Excerpted From: F. Michael Higginbotham, Shades of Justice: Racial Profiling Then and Now, 94 University of Colorado Law Review 533 (Spring, 2023) (54 Footnotes) (Full Document)


FMichaelHigginbothamIt is not easy these days to talk about race in America, especially in a diverse group across racial lines. This is because people tend to feel strongly about these controversial issues, and when they disagree, they end up calling each other bad names, and that upsets their stomachs; then, they cannot enjoy the good food and drink that often accompany such events. So many simply choose not to attend, burying their heads in the sand.

This Essay discusses several controversial aspects of the relevance of slavery law to issues of racial inequality today. Racial profiling has been a consistent policy in the United States that has allowed racial inequality, particularly in the criminal justice system, to continue. Specifically, this Essay addresses the distorted view of this country's slave history, the harm inflicted by the racial profile that created a presumption of slave status for those who looked Black, and the current racial inequities exacerbated by the continuation of this racial profile.

I. Knowing Where You Come From

I have always believed that “[i]f you don't know where you've come from, you don't know where you're going.” When it comes to slavery history--the history of enslaved persons in the United States--too many Americans don't know where they came from. They have a distorted view of the country's slave history. This is because--and I know it is hard to believe--the stories our teachers told us and the material our textbooks provided were too often inaccurate, misleading, or downright false. The lies we were told gave us what I call a “Gone with the Wind/Birth of a Nation” view of our history that just is not accurate. My experience has been that telling the truth is not divisive; it is liberating. My fellow panelists at the Conference, Doctor Brian Mitchell and Professor Chris Mathis, gave a lot of truth; I will try to continue the liberation.

I did not grow up in “the hood”; I grew up in “the wood”: the countryside in western Pennsylvania, the suburbs of Cleveland, and Los Angeles. But countryside or suburb, I can tell you that I was racially profiled a lot as a teenager, especially by the Los Angeles Police Department (LAPD). Many have heard of driving while Black; they used to stop me for smiling while Black.

Back in the 1970s and 80s, the LAPD was known for coming up with new and improved law enforcement techniques. They got credit for first using the rough ride and the choke hold. The LAPD did not seem to care how racist their practices were or appeared to be.

My favorite comedian is Richard Pryor. During his stand-up act in the 1970s, Pryor would announce the LAPD has a new technique called the choke hold. Pryor would say that all the Black folks in the audience would nod and indicate, “Yeah, we know,” and all the White folks in the audience would look puzzled and say, “What are you talking about?” This duality reflected, of course, Pryor's recognition of the racist application of this facially neutral technique.

I thought that the LAPD came up with the racial profile until I came across the nineteenth century case of Hudgins v. Wrights.

[. . .]

We see this message in so many horrendous incidents in our history: the massacre in Grant Parrish, Louisiana in 1873; the race riot in Wilmington, North Carolina in 1898; the Elaine Massacre in Arkansas in 1919; the Tulsa Massacre in Oklahoma in 1921; and, most recently, the events at the Capitol in Washington, DC on January 6, 2021.

Race-based thinking continues to plague American society. Racial profiling provides a perfect example. Racial profiling--race-dependent assessments of suspicion--often involves making decisions on the basis of a stereotype of the criminal propensities of Black people, thus resulting in racially discriminatory treatment.

Racial profiling should be prohibited for three reasons: it is harmful to the profiled person, it is an ineffective law enforcement tool, and it embraces a divisive societal message. First, racial profiling is emotionally harmful. The experience of being stopped because of one's skin color is not only inconvenient; it is also frightening and sometimes can lead to confrontation and death. Innocent individuals subjected to police or private citizen abuse feel as though they need to change their daily activities, the cars they drive, the clothes they wear, and the places they frequent.

Second, racial profiling is an ineffective law enforcement tool--it is bad practice. Not only has it led to increased distrust and animosity amongst Black people toward law enforcement personnel, but it also has increased tensions between the police and Black people, and it has impeded the effectiveness of community policing. If innocent individuals are treated like criminals, they will lose trust in officers as investigators of crime or as witnesses in court, making victims of racial profiling less likely to confide in officers and inform them of criminal activity. Such a response will allow more guilty people to go free because of a lack of cooperation.

Third, whether done consciously or unconsciously, racial profiling invokes the notion of racial hierarchy, a divisive societal message, because of its inherent implication that apparent Blackness implies guilt of a crime or dangerousness. Unlike the less significant government interests in a routine traffic stop, racial profiling may seem more justifiable where the potential for societal harm is great, such as when law enforcement profiles terrorists for national security reasons or drug traffickers for crime prevention reasons, yet it is nevertheless racially discriminatory and should be prohibited under the Equal Protection Clause of the Fourteenth Amendment. Behavior-dependent assessments identifying suspicion, rather than race-dependent assessments, should be embraced by all Americans, as well as law enforcement personnel.

Eliminating the profile would help to change this message of continued racial difference and hierarchy in the criminal justice system. A focus on actual behavior rather than racial characteristics would be more consistent with our evolving notions of equality since the profile was first created in 1806, when Black people could expect, at best, only shades of justice.

Laurence M. Katz Professor of Law, University of Baltimore School of Law.