crim-journal-16-17

Upcoming Events

There are no upcoming events.

Driving While Black: Racial Profiling and Traffic Stops

Written by Erin E. Woods, Juris Doctor Candidate May 2015

I. Introduction

You drive by a policeman, and for some reason, he doesn’t much like the looks of you. Maybe your car is shabby; maybe you are.  Maybe you are out late in a high-crime neighborhood. Maybe you are in a low-crime area, but you are part of a high-crime demographic group.  The reason does not much matter—to him you are a suspicious character, that’s all.  The policeman pulls up behind you. You will make a mistake.  You say you did use your turn signal to change lanes? He didn’t see it. Or, prove to him that you did not exceed the speed limit by one mile per hour when you were busy looking at him in your rear-view mirror. You’ll never be charged with the violations—you’re just being stopped and detained to see if his hunch about you was right.  Perhaps he’ll ask if you mind if he searches your car.  You wouldn’t refuse unless you had something to hide, right? You have just been detained and possibly searched because someone did not like the looks of you.  City of Dayton v. Erickson, 76 Ohio St. 3d 3, 12, 665 N.E.2d 1091 (1996) (Pfeifer, J. Dissenting).

Pretextual stops based on race, known as Driving While Black [DWB], is a common phenomenon which occurs when police, with a “legitimate” reason, pull over blacks when the real reason for the stop is influenced by a prejudiced, stereotyped, and racist view of that person.  See David A. Harris, The Stories, the Statistics, and the Law: Why “Driving While Black” Matters, 84 Minn. L. Rev. 265, 266 (1999).  Though many people doubt the legality of such stops, they would be wrong in assuming that pretextual stops are illegal. Based on a number of United States Supreme Court cases, traffic offenses are a gateway for police to conduct numerous stops, searches, questioning, and drug dog sniffs.  There is of course a huge amount of discretion for police to use pretextual stops to pull over certain people. Not every cop has to pull over every motorist who commits a minor traffic violation, and most cops probably do not. But if the police have some hunch that a person is suspicious, they will use a minor traffic violation to pull that person over and see whether their hunch is correct.  The consequence of this is that enforcement of traffic laws are based on external factors, rather than actual law breaking.  Id.

Not surprisingly, police use this discretion in a racially biased way.  Police departments have capitalized on legal precedent to use traffic offenses as an excuse to stop blacks on the roadway.  They engage in pretextual stops because they believe it helps catch crime, and police believe that since blacks are disproportionately arrested for certain crimes, it justifies the disproportionate number of blacks stopped.  Id. at 267–86.  That of course begs the argument: if police are only targeting blacks, it’s no wonder that they are disproportionately the ones arrested for crimes. The result is often the criminalization of blackness.

The problem is not one of mere perception or deep-rooted animosity between blacks and law enforcement.  Numerous interviews, studies, and statistics have shown that racial profiling through the use of traffic stops is a real problem.  Id. at 266–67.  My own personal observations seem to correspond with the idea that blacks are disproportionately stopped for traffic violations. Working as one of the prosecutors in traffic arraignment court at the Franklin County Municipal Court, I have noticed that the racial breakdown in our traffic court is easily 60% black on any given day.  This is troubling considering that, as of 2013, the population in Columbus, Ohio is 28% black and 61.5% white.  State and County QuickFacts, United States Census Bureau (July 8, 2014),, http://quickfacts.census.gov/qfd/states/39/3918000.html.  Certainly there are other variables at play that could account for the disproportionate number of minorities in traffic court other than DWB, but can they explain away such a big disparity.

II. Pretextual Stops Based on Race

A. Court Sanctioned Behavior

When people hear about DWB or pretextual stops in general, a common question is whether police are allowed to do this.  The answer is yes.  While police need a reason to pull a person over, that reason is often in the form of a minor traffic violation, which is almost always found.  Harris, supra, at 310.  The United States Supreme Court has said that automobiles are heavily regulated, readily mobile, and are inherently less private than the home, which means that they can be stopped and searched without a warrant if probable cause exists to believe there is evidence of crime.  See Carroll v. United States, 267 U.S. 132, 161–62 (1925) (when police have probable cause, a warrantless search of the vehicle is justified when it is not practicable to get a warrant since cars can easily be moved out of the jurisdiction); California v. Carney, 471 U.S. 386, 390–393 (1985) (a motor home’s mobility and the fact that it has “a reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulations inapplicable to a fixed dwelling” justifies warrant exception).  The direct question of whether pretextual stops are constitutional was answered by the Supreme Court with a unanimous “yes” in Whren v. United States, 517 U.S. 806 (1996).

The question in Whren was whether a stop “of a motorist who the police have probable cause to believe has committed a civil traffic violation is inconsistent with the Fourth Amendment’s prohibition against unreasonable seizures unless a reasonable officer would have been motivated to stop the car by a desire to enforce the traffic laws.”  Id. at 808.  The petitioners in the case were arguing for the Court to adopt the “would have” or “reasonable officer” test. Under this test, the Fourth Amendment inquiry is whether the police officer, acting reasonably, would have made the stop for the given reason.  Margaret M. Lawton, The Road to Whren and Beyond: Does the “Would Have” Test Work? 57 DePaul L. Rev. 917, 917 (2008).  Put differently, would the officer have made the stop absent any subjective, ulterior motives? If the answer is no, then the stop should be ruled an unconstitutional seizure.

Rejecting the petitioners’ argument, the Court instead adopted the “could have” test: could the officer have made the stop absent any subjective, ulterior motives? If the officer could have pulled the person over, then there is no constitutional violation.  The Court held that so long as there has, in fact, been a traffic violation, police have probable cause to pull a person over.  Whren, 517 U.S. at 819.  An officer’s subjective intent in pulling the person over has no bearing on whether or not the seizure was constitutional so long as there has been a violation.  Id. at 813.  Essentially, police can use traffic stops to investigate their suspicions, even if those suspicions have nothing to do with the traffic violation itself, ushering in the legality of pretextual stops.

Most scholarly criticism of the Court’s decision has focused on that fact that it allows unfettered police discretion to conduct pretextual stops based on unconstitutional factors such as race.  Lawton, supra, at 917.  While the Court noted that “the Constitution prohibits selective enforcement of the law based on considerations such as race” statistics, studies, and interviews have proven the Court wrong in assuming that its decision would not be a vehicle for police to use race impermissibly when conducting traffic stops. Whren, 517. U.S. at 813.  One well-known scholar put his dissatisfaction with the opinion this way: “The totality of the Court’s analysis in Whren is, to put it mildly, quite disappointing. By misstating its own precedents and mischaracterizing the petitioners’ central claim, the Court managed to trivialize what in fact is an exceedingly important issue regarding a pervasive law-enforcement practice.”  Wayne R. LaFave, The “Routine Traffic Stop” From Start to Finish: Too Much “Routine,” Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843, 1859 (2004).

B. The Nature of the Traffic Stop

The routine traffic stop for blacks consists of multiple layers.  When an officer stops a person, that person will ask why the officer pulled them over.  The officer will tell that person that they have committed a traffic violation, which may be true, but not the whole truth.  Chances are the violation itself is not the real reason why the person has been pulled over, and the officer knows that under Whren it is perfectly legal to do so.  Harris, supra, at 299.  This becomes obvious once the officer begins questioning the motorist on issues unrelated to the traffic violation such as where they are going, where they are coming from, and whether they are carrying drugs.  As the interrogation is underway, the officer is undoubtedly scanning the contents of the car, hoping that there is something in plain view that will allow a probable cause search of the vehicle and/or an arrest of the person.  See Horton v. California, 496 U.S. 128, 136–37 (1990) (describing the “plain view” doctrine).  The officer can continue to question the person even if the person has answered all of the officer’s questions satisfactorily and can do so without giving Miranda warnings.  Berkemer v. McCarty, 468 U.S. 420 (1984) (Miranda does not come into play during routine traffic stops).  The officer’s questioning may seem harmless but it is actually a directed effort to keep the person talking in hopes of eliciting responses that raise suspicion.  Harris, supra, at 315.  At some point, the officer may order the person out of the vehicleand frisk the person for weapons—maybe it is a high crime area and the officer just wants to play it safe.  See Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (police may order a person out of the vehicle when investigating a traffic offense); Terry v. Ohio, 392 U.S. 1, 27–31 (1968) (discussing the legality of a weapons frisk).

At this point, even if the person stopped has only committed a minor traffic violation, the officer can ask for consent to search the entire vehicle. Even without any reasonable suspicion or probable cause of another crime, the officer has the discretion to ask a person for consent and so long as it is voluntary, it is fully constitutional.  See Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973) (consent searches are constitutionally permissible); Ohio v. Robinette 519 U.S. 33 (1996) (upholding the search even though the officer did not tell the motorist he was free to go).

Consent searches are troubling for a number of reasons. First and most obvious, if the stop was really just for a traffic violation, then there is no reason to ask to search the vehicle.  Harris, supra, at 299.  Second, the voluntariness aspect of consent searches is questionable. There is an inherent imbalance of power between an officer and a seized motorist on the side of the roadway.  Christo Lassiter, Eliminating Consent from the Lexicon of Traffic Stop Interrogations, 27 Cap. U. L. Rev. 79, 81 (1998).  Most people would be hard pressed to tell an officer “no” to a direct request.  This is amplified when a black motorist is stopped by a white police officer because there is the fear that the officer will bring a greater show of force than if it was a white motorist and may feel an even lower ability to refuse to the officer’s request.  Id.  If the person does consent, they are left standing by the roadway while their vehicle is ransacked by the police, which is arguably outside a reasonable temporary detention for failing to use a turn signal when changing lanes.  LaFave, supra, at 1893.  The reality is, most people do consent, whether it is out of fear or intimidation. Interestingly, the Court has also ruled that it would be impractical to tell people that they have the right to refuse consent, essentially saying that if people knew about their rights they just might exercise them.  Schneckloth v. Bustamonte, 412 U.S. 218, 226–27 (1973).

If the person does refuse consent, police may still summon a drug-sniffing dog to detect narcotics in the vehicle. The police can do this without any probable cause or even reasonable suspicion to believe there is contraband in the vehicle because the Supreme Court has determined that a dog sniff is not a search.  United States v. Place, 462 U.S. 696, 707 (1983); see Harris, supra, at 318–19.  If the dog alerts to the presence of drugs, probable cause has been established and a full search of the vehicle can be conducted immediately.  LaFave, supra, at 1894; Harris, supra, at 318.  Again, the use of a drug-sniffing dog has nothing to do with the traffic violation, which served as the whole justification for the stop in the first place. Allowing the use of drug-sniffing dogs encourages officers to conduct pretextual stops based on mere hunches of criminal behavior which is itself based on discriminatory bias.  LaFave, supra, at 1896.  Since officers need no reasonable suspicion or probable cause to use the drug-sniffing dog, the decision to summon one is made on an arbitrary basis.  Id.  Finally, if police have the option to tow a car to an impound lot based on the violation, they can search the car for inventory purposes, called the “automobile inventory” warrant exception, and any contraband found can be used to charge the motorist.  South Dakota v. Opperman, 428 U.S. 364 (1976).

C. The Numbers

A national survey conducted in 2011 by the Bureau of Justice Statistics showed that a higher percentage of blacks (13%) than whites (10%) were pulled over in a traffic stop during their most recent contact with police.  Lynn Langton & Matthew Durose, Bureau of Justice Statistics, Police Behavior During Traffic and Street Stops, 2011 1, 3 (2013), available at, http://www.bjs.gov/content/pub/pdf/pbtss11.pdf.  Interestingly, blacks were twice as likely to be stopped and allowed to proceed with no ticket than were whites who were stopped.  Id. at 7.  This might account for the rather low percentage of blacks (67%) who were stopped believing that the stop was legitimate compared to whites (84%).  Id. at 4.  If a person is stopped and not given a ticket for the alleged traffic violation, that person might be suspicious that the reason given was in fact the real reason they were stopped. Finally, a lower percentage of whites (2%) in their most recent contact with police during a traffic stop were searched than blacks (6%).  Id. at 9.

Studies that have been conducted on a state or local level show more drastic data of the DWB phenomenon. In Kansas City, a study was conducted where 2,329 drivers were surveyed regarding traffic stops.  Charles Epp & Steven Maynard-Moody, “Driving While Black,” Washington Monthly (Jan. 2014), http://www.washingtonmonthly.com/magazine/january_february_2014/ten_miles_square/driving_while_black048283.php?page=all. The results showed that black drivers were three times more likely to be subjected to investigatory stops than whites, compared to clear traffic law violation stops, which showed no significant difference between blacks and whites.  Id.  In Ohio in the late 1990’s, data from Akron, Toledo, Dayton, and Franklin County revealed that blacks were almost three times as likely as whites to be ticketed for traffic violations.  Harris, supra, at 281–88.  A report regarding the Maryland State Police revealed that although black drivers made up only 17.5% of the drivers on the road, 72.9% of those stopped and searched were black. Kami Chavis Simmons, Beginning to End Racial Profiling: Definitive Solutions to an Elusive Problem, 18 Wash. & Lee J. Civil Rts. & Soc. Just. 25, 33 (2011).

Looking at Ferguson, Missouri, which has recently been a platform for discussions on race relations since the shooting of a black teenager, Michael Brown, by a white police officer, data shows unsurprisingly that DWB is common there. A study demonstrated that 86% of traffic stops involved a black motorist even though blacks make up 67% of the population. Victoria Bekiempis, Driving While Black in Ferguson, Newsweek (Aug. 19, 2014), http://www.newsweek.com/ferguson-profiling-police-courts-shooting-264744.  In addition, blacks (12.1%) were twice as likely as whites (6.9%) to be searched and twice as likely to be arrested (10.4% versus 5.2%).Id.  Some might try to rationalize away these numbers by arguing that if blacks are arrested at higher rates than whites it just means that blacks are more prone to crime and thus the searches are justified.  They would be wrong of course since that same study reported that searches of blacks were less likely than searches of whites to result in the discovery of contraband (21.7% versus 34%).  Id.

The numbers above show that DWB is not some fleeting perception but a reality for blacks in America.  If police really mean what they say when they claim that their intentions are solely to combat crime, one would expect that they would look hard at the numbers and see that not only are they impermissibly racially profiling blacks, but that their doing so is not efficient crime fighting.  When conducting traffic stops, police rely on the assumption that blacks are carrying drugs.  The result of their actions have more negative consequences than just letting crime go undeterred: they are fostering distrust in law enforcement and the criminalization of blackness.

III. Negative Effects of Racial Profiling

 A. Criminalization of Blackness

 A police officer cannot determine based on a glance of the driver whether that person has outstanding warrants or does not have a driver’s license.  What a police officer can determine however, is whether that person is white or black.  Based on the statistics above, we know that police are using blackness as a reason to conduct a stop or other investigatory techniques in greater proportion to their population on the road.  Stopping a larger number of blacks based on the biased assumption that blacks commit more crime means that being black itself is evidence of crime warranting further investigation.  Harris, supra, at 292.

One of the reasons that Law enforcement disproportionately stops blacks is because police believe it is good crime fighting and a sure way to find drugs.  Id. at 296–97 (noting that many believe blacks and other minorities are responsible for most drug crimes); Floyd D. Weatherspoon, Racial Profiling of African-American Males: Stopped, Searched, and Stripped of Constitutional Protection, 38 J. Marshall L. Rev. 439, 447 (2004); Simmons, supra, at 42.  The problem with this belief, other than the fact that it is often not borne out, is that such thinking turns into a self-fulfilling prophecy.  Harris, supra, at 297.  When police conduct pretextual stops based on the racist assumption that blacks have drugs, then of course police will disproportionally find drugs on blacks.  Thus, blacks will be charged, arrested, convicted, and jailed at disproportionate rates, which will be used to justify the pretextual and disproportionate stops, ensuring the continuance of the vicious cycle.  Harris, supra, at 297; Lu-in Wang, “Suitable Targets”? Parallels and Connections Between “Hate Crimes” and “Driving While Black”, 6 Mich. J. Race & L. 209, 213 (2001); Weatherspoon, supra, at 447–48.

The criminalization of blackness certainly does extend beyond the traffic stop itself, pervading the entire justice system.  Racial profiling contributes to the high incarceration rate of blacks in state and federal prison as well as local jails compared to whites.  Simmons, supra, at 41–42.  Since traffic stops are often used to ferret out drug activity, it is no surprise that blacks are overrepresented in this area.  The criminalization of blackness is no accident. It is the product of many years of “rational” police policy and Supreme Court sanctioned behavior. The negative effects of racially profiling when making traffic stops extends far beyond the person being stopped and having their travels interrupted.  It contributes to the mass incarceration of blacks in America, described by some as the New Jim Crow.  See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010).

B. Distrust and the Delegitimization of Law Enforcement

 While the negative effects of racial profiling is often presented in terms of arrest and incarceration rates, the social and psychological aspects of being a target of the police should not go overlooked. “Pervasive, ongoing suspicious inquiry sends the unmistakable message that the targets of this inquiry look like criminals: they are second-class citizens.” Epp & Maynard-Moody, supra, http://www.washingtonmonthly.com/magazine/january_february_2014/ten_miles_square/driving_while_black048283.php?page=all.  Pretextual traffic stops do nothing more than aggravate feelings of injustice and inferiority, which results in the distrust of law enforcement and lack of faith in the entire justice system.  Harris, supra, at 268.

Racial profiling also leads to the stigmatization of victims, which is known as the “racial tax.”  This term describes the additional burdens on minorities for their membership in a particular race.  Simmons, supra, at 40–41.  With blacks, one form of “tax” is the likelihood that the person will be subjected to pretextual stops more often than their white counterparts. Blacks are also “taxed” in the form of high incarceration rates, which not only has a devastating impact on the individual incarcerated, but their families as well, who are losing someone who could help contribute to the family income.  Harris, supra, at 301.  The impact of racial profiling on the psychological well being of the target group can also be considered a “tax.” Some members of minority groups report psychological harms of humiliation and depression as a result of being racially profiled.  Simmons, supra, at 40 n.75.

If a portion of the population believes that the police cannot be trusted and that their actions are illegitimate and impermissible, the rational thing to do would be to avoid police altogether.  In order to avoid being targeted by the police, blacks change their daily schedules, the way they dress, and even what cars they drive.  Harris, supra, at 273–74.  One of the most painful realities of racial profiling is how blacks have to instruct their children on how to behave when they come into contact with police.  Black parents have to inform their children to “keep your mouth shut” and “do exactly what they tell you to do” even if they did nothing wrong.  Id.  While these instructions will give black children a negative view of the police, black parents feel they have no choice because they know that even a traffic stop can turn deadly.

IV. Proposed Solutions

 A. Mandatory Collection and Analysis of Data on Traffic Stops

 One of the most popular proposed solutions to the problem of racial profiling during traffic stops is simply to start collecting data on the problem.  Many studies have been conducted on DWB but a lot has come from independent research rather than from state or federal government reporting.  To achieve a comprehensive solution to the problem legislation is needed to mandate reporting of traffic stop data.  If the results reveal that DWB is a real problem, then it will put to rest the idea that DWB is just a misplaced perception by minorities of police conduct.  More importantly, it will encourage state and local legislatures to begin addressing the problem with concrete solutions.

During the 105th Congress, Representative John Conyers of Michigan introduced the Traffic Stops Statistics Act of 1997 to the House.  H.R. 118, 105th Cong. (1997), available at http://www.gpo.gov/fdsys/pkg/BILLS-105hr118rh/pdf/BILLS-105hr118rh.pdf.  The bill would have required the collection of data on each traffic stop conducted, including among others the race of the driver, whether a search was conducted, and the reason for the search, if there was one.  Though the Act passed the House with bipartisan support, it died in committee in the Senate after opposition from the police arose.  Harris, supra, at 320.

Mandating collection of and analysis of data regarding traffic stops is an important first step in combating racial profiling.  Through objective numbers, society can move past whether the problem exists and move forward in actually addressing the problem.  The federal government and the president’s administration should set an example by enacting federal legislation mandating collection and analysis of data on racial profiling.  Not only will this send a message that collection of data should be a priority on the state level, it will also send the message, to borrow a recently popularized slogan, that “Black Lives Matter.”  Federal legislation should also consider the possibility of providing states with federal funding to help implement collection and reporting systems on the local level.  State and local government can take the same approach. Funding for police departments could be dependent on whether or not the police department is collecting data on traffic stops, with police losing a chunk of their allocated budget if they fail to comply.  Harris, supra, at 322.

If federal and local legislation fails, police departments could collect this data without first being told to do so. Self-initiated data collection has many benefits because it can be tailored to local circumstances, issues, and resources.  David A. Harris, Law Enforcement’s Stake in Coming to Grips with Racial Profiling, 3 Rutgers Race & L. Rev. 9 (2001) [hereinafter Law Enforcement’s Stake].  In addition, regulation developed from within the organization might result in higher compliance by those who have to follow the rules—police officers themselves.  If collection and analysis of the data can be tailored to a certain police department, data can be analyzed even down to the level of an individual officer.  This would have huge benefits for a person who wishes to sue an officer under the Equal Protection Clause for racial profiling because the data on that officer spanning months or years will be readily accessible to a plaintiff.  Additionally, the data can be used to implement meaningful reprimands against officers who demonstrate a pattern of impermissible pretextual stops based on race.

B. Law Enforcement Training

 In addition to data collection and analysis of racial profiling during traffic stops, an obvious solution to the problem would be better training, awareness, and education of officers to eliminate the practice to begin with. While this may seem like a rudimentary solution, police like everyone else have incorporated racist and stereotyped notions about certain groups into their view of the world.  “When officers are called upon to make complicated and grave decisions under stressful, time-pressured conditions, they are likely to rely on these stereotypes in interpreting the behavior of others.”  Wang, supra, at 220.  Therefore, legislation and police department initiated programs should be implemented to reverse this automatic mode of thinking while working the beat.

The Racial Profiling Education and Awareness Act of 2002 would have authorized the United States Attorney General to implement racial profiling education and awareness programs within the Department of Justice.  S. 2114, 107th Cong. (2002), available at https://www.congress.gov/bill/107th-congress/senate-bill/2114. It would have assisted state and local law enforcement agencies in implementing such programs by providing funding to ensure that the programs had the resources necessary to carry out comprehensive training and education. Federal legislation such as this will foster positive relationships between police and the communities they patrol because the educational programs can help reverse the biased assumptions that many carry with them on the job.  Funding for such programs is important because police departments might otherwise be reluctant to use their limited resources for more education and training since they might prefer to allocate their funds for other things such as updated safety features on patrol cars.

Training and education programs should be comprehensive in scope and should be mandated not just at the initial training stages for new officers but should continue throughout their careers.  Educational programs should include at least a basic overview of black history in America.  Specifically, it should include the history of law enforcement treatment of minorities throughout the years, hopefully including the data and statistics on current racial profiling conducted by police, which can be used by the department to reiterate that such behavior is wrong and will not be tolerated.  Additionally, officers should receive sensitivity training on how their stereotypical and racist biases regarding minorities may cause them to engage in racial profiling.  Floyd D. Weatherspoon, Ending Racial Profiling of African-American Males in the Selective Enforcement of Laws: In Search of Viable Remedies, 65 U. Pitt. L. Rev. 721, 748 (2004).  Greater emphasis should also be placed on recruitment of new officers. New testing devices designed to eliminate applicants who show racist tendencies, or the potential for developing racist tendencies, should be implemented.  Id. at 749.  Finally, there must be serious reprimands enforced against officers who show a pattern of racial profiling.  Punishment should not come only if a plaintiff decides to sue.  Police departments themselves should be using non-paid suspensions, three strikes rules, or other reprimands to send the message that not only will racial profiling not be tolerated, but that those who engage in it can ultimately lose their job.  Taking responsibility for officer misconduct can go a long way in the eyes of minority communities for building trust in the police force.

If police use statistically accurate data on who is really committing crime, they can stop relying on ingrained stereotypical, racist, and prejudicial views of blacks.  Crime fighting through the use of traffic stops and other techniques will then be productive.  Police should use statistical data and comprehensive training to act according to the numbers.  Essentially, what is needed is more intelligent and cost-efficient means of catching crime, which will in turn of course, cut back on racial profiling.  By presenting police with objective numbers of who is really committing crime and at what rates, police may be more receptive to changing their practices and behaviors, rather than simply charging them with being racists, which does nothing but put them on the defensive and close opportunities to dialogue on the issue.  By implementing training and education programs, police departments can stop the racial profiling cycle and begin to repair the negative effects of racial profiling.

V. Conclusion

Driving While Black is an inconvenient truth in the United States.  While it is certainly important for law enforcement to have discretion when exercising their duties, too much discretion can lead to racial profiling. Supreme Court decisions, most notably Whren v. United States, have sanctioned the subjective intentions of police when deciding who to pull over for a traffic stop.  Driving While Black is not simply a perception; it is a reality for blacks on the roadway.  Blacks are stopped, searched, convicted, and jailed at higher rates than their white counterparts, even though they commit traffic violations at about the same rate as the rest of the population.  The negative effects of racial profiling extend far beyond the traffic stop itself.  It contributes to the criminalization of blackness and the distrust of police and the criminal justice system in general.  Solutions to the problem include calling for mandatory collection and analysis of traffic stops and for better training, education, and awareness for police officers on racial profiling.  While there is no one size fits all solution to the problem, failing to discuss and address racial profiling ensures its continuance.  “[I]t is in the interest of law enforcement itself—not just the individuals stopped, questioned and searched repeatedly—to  try to understand this problem, to come to grips with it, and ultimately to begin working on solutions to it.”  Harris, Law Enforcment’s Stake, supra, at 11.

Erin Woods Photo

Erin E. Woods is a third year law student at The Ohio State University Moritz College of Law. She is currently a Certified Legal Intern at the Columbus City Attorney’s Office and President of Advocates for Children, a student group at Moritz. Erin was a recipient of the Public Interest Law Foundation Fellowship in 2013 and spent her 1L summer as a Law Clerk with the Legal Aid Society of Columbus.