Law enforcement traffic stops based on race or ethnicity are not only unconstitutional. They're also remarkably ineffective
Driving through Alabama with a lot of cash is not a crime. But for migrant worker Victor Marquez, it might as well have been.
In May 2008, after a season of harvesting beans in Florida, Marquez was traveling on an Alabama interstate on his way to his hometown in Mexico to start construction of a house on land he had purchased earlier. He carried $20,000 in cash — his legitimately earned wages and nine years' worth of his and his brother's savings. A Loxley, Ala., police officer stopped the truck in which Marquez was a passenger "for failure to maintain a marked lane." The officer claimed there were reasons to suspect the cash was related to illegal drug activity and, under Alabama's asset forfeiture law, confiscated all of it. There were no drugs in the vehicle, and Marquez was not arrested or charged with any crime.
In Tehana, Texas, near the Texas-Louisiana border, police seized cash and property over a two-year period from almost 200 motorists whom they stopped along a stretch of highway connecting Houston with gambling destinations in Louisiana. Only 50 of those whose property was seized were charged with drug offenses, and a federal lawsuit against the police alleges that most of those stopped were African Americans.
The temptation for law enforcement to stop motorists and seize their cash and other valuables is great: state and federal confiscation programs allow local police and sheriff's departments to keep all or a large portion of the assets they confiscate. U.S. Department of Justice records show that from 2004 to 2008, the amount of assets seized by local law enforcement agencies that were enrolled in a federal drug enforcement program tripled — from $567 million to $1.6 billion. This doesn't include assets kept by these agencies as part of state asset forfeiture programs.
In addition to police stops along the highway, police checkpoints or roadblocks in predominantly Latino areas are becoming increasingly common. These checkpoints can be a lucrative source of revenue for local governments, because many jurisdictions charge substantial fines for driving without a license and immigrants, especially undocumented ones, are more likely than other drivers to lack a driver's license. Fines can range from several hundred dollars to several thousand. Some local ordinances also allow police to confiscate and impound a driver's vehicle and charge the owner for the number of days it sits in a lot.
Compounding the problem for Latinos is a federal law known as "287(g)" that allows local and state police to enter into agreements with the federal government to enforce federal immigration law. A recent report by the federal Government Accountability Office found that, rather than addressing serious crimes by undocumented persons — as was intended by Congress when it enacted the law — many police agencies were using their 287(g) authority to arrest and deport immigrants who were stopped for traffic and other minor offenses.
In the case of Juana Villegas, an undocumented immigrant from Mexico, a traffic stop in Nashville, Tenn., for a minor offense led to a nightmarish series of events. Nine months pregnant, Villegas was arrested pursuant to the 287(g) program. During her six-day ordeal in the county jail, she gave birth to her son, going through labor as a sheriff's deputy stood guard in her hospital room with one of her feet cuffed to the bed for much of the time. Villegas was barred from seeing or speaking with her husband and was separated from her infant for two days. The jail refused to allow her to take a breast pump with her from the hospital, and she subsequently developed a breast infection.
The ability of cash-strapped law enforcement agencies to boost their budgets with confiscations and fines has raised questions about whether some agencies are shifting their focus from seizing drugs and stopping crime to targeting Latinos and African Americans who might be carrying relatively large amounts of cash. Critics of the 287(g) program charge that the program has led to massive racial profiling of people who appear Latino and are then stopped on the pretext of traffic violations in order to actually check their immigration status.
The policy or practice of law enforcement officials using race or ethnicity as a factor in conducting stops, searches, and other investigative procedures is commonly referred to as racial profiling, and it's unconstitutional. In Whren v. United States (1996), the U.S. Supreme Court ruled that "the Constitution prohibits selective enforcement of the law based on considerations such as race," and federal courts have repeatedly held that a police policy of "utiliz[ing] impermissible racial classifications in determining whom to stop, detain, and search" violates the Fourteenth Amendment's Equal Protection Clause. Racial profiling may also violate the Fourth Amendment, which bans unreasonable searches and seizures, and Title VI of the Civil Rights Act of 1964, which bars recipients of federal funds — like state and local law enforcement agencies — from discriminating on the basis of race, color, or national origin. In 2003, the U.S. Department of Justice issued its Guidance Regarding the Use of Race by Federal Law Enforcement Agencies, barring racial profiling by federal law enforcement agencies.
Research shows that racial profiling does not, in fact, help law enforcement officials fight crime. Studies show that "hit rates" — the rate at which contraband or evidence of illegal conduct is discovered — among minorities who are stopped and searched by police are lower than or the same as the hit rates for whites who are similarly stopped and searched. According to a U.S. Department of Justice study of 1999 traffic stops, police found contraband more than twice as often when they searched whites as when they searched African Americans. Likewise, a New York attorney general's report on the NYPD showed that "stop and frisks" of blacks and Latinos in New York City were less likely to yield arrests than stops of whites, although blacks were over six times more likely and Latinos over four times more likely to be stopped than whites.
There is no doubt that law enforcement is a difficult and sometimes dangerous job, and police officers often have to make snap judgments in the heat of the moment that may later prove to be wrong. But racial profiling not only is illegal, it also undermines police legitimacy — making it less likely that civilians will cooperate with the police — and tears at the very fabric of our democratic society.