Abstract

Excerpted From: Delphine Brisson-Burns, Criminalizing Race: How Direct and Indirect Criminalization of Racial “Status” Constitutes Cruel and Unusual Punishment, 21 UC Law Journal of Race and Economic Justice 71 (February, 2024) (99 Footnotes) (Full Document)

While many are familiar with the Eighth Amendment's Cruel and Unusual Punishment Clause, many are likely unaware that 1960s Eighth Amendment jurisprudence proscribes punishing individuals based on “status” rather than “conduct.” In 1962, the Supreme Court held in Robinson v. California that punishing people for “status” crimes constitutes cruel and unusual punishment under the Eighth Amendment. In other words, the Supreme Court has held that while individuals may be punished for actions they take, they may not be punished simply for who they are. This principle will be referred to throughout this paper as “the Robinson doctrine.”

In recent years, this Constitutional ban on criminalizing “status” has been the subject of much litigation, and has specifically been used to challenge the constitutionality of laws criminalizing homelessness. Court battles have erupted around whether homelessness is “status” within the meaning of this Eighth Amendment jurisprudence, and if it is, whether anti-camping ordinances unlawfully criminalize “status.” However, there has been little discourse as to whether race qualifies as “status” and, consequently, whether racial profiling violates the Eighth Amendment. Notably, the District Court for the Northern District of California recognized race as “status” within the meaning of the Robinson doctrine in its 1994 decision, Joyce v. City & County of San Francisco.

This paper will argue that race is “status” within the Robinson doctrine's definition and that various police practices and legal standards criminalize individuals based on “status” in violation of the Eighth Amendment's Cruel and Unusual Punishment Clause. There are two ways in which people of color are unconstitutionally criminalized for their racial “status:” directly and indirectly. This paper will argue that direct criminalization of racial “status” occurs when individuals are racially profiled and subsequently punished. This paper will then argue that indirect criminalization of racial “status” occurs when individuals are punished for conduct that is inextricably tied to their racial “status.” This paper contends that both direct and indirect criminalization of “status” violates people of color's Eighth Amendment rights. Finally, this paper will argue that recriminalization of “felons” unconstitutionally criminalizes “status,” thus disproportionately harming communities of color.

Unlike Robinson, this paper does not focus on one specific statute or ordinance that purportedly violates the Eighth Amendment. Rather, this paper will analyze various procedures and legal standards utilized by police officers to obtain arrests and by prosecutors to obtain convictions, ultimately arguing that these procedures inherently criminalize racial “status” in violation of the Eighth Amendment.

Part I will focus on direct criminalization of people of color based on “status” by defining “status,” qualifying race as “status,” and discussing how racial profiling directly criminalizes people of color based on racial “status.” Specifically, this section will examine the “reasonable suspicion” standard and how police officers use racial “status” to build “suspicion.” This section will also analyze three examples of criminalization based on racial “status:” Terry stops, pretextual traffic stops, and border searches. Case law will be used to elucidate the prevalence of racial profiling in regular police practices and to demonstrate the direct link between racial “status”-based profiling and criminalization.

Part II will explore the blurred line between “conduct” and “status,” drawing on modern interpretations of the Robinson doctrine. This section will argue that criminalizing conduct that is inextricably tied to “status” constructively criminalizes “status” in violation of the Eighth Amendment. While race clearly qualifies as “status” and not “conduct,” understanding where the Supreme Court drew the line between “status” and “conduct” is vital to understanding that criminalizing conduct that is inextricably tied to race constructively criminalizes “status.”

This section will explore how various policies and legal standards criminalize conduct as a pretext for unconstitutionally criminalizing racial “status.”

Part II will also examine the “reasonable suspicion standard” and how it criminalizes conduct that is inextricably tied to racial “status.” This section will specifically examine conduct police officers frequently cite to establish “reasonable suspicion,” such as “flight” and “presence in high crime neighborhoods.” Additionally, this section will analyze the doctrine of “consent” searches and examine whether these searches are constructively consensual given the fraught relationship between law enforcement and communities of color. Finally, this section will analyze the Mendenhall seizure standard and argue that it does not account for subjective racial experiences, thus constructively criminalizing racial “status.”

Finally, Part III will argue that recriminalization of “felons” unconstitutionally criminalizes “status.” While this section does not argue that racial “status” is directly criminalized in the context of recriminalizing “felons,” it notes that criminalization of “felon” “status” disparately impacts communities of color.

Preliminarily, this paper will provide context by briefly reviewing Eighth Amendment jurisprudence and providing background on how the Supreme Court established that the Cruel and Unusual Punishment Clause of the Eighth Amendment precludes criminalization of individuals based on their “status.”

[. . .]

Eighth Amendment jurisprudence proscribes punishing individuals based on “status” rather than “conduct.” In 1962, the Supreme Court held that while individuals may be punished for actions they take, the Eighth Amendment prohibits criminalizing individuals based on who they are. Using the Court's language and reasoning from Robinson, this paper has defined “status” as an “ongoing state of being” and “not an act.”

Racial profiling directly criminalizes racial “status,” because when racial profiling occurs, race is the “but-for” cause of people of color being suspected of committing crimes and subsequently being arrested and/or convicted. Three types of racial profiling that unconstitutionally criminalize racial status are Terry stops, pretextual traffic stops, and border searches.

Additionally, while race clearly qualifies as “status” and not “conduct,” criminalizing conduct that is inextricably tied to “status” constructively criminalizes “status.” The “reasonable suspicion” standard and other facially “objective” legal standards such as the “consent” search doctrine and the Mendenhall seizure standard indirectly criminalize racial “status” by criminalizing conduct that is inextricably tied to racial “status.”

Finally, “felon in possession” laws and the disenfranchisement of “felons” recriminalizes people who have been convicted of felonies based on their “felon” status. These laws disproportionately harm people of color after they have already been convicted and served their sentences.

Delphine Brisson-Burns is expected to graduate from the University of California College of the Law, San Francisco (formerly UC Hastings) in May 2024.