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Excerpted From: Alison Siegler and William Admussen, Discovering Racial Discrimination by the Police, 115 Northwestern University Law Review 987 (2021) (364 Footnotes) (Full Document)
Soon after Leslie Mayfield moved to the Chicago suburbs to escape the violence of the city and got a job at LG Electronics, a coworker mounted a campaign to rope him into robbing a drug stash house containing over a million dollars' worth of drugs. Little did Leslie know that the man nagging him to commit a crime was an informant for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). For a time, Leslie was able to resist the informant's overtures. But after Leslie took a loan from the informant to fix his broken-down car, Leslie felt he had little choice but to commit the robbery to repay the debt.
The informant then brought in an undercover ATF agent who told Leslie that he was a disgruntled drug courier seeking to rob his employers of their drugs. He laid out a get-rich-quick robbery scheme, claiming that the stash house would be patrolled by armed guards to encourage Leslie to bring others along and arm himself. When Leslie showed up with his brother, cousin, and a friend, they learned it was all fake--there were no drugs, no armed guards; even the house was a pure figment. All four men were charged, convicted, and received sentences ranging from twenty-two to twenty-seven years in federal prison.
Leslie was arrested as part of what is commonly known as a “fake stash house operation.” Every fake stash house operation follows the same basic playbook: an informant working for the ATF or the Drug Enforcement Agency (DEA) approaches someone like Leslie--a person of color in dire financial straits-- offers him an enticing jackpot, and then introduces the target to an undercover agent who describes a heavily guarded house to induce him to bring along friends and guns. Federal prosecutors and agents intentionally set a fictional drug amount that will trigger a high mandatory penalty, while the inducement to bring guns triggers an additional and consecutive mandatory penalty. As a result, defendants typically face a mandatory minimum sentence of fifteen to twenty-five years in prison. When the targets gather to execute the law enforcement-led “robbery,” federal agents arrest them, charging them with conspiracy to commit robbery, conspiracy to distribute narcotics, and gun possession. These operations have more than quadrupled since 2004.
Nationwide, federal law enforcement agencies have overwhelmingly targeted people of color to commit these fabricated crimes. In Chicago, from 2011 to 2013, only one individual out of the fifty-seven charged by the ATF in a stash house operation was white. In the past decade of stash house cases in New York, none of the 179 defendants charged were white. In Los Angeles, one agent testified that fifty-five out of sixty stash house defendants indicted were people of color. A 2014 review by USA Today of stash house cases nationwide found that “[a]t least 91% of the people agents have locked up using those [stash house] stings were racial or ethnic minorities.” In response to these disparities, defense attorneys across the country are mounting equal protection challenges, alleging race discrimination by federal law enforcement officers.
For decades, it was virtually impossible to hold the police accountable for race discrimination. Historically, the legal standards to do so were so difficult to meet that Professor Michelle Alexander predicted that “[t]he racial profiling cases that swept the nation in the 1990s may well be the last wave of litigation challenging racial bias in the criminal justice system that we see for a very long time.”
Under the Equal Protection Clause, criminal defendants can object to discriminatory enforcement of the law using two mechanisms: selective prosecution claims and selective law enforcement claims. “'Prosecution’ refers to the actions of prosecutors ... and 'enforcement’ to the actions of law enforcement and those affiliated with law-enforcement personnel.” A criminal defendant who is charged with a crime can move for dismissal of the indictment, arguing that either the prosecutor, law enforcement officers, or both violated his equal protection rights by impermissibly singling him out on the basis of race.
The Supreme Court created an insuperable discovery standard for selective prosecution claims in United States v. Armstrong. In practice, Armstrong's discovery standard creates an abstract right without a remedy. Broadly speaking, to get discovery, a defendant must present “some evidence” tending to show both discriminatory effect and discriminatory intent. First, the discriminatory-effect prong requires a defendant to make a “credible showing of different treatment of similarly situated persons” of another race by the prosecution. However, gathering evidence that individuals of a different race were committing the same offense but were not charged is a near impossible task. Second, a defendant must initially present “some evidence” of discriminatory intent on the part of prosecutors that will be unobtainable without discovery and that prosecutors have every incentive to keep secret. Thus, the defendant is confronted with Armstrong's cruel catch-22: he must provide evidence of discrimination to obtain discovery about discrimination.
For many years, courts amplified Armstrong's catch-22 by improperly affording law enforcement officers the same blind deference that Armstrong afforded prosecutors. Although Armstrong was a selective prosecution case, courts have extended Armstrong's insurmountable standard to selective law enforcement claims alleging that law enforcement officers discriminated on the basis of race.
As difficult as it is to meet Armstrong's similarly situated standard in the selective prosecution context, it is still harder to meet in the selective law enforcement context for two reasons. First, it is impossible for a person of color to point to similarly situated white individuals who were not arrested because there is no record of such people. Second, without discovery, a defendant cannot know what led the police to target him, so he cannot know who is “similarly situated” to him.
In the stash house context, three federal courts of appeals recently held that Armstrong should not apply to selective law enforcement claims and accordingly lowered the discovery standard. The Seventh Circuit first distinguished selective prosecution claims from selective law enforcement claims in United States v. Davis. The Third and Ninth Circuits then built on that distinction by eliminating both the granular similarly situated requirement and the discriminatory-intent requirement. These three decisions created a circuit split, as some circuits still apply the Armstrong standard to selective law enforcement claims.
This Article is the first to analyze this new wave of challenges to racially selective law enforcement and the developments in equal protection jurisprudence it has generated. We argue that the path charted by Davis correctly recognizes that Armstrong is inapplicable in the selective law enforcement context and urge other courts to follow suit. A lower standard will enable criminal defendants to obtain discovery and litigate selective law enforcement challenges on the merits, a rarity in the decades since Armstrong.
Although the recent courts of appeals cases allow legitimate claims of race discrimination by the police to survive the discovery stage in many federal courthouses, federal courts hear only a small percentage of criminal cases nationwide, exposing them to only a fraction of such claims. Too many reforms proposed by scholars neglect our system of dual constitutionalism where both federal and state constitutions protect individual rights. This Article argues that state courts should likewise adopt a lower discovery standard for racially selective law enforcement claims.
Building on the recent federal cases, this Article proposes a new discovery rule that state supreme courts could enact to authorize discovery regarding racial discrimination by law enforcement and thus ensure that meritorious equal protection claims against the police are not blocked at the discovery stage. Our proposed rule draws on a Washington state court rule aimed at preventing race discrimination in jury selection.
The Article proceeds as follows. Part I traces the history of the merits standard for equal protection claims challenging race discrimination in criminal cases. It then critiques Armstrong's insurmountable discovery standard for selective prosecution claims.
Part II explains how, although Armstrong was a selective prosecution case, courts have applied its discovery standard to equal protection claims against law enforcement officers. Part II then details how the Third, Seventh, and Ninth Circuits have recognized that the two types of claims should be treated differently and have departed from Armstrong's framework, creating a lower discovery standard for racially selective law enforcement claims. It argues that those courts were correct to depart from Armstrong for three reasons. First, as a doctrinal matter, the police do not enjoy the same deference as prosecutors. Second, as a practical matter, Armstrong's requirements are unworkable in the law enforcement context. Third, a lower discovery standard is the only way judges can adjudicate claims of race discrimination by the police on the merits. Part II concludes that other courts should follow suit and abandon Armstrong's discovery standard in the policing context.
Part III recognizes that federal solutions to race discrimination by law enforcement can have only a limited impact, and that state courts regularly apply Armstrong's high discovery standard to both selective prosecution and selective law enforcement claims. It then explores a growing body of state court rules, laws, and constitutional provisions that are more protective of criminal defendants' rights than the current constitutional standards.
Part IV identifies a novel avenue for reform: state court rules. Embracing the spirit of federalism, we draw on a recent Washington state court rule aimed at preventing racial discrimination in jury selection to propose that other state courts adopt a similar rule setting a new discovery standard for racially selective law enforcement claims.
[. . .]
“Sunlight is said to be the best of disinfectants.” Yet, for too long, Armstrong's shadow has obscured any meaningful scrutiny of racial discrimination by law enforcement officers. Although the police have thousands of interactions with citizens each day, applying the Armstrong standard allows their enforcement choices to go unchecked. There must be a legal mechanism for criminal defendants to root out racial discrimination, whether by federal agents who run fake stash house operations that predominantly target people of color or police officers who stop drivers of color at disproportionate rates. Without access to discovery, there is no way to police the police in criminal cases.
Our legal system does not afford law enforcement officers the same privileges as prosecutors, but that distinction has long gone unrecognized in the doctrine. Three federal courts of appeals have now acknowledged this distinction and have taken the important step of lowering the standard for defendants seeking discovery in support of claims of racially selective law enforcement. Other federal and state courts should follow suit. The Chicago stash house litigation in Leslie Mayfield's case and others demonstrates that a lower discovery standard has an immense impact on criminal defendants and advances the integrity of the legal system.
But federal courts alone will not bring us out of Armstrong's shadow. State courts see many more criminal cases than federal courts and have a role in reform as well. Our innovative state court Rule would ensure that defendants with meritorious claims can obtain the information they need to shed light on discrimination by the police. The Rule would thus safeguard the equal protection principles that undergird our system and strengthen our commitment to racial justice.
Alison Siegler is a Clinical Professor of Law and Director of the Federal Criminal Justice Clinic, The University of Chicago Law School.
William Admussen received his J.D. in 2020 from The University of Chicago Law School.
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