Posted: 05 Dec 2014 02:43 PM PST<\/em><\/p>\n Today\u2019s news remains focused on how the criminal justice system responds to the seemingly excessive use of force by police officers \u2013 and on the apparent disparities in how suspects of different races are treated under the law. That\u2019s because, after a grand jury last week declined<\/a> to indict Officer Darren Wilson for the shooting death of Michael Brown in Ferguson, Missouri, a grand jury this week refused to indict Officer Daniel Pantaleo for choking Eric Garner to death as part of an arrest for selling loose cigarettes. Both officers are white; both victims were black. And the blogoshperic response<\/a> has involved a juxtaposition of two hashtags: #CrimingWhileWhite<\/a>, in which white wrongdoers confess to a variety of fairly serious misbehavior that landed them no more than a wrist slap (or a ride home!) from the police; and #AliveWhileBlack<\/a>, in which innocent African Americans tell stories of police harassment based on their skin tone. It is a very illuminating look into how law enforcement discretion provides fertile ground for racial injustice. People do stupid things and break the law, or maybe they commit some utterly unremarkable minor infraction, and whether they go to jail, get strip searched, or even get shot at might very well be a product of express or subliminal racial prejudice.<\/em><\/p>\n You might think this is a constitutional problem. The Fourteenth Amendment guarantees equal protection under the law; police cannot arrest, or search, or choke a person of one race when they wouldn\u2019t arrest, or search, or choke a person of a different race under the same circumstances. As it turns out, that\u2019s a lot less true than you would think, in large part because of the way the Supreme Court has decided to look at such questions. I have one particularly important case in mind, but there are many other contributors as well.<\/em><\/p>\n In the 1996 case of Whren v. United States<\/a>, the Court considered essentially the following question: If the police pull you over because you are black, but could have pulled you over for breaking the law (in that case, turning right without signaling and driving off at an \u201cunreasonable\u201d speed), do you have the right to complain under the Fourth Amendment, and suppress evidence found after the stop? The Court said no. If there was a viable reason for the police action, it simply did not matter that there was also a bad reason. That\u2019s true even if you could definitively prove that the stop wouldn\u2019t have happened but for the racial prejudice of the officers. The Court expressly considered the argument that the traffic laws are so voluminous and technical that everyone is always breaking them, which could allow racial prejudice to run rampant. The Court\u2019s response was essentially, \u201cOh well.\u201d If there was a permissible, sufficient reason for the police to do what they did, it simply doesn\u2019t matter if the real reason was discriminatory. This holding was unanimous; not one member of the Supreme Court thought otherwise.<\/em><\/p>\n To be sure, the Court in Whren emphasized that the case was just about the Fourth Amendment \u2013 that it \u201cof course agree[d] with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race,\u201d and that the only upshot of its ruling was that \u201cthe constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.\u201d But there\u2019s real reason to doubt that there is any vehicle for making such an argument under the Equal Protection Clause. If you brought a suit against a police officer for discriminatory enforcement of the law (using the constitutional tort statute called Section 1983), the officer could argue that he was entitled to so-called \u201cqualified immunity\u201d from the lawsuit on the theory that there was an objectively reasonable basis for his actions. He could also contest whether you could show constitutional injury insofar as his action was justified \u2013 you don\u2019t usually get to say that you were injured just because you were legitimately arrested when someone else would not have been. The general point is that, while the law forbids discrimination, it makes it very difficult to complain about it within the particular context of the criminal justice system.<\/em><\/p>\n This theme gets played out in other contexts as well. For example, there\u2019s McCleskey v. Kemp<\/a>, the 1987 case in which the defendant made a very impressive statistical showing that a black defendant was much more likely to get the death penalty than a white one. The Court explained that this was, again, not an appropriate basis to complain about one\u2019s treatment within the criminal justice system: The only important question was whether the standard was met for you to get the death penalty, not whether someone else would have gotten it in the same circumstances.<\/em><\/p>\n What these cases show is that, at least within the judicial system, the problem is not so much that the courts don\u2019t believe that racial disparities exist; it\u2019s that they don\u2019t care. That\u2019s an intentionally provocative phrasing, but what I mean is that the questions the system asks are individualized (How were you hurt? Was it OK to treat you this way?), and so necessarily blind to issues of racially disparate treatment. There are many strong arguments that these actually are the right questions for courts to be asking \u2013 recall that precisely zero Justices voted to recognize the racial profiling defense in Whren. But the point remains that the structure of the criminal justice system doesn\u2019t allow for an airing of whether the reasonableness of the actions taken by Darren Wilson or Eric Pantaleo were affected by the fact that Darren Wilson or Eric Garner were black, even if things would have turned out differently if they had been white.<\/em><\/p>\n Where does that leave us? With politics. Garner\u2019s death in particular \u2013 perhaps because it was captured on video, and perhaps because he was suspected of such a minor crime \u2013 has brought condemnation from both sides of the aisle. Rand Paul, for example, has pointed out that the proliferation of very minor crimes is part of the problem. And indeed, rules like Whren\u2019s make them a very serious problem from the perspective of racial disparities in law enforcement behavior. One way to address a legal system that treats those who are #CrimingWhileWhite better than those who are #AliveWhileBlack is to repeal or reduce laws that permit so much police intrusion into everyday life. Another is to use politics to create something the system does not yet have: a defense, or a cause of action, that allows you to sue the police or defend a criminal charge based on racially disparate treatment, even if \u2013 in isolation \u2013 your own treatment complied with the law. But the point is that awareness of those disparities isn\u2019t enough; the criminal justice system would have to change its focus to really see them, and do something about them.<\/em><\/p>\n P.S.\u00a0 Those who are interested in wasting more of their time thinking about\u00a0Whren can read this law review Note<\/a> by some idealistic law student.<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":" From SCOTUS blog, more and deeper judicial exegeses on police excessive use of force and the apparent disparity on how different races are treated by the police. The sentence that will blow you away: What these cases show is that, … Continue reading ![\"\"](\"http:\/\/sblog.s3.amazonaws.com\/wp-content\/uploads\/2014\/09\/SocialLogo_400x400-150x150.jpg\" "\\"Cases")
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