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COLORBLIND RACIAL PROFILING

Colorblind Racial Profiling outlines the history of racial profiling practices and
policies in the United States from 1974 to the present day. Drawing on a
wide variety of sources including case law, newspaper and television report-
ing, government reports, and police manuals, author Guy Padula traces how
institutionalized racial profiling spread across the nation and analyzes how the
United States Supreme Court sanctioned the practice. Insightful and accessible,
Colorblind Racial Profiling is essential reading for all those interested in the history
of racial profiling and criminal justice in the United States.

Guy Padula is Assistant Professor of Law at Renmin University in Beijing,

China, an Adjunct Professor in Temple University’s Beasley School of Law, USA,
Beijing Master of Laws LL.M. Program, and the author of Madison v. Marshall:
Popular Sovereignty, Natural Law and the United States Constitution.
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COLORBLIND RACIAL
PROFILING
A History, 1974 to the Present

Guy Padula
First published 2018
by Routledge
711 Third Avenue, New York, NY 10017
and by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
Routledge is an imprint of the Taylor & Francis Group, an informa business
 2018 Taylor & Francis
The right of Guy Padula to be identified as author of this work has
been asserted by him in accordance with sections 77 and 78 of the
Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or
reproduced or utilised in any form or by any electronic, mechanical, or
other means, now known or hereafter invented, including photocopying
and recording, or in any information storage or retrieval system,
without permission in writing from the publishers.
Trademark notice: Product or corporate names may be trademarks
or registered trademarks, and are used only for identification and
explanation without intent to infringe.
Library of Congress Cataloging-in-Publication Data
Names: Padula, Guy, 1965- author.
Title: Colorblind racial profiling : a history, 1974 to the present / by
Guy Padula.
Description: New York : Routledge, 2018. | Includes bibliographical
references and index.
Identifiers: LCCN 2018004881 (print) | LCCN 2018005634 (ebook)
Subjects: LCSH: Racial profiling in law enforcement—United States. |
Discrimination in criminal justice administration—United States.
Classification: LCC HV7936.R3 (ebook) | LCC HV7936.R3 P33
2018 (print) | DDC 363.2/308900973—dc23
LC record available at https://lccn.loc.gov/2018004881

ISBN: 978-1-138-63077-2 (hbk)

ISBN: 978-1-138-63078-9 (pbk)
ISBN: 978-1-315-17464-8 (ebk)

Typeset in Bembo
by Swales & Willis Ltd, Exeter, Devon, UK
For my Mother
“Colorblind Racial Profiling offers a fascinating tale of how institutionalized racial
profiling was pioneered by the federal government and whitewashed by the
Supreme Court. Guy Padula painstakingly weaves together almost five decades
of discriminatory policing and adjudication and shows how ideas from the secu-
rity apparatus (from border patrol to the police) cross-fertilize and bolster the
practice of racial profiling. This is a book I will assign in my classes.”
–Eduardo Bonilla-Silva, Professor of Sociology,
Duke University, and President of the
American Sociological Association

“This is an eye-opening look into the history and practice of racial profiling.
Guy Padula, a Constitutional Law scholar, examines four programs—the racial
profiling of airline passengers, bus and train passengers, motorists, and pedes-
trians. Examining police training practices, court rulings, and descriptions of
police encounters with citizens, Padula lays bare the ways in which black and
Hispanic Americans are denied their Fourth Amendment rights. Beautifully
written, meticulously researched and passionately argued, Colorblind Racial
Profiling brings much needed attention to the erosion of American civil liber-
ties and the ongoing racial discrimination that has come to shape citizen police
encounters. This should be required reading for anyone trying to understand
race relations in America.”
–Mary Waters, John L. Loeb Professor
of Sociology, Harvard University

“By juxtaposing detailed case studies of racial profiling in policing with the
federal courts’ evasive and at times disingenuous responses, Padula develops an
insightful and rich account of how the justice system has aided and abetted the
development of a ‘colorblind’ ideology that in substance and effect perpetuates
racial hierarchies. An important and richly textured contribution to the legal
and historical literature on America’s twenty-first century color line.”
–Aziz Huq, Frank and Bernice J. Greenberg
Professor of Law, University of Chicago Law School

“Beginning with airplane hijackings in the 1960s and 1970s, law enforcement
agents throughout the U.S. have routinely developed ‘profiles’ of individuals
more likely to commit crimes. Often, these have been laughably inaccurate
or all-inclusive, such as carrying cash in the denominations ‘preferred by drug
dealers’: 1, 5, 10, 20, 50, or 100 dollar bills. Using case law, reviewing every
major U.S. Supreme Court decision, and delving into police training manu-
als as no previous scholarly book has done, Padula shows the breadth of racial
profiling across U.S. criminal justice from airports, train and bus stations, traffic
stops, stop-and-frisk programs, and drug arrests. The book is a must-read, an
encyclopedic review of the past half-century of constitutional misinterpretation
by the Supreme Court and a willingness of various police agencies to target
minorities.”
–Frank Baumgartner, Richard J. Richardson Distinguished Professorship
in Political Science at The University of North Carolina at Chapel Hill
and co-authorof Suspect Citizens: What 20 Million Traffic
Stops Tell Us about Policing and Race (Cambridge, 2018)

“For anyone who cares about racial profiling, Padula’s carefully researched his-
tory should be essential reading. Indeed, for anyone who cares about policing,
or for that matter race, this is essential reading. To be sure, Colorblind Racial
Profiling: A History, 1974 to the Present, provides a history of racial profiling.
But in doing so, it also broadens our understanding of the recent history of this
country.”
–Bennett Capers, Stanley A. August Professor of Law,
Brooklyn Law School

“Padula combines concrete legal reasoning with a sophisticated ethical frame-

work to unpack the fundamental racism at the heart of both American policing
and Supreme Court jurisprudence. He shows how these institutions have com-
bined racism and the War on Drugs into a toxic mixture that has undermined
the basic civil rights of people of color and eviscerated the Fourth Amendment.”
–Alex Vitale, Professor of Sociology at Brooklyn College and
author of The End of Policing (Verso, 2017)

“The everyday interactions between law enforcement and African Americans

remain an open sore in American social life and a continual flash point for racial
confrontation on America’s streets. Yet for decades, the courts have endorsed
supposedly ‘color blind’ procedures in law enforcement. In this brilliant mix of
legal analysis and sociological observation Guy Padula shows how, ironically,
‘color blindness’ in the law actually reinforces racially biased outcomes.”
–Philip Kasinitz, Presidential Professor of Sociology,
City University of New York
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CONTENTS

Acknowledgments xi

Introduction 1

1 He Didn’t Go to Ireland 24

2 We Didn’t Really Know What We Were Looking For 51

3 A Spirit of Apparent Cooperation 80

4 Hit the Road Jack 112

5 There Goes One Now 138

6 That Magic Moment 166

7 Disharmonic Convergences 192

8 Even Hannibal Had a Map 221

9 The Bronx Gulag 255

Conclusion: Shine a Light 272

Index 279
In evaluating Perry’s [the arresting officer] credibility and the weight to be
accorded his testimony, I have considered among other factors, his testimony
that physical limitations on his vision make it difficult or impossible for him
to discern whether a person is Black, Hispanic or Anglo. He testified that
he suffers from both astigmatism and color blindness . . . With regard to his
asserted color blindness, Perry swore that it is nearly impossible for him to
distinguish among Black, Hispanic and White people . . . Indeed, he went so
far as to testify that even when he pulled alongside the defendant’s vehicle,
a few feet from it in broad daylight, his color blindness prevented him from
determining that the driver and passenger were Black. On cross examination,
however, he testified that in looking around the courtroom, he was able to
distinguish Blacks, Whites and Hispanics, but that he could not always do so
while on duty as a law officer. [The defendants’] complexions are very dark
and they are obviously Black. I find to be incredible Perry’s testimony that
he could not distinguish Black from non-Black drivers in broad daylight.

(United States v. Laymon, 730 F. Supp. 332, 335 (D. Colo. 1990))
ACKNOWLEDGMENTS

Writing a book on race and the American criminal justice system while residing
in Beijing presents certain challenges and I have therefore relied more heavily
than most authors on my network of family and friends. Michael Anderson,
Lewis Hussain, Nina Moore, Christopher Norris and Benjamin Van Rooij
all provided valuable substantive comments. Audrey Holdaway was recruited
for her editorial skills. Louie Thompson, the Assistant Dean for Graduate and
International Programs at the Temple Beasley School of Law, was kind enough
to provide funding for a research assistant based in the United States. Thomas
Halper, once again, has been indefatigable in reading multiple versions of all the
chapters. And, my wife, Jennifer Holdaway, has provided moral and intellectual
support throughout the entire process.
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INTRODUCTION

On November 20, 2016, Detective Benjamin Marconi conducted a traffic stop

in front of police headquarters in San Antonio, Texas. While he was writing
up the ticket, another vehicle pulled up behind the officer. The driver got out,
walked up to the patrol car, and shot Marconi twice in the head. Marconi, a
father of two, was taken to a hospital and pronounced dead.1
If Marconi’s murder had been a single isolated incident, the tragedy could be
dismissed as the act of a madman. If two such attacks had occurred on the same
day, it might be rationalized as a strange coincidence. However, on the day
Marconi was murdered, three unrelated and unprovoked ambush attacks were
committed against unsuspecting police officers.2
The past several years have been marked by police shootings of unarmed
civilians, ambush attacks against police officers, numerous protests, some of
them violent, and the rise of law enforcement-related protest organizations.
Many Americans might say this cycle started after the August 2014 shooting of
Michael Brown. However, anger has been simmering for years, and not just in
San Antonio, Texas or Ferguson, Missouri. One of the starkest examples of the
belief that the criminal justice system has become a means of racial oppression
can be found on a YouTube channel entitled “Nycresistance,” and a blog of
the same name. In March 2008, armed with a video camera, a New York City
(NYC) resident (the “Blogger”) began surreptitiously shooting New York Police
Department (NYPD) officers making stop-and-frisks. The Blogger started his
project with the belief that once he made his videos public, the police officers
patrolling his neighborhood would be disciplined for constitutional violations.3
It certainly must have been easy to find stops to record because by 2006 over a
half-million New Yorkers were being stopped and frisked annually.4
2 Introduction

Over time, the Blogger became increasingly disillusioned because rather than
abating, stop-and-frisk grew increasingly pervasive. The Blogger began arguing
the NYPD was aggressively enforcing trivial infractions and traffic violations in
black neighborhoods as a form of extortion to fund city government.5 Whereas
he once thought bad cops were to blame, he eventually proclaimed that he
had “come to find out that the Police Commissioner and Mayor are fine with
this! They are the architects of what you are seeing.”6 He even claimed that
the “NYPD should be seen as an outside force, as an invading army.”7 Those
inclined to dismiss such claims as hyperbole should first consider the words of
the Police Commissioner, Ray Kelly, and Mayor, Michael Bloomberg.
According to the sworn testimony of a New York State Senator, Commissioner
Kelly told him that he had his officers focus on young blacks and Hispanics
“because he wanted to instill fear in them, every time they leave their home,
they could be stopped by the police.”8 NYPD statistics indicate Kelly’s wish
was largely fulfilled. Between 2004 and 2012, 4.4 million stops were recorded,
and 83% of those stopped were either black or Hispanic.9 These stop-and-frisks
were so pervasive that when Reuters randomly sampled twenty-five black NYC
police officers in 2014, “all but one said that, when off duty and out of uniform,
they had been victims of racial profiling.”10 Even Mayor Bloomberg agreed the
program was discriminatory. However, he claimed whites were victims. “I think
we disproportionately stop whites too much and minorities too little. It’s exactly
the reverse of what they say.”11
These disturbing statistics and statements raise an obvious question. How
could racially targeted policing be pervasively practiced and publicly defended
in a city so liberal that it is sometimes derisively referred to as Moscow on the
Hudson? The answer is that the NYPD’s program was no anomaly; it was the
logical and almost inevitable culmination of a forty-year history of institution-
alized racial profiling. However, as a constitutional historian, I must make an
embarrassing confession. I spent years studying and teaching the subject while
remaining largely oblivious to the most flagrant and pervasive constitutional
violation of my lifetime. A fascinating aspect of racial profiling is society’s ability
to turn a blind eye to the practice.

From Brooklyn to Beijing

This book has a somewhat unusual origin. It can be traced back not to my
hometown of Brooklyn, New York, but my place of residence for the past nine
years, Beijing, China. The idea of exploring the history of racial profiling arose
after I was asked to teach a class on the “Rule of Law” at Tsinghua University.
I was delighted by the opportunity because the subject closely coincides with
my research interests. In fact, the first sentence in my first book quoted Thomas
Paine’s declaration that America had replaced a monarchical government with a
system in which “THE LAW IS KING.”12
 Introduction 3

My students in China are adults, practicing attorneys, prosecutors, and judges,

but I knew from experience that some have an overly romanticized view of the
American constitutional system of government. Moreover, I had also read a
somewhat disturbing argument advanced by a Communist Party leader that
China should adopt a constitutional system similar to that of America, albeit one
with certain “Chinese characteristics.” Perhaps legal systems are like time in that
they are relative; but that does not make the better ones perfect, or mean they
should be emulated without careful forethought.
I thus hoped to challenge my students to think more critically about the
nature of a just society while at the same time prudently critiquing those who
seek to exploit the legitimacy provided by constitutionalism in order to consoli-
date political power. The key to this endeavor lay in exploring the difference
between the Rule of Law versus the Rule by Law. I wanted to demonstrate the
need to diligently strive for the former while strenuously guarding against the
latter. A constitution can be a force for good or evil; it can promote equality
or sanction slavery. Since I wanted to discuss these ideas while avoiding any
unscheduled flights back to the States, I thought it wise to choose a topic that did
not directly criticize my host country. Exploring the deficiencies of the American
criminal justice system, particularly the changes which have occurred since the
mid-1970s, would provide an antidote to unquestioning views of the American
legal system. Perhaps more importantly, by openly criticizing my government
in a university classroom, an action which has led to imprisonment for Chinese
professors, I was demonstrating one of the freedoms enjoyed by Americans while
making an unspoken condemnation of political repression in China.
I first considered discussing how the United States has gone from having
one of the world’s most lenient incarceration rates to one of the harshest. From
1973 to 2009, the state and federal prison populations rose from 200,000 to
1.5 million.13 I also thought of focusing on how so few of the incarcerated have
received their constitutional right to a jury trial as opposed to being sentenced
through a plea-bargaining process. It is, to say the least, ironic that the American
Bar Association has long maintained a Rule of Law Initiative in China to pro-
mote a more “just and transparent” criminal justice system.14 Public trials are an
essential part of having a transparent criminal justice system, but that is increas-
ingly rare in America. Shortly after the incarceration rate began its inexorable
rise, the percentage of defendants convicted by a jury began plummeting. From
1977 to 2012, the ratio of federal criminal jury trial cases decreased from about
25% to just 3%,15 and state felony cases decreased from 8% in 1976 to just 2.3%
by 2009.16 As noted more than twenty years ago, the opaque plea-bargaining
process in America, which is conducted completely behind closed doors, “is not
some adjunct to the criminal justice system; it is the criminal justice system.”17
Although these two trends are certainly troubling, I ultimately chose to
explore institutionalized racial profiling, which also began in the mid-1970s,
because it is eerily similar to a form of political repression which occurs in China.
4 Introduction

Authoritarian regimes often maintain power by selectively enforcing generally

unenforced laws to silence dissenters. In a country in which corruption is an
unavoidable part of doing business and tax evasion rampant, the Chinese govern-
ment can always find a pretext to prosecute troublemakers.
Racial profiling, of course, operates on a similar principle. In the U.S., traffic
rules are so minutely regulated that it is hard to drive more than a mile without
committing an infraction. This permits the police to selectively enforce traffic
laws against whomever they choose. The main difference between China and
the U.S. is the targeted population. In China, there is an unspoken rule that if
you do not challenge the government you can generally avoid trouble. In fact,
in some ways, America sometimes feels more like an authoritarian police state
than China.
For example, the police in China almost never stop motorists because the
nation relies on cameras to enforce traffic laws. And, based on the fact that I
accumulated more speeding tickets in just three years of driving in China than
in the prior twenty-five years while living in the United States, one might
even posit that these dreadful devices are more effective than strictly necessary.
Curiously, in an age of technology and preoccupation with cost savings and
robotics, America has not fully embraced traffic cameras, which would of course
have the added benefits of reducing biased policing on the highways as well as
accidental shootings.
Although I originally envisioned discussing institutionalized racial profiling
as an indirect means of critiquing the Chinese state, the more I researched the
practice, the more I began to recognize the profound injustices that character-
ize the American justice system. There appear to be far fewer police–citizen
encounters in China, accidental shootings are unheard of, and, rather than being
reserved for imprisoning political or economic rivals, the practice of selective
enforcement in America is directed against entire racial and ethnic populations.

Research Challenges
Racial profiling implicates two constitutional clauses: The Fourth Amendment’s
right to be free from unreasonable searches and seizures and the Fourteenth
Amendment’s Equal Protection of the Law guarantee. It also clashes with ancient
common-law principles that guilt is personal, not collective, and the idea that
people are innocent until proven guilty. However, as Oliver Wendell Holmes
once said, “a page of history is worth a volume of logic.”18 Therefore, I chose to
explore the historical background of selective enforcement before turning to the
legal issues. How, when, and where did racial profiling originate? These ques-
tions proved to be considerably more difficult to answer than I had anticipated.
One challenge I confronted is that law enforcement in America is intensely
fragmented, with over 12,000 police departments employing almost a half-
million full-time sworn personnel.19 The typical agency, headed by an elected
 Introduction 5

Sheriff answerable to local constituents, illustrates the absence of a centralized,

hierarchical policy-making apparatus. This decentralization presents daunting
research obstacles and raises another question. For decades, statistics have proven
that African American drivers are stopped disproportionately more than white
drivers.20 Why have countless independent law enforcement agencies across the
United States willingly adopted racial profiling policies?
In addition to being deeply fragmented, law enforcement is also highly secre-
tive. When I tried to research how police surveillance techniques have changed
over time by reading police manuals, I quickly discovered police departments
do not share this kind of information with the general public. Since I had pre-
viously taught at the John Jay College of Criminal Justice, the nation’s leading
scholarly and practical center for police training, I had access to one of the best
collections of law enforcement materials in the country. Yet, even here, I could
find only one police training manual focusing upon the subject of surveillance.
Fortunately, the book I did find, Charles Remsberg’s Tactics for Criminal
Patrol, provided the kind of “magic moment” researchers live for.21 Its lessons,
including those on how to avoid racial profiling accusations and convince sus-
pects to waive their Fourth Amendment rights, will be discussed in Chapter 6.
Although Tactics proved to be immensely revealing, I was frustrated by the
lack of other relevant police manuals in the John Jay Library. I therefore tried
running keyword searches in the many thousands of law journal articles that
have been written which address the subject of racial profiling, but I could not
find even a single reference to police manuals or training literature. The vast
literature on racial profiling instead relies on statistics, personal accounts of the
victims, consent decrees, and case law.22
I finally found an explanation for this curious omission in the account of
another scholar who had sought police training manuals to understand what offic-
ers are taught regarding proper arrest procedures. This professor also discovered
that his law school’s librarian could not obtain any police manuals even after con-
tacting “libraries likely to have such materials (such as the library at the California
Department of Justice).” After sending out over a hundred requests under the
Freedom of Information Act, he learned from a number of training officers that

they had little or nothing in writing, and that most training on the
issues . . . was given orally by training officers. I was skeptical about this
at first, but I was told this by so many independent sources that I came to
believe it. One training officer told me, “the average cop doesn’t like to
read much. Give him a book and he’ll put it on a shelf. They like to learn by
listening to more experienced officers.” What about the interrogation
manuals that the Supreme Court assumed in Miranda v. Arizona were
generally used by the police? I was told: “Those were used by detectives,
who do read. They are specialists, not beat cops, who are generalists and
not academically inclined, usually.”23
6 Introduction

Unable to find primary sources in the field of law enforcement, I decided to

turn my attention to the judiciary. I naturally began with the Supreme Court
and ran a search to discover every decision in which the term “racial profiling”
appears. Much to my surprise, the Supreme Court has used the term “racial
profiling” in only three cases and all in passing.24
What makes this omission particularly glaring is that the Supreme Court
rarely avoids controversy. This fact was even noted as far back as the 1830s
when Alexis de Tocqueville wrote that “there is hardly a political question in
the United States which does not sooner or later turn into a judicial one.”25
Since then, the Supreme Court has amassed even greater power and virtually
all modern political battles, including abortion, segregation, the death penalty,
gay rights, affirmative action, and even the contested 2000 presidential election,
were ultimately debated before the Court.
The Court’s prolonged silence on one of the most significant constitutional
issues of our time is analogous to the Sherlock Holmes hound that did not bark.
It speaks volumes and helps explain how institutionalized racial profiling could
be practiced for so many years before its prevalence was generally recognized.
In fact, the Court’s avoidance of the term “racial profiling” is part of a much
larger pattern that finds “Fourth Amendment case law . . . remarkably silent on
the racial dimension of encounters between citizen and police.”26

Colorblind Racial Ideology

The Court’s silence on this controversial topic parallels a broader societal phe-
nomenon, sometimes labeled “colorblind racial ideology.” Even readers who
are unfamiliar with the term will recognize the idea. One of its proponents,
Eduardo Bonilla-Silva, has postulated that “despite the profound changes that
occurred in the 1960s, a new racial structure—the new racism for short—is
operating, which accounts for the persistence of racial inequality.”27 Pivotal to
this new racism, which maintains the old goal of keeping minorities “in their
place,” is the “rearticulation” of racial politics.28 Advocates of this theory claim
the new-right has developed a politically acceptable dialogue which is capable
of subtly conveying messages of racial animus to their intended audience.
The rearticulation of racial ideology allegedly has progressed in three stages. It
began with the use of “code-word” politics. Phrases and symbols were employed
that do not directly challenge popular democratic or egalitarian ideals such as jus-
tice and equal opportunity, but at the same time imply or refer indirectly to racial
themes. Richard Nixon’s use of the term “law and order” during the 1968 presi-
dential election is a famous illustration of this strategy. As the New York Times
explained weeks before the 1968 election, Nixon’s code-worded call for “law
and order,” by adopting the catchphrase of white segregationists, was understood
to subtly, or not so subtly, express “resentment or fear of the Negro.”29
Code-word terminology was followed by “reverse-discrimination”-type
arguments. Whites began arguing that preferential treatment programs sponsored
 Introduction 7

by the government as well as affirmative action policies in academia represented

reverse racism. Reverse-discrimination arguments naturally led to a closely related
but somewhat more sophisticated approach which has been labeled “colorblind”
racial ideology. This final stage of the rearticulation process is said to be based on
the myth that “race has all but disappeared as a factor shaping the life chances of
all Americans.”30
Years before sociologists formulated their theory of colorblind racial ideol-
ogy, a prominent political strategist outlined how his Republican Party had
rearticulated discussion of racial issues. Although Lee Atwater, the former
Republican Party Chairman and 1988 campaign manager for George H.W.
Bush, did not use the terms “code-words” or “colorblind racial ideology,” he
clearly alluded to such concepts during a taped interview in 1981:

Here’s how I would handle that issue . . . as a psychologist, which I am

not, is how abstract you handle the race thing. You start out, I don’t want
you to quote me on this, you start out in 1954 by saying, “Nigger, nig-
ger, nigger.” By 1968 you can’t say “nigger”—that hurts you, backfires.
So you say stuff like, uh, forced busing, states’ rights, and all that stuff,
and you’re getting so abstract. Now, you’re talking about cutting taxes,
and all these things you’re talking about are totally economic things and
a byproduct of them is, blacks get hurt worse than whites . . . “We want
to cut this,” is much more abstract than even the busing thing, uh, and a
hell of a lot more abstract than “Nigger, nigger.”31

Although the title of this book is obviously inspired by the concept of color-
blind racial ideology, the theory suffers from reductionism. Nixon may have
cynically adopted the catchphrase of white segregationists, but the slogan reso-
nated because the homicide rate had risen by 72% between 1957 and 1968,
while the incarceration rate had fallen by almost 17%.32 1968 was also one
of the most tumultuous years in American history. Martin Luther King and
Robert Kennedy were both assassinated; civil disturbances broke out in over
one hundred cities; U.S. Army troops even had to defend Washington as loot-
ing and fires spread within two blocks of the White House; and the Democratic
National Convention was marred by massive protests and by what has been
labeled a “police riot.”
Colorblind racial ideology is also ahistorical. Resentment against a perceived
“reverse racism” did not originate in the 1970s; it was evident a century before
when the Supreme Court overturned an 1875 federal law banning segregation
across the entire nation:

When a man has emerged from slavery, and by the aid of beneficent legis-
lation has shaken off the inseparable concomitants of that state, there must
be some stage in the progress of his elevation when he takes the rank of a
mere citizen, and ceases to be the special favorite of the laws.33
8 Introduction

The flaws of “colorblind racial ideology” notwithstanding, the theory helps

explain a remarkable phenomenon: many white Americans remain oblivious to
the persistence of segregation and the stark economic inequality between the
races. For example, Pew Research reported in 2013 that the median net worth
of households headed by whites was roughly thirteen times that of black house-
holds ($144,200 and $11,200 respectively). Yet a remarkable 42% of whites
believe that blacks are as well off as whites or are even doing better.34

A Strange Silence
Just as some Americans have been afflicted with a form of colorblindness
which allows them to proclaim their faith in the ideals of integration and racial
equality while ignoring the continued existence of segregation and economic
disparity, the Supreme Court’s colorblind jurisprudence has permitted it to
declare an adherence to “Equal Justice Under Law” while avoiding any recog-
nition of how the police have been systematically targeting blacks and Latinos
for decades.
The development of this peculiar jurisprudence began with United States v.
Brignoni-Ponce (1975).35 In this illegal immigration case, a Border Patrol Agent
testified that the only reason he had stopped a motorist was because the driver
looked “Mexican.”36

Q. Did these people in the car appear to be of Mexican descent to you?

A. Yes, sir.
Q. And that, if there was any, appeared to be the reason you stopped them?
A. Yes, sir.37

In Brignoni-Ponce, the Court ruled a stop based on the sole criterion of race
is constitutionally impermissible, but it also suggested a list of non-racial fac-
tors that officers could recite to future judges to make such stops legal. The
message was clear. If an arresting officer testifies that she stopped a car solely
because the occupants looked Mexican, the trial judge has to find a constitu-
tional violation. However, if the same officer making the same stop stresses
some of the additional factors suggested by the Supreme Court, such as the
occupants’ clothing and hairstyle, or the time of day and type of car, then the
stop becomes permissible.
The Brignoni-Ponce approach helps explain how the Court has managed to
sanction racial profiling while avoiding the subject of race. In other areas of the
law, such as freedom of speech, abortion, or affirmative action, the relevant
terminology is repeated throughout the Court’s opinions. Yet, in landmark
racial profiling cases, the issue of race is only briefly alluded to, and sometimes
not even mentioned at all. Selective enforcement cases certainly exist; they just
cannot be found using the most obvious search terms.
 Introduction 9

The greatest challenge in writing a history of racial profiling is presented by

the Three Wise Monkeys, who neither hear, see, nor speak of evil. Police offic-
ers have been instructed not to discuss race; colorblindness renders the Supreme
Court incapable of seeing race; and law enforcement agencies keep their inter-
nal documents hidden from public view. Fortunately, there are four publicly
available sources that can be used to trace the development and spread of racial
profiling practices.
The first two are judicial decisions and transcripts from lower court hearings.
As the above exchange from Brignoni-Ponce illustrates, criminal defense attor-
neys, unlike most police officers, prosecutors, and Supreme Court Justices, are
hardly averse to addressing the subject of race. Investigative journalism provides
the third rich source of material, and this book would have been impossible
to write but for the outstanding work of various reporters. Finally, several law
officers who played pivotal roles designing and implementing institutionalized
racial profiling policies have written memoirs that proved invaluable.
By exploiting these four resources, I was eventually able to trace the his-
tory behind the rise and spread of institutionalized racial profiling in America.
Perhaps it is not entirely coincidental that state-sanctioned racial profiling began
at almost the exact moment that America’s incarceration rate began rising expo-
nentially. In 1974, a Drug Enforcement Administration (DEA) agent, Paul
Markonni, was tasked with the responsibility of identifying drug couriers as
they walked through the Detroit Metropolitan Airport terminal.38 As Markonni
himself later admitted, “when we started this detail at the airport, we didn’t
really know what we were looking for.”39 He would, however, quickly decide
who he was looking for. Inspired by a previously constructed profile used to
identify potential skyjackers, Markonni compiled a “list of deviant character-
istics” based on his untested belief that most drug couriers are black women.40
Soon prosecutors began referring to his list as a “drug courier profile.”41
The first institutionalized racial profiling case to reach the Supreme Court
was United States v. Mendenhall (1980), and it involved the use of Markonni’s
“profile” in the Detroit airport. Not surprisingly, the defendant just so hap-
pened to be a black woman. The arresting officer echoed what the arresting
officer had said in Brignoni-Ponce by admitting under oath that he had noticed
the defendant simply because she was a black woman traveling alone.42
The officer supplemented this testimony by also saying that he had found
Mendenhall suspicious because she was the last person to exit the aircraft and
was walking very slowly, but this testimony exposed the central flaw in the
advice the Court offered in Brignoni-Ponce. If a person is stopped because of the
color of her skin, describing innocuous and perfectly innocent behavior will
fail to establish the requisite level of legal suspicion required to make a stop. In
Mendenhall, the additional factors mentioned by the arresting officer were so
weak that even the prosecution conceded the officer did not have legal justi-
fication to make a stop.43
10 Introduction

The federal Sixth Circuit Court of Appeals had found Mendenhall’s arrest to
be so obviously unconstitutional that it issued a two-sentence decision overturn-
ing her conviction.44 However, the Supreme Court reversed that ruling and set
forth a radical reinterpretation of the Fourth Amendment. In Mendenhall, the
Supreme Court rejected its own traditional approach to adjudicating Fourth
Amendment disputes—demanding that law enforcement agents offer “individ-
ualized” and “articulable suspicion” to justify stopping and searching a suspect.
Articulable suspicion essentially means that the arresting officer must be able to
explain to a judge why a suspect’s behavior was indicative of possible criminal
behavior. When the police implement racial profiling actions, however, the
arresting officer by definition focuses on an individual’s skin color and not her
behavior. Therefore, it is hardly surprising there was a decided lack of articula-
ble suspicion in Mendenhall and all the other racial profiling cases that reached
the Supreme Court.
The Court responded in Mendenhall by reclassifying her stop as a mere
“encounter,” thus largely eliminating the Fourth Amendment right to be
free from unreasonable “stops or seizures.”45 The Court then asked whether
the defendant had decided to “waive” her constitutional rights and willingly
cooperated with the police.46 Mendenhall is portrayed as an upstanding citi-
zen, a woman who “voluntarily [and] in a spirit of apparent cooperation”
agreed to be interrogated in a private locked office and searched.47 The Court
never asked why someone transporting heroin would be so cooperative, and
the majority ignored the arresting officer’s testimony that Mendenhall had no
choice but to obey his “requests.”48 This “consent”-based interpretation of the
Fourth Amendment switches the focus of judicial inquiry from the suspect’s
allegedly suspicious behavior preceding the stop to her reactions afterwards.
Individualized suspicion becomes inconsequential; the only issue becomes the
question of consent.

The Doctrine of Informed Consent

Today’s practice of racial profiling should not be confused with the barbaric
type of law enforcement that was so common during the Jim Crow era.
Though occasional cases were publicized, physical abuse used to be so com-
monplace that it constituted standard operating procedure and its defenders
were regularly elected to office. Consider, for example, a landmark case from
1936, Brown v. Mississippi, in which three black tenant farmers were suspected
of killing a white planter.49

During his “interrogation,” Ellington was hung by his neck from a tree
limb twice but still maintained his innocence and continued to do so even
after he was subsequently whipped. After being “severely whipped” again
the next day, Ellington finally confessed. Brown and Shields received
 Introduction 11

similar treatment. They were made to strip and they were laid over chairs
and their backs were cut to pieces with a leather strap with buckles on it
by the Deputy Sheriff and two other men. Six days after the murder, the
defendants were found guilty in a trial that lasted all of thirty minutes.
The Deputy Sheriff was asked during his testimony if he had whipped
the defendants to make them confess. He replied “not too much for a
negro.”50

Brown v. Mississippi marked the first time the Supreme Court struck down
a state criminal conviction because of a forced confession. The case was the
beginning of a long string of decisions in which the Court began prohibiting
local law enforcement agencies from inflicting “the third degree” and getting
suspects to waive their Fifth Amendment right against self-incrimination by
“voluntarily” confessing. The 1936 Brown decision eventually led to Miranda v.
Arizona (1966), which set forth the principle of “informed consent.”51 Miranda
famously held that police officers must inform suspects upon arrest of their Fifth
Amendment right to remain silent and their Sixth Amendment right to consult
with an attorney.
Although police brutality still rears its ugly head on occasion, today’s racial
profiling eschews physical force. It is often characterized not by an iron fist, but
by civil conversation, politely framed requests, and even light banter. These
conversations might be exceedingly polite, but they occur in a context in which
only one of the parties is armed with a gun and legally authorized to use physi-
cal force. Moreover, as Chief Justice Earl Warren emphasized in his Miranda
opinion, “coercion can be mental as well as physical.”52 If the police are not per-
mitted to use physical or psychological coercion to “persuade” suspects to waive
their Fifth and Sixth Amendment rights, why should such measures be permit-
ted in the context of the Fourth Amendment? The best explanation for this
jurisprudential inconsistency is that shortly before the mid-1970s transformation
of America’s criminal justice system, as marked by the rise of mass incarceration,
the replacement of criminal trials with mass plea bargaining, and the advent of
institutionalized racial profiling, another critical change occurred which perhaps
made these latter phenomena possible.
After Richard Nixon won the 1968 election, he was given the opportunity
to reshape the Court. The majority in Miranda comprised just five Justices and
three left the Court during President Nixon’s first term in office. Abe Fortas,
Earl Warren, and Hugo Black (and John Marshall Harlan II who dissented)
were replaced by Harry Blackmun, Warren Burger, Lewis Powell, and William
Rehnquist. These more conservative Justices wanted to overturn Miranda, not
extend its holding to the Fourth Amendment.53 Although Miranda ultimately
survived, the Court has practically invited the police to use psychological coer-
cion to manipulate suspects into waiving their Fourth Amendment rights by
“asking” them to “consent” to stops, interrogations, and searches.54
12 Introduction

What makes these police encounters particularly disturbing is that, according

to numerous police records and estimates, well over 90% of the people who
were stopped and searched without probable cause in various institutionalized
racial profiling programs were completely innocent.55 Most of those involved
may have suffered no bodily harm, but these discriminatory programs have
exacted a terrible toll on the individual and collective level nonetheless.
It could also be argued that although the police rarely resort to physical force
today, African Americans have always been targeted by the police and the only
change has been one of degree and not kind. It is certainly true that many police
officers would have stopped an unrecognized black man driving in the white
part of town in the 1950s. However, there is no evidence that I have seen indi-
cating officers prior to the 1970s were officially trained and ordered to stop a
certain daily number of black airline passengers, bus passengers, motorists, those
walking in predominantly black neighborhoods, or, as we shall see, those sim-
ply sitting on benches outside their apartment buildings. The fact that the term
“racial profiling” was not even coined until the 1990s offers further evidence
that the practice is a relatively new phenomenon.56
Racial profiling has been brought about by developments in modern polic-
ing. Whereas law enforcement used to be reactive in nature, it now strives to
be proactive. Rather than investigating crimes after they have been committed,
the police increasingly seek to prevent crime by identifying people that they
believe are the most likely to commit crime. Law enforcement has also mir-
rored developments in the corporate world in that it strives to be more efficient.
Police officers today are given target levels or quotas regarding the number of
motorists or pedestrians to stop.57 This explains why the scale of racial profiling
overshadows anything that occurred during the days of Jim Crow, and why it is
just as likely to be practiced in northern cities as in the Old South.

A Moral Incongruity
A more detailed chapter summary follows, but the structure of the book is
straightforward. Other than the first chapter, which recounts how a police
shooting on the New Jersey Turnpike in 1998 made racial profiling a national
issue for the first time, the book is chronological and it covers from 1974 to
the present. Four nationwide institutionalized racial profiling programs are
recounted. After first targeting minority airline passengers, authorities turned to
bus and train passengers. The third program focused on minority motorists and,
with the stop-and-frisk program in NYC, even black and Latino pedestrians
now face heightened scrutiny.
The four programs are taken in turn and most are covered in two chapters.
The first chapter, relying on police memoirs, investigative news reports, and
trial transcripts, focuses on the specific agents who first designed and imple-
mented the particular program. The following chapter then examines how
 Introduction 13

local courts, and ultimately the United States Supreme Court, ruled on the
constitutional issues raised by the law enforcement policies. One of the book’s
main contributions is that the story behind these four programs has never
before been woven into a single narrative.
Previous authors have certainly condemned the policies, and others have
critiqued the Supreme Court’s decisions.58 However, no author has juxtaposed
a close examination of the four law enforcement programs with an analysis of
the Supreme Court rulings. Moreover, previous authors have also neglected to
consider the lower court decisions. Thus, the story of how trial and appellate
court judges valiantly fought against discriminatory practices has gone untold.
These judges condemned the discriminatory programs with language rarely
found in judicial opinions, and sometimes even freed guilty criminals at great
risk of public condemnation. Trial and appellate court judges are the unsung
heroes of this history.
For example, when the first airport “drug courier profile” cases reached
the Sixth Circuit, that court not only ruled the practice unconstitutional, but
it also made derisive references to “the much abused drug courier profile.”59
Afterwards, when the institutionalized racial profiling spread to bus depots
and train terminals in Florida, the Supreme Court of Florida compared these
sweeps to something one would expect to see in “Hitler’s Berlin [or] Stalin’s
Moscow.”60 When Florida highway troopers subsequently pioneered the prac-
tice of targeting minority motorists, the Eleventh Circuit Court of Appeals and
the Florida Supreme Court repeatedly ruled such stops to be unconstitutional
and the former sarcastically insulted the trooper who designed it.61 Finally, after
NYC instituted its stop-and-frisk program targeting pedestrians, a local federal
judge so strongly condemned the practice that she was publicly rebuked and
removed from the case.62
Although these judges attempted to police the police, another heretofore
neglected story has been the inability of courts to counter flagrant police mis-
conduct and their constitutional transgressions. As one local court in New Jersey
complained, “It is morally incongruous for the State to flout constitutional pro-
tections and at the same time demand that its citizens obey the law.”63
The judiciary has but one weapon to uphold the Fourth Amendment’s
guarantee against unreasonable search and seizure: the exclusionary rule. The
Supreme Court invented this curious device in 1914.64 Judges use the exclu-
sionary rule to exclude evidence when a defendant’s Fourth Amendment rights
have been violated in order to discourage police misconduct in the future. For
example, if a defendant is arrested for carrying an illegal firearm but the gun
was discovered after an illegal search, the state will not be permitted to submit
the gun into evidence to prove the charge. In this scenario, the prosecutor can
no longer win the case and will decline to prosecute. The disappointment the
police officer feels upon seeing a guilty defendant released is supposed to incen-
tivize her to reform her behavior in the future. However, freeing a menace to
14 Introduction

society is a rather indirect method for deterring illegal searches and seizures. It is
in fact hard to imagine a more bizarre manner of upholding constitutional rights
than asking judges to free guilty criminal defendants caught red handed.
A more obvious method would be to penalize state actors who commit con-
stitutional violations. There certainly is a deep moral incongruity in the present
state of affairs which helps explain the frustration and anger which is sometimes
directed at the police. Citizens can be harshly penalized for violating the most
trivial of infractions, but police officers can deliberately violate the Constitution
with impunity. For example, the Supreme Court has specifically held that if a
motorist commits a seat-belt infraction, she is subjected to being pulled over,
fined, searched, handcuffed (in front of her crying children), arrested, finger-
printed, and put into jail.65 (The officer who did this subsequently even failed to
fasten the defendant’s seat belt after he placed her in his patrol car.)66
While citizens can be arrested and imprisoned for a seat-belt violation, police
officers often escape any punishment for purposeful civil liberty and civil rights
transgressions. As we shall see, during the 1980s, the Eleventh Circuit issued
two rulings holding that a highway patrolman in Florida, Robert Vogel, was
selectively targeting motorists based on a “drug courier profile” that he had
constructed and later by switching to pretext traffic violation stops based on the
most trivial traffic infractions.67 After he continued making these profile/pretext
stops, local prosecutors simply diverted future cases to state courts, hoping those
judges would decide differently. Vogel even persisted after the Florida Supreme
Court also ruled these stops unconstitutional.68 Rather than being disciplined,
Vogel was instead elected Sheriff and later permitted his officers to be filmed
on national television making the kind of traffic stops that had been declared
unconstitutional.69 The extent of these egregious violations was revealed by a
newspaper’s investigative review of police videotapes. Sixty-nine percent of the
motorists Vogel’s officers were stopping were people of color in a jurisdiction in
which only 5% of the motorists on the highway were black or Latino.70
Another disturbing pattern I discovered in researching this book is how the
Supreme Court has abandoned traditional Fourth Amendment principles when
the police have largely targeted people of color, but suddenly rediscovered the
requirement of “articulable suspicion” when random stops have been applied
universally and ensnared whites as well as blacks, such as in the case of narcotics
roadblocks.71 In these types of cases, the Court suddenly reverted to traditional
Fourth Amendment principles and overturned these police practices.
Even more upsetting is the Court’s double standard in its application of the
Equal Protection Clause. The jurisprudential obstacles created by the Court
are so insurmountable that forty years after the institutionalization of selec-
tive enforcement practices, the Court has yet to decide the merits of a single
racial profiling claim.72 Yet no such obstacles confront white litigants when they
allege an employment program or a university’s affirmative action policy vio-
lates the Equal Protection Clause. The Court has decided dozens and dozens of
 Introduction 15

affirmative action cases while refusing to even utter the words “racial profiling,”
and all the while they sit inside a building in which “Equal Justice Under Law”
is literally carved in stone on its edifice.
It is hardly surprising that after the Court sanctioned the selective target-
ing of airline passengers, bus and train passengers, and then motorists, a police
force took the final step and began targeting pedestrians. Society’s remarkable
ability to ignore racial profiling practices, a failure once shared by this author,
helps explain how the NYPD could record making more stops of young black
men in 2011 than the total number of young black men living in NYC.73
That anonymous YouTube Blogger, who began recording these stops in 2008,
wanted those New Yorkers who were not being subjected to such police scru-
tiny to recognize what was happening. This book represents a continuation of
that endeavor.

Chapter Summary
In addition to providing a history of racial profiling, this book more impor-
tantly attempts to explain how a society which extols equality of law principles
and overwhelmingly condemns racial profiling could permit such a pervasive
constitutional violation to be perpetuated for almost half a century.74 The first
chapter recounts how the majority of Americans first learned of the existence of
institutionalized racial profiling after the police shot three innocent men during
an otherwise routine traffic stop on the New Jersey Turnpike in 1998. Before
this incident, few white Americans had heard the expression “driving while
black.”75 However, public defenders had been alleging for years that troopers
were stopping motorists who fit a racial “profile”—minorities driving new or
expensive cars or cars with out-of-state plates.76
Two years earlier, in 1996, in a little-noticed decision, a New Jersey trial
court judge had ruled that New Jersey state troopers had in fact adopted “at least
a de facto policy” of targeting minorities for investigation and arrest.77 After the
shooting occurred, and the officers were criminally prosecuted, the worst fears
of racial profiling opponents were proven: the officers admitted they had been
trained to target minority motorists on the highway and to conceal that fact
from public view. Racial profiling was a de jure policy in New Jersey and there
had been a widespread conspiracy to keep that fact secret.
The shooting also led to investigations by the New Jersey State Government,
the U.S. Department of Justice, and the national media. These investigations
revealed that although the New Jersey Governor, the Attorney General, and
the Superintendent of Police had all publicly denied racial profiling allegations,
all three had been secretly colluding to ensure the police targeted minority
motorists, and they continued to do so even after the Justice Department began
its investigation. The evidence was so overwhelming that the Governor ulti-
mately declared “racial profiling was real, not imagined,” while disingenuously
16 Introduction

calling for an investigation to determine who was responsible. Ultimately, no

one was punished; neither for the constitutional violations, nor for the wide-
spread crimes of filing false police reports or for suborning perjury. As the first
chapter explains, racial profiling is better than the perfect crime because even
when the violation is detected, there is still no remedy for the victims or penalty
for the offenders.78
The first half of the second chapter examines United States v. Lopez (1971),
the most important judicial examination of perhaps the world’s first predictive
criminal profile: the skyjacker profile. In his analysis of the legal and ethical
dangers of predictive criminal profiles, Judge Jack Weinstein prophetically
warned that “proposals based on research designed to predict who might com-
mit crimes and giving them the special attention of law enforcement agencies
is [sic] particularly disturbing.”79 Although exactly this idea was eventually put
into practice as part of the NYC stop-and-frisk program, the first three stages of
racial profiling were based not upon reliable scientific research, but simply upon
anecdotal evidence and unproven assumptions.
The second half of the chapter focuses on the “drug courier profile” con-
structed by DEA Agent Markonni. The “profile” justified arbitrary stops because
it listed the most innocent of acts as suspicious such as using a telephone or
the bathroom after landing, taking a taxi to or from the airport, and walking
quickly. But one criterion did distinguish a select few passengers: race. It may
seem shocking today, but DEA agents repeatedly testified, often on direct exami-
nation, that they were targeting African Americans and Latinos; that the vast
majority of travelers they stopped were minorities; and that 98% of the passen-
gers they stopped were guilty of no crimes. Not surprisingly, most trial courts,
and all the federal appellate courts which heard these cases, rejected the idea that
mere conformity to the “profile” justified a stop and search.
The third chapter begins with an examination of the connection between
the enforcement of immigration laws at the nation’s southern border and the
rise of racial profiling. It discusses how the Supreme Court explicitly sanctioned
the use of race as a criterion of suspicion in the 1975 Brignoni-Ponce ruling. Since
Markonni was at that same moment developing his “list of deviant character-
istics,” it appears DEA airport agents may have concluded targeting minority
airline passengers was perfectly acceptable.
The chapter then turns to an examination of the first three cases in which the
Supreme Court considered the use of Markonni’s “drug courier profile.” In the
first case, Mendenhall, the Supreme Court was given the perfect opportunity to
end the nation’s first institutionalized racial profiling program.80 The prosecution
conceded that police had lacked probable cause to stop and search the defend-
ant. However, after setting forth a new “consent”-based doctrine of the Fourth
Amendment, a bare majority of Justices concluded that Mendenhall’s constitu-
tional rights had not been violated because she had agreed to be interrogated in
a private office and willingly submitted to be searched.
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