by Barry Friedman, Jacob D. Fuchsberg Professor of Law at New York University School of Law, Director of the Policing Project and author of the forthcoming book, Unwarranted: Policing Without Permission (Farrar Straus and Giroux 2017).
In light of the deeply troubling events of the last couple of weeks—the shootings by police of Alton Sterling and Philando Castile, and the shooting of police officers in Dallas and Baton Rouge—the country rightfully is preoccupied with how to discuss, and address, issues of policing and race.
Here, I want to turn to law—which has both exacerbated the problem, and can perhaps offer a somewhat novel solution for how to address it.
First, the problem. Many people today suggest that one of the reasons why policing falls most heavily on communities of color is unconscious racial bias, or “implicit bias.” There is growing evidence in support of the claim. This is important for two reasons. First, it helps us understand that much of what is happening, or has happened, may have occurred in the absence of intentional racial animus. And second, it explains how—nonetheless—these many individual incidents can together add up to be a national crisis. The phenomenon of unconscious racial bias suggests that when officers exercise their discretion in individual cases, they tend—subconsciously—to be drawn to over-enforcement against racial minorities, which in the aggregate can produce observable and troubling racial effects.
To the extent that this indeed is the problem, it is instructive to see how much law is to blame here. One reason why individual biases have such a pronounced effect in the criminal justice system is because of the enormous discretion police officers possess—too much of which is the result of ill-advised Supreme Court decisions. The justices consistently resist adopting bright line rules that limit discretion, while putting such rules in place to grant it. The Supreme Court has said officers may arrest for any offense, no matter how small or insignificant. The Supreme Court also has said pretextual stops—meaning stops that are ostensibly about traffic enforcement but really are just an excuse to look for drugs or other evidence—are just fine. The Supreme Court has upped the incentives to conduct stops and arrests by allowing numerous other actions to follow, be they frisks or full-blown searches. Even if a stop, search or arrest violates state law, the justices have held that any evidence that is obtained still is admissible. The net result is enormous over-enforcement, which the data makes clear has occurred in racially discriminatory ways.
Then, as is all too familiar, under Supreme Court doctrine it is almost impossible to hold a government liable under the Equal Protection Clause when these practices fall disproportionately on people of color.