The Color of Justice : Courts Are Protecting, Rather Than Helping to End, Racial Profiling by Police

By Cole, David | The Nation, October 11, 1999 | Go to article overview

The Color of Justice : Courts Are Protecting, Rather Than Helping to End, Racial Profiling by Police


Cole, David, The Nation


It's no mean feat to find an issue on which President Bill Clinton, the Rev. Al Sharpton, Attorney General Janet Reno, many of the nation's police chiefs and NAACP president Kweisi Mfume agree, but at a Washington conference in June, they all expressed the view that racial profiling-the practice of targeting citizens for police encounters on the basis of race-needs to end. Clinton proclaimed profiling "wrong" and "destructive," and ordered federal agencies to gather data on the demographics of their law enforcement patterns. The consensus on profiling was underscored in August, when the National Association of Police Organizations, which staged a debate on the subject at its annual meeting in Denver, had to rely on a white separatist, Jared Taylor, to defend the practice.

Given the mountain of evidence that has piled up recently on racial profiling, the consensus is not surprising. Studies in Maryland, New Jersey, Illinois, Florida, Ohio, Houston and Philadelphia have confirmed that minorities are disproportionately targeted by police. On April 20 the New Jersey Attorney General's office issued a 112-page mea culpa admitting that its state troopers had engaged in racial profiling, offering statistics to support the claim and advancing a sophisticated analysis of the nature and scope of the problem. The next day North Carolina-yes, North Carolina-became the first state to pass a law requiring troopers to record and make public the racial patterns of their traffic stops. Connecticut followed suit with its own reporting law in June, and most recently, Florida Governor Jeb Bush has directed the Florida Highway Patrol to begin collecting similar data on January 1, 2000.

The press has covered the subject widely, recounting tales of black professionals stopped for petty traffic violations and investigating the arrest patterns of offending cops. While police departments are obviously at the heart of the problem, the crucial role that courts have played in protecting and sustaining widespread racial profiling has been overlooked. The courts have not only failed to recognize that racial profiling is unconstitutional, but they have effectively insulated it from legal challenge. Where lawsuits challenging profiling have succeeded, it is only because political pressures compelled the police to settle.

The legal case against profiling should be easy to make. Defenders of the practice argue that it makes sense to target minorities because they are more likely than whites to commit crime. But the Constitution forbids reliance on racial generalizations unless they are the only way to achieve a "compelling purpose." Law enforcement is undoubtedly compelling, but racial stereotypes are hardly the only way to go about it. In fact, race is a particularly bad basis for suspicion, since most black people, like most whites, don't commit any crime. Annually at least 90 percent of African- Americans are not arrested for anything. On any given day, the percentage of innocent African-Americans is even higher. Thus, racial profiles necessarily sweep in a large number of innocents. In addition, when officers target minorities they miss white criminals. One need only recall the Saturday Night Live skit in which the black actor Garrett Morris and the white actor Chevy Chase walk through Customs. Morris, carrying nothing, is immediately surrounded by multiple Customs agents, while Chase pushes through an open wheelbarrow full of powder cocaine without a hitch.

Yet the Supreme Court has all but invited racial profiling. In 1996 the Court upheld the practice of "pretextual traffic stops," in which police officers use the excuse of a traffic violation to stop motorists when they are investigating some other crime. The same year, the Court allowed the police to use the coercive setting of a traffic stop to obtain consent to search. Together, these rules allow the police to stop and search whomever they please on the roads, without having to demonstrate probable cause. …

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