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“Suitable Targets”? Parallels and Connections Between “Hate” Crimes and “Driving While Black”
This Essay seeks to show that there is less to some of these apparent differences than meets the eye. While hate crimes may tend to be less routine and more violent than discriminatory traffic stops, closer examination of each shows the need to complicate our understanding of both. The work of social scientists who have studied bias-motivated violence and of legal scholars who have studied racial profiling- prominent among them my fellow panelist, Professor David A. Harris- reveals striking similarities and connections between the two practices. In particular, both hate crimes and racial profiling tend to be condemned only at the extremes, in situations where they appear to be irrational and excessive, but overlooked in cases where they seem logical or are expected. The tendency to see only the most extreme cases as problematic, however, fails to recognize that neither practice is as marginal as it might seem. Both forms of discrimination are strongly influenced by a social context that has designated certain social groups as the accepted or "suitable" targets for ill treatment. They both reflect especially strongly the myth that certain groups are prone to criminality or deviance. In turn, the perpetration of both practices also reinforces both the suitable target designation and myth of criminal propensity by influencing the perceptions and behavior of both members and nonmembers of vulnerable groups.Striking a Sincere Balance: A Reasonable Black Person Standard for “Location Plus Evasion” Terry Stops
Randall Susskind originally proposed the "reasonable African American standard” for Terry stops as a way to minimize racial disparities in Fourth Amendment jurisprudence. This paper will expand upon Susskind's suggested standard within the specific context of "location plus evasion" stops, in which suspects are stopped upon flight in a high-crime neighborhood. Part one will present the reasonable Black person standard in the context of Illinois v. Wardlow, a recent "location plus evasion case." Part one will then show how this alternative standard better accounts for Wardlow's "raced" decision to flee, the police officers' "raced" decision to stop him, and the Court's "raced" decision to find reasonable and articulable suspicion. Part two will discuss and compare the reasonable Black person standard with analogous alternative reasonable person standards in sexual harassment and criminal law. Part three will anticipate and rebut potential criticisms of the proposed standard.Subtracting Race from the “Reasonable Calculus”: An End to Racial Profiling? United States V. Montero-Camargo 208 F.3D 1122 (9th Cir. 2000) Cert. Denied Sub Nom
This Case Note presents the facts of Montero-Camargo, describes the decision of the Ninth Circuit Court in historical context, and analyzes the effect of the Court's holding. The Case Note argues that while the Ninth Circuit's decision to prohibit the use of race as a factor in determining the reasonableness calculus in traffic stops is progressive in spirit, implementing the decision will be difficult. Thus far, mechanisms designed to limit officers' use of race in traffic stops have been ineffective and have left victims with little recourse, resulting in a disproportionate number of innocent African American and Latino drivers being stopped pretextually.Setting the Record Straight: A Proposal for Handling Prosecutorial Appeals to Racial, Ethnic or Gender Prejudice During Trial
This article proposes that direct or indirect references to the protected classes of race and/or gender should always be subject to the Chapman v. California "harmless beyond a reasonable doubt" standard. Once the defendant has shown appeals to racial or gender bias in prosecutorial argument or other conduct during his trial, the burden must shift to the prosecution to show at an immediate hearing outside the presence of the jury, beyond a reasonable doubt, that this impermissible appeal to bias did not affect the fairness of the defendant's trial. Furthermore, courts must take the examination of the prosecution's proof seriously, and must recognize that even a single racially biased comment by a prosecutor may improperly influence the outcome of a trial.The Adversity of Race and Place: Fourth Amendment Jurisprudence In Illinois v. Wardlow, 528 S. Ct. 673 (2000)
This Case Note lays out Wardlow's pertinent facts, describes the decisions of the Court and lower courts, and then analyzes the ramifications of the Court's holding. In particular, this Case Note argues that the Court's ruling recognizes substantially less Fourth Amendment protections for people of color and indigent citizens than for wealthy Caucasians. This perpetuates a cycle of humiliating experiences, as well as fear and mistrust of the police by many poor people of color.Racial Profiling: “Driving While Mexican” and Affirmative Action
This Essay will focus on "racial profiling" not just in the way many people think about the term-that is, with respect to stopping motorists for traffic violations based solely on their race, so-called "Driving While Mexican" or "Driving While Black"-but also in the context of "affirmative action"-namely, using race as a factor in employment and educational decisions. More broadly, then, the author wants us to think of "racial profiling" as simply "the use of race to develop an understanding of an individual," which moves us slightly away from more pejorative notions of the phrase that have seeped into the national consciousness.Cracking the Code: “De-Coding” Colorblind Slurs During the Congressional Crack Cocaine Debates
This article proposes "de-coding" as a method for unveiling the racist purpose behind the enactment of race-neutral legislation. Through the use of "code words," defined as “phrases and symbols which refer indirectly to racial themes, but do not directly challenge popular democratic or egalitarian ideals,” legislators can appeal to racist sentiments without appearing racist. More importantly, they can do so without leaving evidence that can be traced back as an intent to discriminate. This article proposes to use "de-coding" as a method to unmask the racist purpose behind the enactment of the 100:1 crack versus powder cocaine ratio for mandatory federal prison sentences. However, while this article, like many other law review articles on the subject, argues that the crack cocaine sentencing scheme is unconstitutional, the real purpose of analyzing the constitutionality of the crack statute is to show how "de-coding" can be an effective means of unmasking the racist meaning behind primarily race-neutral comments. When the interpretation of "de-coded," race-neutral comments falls in line with an un-coded historical pattern of discrimination, it makes sense to infer that there was an intent to discriminate.The Charleston Policy: Substance or Abuse?
In 1989, the Medical University of South Carolina (MUSC) adopted a policy that, according to subjective criteria, singled out for drug testing, certain women who sought prenatal care and childbirth services would be tested for prohibited substances. Women who tested positive were arrested, incarcerated and prosecuted for crimes ranging from misdemeanor substance possession to felony substance distribution to a minor. In this Article, the Author argues that by intentionally targeting indigent Black women for prosecution, the MUSC Policy continued the United States legacy of their systematic oppression and resulted in the criminalizing of Black Motherhood.Policing Hatred: Police Bias Units and the Construction of Hate Crime
Much of the scholarly debate about hate crime laws focuses on a discussion of their constitutionality under the First Amendment. Part of a larger empirical study of police methods of investigating hate crimes, this Note attempts to shift thinking in this area beyond the existing debate over the constitutionality of hate crime legislation to a discussion of how low-level criminal justice personnel, such as the police, enforce hate crime laws. This Note argues that, since hate crimes are an area in which police have great discretion in enforcing the law, their understanding of the First Amendment and how it relates to their job is important to the impact that hate crime legislation has in the community. Additionally, research on the enforcement of hate crime laws may inspire further investigation of the broad discretion police officers currently possess in all areas of law.Fourth Amendment Accommodations: (Un)Compelling Public Needs, Balancing Acts, and the Fiction of Consent
The problems of public housing-including crime, drugs, and gun violence- have received an enormous amount of national attention. Much attention has also focused on warrantless searches and consent searches as solutions to these problems. This Note addresses the constitutionality of these proposals and asserts that if the Supreme Court's current Fourth Amendment jurisprudence is taken to its logical extremes, warrantless searches in public housing can be found constitutional. The author argues, however, that such an interpretation fails to strike the proper balance between public need and privacy in the public housing context. The Note concludes by proposing alternative consent-based regimes that would pass constitutional muster.
