Each one of those stops,
for me, had nothing to do with breaking the law. It had to
do with who I was. . . . It's almost like somebody pulls
your pants down around your ankles. You're standing there
nude, but you've got to act like there's nothing happening.
It has happened to actors
Wesley Snipes, Will Smith, Blair Underwood, and LeVar
Burton. It has also happened to football player Marcus
Allen, and Olympic athletes Al Joyner and Edwin Moses.
African-Americans call it "driving while
black"--police officers stopping, questioning, and even
searching black drivers who have committed no crime, based
on the excuse of a traffic offense. And it has even happened
to O.J. Simpson lawyer Johnnie Cochran.
In his pre-Simpson days,
Cochran worked hand-in-hand with police officers as an
Assistant District Attorney in Los Angeles, putting
criminals behind bars. Cochran was driving down Sunset
Boulevard one Saturday afternoon with his two youngest
children in the back seat when a police car stopped him.
Looking in his rearview mirror, Cochran got a frightening
shock: "the police were out of their car with their
guns out." The officers said that they thought Cochran
was driving a stolen car, and with no legal basis
they began to search it. But instead of finding evidence,
they found Cochran's official badge, identifying him as an
Assistant District Attorney. "When they saw my badge,
they ran for cover," Cochran said.
The incident unnerved
Cochran, but it terrified his young children. "[The
officers] had their guns out and my kids were in that car
crying. My daughter said, 'Daddy, I thought you were with
the police.' I had to explain to her why this
Cochran's experience is a
textbook example of what many African-American drivers say
they go through every day: police using traffic offenses as
an excuse to stop and conduct roadside investigations of
black drivers and their cars, usually to look for drugs.
Normally, if police want to conduct stops and searches for
contraband they need probable cause or at least reasonable
suspicion that the suspect is involved in an offense. But
with the Supreme Court's recent cases involving cars,
drivers, and passengers, none of this is necessary. Traffic
offenses open the door to stops, searches, and questioning,
based on mere hunches, or nothing at all. And
African-Americans believe they are subjected to this
treatment in numbers far out of proportion to their presence
in the driving population.
But is this just a problem
of perception, the product of years of mistrust between
police and minorities? Is it a problem only in large urban
centers? Are these claims supported by statistical evidence,
or are they merely strong feelings born of anecdotes?
To answer these questions,
a number of African-Americans--all middle class, taxpaying
citizens--described their experiences in interviews. The
interviewees were drawn from Toledo, Ohio, an almost
prototypical medium-sized Midwestern city. Statistics from
courts in Toledo and in three other Ohio
cities--Dayton, Akron, and Columbus--were analyzed. Research
from other areas of the country was also reviewed.
The interviews reveal that
African-Americans strongly believe that they are stopped and
ticketed more often than whites, and the data from Ohio and
elsewhere show that they are right. For example, the Toledo
Police Department is at least twice as likely to issue
tickets to blacks than to all other drivers. The numbers in
Akron, Columbus and Dayton are similar: blacks are about
twice as likely to get tickets as those who are not black.
When adjusted to reflect the fact that 21% of all black
households do not own vehicles, making blacks less likely to
drive than others, these numbers increase to even higher
levels. All of the assumptions built into this statistical
analysis are conservative; they are structured to give the
law enforcement agencies the benefit of the doubt.
Statistics from cases in New Jersey and Maryland are
similar. Sophisticated analyses of stops and driving
populations in both states showed racial disparities in
traffic stops that were "literally off the
Police departments engage
in these practices for a simple reason: they help catch
criminals. Since blacks represent a disproportionate share
of those arrested for certain crimes, police believe
that it makes sense to stop a disproportionate share of
blacks. Lt. Ernest Leatherbury, a spokesman for the Maryland
State Police (a department that has been sued twice over
race-based traffic stops), explained to the Washington Post
that stopping an outsized number of blacks was not racism,
but rather "an unfortunate byproduct of sound police
policies." Carl Williams, Superintendent of the New
Jersey State Police, put the matter even more bluntly in an
interview with the Newark Star-Ledger. With narcotics today,
he said, "it's most likely a minority group that's
involved with that." In other words, officers may be
targeting blacks and other minorities, but this is a
rational thing to do.
This type of thinking
means that anyone who is African-American is automatically
suspect during every drive to work, the store, or a friend's
house. Suspicion is not focused on individuals who have
committed crimes, but on a whole racial group. Skin color
becomes evidence, and race becomes a proxy for general
criminal propensity. Aside from the possibility of suing a
police department for these practices--a mammoth
undertaking, that should only be undertaken by plaintiffs
with absolutely clean records and the thickest skin-- there
is no relief available.
Pretextual traffic stops
aggravate years of accumulated feelings of injustice,
resulting in deepening distrust and cynicism by
African-Americans about police and the entire criminal
justice system. But the problem goes deeper. If upstanding
citizens are treated like criminals by the police, they will
not trust those same officers as investigators of crimes or
as witnesses in court. Fewer people will trust the police
enough to tell them what they know about criminals in their
neighborhoods, and some may not vote to convict the
guilty in court when they are jurors. Recent polling data
show that not just blacks, but a majority of whites believe
that blacks face racism at the hands of police.
"Driving while black" has begun to threaten the
integrity of the entire process not only in the eyes of
African-Americans, but of everyone.
This Article begins in Part
I by discussing the experiences of three of the
African-Americans who were interviewed for this Article.
Their stories, selected not because they are unusually harsh
but because they are typical, speak for themselves. The
frightening and embarrassing nature of the experiences, the
emotional difficulties and devastation that often follow,
and the ways that they cope, bring to life the statistics,
which are discussed in Part II. Part
III then shows how the problem is connected to larger
issues at the intersection of criminal justice and race. Part
IV puts the problem of "driving while black"
into its legal context and explains how the law not only
allows but encourages these practices. Finally, Part
V concludes with a discussion of some approaches that
might be taken to address the problem.
COST OF GETTING STOPPED