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Criminal Justice Magazine
Summer 2000
Vol. 15, Issue 2

The Realities of Racial Profiling

Broad Interpretations of High Court Decisions Lead to Fourth Amendment Abuses

By Camille Knight

Editor's Note: This article is the winning entry in the 2000 William W. Greenhalgh Student Writing Competition, sponsored by the Criminal Justice Section. The contest solicits topics that deal in general with the Fourth Amendment. The author was the recipient of a $2,000 cash prize and was honored at the Section's Annual Meeting luncheon in New York. For information on the current contest see the Section News portion of the Section's Website at www.abanet. org/crimjust/home.html or see the full page annoucement in this issue on page 37.

A few years ago my former city council member, respected in his northern New Mexico community, was pulled over by the Illinois State Police while driving on the highway. The state trooper told him that he had failed to signal when changing lanes. The trooper asked for his identification and rental agreement, and permission to search the car. The council member declined. Another trooper then led a drug-sniffing dog around the car. The dog purportedly indicated the presence of drugs in the car. During the next hour, the troopers searched the car, its trunk, the engine compartment, and the council member's luggage. They found nothing. This was not surprising, as the troopers had been set up. The council member was experimenting with driving through Illinois, followed by a paralegal, just to see if he would be stopped. (Incidentally, the paralegal did not see an improper lane change.) So why was the council member stopped and searched for drugs? Peso Chavez is Hispanic. (David A. Harris, "Driving While Black" and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 545 nn.139-46 (1997).)

That experience is not uncommon. Drivers who are minorities, including celebrities, athletes, bar association presidents, state legislators, and ordinary people, are often stopped by police for no apparent reason. (Therese M. Stewart, President, Report of the Bar Association of San Francisco to American Bar Association, n.10-18 (August 1999).) The problems with racial profiling, known all too well by many, are finally being discussed openly in the media and other forums. As the United States continues its struggle with race issues, recent calls to address discriminatory law enforcement practices evoke sighs of relief. The first step to solving a problem is admitting its existence. So now what do we do about it?

War on Drugs

We must first understand how we got to this point. America's historical treatment of minorities has not been pretty. Slavery; Jim Crow laws; (Dred) Scott v. Sandford, 60 U.S. (19 How.) 393 (1857); and Plessy v. Ferguson, 163 U.S. 537 (1896), reflect the legal system's ratification of racism. It is, to many of us, tragic that heinous acts were rationalized in legal rhetoric throughout the history of the United States. Yet we continue to justify questionable policies. Take, for example, the War on Drugs (referred to by some as the War on Minorities). (Laura A. Wytsma, Punishment for "Just Us"-A Constitutional Analysis of the Crack Cocaine Sentencing Statutes, 3 Geo. Mason Ind. L. Rev. 473 (Summer 1995).) Ridding the nation of drugs seemed a good idea. We decided that drug users were criminals and treated them accordingly. We shifted efforts to fight drug use away from possible underlying causes (such as poverty) and toward interdiction, mostly on the street level. ( See Erika L. Johnson, A Menace to Society: The Use of Criminal Profiles and Its Effects on Black Males, 38 How. L.J. 629, 638 (1995) (stating that emphasis on combating street dealing has turned our prisons into "warehouses for young black males").) We created mandatory sentences and built more prisons to house the large number of people serving them. In the process, we achieved the second-highest incarceration rate in the world. Almost two million Americans, many of whom are minorities, now live in prisons. (David Cole, Race, Policing, and the Future of Criminal Law, 26 Hum. Rts. Q. 3 (1999); John A. Powell & Eileen B. Hershenov, Hostage to the Drug War: The National Purse, the Constitution, and the Black Community, 24 U.C. Davis L. Rev. 557 (1991) (noting that young black men constitute 50 percent of inmate population, but only 5 percent of population at large).)

Profiling the characteristics of potential criminals became a popular law enforcement tool early in the War on Drugs. First used by the Federal Aviation Administration (FAA) to detect drug smugglers in airports, profiles were adopted by the Drug Enforcement Administration (DEA) and police forces. Profiles were used to seek out criminals in buses, trains, automobiles, and on public streets. (Sandra Guerra, Domestic Drug Interdiction Operations: Finding the Balance, 82 J. Crim. L. & Criminology 1109 n.19 (1992).) The profiling methods seem to work; increasing numbers of people are arrested for possession of drugs. Many believe that the instincts of law enforcement personnel are efficient tools in fighting crime. ( See United States v. Mendenhall, 446 U.S. 544, 565 (1980) (Powell, J., concurring); Randall Kennedy, Suspect Policy, The New Republic, Sept. 13 & 20, 1999, at 30-31).) The problem, though, is that race is often an important factor in the profiles used by police. ( See, e.g., Commonwealth v. Vasquez, 703 A.2d 25, 34 (Pa. Super. Ct. 1997).)

Police discretion

Using race as a profile factor is disturbing because of its potential for abuse. Such potential grows through the discretion enjoyed by individual police officers, which has been affirmed and enlarged by the Supreme Court. An officer may stop a person on the street with a "reasonable articulable suspicion" and conduct a pat-down search. If the search leads to probable cause and an arrest, the officer can search the arrestee and his or her car, including the trunk in some cases, and inventory the contents. ( California v. Acevedo, 500 U.S. 565 (1991); Colorado v. Bertine, 479 U.S. 367 (1987); United States v. Ross, 456 U.S. 798 (1982); New York v. Belton, 453 U.S. 454 (1981); South Dakota v. Opperman, 428 U.S. 364 (1976); United States v. Robinson, 414 U.S. 218 (1973); Terry v. Ohio, 392 U.S. 1 (1968).) If a local statute authorizes an arrest for minor traffic violations, the officer can do all of the above without having even a reasonable suspicion of any criminal activity. ( Whren v. United States, 517 U.S. 806 (1996).) The result is that millions of Americans are considered likely criminals due to skin color and can be detained and searched virtually at will. This state of affairs helps explain why so many people are stopped for "D.W.B." (driving while black or brown).

The courts' response

Court challenges to arrests based on profiles have not fared well. In United States v. Mendenhall, 446 U.S. 544 (1980), the Supreme Court held that an airport detention based on a profile was not a "seizure" protected by the Fourth Amendment. ( Id. at 498.) And while the Court has held that race cannot be the only factor in a profile, it can be one of them. ( United States v. Sokolow, 490 U.S. 1 (1989); United States v. Brigoni-Ponce, 422 U.S. 873 (1975).) If other characteristics are present that, combined with race, make someone seem suspicious, an officer has the reasonable suspicion necessary to stop him or her under Terry v. Ohio, 392 U.S. 1 (1968), and its progeny. ( See Sandra Guerra, Domestic Drug Interdiction Operations: Finding the Balance, 82 J. Crim. L. & Criminology 1109 n.159 (1992).)

Claims of selective prosecution brought under the Equal Protection Clause of the Fourteenth Amendment are hampered by the burden of proof established by the Court. To prove such a claim, plaintiffs must show both disparate impact and discriminatory intent. ( United States v. Armstrong, 517 U.S. 456 (1996).) In many cases, statistics showing disparate impact are clear. ( See Angela Anita Allen-Bell, The Birth of Crime: Driving While Black, 25 S.U. L. Rev. 195 at 325 (citing statistics showing 75 percent of people stopped at one airport were minorities and that 91 percent of people stopped on one highway were minorities; other statistics reported that 98 percent of people fitting racial profile who were stopped and searched at one roadblock were innocent).) Even when disparate impact is shown, a claim may fail because the plaintiffs cannot prove their own stops were racially motivated (remember that Whren makes intent irrelevant when there is some legal basis for a traffic stop). If both elements are somehow established, a court may find that the government's "compelling" interest in drug interdiction justifies subverting civil rights. ( See United States v. Travis, 837 F. Supp. 1386, 1392 (E.D. Ky. 1993).) Similar claims under Title VI of the Civil Rights Act have also met roadblocks. In Chavez v. Illinois State Police, 1999 U.S. Dist. LEXIS 11976 (N.D. Ill.), the plaintiffs in a class action suit presented statistical evidence of highway stops that had a disparate effect on minority drivers. Their claim for prospective relief was dismissed based on lack of standing--the court held that the plaintiffs failed to prove that they were in imminent danger of being stopped again in the future.

Subjecting profiling challenges to strict requirements and standards of proof, however, contradicts a separate line of equal protection cases that hold that classifications based on race are inherently suspect and subject to strict scrutiny. To be permissible, the government must have a compelling interest for using a racial classification and must use the least restrictive means possible to achieve that interest. ( See, e.g., Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995).) This standard springs from judicial recognition of "discrete insular minorities" who often lack the power normally asserted by other groups to protect their legal and political interests. ( United States v. Carolene Products Co., 304 U.S. 144 n.4 (1938).) Because of America's spotty history regarding race relations, the Court has announced this need for caution whenever race is used as a basis for state action. ( Regents of the University of California v. Bakke, 438 U.S. 265, 291-99 (1978).) Thus the Court, while noting that race can be one permissible factor in affirmative action programs, has struck down such programs for not being sufficiently narrowly tailored. ( Id.; City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).)

Does stopping every 24-year-old African American male who drives a two-door car after 8 p.m. on a Sunday night constitute the least restrictive means of furthering drug interdiction efforts? What if he is a stellar student in medical school and is subjected to an hour-long detention while his car is searched? Thousands of innocent people are stopped and searched every year based on profiles that are neither narrow nor tailored. Yet the law has allowed such practices by narrowly interpreting the Fourth Amendment and by giving deference to the discretion of law enforcement officers. ( See Rodriguez v. California Highway Patrol, 2000 WL 286929 at *8 (N.D. Cal.) (noting that unlike prosecutors, law enforcement officers have never been afforded presumption of regularity regarding use of discretion).) We seem to have created a law enforcement exception to the application of constitutional protections, purportedly in order to fight crime and keep drugs off our streets. We are not winning the war. The casualties, however, continue to mount.

We now realize that racial profiling should not continue as a permissible weapon in this losing battle. The task at hand, then, is to change the law that allows its use. Mandatory reporting requirements (like the presidential directive requiring federal agencies to collect statistics regarding the race and gender of people subjected to traffic and pedestrian stops) will help. First, law enforcement agencies will feel that they are being monitored and may behave with more precision and caution. Second, large-scale quantitative evidence showing disparate impact will be available to plaintiffs in civil suits and defendants in criminal proceedings. Such evidence will be more persuasive than smaller studies or anecdotal evidence. Furthermore, law enforcement agencies cannot attack the validity of evidence generated by the agencies themselves. ( See Resolution No. 10A, ABA House of Delegates Annual Meeting (1999).) All of this assumes, however, that the data reported by those agencies are accurate and reliable.

Place burden of proof on government

Collecting and reporting data are not enough. There must be a shift in treatment of selective prosecution claims, which is unlikely to come from the judiciary itself. Courts hesitate to take discretion away from the police officers best situated to use it, and do not want to question officers' subjective intent. It would be relatively easy, however, for legislatures to pass laws shifting the burden of proof for claims of discriminatory police practices. If a significant disparate impact is shown, the burden could shift to the government to prove a nondiscriminatory intent. This type of procedure is already used in Batson-type challenges under the equal protection clause and for vindictive prosecution claims under the due process clause. ( Batson v. Kentucky, 476 U.S. 79 (1986); Blackledge v. Perry, 417 U.S. 21 (1974); North Carolina v. Pearce, 395 U.S. 711 (1969).) The government could easily rebut a presumption of discriminatory intent in appropriate cases (such as when a high percentage of minority stops may be due to high minority populations in certain areas) by using statistics that will be readily available after the year 2000 census. Even under the Whren standard, in cases in which stops are based on traffic violations, a requirement of objective proof of the violation in question could be required. For example, cameras mounted inside many patrol cars may provide support for claims of broken taillights or failures to signal.

Finally, law enforcement agencies can discourage racial profiling through training, community policing programs, and better recruitment of minorities. The law enforcement community must realize that it breeds hostility by targeting minorities. Minority communities do not want to hamper drug interdiction efforts. Yet they also do not want their citizens to be stopped and searched while on the way home from work.

The Bill of Rights was written to serve as a check on our government. Perhaps it also serves as a check on our collective social conscience. If we truly are to respect the rule of law, we cannot allow exceptions just because a person has dark skin. Racial profiling, like certain other historical policies, is insidious. It allows us to justify acting on sneaking suspicions and insecurities in the stated interest of fighting crime. Even if profiling does help put criminals behind bars, it causes much more harm in the long run. It assaults the dignity of innocent people, damages race relations, and diminishes government credibility. Our challenge is to stop talking about the problem and to start talking about timely solutions.

Camille Knight was graduated in June with a law degree from The John Marshall Law School in Chicago. Currently she is clerking for Hon. Paul Stickney, magistrate judge for the U.S. district court, Northern District of Texas, in Dallas. She is a native of Santa Fe, New Mexico.

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