by Hans Bader
A judge recently found that the City of Richmond racially profiles black motorists, dismissing the indictment of a black convicted felon accused of illegally possessing a gun. The judge did not find that defendant Keith Moore had been treated differently than a similarly situated white motorist. Instead, he ruled that Richmond police stops are racially discriminatory, based on statistics showing blacks are stopped and arrested at much higher rates than whites; and based on Richmond’s past “history of discrimination,” such as racialized zoning and redlining, and the “Confederate foundations” of the Richmond Police Department. “The Court will not require Moore to provide evidence of similarly situated individuals to prove his selective enforcement claim,” wrote the judge.
This is likely to create big problems for the City of Richmond, potentially leading to many criminals being released from jail. If a judge claims racial discrimination happened, he should identify what policies are racially discriminatory, or give concrete examples of discrimination, so that the problem can be fixed. But Judge Gibney failed to do that in his February 12 ruling in United States v. Keith Rodney Moore. So now the City is deemed guilty of discrimination, based on things no individual police officer can change (such as city-wide statistics), and things that literally no one can change (such as the confederate origins of the police department and Richmond’s segregated past). If other judges follow this flawed ruling, other criminals can also have their indictments dismissed based on city-wide statistics, even if it is undisputed that they committed the crime for which they were arrested.
Although the judge cited statistical disparities, he did not cite any specific police practices that led to blacks being stopped at higher rates, as he should have done if police were actually at fault. In Smith v. City of Jackson (2005), the Supreme Court ruled that even unintentional discrimination (disparate-impact) cannot be proved through statistics unless “specific” practices are identified that caused the “statistical disparities.” The disparities themselves are not enough.
The fact that blacks are stopped by police at a higher rate than whites does not itself prove discrimination. In United States v. Armstrong (1996), the Supreme Court emphasized that there is no legal “presumption that people of all races commit all types of crimes” at the same rate, since such a presumption is “contradicted by” real world data showing big differences in crime rates. Thus, racial disparities in arrest rates or police-stop rates don’t violate the Constitution’s ban on racial discrimination, unless they are caused by racism. As the federal appeals court in Richmond once explained, a “disparity” in school suspension rates between blacks and whites did not “constitute discrimination.” (See Belk v. Charlotte Mecklenburg Board of Education (2001)).
Requiring Richmond to have the same police-stop rate and arrest rate for all races and genders, regardless of underlying traffic infraction rates, would be illegally discriminatory under federal court decisions like People Who Care v. Rockford Board of Education (1997). That ruling struck down as a racial quota a rule that forbade a “school district to refer a higher percentage of minority students than of white students for discipline.”
Richmond’s “history of racism” and “confederate foundations” don’t magically turn its racial disparities into discrimination. The Supreme Court struck down a Richmond affirmative-action program that was based on even bigger statistical disparities — blacks were getting only 1% of city contracts, despite being 50% of Richmond’s population — in Richmond v. J.A. Croson Co. (1989). It did not consider this huge disparity to be proof of discrimination, even though it recognized there was a “sorry history of both private and public discrimination in this country,” and the dissenting justices pointed out that Richmond was the “former capital of the Confederacy ,” which they said was trying “to confront the effects of racial discrimination in its midst.”
The judge’s ruling also complains that “once stopped, Black drivers were 12.67 times more likely than White Drivers to be arrested as a result of the stop.” But this seems like the opposite of racial profiling. If the Richmond police were really stopping black motorists for little or no reason, out of racism, they would be less likely to find contraband or illegal guns on stopped black motorists than stopped white motorists, and be less likely to arrest blacks after stopping them. But here, police stops were more likely to turn up evidence of criminal behavior on the part of blacks than whites, suggesting that police stops of blacks were more justified than police stops of whites. As a leading study finding racial profiling in police stops observed, a lower “likelihood that searches turned up contraband” when drivers were black is “evidence that the bar for searching black and Hispanic drivers was lower than that for searching white drivers.”
There are non-racist reasons why a police stop might be more likely to lead to an arrest when the motorist is black than when the motorist is white. One is the fact that laws ban felons from possessing guns, and a higher percentage of blacks than whites are felons. For example, rates of committing homicide “for blacks were more than 7 times higher than the rates for whites” between 1976 and 2005, according to the federal Bureau of Justice Statistics in its publication, Homicide Trends in the United States. People who were convicted of homicide are felons who cannot legally possess a gun. In 2019, 6,425 black people committed homicide, compared to only 4,728 white people, according to the FBI’s Uniform Crime Reports. Because more blacks are forbidden to own guns than whites, a black motorist is more likely to be illegally carrying a gun than a white motorist, and more likely to be arrested for that when stopped by police.
Moreover, the fact that black people are younger on average than white people can result in a higher rate of traffic infractions by black people. As the New York Times once explained, “Demographic research has shown that the black population is younger than the white population, and younger drivers are more likely to speed.”
There are statistically valid ways to show racism in police stops — like comparing police stops after dark, when police cannot tell a motorist’s race, to police stops during the day, when police can tell the race of many motorists before stopping them. A well-known study did find a degree of racism in police stops based on that day-night difference, concluding that black motorists were stopped at something like a 10% higher rate than similarly-situated whites. That did show a degree of systemic racism against black motorists, even though it did not suggest that most police stops were due to racism.
Even if racial profiling exists, an indictment of an individual black motorist should not be dismissed if that motorist’s crimes or traffic infractions were so flagrant or clear-cut that even a white motorist would have been arrested for them, too. (See Teamsters v. United States, 431 U.S. 324, 362 (1977)).
In finding racism by the Richmond Police Department, Judge Gibney relied on testimony by Dr. Coston, an assistant professor at Virginia Commonwealth University. But as the judge noted, “In analyzing the statistics in this case, Dr. Coston never asserted that race caused a particular stop.”
Nothing Judge Gibney cited actually showed discrimination in any Richmond police stops. He cited a statistical disparity, but as the federal appeals court has explained, a “disparity” does not “constitute discrimination.” Instead, what is needed is a statistical analysis that takes into account all major variables, not just race. In Smith v. Virginia Commonwealth University (1996), the federal appeals court in Richmond ruled that a study finding gender discrimination in pay based on a significant gender-based pay disparity was flawed because it did not take into account major variables like productivity and prior administrative experience that might have provided a nondiscriminatory explanation for the disparity.
Similarly, there are many studies that find that racial disparities in the criminal justice system are largely explained by nondiscriminatory factors such as differences in crime rates. For example, a 2021 study by the federal Bureau of Justice Statistics found that although blacks are arrested for serious nonfatal violent crimes at much higher rate than whites, this mostly reflected underlying crime rates, not racism: “white and black people were arrested proportionate to their involvement in serious nonfatal violent crime overall and proportionate to their involvement in serious nonfatal violent crime reported to police.” (See Allen J. Beck, Race and Ethnicity of Violent Crime Offenders and Arrestees, 2018). The fact that the black percentage of people arrested was similar to the black percentage of perpetrators of “crime reported to police” is telling, because the people who report violent crimes to police — mainly crime victims — are disproportionately black people themselves. Since victims are overwhelmingly the same race as their attacker, there is no reason to think that they are reporting those crimes out of racism. Most crimes against black people are black-on-black, according to the federal Bureau of Justice Statistics. According to FBI data, 89 percent of blacks who were murdered in 2018 were killed by black offenders.
Victims of homicide, such as those killed by felons with guns, are disproportionately black, with about half of all U.S. homicide victims being black, even though black people are only 14% of the U.S. population.
Federal appeals courts have sometimes found that bigger racial disparities than those in Richmond don’t show racial discrimination in law-enforcement — not even racially discriminatory effect. Like in Alston v. City of Madison (2017), where a black man whose probation was revoked in a program where blacks were represented at 20 times their representation in the general population (86% versus 4.5%). An appeals court rejected his challenge to his incarceration, even though it noted that
Blacks accounted for 4.5 percent of the Madison population, 37.6 percent of arrests, and 86 percent of the program — statistics that Alston repeats time and again in his brief as evidence of discriminatory effect. Even the defendants admit that these statistics are regrettable….But that does not mean that the statistics prove discriminatory effect. Statistics are relevant only if they address the pertinent question, that is, whether Alston was treated differently from a similarly situated member of the unprotected class….Alston’s statistics do not address whether black, repeat violent offenders were treated differently from white, repeat violent offenders and thus are not evidence of discriminatory effect.
Similarly, Judge Gibney’s statistics do not address whether black motorists who violate traffic laws or criminal laws are treated differently than white motorists who violate traffic laws or criminal laws. Instead, he compares the percentage of blacks stopped to the black percentage of the general population. That doesn’t even show discriminatory effect or “disparate impact.”
Disparate-impact analysis doesn’t require close similarity in comparison, unlike intentional-discrimination analysis (people who performed differently on standardized tests can be compared together). But even under disparate-impact analysis, completely dissimilar cases aren’t supposed to be lumped together, according to the Supreme Court’s decision in Wards Cove Packing Co. v. Atonio (1989). For example, the demographics of an employer’s skilled workforce shouldn’t be compared to the demographics of its unskilled workforce or the general population, according to the Supreme Court.
Thus, the Alston decision did not find discriminatory effect, despite a large statistical disparity, where the statistical comparison did not “address the pertinent question, that is, whether Alston was treated differently from a similarly situated member of the unprotected class.”
Logically, it’s not the size of the racial disparity that matters, but what causes it. The criminal justice system is full of racial disparities, but most of them are not due to racism. A peer-reviewed meta-analysis of the criminal-justice system in 2024 concludes that most criminal-justice interactions are non-racist, despite the statistical racial disparities that exist throughout the criminal justice system.
Hans Bader practices law in Washington, D.C.
