Whren's flawed assumptions regarding race, history, and unconscious bias.

AuthorCarter, William M., Jr.
PositionWhren at Twenty: Systemic Racial Bias and the Criminal Justice System

My heartfelt thanks to CWRU Law School and the Law Review for having me here. I am an alumnus of CWRU Law, a former faculty member here from 2001-07, and a native Clevelander, so it's always nice to be back home.

This symposium marks the 20th anniversary of Whren, (1) which happens to coincide with the 20th anniversary of my first year of law school here in this building. Shortly before I entered law school in the spring of 1995, Adarand v. Pena (2) was decided. I had come to law school with very idealistic notions about race, social justice, and criminal law: it's fair to say that Adarand and Whren bracketing my 1L year was a dash of cold water about the law's--and the Court's--willingness to grapple with persistent racial inequality in a forthright or effective manner.

My 1L year here began with, on the one hand, Adarand, which by applying strict scrutiny to affirmative action devalued the existence of structural inequalities that might permit the government to intervene in order to create a level playing field. (3) On the other hand, at the end of my first year of law school, the Whren decision was issued, which, by allowing pretextual searches and seizures even if racially motivated, devalued the lived experiences of people of color and gave license to racial profiling, at least as far as the Fourth Amendment is concerned. (4) Thus, in addition to being an important jurisprudential anniversary, the Whren decision is also an intellectual anniversary for me personally as I reflect upon how the decision shaped my view of these issues both as a practitioner and then subsequently as an academic.

I want to talk very briefly about some of the flaws in Whren as a matter of constitutional history, doctrine, and social psychology. Those issues have been discussed throughout this symposium, (5) so I will only touch upon them briefly. I will then discuss some legal developments in equal protection doctrine post- Whren. Finally, I will suggest a possible path forward. A great deal of my scholarship over the years has been in the field of the Thirteenth Amendment. (6) I will, therefore, suggest that we can reconceptualize racially motivated, pretextual police encounters as a Thirteenth Amendment issue rather than as either a Fourth Amendment issue or a Fourteenth Amendment issue.

First, as to Whren itself: it is very striking that there is not a single word in Whren specifically referencing the founding history or the Reconstruction Amendments' Framers' intent with regard to whether pretextual searches or seizures would have been considered "reasonable." To be sure, the Whren opinion relied largely upon its interpretation of the Court's earlier precedents; accordingly, the Court may not have found it necessary to engage in a lengthy historical exegesis in order to justify the result that it reached. (7) Nonetheless, there is significant reason to question whether the Framers and the Colonial citizenry that respectively wrote and ratified the original Constitution would have believed that the Fourth Amendment placed no restraints upon governmental officials' ability to carry out roving searches and seizures based upon the merest pretext, given their own experiences with the colonial forces of the British Crown in this regard. (8) Further, there is ample evidence that the Fourteenth Amendment's Framers specifically considered race-based pretextual searches and seizures to be violative of the "new birth of freedom" (9) that the Reconstruction Amendments were designed to bring about, since such searches, seizures, and other restraints on blacks' freedom of movement were key aspects of slavery and the legalized white supremacy that slavery both engendered and relied upon. (10)

It is also worth noting how Whren fits within the Court's broader equal protection doctrine regarding the role of motive in constitutional analysis. Whren holds that "[s]ubjective intentions play no role in ordinary probable-cause Fourth Amendment analysis." (11) Thus, under the Fourth Amendment as interpreted in Whren, subjective motive is irrelevant to the assessment of whether the government's action is constitutional. On the other hand, the Court's equal protection doctrine has simultaneously placed increasing (indeed, determinative) emphasis on the relevance of motive in cases where plaintiffs have sought to advance the interests of racial minorities, such that proof of subjective discriminatory motive is now the sine qua non of equal protection claims. (12) Read together, the Court's doctrine seems to be that the role of motive in constitutional analysis turns upon how it will affect the outcome. That is: if disallowing proof of motive means that claims advocating the interests of racial minorities will fail, then proof of motive is deemed irrelevant; (13) if requiring proof of motive means that claims advocating the interests of racial minorities will fail, then proof of motive is deemed required. (14) A skeptical observer could conclude that that's a doctrine of convenience rather than of principle.

Moreover, Whren is particularly troubling in giving no attention to issues of social psychology, unconscious bias, and the historically grounded implicit associations between race and widespread stereotypes regarding propensity for criminality. (15) Combining the essentially unfettered discretion to conduct pretextual searches and seizures that Whren licenses with what we know about the history and psychology of the conflation of race and criminality, one is left to wonder: what did the Court think was going to happen post- Whren! The Court could not be surprised that Whren would predictably lead to an increase in racial profiling and increasing tension in police-community relations. (16) To be clear, the problem is not necessarily that any individual law enforcement officer consciously singles out people of color due to his or her personal animus against them. I do not assume that police officers are racist; I do believe, however, that in the absence of proactive training and interventions, they are no more immune to unconscious bias than the rest of us.

To be sure, the Whren opinion gives...

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