“The Supreme Court has now closed the courthouse doors to claims of racial bias at every stage of the criminal justice process, from stops and searches to plea bargaining and sentencing. The system of mass incarceration is now…thoroughly immunized from claims of racial bias.” p.174
“Ultimately, these stop-and-frisk operations amount to much more than humiliating, demeaning rituals for young men of color, who much raise their arms and spread their legs, always careful not to make a sudden move or gesture that could provide an excuse for brutal—even lethal—force. Like the days when black men were expected to stop off the sidewalk and cast their eyes downward when a white woman passed, young black men know the drill when they see the police crossing the street toward them; it is a ritual of dominance and submission played out hundreds of thousands of times each year.” p.170
In the second half of Chapter 3, Professor Alexander revisits the issue of police discretion. She notes that the drug could have been fought in white communities – in suburbs and fraternity houses – where there are plenty of illegal drugs. But it has not been; it has been fought in urban neighborhoods where poor people of color who lack political power are highly concentrated. Furthermore, the reasons commonly used to defend taking the drug war to the ‘hood, such as high crime rates, citizen complaints, violence, and the efficiency of policing open air drug markets as opposed to the sales going on behind the closed doors of gated communities, do not hold up under the scrutiny of actual data. A study in Seattle showed all of these reasons to be based on a racialized conception of the drug problem rather than any accurate numbers.
Despite this study and others like it, lawsuits alleging racial bias in policing are virtually impossible thanks to the standing requirement. The Supreme Court has determined that to have standing to bring such a suit, a plaintiff would have to show that he was certain to suffer discrimination at the hands of the police. This standard was set in U.S. v. Lyons in which the plaintiff sued to end the LAPD’s use of the chokehold after suffering permanent damage from a chokehold administered during a stop for a broken taillight. According to Professor Alexander’s analysis, even though Lyons did not actually claim racial bias, the standing requirement set by the Court in the Lyons opinion for non-biased police brutality is so high that a claim of racial bias has no chance of meeting it. She also notes that suits for monetary damages are also usually off the table since state police departments, and typically city police as well, are immune from suit unless they have specific policies that are openly racist.
In fact, Prof. Alexander notes, the Supreme Court has said that race can actually be used as a legitimate consideration in discretionary decisions by the police. In U.S. v. Brignoni-Ponce, the Supreme Court stated that the prevalence of undocumented Mexicans in the United States made a person’s Mexican appearance legitimate grounds for a stop. This legitimizes the kind of police behavior that was found in Operation Pipeline, a drug interdiction effort on highways in Maryland and New Jersey. A study of Operation Pipeline showed that people of color were a small percentage of the highways’ drivers but accounted for nearly half of the stops made and the majority of searches and arrests made—even though white drivers were actually more likely to carrying illegal drugs in their vehicles. Similar results are seen in both studies of traffic stops in other parts of the country and studies of pedestrian stops. One result of the many arrests resulting from these discriminatory stops is then entry of a vast number of people, particularly men, of color into law enforcement databases. Entry into a law enforcement database means you are easier to track and more susceptible to subsequent arrest.
Prof. Alexander ends Chapter 3 by noting again that the courthouse door is closed to claims of racial bias. In the wake of the Alexander v. Sandoval decision that Title VI of the Civil Rights Act of 1964 did not allow for private rights of action, the last possible avenue for suits alleging racial discrimination in the criminal justice system was closed. Only the federal government can sue to enforce the requirements of Title VI, and it has little inclination to do so.
The standing requirement is meant to help keep the judicial system from interfering in situations better addressed by other branches of government, i.e., where the plaintiff is not likely to suffer imminent harm to their constitutional rights. Who should determine the constitutionality of the chokehold? Do you agree with the Supreme Court that someone who has suffered from a chokehold by police doesn’t have standing to argue that the chokehold is unconstitutional unless they can show they are highly likely to be subjected to it again? Does this approach to determining constitutional claims make sense?