The Court’s quiet blessing of race-based traffic stops has led to something of an Orwellian public discourse regarding racial profiling. Police departments and highway patrol agencies frequently declare, “We do not engage in racial profiling,” even though their officers routinely use race as a factor when making decisions regarding whom to stop and search. The justification for the implicit doublespeak—“we do not racial-profile; we just stop people based on race”—can be explained in part by the Supreme Court’s jurisprudence. Because the Supreme Court has authorized the police to use race as a factor when making decisions regarding whom to stop and search, police departments believe that racial profiling exists only when race is the sole factor. Thus, if race is one factor but not the only factor, then it doesn’t really count as a factor at all.
The absurdity of this logic is evidenced by the fact that police almost never stop anyone solely because of race. A young black male wearing baggy pants, standing in front of his high school surrounded by a group of similarly dressed black friends, may be stopped and searched because police believe he “looks like” a drug dealer. Clearly, race is not the only reason for that conclusion. Gender, age, attire, and location play a role. The police would likely ignore an eighty-five-year-old black man standing in the same spot surrounded by a group of elderly black women.
The problem is that although race is rarely the sole reason for a stop or search, it is frequently a determinative reason. A young white male wearing baggy pants, standing in front of his high school and surrounded by his friends, might well be ignored by police officers. It might never occur to them that a group of young white kids might be dealing dope in front of their high school. Similarly situated people inevitably are treated differently when police are granted permission to rely on racial stereotypes when making discretionary decisions.
Equally important, though, the sole-factor test ignores the ways in which seemingly race-neutral factors—such as location—operate in a highly discriminatory fashion. Some law enforcement officials claim that they would stop and search white kids wearing baggy jeans in the ghetto (that would be suspicious)—it just so happens they’re rarely there. Subjecting people to stops and searches because they live in “high crime” ghettos cannot be said to be truly race-neutral, given that the ghetto itself was constructed to contain and control groups of people defined by race.91 Even seemingly race-neutral factors such as “prior criminal history” are not truly race-neutral. A black kid arrested twice for possession of marijuana may be no more of a repeat offender than a white frat boy who regularly smokes pot in his dorm room. But because of his race and his confinement to a racially segregated ghetto, the black kid has a criminal record, while the white frat boy, because of his race and relative privilege, does not. Thus, when prosecutors throw the book at black repeat offenders or when police stalk ex-offenders and subject them to regular frisks and searches on the grounds that it makes sense to “watch criminals closely,” they are often exacerbating racial disparities created by the discretionary decision to wage the War on Drugs almost exclusively in poor communities of color.
Defending against claims of racial bias in policing is easy. Because race is never the only reason for a stop or search, any police officer with a fifth-grade education will be able to cite multiple nonracial reasons for initiating an encounter, including any number of the so-called “indicators” of drug trafficking discussed in chapter 2, such as appearing too nervous or too calm. Police officers (like prosecutors) are highly adept at offering race-neutral reasons for actions that consistently disadvantage African Americans. Whereas prosecutors claim they strike black jurors not because of their race but because of their hairstyle, police officers have their own stock excuses—e.g., “Your honor, we didn’t stop him because he’s black; we stopped him because he failed to use his turn signal at the right time,” or “It wasn’t just because he was black; it was also because he seemed nervous when he saw the police car.” Judges are just as reluctant to second-guess an officer’s motives as they are to second-guess prosecutors’. So long as officers refrain from uttering racial epithets and so long as they show the good sense not to say “the only reason I stopped him was ’cause he’s black,” courts generally turn a blind eye to patterns of discrimination by the police.
Studies of racial profiling have shown that police do, in fact, exercise their discretion regarding whom to stop and search in the drug war in a highly discriminatory manner.92 Not only do police discriminate in their determinations regarding where to wage the war, but they also discriminate in their judgments regarding whom to target outside of the ghetto’s invisible walls.
The most famous of these studies were conducted in New Jersey and Maryland in the 1990s. Allegations of racial profiling in federally funded drug interdiction operations resulted in numerous investigations and comprehensive data demonstrating a dramatic pattern of racial bias in highway patrol stops and searches. These drug interdiction programs were the brain-child of the DEA, part of the federally funded program known as Operation Pipeline.
In New Jersey, the data showed that only 15 percent of all drivers on the New Jersey Turnpike were racial minorities, yet 42 percent of all stops and 73 percent of all arrests were of black motorists—despite the fact that blacks and whites violated traffic laws at almost exactly the same rate. While radar stops were relatively consistent with the percentage of minority violators, discretionary stops made by officers involved in drug interdiction resulted in double the number of stops of minorities.93 A subsequent study conducted by the attorney general of New Jersey found that searches on the turnpike were even more discriminatory than the initial stops—77 percent of all consent searches were of minorities. The Maryland studies produced similar results: African Americans comprised only 17 percent of drivers along a stretch of I-95 outside of Baltimore, yet they were 70 percent of those who were stopped and searched. Only 21 percent of all drivers along that stretch of highway were racial minorities (Latinos, Asians, and African Americans), yet those groups comprised nearly 80 percent of those pulled over and searched.94
What most surprised many analysts was that, in both studies, whites were actually more likely than people of color to be carrying illegal drugs or contraband in their vehicles. In fact, in New Jersey, whites were almost twice as likely to be found with illegal drugs or contraband as African Americans, and five times as likely to be found with contraband as Latinos.95 Although whites were more likely to be guilty of carrying drugs, they were far less likely to be viewed as suspicious, resulting in relatively few stops, searches, and arrests of whites. The former New Jersey attorney general dubbed this phenomenon the “circular illogic of racial profiling.” Law enforcement officials, he explained, often point to the racial composition of our prisons and jails as a justification for targeting racial minorities, but the empirical evidence actually suggested the opposite conclusion was warranted. The disproportionate imprisonment of people of color was, in part, a product of racial profiling—not a justification for it.
In the years following the release of the New Jersey and Maryland data, dozens of other studies of racial profiling have been conducted. A brief sampling:• In Volusia County, Florida, a reporter obtained 148 hours of video footage documenting more than 1,000 highway stops conducted by state troopers. Only 5 percent of the drivers on the road were African American or Latino, but more than 80 percent of the people stopped and searched were minorities.96
• In Illinois, the state police initiated a drug interdiction program known as Operation Valkyrie that targeted Latino motorists. While Latinos comprised less than 8 percent of the Illinois population and took fewer than 3 percent of the personal vehicle trips in Illinois, they comprised approximately 30 percent of the motorists stopped by drug interdiction officers for discretionary offenses, such as failure to signal a lane change.97 Latinos, however, were significantly less likely than whites to have illegal contraband in their vehicles.
• A racial profiling study in Oakland, California, in
2001 showed that African Americans were approximately twice as likely as whites to be stopped, and three times as likely to be searched.98
Pedestrian stops, too, have been the subject of study and controversy. The New York Police Department released statistics in February 2007 showing that during the prior year its officers stopped an astounding 508,540 people—an average of 1,393 per day—who were walking down the street, perhaps on their way to the subway, grocery store, or bus stop. Often the stops included searches for illegal drugs or guns—searches that frequently required people to lie face down on the pavement or stand spread-eagled against a wall while police officers aggressively groped all over their bodies while bystanders watched or walked by. The vast majority of those stopped and searched were racial minorities, and more than half were African American.99
The NYPD began collecting data on pedestrian stops following the shooting of Amadou Diallo, an African immigrant who died in a hail of police bullets on the front steps of his own home in February 1999. Diallo was followed to his apartment building by four white police officers—members of the elite Street Crime Unit—who viewed him as suspicious and wanted to interrogate him. They ordered him to stop, but, according to the officers, Diallo did not respond immediately. He walked a bit further to his apartment building, opened the door, and retrieved his wallet—probably to produce identification. The officers said they thought the wallet was a gun, and fired forty-one times. Amadou Diallo died at the age of twenty-two. He was unarmed and had no criminal record.
Diallo’s murder sparked huge protests, resulting in a series of studies commissioned by the attorney general of New York. The first study found that African Americans were stopped six times more frequently than whites, and that stops of African Americans were less likely to result in arrests than stops of whites—presumably because blacks were less likely to be found with drugs or other contraband.100 Although the NYPD attempted to justify the stops on the grounds that they were designed to get guns off the street, stops by the Street Crime Unit—the group of officers who supposedly are specially trained to identify gun-toting thugs—yielded a weapon in only 2.5 percent of all stops.101
Rather than reducing reliance on stop-and-frisk tactics following the Diallo shooting and the release of this disturbing data, the NYPD dramatically increased its number of pedestrian stops and continued to stop and frisk African Americans at grossly disproportionate rates. The NYPD stopped five times more people in 2005 than in 2002—the overwhelming majority of whom were African American or Latino.102
In Los Angeles, mass stops of young African American men and boys resulted in the creation of a database containing the names, addresses, and other biographical information of the overwhelming majority of young black men in the entire city. The LAPD justified its database as a tool for tracking gang or “gang-related” activity. However, the criterion for inclusion in the database is notoriously vague and discriminatory. Having a relative or friend in a gang and wearing baggy jeans is enough to put youth on what the ACLU calls a Black List. In Denver, displaying any two of a list of attributes—including slang, “clothing of a particular color,” pagers, hairstyles, or jewelry—earns youth a spot in the Denver Police’s gang database. In 1992, citizen activism led to an investigation, which revealed that eight out of every ten people of color in the entire city were on the list of suspected criminals.103
The End of an Era
The litigation that swept the nation in the 1990s challenging racial profiling practices has nearly vanished. The news stories about people being stopped and searched on their way to church or work or school have faded from the evening news. This is not because the problem has been solved or because the experience of being of being stopped, interrogated, and searched on the basis of race has become less humiliating, alienating, or demoralizing as time has gone by. The lawsuits have disappeared because, in a little noticed case called Alexander v. Sandoval, decided in 2001, the Supreme Court eliminated the last remaining avenue available for challenging racial bias in the criminal justice system.104
Sandoval was not, on its face, even about criminal justice. It was a case challenging the Alabama Department of Public Safety’s decision to administer state driver’s license examinations only in English. The plaintiffs argued that the department’s policy violated Title VI of the Civil Rights Act of 1964 and its implementing regulations, because the policy had the effect of subjecting non-English speakers to discrimination based on their national origin. The Supreme Court did not reach the merits of the case, ruling instead that the plaintiffs lacked the legal right even to file the lawsuit. It concluded that Title VI does not provide a “private right of action” to ordinary citizens and civil rights groups; meaning that victims of discrimination can no longer sue under the law.
The Sandoval decision virtually wiped out racial profiling litigation nationwide. Nearly all of the cases alleging racial profiling in drug-law enforcement were brought pursuant to Title VI of the Civil Rights Act of 1964 and its implementing regulations. Title VI prohibits federally funded programs or activities from discriminating on the basis of race, and the regulations employ a “disparate impact test” for discrimination—meaning that plaintiffs could prevail in claims of race discrimination without proving discriminatory intent. Under the regulations, a federally funded law enforcement program or activity is unlawful if it has a racially discriminatory impact and if that impact cannot be justified by law enforcement necessity. Because nearly all law enforcement agencies receive federal funding in the drug war, and because drug war tactics—such as pretext stops and consent searches—have a grossly discriminatory impact and are largely ineffective, plaintiffs were able to argue persuasively that the tactics could not be justified by law enforcement necessity.
In 1999, for example, the ACLU of Northern California filed a class action lawsuit against the California Highway Patrol (CHP), alleging that its highway drug interdiction program violated Title VI of the Civil Rights Act because it relied heavily on discretionary pretext stops and consent searches that are employed overwhelmingly against African American and Latino motorists. During the course of the litigation, the CHP produced data that showed African Americans were twice as likely, and Latinos three times as likely, to be stopped and searched by its officers as were whites. The data further showed that consent searches were ineffective; only a tiny percentage of the discriminatory searches resulted in the discovery of drugs or other contraband, yet thousands of black and brown motorists were subjected to baseless interrogations, searches, and seizures as a result of having committed a minor traffic violation. The CHP entered into a consent decree that provided for a three-year moratorium on consent searches and pretext stops statewide and the collection of comprehensive data on the race and ethnicity of motorists stopped and searched by the police, so that it would be possible to determine whether discriminatory practices were continuing. Similar results were obtained in New Jersey, as a result of landmark litigation filed against the New Jersey State Police. After Sandoval, these cases can no longer be brought under Title VI by private litigants. Only the federal government can sue to enforce Title VI’s antidiscrimination provisions—something it has neither the inclination nor the capacity to do in most racial profiling cases due to its limited resources and institutional reluctance to antagonize local law enforcement. Since the War on Drugs, private litigants represented by organizations such as the ACLU have been at the forefront of racial profiling litigation. Those days, however, have come to an end. The 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.
The Supreme Court has now closed the courthouse doors to claims of racial bias at every stage of the criminal justice process, from stops and searches to plea bargaining and sentencing. The system of mass incarceration is now, for all practical purposes, thoroughly immunized from claims of racial bias. Staggering racial disparities in the drug
war continue but rarely make the news. The Obama administration has indicated it supports abolition of the hundred-to-one disparity in sentencing for crack versus powder cocaine—the most obvious and embarrassing example of racial bias in a system that purports to be colorblind. But that disparity is just the tip of the iceberg. As noted in chapter 2, this system depends primarily on the prison label, not prison time. What matters most is who gets swept into this system of control and then ushered into an undercaste. The legal rules adopted by the Supreme Court guarantee that those who find themselves locked up and permanently locked out due to the drug war are overwhelmingly black and brown.
4
The Cruel Hand
A heavy and cruel hand has been laid upon us. As a people, we feel ourselves to be not only deeply injured, but grossly misunderstood. Our white countrymen do not know us. They are strangers to our character, ignorant of our capacity, oblivious to our history and progress, and are misinformed as to the principles and ideas that control and guide us, as a people. The great mass of American citizens estimates us as being a characterless and purposeless people; and hence we hold up our heads, if at all, against the withering influence of a nation’s scorn and contempt.1
—Frederick Douglass, in a statement on behalf of delegates to the National Colored Convention held in Rochester, New York, in July 1853
When Frederick Douglass and the other delegates to the National Colored Convention converged in Rochester, New York, in the summer of 1853 to discuss the condition, status, and future of “coloreds” (as they were called then), they decried the stigma of race—the condemnation and scorn heaped upon them for no reason other than the color of their skin. Most of the delegates were freed slaves, though the younger ones may have been born free. Northern emancipation was complete, but freedom remained elusive. Blacks were finally free from the formal control of their owners, but they were not full citizens—they could not vote, they were subject to legal discrimination, and at any moment, Southern plantation owners could capture them on the street and whisk them back to slavery. Although Northern slavery had been abolished, every black person was still presumed a slave—by law—and could not testify or introduce evidence in court. Thus if a Southern plantation owner said you were a slave, you were—unless a white person interceded in a court of law on your behalf and testified that you were rightfully free. Slavery may have died, but for thousands of blacks, the badge of slavery lived on.
The New Jim Crow: Mass Incarceration in the Age of Colorblindness Page 18
