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Abstract
In Whren v. United States, the Supreme Court held that pretextual traffic stops do not raise Fourth Amendment concerns. In this Article, Professor Maclin contends that by requiring only probable cause of a traffic offense to justify pretextual seizures, the Court mistakenly ignores racial impact when marking the protective boundaries of the Fourth Amendment. Professor Maclin argues that race matters when measuring the dynamics and legitimacy of certain police-citizen encounters. Pretextual traffic stops unreasonably use racial targeting, therefore, the Court should make racial impact a factor in determining the constitutionality of the pretextual seizure. Professor Maclin begins by examining objective, empirical evidence that police officers seize minority motorists for arbitrary traffic stops. Although Whren concluded that a police officer's subjective intentions are irrelevant, this evidence of racial targeting is more objective and reliable than other evidence the Court has sanctioned in Fourth Amendment analysis. The Article then turns to the Court's Fourth Amendment precedent, concluding that prior cases recognize the relevance of race, and that disparate racial impact is a proper consideration for Fourth Amendment analysis. Finally, the Article criticizes Whren because it fails to consider the real world of law enforcement and to reconcile that reality with a meaningful right to be free from unreasonable seizures. The Court ignores the fact that police discretion, police perjury, and the mutual distrust between black motorists and the police are issues intertwined with traffic enforcement. As a result, Whren assures that minority motorists will continue to feel like second-class citizens on the nation's roads.
... Through solidarity, police officers influence the elite with their prestige and political weight among the general population (Martinot, 2003). Maclin (1998) gives an early account of the socio-political nature of American police authority: ...
... In contemporary law enforcement contexts, the rudimentary socio-cultural, sociopolitical, and socio-economic influences for police officers to exercise their authoritative discretion become apparent. During a discussion of the Constitutionality of police officer discretionary actions, Maclin (1998) ...
... Police officers in the agrarian society served to protect the white social elite against fear of slave rebellion. On a weekly basis, slave patrols capriciously searched the homes of slaves for weapons (Maclin, 1998). At the height of the social reconstruction of the New South, "white Southerners transformed a deadly and often quiet form of vigilante 'justice' into a modern spectacle of enduring power" (Hale, 1998, p. 201). ...
Purpose of the Study:
The following discussion concentrates on the principal relationships found within the learning environment of American policing, and addresses instructional practices, curricula, and educational philosophies as they relate to learners within the paramilitary structure that governs current law enforcement training. The question becomes: How can the basic educational platform currently being used in California law enforcement police officer training be adapted to include alternative forms of instruction for the purposes of social transformation?
Procedure:
Specifically, I am concerned with examining the educational methodologies and philosophies used during basic academy and in-service training contexts of American policing. I have chosen to investigate the relationships between these aspects for the purpose of determining functional alternatives to the existing educational perspective and practices supporting contemporary law enforcement training.
Findings:
By ascertaining those practices through which police officers can amass critical knowledge and social understanding, training environments can be designed to produce police officers that come to rely upon the critical development of their intellectual prowess and the socio-cultural dynamics historically found in American policing to address the imbalances of sociopolitical power for the purposes of communal benefit.
... Black men across class and identity orientation are much more likely to be harassed and racially profiled by police than any other group (Boyles 2015;Feagin and Sikes 1994;Skolnick 1966) especially low-income and/or street-identified Black men (see, e.g., Brunson 2007;Brunson and Miller 2006b;Maclin 1998). An overrepresentation of Black men have been stopped, frisked, pulled over in cars, detained without arrest, and/or arrested for mostly minor crimes (Alexander 2010;Miller 1996). ...
This street participatory action research (Street PAR) study organized 15 residents to document street-identified Black youth and adult's negative experiences with police in Wilmington, Delaware. Data were collected on mostly street-identified Black men and women aged 18–35 in the forms of (1) 520 surveys, (2) 24 individual interviews, (3) four dual interviews, (4) three group interviews, and (5) extensive field observations. Forty-two percent of survey participants reported being stopped by police in the last year. However, with the exception of being “stopped,” participants overall reported little negative contact with police at least within the past year. Chi-square and ANOVA analyses suggest an interactional relationship exists between race, gender, and age on experiences with police. Younger Black men (18–21) were found to have the most negative contact with police. Analysis suggests a smaller, more hardened mostly male variant of the larger street community has had repeated contact with police. Qualitative analysis reveals at least two major themes: (1) disrespect and disdain for residents and (2) low motivation for working with police. Street PAR methodology was also found to be instrumental in working with local residents and the Wilmington Police Department to improve conditions between residents and police.
... Much of the research on policing in urban, predominantly African American neighborhoods focuses on the experiences of young men (for instance, Brunson, 2007;Brunson & Miller, 2006a;Clampet-Lundquist, Carr, & Kefalas, 2015;Goffman, 2015). Statistically, more so than other groups, Black males are disproportionately more likely to be targeted by police, and subjected to police use of force (Brunson, 2007;Engel & Calnon, 2004;Gau & Brunson, 2010;Jones-Brown, 2000;Maclin, 1998). Considerably less attention is paid explicitly to urban young women, especially those under the age of 18, and how they experience and understand policing in low-income, high-crime neighborhoods (for exceptions see Brunson & Miller, 2006b;Brunson & Stewart, 2006;Hurst, McDermott, & Thomas, 2005;Jones, 2009;Ramos-Zayas, 2012). ...
Research and public discourse on urban policing and the collateral consequences of mass incarceration often center on the experiences of young males, particularly young Black and brown men who live in low-income, high-crime neighborhoods. Consequently, less is known about how young women are policed in these contexts; and whether their experiences and dispositions toward police vary across racial and ethnic groups. Drawing on 70 in-depth interviews with low-income Black, Latina, and White young women between the ages of 14 and 24, in the City of Philadelphia, the current research explores the differences and similarities in their experiences with and perceptions of police, and the social contexts that influence those interactions. A comparative analysis reveals important nuances in young women’s direct and indirect experiences with police by race and ethnicity. The findings indicate that, within disadvantaged neighborhoods, particularly among young Black and Latina women, direct and vicarious experiences with policing contribute to expressions of legal cynicism.
... The issue of whether race or ethnicity should ever be used by criminal justice officials as a proxy for suspected or predicted criminal behavior is a matter of debate among legal scholars. 1 Many experts argue that it should never be permitted (Harris, 1997;Kennedy, 1997;Maclin, 1998;Thompson, 1999;Verniero, 1999, p. 52). No authority argues that race should be the only factor in police decisionmaking, but there is controversy over the extent to which race can be used as one of several factors. ...
In response to widespread allegations of racial and ethnic discrimination in traffic stops, a practice that has been labeled “racial profiling,” law enforcement agencies are now collecting data on traffic stops that include the race or ethnicity of drivers. Interpreting these data to determine whether a pattern of race discrimination exists poses enormous difficulties. Specifically, it is not clear what baseline (often referred to as “the denominator”) should be used to assess the racial and ethnic distribution of people stopped. Using the first traffic stop data reports from the San Jose Police Department as a case study, this paper examines baselines that are commonly used or discussed as appropriate. The paper argues that resident population data and/or official crime data are not adequate as baselines. As an alternative, the paper proposes an approach based on police early warning systems.
... This is important given that falsification of traffic stop data has been found to be an ongoing problem (Fagan, 2002;Jernigan, 2000;Lundman & Kaufman, 2003;Russell, 2001). It should not be surprising in that numerous scholars have repeatedly called attention to both police deception and perjury (Baldwin, 1992;Barker, 1976Barker, , 1978Barker & Carter, 1990;Champion, 2001;Chin & Wells, 1998;Cloud, 1994;Cohen, 1972;Crank & Caldero, 2000;Cunningham, 1999;Dorfman, 1999;Dripps, 1996;Elliston & Feldberg, 1985;Fisher, 1993;Foley, 2000;Hunt & Manning, 1991;Hyatt, 2001;Kittel, 1986;Maclin, 1988;Manning, 1974;Manning & Van Maanen, 1978;McClurg, 1998;Paris, 1997;Slobogin, 1996;Young, 1995). Therefore, it appears logical to state that if police officers are not troubled when they perjure themselves in open court, they are even much less concerned when they fabricate traffic stop data. ...
The core findings in the analyses of drug cases in traffic arrests on Louisiana's Interstate-10 were indicative of discriminative demographic profiling (Bowling, Ruiz, & Reynolds, 200810.
Bowling , T. , Ruiz , J. and Reynolds , M. 2008 . Drug profiling in Louisiana: Ten years later . International Journal of Police Science and Management , 10 ( 2 ) : 222 – 237 . [CrossRef]View all references; Ruiz & Lee, 200962.
Ruiz , J. and Lee , J. 2009 . Revisiting Louisiana drug interdiction: Drug profiling in the Louisiana justice system . International Journal of Police Science and Management , 11 ( 2 ) : 236 – 250 . [CrossRef]View all references; Ruiz & Woessner, 200663.
Ruiz , J. and Woessner , M. 2006 . Profiling, Cajun style: Racial and demographic profiling in Louisiana's war on drugs . The International Journal of Police Science and Management , 8 ( 3 ) : 176 – 197 . [CrossRef]View all references). Assuming that a similar pattern would exist in the bail set by the court, the current study examined data collected directly from arrest reports between 1995 and 1996 located in the record room of the St. Martin Parish Sheriff's Office. The possible disparity in the bail across drug arrestees was tested using factorial analysis of variance and analysis of covariance and multiple regression analyses. Race was found to be a significant factor in discriminative bail setting. State of residence was also significantly related to the disparity, while gender was not found to be a correlate.
... 420 Moreover, a form of "objective animus" can be relevant, that is, focusing on conduct that a reasonable observer would understand as reflecting racial animus without actually inquiring into the presence of such animus in individual officers" minds. 421 That the very appearance of such animus does grave harm and perhaps masks subconscious bias justifies an objective approach, thus avoiding proof problems with actual, conscious bias as a standard, including avoiding pre-textual claims that race played no role in police conduct; moreover, objective animus is highly likely to cooccur with actual, subjective racial bias. 422 Contrary to the Court"s assertions, some of the briefs in Whren argued for just such an objective approach. ...
Much debate about the role of history in constitutional interpretation centers on the difference between originalism and non-originalism. Yet most writers agree that history must play some role. If it does, for what should we be looking when we mine history? Originalists say, "for the original intent of the Framers or the original meaning of the Founding moment" or some variation. Non-originalists are less clear. Starting from a non-originalist perspective, this article argues that one important thing to mine history for is lessons about what promotes individuals' and the People's happiness. The article considers the implications for this stance for Fourth Amendment interpretation. The article first defines a "People" by its shared commitments, finding the American People thus to be defined in part by the "pursuit of happiness" as stated in the Declaration of Independence. The piece argues that the Declaration has an appropriate role to play in interpreting the Constitution. Next, the piece reviews relevant historical meanings of "happiness" and its pursuit and finds them consistent with modern social science on these topics. Specifically, the article finds that happiness's pursuit for individuals and the American People partly requires that citizens, groups, and the People as a whole have an effective voice in government and that the state also work to promote certain types of equality (though not income equality). The article argues that these happiness-promoting functions are particularly central to history's role in interpreting the Fourth Amendment, concluding with three examples focusing on racial and viewpoint minorities and their interactions with the police. The article was written as part of a symposium panel on the role of history in understanding the Fourth Amendment's meaning.
... Tracey Maclin writes about the attitude of distrust that has been "prevalent among blacks" even before "the Court sanctioned the practice of stop and frisk notwithstanding the ill effects that the intrusion engendered among blacks." [FN178] As Carbado wrote, "when black people encounter the police, 'they don't know . . . whether judge, jury and executioner is pulling up behind them."' ...
The history of rape law can illuminate the Fourth Amendment’s doctrine of consent. Over the past forty years, feminists have criticized rape law for treating unwanted physical intrusions as if they were consensual. Feminist theorists argued that the underlying purpose of rape law should be the protection of women’s autonomy and bodily integrity and that the law should therefore recognize even subtle forms of coercion as incompatible with true consent. Turning to the legal hurdles against rape convictions, feminist scholars criticized the force requirements as too onerous. Instead, the law should credit the woman’s perspective in determining if she submitted due to coercion or if she truly consented to the sexual intercourse. Whatever one thinks about feminism’s success or failure in changing rape law, the theorists certainly shed light on the fact that the law often fails to credit women’s subjective experience when determining consent. This article posits that the Fourth Amendment consent doctrine suffers from many of the same infirmities as rape law. Examining the theories that helped propel change to rape law, this article shows how critiques of rape law apply with equal force to the ever-expanding Fourth Amendment consent doctrine. Under the current Supreme Court rules, police may bypass the usual Fourth Amendment requirements for searches and seizures, such as probable cause and warrant, as long as the officer convinces a judge that an individual consented to the seizure of his person or to a search. As a practical matter, consent legitimizes searches and seizures based on hunches, racial profiling, or even harassment. The Court justifies this end-run around the constitutional protections by explaining that the consent exception promotes the dignity of individuals by giving them the choice whether to invite police intrusions. As this article shows, there are many parallels to be drawn between rape and Fourth Amendment consent law. Although both claim to protect the dignity of choice, like rape law, the Fourth Amendment fails to ask if a subject wishes to be seized or touched, focusing instead on the amount of force and coercion used by the police. Also like rape law, the Fourth Amendment fails to recognize that subtle forms of coercion are incompatible with true consent. Both Fourth Amendment and rape law blame subjects who submit to subtle coercion, telling them they had a choice. Just as rape victims were told they asked for it by wearing short dresses and not screaming for help, individuals are told they asked for it by extending their arms to be searched. The consent-to-search doctrine has long troubled lawyers and scholars in the criminal justice field. With this article, the inequities will also become apparent to those less familiar with the Supreme Court's search and seizure decisions.
The Fourth Amendment to the U.S. Constitution provides that people are to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” It further requires that warrants to perform such searches and seizures are based on probable cause with specific descriptions of what will be searched or seized. Supreme Court case law has contextualized this standard and applied a number of exceptions. As is often the case in the law, those standards and exceptions have psychological foundations and implications. The current chapter first examines the historical background of the Fourth Amendment. That history is replete with examples of the judiciary making psychological assumptions about people’s behavior. Next, we examine modern Fourth Amendment jurisprudence focusing on when a search or seizure triggers Fourth Amendment protections. In particular, we address the use of surveillance and technology (including trained canines) that seem to push the boundaries of the Fourth Amendment’s original intent. Finally, we address the issue of consenting to a search request because a search will not violate the Fourth Amendment if there is a valid consent. We detail empirical research addressing the psychological mechanisms underlying the validity and voluntariness of such consents.
Im Sommer 2013 wurden geheime Dokumente der National Security Agency (NSA) veröffentlicht, die über umstrittene Überwachungsprogramme informierten und eine Diskussion über die Macht des Staats und über Bürgerrechte entfachten. Wie aber kann man Staatsangehörigkeit in einer digitalen, vernetzten Welt definieren? Als Antwort auf diese Frage entwarf die NSA eine algorithmische, datenbasierte Version der Staatsangehörigkeit (und der Fremdheit), wonach ein Nutzer im juristischen Sinne als Ausländer gilt, wenn seine „Selektoren“ dies mit „wenigstens 51-prozentiger Konfidenz“ anzeigen. Diese Selektoren, die beispielsweise Telefonnummern, IP-Adressen oder Sprachen sein können, entfalteten rechtliche Bindungswirkung für eine Online-Staatsangehörigkeit. Der folgende Text erklärt, was algorithmische Staatsangehörigkeit bedeutet, wie die Staatsangehörigen und die Ausländer der NSA aussehen, und welche Folgen es hat, wenn eine offizielle Zuordnung der U.S.-Staatsangehörigkeit ausschließlich auf der algorithmischen Auswertung von Kommunikationsdaten basiert.
It is often assumed that the law and religion address different spheres of human life. Religion and ethics articulate complex systems of moral reasoning that concern norms, deliberation of ends, cultivation of disposition, and transformation of moral agency. Law, in contrast, seeks to govern human conduct through procedural justice, rights, and public good. Doing Justice to Mercy challenges this assumption by presenting the reader with an urgent conversation between the law and religion that yields a constructive approach, both theoretically and practically, to the complex role of mercy in our legal process. Authored by legal practitioners, activists, and theorists in addition to theologians and ethicists, the essays collected here are informed by timeless principles, and yet they could not be timelier. The trend in sentencing moves toward an increased severity, and the number of incarcerated people in the United States is at an all-time high. In the half-decade since 9/11, moreover, homeland security has established itself as a permanent fixture in our lives. In this atmosphere, the current volume seeks initially to clarify how justice and mercy intertwine in relation to a number of issues, such as rehabilitation, the death penalty, domestic violence, and war crimes. Exploring the legal, philosophical, and theological grounds for mercy in our courts, the discussion then moves to the practical ways in which mercy may be implemented. © 2007 by the Rector and Visitors of the University of Virginia. All rights reserved.
The third-party doctrine permits the government to collect consumer records without implicating the Fourth Amendment. The doctrine strains the reasoning of all possible conceptions of the Fourth Amendment and is destined for reform. So far, scholars and jurists have advanced proposals using a cramped analytical model that attempts to balance privacy and security. They fail to account for the filterability of data. Filtering can simultaneously expand law enforcement access to relevant information while reducing access to irrelevant information. Thus, existing proposals will distort criminal justice by denying police a resource that can cabin discretion, increase distributional fairness, and exculpate the wrongly accused. This Article offers the first comprehensive analysis of third-party data in police investigations by considering interests beyond privacy and security. First, it shows how existing proposals to require suspicion or a warrant will inadvertently conflict with other constitutional values, including equal protection, the First Amendment, and the due process rights of the innocent. Then, it offers surgical reforms that address the most problematic applications of the doctrine: suspect-driven data collection and bulk data collection. Well- designed reforms to the third-party doctrine will shut down the data collection practices that most seriously offend civil liberties without impeding valuable, liberty-enhancing innovations in policing.
As reactions to the O. J. Simpson verdict, the Rodney King beating, and the Amadou Diallo killing make clear, whites and African Americans in the United States inhabit two different perceptual worlds, with the former seeing the justice system as largely fair and color blind and the latter believing it to be replete with bias and discrimination. The authors tackle two important questions in this book: what explains the widely differing perceptions, and why do such differences matter? They attribute much of the racial chasm to the relatively common personal confrontations that many blacks have with law enforcement - confrontations seldom experienced by whites. More importantly, the authors demonstrate that this racial chasm is consequential: it leads African Americans to react much more cynically to incidents of police brutality and racial profiling, and also to be far more skeptical of punitive anti-crime policies ranging from the death penalty to three-strikes laws.
Although there is no universal definition of "decriminalization," approaches to decriminalization largely focus on modifying how conduct is sanctioned or punished. This Article argues that there is a need to broaden approaches to decriminalization beyond sanctions and give more consideration to the other ways in which criminalization fosters state control over civilians-including police authority and discretion. Decriminalization should restrict opportunities and methods for the state to control civilians in ways that (1) facilitate their entry into, or continued contact with, the criminal justice system, and (2) leave them vulnerable to state-imposed privacy, liberty, dignitary, and physical harms that arise from contact with the criminal justice system and actors. These goals are undermined when decriminalization does not capture police authority and discretion. To illustrate these points, this Article focuses on the most common form of civilian interaction with the police-the routine traffic stop. Through original research, this Article shows that since 1970 twenty-two states have decriminalized minor traffic violations by removing criminal sanctions, reclassifying the violations as noncriminal offenses, and streamlining their adjudication to the administrative realm. These decriminalization reforms have centered on modifying sanctions and have rarely restricted police authority and discretion in routine traffic stop settings. This Article then exposes and examines an asymmetry in the criminal justice process that emerges from sanction-focused approaches to decriminalization, and appears in traffic decriminalization trends. Specifically, the focus on sanctions in traffic decriminalization reforms has enabled states to retain access to an expanding set of crime-fighting tools via the policing of decriminalized traffic violations to further their crime-control policies (such as drug law enforcement). This access, however, comes at the expense of funneling drivers and passengers into the criminal justice system, and making all drivers-whether innocent or guilty of nontraffic crime-more vulnerable to privacy, liberty, dignitary, and physical harms that stem from policing in traffic settings. These results, which advocates of decriminalization should seek to avoid, especially affect people of color and other minority communities that are more vulnerable to concentrated police surveillance and pretextual traffic stops.
In the United States, digital inclusion policies designed to introduce poor people, communities of color, indigenous, and migrants (collectively, "chronically underserved communities" or "the underserved" ) to the economic, social, and political benefits of broadband lie in tension with new practices and techniques of online surveillance. While online surveillance activity affects all broadband users, members of chronically underserved communities are potentially more vulnerable to the harmful effects of surveillant technologies. This paper examines specific examples of commercial data profiling against a longer history of low-tech data profiling of chronically underserved communities. It concludes by calling for issues of online privacy and surveillance to punctuate digital inclusion discourse. Until this happens, digital inclusion policies threaten to bring chronically underserved communities into online worlds that, as Gandy (2009) argued, reinforce and exacerbate social exclusion and inequalities.
In this essay, I call for an “unshackling” of intersectionality from the narrow and restrictive ways in which legal scholars and activists interpret and mobilize the theory and critique the single-axis framework that has been deployed by legal scholars and advocates in the context of mass incarceration. Specifically, I assert that a single-axis analysis of mass incarceration is insufficient to capture the broad impact of the prison and the raced and gendered logics that animate its operation. As a consequence of the failure to engage intersectionality in the context of the prison, legal scholarship on incarceration tends to obscure the centrality of Black women's gender in the racialized system of control and posits Black men as the primary targets of mass incarceration. This undertheorization of incarceration also hinders the development of a framework that can account for why both Black women and Black men are vulnerable to multiple systems of social control.
In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court held that judicial determinations of fact not found by a jury or admitted by the defendant to increase sentences under the Federal Sentencing Guidelines violated the Sixth Amendment. As a remedy, the Court excised 18 U.S.C. 3553(b), which created a presumption in favor of the guideline range ("the court shall . . . unless the court finds . . ."), and excised 18 U.S.C. 3742(e), which was designed to enforce the guidelines (by requiring de novo review of the factual basis, legal basis and extent of any departure, while reviewing within guideline sentences for correctness). The Court made 3553(a) the governing sentencing law, thus rendering the guidelines "advisory," and prescribed a unitary standard of review --"unreasonableness" with regard to 3553(a) --for all sentences within or outside the guideline range. Eighteen months later, seven courts of appeals say the guidelines are presumptively reasonable on appeal. 1 While purporting to apply an abuse of discretion standard to below-guideline sentences, this review is virtually equivalent to de novo. 2 District court judges within these circuits, and even some in circuits that have rejected United States v. Mares, 402 F.3d 511 (5 th Cir. 2005). While the Eight Circuit has adopted a presumption of reasonableness, see, e.g., United States v. Lincoln, 413 F.3d 716 (8 th Cir. 2005), it has also rejected the position that "the range of reasonableness is essentially co-extensive with the Guideline range" because that "would effectively render the Guidelines mandatory. . . . The Guidelines range is merely one factor." United States v. Winters, 416 F.3d 856, 861 (8 th Cir. 2005). A panel of the Sixth Circuit adopted the presumption without explanation, United States v. Williams, 436 F.3d 706 (6 th Cir. 2006), but then made clear that it does not apply unless the district court actually recognized its discretion to impose a non-guideline sentence, considered the 3553(a) purposes and factors, exercised its independent judgment as to what sentence is sufficient but not greater than necessary to satisfy the purposes of sentencing, and gave a reasoned explanation for the sentence. United States v. Foreman, 436 F.3d 638 (6 th Cir. 2006); United States v. Buchanan, 449 F.3d 731, 738-41 (6 th Cir. 2006) (Sutton, J., concurring).
This first study of Justice O’Connor’s Fourth Amendment jurisprudence notes the shift in her decision pattern from a very conservative position from 1982 to 1986 to a more moderate position in subsequent years. Prior scholarship characterizes Justice O’Connor’s judicial opinions as contextual and fact driven, her style of judging as “behavioral accommodationism,” or the seeking of consensus, and her judicial policy preferences as moderately conservative. The authors explore these categories by a close examination of five recent cases: City of Indianapolis v. Edmond, Ferguson v. City of Charleston, Atwater v. City of Lago Vista, Illinois v. McArthur, and Kyllo v. United States. The authors conclude that her decisions in these cases, liberal and conservative, reflect both the earlier explanations of her decisions and an unstated set of complex personal predilections reflecting political sensitivity to middle-American views that demands an adherence to basic liberties in a crime-control context.
This Book Review addresses two important new books, Professor Kenneth Mack’s Representing the Race: The Creation of the Civil Rights Lawyer and Professors Devon Carbado and Mitu Gulati’s Acting White? Rethinking Race in Post-Racial America, and utilizes their insights to both explore the challenges that face the next generation of civil rights lawyers and offer suggestions on how this next generation of civil rights lawyers can overcome these difficulties. Overall, this Book Review highlights one similarity in the roles of black civil rights attorneys past and present: the need for lawyers in both generations to perform their identities in ways that make them racially representative of Blacks and racially palatable to Whites. Thereafter, this Book Review shows how the performance of black civil rights attorneys as the representatives of individuals, groups, and communities has become more complicated over time by highlighting the differences between the challenges encountered by the early black civil rights lawyers and today’s and the next generation’s civil rights lawyers. Finally, this Book Review offers suggestions for strategies that the next generation of civil rights attorneys may use to rechannel the study and practice of civil rights law in more experimental, activist directions that attend to the complexities of how race is understood in today’s society as well as the complexities of how racial discrimination is practiced today.
Bureaucratic representation is the idea that nonelected officials can address the interests of citizens as effectively as elected officials can. It has an active component and a passive component. The passive component is the concept that citizens are affected in a different way cognitively by a bureaucratic actor who resembles them than by one who does not. The chief difficulty in addressing the question of a symbolic effect has been a reliance on aggregate data. This study uses as its data supplemental surveys to the National Crime Victimization Survey called the Police-Public Contact Survey. A difference was found in how African American and White citizens react to police officers.
Race, Crime, and the Law. Randall Kennedy. New York: Vintage Books/Random House, 1997, xiv + 539 pp.
A number of state legislatures have developed new strategies for addressing the problems of gang-related criminal behavior. Legislatures have both enhanced traditional criminal laws and drafted new legislation aimed specifically at alleviating the gang problem. One of the most comprehensive approaches originated in California where the first statute aimed exclusively at prohibiting the activities of criminal street gangs was enacted. The California Street Terrorism and Enforcement Prevention Act's primary focus was to make it a criminal offense to engage in criminal gang activity. A multitude of other states quickly followed suit and passed similar legislation. The purpose of the article is to examine the approach taken by state legislatures to make participating in gang activities a substantive crime. This approach will be analyzed in terms of its potential effectiveness as well as its potential for abuse and discriminatory application. Last, suggestions for improving existing statutes will be offered.
The police are relying on more aggressive tactics in their effort to fight crime. A common complaint regarding these tactics is that innocent persons are sometimes subjected to unlawful arrest. At common law, there was a right to resist an illegal arrest. The modern trend, however, has been to eliminate the right to resist. Abrogation of the common law right is based on several factors, including the development of modern criminal procedure, the ability to seek redress via other means, and the belief that violence should not be encouraged. This article examines the history and current status of the right to resist an unlawful arrest. The authors argue that attacks on the common law right are based on a misunderstanding of the original justifications for the right and that there remains a great need for the right particularly as new police tactics increase the probability of arbitrary assertions of authority.
This paper is a rejoinder to Martin O'Connor's paper critiquing my paper (both appear in The Justice Professional 11:3). In my original paper I asserted that the Supreme Court has surrendered individual liberties to the interests of law enforcement, and used as an example two recent decisions concerning the “knock and announce” rule. In this paper I respond to Professor O'Connor's claims by building upon my previous arguments and discussing recent cases which support my contention that the Supreme Court's discussion of the protections embodied in the Fourth Amendment is little more than a smokescreen for its true agenda: to justify virtually any and all law enforcement practices, regardless of the cost to individual liberties.
In July 1999, Tulia, Texas hit the national headlines and became the poster child for the discriminatory impacts of the "war on drugs." In a sting operation, a corrupt undercover officer framed a substantial percentage of African Americans in a small Texas Panhandle town. Tried, convicted, and sentenced to decades in prison, the group ultimately was released as a result of the monumental efforts of a group of attorneys, led by a young lawyer from the NAACP Legal Defense Fund. Part I of this essay offers a capsule summary of the Tulia sting. Part II analyzes one of the most fascinating angles of the case, which was largely ignored in the press coverage and kept under wraps by the attorneys who successfully vindicated the Tulia defendants. A careful study of the cases reveals that the defendants arrested in the sting came predominantly from a discrete sub-section of the African American community - those who were in, or had been in, interracial relationships with whites. A unanimous Supreme Court decided Loving v. Virginia (1967), which struck down Virginia's anti-miscegenation law, forty years ago, which helped inspire this retrospective symposium. However, despite improvements in the nation's racial sensibilities and increasing acceptance of interracial relationships, Black/white intimacy remains off-limits in Tulia, just as it is in much of the United States. Consequently, Blacks who were romantically involved with whites were among the least popular, and most marginalized, of all African Americans in town. As such, they were easier than almost any other population sub-group to convict on trumped-up charges. Ultimately, the Tulia case represents one more example of the falsity of the claim that an increasingly multiracial United States has ended the disfavor of Black/white relationships. This, of course, undermines the claim that we live in a color blind society. Part III contends that the Tulia case, with its extraordinary facts, is not an outlier unlikely of repetition but simply a clear example of the racially disparate impacts of the enforcement of the criminal laws that occur regularly, although generally more subtly, throughout the United States. Racial profiling, a variation of which occurred in the case, in law enforcement is one symptom of the disease that deeply afflicts the entire criminal justice system. In Tulia, law enforcement targeted the defendants because of race, with their race contributing to their convictions and long sentences. Importantly, the round-up directly resulted from the full court press for drug convictions - and the allocation of financial resources based on convictions - that is part and parcel of the nation's long-running "war on drugs." Increasing the likelihood of an incident like that which occurred in Tulia, the Supreme Court over the last several decades has steadily afforded greater discretion to law enforcement. The dangers of the expansion of law enforcement authority are starkly revealed in the Tulia case. A lone drug enforcement officer, with much authority and precious little supervision, combined with incentives for arrests and convictions, placed the machinery in motion for a massive - and legally and factually wrong - shakedown of the African American community. Once the process was set in motion, it proved to be incredibly difficult to stop and to make the corrections necessary to ensure that full justice was done. From a criminal justice perspective, what is most telling, as well as troubling, about the Tulia story is that one corrupt white police officer - the proverbial "bad apple" - was able to start the ball rolling so that so many innocent people were sent to prison based on virtually no evidence. Tulia is uncomfortably reminiscent of the lynching of African Americans based on the - too often false - word of a single white person in the hey-day of Jim Crow. The public as a whole never questioned the guilt of the defendants; not a single jury acquitted any of the 47 Tulia defendants. The gravity of the injustice hints at the deep and enduring institutional problems existing in the criminal justice system. Such problems obviously must be corrected to avoid such travesties of justice in the future. The question is what can be done, as well as how it could be implemented, to reform the criminal justice system. Unfortunately, despite considerable publicity over the Tulia case, there is no reform proposal on the table that comes close to solving the deep systemic problems in the U.S. criminal justice system. Indeed, less attention has focused on the excesses of the drug war since the "war on terror" commenced after the tragic events of September 11, 2001, which, at least for the time being, supplanted the war on drugs and resulted in its own controversial excesses.
This article examines the emergence, over the last two decades, of a doctrine that bases probable cause on the unshared knowledge of different law enforcement agents working together on an investigation. Thus if an officer conducts a search or arrest without probable cause, the action may be validated by looking to the other officers' knowledge. So far the rule has been confused with the "collective knowledge" rule and has traveled under that name. The article argues that the new rule (here called the "constructive knowledge" rule) depends on constructive belief and may establish constructive, not actual, probable cause. While the rule might seem to be justifiable on the ground that the officers would have pooled their information in any case, research on cognitive bias suggests that an after-the-fact analysis of the officers' knowledge would likely exaggerate any inculpatory evidence while disregarding exculpatory evidence. Fourth Amendment law imposes few formal ex ante requirements on officers, but some de minimis formality is appropriate here, as we may see by looking to the role of collaborative decision-making in administrative law. The article argues that courts should make explicit the rule's "inevitable communication" premise, and should refuse to aggregate the unshared information. Failing that, courts should require the prosecution to show that the officers would have shared their knowledge before leaving the scene. The "constructive knowledge" problem reveals the difficulty of factoring the risk of error into the analysis of probable cause when the requisite quantum of cause remains fixed in all cases. That difficulty, in turn, suggests that the probable-cause calculus may be likened to the Mathews v. Eldridge formula for termination of governmental benefits. This analogy points up other difficulties with the notion of "transsubstantive" probable cause.
Throughout American history, the government has used U.S. citizenship and immigration law to protect privileged groups from less privileged ones, using citizenship as a legitimate proxy for otherwise invidious, and often unconstitutional, discrimination on the basis of race. While racial discrimination is rarely legally acceptable today, profiling on the basis of citizenship is still largely unchecked, and has in fact arguably increased in the wake of the September 11 terror attacks on the United States. In this examination of the intersection between American immigration and constitutional law, Victor C. Romero draws our attention to a constitutional immigration law paradox that reserves certain rights for U.S. citizens only, while simultaneously purporting to treat all people fairly under constitutional law regardless of citizenship. As a naturalized Filipino American, Romero brings an outsider's perspective to Alienated, forcing us to look at constitutional immigration law from the vantage point of people whose citizenship status is murky (either legally or from the viewpoint of other citizens and lawmakers), including foreign-born adoptees, undocumented immigrants, tourists, foreign students, and same-gender bi-national partners. Romero endorses an equality-based reading of the Constitution and advocates a new theoretical and practical approach that protects the individual rights of non-citizens without sacrificing their personhood.
It may seem surprising to most readers but racial profiling in law enforcement has long been permitted, if not expressly authorized, by U.S. constitutional law. This is true despite the civil rights revolution of the 1950s and 1960s and the generally positive trajectory of racial progress in the United States over the last century. Indeed, in two major post-civil rights movement decisions that are the subject of this Essay, the U.S. Supreme Court has affirmatively contributed to the predominance of racial profiling in law enforcement in modern America.Persistent accusations of race-based ordinary criminal law enforcement, and specifically in traffic stops, have long plagued the United States. The Supreme Court declined to address the problem head on when given the opportunity in the 1996 case of Whren v. United States, which effectively rendered the Fourth Amendment impotent in combating pretextual stops of automobiles based on race. Indeed, as we shall see, the Court's decision in that case made legal challenges to profiling more, not less, difficult, thereby implicitly encouraging police officers to rely on racial profiles in law enforcement.Although racial profiling in ordinary criminal law enforcement receives the bulk of public scrutiny and scholarly commentary, the practice has had a much broader and deeper reach into modern law enforcement. Border enforcement officers have long employed crude racial profiles, which almost invariably include undefined "Mexican appearance," in making immigration (as well as drug) stops. Such profiles are used not just at the U.S./Mexico border but miles away from any port of entry. As is the case for traffic stops, the Supreme Court has sanctioned racial profiling in immigration enforcement. Indeed, more than two decades before Whren, the Court in 1975 in United States v. Brignoni-Ponce expressly sanctioned precisely this sort of profiling, so long as "Mexican appearance" was only one of many factors relied upon by authorities in making an immigration stop. Evidence unfortunately suggests that the Border Patrol today persistently relies unduly on race in targeting particular groups for stops. Although decided over two decades apart, United States v. Brignoni-Ponce (1975) and Whren v. United States (1996) are cut from the same cloth. With little apparent concern for the consequences on minority communities, both decisions in effect allow racial profiling by law enforcement officers to go largely unchecked. As a result, both in effect tacitly encouraged - and encourage to this day - racial profiling in law enforcement. To shed light on the emergence of the dominance of role in modern law enforcement, this Essay carefully situates Brignoni-Ponce and Whren in their proper historical contexts and dissects the litigation in those cases to show how and why the defense strategy failed to root out race-conscious law enforcement. It further analyzes how both Supreme Court decisions together operate in practice to effectively contribute to the problem of racial profiling in modern American social life.When carefully considered, we see that Brignoni-Ponce and Whren aptly illustrate the difficult challenges facing lawyers seeking to bring about social change and racial justice. Gerald López popularized the concept of "rebellious lawyering," as a way of empowering poor clients through grassroots advocacy facilitated by lawyers. Others have sought to import those teachings to immigration and related fields. The idea is for lawyers to bring about social change while at the same time empowering the subordinated who can be their own advocates in future struggles. The important scholarship of Anthony Alfieri has offered much to this analysis, especially in considering the role of client identity in the strategies of poverty lawyers seeking to promote social change.The work of the attorneys in the trenches in Brignoni-Ponce and Whren demonstrate the importance of litigation in seeking to confront racial subordination while also showing the importance of avoiding exclusive reliance on litigation but combining it with political strategies to bring about social change. Attorneys aggressively battled the state's reliance on race in both cases, only to be rebuffed in different - but both perfectly legal - ways. Stories of real lives of real people got lost in the shuffle of legalities. The potential solution, while possible through the courts, was more likely through the political process, by using political action to focus attention on the real life impacts of race-based law enforcement measures.Part I of this Essay carefully studies Brignoni-Ponce v. United States, which perhaps inadvertently has encouraged the excessive and undue reliance on race in immigration enforcement by bestowing great discretion on the Border Patrol to make stops and specifically permitting them to consider a vague, and quite crude, identifier - "Mexican appearance" - in making an immigration stop. Part II considers Whren v. United States, which effectively immunized racial profiling by police on the streets and highways of America from sanction under the Fourth Amendment and offered a toothless Equal Protection remedy in return. The Essay concludes, by contending that, to truly root out racial profiling from law enforcement, the law must impose limits on the consideration of race in law enforcement, restrict law enforcement discretion in making stops, and afford a meaningful remedy for impermissible stops. To maximize the potential of doing this, lawyers need to advocate for racial justice in the political arena as well as in the courts.
Crime-mapping technology has the potential to reshape Fourth Amendment protections in designated "high-crime areas." In Illinois v. Wardlow the Supreme Court held that presence in a high-crime area is one of only two factors necessary for creating reasonable suspicion to stop an individual. Since Wardlow, thousands of federal and state cases have used the term "high-crime area," yet only a handful of courts have considered how to define it. New crime-mapping technologies can now address that definitional problem. Crime-mapping technologies can collect and analyze crime statistics so that police districts can produce almost perfect information about the level, rate, and geographic location of crimes in any given area. The result: police can define official "high-crime areas" for Fourth Amendment purposes. Crime-mapping technology raises significant Fourth Amendment questions. Does crime-mapping technology alter the existing Fourth Amendment reasonable suspicion analysis? Will this technology create an implicit high-crime area exception to the Fourth Amendment? How will this technology effect police-citizen encounters and liberty interests in officially designated high-crime areas? This Article addresses these questions in an effort to reevaluate and rethink the concept of the high-crime area as understood by the courts. Tracing the history and practice of crime-mapping technology and its effect on Fourth Amendment doctrine, this Article proposes a new framework and redefinition of the term that is both informed by existing crimemapping technologies and consistent with Fourth Amendment principles.
Because of fundamental changes in the nature of immigration enforcement over the past decade, an increasing number of interactions between law enforcement agents and noncitizens in the United States are ultimately adjudicated not in criminal courts, but in immigration courts. Unfortunately, unlike the state and federal courts that have long performed an oversight function with regard to police activity, immigration courts were not designed to police the police. As a result, there are inadequate mechanisms in place to address many of the rights violations that are occurring in the context of immigration enforcement. This Article explores the procedural deficiencies of the current system and offers some proposals to address this growing problem.
In recent years, legal scholars have utilized the science of implicit social cognition to reveal how unconscious biases affect perceptions, behaviors, and judgments. Employing this science, scholars critique legal doctrine and challenge courts to take accurate theories of human behavior into account or to explain their failure to do so. Largely absent from this important conversation, however, are Fourth Amendment scholars. This void is surprising because the lessons of implicit social cognition can contribute much to understanding police behavior, especially as it relates to arrest efficiency or hit rates - the rates at which police find evidence of criminal activity when they conduct a stop and frisk. Empirical evidence consistently demonstrates that the police disproportionately stop and frisk non-Whites although stops and searches of Whites are often more successful in yielding evidence of criminal activity. While economists and criminal process scholars both suggest that arrest inefficiency is due to conscious racial bias, the science reveals that unconscious biases may also contribute to this inefficient policing. This Article argues that taking account of the science of implicit social cognition is important to the study of Fourth Amendment jurisprudence and policing. It demonstrates that the failure to recognize the effects of implicit bias has resulted in a Fourth Amendment legal regime that unintentionally exacerbates inefficient policing by strengthening the effects of implicit bias on police behavior. The Article suggests doctrinal and structural changes to ameliorate inefficient policing and more effectively protect privacy against arbitrary government intrusion.
Racial profiling by law enforcement officers has been the subject of sustained criticism by scholars, activists, politicians and other commentators. The emerging consensus is that racial profiling is illegitimate because it constitutes the intentional use of race by state actors in a manner that disparately impacts innocent members of certain racial minority groups. A related and pervasive use of race by law enforcement officers has been the subject of virtually no scholarly criticism or political debate: reliance on race as a component of a physical description of a suspect. While racial profiling is widely condemned, law enforcement reliance on race-based suspect descriptions is accepted as so obviously legitimate as to scarcely require justification. This Article challenges the orthodox view of race-based suspect descriptions by demonstrating that law enforcement use of race-based suspect descriptions is as much of a racial classification as is racial profiling. Both practices are intentional uses of race by state actors in a manner that disparately impacts innocent members of certain racial minority groups. The broader purposes of this Article are to critique the colorblindness principle of equal protection doctrine and to highlight the depth of racial inequality and the inability of equal protection doctrine, however formulated, to overcome that inequality. Treating race-based suspect description reliance as a racial classification would undermine the primacy and force of the colorblindness principle, whatever the outcome of the strict scrutiny analysis. Conversely, the maintenance of colorblindness, as a constitutional and moral mandate, requires suppression of the race-based nature of the state practices that courts permit. Recognition that equal protection doctrine, as it actually operates, does not implement a norm of strict colorblindness would render race more defensible. Further, analysis of suspect description reliance suggests the limits of equal protection doctrine in eradicating state-reinforced racial inequality in a society structured along lines of race.
The United States Supreme Court has often declared individualized suspicion to be at the heart of probable cause. Yet critics see this as a commitment in word more than deed.Other critics, primarily philosophers, so no real conceptual difference between generalized and individualized suspicion. Moreover, no one has seriously tried to define the term. This article seeks first to fill this definitional gap, second to argue that the philosophers are wrong, and third to catalogue the social benefits and costs of an individualized suspicion requirement, suggesting a more structured way to choose among types of individualized suspicion and when, if ever, to jettison all those types entirely. The article draws on philosophy, psychology, and a branch of behavioral economics - fair price theory - to make its point.
Fourth Amendment events generate substantial controversy among the public and in the legal community. Yet there is orthodoxy to Fourth Amendment thinking, reflected in the near universal assumption by courts and commentators alike that the amendment creates only tension between privately held individual liberties and public-regarding interests in law enforcement and security. On this account, courts are faced with a clear choice when mediating Fourth Amendment conflicts: side with the individual by declaring a particular intrusion to be in violation of the Constitution or side with the public by permitting the intrusion. Scholarly literature and court decisions are accordingly littered with references to the "costs" to society of enforcing the Fourth Amendment in favor of individual claimants. Taking the "public interest" seriously in this framework predictably favors government intrusions. This Article challenges this dichotomous approach to Fourth Amendment interpretation by identifying a new dimension of the public's interest: important collective values that are in harmony, rather than in tension, with individual liberties. The multidimensional approach advanced here recognizes that there are many kinds of public interests, some of which are advanced and some of which are impeded by Fourth Amendment intrusions. Drawing on First Amendment and Due Process Clause jurisprudence, empirical data, and historical materials, this Article uses as examples two categories of collective interests-participatory pluralism and efficient and accurate administration of the criminal justice system-that are implicated by Fourth Amendment questions but are ignored by the Supreme Court's current jurisprudence. If the Court is to take the public's interest seriously, it needs a Fourth Amendment jurisprudence that takes into account these interests, among others, and acknowledges the reality that the "public interest" is multifaceted.
The decision of the United States Supreme Court in District of Columbia v. Heller failed to clarify as to what extent firearms regulations must be vindicated to counter constitutional provisions and the applicability of the Second Amendment to the state and local laws. The court invalidated the District of Columbia's ban on the possession of handguns. The court held that the Second Amendment is not applicable to state or local laws. 'Heller' asserted only a right to carry a handgun in his home, but the Second Amendment protects the rights to both 'keep' and 'bear' arms, and the Court clarified neither right in terms restricted to the home. Under 'Heller', police-power justifications for restricting the right to keep firearms look irrelevant to the constitutional inquiry given the Court's forceful refusal of Justice Breyer's view that reasonable gun-control regulations should be upheld.
In the United States the phenomenon of racial profiling has emerged as an important and controversial issue within political and criminal justice policy debates. For the most part, these debates have assumed a sort of racism at work in order to explain law enforcement's use of criminal profiles largely determined by racial classifications. Accordingly, many have worked to expose this allegedly racist behavior in the hopes that such exposure will bring an end to the practice. This essay argues that racial profiling is embedded in much larger social developments that must be explored in order to understand the role race now plays in the maintenance of social order in contemporary American society.
Racial profiling is a matter of considerable concern in the U.S., and mutatis mutandis in other countries. Yet, perhaps because of its sensitive nature, there is almost no philosophical reflection on this subject. This essay provides a normative assessment of racial profiling and invites more philosophical discussion of this subject. Our argument rests on two assumptions about the productivity of profiling in curbing crime. First, we posit that there is a significant correlation between membership in certain racial groups and the propensity to commit certain crimes. Second, we assume that given such a propensity, to stop, search, or investigate members of such groups differentially will help curb crime. That is, we assume that such measures eliminate more crime than other measures for equivalent expenditures of resources and disruption. If these assumptions fail (which may well be the case), the question addressed in this paper no longer arises. If our assumptions hold, we argue, police and security measures making race an important characteristic in deciding whom to stop, search, or investigate are morally justified in a broad range of cases, including many cases that tend to be controversial. Most discussions of "racial profiling" do not distinguish between the use of race in police tactics and some other subjects, in particular police abuse. Such abuse is a serious problem that must be eliminated wherever it occurs. However, we claim that it is indeed a separable problem, that there can be appropriate use of race in police tacts without abuse, and that the discussion would benefit substantially if these matters were kept apart.
Under a Constitution that restrains the government vis-a-vis the individual and that puts some limits on what the authorities may do in the pursuit of the guilty, the power of the police to stop any particular driver, at almost any time, it seems oddly out of place. And with the words "equal justice under law" carved into the stone of the Supreme Court itself, one might think that the use of police power in one of its rawest forms against members of particular racial or ethnic groups might prompt the Court to show some interest in curbing such abuses. The defendant-petitioners presented both of these arguments-the almost arbitrary power over any driver inherent in the "could have" approach, and the racially biased use of traffic stops-to the Court. Yet the Court paid little attention to these obvious implications of its decision. Whren is more than a missed opportunity for the Court to rein in some police practices that strike at the heart of the ideas of freedom and equal treatment; Whren represents a clear step in the other direction-toward authoritarianism, toward racist policing, and toward a view of minorities as criminals, rather than citizens.