CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, January 20, 2020

Rushin & Edwards on Empirically Assessing Pretextual Stops and Racial Profiling

Stephen Rushin and Griffin Sims Edwards (Loyola University Chicago School of Law and University of Alabama at Birmingham - Department of Marketing, Industrial Distribution & Economics) have posted An Empirical Assessment of Pretextual Stops and Racial Profiling on SSRN. Here is the abstract:
This Article empirically illustrates that legal doctrines permitting police officers to engage in pretextual traffic stops may contribute to a statistically significant increase in racial profiling. In 1996, the U.S. Supreme Court held in Whren v. United States that pretextual traffic stops do not violate the Fourth Amendment. As long as police officers identify an objective violation of a traffic law, they may lawfully stop a motorist — even if their actual intention is to use the stop to investigate a hunch that by itself does not amount to probable cause or reasonable suspicion.

Scholars and civil rights activists have widely criticized Whren, arguing that it gives police officers permission to engage in racial profiling. But social scientists have historically struggled to develop an empirical methodology to evaluate how Whren influenced police behavior.

The State of Washington presents a unique opportunity to test the effects of pretextual stop doctrines on police behavior. In the years since the Whren decision, Washington has experiment with multiple rules that provide differing levels of protection against pretextual stops. In 1999, the Washington Supreme Court held in State v. Ladson that their state constitution barred police from conducting pretextual traffic stops. Then in 2012, the Washington Supreme Court changed course in State v. Arreola, concluding that officers could conduct “mixed motive stops,” effectively legalizing the use of tactics akin to pretextual traffic stops.

By relying on a comprehensive dataset of 8,257,527 traffic stops conducted by the Washington State Patrol from 2008 through 2015, we find that the Arreola decision is associated with a statistically significant increase in traffic stops of non-white drivers relative to white drivers. Further, we find this increase in traffic stops of non-white drivers concentrated during daytime hours, when officers can more easily ascertain a driver’s race through visual observation. We also find evidence that police officers search the vehicles of non-white drivers more frequently than white drivers after Arreola.

Combined, this data provides compelling evidence that judicial decisions like Whren and Arreola may increase the probability of racial profiling by police officers. We conclude by discussing the implications of these findings for the literature on police accountability.

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