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
affected.
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
prohibition.
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
driver t
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