Why Modest Proposals Offer the Best Solution for Combating Racial Profiling

By Trende, Sean P. | Duke Law Journal, October 2000 | Go to article overview

Why Modest Proposals Offer the Best Solution for Combating Racial Profiling


Trende, Sean P., Duke Law Journal


There is nothing more painful to me at this stage in my life than to walk down the street and hear footsteps and start thinking about robbery ... [and] [t]hen look around and see somebody white and feel relieved.

Reverend Jesse Jackson(1)

The average man doesn't want to be free.... He simply wants to be safe.

H.L. Mencken(2)

INTRODUCTION

About the only thing on which the parties agree is this: In August of 1998, Sergeant First Class Rossano V. Gerald, accompanied by his twelve-year-old son Gregory, drove his red Nissan 300ZX across the Oklahoma border, was stopped twice by police officers, and was searched once.(3) Apart from these basic facts, however, the parties agree on very little. According to the plaintiffs, Gerald and his son were forced to sit in a sweltering squad car while officers ransacked their automobile for two hours. The plaintiffs further maintain that this stop and search occurred simply because Gerald and his son are black.(4) The defendants,(5) on the other hand, maintain that during the course of the stop, the state troopers developed a reasonable and articulable suspicion that Gerald was attempting to transport drugs into the state, which justified the detention and the ensuing search.(6)

Gerald's case is not unique. Indeed, in the last two years, allegations of officers using race as part of their decision to stop or detain a suspect, a practice commonly known as racial profiling, have drawn increased attention in the press,(7) in scholarly journals,(8) and in the courts.(9) Even President Clinton has weighed in on the debate.(10) Most commentary on the practice has consisted of fierce criticism from the Left, although a few observers on the Right have condemned profiling as well.(11) Few commentators have defended the technique.(12)

This Note attempts to strike a middle ground between unreserved condemnation of profiling and defending the basically indefensible. It pays some deference to the justifications cited by defenders of the practice: that there probably is some rational basis for profiling and that combating profiling may well impede anti-crime efforts. However, the Note also strongly condemns the practice as antithetical to modern American ideals of fairness and equality. Rather than completely favoring one set of considerations over the other, as most commentators have done, this Note endeavors to find an acceptable solution that accords appropriate weight to each set of concerns.

Part I supplies a brief sketch of background information before exploring the legal context surrounding the issue. It provides an overview of the history of racial profiling in America(13) and examines why, after existing for decades, profiling is now experiencing a marked increase in public attention. Part II demonstrates a need for legal change, because, under current law, courts have consistently held against plaintiffs in racial profiling cases. Finally, given the failure of the courts--at least under present law--to fashion a workable solution, Part III analyzes the costs and benefits of various proposed solutions to the problems of racial profiling. It concludes that allowing Fourteenth Amendment equal protection values to guide our understanding of what is "reasonable" under the Fourth Amendment presently offers the most practical avenue for combating profiling.

I. BACKGROUND

While the terms "racial profiling" and "driving while black" (DWB) seem to have a fairly recent genesis, at least in the context of police action,(14) concerns over police practices disproportionately targeting or affecting minorities are older than the Republic.(15) Stops for traffic offenses were used constantly for detention of black activists during the civil rights era.(16) The Kerner Commission, which investigated the riots that erupted in the late 1960s, found that distrust between the police and blacks as a result of racial targeting was a precipitating cause of many of those riots)(17) Yet despite the long history of this practice, it has only recently become a "hot" issue. …

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