an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
My vision for constitutional law in the area of criminal justice in 2020 relates to race, policing and the Fourth Amendment. I envision a future in which courts acknowledge and take into consideration the complexity of race and its effects on police behavior rather than denying its influence or dividing the police into conscious bigots on the one hand and non-racists on the other. In order to realize this vision, courts must broaden their conception of Fourth Amendment reasonableness to include consideration of the effects of implicit (unconscious) racial biases on police behavior. (For a fuller discussion, see my forthcoming article in the Minnesota Law Review here). Let me begin with a few statistics. In the first nine months of 2009, NYPD officers stopped 450,000 pedestrians. Eighty-four percent of those stopped were Black and Hispanic. Only 16% were White. Yet, the police found contraband (usually drugs) on Whites at higher rates than Blacks. Other cities report similar findings.
Why do officers continue to stop and frisk non-Whites at higher rates than Whites when stops and searches of Whites are often more successful in yielding evidence of criminal activity? One common explanation is bigotry. Another is that the police act rationally when they profile Blacks because Blacks commit more crimes. While these explanations may have some merit, I find both unsatisfying because they overlook the effects of implicit biases on police behavior that can also explain these results.
For over 30 years, researchers in the field of implicit social cognition have consistently found that individuals of all races have implicit racial biases that often conflict with their consciously and genuinely held thoughts and feelings. Yet, these biases can negatively and unintentionally influence behaviors towards and judgments of Blacks in ways that are non-conscious and often uncontrollable. For example, implicit racial biases can cause the threshold for interpreting ambiguous behavior as suspicious to be lower for Blacks than for Whites. A Fourth Amendment legal regime that contends with the effects of implicit racial bias on behavior may more effectively address the racial disparities that exist in the proactive policing context and more successfully protect privacy against arbitrary government intrusion.
Consider the Terry doctrine, which allows officers to stop an individual for questioning and to conduct a limited frisk for weapons based upon their interpretation of ambiguous behavior. In an attempt to protect individuals from unjustified encroachments upon their liberty, the Court crafted a standard that prohibited officers from acting on their “inchoate and unparticularized suspicions or hunches.” Instead, it required officers to have a reasonable suspicion of criminal activity based upon “articulable and specific facts” before conducting a stop and frisk. “Anything less,” the Court cautioned, “would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction.”
However, the reasonable suspicion test may not perform as intended to protect non-Whites from unjustified encroachments upon their liberty. As a result of implicit biases, officers may unintentionally and non-consciously evaluate ambiguous behaviors engaged in by Blacks as suspicious even as identical behavior by Whites would go unnoticed. This can occur even if an officer harbors no conscious racial animosity and rejects any association between Blacks and criminality. Thus, by allowing officers to act on their interpretation of ambiguous behavior, the Terry doctrine may actually facilitate, rather than ameliorate, behaviors based upon racial hunches, albeit implicit ones.
By the year 2020, courts should broaden their conception of Fourth Amendment reasonableness and take scientific understandings of how race influences behavior seriously in order to realize more effectively the norms of the Fourth Amendment. In the Terry context, this should result in courts acknowledging that the reasonable suspicion test can only operate in a manner that results in officers treating similarly situated Blacks differently that similarly situated Whites. This recognition may necessitate a return to the probable cause standard. While not a panacea, the standard does require officers to have greater confidence in the interpretation of facts they observe and requiring officers to observe behavior that is more unambiguous before seizing individuals will help reduce the effects of implicit bias.
Consideration of the effects of implicit bias on behavior will not provide easy answers to complicated Fourth Amendment questions. Nor will it allow courts to avoid difficult normative choices. However, acknowledging the ways in which race can impact behavior, even in the absence of conscious bias, will allow us to ask the right questions and to avoid unintended consequences.
L. Song Richardson is Associate Professor & Co-Director, Center for Law and Science, DePaul University College of Law. You can reach her at lrichar3 at depaul.edu. Posted
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