July 11, 2016

Targets of the Carceral State: On Life, Death, and Utah v. Strieff

ACSblog Symposium on Policing and Race Relations, Atiba R. Ellis, criminal justic reform, Racial justice

by Atiba R Ellis, Professor, West Virginia University College of Law @atibaellis

*This post is part of the ACSblog Symposium on Policing and Race Relations

When ACS asked me to write this blog, I had in mind a commentary that compared and contrasted the three views of policing and the nature of the leeway allowed the police in targeting high crime areas. But then, in the course of three days, we learned of the deaths of Alton Sterling and Philando Castile, the views expressed in Utah v. Strieff took new context.

The targeting by the police can have lethal consequences. In the unsettling and graphic video of the shooting of Alton Sterling and the similarly graphic video of the aftermath of the shooting of Philando Castle, we see those consequences clearly. These videos show us the consequences immediately. At least one commentator called Sterling’s death a “modern day lynching.”

None of this denies that responsible policing does exist. As the recent shootings of police officers in Dallas remind us, most police abide by the law and put their lives on the line to protect our freedoms. Indeed, the officers killed in Dallas died protecting a peaceful protest of the deaths of Sterling and Castle.

But it is important to draw a distinction between lawful policing and police abuse that occurs with near impunity, especially when such abuse is disproportionately directed at communities of color. And it is important to critique legal doctrines, as the one extended in Strieff, which reinforce this impunity and contribute to the disproportionate state-sanctioned abuse of communities of color.

To understand this, we must understand the world in which this abuse takes place. When men of color die at the hands of police for activities as innocuous as selling CDs or reaching for one’s registration during a police stop, it comes as no surprise that those living in communities of color feel targeted. The deaths of Mr. Sterling and Mr. Castle follow a long list of high-profile deaths at the hands of the police, including Eric Gardner, Tamir Rice and Sandra Bland. The investigative data, sociological data and lived experience in African American communities show that black men are at greater risk of being shot by police than other demographic categories. Thus, in this world, it comes as little surprise that communities of color feel that law has few bounds when it comes to the lives and deaths of Black and Brown bodies.

Strieff, read through the lens of these recent shootings gives us added insight about the world in which abusive policing harms communities of color. The reasoning of Strieff is straightforward enough: the Court extended the Fourth Amendment attenuation doctrine to hold that despite the fact that Narcotics Detective Douglas Fackrell stopped Mr. Strieff without any probable cause or reasonable suspicion that Mr. Strieff was involved in any drug activity, the evidence of illicit drugs discovered on Mr. Strieff in the search incident to arrest was admissible. The fact that attenuated or separated the discovery of the evidence from the wrongful stop was the fact that Mr. Strieff had an outstanding arrest warrant for a traffic violation, a fact discovered only by the initiative of the arresting officer.

Justice Thomas stressed that the errors by Detective Fackrell in executing a warrantless, suspicionless search were done in good faith. According to him, neither the Detective nor the prosecution should suffer for an “innocent” mistake. In Justice Thomas’s view, only the most egregious of police abuses should subject the state to suffer the loss of the exclusion of evidence based on the wrongful acts of a police officer.

Yet, through the lens of the disproportionate extra-judicial killing of Black and Brown men by the state through police detention and custody, this appears more like a further license to target the “suspicious.” Justice Sonia Sotomayor warned us of this in her dissent.

Indeed, Justices Ginsburg and Kagen joined Justice Sotomayor as to complaining that the Court overextended the attenuation doctrine to allow the police near unfettered license to probe and harass the average citizen. Justice Sotomayor for herself went on to stress that this behavior goes beyond mere inconvenience; it serves to dehumanize and disenfranchise citizens of color. She stressed that the Strieff majority legitimized a suspicionless search followed by a groundless search for warrants initiated without cause by the officer. The consequence is that, as she states, “anyone’s dignity can be violated in this manner.”

She then emphasized that people of color are the disproportionate targets of this scrutiny, this victimization predicated on fearing “how an officer with a gun will react to them.” And thus, as Justice Sotomayor noted, generations of Black and Brown parents give their children “the talk” and warn their children not to act up, not run in the streets, not to hide their hands from the police, for fear of death by cop. She states that this conduct means:

[Y]our body is subject to invasion while courts excuse the violation of your rights. [This conduct] implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be catalogued.

We must not pretend that the countless people who are routinely targeted are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.

It is to this carceral state—the United States of America—which the deaths of Alton Sterling and Philando Castile, and the conviction of Edward Strieff point. Mr. Strieff now suffers the civil death of a felony conviction. This is true despite the suspicionless search of his person, a search now easily excusable under Justice Thomas’s reasoning. Along with him, millions more Americans continue to suffer the penalties after their jail time, like disenfranchisement that comes with felon status long after their punishments have ended. Mr. Strieff and the 5.8 million others are consigned to the political underclass of this country (perhaps permanently).

And Mr. Sterling and Mr. Castile suffer literal death at the hands of abusive policing under circumstances that at the minimum merit civil rights investigations. Their families no longer have their care or protection. They join the ranks of the many thousands gone, those whose deaths at the hands of the police serve to remind people of color in this country that theirs is a precarious existence due to their disproportionate targeting by the carceral state without legitimate cause or due process of law. Their deaths serve to remind communities of color of racism, both in terms of abusive policing, communal dispossession, and the other badges and incidents of structural disenfranchisement

How much longer must we tolerate this?