concludes: “Although colorblind on its face, the focus on crack cocaine does not appear to be a function of race-neutral considerations, and continues to produce an extraordinarily high degree of racial disparity in Seattle drug arrests.” She also notes that “it is not possible” to rule out the theory that “the SPD’s focus on black suspects explains the preponderance of crack cocaine arrests,” rather than the other way around.75 In fact, even just looking at crack cases, Blacks are still over-represented, making up 72.9 percent of arrests but (according to drug user surveys) 49.4 percent of dealers.76
Whichever comes first—the focus on Blacks or the focus on crack—it amounts to much the same thing. The result is a disproportionate number of African Americans in police custody. And the impulse behind each approach turns out to be a racist one. In an earlier study, looking at arrests from 1999 to 2001, Beckett drew a sharp conclusion: “the focus on crack,” like the overrepresentation of people of color among those arrested, “reflect[s] a racialized conception of ‘the drug problem.’” The obsession with “the drug most strongly associated with ‘blackness’ suggests that law enforcement policies and practices are predicated on the assumption that the drug problem is, in fact, a black and Latino one, and that crack, the drug most strongly associated with urban blacks, is ‘the worst.’”77 A kind of double profiling takes place. By virtue of their association, the drug is racialized and Blacks are criminalized.
Stop and Frisk: Racial Profiling on Trial
On April 20, 2007, as David Floyd was walking home, three New York police officers approached and asked, “Excuse me, may I speak with you?” Floyd stopped, and the officers demanded to see his ID. He gave it to them, and then, though he explicitly told them he did not consent to a search, they patted him down and looked in his pockets. Finding nothing of interest, they gave him back his driver’s license, warned him to get it updated, and left.78 On the spectrum of police encounters, this incident hardly registers. It was completely banal, entirely routine, the sort of thing that happens all of the time—which is precisely the point.
Between January 2004 and July 2012, the New York City police made 4.4 million stops just like David Floyd’s. In 52 percent of those stops, they frisked the subject; 8 percent of those 2.3 million searches were more extensive—opening jackets, looking in pockets. Eighty-six percent of searches, like Floyd’s, produced no contraband. Also like David Floyd, 52 percent of the people stopped were Black.79
That’s more than twice the African American portion of the local population (23 percent). Altogether, 90 percent of those stopped were people of color. (Hispanics, at 31 percent, were the second-largest group; New York City’s population is 29 percent Hispanic.) Weapons—which are nominally the point of this exercise—were discovered in just 1.5 percent of searches. And as we’ve seen elsewhere, they were more often found on Whites: 1.4 percent of Whites had weapons, while 1.1 percent of Hispanics and 1 percent of Blacks did. Whites were more likely to be carrying drugs or other contraband as well: 2.3 percent, compared to 1.8 percent of Blacks and 1.7 percent of Hispanics. On the other hand, police report using force more often against people of color: in 24 percent of Hispanic stops, 23 percent of Black stops, and 17 percent of White stops. Put differently, Blacks were 30 percent more likely than Whites to have force used against them, and Hispanics were 9 percent more likely.80
Six percent of these stops led to arrest, and another 6 percent led to citations.81 The arrest and citation rates were actually 8 percent lower for Blacks than for Whites (and lower still in majority-Black neighborhoods), suggesting (as a court later found) “that blacks are likely targeted for stops based on a lesser degree of objectively founded suspicion than whites.”82 However, when accused of the same offenses, Blacks were 30 percent more likely than Whites to be arrested rather than cited.83 The most common charges were public consumption of alcohol and disorderly conduct (both violations, the legal equivalent of a parking ticket), and 42 percent of the citations were later dismissed.84
The most common cause for arrest was possession of marijuana, which is troubling for separate reasons: Marijuana has been decriminalized in New York; simple possession is treated as a violation unless it is in public view. In many of these cases, the “public view” only occurred because of the search. Police order a suspect to empty his pockets, the joint that was in his jacket is now in his hand, and a violation-level charge becomes a misdemeanor. The search, in other words, literally produces the crime.85
David Floyd, along with eleven other people—all Blacks and Hispanics—sued. They argued that in nineteen separate incidents they had been unfairly targeted because of their race and searched without any legal justification, thus violating their rights under the Fourth and Fourteenth Amendments to the U.S. Constitution.86
In the spring of 2013, over the course of a nine-week trial, the City of New York and the New York Police Department tried to defend their “stop and frisk” policy. They argued that the focus on Blacks and Hispanics was justified because “blacks and Hispanics account for a disproportionate share of … crime perpetrators.”87 One of the City’s expert witnesses testified:
Obviously, if particular racial or ethnic groups in New York participate in crime at a rate disproportionate to their share of the population, we would expect officers to conduct … stops for such groups at rates higher than each group’s respective share of the City’s population.88
The judge, Shira Scheindlin, was unsparing in her assessment of the City’s case:
The City and its highest officials believe that blacks and Hispanics should be stopped at the same rate as their proportion of the local criminal suspect population. But this reasoning is flawed because the stopped population is overwhelmingly innocent—not criminal.… [T]here is no basis for assuming that the racial distribution of stopped pedestrians will resemble the racial distribution of the local criminal population if the people stopped are not criminals.…
If the police are stopping people in a race-neutral way, the racial composition of the innocent people stopped should more or less mirror the racial composition of the areas where they are stopped, all things being equal.89
She goes on to argue that even if one demographic group or another is more involved with criminal activity, it in no way follows that innocent people from the same group are more likely to behave suspiciously, giving police grounds to stop them. The use of race as a proxy, it seems, has been substituted for the legal standard of reasonable suspicion and led the police to search for suspects “from the pool of non-criminals not exhibiting suspicious behavior”90—which is, very nearly, the definition of racial profiling. As Judge Scheindlin explains, “To say that black people in general are somehow more suspicious-looking, or criminal in appearance, than white people is not a race-neutral explanation for racial disparities in NYPD stops: it is itself a racially biased explanation.” In other words, “Rather than a defense against the charge of racial profiling, … this reasoning is a defense of racial profiling.”91
Judge Scheindlin ruled that nine of the nineteen stops discussed in court were unconstitutional and, of the remaining ten, five involved unconstitutional searches.92 Moreover, she found that, at an absolute minimum, the police had engaged in 200,000 stops that fail the test of constitutionality.93 She blamed police leaders for their “deliberate indifference” to the rights of minorities, noted the pressure they put on their subordinates to aggressively stop and search people of color, and pointed to shortcomings in record-keeping, supervision, training, and discipline.94 She did not, however, order an end to the stop-and-frisk per se, but only prescribed policy reforms and increased monitoring to change how it is done.95 Such half-measures may reduce the scale of the practice, but they will not stop the police from viewing people of color with suspicion, arbitrarily stopping them, rifling through their pockets, arresting them—and worse.
Consequences of Profiling
On February 4, 1999, a twenty-two-year-old West African immigrant named Amadou Diallo
