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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.

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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
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
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
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

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


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