Once upon a time, back before the Warren Court, criminal procedure and racial justice were adjacent hinterlands in constitutional law's empire. In 1954, the fifth edition of Dowling's constitutional law casebook contained one chapter on "procedural due process" in which six of the eight cases were about criminal justice,(1) and three of those -- Powell v. Alabama,(2) Moore v. Dempsey,(3) and Bailey v. Alabama(4) -- were as much about race as they were about crime. A few pages later, two slender chapters on the "national protection of civil rights" and "equal protection of the laws" contained seven and nine decisions, respectively, a substantial number of which were criminal cases.(5) By 1965, the seventh edition of Dowling and Gunther contained a dramatically expanded chapter on "procedural rights in the administration of criminal justice."(6) Questions of civil rights and equal protection now appeared, not only in the section on individual rights, but also in the earlier, more prominently placed discussion of governmental power.(7) But by 1975, in the ninth edition of Gunther, while civil rights issues were at the forefront of the discussion of governmental power, criminal procedure had disappeared entirely. As the preface explained, "[T]hat was once the fate of administrative law... has now become appropriate for the constitutional requirements of criminal procedure."(8) Although Powell, Moore, and Bailey remain in the table of cases, their text is long gone.
The coincident expatriation of criminal procedure and apotheosis of equal protection tracked developments in the Court's jurisprudence. Today, the Court's segregation of criminal justice issues from more general racial issues plays out in the strikingly different equal protection claims the courts face in the civil and criminal arenas. The major noncriminal equal protection claims on the docket today center on affirmative action: how far can the political branches go in providing benefits to racial minorities?(9) Claims of discrimination against minorities are usually raised under more plaintiff-friendly statutory standards.(10) At the same time, the major equal protection claims in the criminal justice system concern whether the government continues to discriminate in the old-fashioned way against racial minorities: in police practices, charging decisions, sentencing, or the very definition and classification of criminal offenses.
Although the Supreme Court's initial forays into criminal procedure surely had been motivated in large part by concern with the racial unfairness of southern criminal justice, the Court developed a series of formally race-neutral rules for constraining police, prosecutors, and the courts. Even when the Court addressed racial questions directly, it deployed a set of analytic and regulatory techniques -- such as the Sixth Amendment's fair-cross-section requirement or the exclusionary rule -- that were distinctive to the criminal justice process rather than using the Equal Protection Clause.
Starting about ten years ago, however, after roughly a quarter century of autonomous development, the Supreme Court returned to the question of how the Equal Protection Clause regulates criminal justice. In Batson v. Kentucky,(11) the Court applied standard doctrinal analysis to the question whether prosecutors could use their peremptory challenges to strike jurors on the basis of race. In McCleskey v. Kemp,(12) the Court applied standard doctrinal analysis to the question whether Georgia administered its death penalty in a racially discriminatory manner. Virtually no one (with the possible exception of Lewis Powell, who wrote the majority opinions) was satisfied with the results and reasoning in both cases.
In 1996, the Court confronted another pair of cases raising the question of how to deal with racial discrimination in the criminal justice process. In Whren v. United States,(13) the Court addressed the question of police motivation under the Fourth Amendment. The Court held that as long as the police have probable cause to believe that a motorist has violated a minor traffic regulation, they can stop his car, even if their subjective motivation for the stop is to investigate a nonvehicular crime for which they lack the requisite probable cause or reasonable suspicion. The Court acknowledged that there might be a danger of racially discriminatory pretextual stops. And it agreed that if the police stopped only black motorists it would violate the Constitution: "But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.(14)
A month earlier, in United States v. Armstrong,(15) the Court had illustrated exactly how slender a constitutional basis the Equal Protection Clause might provide. There, the Court held that a defendant is not entitled to any discovery regarding a claim of racially selective prosecution unless he first makes a threshold showing that the government has declined to prosecute similarly situated suspects of other races. The Court explained that "the requirements for a selective-prosecution claim draw on `ordinary equal protection standards,'" including the "similarly situated" requirement.(16) Buried in a footnote was a provocative question. Suppose a black defendant were to show that similarly situated white defendants had not been prosecuted. Suppose he were even able to show that this was because of a prosecutor's racist sentiments. What then? "We have never determined," the Court observed, "whether dismissal of the indictment, or some other sanction, is the proper remedy if a court determines that a defendant has been the victim of prosecution on the basis of his race."(17)
This footnote captures the ambivalence of the Court in trying to articulate remedies for equal protection violations in the criminal procedure context. The four conventional remedies for violations of criminal procedure protections have been exclusion of evidence; reversal of convictions (which normally permits retrial); dismissal of indictments in egregious cases; and separate civil damages actions. Whren and Armstrong raise the possibility that the first and third of these remedies, exclusion and dismissal, will be unavailable for claims of racial discrimination. And the second, reversal, is often unavailing, at least for claims of racial discrimination in the selection of suspects or defendants, where the constitutional violations occur outside the trial process itself; in these cases, the problem is not with the defendant's trial, but with his being brought to trial in the first place. Moreover, our experience over the last decade with Batson claims -- where reversal and retrial has been the standard remedy -- suggests that here, too, traditional criminal procedure remedies do not translate easily into the equal protection context. Finally, the fourth remedy, damages, while theoretically available, is often foreclosed as a practical matter, given the fact that the victims of racial discrimination in the criminal process are often unsympathetic plaintiffs.
The goal of this article is to explore the complications that arise in the definition of rights and in the operation of remedies when the Equal Protection Clause is used in criminal adjudication. I begin by explaining why the apparently minor doctrinal move in Whren from the Fourth Amendment to the Equal Protection Clause has important consequences. In particular, it raises the question whether the exclusionary rule remains an available remedy for police misconduct. I argue that the exclusionary rule, a traditional criminal procedure remedy, may often be superior to traditional equal protection remedies for remedying equal protection violations in the criminal procedure context. Here, I apply well-developed arguments about the relative benefits of the exclusionary rule to the race-discrimination context. The most plausible alternative to using the exclusionary rule to influence police behavior is to use [sections] 1983 lawsuits,(18) either for damages or injunctive relief, but these may be inadequate tools. I then turn to Batson claims. Here, my argument focuses on the converse problem: the remedies are too effective and courts have responded to the stringency of the remedial scheme by implicitly restricting the underlying right. General criminal procedure doctrine led the courts to a rule of per se reversal for Batson violations. Because this rule may be substantially overinclusive -- requiring reversal in cases where the exclusion of particular jurors is unlikely to have affected the outcome -- courts have strained not to find a violation in the first place. Finally, I consider the problem of selective prosecution. I suggest that Armstrong and McCleskey deploy what the Court calls "traditional equal protection principles" essentially to strip the concept of selective prosecution of virtually any real-world effect: they define away the right and the remedy simultaneously.
THE EXCLUSION OF EXCLUSION?
One of the arguments raised by the petitioners in Whren was that permitting the police "to use traffic stops as a means of investigating other law violations, as to which no probable cause or even articulable suspicion exists" posed a serious threat of racial discrimination.(19) Whren's fear turns out to be well founded. There is a voluminous scholarly and popular literature on the phenomenon of "Driving While Black" -- the propensity of police to stop a disproportionate number of minority motorists who are acting no differently than their white counterparts who are not pulled over.(20) The most widely discussed examples involve the too-aptly named "Selective Enforcement Team" of the Volusia County, Florida, sheriff's Office(21) and the Maryland State Police.(22) An Orlando Sentinel investigation...