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Race, Policing, and the Future of the Criminal Law
By David Cole
The fact that New York City Mayor Rudolph Giuliani and the Reverend Al Sharpton represent the opposing points of view in today’s renewed debate over policing and race is a fitting reflection of the nationwide racial divide on this issue. It would be difficult to cast more extreme spokespersons for the competing viewpoints. It would also be difficult to find an issue about which whites and minorities more fundamentally disagree.
The Racial Divide
The divide, reflected most dramatically in the unforgettable split-screen response to the acquittal of O.J. Simpson, is confirmed every time a poll is taken on attitudes toward the criminal justice system. In the aftermath of the killing of Amadou Diallo, an unarmed West African man shot forty-one times by four white New York City police officers, the New York Times found that nearly 90 percent of blacks in the city thought the police often engaged in brutality against minorities, and that almost two-thirds of blacks said such brutality was widespread. By contrast, only 24 percent of whites considered police brutality against minorities to be widespread.
These concerns are not new. Were it not for some of its dated rhetoric, the following excerpt from the 1968 Kerner Commission Report, discussing the causes of the urban riots of the 1960s, could well be a description of New York City and many other large U.S. cities today:
Negroes firmly believe that police brutality and harassment occur repeatedly in Negro neighborhoods. This belief is unquestionably one of the major reasons for intense Negro resentment against the police.
Physical abuse is only one source of aggravation in the ghetto. In nearly every city surveyed, the Commission heard complaints of dispersal of social street gatherings and the stopping of Negroes on foot or in cars without objective basis. . . . Many departments have adopted patrol practices which in the words of one commentator, have "replaced harassment by individual patrolmen with harassment by entire departments."
One such practice utilizes a roving task force which moves into high-crime districts without prior notice and conducts intensive, often indiscriminate, street stops and searches. . . . Police administrators, pressed by public concern about crime, have instituted such patrol practices often without weighing their tension-creating effects and the resulting relationship to civil disorder. (Report of the National Advisory Comm’n on Civil Disorders 157 (1968)).
Constitutional rights protectionsThe racial divide is attributable, at bottom, to the criminal justice system’s pervasive reliance on double standards. While criminal justice is explicitly based on the promise of equality before the law, the administration of criminal law—from the officer on the beat to state legislatures to the Supreme Court—is in fact predicated on the exploitation of inequality. My claim is not simply that we have ignored inequality’s effects within the criminal justice system, nor that we have tried but failed to achieve equality there. Rather, I contend that our criminal justice system affirmatively depends on inequality. Absent race and class disparities, the privileged among us could not enjoy substantial constitutional protection of our liberties as we do; and without those disparities, we could not afford the policy of mass incarceration that we have pursued over the past two decades.
For example, for some the Fourth Amendment means that the police must have objective individualized suspicion—or probable cause—before they can conduct a search or seizure. Yet, for others, the Supreme Court has adopted a litany of exceptions that permit the police to invade privacy without probable cause. The Court permits the police to conduct so-called "consent searches" without informing the suspect that he or she has the right to refuse consent. It permits the police to engage in bus and train sweeps without any individualized suspicion. It permits police to use the pretext of a traffic stop to investigate other crimes, again without any objective basis for suspicion. And courts are exceedingly deferential to drug courier profiles—which are notoriously open-ended and anything but individualized—when police invoke them to justify so-called Terry stops (brief investigation stops permitted on the basis of reasonable suspicion that an individual may be engaged in a crime). In all of these ways, we save on the full cost of the Fourth Amendment by freeing the police to engage in investigation and enforcement without having to identify individualized reasons for suspecting an individual of criminal conduct.
Not surprisingly, each of these tactics is used disproportionately against minorities. In New Jersey, for example, the attorney general recently disclosed that 77 percent of the motorists whom state troopers stopped and subjected to consent searches were minorities. In Maryland, on an interstate on which 17.5 percent of the drivers and speeders are black, 70 percent of those stopped for traffic infractions and searched are black. In Volusia County, Florida, on a highway on which only 5 percent of the drivers were dark-skinned, 70 percent of those stopped and 80 percent of those subjected to consent searches were black or Hispanic. The phenomenon is so widespread that it has been dubbed "DWB," or "Driving While Black or Brown."
The same disparities are evident with the other enforcement tactics that the Court has freed from the requirements of objective, individualized suspicion. I conducted a LEXIS search of all federal cases over a five-year period involving drug courier profiles and found that 95 percent of those stopped were minorities. Similar searches found that 80 percent of pretext stop cases and 90 percent of bus and train sweep cases involved minorities.
The tensions evident in New York City and many other U.S. cities on issues of race and criminal justice find their roots in the above practices. Where police are free to engage in intrusive investigatory tactics without objective individualized suspicion, they often appear to rely on racial generalizations. This accounts for why so many minority citizens can recount a story of being stopped for nothing more than the color of their skin. For all practical purposes, they simply do not enjoy the same constitutional protections that white citizens do.
Incarceration policy
Just as our constitutional rights protections ultimately depend on double standards, so does our incarceration policy. We currently lock up 1.8 million people, giving us a per capita incarceration rate second only to Russia, and five times higher than that of the next highest Western nation. About half of those behind bars are there for nonviolent offenses. The burdens of this incarceration policy are not equally shared. African Americans make up 12 percent of the general population but over half the incarcerated population. The per capita incarceration rate among blacks is seven times that among whites. This means that at current trends, one of every four male babies born today will be imprisoned for one year or more during his lifetime. And for every one black man who graduates from college each year, another 100 will be arrested.
If these figures were reversed, and one in four white male babies born today faced the prospect of a year or more in prison, the politics of crime would likely be very different. Instead of calls for "three-strikes-and-you’re-out" laws, mandatory minimums, stiffer sentences, and the abolition of parole, we would likely be hearing cries for more humane interventions, such as treatment for drug offenses, programs to encourage kids to stay in school, job training programs, and the like. Nothing correlates with recidivism like incarceration, yet we as a nation continue to pursue that policy in knee-jerk fashion, instead of supporting prevention and rehabilitation options. We’ve been able to do so, I maintain, precisely because the burden of incarceration is not felt equally by all.
Forfeiting Legitimacy
The costs of maintaining such double standards in criminal justice are many. First, they undermine law enforcement itself, because they breed resentment and alienation among minorities and the poor. People who see the criminal justice system as fundamentally unfair will be less likely to cooperate with police, to testify as witnesses, to serve on juries, and to convict guilty defendants when they do serve. In addition, people who have lost respect for the law’s legitimacy are more likely to break the law themselves. Legitimacy is one of the law’s most powerful tools, and when the law forfeits its legitimacy, its only alternative is to rely on brute force. Finally, the perception and reality of a fundamentally unfair criminal justice system contributes to broader racial divisions in society. It is not surprising that virtually all the riots we have experienced in this country since World War II have been sparked by racially charged police-citizen encounters.
Ironically, "quality of life" policing, as practiced by New York City Mayor Giuliani, was itself designed to restore the criminal law’s legitimacy. It seeks to promote a sense of order by rigorously enforcing laws against public disorder, such as prohibitions on drinking and urinating in public. Giuliani adheres to the "broken windows" thesis of policing scholars George Kelling and James Wilson, who argue that tolerating minor public crimes creates the conditions for more serious crime. New York’s aggressive enforcement of these quality-of-life laws is not solely responsible for the city’s falling crime rate (though Mayor Giuliani would have us think otherwise), but restoring public order is certainly an important part of restoring legitimacy.
In our segregated society, however, where most high-crime areas are populated by poor minorities, a quality-of-life policing strategy is bound to create unequal results. And as the Kerner Commission noted, a policing strategy that treats city residents differently depending on their race surrenders its legitimacy. This not to say that the mere fact that the police arrest a disproportionate number of minorities means that they are racist. A wholly neutral law enforcement policy directed at high-crime communities will lead to higher arrest rates for minorities, simply because in our segregated society these communities are almost exclusively populated by minorities.
But precisely because of that foreseeable result, police departments must do everything they can to assure minority residents that they are not policing based on race. Absent strong and unambiguous condemnation, racial profiling, whether implicit or explicit, will continue, in large part because it is not entirely irrational. Criminologists generally agree that young people are more likely to commit crime than old people, men more than women, city dwellers more than country folk, the poor more than the rich, and minorities more than whites. Taken together, therefore, it is not wholly irrational for a police officer to presume that a young black man in the inner city is more likely to be involved in criminal conduct than an elderly white woman living on a farm. This makes attacking racial profiling all the more difficult; it is not a matter of identifying a few isolated bigots, but of changing an entire culture.
The important point is that even though such stereotypes may be rational, they are not acceptable. Racial classifications have such an ignominious history that the Supreme Court has said that it is not enough to show that they are rational. Rather, government officials may rely on race only where it is necessary—meaning there is no other way—to further a compelling state interest.
Racial stereotypes are clearly unnecessary to good police work. Because most people regardless of race do not commit crime, using race as a proxy for suspicion will necessarily sweep in large numbers of innocents. Every year, 90 percent of African Americans are not arrested for any crime. In addition, if police officers are watching people of particular races, they will miss offenders of other races.
Restoring Legitimacy
How, then, do we restore legitimacy to a criminal justice system that has fostered so much skepticism and alienation among minorities? First, government officials must make absolutely clear that racial profiling is unacceptable. The Supreme Court has never addressed the practice, lower courts are divided, and most police chiefs have been silent. As long as the practice is not clearly condemned, police officers will continue to do it, in part because it is not entirely irrational to do so.
Second, police departments must be willing to disclose to the public the demographics of their enforcement tactics. Absent records, the police cannot be held accountable. This statistical void also exacerbates racial divisions, because it allows many in the white majority to ignore the problem, while leading many minorities to fear the worst. Bringing the color of police discretion to public light is a critical step towards rendering it legitimate.
Third, police departments must be more representative of the communities they serve. Giuliani’s street crimes unit was a mostly white force patrolling mostly minority neighborhoods. Increasing diversity makes it more likely that communities and police will see themselves as allies in a common endeavor rather than adversaries.
Fourth, the Supreme Court must seek to create rules that minimize race and class disparities in criminal justice, rather than adopting rules that exploit these inequalities. It has the responsibility to protect those whose interests cannot be protected in the political process, and if any group is voiceless in the political process, it is the poor and minority criminal defendants.
Finally, and most fundamentally, we need to think more creatively about responding to crime. It sometimes appears that the only public resources that the majority is eager to invest in the inner cities are more police officers and more trips to prison. Policing and incarceration are of course absolutely necessary to any crime strategy, but they are not the only ways to respond to crime, and in many respects are ill-suited to achieving long-term solutions. If the color of the crime problem were different, our policies would likely be different too. To restore legitimacy, the majority needs to show the minority that it is willing to invest in something other than the strong arm of the law.
David Cole is a professor at Georgetown University Law Center and a Senior Justice Fellow at the Open Society Institute’s Center on Crime, Communities, and Culture. He is the author of No Equal Justice: Race and Class in the American Criminal Justice System (New Press, 1999), which explores these issues in further detail.
