical nature of the provision instead of its actual results by attempting to prove that its purpose was subconsciously discriminatory. Not surprisingly, the Eighth Circuit Court of Appeals overturned this decision. In his opinion, Senior Circuit Judge John R. Gibson asserted that the theory of protection against "unconscious racism" is untenable because "the Equal Protection Clause is violated 'only if that impact can be traced to a discriminatory purpose." '

Unconscious racism is dangerous because of both its pervasiveness and its ability to escape the grasp of the Fourteenth Amendment. The Fourteenth Amendment's invidious intent requirement for both lawmakers and police is impracticable. As a result, this apocryphal requirement leaves without remedy those who suffer from disparate impact due to the unconscious racism of federal laws.

Not only does the Fourteenth Amendment suffer from the inability to attack the racist effect of a facially neutral statute, but it also fails to provide criminal defendants with the ability to have evidence suppressed. This same weakness affects Title VI of the 1964 Civil Rights Act. Nevertheless, Title VI provides a stronger basis than the Fourteenth Amendment for combating racial profiling.

C. Title VI

Title VI of the 1964 Civil Rights Act prohibits "discrimination under federally assisted programs on the ground of race." Since both state and federal police receive federal funds, racial profiling by either entity is forbidden. The Supreme Court gave Title VI a more effective bite than the Fourteenth Amendment by allowing declaratory and injunctive relief to plaintiffs who illustrate the existence of a racially disproportionate impact.

Although Title VI comes with its own set of limitations, they are not as substantively difficult to overcome as those of the Fourth and Fourteenth Amendments. One limitation is that Title VI claims can only be brought against entities, not against individuals. Additionally, the federal government must consistently fund the program for it to be considered a "federally funded program."

Despite these limitations, in cases where plaintiffs have illustrated extreme racial disparity in a police program with strong evidentiary support, Title VI has been successfully argued in racial profiling cases. Courts for both the District of Maryland and the Northern District of California declared that statistical and other evidence indicating racial profiling supports a Title VI claim for the plaintiffs. These cases, however, merely recognize the validity of racial profiling claims. Without adequate evidentiary support, plaintiffs face tough odds against facially neutral policies. However, in our vast and mostly impotent arsenal against racial profiling, we have yet more statutes that address unlawful enforcement activities and patterns of activities.

D. The Violent Crime Control and Law Enforcement Act of 1994 and 1983

1. The Violent Crime Control and Law Enforcement Act of 1994

Also used sparingly, the Violent Crime Control and Law Enforcement Act of 1994 ( 14141), considered an injunctive counterpart to 42 U.S.C. 1983, is Congress's most recent attempt at providing a legislative solution to various abhorrent police practices. Ironically, the Act's main objective is to place 100,000 additional police officers on the streets. The Act also authorizes the Attorney General to investigate and bring suit for injunctive relief against police departments that employ unconstitutional practices.

The language of 14141, prohibiting "pattern[s] or practice[s] of conduct by law enforcement officers" that deprive people of their rights as "secured or protected by the Constitution or laws of the United States," more specifically addresses racial profiling than the language in Title VI. This language allows for claims not just against individual officers, but against police departments to compel them to "correct the underlying policy."

To date, the Department of Justice has used 14141 only a few times, successfully resulting in consent decrees entered into by the defendant police departments. Due to political pressure, the Act's original citizen lawsuit provision was omitted, thus thrusting the responsibility of monitoring police practices solely on the shoulders of the Department of Justice. A large barrier to 14141's effectiveness lies in its vesting exclusive authority to bring suit in the Attorney General. While apparently investigating a number of police departments, the Department of Justice has brought only three suits since 1995, and many community leaders have criticized the Department for its ineffectiveness. Former Attorney General Janet Reno promised a more rigorous application of the statute by her department, and current Attorney General John Ashcroft has promised to make racial profiling cases a priority in his administration. It remains to be seen whether he will keep his promise.

2. 1983

While 14141 emerges as the government's primary tool for prosecuting racial profiling, 1983 provides one of the most common methods for citizens to challenge improper police misconduct.

Although the District Court for the Southern District of Ohio concluded that 14141 was essentially the injunctive counterpart of 1983, and consequently required the same level of proof, the two statutes diverge on several important points. First, any citizen can raise a 1983 claim, whereas only the Attorney General can raise a 14141 claim. Second, 1983 is preferable because it provides for monetary, as opposed to only injunctive, relief. Compared to 14141, one disadvantage of 1983 is that it requires plaintiffs to illustrate racist motivation in proving discriminatory enforcement.

The racist intent requirement of 1983 mirrors the crippling specific intent requirement of the Fourteenth Amendment. The District Court for the Eastern District of New York amplified this flaw by holding that racial animus was not provable without evidence of a "similarly situated non-minority group who has been treated differently" when it considered a case against a police officer who arbitrarily pulled over the African-American plaintiff and used racial slurs. Consequently, although 1983 supplies an adequate forum for victims of tangible offenses, such as excessive force, false arrest, and illegal search and seizure, its application has been mostly unsuccessful in attacking less obvious patterns of offensive police activity. Nevertheless, successful 1983 suits have proved an important way to ensure that police departments maintain adequate training, hiring, and promoting practices, while encouraging them to monitor their officers' practices in order to insure against expensive civil remedies.

3. Resulting Settlements

Recently, 14141 claims have resulted in settlements which, at the very least, have placed individual police departments on a course towards reformation. In 1997, the Department of Justice entered into a settlement decree with the City of Pittsburgh, the Pittsburgh Bureau of Police, and the Pittsburgh Department of Public Safety. The decree ordered the installation of an "early warning system" database, which would contain "relevant information about its officers, as well as a statistical model to identify and modify the behavior of problem officers." This early warning system requires officers to record, among other things: the officers' names and badge numbers; citizen complaints against the officers; details on shootings involving officers; officer transfers; disciplinary actions against officers; and various civil and criminal claims against individual officers or against the police department as a whole.

In addition, the Pittsburgh consent decree requires the city to develop a recording system that requires an officer, upon every traffic stop, to record the officer's name and badge number, the race and gender of the individual stopped, whether the stop led to a search, what was found in the search, and whether the individual was arrested. This requirement closes a loophole that previously protected officers when making pretextual stops: in cases where officers use minor traffic violations to stop vehicles that fit certain pretextual descriptions, they often issued warnings, which rarely involve any record keeping.

E. Data Collection

The most notable settlements with the Department of Justice include the implementation of programs mandating documentation of all traffic stops. Recently, several states have introduced bills purporting to implement similar programs. Nine states have passed acts directly addressing racial profiling, most mandating information collection from law enforcement agencies at every traffic stop. Additionally, a number of scattered localities have initiated research into their own police departments.

A few acts, such as those promulgated by Oregon, Oklahoma, and Kansas, are considered "unspecific and largely ineffective." The other states' acts, which contain enforcement provisions to deter racial profiling and provide useful information in order to address racial profiling, have their own drawbacks. For example, the Connecticut and Tennessee acts provide for only a temporary period in which data is collected. None of these acts mandate the analysis of the collected data to ensure consistency of recording.

Most of these states have yet to publish their results; consequently, their effectiveness is not yet determined. In response to racial profiling concerns, Michigan's police department issued a Traffic Enforcement Summary Report on July 20, 2000 covering three months of traffic stops. The report illustrated a significant disparity between the percentage of African Americans in Michigan (13.8%) and the percentage of African Americans involved in probable cause searches (23%); however, the police described the report as "inconclusive." St. Paul, Minnesota also recently released the initial results of its data collection project, illustrating that of 41,000 drivers stopped, almost 26% were African American and 56% were White. Considering that only 11.7% of the total population of St. Paul is African American, African Americans are stopped at more than double the rate one might expect. Although St. Paul Police Chief William Finney denied the existence of racial profiling in his department, he admitted that six of the city's officers pulled over minorities almost exclusively. All six officers were approached about this disparity, but only three actually received (minor) punishment.

Data collection efforts not only potentially result in the punishment of racist police officers, but also provide a catalyst for important policy changes in police departments. The St. Paul Police Department, subsequent to its newly released data, has changed its policies to include a Miranda-type warning that educates citizens of their right to refuse to grant consent to a search of their car. In addition, pursuant to an agreement with community and civil rights groups, the police department will set up centers for citizens to file complaints in order to make the complaint process more efficient and accessible.

Inconsistencies in data collection acts and programs, as well as recent studies exhibiting racial disproportion in traffic searches, suggest the need for a federal law establishing a uniform framework for each state to build upon in developing their own mandatory data collection acts. The proposed Traffic Stops Statistics Act of 1997 would have done just this. However, this Act was never passed, because of political pressure and police outcry. Aside from the reasons barring its passage, the Act would not necessarily have been effective: it does not provide an effective enforcement method to ensure honest data collection; it would not disclose the race of the police officer or the location of the stop; and the evidence collected could not be used at trial.

F. Drug Treatment

Proposed and enacted legislation to reduce drug crime sentences and shift the emphasis of the War on Drugs from incarceration to treatment also exists in some states. Such legislation essentially supplies a back-end solution to racial profiling, from which a high proportion of African-American drug convicts benefit. A forerunner to these laws, the ten- year-old Brooklyn Drug Treatment Alternatives-to-Prison (D-TAP) program allows nonviolent drug offenders to enter a treatment program instead of incarceration. Although some of D-TAP's facilities list a one-third drop-out rate, ninety-two percent of its graduates go on to find jobs and lead productive lives. The program's progressiveness and success are clouded by its selectiveness, a malady to which the facilitators of the program attribute most of its success. Nonetheless, studies from the Rand Corporation and the National Institute of Drug Abuse have concluded that treatment is generally a more efficient and effective way to handle the drug use problem than incarceration. It follows that D- TAP's success can be repeated in more expansive drug treatment programs around the country.

Although solutions to racial profiling are slowly emerging, they lack the necessary range to adequately address racial disparity in prisons. Programs, such as data collection, that scrutinize disproportionate arrest rates to combat racial profiling at the front end are certainly necessary to sufficiently reduce racial disparity in prisons. However, legislation creating programs such as diversionary drug treatment programs must be enacted as a remedy at the back end of racial profiling, after the victims' arrests, in order to address the vicious cycle of incarceration that results from living in a community constantly targeted by the police.