Race and Wrongful Convictions
Page 35 • National Registry of Exonerations • September 2022
“Black males” and ignored drug dealers of other races. Six months later, all pending charges
were dismissed. More often, the discrimination is not explicit.
Black people are subject to more attention and surveillance from police than white people. One
reason that is often offered is that they are more likely to live in high crime areas, but that is not
a complete explanation. In 2013, for example, a federal judge found that New York City’s
notorious stop-and-frisk program—under which police made more than 4.4 million street stops
from 2004 through 2012, 80% of them of Black people or Hispanics—could not be justified on
that basis because the stops were more closely linked to the racial composition of the
neighborhoods, and to the race of those detained, than to crime rates.
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Another reason that’s given—usually for searches after stops—is that Black people are more
likely than white suspects to have criminal records. That’s true, but—like residential crime
rates—it does not explain the racial pattern of searches. It’s also partly circular, especially for
drug crimes. A major reason that Black people are more likely to have drug-crime records is that
police are more likely to stop, search and arrest them. Those records, however obtained, also
mean that bail is likely to be higher, so Black drug defendants are more likely than whites to face
the Hobson’s choice of plea bargaining: plead guilty or stay in jail.
Black people, of course, are the prime targets of racial profiling: selecting suspects for
investigation, detention, or arrest because of their race. The stop-and-frisk program in New York
was racial profiling on city sidewalks. But the phrase “racial profiling” was first used in the late
1990s—when it was also called “driving while Black”—to describe systematic police programs of
trolling for drugs on highways by searching cars with Black or Hispanic drivers.
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It continues to
happen, on and off the highway, despite the fact that police are just as likely to find drugs when
they search white suspects and their cars—if not more so.
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Our “War on Drugs” requires police officers to search for drug crimes that nobody reports to
them. One method they use is to search many people and cars and hope to find drugs in a few of
them. While there’s no evidence that the odds are better if the driver is Black, many officers
seem to believe that’s true; they’ve certainly been told so by their superiors.
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They may also
believe—usually correctly—that Black drivers are less likely to have the connections or resources
to complain effectively about rude, demeaning, destructive, fruitless and often illegal searches.
Most of the victims of those drug searches are inconvenienced, often scared and humiliated, but
they are not arrested because no drugs are found. Some, however, are arrested and convicted of
drug possession. Judging from what we see in Harris County, a fair number are innocent, and a
high proportion of those innocent defendants are Black.
The formal judgments of guilt of these Black defendants are errors. The police, prosecutors and
judges did believe, falsely, that the defendants possessed illegal drugs. But they are not
blameless errors. Most innocent Black suspects are not selected for exploratory drug stops and
69
Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y., 2013).
70
See Gross, Samuel R. The Rhetoric of Racial Profiling, in Social Consciousness. Legal Decision Making:
Psychological Perspectives. R. Wiener, B. Bornstein, R. Schopp & S. Willborn, eds. (Springer: New York, 2007).
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See, e.g., David Cole & John Lamberth, The Fallacy of Racial Profiling, N.Y. Times, May 13, 2001; California
Racial and Identity Profiling Advisory Board, Annual Report 2022, at p. 53, Figure 23.
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See Gross, Samuel R., The Rhetoric of Racial Profiling, in Social Consciousness. Legal Decision Making:
Psychological Perspectives. R. Wiener, B. Bornstein, R. Schopp & S. Willborn, eds. (Springer: New York, 2007).