Racially Biased Pretextual Traffic Stops Essay, Research Paper

The interviews excerpted here show that racially biased pretextual traffic stops have a

strong and immediate impact on the individual African-American drivers involved. These

stops are not the minor inconveniences they might seem to those who are not subjected to

them. Rather, they are experiences that can wound the soul and cause psychological scar

tissue to form. And the statistics show that these experiences are not simply disconnected

anecdotes or exaggerated versions of personal experiences, but rather established and

persistent patterns of law enforcement conduct. It may be that these stops do not spring

from racism on the part of individual officers, or even from the official policies of the

police departments for which they work. Nevertheless, the statistics leave little doubt

that, whatever the source of this conduct by police, it has a disparate and degrading

impact on blacks.

But racial profiling is important not only because of the damage it does, but also because

of the connections between stops of minority drivers and other, larger issues of criminal

justice and race. Put another way, “driving while black” reflects, illustrates, and

aggravates some of the most important problems we face today when we debate issues

involving race, the police, the courts, punishment, crime control, criminal justice, and

constitutional law.

A. The Impact on the Innocent

The Fourth Amendment to the United States Constitution prohibits unreasonable searches

and seizures, and specifies some of the requirements to be met in order to procure a

warrant for a search. Since 1961–and earlier in the federal court system–the Supreme

Court has required the exclusion of any evidence obtained through an unconstitutional

search or seizure. From its inception, the exclusionary rule has inspired spirited

criticism. Cardozo himself said that “the criminal is to go free because the constable has

blundered,” capturing the idea that the bad guy, caught red handed, gets a tremendous

windfall when he escapes punishment because of a mistake in the police officer’s

behavior. We need not even go all the way back to Cardozo to hear the argument that the

exclusion of evidence protects–and rewards–only the guilty.

The justification advanced for the exclusionary rule is that while the guilty may receive

the most direct benefit when a court suppresses evidence because of a constitutional

violation, the innocent–all the rest of us–are also better off. The right to be free from

illegal searches and seizures belongs not just to the guilty, but to everyone. The guilty

parties who bring motions to suppress are simply the most convenient vehicles for

vindicating these rights, because they will have the incentive–escaping conviction–to

litigate the issues. In so doing, the argument goes, the rights of all are vindicated, and

police are deterred from violating constitutional rules on pain of failing to convict the

guilty. One problem with this argument is that it takes imagination: the beneficiaries of

suppressed evidence other than the guilty who escape punishment are ephemeral and

amorphous. They are everybody–all of us. And if they are everybody, they quickly

become nobody, because law-abiding, taxpaying citizens are unlikely to view ourselves as

needing these constitutional protections. After all, we obey the law; we do not commit

crimes. We can do without these protections–or so we think.

It is not my intention here to recapitulate every argument for and against the

exclusionary rule. Rather, I wish to point out a major difference between the usual

Fourth Amendment cases and the most common “driving while black” cases. While police

catch some criminals through the use of pretext stops, far more innocent people are likely

to be affected by these practices than criminals. Indeed, the black community as a whole

undoubtedly needs the protection of the police more than other segments of society

because African- Americans are more likely than others to be victims of crime.

Ironically, it is members of that same community who are likely to feel the consequences

of pretextual stops and be treated like criminals. It is the reverse of the usual Fourth

Amendment case, in that there is nothing ghostlike or indefinite about those whose rights

would be vindicated by addressing these police practices. On the contrary, the victims

are easy to identify because they are the great majority of black people who are

subjected to these humiliating and difficult experiences but who have done absolutely

nothing to deserve this treatment–except to resemble, in a literally skin-deep way, a

small group of criminals. While whites who have done nothing wrong generally have little

need to fear constitutional violations by the police, this is decidedly untrue for blacks.

Blacks attract undesirable police attention whether they do anything to bring it on

themselves or not. This makes “driving while black” a most unusual issue of constitutional

criminal procedure: a search and seizure question that directly affects a large,

identifiable group of almost entirely innocent people.

B. The Criminalization of Blackness

The fact that the cost of “driving while black” is imposed almost exclusively on the

innocent raises another point. Recall that by allowing the police to stop, question, and

sometimes even search drivers without regard to the real motives for the search, the

Supreme Court has, in effect, turned a blind eye to the use of pretextual stops on a racial

basis. That is, as long as the officer or the police department does not come straight out

and say that race was the reason for a stop, the stop can always be accomplished based on

some other reason–a pretext. Police are therefore free to use blackness as a surrogate

indicator or proxy for criminal propensity. While it seems unfair to view all members of

one racial or ethnic group as criminal suspects just because some members of that group

engage in criminal activity, this is what the law permits.

Stopping disproportionate numbers of black drivers because some small percentage are

criminals means that skin color is being used as evidence of wrongdoing. In effect,

blackness itself has been criminalized. And if “driving while black” is a powerful

example, it is not the only one. For instance, in 1992, the city of Chicago enacted an

ordinance that made it a criminal offense for gang members to stand on public streets or

sidewalks after police ordered them to disperse. The ordinance was used to make over

forty-five thousand arrests of mostly African-American and Latino youths before Illinois

courts found the ordinance unconstitutionally vague. Supporters said that the law

legitimately targeted gang members who made the streets of black and Latino

neighborhoods unsafe for residents. Accordingly, the thousands of arrests that resulted

were a net good, regardless of the enormous amount of police discretion that was

exercised almost exclusively against African-Americans and Hispanics. Opponents, such as

Professor David Cole, argued that the ordinance had, in effect, created a new crime:

“standing while black.” In June of 1999, the U.S. Supreme Court declared the law

unconstitutional, because it did not sufficiently limit the discretion of officers enforcing

it.

The arrests under the Chicago ordinance share something with “driving while black”: in

each instance, the salient quality that attracts police attention will often be the suspect’s

race or ethnicity. An officer cannot know simply by looking whether a driver has a valid

license or carries insurance, as the law requires, and cannot see whether there is a

warrant for the arrest of the driver or another occupant of the car. But the officer can

see whether the person is black or white. And, as the statistics presented here show,

police use blackness as a way to sort those they are interested in investigating from those

that they are not. As a consequence, every member of the group becomes a potential

criminal in the eyes of law enforcement.

C. Rational Discrimination

When one hears the most common justification offered for the disproportionate numbers

of traffic stops of African-Americans, it usually takes the form of rationality, not

racism. Blacks commit a disproportionate share of certain crimes, the argument goes.

Therefore, it only makes sense for police to focus their efforts on African-Americans. To

paraphrase the Maryland State Police officer quoted at the beginning of this Article, this

is not racism–it is good policing. It only makes sense to focus law enforcement efforts

and resources where they will make the most difference. In other words, targeting blacks

is the rational, sound policy choice. It is the efficient approach, as well.

As appealing as this argument may sound, it is fraught with problems because its

underlying premise is dubious at best. Government statistics on drug offenses, which are

the basis for the great majority of pretext traffic stops, tell us virtually nothing about

the racial breakdown of those involved in drug crime. Thinking for a moment about arrest

data and victimization surveys makes the reasons for this clear. These statistics show

that blacks are indeed overrepresented among those arrested for homicide, rape,

robbery, aggravated assault, larceny/theft, and simple assault crimes. Note that because

they directly affect their victims, these crimes are at least somewhat likely to be

reported to the police and to result in arrests. By contrast, drug offenses are much less

likely to be reported, since possessors, buyers, and sellers of narcotics are all willing

participants in these crimes. Therefore, arrest data for drug crimes is highly suspect.

These data may measure the law enforcement activities and policy choices of the

institutions and actors involved in the criminal justice system, but the number of drug

arrests does not measure the extent of drug crimes themselves. Similarly, the racial

composition of prisons and jail populations or the racial breakdown of sentences for these

crimes only measures the actions of those institutions and individuals in charge; it tells us

nothing about drug activity itself.

Other statistics on both drug use and drug crime show something surprising in light of the

usual beliefs many hold: blacks may not, in fact, be more likely than whites to be involved

with drugs. Lamberth’s study in Maryland showed that among vehicles stopped and

searched, the “hit rates”–the percentage of vehicles searched in which drugs were

found–were statistically indistinguishable for blacks and whites. In a related situation,

the U.S. Customs Service, which is engaged in drug interdiction efforts at the nation’s

airports, has used various types of invasive searches from pat downs to body cavity

searches against travelers suspected of drug use. The Custom Service’s own nationwide

figures show that while over forty-three percent of those subjected to these searches

were either black or Hispanic, “hit rates” for these searches were actually lower for

both blacks and Hispanics than for whites. There is also a considerable amount of data on

drug use that belies the standard beliefs. The percentages of drug users who are black or

white are roughly the same as the presence of those groups in the population as a whole.

For example, blacks constitute approximately twelve percent of the country’s population.

In 1997, the most recent year for which statistics are available, thirteen percent of all

drug users were black. In fact, among black youths, a demographic group often portrayed

as most likely to be involved with drugs, use of all illicit substances has actually been

consistently lower than among white youths for twenty years running.

Nevertheless, many believe that African-Americans and members of other minority

groups are responsible for most drug use and drug trafficking. Carl Williams, the head of

the New Jersey State Police dismissed by the Governor in March of 1999, stated that

“mostly minorities” trafficked in marijuana and cocaine, and pointed out that when senior

American officials went overseas to discuss the drug problem, they went to Mexico, not

Ireland. Even if he is wrong, if the many troopers who worked for Williams share his

opinions, they will act accordingly. And they will do so by looking for drug criminals

among black drivers. Blackness will become an indicator of suspicion of drug crime

involvement. This, in turn, means that the belief that blacks are disproportionately

involved in drug crimes will become a self- fulfilling prophecy. Because police will look

for drug crime among black drivers, they will find it disproportionately among black

drivers. More blacks will be arrested, prosecuted, convicted, and jailed, thereby

reinforcing the idea that blacks constitute the majority of drug offenders. This will

provide a continuing motive and justification for stopping more black drivers as a rational

way of using resources to catch the most criminals. At the same time, because police will

focus on black drivers, white drivers will receive less attention, and the drug dealers and

possessors among them will be apprehended in proportionately smaller numbers than their

presence in the population would predict.

The upshot of this thinking is visible in the stark and stunning numbers that show what our

criminal justice system is doing when it uses law enforcement practices like

racially-biased traffic stops to enforce drug laws. African- Americans are just 12% of

the population and 13% of the drug users, but they are about 38% of all those arrested

for drug offenses, 59% of all those convicted of drug offenses, and 63% of all those

convicted for drug trafficking. While only 33% of whites who are convicted are sent to

prison, 50% of convicted blacks are jailed, and blacks who are sent to prison receive

higher sentences than whites for the same crimes. For state drug defendants, the average

maximum sentence length is fifty-one months for whites and sixty months for blacks.

D. The Distortion of the Legal System

Among the most serious effects of “driving while black” on the larger issues of criminal

justice and race are those it has on the legal system itself. The use of pretextual traffic

stops distorts the whole system, as well as our perceptions of it. This undermines the

system’s legitimacy, which effects not only African-Americans but every citizen, since

the health of our country depends on a set of legal institutions that have the public’s

respect.

1. Deep Cynicism

Racially targeted traffic stops cause deep cynicism among blacks about the fairness and

legitimacy of law enforcement and courts. Many of those African-Americans interviewed

for this Article said this, some in strong terms. Karen Brank said she thought that her

law-abiding life, her responsible job, her education, and even her gender protected her

from arbitrary treatment by the police. She thought that these stops happened only to

young black men playing loud music in their cars. Now, she feels she was “naive,” and has

considerably less respect for police and all legal institutions. For James, who looks at

himself as someone who has toed the line and lived an upright life, constant stops are a

reminder that whatever he does, no matter how well he conducts himself, he will still

attract unwarranted police attention. Michael describes constant police scrutiny as

something blacks have to “play through,” like athletes with injuries who must perform

despite significant pain.

Thus, it is no wonder that blacks view the criminal justice system in totally different

terms than whites do. They have completely different experiences within the system than

whites have, so they do not hold the same beliefs about it. Traffic stops of whites usually

concern the actual traffic offense allegedly committed; traffic stops of blacks are often

arbitrary, grounded not in any traffic offense but in who they are. Since traffic stops

are among the most common encounters regular citizens have with police, it is hardly

surprising that pretextual traffic stops might lead blacks to view the whole of the system

differently. One need only think of the split-screen television images that followed the

acquittal in the O.J. Simpson case–stunned, disbelieving whites, juxtaposed with jubilant

blacks literally jumping for joy–to understand how deep these divisions are. Polling data

have long shown that blacks believe that the justice system is biased against them. For

example, in a Justice Department survey released in 1999, blacks were more than twice

as likely as whites to say they are dissatisfied with the police. But this cynicism is no

longer limited to blacks; it is now beginning to creep into the general population’s

perception of the system. Recent data show that a majority of whites believe that police

racism toward blacks is common. The damage done to the legitimacy of the system has

spread across racial groups, and is no longer confined to those who are most immediately

affected.

Perhaps the most direct result of this cynicism is that there is considerably more

skepticism about the testimony of police officers than there used to be. This is especially

true in minority communities. Both the officer and the driver recognize that each

pretextual traffic stop involves an untruth. When a black driver asks a police officer

why he or she has been stopped, the officer will most likely explain that the driver

committed a traffic violation. This may be literally true, since virtually no driver can

avoid committing a traffic offense. But odds are that the violation is not the real reason

that the officer stopped the driver. This becomes more than obvious when the officer

asks the driver whether he or she is carrying drugs or guns, and for consent to search the

car. If the stop was really about enforcement of the traffic laws, there would be no need

for any search. Thus, for an officer to tell a driver that he or she has been stopped for a

traffic offense when the officer’s real interest is drug interdiction is a lie–a legally

sanctioned one, to be sure, but a lie nonetheless. It should surprise no one, then, that the

same people who are subjected to this treatment regard the testimony and statements of

police with suspicion, making it increasingly difficult for prosecutors to obtain

convictions in any case that depends upon police testimony, as so many cases do. The

result may be more cases that end in acquittals or hung juries, even factually and legally

strong ones.

2. The Effect on the Guilty

As discussed above, one of the most important reasons that the “driving while black”

problem represents an important connection to many larger issues of criminal justice and

race is that, unlike many other Fourth Amendment issues, the innocent pay a clear and

direct price. Citizens who are not criminals are seen as only indirect beneficiaries of

Fourth Amendment litigation in other contexts because the guilty party’s vindication of

his or her own rights serves to vindicate everyone’s rights. Law-abiding blacks, however,

have a direct and immediate stake in redressing the “driving while black” problem. While

pretextual traffic stops do indeed net some number of law breakers, innocent blacks are

imposed upon through frightening and even humiliating stops and searches far more often

than the guilty. But the opposite argument is important, too: “driving while black” has a

devastating impact upon the guilty. Those who are arrested, prosecuted, and often jailed

because of these stops, are suffering great hardships as a result.

The response to this argument is usually that if these folks are indeed guilty, so what? In

other words, it is a good thing that the guilty are caught, arrested, and prosecuted, no

matter if they are black or white. This is especially true, the argument goes, in the black

community, because African- Americans are disproportionately the victims of crime.

But this argument overlooks at least two powerful points. First, prosecution for crimes,

especially drug crimes, has had an absolutely devastating impact on black communities

nationwide. In 1995, about one in three black men between the ages of 20 and 29 were

under the control of the criminal justice system–either in prison or jail, on probation, or

on parole. In Washington, D.C., the figure is 50% for all black men between the age of

eighteen and thirty-five. Even assuming that all of those caught, prosecuted, convicted and

sentenced are guilty, it simply cannot be a good thing that such a large proportion of

young men from one community are adjudicated criminals. They often lose their right to

vote, sometimes permanently. To say that they suffer difficulties in family life and in

gaining employment merely restates the obvious. The effect of such a huge proportion of

people living under these disabilities permanently changes the circumstances not just of

those incarcerated, but of everyone around them.

This damage is no accident. It is the direct consequence of “rational law enforcement”

policies that target blacks. Put simply, there is a connection between where police look

for contraband and where they find it. If police policy, whether express or implied,

dictates targeting supposedly “drug involved” groups like African-Americans, and if

officers follow through on this policy, they will find disproportionate numbers of

African-Americans carrying and selling drugs. By the same token, they will not find drugs

with the appropriate frequency on whites, because the targeting policy steers police

attention away from them. This policy not only discriminates by targeting large numbers

of innocent, law abiding African-Americans; it also discriminates between racial groups

among the guilty, with blacks having to bear a far greater share of the burden of drug

prohibition.

3. The Expansion of Police Discretion

As the discussion of the law involving traffic stops and the police actions that often

follow showed, police have nearly complete discretion to decide who to stop. According to

all of the evidence available, police frequently exercise this discretion in a

racially-biased way, stopping blacks in numbers far out of proportion to their presence

on the highway. Law enforcement generally sees this as something positive because the

more discretion officers have to fight crime, the better able they will be to do the job.

Police discretion cannot be eliminated; frankly, even if it could be, this would not

necessarily be a desirable goal. Officers need discretion to meet individual situations

with judgment and intelligence, and to choose their responses so that the ultimate result

will make sense. Yet few would contend that police discretion should be limitless. But this

is exactly what the pretextual stop doctrine allows. Since everyone violates the traffic

code at some point, it is not a matter of whether police can stop a driver, but which

driver t

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