Symposium on the 20th Anniversary of the Supreme Court’s Decision in Whren v. United States
The Case Western Law Review has published a symposium on the occasion of the 20th anniversary of the United States Supreme Court decision in Whren v. United States (1996). As myself (and here) and many others have argued, the Whren decision has contributed to the prevalence of racial profiling in contemporary criminal law enforcement in the United States.
Here is the table of contents to the symposium issue.
PDF SYMPOSIUM WHREN AT TWENTY: SYSTEMIC RACIAL BIAS AND THE CRIMINAL JUSTICE SYSTEM — Introduction
Lewis R. Katz
PDF Whren‘s Flawed Assumptions Regarding Race, History, and Unconscious Bias
William M. Carter Jr.
PDF Racial Profiling: A Persistent Civil Rights Challenge Even in the Twenty-First Century
Ronnie A. Dunn
PDF State Responses to the Whren Decision
Margaret M. Lawton
PDF Arbitrary Law Enforcement is Unreasonable: Whren‘s Failure to Hold Police Accountable for Traffic Enforcement Policies
Jonathan Witmer-Rich
My contribution to the symposium focuses on the immigration removal consequences of the racial profiling that has come in the wake of Whren v. United State.
PDF Doubling Down on Racial Discrimination: The Racially Disparate Impacts of Crime-Based Removals
Kevin R. Johnson
Abstract: Racially-charged encounters with the police regularly make the national news. Local law enforcement officers also have at various times victimized immigrants of color. For example, New York City Department (NYPD) officers in 1999 killed Amadou Diallo, an unarmed immigrant from Guinea, in a hail of gunfire; two years earlier, officers had tortured Haitian immigrant Abner Louima at a NYPD police station. Both victims were Black, which no doubt contributed to the violence. In less spectacular fashion, police on the beat by many accounts regularly engage in racial profiling in traffic stops of U.S. citizens and noncitizens of color.
Removals of “criminal aliens” have been the cornerstone of the Obama administration’s immigration enforcement strategy. Well-publicized increases in the number of removals of immigrants also have been the centerpiece of President Obama’s political efforts to persuade Congress to pass a comprehensive immigration reform package. The hope behind the aggressive enforcement strategy has been to convince Congress that this is the time to enact comprehensive immigration reform.
In the last few years, a body of what has been denominated “crimmigration” scholarship has emerged that critically examines the growing confluence of the criminal justice system and the immigration removal machinery in the United States. That body of work tends to direct attention to the unfairness to immigrants, as well as their families, of the increasing criminalization of immigration law and its enforcement. This Essay agrees with the general thrust of the crimmigration criticism, but contends that it does not go far enough. Namely, the emerging scholarship in this genre fails to critically assess the dominant role that race plays in modern law enforcement and how its racial impacts are exacerbated by the operation of a federal immigration removal process that consciously targets “criminal aliens.”
Part I of this Essay considers parallel developments in the law: (1) the Supreme Court’s implicit sanctioning of race-conscious law enforcement in the United States, with the centerpiece of this symposium, Whren v. United States, the most well-known example; and (2) the trend over at least the last twenty years toward increased cooperation between state and local law enforcement agencies and federal immigration authorities. Part II specifically demonstrates how criminal prosecutions influenced by police reliance on race necessarily lead to the racially disparate removal rates experienced in the modern United States. Part III discusses how some state and local governments have pushed back on cooperation with federal immigration authorities, with effective community police practices being an important policy rationale invoked by local law enforcement for that resistance. Part III of this Essay further contends that more attention should be paid to the racially disparate impacts of linking immigration removals to the outcomes of a racially-tainted criminal justice system. It further sketches some modest reforms to the U.S. immigration laws that might tend to blunt, rather than magnify, some of these racial impacts.
KJ