Sunday, August 1, 2010
The "racial profiling" aspect of Arizona SB 1070, the controversial statute partially enjoined by a federal district judge last week, has been subject to much discussion. In an article published in April (the month SB 1070 was signed into law), UC Davis Dean, Kevin Johnson, trenchantly discusses racial profiling as a matter of constitutional law. He writes:
It may seem surprising to most readers but racial profiling in law enforcement has long been permitted, if not expressly authorized, by U.S. constitutional law. This is true despite the civil rights revolution of the 1950s and 1960s and the generally positive trajectory of racial progress in the United States over the last century. Indeed, in two major post-civil rights movement decisions that are the subject of this Essay, the U.S. Supreme Court has affirmatively contributed to the predominance of racial profiling in law enforcement in modern America.
The article is entitled How Racial Profiling in America Became the 'Law of the Land': United States v. Brignoni-Ponce and Whren v. United States and the Need for Rebellious Lawyering (draft available on ssrn here), 98 Georgetown Law Journal 1005 (2010). The cases in the title, Brignoni-Ponce and Whren, from 1975 and 1996 respectively, are not in the standard "ConLaw" casebooks because they arise under the Fourth Amendment. For those unfortunate ConLawProfs who do not also teach a course entitled "Criminal Procedure," the Fourth Amendment (like the Sixth and some clauses of the Fifth) can be outside the usual treatments of "Constitutional Law." But as Dean Johnson makes clear, the Fourth Amendment and Equal Protection are inextricably interwoven and our very notions of "constitutional rights" are often at issue in our street-level interactions with government officials.
Johnson suggests that "rebellious lawyering" should include addressing criminal procedure reforms and equality race-based jurisprudence (or legislative action). However, advocates should also:
highlight the effects of race-based law enforcement on the lives of real people, such as Humberto Brignoni-Ponce, a U.S. citizen of Puerto Rican ancestry stopped solely because of his “Mexican appearance,” and Michael Whren and James Brown, two young African-American men who were drug suspects simply because of their race and spent many years in prison as a result. Highlighting the human impacts of the law can be an effective tool for social change in the political process.
98 Georgetown L.J. at 1077. Johnson's ending is a fitting one, for parts of the essay are adapted from the anthology Race Law Stories (2008).