ABSTRACT
Chapter 7 continues discussing how the Supreme Court has precluded lower courts from reaching the merits of racial profiling allegations. Interestingly, in 1996, just a few months after a New Jersey court confirmed the existence of racial profiling, the Supreme Court quickly issued Whren and United States v. Armstrong. Chapter 6 explained how Whren prohibited racial bias from being asserted under the Fourth Amendment; Chapter 7 explains how Armstrong achieved the same result under the Fourteenth Amendment. Armstrong declared that criminal defendants asserting an Equal Protection violation must prove “similarly situated individuals of a different race were not prosecuted.” However, the police do not keep records of people they might have stopped but chose not to. Even in the rare instance when a criminal defendant manages to obtain such evidence, a third obstacle remains–McCleskey v. Kemp. The defendant in McCleskey provided statistical proof that black defendants who killed white victims were significantly more likely to receive the death penalty than whites who killed blacks, or blacks who killed blacks. However, the Court still found no Equal Protection violation because a defendant must prove “that the decision-makers in his case acted with discriminatory purpose.” Statistical evidence, standing alone, cannot prove the “subjective intention” of specific state actors. Thus, under Armstrong’s “similarly situated” doctrine, defendants must provide evidence that “similarly situated individuals of a different race were not prosecuted” which can normally only be done through non-existent statistical evidence. Even in the rare instance when data is available, McCleskey holds that statistical evidence “standing alone” is insufficient because purposeful discrimination on the part of specific state actors must be proven. However, under the Court’s Catch-22 jurisprudence, Whren holds that subjective intentions cannot be explored because “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Since Whren and Armstrong were issued twenty years ago, not a single criminal defendant has managed to overcome these legal hurdles and assert a successful claim of racial profiling. Civil litigants have proven no more successful because Los Angeles v. Lyons declares victims of racial profiling lack “standing” to sue since they can avoid injury by obeying the law in the future. Curiously, none of these legal hurdles to asserting racial profiling claims have ever stopped white litigants from challenging affirmative action programs.
