BOOK: NO Equal Justice, Race and Class in the American Criminal Justice System 4/24/99

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In recent months, various criminal justice policies and practices, and the racially disparate impacts they produce, have begun to come to the fore of public attention. Last week DRCNet reported that Rep. John Conyers (D-MI) had reintroduced the Traffic Stops Statistics Act, and had introduced legislation to end felony disenfranchisement (http://www.drcnet.org/wol/087.html#profiling and http://www.drcnet.org/wol/087.html#disenfranchisement). Five weeks ago, we reported that Rep. Charges Rangel had introduced legislation to reduce sentences for crack cocaine offenses to the level of powder cocaine sentences (http://www.drcnet.org/wol/083.html#rangel).

"NO Equal Justice: Race and Class in the American Criminal Justice System," by Georgetown University law professor David Cole, analyzes the nature and extent of racial disparities in the criminal justice system and the dynamics that contribute to them. Cole puts forward overwhelming evidence that not only do disparities exist, but the problem extends from the bottom of the system (cops on the beat habitually using racial profiles) to the top (a Supreme Court that has set unattainable standards for invoking protections against racial discrimination).

Cole doesn't attribute the disparities to deliberate racism, but rather to the unavoidable tension between law enforcement efficiency and constitutional rights. Rather than staking out a consistent position for balancing these two concerns, Cole argues, police forces and the courts have picked two different points on the spectrum -- one for the majority and another for minorities. The majority, then, doesn't pay the cost of the policies that it enacts -- a cost measured in disparate police searches, no-knock warrants, convictions and incarceration rates.

One of the reasons disparity in searches exists is that courts have given police an astonishingly free hand in conducting them. On pages 48-49, Cole lists drug courier "profiles" that drug enforcement agents have presented as "probable cause" for conducting searches:

arrived late at night
arrived early in the morning
arrive in afternoon
one of first to deplane
one of last to deplane
deplaned in the middle
purchased ticket at airport
made reservation on short notice
bought coach ticket
bought first-class ticket
used one-way ticket
used round-trip ticket
paid for ticket with cash
paid for ticket with small denomination currency
paid for ticket with large denomination current
made local telephone call after deplaning
made long-distance telephone call after deplaning
pretended to make telephone call
traveled from New York to Los Angeles
traveled to Houston
carried no luggage
carried brand-new luggage
carried a small bag
carried a medium-sized bag
carried two bulky garment bags
carried two heavy suitcases
carried four pieces of luggage
overly protective of luggage
disassociated self from luggage
traveled alone
traveled with a companion
acted too nervous
acted too calm
made eye contact with officer
avoided making eye contact with officer
wore expensive clothing and gold jewelry
dressed casually
went to restroom after deplaning
walked quickly through airport
walked slowly through airport
walked aimlessly through airport
left airport by taxi
left airport by limousine
left airport by private car
left airport by hotel courtesy van
suspect was Hispanic
suspect was black female
Cole explains that "[s]uch profiles do not so much focus an investigation as provide law enforcement officials a ready-made excuse for stopping whomever they please. The Supreme Court has warned that the mere fact that someone fits a drug-courier profile does not automatically constitute reasonable suspicion justifying a stop. In practice, however, courts frequently defer to the profile and equate it with reasonable suspicion. As one judge said after conducting a comprehensive review of drug-courier profile decisions, '[m]any courts have accepted the profile, as well as the Drug Enforcement Agency's scattershot enforcement efforts, unquestioningly, mechanistically, and dispositively.'"

Cole goes on to argue that while the majority doesn't pay the cost of the criminal justice policies that it passes, over time those costs come home in the form of decreased respect for law and unwillingness to cooperate with the system, leading to a diminished ability to control crime and heightened social danger for all.

(Buy "NO Equal Justice" online -- just point your browser to http://www.amazon.com/exec/obidos/ASIN/1565844734/drcnet/ and follow the instructions, and DRCNet will earn 15% of what you spend on the book! Or ask for "NO Equal Justice" at your local bookstore.)

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Issue #88, 4/24/99 HEA Reform Campaign Gets Boost | Report: District of Columbia Drug Policy a Disaster | Heroin in Australia: A Conversation with Brian McConnell of Families and Friends for Drug Law Reform | North Dakota Becomes First State to Legalize Hemp Cultivation | Oregon Supreme Court to Review Forfeiture as Double Jeopardy | BOOK: NO Equal Justice, Race and Class in the American Criminal Justice System | Report: In Search of a New Ethic for Treating Patients with Chronic Pain | Seminar in NYC, Friday 28-May

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