Authors: Michelle Alexander
The New Jim Crow (23 page)
Hollow Hope
One might imagine that the facts described above would provide grounds for a lawsuit challenging the Seattle Police Department’s drug war tactics as a violation of the equal protection clause of the Fourteenth Amendment and demanding reform. After all, obtaining reform through the city council or state legislature may seem unlikely, for black “criminals” are perhaps the most despised minority in the U.S. population. Few politicians will leap at the opportunity to support black people labeled criminals. Accordingly, a lawsuit may seem like the best option. The purpose of our Constitution—especially the Fourteenth Amendment’s equal-protection guarantee—is to protect minority rights even when, or especially when, they are unpopular. So shouldn’t African American defendants be able to file a successful lawsuit demanding an end to these discriminatory practices or challenge their drug arrests on the grounds that these law enforcement practices are unlawfully tainted by race? The answer is yes, they should, but no, they probably can’t.
As legal scholar David Cole has observed, “The Court has imposed nearly insurmountable barriers to persons challenging race discrimination at all stages of the criminal justice system.”
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The barriers are so high that few lawsuits are even filed, notwithstanding shocking and indefensible racial disparities. Procedural hurdles, such as the “standing requirement,” have made it virtually impossible to seek reform of law enforcement agencies through the judicial process, even when the policies or practices at issue are illegal or plainly discriminatory.
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The barriers are so high that few lawsuits are even filed, notwithstanding shocking and indefensible racial disparities. Procedural hurdles, such as the “standing requirement,” have made it virtually impossible to seek reform of law enforcement agencies through the judicial process, even when the policies or practices at issue are illegal or plainly discriminatory.
Adolph Lyons’s attempt to ban the use of lethal chokeholds by the Los Angeles Police Department (LAPD) is a good example. Lyons, a twenty-four-year-old black man, was driving his car in Los Angeles one morning when he was pulled over by four police officers for a burnt-out taillight. With guns drawn, police ordered Lyons out of his car. He obeyed. The officers told him to face the car, spread his legs, and put his hands on his head. Again, Lyons did as he was told. After the officers completed a pat-down, Lyons dropped his hands, prompting an officer to slam Lyons’s hands back on his head. When Lyons complained that the car keys he was holding were causing him pain, the officer forced Lyons into a chokehold. He lost consciousness and collapsed. When he awoke, “he was spitting up blood and dirt, had urinated and defecated, and had suffered permanent damage to his larynx.”
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The officers issued a traffic ticket for the burnt-out taillight and released him.
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The officers issued a traffic ticket for the burnt-out taillight and released him.
Lyons sued the City of Los Angeles for violation of his constitutional rights and sought, as a remedy, a ban against future use of the chokeholds. By the time his case reached the Supreme Court, sixteen people had been killed by police use of the chokehold, twelve of them black men. The Supreme Court dismissed the case, however, ruling that Lyons lacked “standing” to seek an injunction against the deadly practice. In order to have standing, the Court reasoned, Lyons would have to show that he was highly likely to be subject to a chokehold again.
Lyons argued that, as a black man, he had good reason to fear he would be stopped by the police for a minor traffic violation and subjected to a chokehold again. He had done nothing to provoke the chokehold; to the contrary, he had obeyed instructions and cooperated fully. Why wouldn’t he believe he was at risk of being stopped and choked again? The Court, however, ruled that in order to have standing
Lyons would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either (1) that all police officers in Los Angeles always choke any citizen with whom they have an encounter, whether for the purpose of arrest, issuing a citation or for questioning, or (2) that the City ordered or authorized the police to act in such a manner.
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Lyons did not allege race discrimination, but if he had, that claim would almost certainly have been a loser too. The Court’s ruling in
Lyons
makes it extremely difficult to challenge systemic race discrimination in law enforcement and obtain meaningful policy reform. For example, African Americans in Seattle who hope to end the Seattle police department’s discriminatory tactics through litigation would be required to prove that they plan to violate drug laws and that they will almost certainly face race discrimination by Seattle police officers engaged in drug-law enforcement, in order to have standing to seek reform—i.e., just to get in the courthouse door.
Lyons
makes it extremely difficult to challenge systemic race discrimination in law enforcement and obtain meaningful policy reform. For example, African Americans in Seattle who hope to end the Seattle police department’s discriminatory tactics through litigation would be required to prove that they plan to violate drug laws and that they will almost certainly face race discrimination by Seattle police officers engaged in drug-law enforcement, in order to have standing to seek reform—i.e., just to get in the courthouse door.
It is worthy of note that the
Lyons
standard does not apply to suits for damages. But any suggestion that litigants need not worry about policy reform because they can always sue for damages would be disingenuous—particularly as applied to race discrimination cases. Why? Neither the state nor the state police can be sued for damages. In a series of cases, the Supreme Court has ruled that the state and its offices are immune from federal suits for damages under the Eleventh Amendment to the Constitution (unless they consent), and the state can’t be sued for damages for constitutional violations in state court either.
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City police departments, like the LAPD, are also typically off limits. The Court has ruled that a city police department cannot be sued for damages unless a specific city policy or custom can be identified authorizing the illegal practice.
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Most cities, of course, do not have policies specifically authorizing illegal conduct (particularly race discrimination), and “custom” is notoriously difficult to prove. Accordingly, suing a city police department for damages is generally not an option. Yet even if all of those hurdles can somehow be overcome, there is still the matter of proving a claim of race discrimination. As we have seen, to establish an equal-protection violation, one must prove
intentional
discrimination—conscious racial bias. Law enforcement officials rarely admit to having acted for racial reasons, leaving most victims of discriminatory law enforcement without anyone to sue and without a claim that can be proven in a court of law. But even if a plaintiff managed to overcome all of the procedural hurdles and prove that a police officer deliberately exercised his or her discretion on the basis of race, that still might not be enough.
Race as a FactorLyons
standard does not apply to suits for damages. But any suggestion that litigants need not worry about policy reform because they can always sue for damages would be disingenuous—particularly as applied to race discrimination cases. Why? Neither the state nor the state police can be sued for damages. In a series of cases, the Supreme Court has ruled that the state and its offices are immune from federal suits for damages under the Eleventh Amendment to the Constitution (unless they consent), and the state can’t be sued for damages for constitutional violations in state court either.
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City police departments, like the LAPD, are also typically off limits. The Court has ruled that a city police department cannot be sued for damages unless a specific city policy or custom can be identified authorizing the illegal practice.
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Most cities, of course, do not have policies specifically authorizing illegal conduct (particularly race discrimination), and “custom” is notoriously difficult to prove. Accordingly, suing a city police department for damages is generally not an option. Yet even if all of those hurdles can somehow be overcome, there is still the matter of proving a claim of race discrimination. As we have seen, to establish an equal-protection violation, one must prove
intentional
discrimination—conscious racial bias. Law enforcement officials rarely admit to having acted for racial reasons, leaving most victims of discriminatory law enforcement without anyone to sue and without a claim that can be proven in a court of law. But even if a plaintiff managed to overcome all of the procedural hurdles and prove that a police officer deliberately exercised his or her discretion on the basis of race, that still might not be enough.
The dirty little secret of policing is that the Supreme Court has actually granted the police license to discriminate. This fact is not advertised by police departments, because law enforcement officials know that the public would not respond well to this fact in the era of colorblindness. It is the sort of thing that is better left unsaid. Civil rights lawyers—including those litigating racial profiling cases—have been complicit in this silence, fearing that any acknowledgment that race-based policing is authorized by law would legitimate in the public mind the very practice they are hoping to eradicate.
The truth, however, is this: At other stages of the criminal justice process, the Court has indicated that overt racial bias necessarily triggers strict scrutiny—a concession that has not been costly, as very few law enforcement officials today are foolish enough to admit bias openly. But the Supreme Court has indicated that in policing, race
can
be used as a factor in discretionary decision making. In
United States v. Brignoni-Ponce
, the Court concluded it was permissible under the equal protection clause of the Fourteenth Amendment for the police to use race as a factor in making decisions about which motorists to stop and search. In that case, the Court concluded that the police could take a person’s Mexican appearance into account when developing reasonable suspicion that a vehicle may contain undocumented immigrants. The Court said that “the likelihood that any person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.”
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Some commentators have argued that
Brignoni-Ponce
may be limited to the immigration context; the Court might not apply the same principle to drug-law enforcement. It is not obvious what the rational basis would be for limiting overt race discrimination by police to immigration. The likelihood that a person of Mexican ancestry is an “alien” could not be significantly higher than the likelihood that any random black person is a drug criminal.
can
be used as a factor in discretionary decision making. In
United States v. Brignoni-Ponce
, the Court concluded it was permissible under the equal protection clause of the Fourteenth Amendment for the police to use race as a factor in making decisions about which motorists to stop and search. In that case, the Court concluded that the police could take a person’s Mexican appearance into account when developing reasonable suspicion that a vehicle may contain undocumented immigrants. The Court said that “the likelihood that any person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.”
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Some commentators have argued that
Brignoni-Ponce
may be limited to the immigration context; the Court might not apply the same principle to drug-law enforcement. It is not obvious what the rational basis would be for limiting overt race discrimination by police to immigration. The likelihood that a person of Mexican ancestry is an “alien” could not be significantly higher than the likelihood that any random black person is a drug criminal.
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.
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.
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.
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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.
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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.
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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.
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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.
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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.
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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.
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