A menace to society: the use of criminal profiles and its effects on black males

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Howard Law Journal

38 How. L.J. 629

1995

A MENACE TO SOCIETY: THE USE OF CRIMINAL PROFILES AND ITS EFFECTS ON BLACK MALES



Erika L. Johnson *

* Erika L. Johnson is a 1995 graduate of the University of North Carolina School of Law in Chapel Hill, North Carolina. She is currently a clerk for Judge James A. Wynn, Jr. in the North Carolina Court of Appeals.



SUMMARY:
  ... In one of the most memorable scenes in the movie, Menace II Society, actor Charles S. Dutton urges the main character, Cain, a young black male, to leave the brutal conditions of the inner-city. ... Through use of this criminal profile, minority citizens, primarily black men, have become the main targets of law enforcement agency suspicion. Underlying the drug courier profile is the belief that black men embody society's greatest fears and suspicions about crime. ... Because formulation of criminal suspicion occurs in the initial stage of the criminal justice process, racial prejudice only exacerbates the problem of disproportionate detention and arrest patterns among black males. ... In 1987, the Supreme Court specifically addressed the issue of racial disparities in death penalty sentencing in McCleskey v. Kemp. In this case the defendant, Warren McCleskey, challenged his death sentence for murdering a white police officer. ... For example, West Palm Beach defense attorney Michael Salnick defended a black male in a first-time drug offense case. ... Therefore, this recent federal court decision clearly illustrates that race remains a legitimate factor to be used in drug courier profile cases. ... Moreover, until courts acknowledge and condemn the use of race in law enforcement's initial stages of forming criminal suspicion - the legitimated use of race in criminal profiles - the image of the black man as a menace to society will prevail. ...

 [*629

I. INTRODUCTION

In one of the most memorable scenes in the movie, Menace II Society, n1 actor Charles S. Dutton urges the main character, Cain, a young black male, to leave the brutal conditions of the inner-city. In his final plea, Dutton tells Cain to "just survive," because, "the hunt is on, and you are the prey!" n2 This particular line continues to ring true - black men are often the prey in America's feeding frenzy on criminals. As a result, black men have become an "endangered species," constantly threatened with "physical, psychological or social annihilation." n3 Undoubtedly, one of the nation's most effective means of achieving black male annihilation occurs through our criminal justice system.

As America continues to wage its full-fledged "War on Drugs," the demographics of prison populations expose that the war's main casualties are black men. One major tool in the "War on Drugs" has been the Drug Enforcement Agency's ("DEA") development and use of the drug courier profile. Through use of this criminal profile, minority citizens, primarily black men, have become the main targets of law enforcement agency suspicion. Underlying the drug courier profile is the belief that black men embody society's greatest fears and suspicions about crime.  [*630

This article addresses the origins and use of the criminal profile and its discriminatory effects on black males. Part II provides an overview of citizens' and law enforcement officers' use of racial prejudice in determining who is accused of crimes. Part III examines the social construction of black criminality in historical and modern-day contexts. Part IV examines how the "War on Drugs" reinforces the social construction of black criminality, particularly black male criminality. Part V discusses the origin and use of the DEA's drug courier profile, including a discussion of Fourth Amendment implications of the criminal profile. Emphasis is placed on the discriminatory impact of current Fourth Amendment orthodoxy and criminal profiles on black males. Part VI addresses possible solutions to discrimination against black males with a primary focus on Fourth Amendment reform. Finally, Part VII concludes that discrimination against black males will not cease until courts become willing to recognize the crippling and debilitating effects of discriminatory police conduct on black males.

II. THE INITIAL STAGE: RACIAL PREJUDICE IN FORMING CRIMINAL SUSPICION

A. False Accusations

On October 25, 1994, in Union, South Carolina, the nation watched in horror as a tearful Susan Smith told the media that a carjacker had jumped into her car, forced her out of it, and had driven away with her two toddler sons in the back seat. n4 Describing the assailant, Smith said that a "black man in his twenties, wearing a plaid jacket and jeans and waving a gun, out of breath as though he had been running, jumped into the passenger seat ... [and said], "Shut up and drive or I'll kill you!' " n5 Within minutes of Susan Smith's horrifying tale, a police artist's sketch of a black man in a knit cap was displayed throughout the media. Further, "the artist's rendering was taped to the windows of every store in Union" and in many public places across the nation. n6 Consequently, police launched a massive manhunt for the carjacker among local African Americans. n7 Many  [*631]  black residents of Union were questioned at length. Additionally, "at least a half dozen other local black males were detained ... and police also started going door-to-door in Union's black community looking for information in the case." n8 One black resident in Union reported that after Susan Smith's allegations, hostility against blacks became so blatant that one white shopkeeper refused to serve him. n9

In the end, however, Susan Smith, the mother of the two boys, confessed to drowning her children in a local lake. n10 While the nation was horrified by this tragedy, many African Americans expressed outrage over Smith's concocted picture of a black male "carjacker" in an alleged abduction. One citizen stated, "I guess she figured if she said a black man did it people would believe her no matter what story she came up with .... As long as it's allegedly a black man involved, America will fall for anything." n11 Writer Richard Lacayo echoes the sentiments of many blacks:

 
Susan Smith knew what a kidnapper should look like. He should be a remorseless stranger with a gun. But the essential part of the picture - the touch she must have counted on to arouse the primal sympathies of her neighbors and to cut short any doubts - was his race. The suspect had to be a black man. Better still, a black man in a knit cap, a bit of hip-hop wardrobe that can be as menacing in some minds as a buccaneer's eye patch. Wasn't that everyone's most familiar image of the murderous criminal? n12
 

Indeed, the image of the black man as a murderous criminal has become all too familiar in American society. The unraveling of Susan Smith's story bears a striking resemblance to the 1989 Charles Stuart case, in which Stuart, a white male from Boston, Massachusetts, alleged that a black man had shot and killed his pregnant wife as they drove home from a childbirth class. n13 Police responded by raiding local housing projects, stopping numerous black men, and eventually  [*632]  charging a black man with the murder. n14 When Stuart's brother later told authorities that Stuart had confessed to killing his wife, Stuart leaped to his death from a bridge. n15

False accusations such as these have not been uncommon in our country's history. As Lacayo notes, "In a society that began to demonize African Americans almost as long as it first enslaved them, blacks have endured being cast as menacing shadows at the edge of bad dreams." n16 For instance, in the infamous 1931 "Scottsboro Boys" case, nine African-American males were stopped and arrested by police on a train near Scottsboro, Alabama after two white prostitutes accused the teenagers of raping them. n17 Following a series of trials, one of the women withdrew her accusation. n18 Despite the woman's withdrawal of her accusation, the "Scottsboro Boys" were convicted and sentenced to death. They were later paroled after serving many years in prison. n19

Although cases like these are numerous and can be traced throughout history, the overriding message remains that black males are often targets of criminal suspicion. The result is that black men have become scapegoats for society's most feared crimes.

B. Police Suspicion

While the Smith, Stuart, and Scottsboro cases received a great deal of publicity, thousands of day-to-day incidents between black males and law enforcement officers go untold. n20 As one commentator states, "One indication ... that day-to-day law enforcement might be contravening society's commitment to racial equality is the startlingly disproportionate representation of blacks and other minorities among persons whom police arrest and courts imprison each year." n21 For ex-  [*633]  ample, young black males make up half of the inmate population even though they constitute only five percent of the country's population. n22

Glaringly disparate statistics such as these remain at the heart of the debate over whether blacks have a greater propensity for crime or whether police exercise discriminatory discretion in determining whom to detain or arrest. Those who argue that blacks are more prone to commit violent crimes than whites contend that these statistics only reflect the reality that racially disproportionate arrest patterns stem from social disadvantages that burden racial minorities; and thus, these disadvantages drive blacks to exhibit more criminal behavior than whites. n23 Some go further, urging that blacks are biologically destined for criminality. n24 Opponents of these positions maintain that both arguments are flawed because they neglect the pivotal role that racial prejudice plays in the initial stage of police contact with black citizens - police officers' suspicion. For instance, numerous studies reveal that "many police officers freely admit ... that [they] use race as an independently significant, if not determinative factor in deciding whom to follow, detain, search or arrest." n25 In defending the use of race as a legitimate variable, however, police quickly point to disparate arrest patterns that "prove" that minorities commit more crimes. Therefore, by relying on these statistics, police contend that it is not racist or discriminatory to treat blacks differently. n26

A closer examination of arrest statistics, however, reveals that these numbers are highly misleading in two respects. First, empirical studies show that "racial discrimination by police officers in choosing whom to arrest most likely causes arrest statistics to exaggerate what differences might exist in crime patterns between blacks and whites, thus making any reliance on arrest patterns misplaced." n27 Therefore,  [*634]  as one commentator notes, "this exaggeration results from a self-fulfilling statistical prophecy: racial stereotypes influence police to arrest minorities more frequently than non-minorities, thereby generating statistically disparate arrest patterns that in turn form the basis for further selectivity." n28 Considering that black males are often scapegoats of false crime accusations by average citizens, it is equally plausible to believe that police officers are not immune from these same discriminatory suspicions. Moreover, police have a greater opportunity to act on their suspicions than the average citizen because their very livelihood revolves around the apprehension of criminals.

Second, many researchers have criticized the use of arrest statistics as a basis for inferring a greater criminal propensity among members of a minority group that is already overrepresented within the pool of arrestees. n29 Arguing that this type of comparison produces exaggerated results, one commentator urges that "generalizations of this sort are tenuous because arrestees for most street crimes constitute only a small fraction of the population in any given community: the national average ranges between one percent and five percent annually without taking recidivism into account." n30 Thus, when making comparisons within a larger subgroup of persons not likely to ever be arrested, racial differences are practically nonexistent: approximately 97.9 percent of the national population of blacks, compared with 99.5 percent of the national population of whites in any given year, will not be arrested for committing a crime. n31 Based on these statistics, the slight statistical difference between the races cannot support police justifications for treating blacks differently.

In sum, racial prejudice continues to be a significant factor in society's determinations of criminal suspicion. Because formulation of criminal suspicion occurs in the initial stage of the criminal justice process, racial prejudice only exacerbates the problem of disproportionate detention and arrest patterns among black males.  [*635

III. THEORETICAL PERSPECTIVE: ARE BLACK MALES A MENACE TO SOCIETY?

Throughout history, America's criminal justice system has been inundated with racial biases against minorities, particularly against African Americans; and beyond making black persons targets of suspicion when a crime is committed, race is also used in defining crime. n32 The racial identification of crime can be traced back to the enslavement of blacks. During the slavery era, slave codes formally wrote the racial construction of crime into law. The slave codes "created a separate set of crimes for slaves that were sanctioned by public punishments not applicable to whites and that included behavior that was legal for whites." n33 The slave codes also punished blacks more harshly for committing a crime against a white person than for committing a crime against a black person. n34

Through the racial construction of crime, the slavery system armed itself with a very potent weapon - the law - which sustained the institution of slavery by defining criminal conduct as conduct committed by blacks. n35

After the Emancipation Proclamation in 1863, the racial construction of crime was accomplished through less explicit means. n36 With the Thirteenth Amendment's prohibition of slavery, slave codes were abolished. The Thirteenth Amendment, however, contained an  [*636]  exception: "Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States . ..." n37 White lawmakers, aware of this exception for citizens convicted of a crime, "soon realized that they could return their former chattel to the condition of slaves by imprisoning them for a crime." n38 During Reconstruction, Southern legislatures attempted to maintain control over their freed slaves by passing criminal laws that turned petty offenses into serious crimes. n39 As a result of these laws, Southern prison populations skyrocketed for the first time and became predominantly black. n40

Although the slave codes and the Reconstruction era laws have been abolished, remnants of past racial constructs can be observed in our criminal justice system today. For example, racial disparities in sentencing remain prevalent in our modern day penal system. One author, Christopher Johns, reports that a study done in California, Michigan, and Texas shows that minorities serve longer sentences and are more likely to go to prison than to jail. n41 Johns also reports that, according to the Department of Justice's Bureau of Statistics, "African Americans serve an average of 35 percent of their prison terms before becoming eligible for release, while Anglo inmates convicted of similar crimes serve only 29 percent of their sentences." n42

At the heart of current racial disparities in sentencing remains the fact that black violence against white victims is still considered the most serious offense committed in our society. n43 This judgment is most apparent in the imposition of the death penalty. In 1987, the Supreme Court specifically addressed the issue of racial disparities in death penalty sentencing in McCleskey v. Kemp. n44 In this case the defendant, Warren McCleskey, challenged his death sentence for murdering a white police officer. n45 McCleskey presented overwhelming statistical evidence of racial discrimination in the criminal justice sys-  [*637]  tem. n46 The statistical evidence, known as the "Baldus Study," showed that black defendants are 4.3 times more likely to receive the death penalty if they killed a white person than if they killed a black person. n47 Despite these findings, the Court held that statistical evidence alone was insufficient to overturn blacks' murder convictions of whites, and affirmed the death penalty's constitutionality. n48

Although the Court maintained the constitutionality of the death penalty, the racial disparities in the imposition of the sentence are reminiscent of the ideology of the slavery era. For example, Roberts states that the death penalty's racial bias results from white society's horror at black violence against whites. n49 Author Andrew Hacker concurs, noting that:


 
The feeling persists that a black man who rapes or robs a white person has inflicted more harm than black or white criminals who prey on victims of their own race. It is as if an assault by a black is an act of desecration that threatens the entire white race. n50
 
Underlying these views is the belief that black crime is a defiance of white authority. n51

Black criminality is also still viewed as being a more serious problem than many other forms of criminality. n52 For example, crimes primarily associated with the black community are seen as being more threatening than those largely associated with the white community. Street crimes, such as robbery, drug dealing, and mugging, typically associated with the black community, are considered menaces to society, while white-collar crimes, such as embezzlement, price-fixing, and insider trading, usually associated with the white community, have been overlooked and ignored. n53 Statistics indicate, however, that white-collar crimes are far more menacing than street crimes. One commentator, Richard Delgado, notes that the United States Census and Federal Bureau of Investigation ("FBI") annual crime reports "show that the figure for white-collar crime exceeds the dollar losses  [*638]  from all the crimes associated with African Americans put together." n54 The cost of street crime each year is estimated at $ 9 billion while the cost of white-collar corporate crime is estimated at $ 100 billion to $ 200 billion per year. n55 In addition to loss of money, more human lives are lost each year as a result of corporate actions than from street crimes. n56 For instance, approximately 25,000 lives are lost annually to murder and non-negligent manslaughter. n57 In comparison, more than 1.4 million deaths result annually from white-collar or corporate actions: the manufacture of cigarettes, asbestos, dangerous products, and employee exposure to dangerous chemicals and other safety hazards. n58 Further, corporate misconduct - marketing unsafe autos, health care products, and dangerous pharmaceuticals, as well as toxic dumping - also take a human toll. n59

Blacks are often cast as menaces to society through the labeling of certain acts as deviant and criminal. However, criminal studies show that blacks are no more dangerous than any other segment of the United States population. Rather, blacks remain "shackled" to slavery-era and Reconstruction-era myths of black criminality. One commentator, Regina Austin, relying on Howard Becker's "interactionist" or "labeling" theory of deviance, explains why black people continue to be labeled deviant: n60

 
Social groups create deviance by making the rules whose infraction constitutes deviance, and by applying those rules to particular people and labeling them as outsiders. From this point of view, deviance is not a quality of the act the person commits, but rather a consequence of the application by others of rules and sanctions to an "offender." The deviant is one to whom that label has successfully been applied; deviant behavior is behavior that people so label. n61

Deviance is "gauged not by the nature of an act, but by the responses of powerful people to that act." n62 During slavery, white lawmakers labeled deviant behavior as any behavior, criminal or  [*639]  otherwise, performed by blacks. Through these labels, whites could control their slaves as well as ensure their own safety from insurrection or violence from their chattel. Similarly, the social construction of "the black criminal" serves a similar purpose today. Because blacks are labeled as violent threats to society, the criminal justice system in America still seeks to control blacks and protect white citizens from black violence. Hence, we have created a vicious cycle - crime and deviance are labeled in terms of what black people do, and, subsequently, black people are perceived as criminals and deviants.

IV. BLACK MALES: CASUALTIES OF THE

"WAR ON DRUGS"

One area where black people, particularly black males, have been labeled criminal is in America's "War on Drugs." n63 Through the government's emphasis on petty drug offenses and "street" dealing for massive law enforcement efforts, our nation's prisons now serve as warehouses for young black males.

A. Law-and-Order Approach

In 1982, President Ronald Reagan declared a "war on drugs" after Americans proclaimed in national polls that drug use was the number one domestic problem. n64 Today, over a decade later, the drug problem continues to be at the forefront of America's political agenda. n65

In 1994, after Republicans swept elections across the nation and gained control of the United States Congress for the first time in forty years, many asserted that the landslide victory turned largely on the Republican campaign promise for a tough law-and-order approach to the drug crisis. Indeed, one author states that next to being called a politician, being soft on crime was every candidate's worst fear. n66  [*640] 

Law-and-order rhetoric has been a predominant theme in national politics for years, n67 and President Clinton has also jumped onto the "law-and-order bandwagon" with regard to the drug problem. During his campaign, Clinton voiced opposition to any changes in American policy toward drugs. n68 In addition, after his election, he vowed to add 100,000 additional police officers to fight the war on drugs on the local level. n69

In response to this "call to arms," the government imposed stricter federal sentencing guidelines and tougher drug laws. Consequently, the "get tough" approach to drugs produces approximately 1.2 million drug arrests per year, primarily for mere possession. n70 In 1991, one-half of first-time prisoners were convicted of drug-related crimes. n71 Drug felony prosecutions, convictions, and incarcerations have also increased dramatically in the last six years. n72 For example, in the state of New York, the rate of felony drug convictions increased by 21.6% in the first quarter of 1989 and the number of prison inmates serving sentences for drug-related convictions increased by over 300% between 1986 and 1990. n73

The main casualties of the drug war have been young black males. In 1984 and 1985, America reached the point where the majority of men in the prisons and jails were minorities - mostly black. n74 Dr. Julianne Malveaux made the following observations:


 
It only takes a walk through a county jail to understand the devastation that drugs deal to minority communities. The majority of those incarcerated are black and brown, and most are there for drug-re-  [*641]  lated offenses. National data suggest that nearly a quarter of black men in their 20s are under supervision of penal authority and drugs are the primary factor. If as many white women were at risk because of the drug influence, we wouldn't wage war on people but instead on drugs. n75

While blacks account for only 12% of our nation's drug users, between 80% and 90% of those arrested for drug offenses are young black men. n76 Another grim factor is that the violence primarily caused by the lucrative drug trade kills 85 out of every 100,000 young black males every year. n77 Today, a black man has a greater chance of being killed on the streets before the age of twenty-five than a United States soldier did in the Vietnam or Persian Gulf wars. n78 Under these dire circumstances, the "War on Drugs" could be more properly labeled the "War on Black Males."

As black men's lives continue to be lost, "the billions of dollars spent in the "War on Drugs" has done virtually nothing to slow, much less stop, the tide of the drug trade." n79 Essentially, our Federal Government has created a system that does not work. By solely focusing on tougher laws and longer prison sentences for drug offenders, the government rarely addresses the myriad of social problems that lead to drug trafficking and drug addiction, such as the lack of housing and employment opportunities, particularly in the inner-city. For example, "a young, poorly educated black man can earn approximately $ 2000 per month tax-free selling drugs on the streets of Washington, D.C. - or roughly $ 30 per hour." n80 Statistically, this is four times the amount of his anticipated income without the sale of drugs. n81 By ignoring these certain social realities, the drug war continues to fight the wrong enemy.

In addition, the inner-city has turned into a war-zone: rival gang and drug violence have become commonplace. Likewise, overly ag-  [*642]  gressive law enforcement tactics further perpetuate violent behavior in these communities:

 
You do not just willy-nilly arrest a father in front of a son, or break into someone's house after some kind of minor drug dealing and throw everyone onto the floor in front of screaming children and upset mothers, and drag people off the way we are doing routinely in our inner cities, without having it come back at you. You create anger. n82
 
In effect, the current militaristic approach to our country's drug problem fosters the very thing it seeks to eliminate - violence. War-like tactics by police have transformed many African-American communities into "free-fire zones." n83 Coupled with the despair and destruction already prevalent in the inner-city, these tactics only exacerbate the hardships many inner-city blacks face.

Moreover, overly agressive police tactics have done little to curb the violence in the inner-city and the violent crime rate continues to rise at unprecedented levels. Ironically, the nation's violent crime rate was actually on the decline until the drug war began. n84 In part, this increase has been attributed to the inherently illogical emphasis of the drug war. For instance, in order to solve a drug crisis, more governmental resources should go into drug prevention, education, and treatment. Instead, our resources are drained as we put more and more dollars into law enforcement. As Powell and Hershenov state, "The misdirected effort of the law and order approach militarizes our entire civil society and treats the minority community as an occupied territory. ... Instead of giving needy communities more clinics, the gov-  [*643]  ernment gives them more police and more prisons." n85 Therefore, the current drug war serves merely as a band-aid: it hides the wound, but it does not mend or heal it.

B. The Drug War's Discriminatory Policies and Laws
 

1. Stiff Penalties for "Petty" Offenses

One of the most critical problems facing black males has been the drug war's blatantly discriminatory policies and laws. In part, the government's policy of imposing stiff penalties for first-time petty offenses contributes to the mass imprisonment of black males. "By selecting petty drug offenses as the target for a massive law enforcement effort, [the government] facilitates the incarceration of large numbers of inner-city blacks." n86 Because many young black males in these communities are "street" or "petty" drug dealers, current drug policies and laws have singled them out as the primary drug offenders. As a result, very little emphasis has been placed on major drug traffickers.

By directing law enforcement efforts towards minor drug offenders, a great number of black men who are convicted and housed in our nation's prisons are not "involved with "serious' drugs, nor are they dangerous." n87 Furthermore, a significant portion of these drug-related arrests involve marijuana, and approximately eighty-five percent of the arrests are for mere possession. n88

One Florida state judge, Henry Adams, Jr., maintains that small-time drug users and dealers, who tend to be black, are targeted; major distributors and money launderers, who tend to be white, go untouched. n89 "I hate to say it, but the government has identified the black community as the place where the problem is ...." n90 Yet the white community is also plagued by the drug epidemic. In fact, the users and dealers of the more "serious" drugs, such as cocaine and  [*644]  heroin, are found primarily in white communities. According to former federal drug czar, William Bennett, "the typical cocaine user is white, male, a high school graduate employed full time, and living in a small metropolitan area or suburb." n91 Moreover, statistics indicate that the majority of all drug users and violent criminals in this country are white. n92 Facts such as these lead to a query - why do the majority of our drug arrests involve black men?

Powell and Hershenov maintain that the disproportionate focus of law enforcement on black offenders derives primarily from media images depicting "gun-toting black teenage gangs, [and] ghetto crack houses where unspeakable horrors take place." n93 Media images such as these are racially biased and highly damaging to black males. Until the drug enforcement agencies rid themselves of these racially biased stereotypes and drug policies, black males will continue to bear the burden for society's drug problem.

2. Sentencing Guidelines

Not only are black males targeted in drug arrests, but sentencing is also racially discriminatory. For example, the sale or use of crack cocaine is punished more severely than that of powder cocaine. The majority of crack users are black, while most cocaine users are white. "Both state and federal sentencing guidelines impose harsher penalties for the possession of crack." n94 Under the federal Anti-Drug Abuse Act of 1986, n95 one gram of crack cocaine is considered the equivalent of one hundred grams of powder cocaine. This disparity, commonly called the "100 to 1 ratio," n96 increases the sentences of black defendants to five times that of their white counterparts. In spite of these invidiously discriminatory laws, "federal courts have nevertheless upheld these sentencing distinctions against equal protection challenges, finding that the guidelines have a rational basis and no discriminatory purpose." n97  [*645] 

However, in one state case, Minnesota v. Russell, n98 the court struck down a law that punished the possession of crack cocaine more harshly than it did the possession of powder cocaine. n99 In so doing, the judge acknowledged the racial disparity in the case, noting that drugs associated with the white community are deemed less serious than drugs that are associated with the black community, "even when the medical evidence indicates that the effects of the drugs are the same." n100 Thus, the judge found the law violative of the Equal Protection Clauses of both the Minnesota and U.S. Constitutions. n101 The Minnesota Supreme Court affirmed on the ground that the statute violated the Equal Protection Clause of the Minnesota Constitution. n102

Similarly, federal laws distinguishing between crack cocaine and powder cocaine should be abolished. Because medical studies show that the effects of both drugs are equally devastating, it is irrational to uphold any distinction between the two. Further, the fact that the use of crack cocaine, which is largely associated with the black community, is punished more severely than cocaine, the white "drug of choice," signals a racially discriminatory purpose. Therefore, sentencing distinctions must be found to be violative of the Equal Protection Clause.

3. Identical Crime, But Different Time

Another problem contributing to the incarceration of black males

involves racially discriminatory sentencing for identical drug offenses. For example, West Palm Beach defense attorney Michael Salnick defended a black male in a first-time drug offense case. Once found  [*646]  guilty, his client was sentenced to three years in prison. n103 In contrast, a white man caught in the same drug sting and also facing his first drug charge, was sentenced to only six months in prison and six years' probation. n104

Salnick remarked, "I thought I got [my client] a great deal, but considering what the white guy got, I guess it really wasn't . . . ." n105 Discrepancies in sentencing for the identical crimes committed by blacks and whites remain an overall problem in our criminal justice system. As evidenced in the Baldus Study n106 conducted in Georgia, black defendants are four times more likely to get the death penalty if they killed a white person than if they killed a black person. n107

In sum, black males are seen as the public enemy in America's "War on Drugs." Through devices such as the law-and-order approach to fighting drugs, and the government's discriminatory drug laws and policies, black males are the main casualties of this war. Not only are black males disproportionately arrested for drug crimes, they have become the profile of America's drug courier.

V. EXAMINATION OF THE DRUG COURIER PROFILE

A. Origins

One of the most critical tools in the nation's "War on Drugs" has been the development and use of the drug courier profile. The drug courier profile was developed in the early 1970's by the DEA in an attempt to stop drug couriers from transporting narcotics between cities. n108 The profile was originally used to help DEA agents identify persons who were carrying large amounts of narcotics on domestic airline flights. n109 Since its inception, however, "the drug courier profile has been expanded from the airline setting to almost all means of transportation." n110 The drug courier profile has also been used to  [*647]  identify criminal suspects in many other settings. The drug courier profile is based upon certain characteristics and conduct thought to be representative of passengers traveling with illegal narcotics. Among the factors considered in these profiles have been race and ethnicity. n111

Because criminal profiles often produce accurate results, such as narcotics convictions, the profile's investigative use continues to be praised by courts.

B. The Criminal Profile as a Predictive Device

The Supreme Court, along with a number of lower courts, has recognized the importance of the profile device in helping law enforcement officials detect criminal activity. n112 Specifically, the drug courier profile has been sanctioned by courts as an effective means of identifying persons transporting illegal narcotics. In United States v. Mendenhall, n113 law enforcement agents stopped the defendant as she was departing from the Detroit Metropolitan Airport. n114 The agents based the investigatory stop upon the following DEA drug courier profile: (1) defendant was arriving on a flight from Los Angeles, a city believed to be the source for much of the heroin brought into Detroit; (2) defendant was the last person leaving the plane, "appeared to be very nervous," and completely surveyed the area where [DEA agents] were standing; (3) defendant did not claim any luggage; and (4) defendant changed airlines for her flight departing from Detroit. n115 Subsequently, the defendant was arrested for drug possession.

In upholding the conviction, the Supreme Court held that the agents' use of a criminal profile did not invalidate the investigatory stop and triggered no Fourth Amendment protection. n116 Joined by  [*648]  Chief Justice Burger and Justice Blackmun in a separate opinion, Justice Powell found that the stop was constitutional because the agents had reasonable suspicion that the defendant was involved in criminal activity. n117 Specifically addressing the use of the drug courier profile, Justice Powell focused primarily on the merits of the profile device. He first pointed to the success of the profile program by citing statistics from United States v. Van Lewis. n118 He concluded by stressing the importance of the highly technical and specialized program developed by the DEA in combating narcotics trafficking. n119 Thus, deferring to the judgment of the DEA agents, he found that agents' expertise of drug traffickers' methods may be relied on in determining reasonable suspicion. n120

A more recent case, United States v. Sokolow, n121 marked the first time the Court took a firm position on the issue of drug courier profiles. n122 In Sokolow, the Court found that because agents had established reasonable suspicion independent of the profile, the use of the drug courier profile did not violate the defendant's Fourth Amendment rights. n123 In addition, the Court noted that any one factor in the drug courier profile alone is not sufficient proof of illegal conduct, but may lead to reasonable suspicion when taken together with "other indicia of criminal activity." n124 Therefore, the Court legitimized the drug courier profile as an investigative tool while limiting its reach by requiring law enforcement officials to show reasonable  [*649]  suspicion based upon several drug courier profile characteristics before detaining a suspect. n125

In effect, the law has sanctioned the use of drug courier profiles. Recognizing criminal profiles as vital tools in assisting law enforcement officials' predictive judgments, courts view these devices as crucial weapons in our nation's drug war.

C. Race as a Legitimate Factor

In general, race has been commonly used as an identifying characteristic in police investigations. Similarly, the case law governing criminal profiles illustrates the use of race as a permissible basis for suspicion. n126 Although some courts have rejected race as a legitimate factor in criminal profiles, n127 in practice, race is readily being used as a factor by law enforcement in establishing criminal suspicion.

Several federal courts have addressed the issue of whether race can be used as a legitimate identifying factor in criminal profiles. While the Supreme Court has not addressed this specific issue, the court did, in United States v. Martinez-Fuerte, n128 uphold the use of race-based roadside detentions of Mexican Americans. n129 Finding this type of action to be minimally intrusive, the Court held that these detentions did not trigger the Fourth Amendment. n130 Thus, the Supreme Court has accepted the use of racially selective policies as long as the intrusion is minor. n131

Federal courts have specifically addressed and sanctioned the use of race as a factor in criminal profiles. United States v. Coleman n132 provides an example of how race often facilitates criminal suspicion. In Coleman, the defendant was stopped by a DEA agent who suspected him of drug trafficking. n133 The agent pointed to the following characteristics which led him to become suspicious of the defendant:  [*650]  (1) defendant was coming from Los Angeles; (2) defendant did not have any luggage; and (3) defendant was black. n134 The district court held the stop unconstitutional for failure to meet the "reasonable suspicion" standard, n135 recognizing race as a legitimate factor to justify a stop if a credible rationale was given "to explain how race ... is significant in the given context." n136 Thus, the court ruled that depending upon the circumstances, race may be considered as a legitimate factor when initiating an investigatory stop.

Race alone, however, has never been held to meet the reasonable articulable suspicion standard. n137 For example, in United States v. Beck, n138 a police officer stopped two black males who were sitting in an automobile parked on the side of the street near a convenience store in a high crime area. n139 After the stop, police observed a marijuana cigarette and other items thrown out of the window of the car. As a result, both men were arrested under the Alabama Uniform Controlled Substance Act. However, the Fifth Circuit held that the initial stop was unjustified because the officer's observations did not meet the reasonable articulable suspicion standard. n140 Moreover, the discovery of the marijuana cigarette "was tainted by the illegal stop" and, therefore, could not justify the arrest of the defendants. Recognizing that the two men were stopped primarily because they were black, the court stated, "There is nothing inherently suspicious about two black men sitting in a parked car, with or without the engine running, on a street in a black neighborhood on a midsummer afternoon." n141 Therefore, the court rejected the use of race as the sole factor in forming criminal suspicion.

While race cannot be the sole factor in initiating such a stop, it becomes evident that police officers or drug agents can easily point to other reasons for their suspicion. Susskind notes that "because courts accept a great deal of other characteristics and types of conduct as  [*651]  legitimate factors for suspicion, the racial factor rarely receives close judicial attention." n142 Hence, the laxity of the reasonably articulable suspicion standard leads to unchecked police discretion that frequently results in racial discrimination.

For example, in United States v. Taylor, n143 officers stopped a black defendant in the Memphis Airport because he fit a drug courier profile. n144 The officers initiated surveillance because of the defendant's "obviously agitated conduct and appearance." n145 At the evidentiary hearing, however, one of the arresting officers admitted that at least seventy-five percent of those stopped had been African American. n146 Unfazed by this admission, the Sixth Circuit held that the stop was constitutional. n147

Judges Keith and Martin wrote compelling dissents. Judge Keith maintained:

The disproportionate number of African Americans who are stopped indicates that a racial imbalance against African Americans does exist and is implicitly sanctioned by the law enforcement agency. The assumption that seventy-five percent of those persons transporting drugs and other contraband through public modes of transportation are African American is impermissible. It flies in the face of reason and legitimizes a negative stereotype of African Americans. n148  [*652] 

Likewise, in dissent, Judge Martin also focused on the case's racial element, noting that when he himself had displayed nervousness or agitation due to flight anxiety, he received little attention from the airport police. n149 Based on this assertion, Judge Martin concluded, "I face little, if any, possibility of being stopped. Perhaps it is my dress and manner; I believe that it is these factors combined with the fact that I am white." n150

In an even more recent Sixth Circuit case, United States v. Jennings, n151 the Court upheld the defendant's conviction in a drug courier profile case. The defendant, a black man, had been randomly stopped for looking suspicious in the Cincinnati-Northern Kentucky Airport. n152 After conducting a full body search, the officers n153 found 820 four-milligram tablets of dilaudid, an illegal substance. n154 In a motion to suppress the evidence, Jennings argued that officers violated the Equal Protection Clause of the Fourteenth Amendment by stopping him simply because he was black. n155 Finding no Equal Protection violation, the court reasoned:
 

It is one thing to sanction suspicionless police sweeps where in "dragnet' fashion, officers descend on randomly gathered groups of individuals to question them and even request permission to search their belongings .... It is quite another matter, however, to uphold police action that targets individuals for stopping and questioning on the basis of their race or ethnicity. Such police behavior is  [*653]  neither random nor indiscriminate. It is particularized and discriminatory. n156

Therefore, this recent federal court decision clearly illustrates that race remains a legitimate factor to be used in drug courier profile cases. Moreover, courts will not likely retreat from this view, especially in light of the fact that the current "War on Drugs" has become so racially polarized. Because black males have been targeted as the main offenders in the drug war, it is difficult to imagine a more powerful weapon than the legitimized use of race in drug courier profiles. In addition, the courts' acceptance of race as a factor in criminal profiles under current Fourth Amendment analysis provides even more ammunition.

D. Fourth Amendment Implications

The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures," and provides that "no Warrants shall issue, but upon probable cause. ..." n157 Twentieth century Supreme Court jurisprudence has created several nuances and exceptions to the warrant and probable cause requirements of the Fourth Amendment based on the Court's balancing individual privacy or possessory interests against state interests in effective law enforcement. For example, in some situations, the Supreme Court interprets the Constitution to permit warrantless searches when made in emergency situations or after a "hot pursuit" of the suspect. n158 In addition, the Court has permitted great flexibility with regard to the probable cause requirement of the Fourth Amendment. By permitting "stop and frisk" intrusions based on less than probable cause, the Court has moved away from a strict interpretation of the Fourth Amendment. In so doing, the Court has opened the door to a wide array of discriminatory police conduct with little redress for the victims of such practices.  [*654] 

1. Terry v. Ohio n159

In the seminal case, Terry v. Ohio, the Supreme Court "created new caveats in the common law rule that the arrest of an individual was a seizure of that person, and could only be justified by a showing of probable cause by the officer making the arrest." n160 In Terry, a police officer observed the defendant and another man pacing back and forth in front of a store. Suspecting that the two were attempting to rob the store, the officer approached the defendants and requested identification. After further questioning, the officer grabbed Terry and frisked him by patting down the outside of his clothing. As a result of the search, the officer found a gun in Terry's coat pocket. Terry and the co-defendant were then arrested. n161

In upholding the conviction, the majority in Terry created what is now commonly referred to as "Terry stops" or "Terry frisks." n162 Recognizing the public interest in safety and effective law enforcement, the Court developed an intermediate ground, a compromise between a citizen's Fourth Amendment rights and the needs of law enforcement. n163 Hence, Terry allows police to stop citizens and perform a weapons frisk based on a level of suspicion lower than probable cause. n164 In these instances, police are permitted to conduct a brief, investigatory stop, so long as the stop is supported by specific, articulable facts which give rise to reasonable suspicion. n165 Further, if the officer has reasonable suspicion that the suspect is armed, the officer may frisk the person for weapons. n166 If the Terry stop and frisk then give rise to probable cause of a crime, the officer may arrest the suspect. n167 The Terry rationale has also been applied to stops of automobiles. n168  [*655] 

2. Discrimination Against Black Males - the "Out-of-Place" Doctrine, "Random" Investigatory Stops, and Street Sweeps

The combination of many courts' acceptance of race as probative of criminal activity and the erosion of the probable cause requirement in Terry has resulted in many discriminatory law enforcement practices against black males. Contributing to these practices is the fact that police frequently "lower their standards of investigation when a suspect has been described as a minority, thus intruding upon a greater number of individuals who meet [a certain] description." n169 Accordingly, law enforcement practices such as the "out-of-place" doctrine, "random" investigatory stops, and street sweeps indicate how race is often the sole predictor in deciding which criminal suspects to detain.

a. Out-of-Place Doctrine

One law enforcement practice that has resulted in discrimination against black males is the "out-of-place" doctrine. Under this doctrine, a law enforcement officer becomes suspicious when a person of one race or ethnicity is seen in an area predominated by persons of a different race or ethnicity. n170 When this event occurs an investigatory stop may follow.

The out-of-place doctrine has been sanctioned by several courts. In State v. Dean, n171 the Arizona Supreme Court upheld the conviction of a Hispanic defendant who had been detained, in part, because he was in a white neighborhood. n172 The court stated:

 
While detention and investigation based on ethnic background alone would be arbitrary and capricious and therefore impermissible, the fact that a person is obviously out of place in a particular  [*656]  neighborhood is one of several factors that may be considered by an officer and the court in determining whether an investigation and detention is reasonable and therefore lawful. n173
 

Therefore, the court allowed race to be a permissible, although limited, factor in making investigatory stops. One commentator adds, "Although few federal appellate courts have explicitly agreed with the Arizona Supreme Court that race can be used in this way ... the "out of place' principle [has] by implication [been accepted]." n174

Consequently, the recognition of the out-of-place doctrine as a valid police practice has produced discriminatory actions against black males. In Kolender v. Lawson, n175 for example, the defendant, a black male, was detained or arrested on approximately fifteen occasions between March 1975 and January 1977 pursuant to a state vagrancy statute. n176 The statute n177 required persons who "loiter and wander ... without apparent reason ... to identify [themselves]" to a policeman." n178 Although the statute was struck down as unconstitutionally vague, the Court failed to address the obvious racial issue: Lawson, a black man, had been stopped each time for looking "out of place" in white neighborhoods.

By allowing the use of race in investigatory stops, or failing to condemn such a practice, many courts have accepted the out-of-place doctrine as an important predictive device. In many investigatory stops, courts seem unwilling to carefully scrutinize police officers'  [*657]  judgments. n179 Because so much latitude is given to police officers, they can easily point to other factors besides race that contributed to their suspicion.

The acceptance and use of the out-of-place doctrine have proven to be devastating to the minority community. For instance, there are far more predominantly white areas than predominantly black areas. Therefore, minorities will be deemed "out of place" more often than whites. Coupled with the fact that many police officers admit that race is a factor used in determining who to detain, the out-of-place doctrine is being used to stop black men. The saying, "being in the wrong place at the wrong time" holds especially true for black males.

In addition to the racial implications, the out-of-place doctrine may impinge upon black males' constitutional due process rights, specifically the rights to travel and associate. By making certain areas "off limits" to black males, this segment of the population is restrained from moving freely in our society. Further, by confining blacks to predominantly black areas, blacks are limited in their associations with members of other races and ethnic groups.

Along with these physical and geographical limitations, the out-of-place doctrine can also be psychologically debilitating to black males. For instance, fear, paranoia, or hatred may result from the feeling of being under constant surveillance in the majority of areas in this country.

b. Random Investigatory Stops

Random investigatory stops have also resulted in discrimination against black males. "Random" stops usually occur in connection with drug courier profiles, although they also occur in other criminal investigations as well. In essence, "random" investigatory stops are Terry stops and frisks. Usually, the confiscation of drugs and weapons are the targets of such stops.

Terry stops and frisks are typically viewed by courts and law enforcement as "minimal intrusions" on the defendants. When combined with a discriminatory impetus by police officers, however, these minimal intrusions can turn into highly intrusive and invasive searches. For example, black males are routinely stopped and searched by law enforcement officials in many cities throughout the  [*658]  country. In Florida, the state highway patrol at one time instructed its officers to be suspicious of persons who "did not fit the vehicle." n180 Among those listed as suspicious were blacks who drove Porsches, and drivers belonging to "ethnic groups associated with the drug trade." n181
Similarly, in New Jersey, the highway patrol detained blacks driving cars with out-of-state plates. As a result, although less than 5% of vehicles observed by police officers during the course of a week were occupied by black people and had out-of-state plates, approximately eighty percent of the arrests made in 1988 involved black motorists driving out-of-state vehicles. n182

In a highly publicized investigatory stop in Los Angeles, 1984 Olympic gold medalist Al Joyner was stopped and "ordered to his knees by ten white police officers who suspected him of stealing a car." After calling in Joyner's license plate number, the officers realized they had believed the plates belonged to another vehicle. Joyner was then released. After driving only a couple of blocks, he was stopped again by the same police officers. This time, he was detained because he was a suspect of a hit-and-run that involved an African-American man driving a burgundy Mazda RX7. n183 Joyner's car was a burgundy Nissan 300 SX. As a result of these investigatory stops, Joyner filed a racial discrimination suit against the Los Angeles Police Department and was awarded $ 51,501. n184

Discriminatory stops such as these are not isolated incidents. Rather, they occur on a wide scale making it difficult today to find a black man who has not been "randomly" detained or searched.

c. Street Sweeps

One of the most glaring of these discriminatory police practices involves street sweeps. During street sweeps, police officers occupy minority communities and routinely stop and search masses of people for drugs. Although not limited to drugs, black males can be rounded  [*659]  up for virtually any crime. Moreover, when street sweeps are performed, arrests are often made without probable cause. n185

In Davis v. Mississippi, n186 twenty-four black men were rounded up by police in connection with a rape where the only information given by the victim was that the rapist was a young black male. n187 Similar incidents have occurred in most cities throughout the country. For example, in Boston, the police, claiming to have a "secret list of known gang members," assembled and searched large numbers of minority youths. n188 In Manhattan, the Chief of the Organized Control Bureau led 150 officers to an upper-Manhattan community, Washington Heights, for a street sweep. Police sealed off an entire block and held virtually "all of the 100 people who were present there for up to two hours, during which time police taped numbers on the chests of those arrested, took their pictures and had them viewed by undercover officers." n189 As a result of the raid, police made only twenty-four felony and two misdemeanor arrests, suggesting that there was no probable cause to seize those who were involved in the sweep. n190

Another device used in street sweeps has been the creation of "black lists." For instance, on September 27, 1992, in Oneonta, New York, police created a black list after a seventy-seven year old white woman was attacked. n191 The only clue given in the case was that the attacker was a black man with a "stiletto-style" knife whose arms and hands were cut when she fended him off. n192 Thereafter, with the full cooperation of university officials, police created the black list from a roster of all black and Hispanic males registered at the State University of New York at Oneonta. Police then tracked down all of the black and Hispanic students in their dormitories, jobs, and on the streets to question them about their whereabouts during the crime, and also to examine their arms and hands. n193 One witness stated that "any black man walking down the street, they would grab his  [*660]  hands.... The only probable cause they had was, "you're black, you're a suspect.' " n194

In street sweeps, individualized suspicion and probable cause have been eliminated from police procedure. As a result, minorities, particularly black males, may become suspects at any time. During street sweeps, in particular, black males can be randomly rounded up simply because they are black or live in a minority or "high crime" community.

In sum, many courts have sanctioned the use of race as a legitimate factor in developing drug courier or criminal profiles. Taken together with the courts' current Fourth Amendment interpretation that creates exceptions to the warrant and probable cause requirements, the law has provided the framework for abusive law enforcement practices such as the out-of-place doctrine, random investigatory stops, and street sweeps. In such abusive practices, black males are readily associated with criminal activity without any individualized suspicion. As a result, black men have become the profile of crime in America.

VI. CRITICISM

The Fourth Amendment guarantees that citizens shall be protected from all "unreasonable searches and seizures," and that "no Warrants shall issue, but upon probable cause ...." n195 In the context of Terry stops and frisks, police officers may briefly "stop and frisk" a suspect without a warrant or probable cause if the encounter is brief and is justified by reasonable articulable suspicion. n196 A Terry stop involves some restraint of an individual's liberty and thus constitutes a "seizure" under the Fourth Amendment. n197 Because the Fourth Amendment prohibits only unreasonable seizures, a Terry stop will be held constitutional if it is reasonable. n198 The reasonableness of a Terry stop must meet a low threshold test often called a "reasonable articul-  [*661]  able suspicion" standard. n199 Thus, police must point to specific and articulable facts which reasonably warrant the intrusion. n200

In the context of Terry stops, current Fourth Amendment jurisprudence is harmful to minorities in three ways. First, "when the level of intrusiveness is slight, ... courts will more loosely evaluate the extent to which the action advances a legitimate law enforcement objective." n201 Moreover, the level of intrusiveness is considered only in terms of slight deprivations of autonomy. Second, Terry stops cause racial harm. For instance, in United States v. Martinez-Fuerte, n202 where race-based roadside detentions were upheld, the Supreme Court considered the action to be so minimally intrusive that it did not trigger the Fourth Amendment. n203 In his dissent, Justice Brennan criticized the majority's analysis for failing to acknowledge the racial harm - the racially selective policy which blatantly singled out Mexican Americans. n204 In addition, Justice Brennan expanded the notion of intrusiveness beyond the mere inconvenience of being pulled to the side of the road. He focused on the racial injury inflicted by the roadside detentions, stating that the experience of being arbitrarily detained "is particularly vexing for the motorist of Mexican ancestry who is selectively referred, knowing that the officer's target is the Mexican alien. That deep resentment will be stirred by a sense of unfair discrimination is not difficult to foresee." n205 Therefore, as one commentator notes, "Justice Brennan thus recognized that by retaining a narrow theory of the Fourth Amendment harm, the Court upheld only slightly intrusive police behavior that nevertheless inflicted great racial harm ...." n206

Similarly, Terry stops, specifically those involving street sweeps, the out-of-place doctrine, and random drug stops, target a racial minority - black males. Because these stops occur frequently, the racial harm inflicted on black men is great. Such random stops have led many black males to believe that by just being a black male they be  [*662]  come an automatic target of suspicion for virtually any crime. The resentment expressed by black males as a result of this unfair treatment is echoed throughout the media, particularly in rap lyrics:
 
F[ - ] the police coming straight from the underground. A young nigger got it bad "cause I'm brown. I'm not the other color. Some police think They have the authority to kill a minority ... F[ - ]in' with me "cause I'm a teenager, With a little bit of gold and a pager Searching my car, looking for the product. Thinking every nigger is selling narcotics. n207

This mistrust, anger, and fear of police authority by black males cannot be quickly erased regardless of how minimally intrusive an investigatory stop may be.

Additionally, in theory, Terry stops have been hailed as minimal intrusions - brief and temporary in nature. The growing trend of detaining citizens for long periods of time, such as in street sweeps, gang sweeps, and drug sweeps, indicates that these intrusions have become anything but minimal. The ritual harassment of black males by law enforcement, particularly in the inner-city, occurs frequently and routinely and cannot be described as a "minimal intrusion." n208

Third, Terry stops are harmful to minorities because they become pretext for racially discriminatory actions by police. Because courts are extremely deferential to the judgment of police officers, an officer can point to many aspects of a suspect's conduct to show that in the totality of the circumstances, the conduct warranted police suspicion. n209 In practice, police cite virtually any circumstance to justify the suspect's detention, n210 and courts rarely probe into police justifications for a stop - making it virtually impossible to prove racial discrimination.

Another Terry-related problem for minorities involves on-the-street police-citizen encounters. n211 An encounter between a police officer and a citizen implicates the Fourth Amendment only when there  [*663]  is a seizure. n212 To determine whether a seizure has occurred, many courts use the United States Supreme Court decision, United States v. Mendenhall, n213 where the court held that a "person has been "seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he [or she] was not free to leave." n214 If no seizure has taken place, the Fourth Amendment is not implicated.

Use of the reasonable person standard in determining whether a seizure has occurred has been criticized because it "ignores the distinct experiences of racial minorities in the criminal justice system." n215 Given the history of police brutality against blacks in this country, as well as the present climate of fear and distrust toward police officers, very few black citizens would feel free to ignore an officer. n216 Further, black males, often targets of police harassment and brutality, will not feel free to leave a police officer without considering the possible repercussions - bodily injury or death. n217

In sum, African-American men have become fair game for police harassment whenever they travel in public, be it by plane, car, bus, train, or foot. n218 In accepting this stark realization, courts must be willing to address the unique position occupied primarily by African-American men in Fourth Amendment jurisprudence, particularly in Terry stops. Specifically, the Fourth Amendment concept of harm must be expanded to address the racial harm resulting from unfair treatment of black males by law enforcement officers. In addition, the "consent" and "free-to-leave" doctrines prove unworkable given the racially abusive history between police and minorities. Further, many black males remain extremely fearful of police and with good reason. Until courts become willing to acknowledge certain racial realities in Fourth Amendment law, black males will continue to be vict

ims of unreasonable searches and seizures.  [*664

VII. CONCLUSION

African-American men are viewed as the profile of crime in America on virtually all fronts - citizens' and police officers' suspicions, the drug war's current law enforcement efforts, and the use of race in criminal profiles. As long as race continues to be considered the primary predictor of criminal propensity, discrimination against black males will continue unabated.


As members of the legal profession, we must recognize that our society is not color-blind. Civil rights laws reflect this very notion. Constitutional law, particularly Fourth Amendment interpretation, must also be willing to acknowledge that race has become a significant, if not determinative, factor in deciding who to detain or arrest. n219 Moreover, until courts acknowledge and condemn the use of race in law enforcement's initial stages of forming criminal suspicion - the legitimated use of race in criminal profiles - the image of the black man as a menace to society will prevail.




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