Race and the Law

Johnathan Kahn, a professor at Hamline law and an amazing scholar on bio-race issues, has just published what will prove to be an enlightening (yet disturbing) examination of Bidil – the first race-based drug to receive FDA approval. I will post a review of the book following the holidays. You can find the book on Amazon here: http://www.amazon.com/Race-Bottle-Racialized-Medicine-Post-Genomic/dp/0231162987/ref=lh_ni_t. Amazon provides the following description of the book:

“At a ceremony announcing the completion of the first draft of the human genome in 2000, President Bill Clinton declared, “I believe one of the great truths to emerge from this triumphant expedition inside the human genome is that in genetic terms, all human beings, regardless of race, are more than 99.9 percent the same.” Yet despite this declaration of unity, biomedical research has focused increasingly on mapping that.1 percent of difference, particularly as it relates to race.

This trend is exemplified by the drug BiDil. Approved by the FDA in 2005 as the first drug with a race-specific indication on its label, BiDil was originally touted as a pathbreaking therapy to treat heart failure in black patients and help underserved populations. Upon closer examination, however, Jonathan Kahn reveals a far more complex story. At the most basic level, BiDil became racial through legal maneuvering and commercial pressure as much as through medical understandings of how the drug worked. Using BiDil as a central case study, Kahn broadly examines the legal and commercial imperatives driving the expanding role of race in biomedicine, even as scientific advances in genomics could render the issue irrelevant. He surveys the distinct politics informing the use of race in medicine and the very real health disparities caused by racism and social injustice that are now being cast as a mere function of genetic difference. Calling for a more reasoned approach to using race in biomedical research and practice, Kahn asks readers to recognize that, just as genetics is a complex field requiring sensitivity and expertise, so too is race, particularly in the field of biomedicine.”

A very interesting panel discussion will take place during the annual AALS conference in New Orleans on January 4, 2013 from 2-500pm. The panelists will examine the increasing biopolitics of socially constructed identity categories, such as race, gender and sex. Please attend if you can! http://www.aals.org.

The last post on the site was prepared by one of my research assistants, “C.M.”, critiquing colorblind constitutionalism.  While the critique of colorblind constitutionalism is not new, C.M’s post provides a fresh application of the critique to the criminal justice and immigration context.  I would also like to direct you to Neil Gotanda’s seminal work on this issue, The Constitution is Not Colorblind, 44 Stanford Law Review 1 (1996).

The observation that the constitution is “not colorblind” is important in the racial genetics context.  It provides part of the answer as to “why” nouveau scientific theories of race have once again achieved traction in our modern age.  As I have argued elsewhere, our society has long struggled to reconcile a professed belief in liberal equality for all (a cornerstone principle of our democracy) with the persistence of racial disparities and discrimination.  If our society was indeed truly “equal,” then racism and race-based disparities (in health, convictions, poverty, etc…) should not exist.  And yet they do exist (and have been expanding over time). 

The fact of racism and disparities creates a cognitive and moral dilemma for the person that believes in a colorblind and/or post-race world.  To recognize racial disparities (as stemming from racism and a legacy of racial oppression) would force such a person to confront their own racial privilege, as well as (perhaps) to acknowledge the necessity of race-regarding policy. To acknowledge as Justice Harlan did in Bakke that “in order to get beyond racism, we must take account of race.  There is no other way.”

And yet the fear of addressing privilege, as well as of adopting race-based social policies, have led many colorblind/post-race adherents to articulate disingenuous alternative “rationales” for the continued existence of racial disparities.  One common rationale (or “distancing move,” as Prof. Sumi Cho might say) lies in “culture of poverty” theories, whereby racial disparities are not traced to racism and/or patterns of structural oppression, but rather to the cultural deficiencies of non-white “racial” groups.  Another common rationale is the use of classic market theory to dismiss persistent race-based inequalities as representing neutral outcomes of the marketplace.

And yet another historic rationale for navigating this tension (between belief in equality and the fact of racism/racial inequalities) has been biological theories of race.  As we witnessed during Slavery, WW II and the 19^th Century, the argument being that unequal treatment by race does not violate the democratic principle of liberal equality if there are distinct, biological racial differences.  The notion of race as genetic found its very roots as a socio-political rationalization for the unequal treatment of others!  And so it is with the current manifestation of “race science,” which has been wielded in the criminal justice context to incarcerate a disproportionate number of Black and Latino men.  

CBS

CBS

It was 116 years ago that Justice Harlan announced in an infamous (and at times controversial)[1] dissent that the Constitution is colorblind.[2]  Harlan’s dissent has been credited by more than one scholar with laying the groundwork for the unanimous decision in Brown v. Board of Education.[3]  And yet, despite this apparent triumph of racial equality, the average American would probably be surprised to learn that the modern Constitution does in fact “[know and tolerate] classes among its citizens”[4] on the basis of race.  It does so not merely by practical effect or implication: it does so expressly under the precedents of the Supreme Court.[5]

The average American should be made aware of what many in the academy have known for a long time:  that the Supreme Court has, on several prominent occasions, expressly blessed the use of race as a constitutionally permissible basis on which to enforce the laws of the nation.  While much work has been done in recent years identifying the way in which the Court’s “color-blind” jurisprudence has created massive racial disparities in the administration and enforcement of the nation’s laws, I am not here dealing with that arm of the Court’s jurisprudence.  I speak here of a smaller group of cases in which the Supreme Court has expressly stated that it’s ok for government officials to enforce the law on the basis of race.  These precedents have caused unintended legal consequences in the administration and enforcement of state laws, many of which incorporate constitutional standards into their provisions by reference.  We can see this demonstrated by recent immigration laws in states like Alabama, which will be discussed in more detail later in this essay.  First, we must address the two most prominent cases in which the Court expressly blessed the use of race in the enforcement of the nation’s laws.  Then we can examine how those cases affect the administration and enforcement of laws at the state level—specifically in the immigration context.

United States v. Brignoni-Ponce

In 1975, the Court decided United States v. Brigoni-Ponce.[6]  This case involved a border patrol traffic stop in which the officers stopped the respondent’s car near a police checkpoint that was set up for vehicles traveling northbound from the Mexican border.[7]  The officers in this case admitted that the only reason they stopped the respondent’s car was because the occupants of the car appeared to be of Mexican descent.[8]  All three of the occupants of the car were arrested after the officers questioned the occupants about their citizenship and learned that the passengers were aliens who had entered the country illegally. [9] The respondent was charged with two counts of knowingly transporting illegal immigrants in violation of section 274(a)(2) of the Immigration and Nationality Act [hereinafter INA].[10]  The Respondent attempted to have the statements of the passengers suppressed on the basis that the seizure of his vehicle was unconstitutional. [11] The trial court denied respondent’s motion to suppress, and he was later convicted at trial of both counts charged under the INA.[12]  On appeal, the Supreme Court held that, while border patrol agents cannot rely solely on the race of the occupants as a source of reasonable suspicion, agents can nonetheless consider the race of citizens as one relevant factor among several when deciding whether they have reasonable suspicion to stop a vehicle.[13]

While this holding may not seem as insidious as it otherwise could be—it does, after all, reject outright racial profiling—the practical effect of this ruling is to create a certain sphere of activity in which police can constitutionally stop a person who appears Mexican, but can’t constitutionally stop a member of any other race.  We could have a situation, for example, in which an anonymous informant tells police that many smugglers are starting to traffick non-citizens across the border using only white vehicles.  The anonymous tip, for reasons explained below, will usually be insufficient to justify a stop.  But paired with a driver’s “Mexican appearance,” reasonable suspicion begins to emerge.  To understand why this is so, a brief explanation is in order.  In 1968, the Supreme Court decided in Terry v. Ohio[14]that police may conduct brief investigatory stops where they have a “reasonable, articulable suspicion” that criminal activity is afoot.[15]  The “reasonable suspicion” standard is “less demanding”[16] than probable cause, which was the standard for government searches and seizures prior to Terry.[17]  Notwithstanding the Terry decision, the Supreme Court nonetheless remained skeptical with respect to anonymous informants, applying a 2-step “reliability” test—developed over two cases spanning five years apart—to determine whether tips from confidential or anonymous informants established probable cause.[18]  The so-called Aguilar-Spinelli test was abandoned in 1983, when the Court decided that judicial analysis of the reliability of informants should take into account the “totality of the circumstances,” rather than applying the rigid, bifurcated two-prong analysis which defined the Aguilar-Spinelli test.[19]  Later, in 2000, the Court stated that reasonable suspicion requires a “minimal level of objective justification,”[20] and found that reasonable suspicion existed where a person ran from police officers while standing in a high crime area.[21]  This created the infamous “flight + high-crime area = reasonable suspicion” equation that has generated much controversy in the legal world.[22]

When one synthesizes these precedents with Brignoni-Ponce, a disturbing picture emerges: imagine again that a border patrol agents received an anonymous tip that many smugglers are starting to transport non-citizens across the border exclusively in white vehicles.  A mere anonymous tip alone is unlikely to justify reasonable suspicion.  But when the anonymous tip is paired with Mexican appearance, a stronger case begins to appear.  Now consider that the Mexican border is arguably its own “high-crime area”—indeed, Brignoni-Ponce Court was quick to point out that the vast majority of documented cases of unlawful entries by non-citizens occur on the Mexican border.[23]    And while illegal entries are down in recent years[24] the Mexican border remains a hotbed of criminally culpable activity.[25]  The existence of a high crime area paired with fleeing from the police was enough to establish reasonable suspicion in Wardlow.  The only difference in the present case is that, instead of flight, we have the Mexican appearance of the driver, which can be used to establish reasonable suspicion under Brignoni-Ponce.  So in our imagined situation, we now have (1) a “high crime area,” (2) the driver’s Mexican appearance, and (3) an anonymous tip about white cars being used for smuggling.  The combination of these three factors could easily establish the “minimal level of objective justification” necessary to justify seizing a vehicle driven by a person of Mexican descent, while not necessarily justifying the seizure of a vehicle driven by a member of any other racial group.

Whren v. United States

In addition to Brignoni-Ponce, the Court also blessed the use of race in law enforcement decisions in Whren v. United States.[26]  Whren involved a traffic stop of two Black citizens in the District of Columbia.[27]  Plainclothes police officers pulled over an SUV after they failed to use a turn signal and traveled at an “unreasonable speed” when pulling away from an intersection.  The officers’ suspicion had earlier been aroused when they saw the truck had remained stopped at the intersection for an unusually long time.[28]  When they approached the vehicle, the officers allegedly discovered one of the petitioners with two large plastic bags of “what appeared to be crack cocaine” in his hands.[29]  The defendants were arrested and charged with violating various federal drug laws.[30]  The petitioners challenged the legality of the stop at a suppression hearing, arguing that the stop was pre-textual, and that the officers were using the traffic violation as an excuse to conduct a search for evidence of drug crime—a search for which they had neither probable cause nor reasonable suspicion prior to stopping the vehicle.[31]  Petitioners’ argument was rejected, and both were convicted.[32]  On certiorari to the Supreme Court, the petitioners’ convictions were affirmed, with the Court noting that “ulterior motives [do not] invalidate police conduct that is justifiable on the basis of probable cause to believe a violation of law has occurred.”[33]  One of the ulterior motives at issue in the case was the race of the person being stopped, which petitioners argued could allow for selective enforcement of the laws.[34]  While the Court agreed that the Constitution prohibits racially selective enforcement of the laws, it suggested that the proper remedy for discriminatory law enforcement is the Equal Protection Clause, not the Fourth Amendment.[35]

At first glance, the Whren case appears to disavow racially selective law enforcement.  The Court did, after all, “agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race.”[36]  But the Court’s reference to the Equal Protection Clause is actually a clever act of judicial prestidigitation; the question in the case was never whether an Equal Protection Clause violation had occurred.  The question in the case is whether ulterior motives—such as race—can vitiate probable cause or reasonable suspicion if an objectively reasonable police officer under the circumstances wouldn’t have actually detained the petitioner.[37]  The Court stated very clearly in this case that ulterior motives such as race are not relevant to determining whether a police officer’s actions are objectively reasonable under the Fourth Amendment.  Under Whren, a police officer can selectively pull over and investigate citizens on the basis of race, and their actions can still be deemed reasonable so long as there’s an independent basis of probable cause or reasonable suspicion, no matter how unlikely it is that an ordinarily prudent police officer under the circumstances would’ve initiated the stop for the reason given.  The fact that such behavior might create the foundation for an Equal Protection Clause claim is inapposite to the question in the case.  Under Whren, the fact that a police officer’s decision to detain someone may have been motivated by race is irrelevant to determining whether the officer’s actions were objectively reasonable under the Fourth Amendment.  By removing the “ulterior motive” of race from consideration under the Fourth Amendment, the Whren Court created a constitutional order that tolerates racially discriminatory policing, and they did it in plain view.

The Effect of Brignoni-Ponce and Whren on State Immigration Law: A Case Study From Alabama

The effect of these two cases, Brignoni-Ponce and Whren, can be seen in the passage of a recent state immigration laws that incorporates federal constitutional law by reference.  Alabama recently passed one of the strictest immigration laws in the nation; the Taxpayer and Citizen Protection Act [hereinafter TCPA],[38] signed into law in 2011, places expansive legal restrictions on the activities of non-citizens within the State of Alabama, while also expanding the powers and prerogative of law enforcement.  These restrictions/powers include denial of public benefits,[39] denial of post-secondary education,[40] denial of employment opportunities,[41] stern penalties for businesses who hire illegal immigrants,[42] and affirmative duties on law enforcement officials to check the immigration status of citizens detained for other reasons.[43]  The last of these is perhaps the most disconcerting:

SECTION 12. (a) Upon any lawful stop, detention, or arrest made by a state, county, or municipal law enforcement officer of this state in the enforcement of any state law or ordinance of any political subdivision thereof, where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the citizenship and immigration status of the person, except if the determination may hinder or obstruct an investigation. Such determination shall be made by contacting the federal government pursuant to 8 U.S.C. § 1373(c) and relying upon any verification provided by the federal government.[44]

The TCPA states that government officials may not use “race, color, or national origin” as the basis of enforcing many of its provisions.[45]  However, there’s a catch: section 12(c) of the TCPA incorporates the U.S. Constitution by reference; it specifically allows state law enforcement officials to consider race to the extent allowed by the U.S. Constitution.[46]  That means that Brignoni-Ponce and Whren govern the application and enforcement of section 12.  The result of this constitutional loop-hole is that the ban on considerations of race in Section 12(c) of the TCPA is essentially dead letter.  The constitutional exception created by Brignoni-Ponce and Whren swallows the rule, because both of those cases allow law enforcement officials to take race into account when enforcing Alabama’s immigration statute.

Conclusion

These two cases: Brignoni-Ponce and Whren, demonstrate that the Constitution, thought it may have once been, is not now colorblind.  These decisions specifically allow law enforcement officials to consider race when enforcing the law, and have unintended consequences for state laws that incorporate U.S. Constitutional standards by reference.   The result of these cases is that the U.S. Constitution does in fact know and tolerate classes among its citizens.  Many will perhaps be startled by this realization; others may even support it.[47]  But that it is a fact of life under current Constitutional regime cannot be denied.

The Facing Race conference was a huge success!  Many thanks to Rinku Sen (President of Applied Research Center (“ARC”), publisher of Colorlines) and the wonderful people at ARC for organizing such an important event.  Maya Wilely (Director of the Center for Social Inclusion) was marvelous at moderating the plenary panel, which consisted of myself, UC-Berkeley sociologist Michael Omi, writer Janet Mock and activist Jessica Gonzalez-Rojas of the National Institute for Latina Reproductive Health.  I have attended a large number of racial justice and critical race theory conferences in the last few years, and this event may have been the most powerful one yet.  I can’t wait for the next Facing Race conference!  For more information, see http://www.eiseverywhere.com/ehome/facingrace/54844/ and www.arc.org.

Readers may be interested in attending the largest national conference on racial justice issues the weekend before Thanksgiving.  The Facing Race conference, sponsored by the Applied Research Council, will hold its annual conference in Baltimore, Maryland on November 16th and 17th of this month (www.arc.org/facingrace).

I will share my views regarding racial justice in the 21^st Century during the conference’s plenary panel, sharing the stage with the renowned sociologist Michael Omi (UC-Berkeley) and social activist Jessica Gonzalez-Rojas.  The Facing Race conference has been touted as the “largest national, multi-racial gathering of leaders, educators, journalists, artists and activists on racial justice” (www.arc.org).  The Keynote Speaker for this year’s conference is Junot Diaz, the Pulitzer Prize winning author of The Brief Wondrous Life of Oscar Wao.  Past Keynote Speakers have included Melissa Harris-Perry, Walter Mosley, and Van Jones.

without a dope beat to step to. 

In all seriousness, my hope is that this post marks the return of an ACTIVE Race and the Law blog.  My research assistants (and myself) have a number of interesting posts to add to the blog in the coming weeks and months.  While the site will still principally focus on issues that lie at the intersection of genetics, law and race, the scope will be broadened a bit to address more general issues of racial discrimination and oppression.

This past Wednesday (4/11), the Black Law Students Association (“BLSA”) singlehandedly arranged a very important event at Albany Law School on racial profiling and the Trayvon Martin case.  Led by exceptional law students Stefen Short (who is also my Research Assistant), Damon Lipscomb and Chet Godley, BLSA arranged for the President of the NAACP – Ben Jealous – to deliver a keynote lecture, followed by a panel presentation on racial profiling led by myself, Prof. Laurie Shanks, Prof. Anthony Farley, and Albany Police Department Asst. Police Chief Brendan Cox.  The event was well-represented by members of the community, activists and the judiciary (Hon. Randolph Treece, Hon. Helena Heath-Roland, among others were present), and enjoyed EXTENSIVE media coverage (Fox, CBS, NBC, MSNBC, ABC, the Timesunion, etc..). 

The event was particularly timely, given that the Special Prosecutor in the Trayvon Martin case announced that charges would be filed against Martin Zimmerman a couple of hours after the event took place.  BLSA Event_0412

The remarks by President Jealous were compelling, assailing the practice of racial profiling as discriminatory, inflammatory and ultimately counter-productive.  I did my best to tailor my own remarks to his, and focused my short lecture on the theme of “objective reasonableness.”  After situating the Trayvon Martin killing in the appropriate historical context (where blackness became linked with criminality as part of a larger social project of racial control and domination following slavery), I analyzed how the law to be applied in this case (from self-defense to the Stand Your Ground law to a Second-Degree murder charge) hinged upon how one views the reasonableness of both Trayvon and Zimmerman’s actions.   Without getting into too much detail, I discussed empirical science on implicit racial bias (showing that the vast majority of Americans maintain unconscious racial prejudices that shape how we act) to demonstrate that the legal analysis of “objective reasonableness” can also be prone to distortion by implicit racial bias.  And I believe this helps explain why our society is so divided on the issue of the reasonableness of Zimmerman’s actions.  It help explains why Police Chief Bill Lee automatically believed Zimmerman’s account of self-defense to be reasonable and accurate, despite evidence to the contary (e.g., an unarmed boy lying dead from a gunshot wound to the chest on the ground, with minimal injuries to Zimmerman).  It helps explain why many are quick to recast black victims (such as Trayvon) as criminal perpetrators; and how many are similarly quick to recast non-black perpetrators (such as Zimmerman) as innocent victims of black aggression.  I concluded with some comments as to how this tragedy could produce some good in society.  Studies on implicit bias has also shown that the tendency of an individual to act upon his or her hidden racial prejudices is greatly reduced when race becomes a salient issue in the dialogue.  Perhaps by creating a national dialogue on race and discrimination, we can help to blunt the effects of implicit and explicit racial bias.  This may be a small (and oft repeated) step, but a necessary one nonetheless.

I had a wonderful time presenting on “Race and Bioethics” at the Kirwan Institute conference this past weekend, with my fellow panelists Prof. Dorothy Roberts, Prof. Lisa Ikemoto, and Prof. Osagie Obasogie.  The lines between the panel and audience eventually blurred, as we enjoyed a lively discussion of important issues concerning the misguided “rebiologicalization” of race in the scientific and legal fields.  In the words of Prof. Obasogie, I think we all became (if we were not already) “hopeful cynics” on the issue.  We discussed a number of initiatives – from media outreach to social activism and legal strategy – that could be followed to restore a social understanding of race.  I certainly came away from the panel presentation energized and inspired.  A link to the “Transforming Race” conference can be found here: http://www.kirwaninstitute.org/transforming-race-2012-visions-of-changetr2012-2/.

Reminder- my lecture will take place tomorrow from Noon until 1:00pm in the Wadsworth Auditorium (located in the Corning Building of the Empire State Plaza).

NYS Lecture 1