Tracey Meares and Dan Kahan have simply got it wrong. To use poor black Chicagoans as guinea pigs for enhanced police powers of dubious constitutionality is to twice victimize these communities.
Although Meares and Kahan purport to be speaking up for crime-besieged project dwellers, whose plight they say is made worse by patronizing, non-ghetto dwelling civil libertarians, the proposals they endorse have, for decades, been advanced in, among other venues, the Supreme Court. In fact, the post-Warren Supreme Court has steadily eroded the probable cause requirement of the Fourth Amendment by permitting officers to conduct limited street searches on suspicion and unfettered car searches without a warrant. The Fourth Amendment jurisprudence of the 1960s that the authors claim is outmoded no longer really exists. It has been eviscerated by a Court which has been swayed by twenty years of conservative politics aimed at racially polarizing the electorate around the issue of crime. When coupled with today’s vastly more intrusive search tools, the trend in the Burger and Rehnquist Courts to accede to law enforcement claims of necessity has meant that the police now enjoy enormous powers to stop and frisk citizens on the street, or to search their cars, homes, and offices. Chicago’s 1992 anti-gang ordinance, now on review in the Supreme Court, and its housing authority’s mass building search policy, recently struck down by a federal district court, are hardly new, innovative law enforcement strategies; rather, they are just a further slide along the same slope.
The fact that some black constituencies and their elected officials have sponsored these proposals should not make them more acceptable. In 1982, Thurgood Marshall, chiding his colleagues for their willingness to make exceptions to Fourth Amendment constraints in car cases, wrote in United States v. Ross that “[t]he Court derives satisfaction from the fact that its rule does not exalt the rights of the wealthy over the rights of the poor. A rule so broad that all citizens lose vital Fourth Amendment protection is no cause for celebration.” As Marshall’s words suggest, although rights define the individual’s relation to the state, each individual’s rights are no greater than those possessed by everyone else. A lowered constitutional bar affects not only those rejecting protections against arbitrary or discriminatory practices, but everyone. Thus, the Chicago housing project rule will quickly apply wherever the police want to conduct indiscriminate searches. The Chicago ordinance criminalizing the act of “remain[ing] in any one place with no apparent purpose” while in the company of a gang member may be used to throttle political dissent, or to rid city streets of undesirables.
The idea that insular poor black communities should be allowed to opt out of constitutional rules-even those developed to protect racial minorities-has also come up in the context of public education. Many cities, including Chicago, have sought to establish all-black, all-male schools in order to better address the unique challenges these youths must contend with. Proponents argue that, as long as integrated co-ed schools are also available, these separate institutions should be deemed lawful because their mission is to challenge, rather than perpetuate, social disadvantages. It is questionable whether the exclusion of black girls is necessary to accomplish this mission-but in any event, the argument that available alternatives render constitutional infringements less pernicious can hardly be applied to the Chicago criminal justice measures. Families who don’t consent to the blanket searches can’t pick up stakes and move to the suburbs, and youths with legitimate reasons, even frivolous ones, to be out at night can’t do so with a curfew in place.
I have two further problems with the Meares and Kahan thesis. The first is their tendency to understate the harm such proposals would likely do to these communities. They ignore the continuing reality of racially motivated police abuse, and they suggest that black inclusion in police work has radically altered the hostile relationship this community has historically had with the police. But it is dangerous to expand police search and arrest powers in the communities most victimized by police use of race as a proxy for criminality. Because discrimination tends to be institutional, subtle, and unconscious, even the black Officer Friendly relies on deeply ingrained stereotypes of what a criminal looks like. Racially motivated police misconduct appears not to be on the wane, as Meares and Kahan seem to suggest, but rather it is an inevitable consequence of the new “zero tolerance” policies of big city departments, exemplified most dramatically by the Amadou Diallo shooting in New York City. These clean-sweep policies could not have been adopted if the Supreme Court had not relaxed Fourth Amendment search requirements. As far back as 1968, the ever prescient Justice Brennan wrote a note of caution to Chief Justice Warren about the dangers of permitting the police to stop and frisk on less than probable cause:
I’ve become acutely concerned that … our affirmance in Terry [the stop and frisk case] will be taken by police … as our license to them to … widely expand, present ‘aggressive surveillance,’ techniques which the press tells us are being deliberately employed in … ghetto cities. This is happening, of course, in response to the ‘crime in the streets’ alarums [sic] being sounded in this election year…. [There is a] terrible risk that police will conjure up ‘suspicious circumstances,’ and courts will credit their versions.
Thirty years after Brennan articulated the basis for what Meares and Kahan term “community distrust” and “discretion skepticism,” we are all waiting with baited breath to hear what “suspicious circumstances” led New York officers to shoot Diallo 41 times. “Driving while black” is not a 1960s, but a 1990s, expression.
Some would contend that a tragedy like the Diallo homicide is the price that must be paid for the improved safety in New York, and Meares and Kahan suggest that project dwellers should be allowed to strike that balance in their own communities. But a cost-benefit analysis applied to search and arrest practices would destroy the core constitutional guarantee of equal and individualized treatment in the use of police power. The “burden-sharing test” the authors propose merely shifts to beleaguered communities the burden of restraint that the Constitution imposes upon the state. Moreover, as we have seen, the real price of New York’s “zero tolerance” policies is not just one horrific police homicide, but a pervasive sense of insecurity and powerlessness in the black community.
The second false premise of the authors’ thesis is that there are no reasonably effective law enforcement alternatives to proposals that diminish constitutional protections. They wrongly suggest that drastic solutions are necessary because failures in policing have contributed to an alarming increase in crime in minority communities. The facts are that serious crime by blacks is not increasing, but rather has remained level for more than ten years. What has increased since criminal justice policy became a political marker is the racial disproportion in punishment. The number of black prisoners since 1980 has tripled. Recent studies demonstrate that this disproportion in sentencing is a foreseeable and invidious result of the politics of the 1980s and the resultant War on Drugs.
The authors put forth the Chicago proposals as an alternative to the inhumane Reagan-Bush policies which have resulted in the stark increase in incarceration, particularly for minorities. But it is naive to think that these proposals will supplant more draconian measures. More likely, by criminalizing whole communities-innocent young men for curfew violations, apartment dwellers for petty offenses like marijuana-the Chicago proposals will transform benign behavior into criminal conduct. Rather than using arbitrary procedures that disproportionately burden minorities to control crime, policy analysts should continue to focus on reducing sentencing and other disparities. Moreover, we would do well to follow the lead of other Western nations, such as Great Britain and Germany, and build treatment centers instead of more jails.
The authors might roll their eyes in disdain at such an outdated concept. Their approach to the crisis in criminal justice bears a striking resemblance to critics of affirmative action, some black, who decry race-conscious remedies as no longer necessary and harmful to the intended beneficiaries. Beneath the surface of the appeal to respect the rights of minorities is the contested territory of the role of race in current public policy-beliefs about the proper meaning of civil rights, the proper weight to be given to historical discrimination, the proper policy tools to deal with individual choice and race bias. But as the affirmative action debate teaches, short-sighted solutions to intractable problems are not valid just because some black voices support them. The measures that Meares and Kahan advocate are not so much about expanding black self-determination as they are about expanding an already discredited approach to crime.