kds

Chapter 11 Race/Ethnicity and the Law by Matthew Lippman

INTRODUCTION We tend to view law as protective of individual rights and as ensuring equality. When we suffer what we view as an injustice, our response is “There ought to be a law against this type of behavior.” The immediate reaction is to threaten to take the other person to court. The law is not invariably a force for social equality and justice. In some instances, law may reflect and reinforce social prejudices and help maintain inequality and discrimination. Consider that for over one hundred years, the law in the southern United States regarded African Americans as slaves who had no rights whatsoever. In 1857, the U.S. Supreme Court in Dred Scott v. Sandford held that African Americans were “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and [are] so far inferior that they had no rights which the white man was bound to respect” (Dred Scott v. Sandford, 60 U.S. 393 [1857]). A law that appears fair on its face may be enforced in a discriminatory manner. The legislature or the courts also may require an individual alleging discrimination to meet a demanding legal standard that prevents acts of ethnic, race, or gender discrimination from being easily proven in a court of law. In 1942, President Franklin Delano Roosevelt in Executive Order 9066 ordered Japanese American citizens and residents to vacate the West Coast of the United States and to relocate to internment camps in the interior of the country. The U.S. Supreme Court dismissed claims that the relocation constituted, in the words of dissenting justice Frank Murphy, “legalized discrimination” (Korematsu v. United States, 323 U.S. 214 [1944]). The Court reasoned, Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we were at war with the Japanese empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders—as inevitably it must—determined that they should have the power to do just this. In 1988, President Ronald Reagan signed congressional legislation apologizing for the internment after initially opposing the measure. The law was based on the findings of a commission appointed by President Reagan that concluded government actions in interning the Japanese had been based on “race prejudice, war hysteria, and a failure of political leadership.” The U.S. government subsequently disbursed more than $1.6 billion in compensation to Japanese Americans who had been interned and their heirs.

This chapter looks at the influence of race in the enforcement of the criminal law and in U.S. immigration policy. CRITICAL RACE THEORY Critical race theory (CRT) is an intellectual movement that analyzes how the law maintains the dominance and privileges of white society and how the law perpetuates the subordinate status of African Americans. CRT scholars look at the interaction between law and society. They ask how the law shapes social attitudes toward race and how society shapes the law on race. CRT is an outgrowth of the critical legal studies (CLS) movement. The scholars who work in the critical race field agree with CLS that the law is not rational and objective and favors the powerful. Proponents of CRT, however, tend to focus their energies on critically examining the relationship between race and the law, a topic that they believe does not receive sufficient attention from CLS. Professor Derrick Bell’s articles in the 1970s challenging some of the “sacred cows” of the civil rights movement are credited with sparking the development of CRT. For example, Bell questioned whether litigation directed toward the integration of schools served the interests of African American parents and children who may have been better served by a movement directed toward securing greater resources and opportunities for existing schools rather than integrating the children into new schools. The long-term impact of integrated schools has been “white flight” from urban communities and a return to segregated schools, some of which lack adequate resources (D. Bell 1976). There are some general themes listed as follows that are emphasized by CRT (Delgado and Stefancic 2001): Perspective. CRT scholars, unlike mainstream white scholars, take the perspective of racial minorities toward the law and use stories to educate readers on the challenges confronting African Americans and other minority groups (Delgado 1995: 37). Racism. Racial discrimination is viewed as an essential feature of American society (Delgado and Stefancic 2001). Construction of race. There is no firm biological or scientific basis to the racial categories of “white” and “African American” or “Hispanic.” Historically in the American South, a “single drop” of black blood resulted in an individual being considered African American. Minority racial categories historically have been associated with negative characteristics although “whiteness” possesses positive associations (Gotanda 1995). Property. White racial identity is a property right that confers a “white privilege” in areas ranging from education to housing and employment (C. Harris 1993).

Law and subordination. Law, although formally “color blind,” is a mechanism for maintaining white dominance (L. Green 1995; S. L. Johnson 2000). For example, anti-discrimination laws, by requiring demonstration of an intent to discriminate rather than looking at, for example, the percentage of minorities who were hired and promoted or who leased an apartment, make it difficult to prove discrimination (Freeman 1978). Law in context. The law focuses on the narrow issue of whether an individual was discriminated against in a hiring decision or in a prosecutor’s decision to bring a death penalty charge against a defendant. CRT scholars adopt a broader view and focus on the factors that keep African Americans and other minorities in a subordinate status. These factors include poor schools, poverty, unemployment, high incarceration rates, and discriminatory attitudes (Gotanda 1995: 265–266). Legal equality. CRT argues that legal efforts to combat discrimination are taken by the white establishment to maintain their dominant position rather than out of a genuine commitment to equal rights. Viewed from a CRT perspective, the U.S. Supreme Court decision in Brown v. Board of Education was an effort to win the hearts and minds of the population of the developing world during the Cold War as part of the United States’ competition with the Soviet Union (D. Bell 1980). Intersectionality. Minorities are disadvantaged by a combination of race, gender, and class. This is termed intersectionality, or being situated in the middle of various forces (D. Roberts 1995: 384). Essentiality. Minorities, on account of race, suffer discrimination and disadvantages beyond that directed at women or the poor (Crenshaw 1995: 357). Alternative legal analysis. Existing legal approaches often fail to offer full legal protection to minorities. Critical race scholars, for example, have challenged inclusion of racial insults as freedom of speech (Delgado 2000: 131). Kimberlé Williams Crenshaw develops a series of arguments that are central to CRT in her essay on rape. Rape law in the past few decades has been reformed to eliminate those aspects of the common law that placed an unfair burden on women. For example, very few states continue to require that women place themselves at risk by demonstrating “resistance to the utmost” to establish a lack of consent. Crenshaw, while applauding these types of reform, notes that African American women continue to confront prejudice in the criminal justice system that is not experienced by white women (e.g., essentiality). Defendants charged with the rape of an

African American woman, whether they are white or African American, are less likely to be charged and convicted and less likely to receive a lengthy prison sentence than defendants charged with the rape of a white woman. Crenshaw argues that the lenient treatment of individuals alleged to have raped African American women, in part, results from the historic view of African American women as “earthy” and “gratification oriented” and as conforming to the stereotype of a “bad woman.” In other words, as compared with white women, African American women continue to be judged by “who they are rather than what has been done to them” (Crenshaw 1995). Khalil Gibran Muhammad argues that crime is central to understanding discrimination against African Americans. He demonstrates how popular and academic publications beginning in the late nineteenth century identified African Americans as violent criminals. Commentators, for the most part, resisted explaining African American crime as a product of poverty, unemployment, and segregation. African Americans’ alleged criminality instead was portrayed as a product of their biology and later was explained as a product of a culture in which crime was accepted, encouraged, and celebrated. African Americans migrating from the South to northern cities during World War I were singled out for police harassment and violence and high rates of arrest and imprisonment. The Uniform Crime Reports started in 1930 to record the national incidence of crime and soon thereafter began to highlight the racial divide in society by distinguishing between crimes committed by whites and crimes committed by African Americans and included no other racial or ethnic categories. Muhammad concludes that the identification of African Americans with crime and violence continues to this very day and has helped to justify racial discrimination and inequality (Muhammad 2010). This conclusion is reinforced in Ibram X. Kendi’s study of the history of racist ideas in the United States, which he traces from the arrival of the first European settlers. Kendi notes that any “negative behavior” by an African American has been viewed as evidence of “what was wrong with Black people” although “negative behavior” by a white individual “only proved what was wrong with that person” (Kendi 2016). Professor Osagie K. Obasogie showed how deeply racism is embedded in society and how racial characteristics are constructed by studying the attitude of individuals who have been blind since birth. He found that white individuals who are blind learn from an early age through the actions or statements of family and other individuals that African Americans are of a “different” race who engage in negative behavior. They then bring these biases and prejudices into their daily interactions and relationships with African Americans (Obasogie 2014). Consider an example of how the social construction of race reinforces race privilege and legal subordination. Ian Haney López argues that race is “legally constructed.” U.S. law between 1879 and 1952 for the most part limited citizenship and for many years limited entry into the United States to “white” individuals and to individuals of “African nativity.” There was no fixed definition of white, and courts held that whiteness should be determined in accordance with the views of the “common individual” rather than on the basis of scientific analysis. In the vast majority of cases, race would be “evident” by looking at an individual. Armenians initially were categorized as “Asiatics.” Judges after some debate changed their minds and categorized

Armenians as white and eligible for citizenship. López notes that the decision as to who is white and eligible for citizenship had significant consequences because whiteness carried privileges that were not available to non-whites. In California, for example, non-citizens were prohibited from owning or possessing long-term leases on agricultural land in the Fresno Valley, which meant that rural Japanese and other Asians were ineligible to purchase, cultivate, and sell property and to accumulate wealth. Another example of the social construction of race was the historic definition of white and African American in the South. The southern U.S. states practiced legal segregation until the 1960s. Race determined where you could live, go to school, and marry. The law in southern and border states variously followed a “one drop,” “one-half drop,” or “one-eighth drop” rule whereby the smallest amount of non-white blood resulted in an individual being assigned to a non-white and segregated status (I. López 2006). Richard Rothstein points to countless examples of how federal housing policy has reinforced racial privilege. Following World War II, the Federal Housing Administration (FHA) guaranteed low-interest loans from banks to veterans to purchase homes. Banks participating in the program thus had no risk in issuing loans to veterans. The veterans after paying off the guaranteed loan owned the home and later were in a position to sell the home at a profit or pass it on to children. Massive suburban housing projects were built that were sold to veterans returning from the war. This guaranteed home loan program spurred the construction of schools, malls, office parks, and roads connecting the suburbs to the city and led to businesses relocating in the suburbs. The FHA explicitly refused to provide guaranteed loans to African American veterans and to suburban housing projects that were near African American neighborhoods. In one instance, a Detroit builder only was able to obtain FHA loans for his purchasers after constructing a half-mile concrete wall, six feet high and a foot thick, separating his project from an African American neighborhood. African American military veterans as a result of the discriminatory FHA loan program were forced into rental housing in segregated areas or were required to obtain a standard mortgage loan and to buy an older home whose value was unlikely to greatly increase over time. In 1973, the U.S. Commission on Civil Rights wrote that the “housing industry, aided and abetted by Government, must bear the primary responsibility for the legacy of segregated housing. . . . Government and private industry came together to create a system of residential segregation.” Keep in mind that housing is a central component in creating generational wealth and significantly contributes to the “wealth gap” between whites and African Americans in the United States (Rothstein 2017). The next section introduces the topic of the experience of African Americans in the criminal justice system. AFRICAN AMERICANS AND THE CRIMINAL JUSTICE SYSTEM Six of the original thirteen states provided for the legal enslavement of African Americans. A 1680 Virginia statute was the model for the “slave codes” adopted throughout the South, laws that remained in effect for the next 180 years. Slaves did not possess a legal personality. They were bought and sold as property. They could not bring a lawsuit, testify against a free white man or woman, make a contract, own property, sell goods without a permit, or offer their labor on the open market. Slaves could not fight or use profane language, beat drums or blow horns,

or preach religious doctrine. Slaves who resisted a “Christian” lifestyle were punished by twenty lashes. They could not leave the plantation without a permit and were subject to curfews and arbitrary searches and seizures. Assemblies of several slaves were prohibited unless monitored by a white man. Escape was punishable by death (Higginbotham 1978). The law prohibited teaching slaves to read or write, giving them books or pamphlets, teaching them to set type, and educating them about poisons. Whipping was the customary punishment for acts that did not carry the death penalty. Most states limited the number of lashes to thirty- nine, although Alabama authorized up to one hundred lashes. In the 1829 North Carolina decision of State v. Mann, the court stated that the “power of the master must be absolute to render the submission of the slave perfect.” The decision stated that a slave possessed no “remedy” against the power of “his master” whose authority is “conferred by the laws of man . . . if not by the law of God” (State v. Mann, 13 N.C. 263 [1829]). At the time of the drafting of the U.S. Constitution, there were 675,000 slaves in thirteen states; almost one in every five Americans was a slave. The Constitution dealt with slaves as three- fifths of a person for purposes of the apportionment of Congress. The importation of slaves was not to be prohibited by Congress before 1808. The “Fugitive Slave” provision provided that a slave who fled to a “free state” could be reclaimed by his or her owner (Delbanco 2018). Any hopes of limiting the number of slave states in the Union was undermined by the 1857 U.S. Supreme Court decision in Dred Scott v. Sandford. Chief Justice Roger Taney held that the assertion in the Declaration of Independence that all men were created equal did not include African Americans. African Americans were “beings of an inferior order, and . . . unfit to associate with the white race . . . and so far inferior that they had no rights which the white man was bound to respect.” African Americans, whether free or slaves, were not entitled to U.S. citizenship. Slaves were property, and slave owners could not be deprived of their property interest in slaves by federal law (Dred Scott v. Sandford, 60 U.S. 393 [1857]). In 1865 as the Civil War drew to a close, Congress and twenty-seven states endorsed the Thirteenth Amendment abolishing slavery. Roughly eighteen months later, Congress voted to support the Fourteenth Amendment to the Constitution providing that “nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” A third step toward racial equality was the Fifteenth Amendment providing that the “right of citizens of the United States to vote shall not be denied or abridged . . . on account of race, color, or previous servitude.” Congress was authorized to enforce each of these three amendments (Gates 2019). African Americans flocked to the polls in the South and elected hundreds of African Americans to local and state office, served on juries, created school systems, and abolished barbaric forms of punishment. White southerners did not accept the rising tide of African American emancipation. Throughout the South, African American voters were disenfranchised through poll taxes, literacy tests, and the prohibition on individuals convicted of a felony from voting.

The U.S. Supreme Court in a series of cases affirmed these discriminatory practices, and by 1910, African Americans effectively had been eliminated as a force in southern politics. In Mississippi, 140,344 African Americans registered to vote in 1896; in March 1900, only 5,320 African Americans remained on the voting roll. African Americans were subjected to a reign of terror. In the twenty years between 1883 and 1903, there were three thousand documented lynchings of African Americans by white mobs, almost none of which resulted in criminal prosecution. In 1893 alone, there were 231 lynchings of African Americans (Waldrop 2006). Southern states began to reintroduce segregation in public facilities. In 1896, in Plessy v. Ferguson, the U.S. Supreme Court held that “separate” and “equal” railway facilities for the races were not in violation of the Fourteenth Amendment. The segregation of the races, according to the Court, does not stamp African Americans with a “badge of inferiority.” Political equality in voting or in running for office did not require equality in public facilities, theaters, or schools. This type of separation does not “imply the inferiority of one of the two races.” Each race, according to the Court, preferred to socialize with its own group (Plessy v. Ferguson, 163 U.S. 537 [1896]; see also Luxenberg 2019). The South following the end of slavery confronted the challenge of finding a workforce to provide inexpensive manual labor. The strategy used to provide a cheap source of labor was to arrest, convict, and fine African Americans for minor offenses. Many of the individuals convicted were unable to pay their fine and were sentenced to jail. Local sheriffs, in turn, leased inmates to private cotton and sugar plantations, lumber camps, and construction firms. Tens of thousands of African Americans found themselves in conditions reminiscent of slavery including regular punishments and beatings. Between 1880 and 1904 the State of Alabama’s profits from leasing state convicts comprised as much as 10 percent of the state’s budget. Florida and Alabama in 1923 became the last two states to abolish convict leasing (Bauer 2018; Blackmon 2008). Discrimination as noted earlier was most apparent in the criminal justice system. In March 1931, nine African American, semi-illiterate teenagers were pulled off a railroad train at Paint Rock, Arkansas, and charged with the gang rape of two white women. The so-called Scottsboro Boys became global symbols of injustice. The defendants were sentenced to death. Their appointed defense attorney only conferred with the defendants for thirty minutes, failed to cross-examine key witnesses or to challenge the all-white composition of the jury, did not offer a closing statement, and neglected to move for a change in the location of the trial despite the mob atmosphere surrounding the trial. The U.S. Supreme Court overturned their convictions based on ineffective assistance of counsel and subsequently overturned a second guilty verdict because of the exclusion of African American jurors. In the end, the four youngest defendants were released after serving six years in jail, and all but one of the five remaining Scottsboro defendants was paroled (J. Goodman 1995). In November 2013, the Alabama House of Representatives and Senate, in recognition of the defendants’ unjust treatment, voted to pardon the Scottsboro defendants, all of whom were deceased.

The failure of the criminal justice system in the trial of the Scottsboro defendants was part of a larger pattern of mistreatment of African Americans. In the often-cited case of Brown v. Mississippi, the defendants were convicted of murder even though witnesses freely admitted having obtained the confessions through the use of physical coercion. One of the defendants was “hanged by a rope to the limb of a tree and, having let him down, they hung him again . . . and [when] he still protested his innocence, he was tied to a tree and whipped.” The defendant was subsequently arrested and once again “severely whipped” and was told the whippings would continue until he confessed. Two other defendants “were laid over chairs and their backs were cut to pieces with a leather strap with buckles on it . . . and, as the whippings progressed and were repeated, they . . . confessed the crime” (Brown v. Mississippi, 297 U.S. 278 [1936]). The Supreme Court in reversing the defendants’ convictions held that “it would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions . . . and the use of the confessions thus obtained as the basis for conviction and sentence.” Professor James Q. Whitman of Yale Law School documents that U.S. racial policy influenced Nazi Germany’s racial laws. U.S. law was not directly transplanted to Germany, although it demonstrated to Nazi officials that another powerful country endorsed and practiced policies of racial exclusion and white supremacy. German jurists looked to the U.S. treatment of African Americans as an example of how to create a dual system of citizenship in which the Jews, who were viewed by the Nazis as an “inferior group,” might be accorded some minimal rights while being excluded from voting and from enjoying full and equal access to education and to public facilities. The German officials who drafted the Nazi Nuremberg laws that criminalized sexual relations between Aryans and Jews were inspired by the laws in thirty U.S. states that prohibited sexual relations and marriage between whites and various racial groups as an example of how the issues of “racial defilement” and “racial mixing” might be addressed (Whitman 2017). In 1955, Emmett Till, a 14-year-old African American from Chicago, was visiting his extended family in Money, Mississippi. He was accused of whistling at Carolyn Bryant, a 21-year-old store clerk. Her husband Roy Bryant and his half-brother J. W. Milam retaliated by kidnapping Till and beating him, gouging out one of his eyes, and shooting him in the head. They were acquitted by an all-white jury after sixty-seven minutes of deliberation. Roy Bryant and Milam later confessed to the killing in a national magazine in exchange for $4,000. In 2017, Carolyn Bryant admitted that she lied about Till. In 1963, the 16th Street Baptist Church in Birmingham, Alabama, was bombed, killing four young African American girls between the ages of 11 and 14. The trial of one of the perpetrators did not take place until 1977, and it was not until twenty- five years later that the two other perpetrators were brought to justice. In the last decades, federal authorities have reviewed over one hundred “cold case” killings that took place in the 1950s and 1960s during the civil rights movement in the South, and over twenty men have

been sentenced to jail for the racially motivated murder of African Americans and African American and white civil rights workers (Leamer 2016; R. Romano 2014: 1–66). The Kerner Commission on civil disorders appointed by President Lyndon Johnson issued a report in 1968 on the causes of urban unrest in 1967 in Newark, New Jersey; Detroit, Michigan; and other cities. The report concluded that “white racism” leading to “pervasive discrimination and segregation in employment, education and housing” had prevented large numbers of African Americans from enjoying the “benefits of racial progress.” A contributing factor to the urban unrest was a “widespread belief” among African Americans about the “existence of police brutality” and a “‘double standard’ [of] justice and protection—one for [African Americans] and one for whites” (Gillon 2018: 448–449). Michelle Alexander, in her important book The New Jim Crow, notes that “Jim Crow” (a system of legal discrimination) collapsed following the historic 1954 Supreme Court decision in Brown v. Board of Education in which the Supreme Court ordered the desegregation of public schools with “all deliberate speed.” Today, African Americans are repressed through the criminal law. Massive numbers of young people of color are incarcerated far from their home and, as a result of their imprisonment, are ineligible to vote, excluded from various areas of employment, and ineligible for public housing, welfare, and student loans. This “new Jim Crow” results in a significant number of African American males being prevented from participation in mainstream white society (Alexander 2010: 182–208). Harvard law professor Charles Ogletree observes that there remains an “alarming prevalence of racial disparity in the Criminal Justice System” and there is a “presumption of guilt” rather than a “presumption of innocence” when it comes to African Americans (Ogletree 2010: 75). He cites a 2009 report from the Pew Research Center indicating that 1 in every 15 African American males aged 18 or older are in prison or in jail versus 1 in every 36 Hispanic males and 1 in every 106 white males. A 2003 Department of Justice report finds the lifetime risk of incarceration for a child born in 2001 is 1 in 3 for African American males, 1 in 6 for Hispanic males, and 1 in 17 for white males. Ogletree concludes by citing a report from the Sentencing Project stating that “one of every three black males born today will go to prison in his lifetime, as will one of every six Latino males” (quoted in Ogletree 2010: 15–16). The next two sections discuss two examples of the legal bias against African Americans. The first section discusses stop and frisk of African Americans, and the second section discusses the differential prosecution and punishment of individuals in cases involving crack cocaine and powder cocaine. In reading this material, ask yourself whether, despite the racial progress achieved in the United States over the past several decades, the criminal justice system continues to unfairly treat African Americans. RACIAL PROFILING Racial profiling is defined as the reliance on race as the basis for detaining an individual for investigation or for arrest. In other words, an individual is detained based on “who he or she is”

rather than “what he or she does.” Consider two people of different races walking down the street. A decision by the police to stop one of these individuals based on his or her race would violate the equal protection clause of the U.S. Constitution. Discriminatory justice may occur in a variety of situations. A pretext arrest involves the police stopping an individual on a minor crime when their real motivation is to investigate a more serious offense. This may involve discriminatory justice or a decision by the police to detain an individual for investigation or arrest solely because he or she is African American or Hispanic. The police may overlook the same offense when committed by an individual of another race or nationality or gender. Judges have recognized there are instances in which race may be a factor to take into consideration. For example, an individual may give the police a description of an assailant that includes the offender’s race. The overwhelming perception of minority groups is that the police engage in racial profiling. A 2004 Gallup poll found that 67 percent of African Americans, 63 percent of Hispanics, and 50 percent of whites believe racial profiling is widespread (S. Walker, Spohn, and Delone 2007: 125, 127, 129). In a CBS/New York Times poll, 67 percent of African Americans responded they felt that they had been stopped by the police because of their race or ethnic background. This compares to 9 percent of whites (Ogletree 2010: 110). An October 2014 poll sponsored by Reason found that 70 percent of Americans oppose racial profiling and 25 percent support racial profiling; 81 percent of African Americans strongly disapprove of racial profiling as compared to 62 percent of Hispanics and 40 percent of white Americans (Ekins 2014). There was somewhat less opposition in a poll reported by the International Business Times (Morrison 2015). The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures. A reasonable seizure of an individual may be based on either probable cause (arrest) or reasonable suspicion (an investigative stop). The Supreme Court in its 1996 ruling in United States v. Whren made it difficult for defendants to establish racial profiling. In Whren, two young African American defendants claimed that Washington, D.C., vice squad officers subjected them to a pretext stop. They argued that the true reason for the stop was their race and that they were suspected of drug possession rather than that they failed to signal a turn and had driven at an “unreasonable” speed. The officers observed the defendants’ SUV stopped at an intersection for an “unusually long time,” and the officers executed a U-turn. The SUV accelerated, and the officers overtook the defendants’ truck and spotted two large bags of cocaine in the front seat. The defendants contended that it was unreasonable under the Fourth Amendment for two plainclothes vice officers to have stopped them for a minor traffic violation in a congested area of the city. Police regulations specified that vice squad officers were to execute motor vehicle stops only for serious traffic violations. The defendants argued there are so many traffic regulations that the police always can find a reason to pull someone over for a violation. The U.S. Supreme Court held that so long as the police possess reasonable suspicion or probable cause to stop a vehicle,

the Court would not explore the officers’ motivation for a stop. The Court did indicate that the defendants’ remedy lay in a violation of the equal protection clause based on intentional racial discrimination, a difficult hurdle to overcome so long as the police had legal grounds to seize an individual (United States v. Whren v. United States, 517 U.S. 806 [1996]). Racial profiling became a topic of intense public attention in 2013 when federal district court judge Shira A. Scheindlin held in Floyd v. City of New York that the New York City Police Department (NYPD) engaged in what she termed “indirect racial profiling” (Floyd v. City of New York, 959 F.Supp.2d 540 [S.D.N.Y. 2013]). New York City mayor Michael Bloomberg, in an effort to reduce the crime rate, implemented an aggressive policy of “stop and frisk” in “impact zones” where crime was concentrated. In 2003, the second year of Mayor Bloomberg’s first term in office, the police seized 604 weapons in 160,651 encounters or one gun for every 266 stops. In 2011, 780 guns were seized in 685,724 stops or one gun for every 879 stops. An estimated 8,000 guns and 80,000 other weapons were seized by the NYPD in the first ten years of New York’s stop-and-frisk policy. The NYPD credited its stop-and-frisk policy for reducing the number of murders in New York City to significantly below the number of murders reported a dozen years before. The police explained that knowing there was a risk of being stopped, individuals would not carry firearms, realizing they faced a lengthy prison term under New York’s strict gun control law. As a result, the NYPD claimed to have saved the lives of thousands of minority young people. Individuals who were stopped often were found to have outstanding warrants for their arrest and as a result were taken into custody. Critics asserted that whatever the effectiveness of New York’s stop-and-frisk policy was, the question was whether the stop-and-frisk policy was constitutionally permissible. In 1968, in Terry v. Ohio, the U.S. Supreme Court held that it is reasonable under the Fourth Amendment for the police to detain an individual based on a reasonable suspicion the individual has committed a crime or is about to commit a crime. The facts are to be judged in accordance with a reasonable person standard and not based on what the officer (subjectively) believes. The police may not rely on a hunch, generalization, or stereotype in deciding to detain an individual based on reasonable suspicion of criminal activity (Terry v. Ohio, 392 U.S. 1 [1968]). A police officer, when nothing in the initial stages of the encounter serves to “dispel” the officer’s reasonable fear for his or her own or others’ safety, is entitled to conduct a carefully limited search for weapons that might be used for an assault against the officer or the public. In 1993, in Minnesota v. Dickerson, the Supreme Court expanded police stop-and-frisk powers and held that if a police officer lawfully pats down a suspect’s outer clothing and feels an object and it is immediately apparent that the object is unlawful narcotics, the officer is justified in seizing the object (Minnesota v. Dickerson, 508 U.S. 366 [1993]).

Terry is intended to provide the police with the capacity to conduct a brief stop for purposes of crime investigation and detection. The Court anticipated these stops would be undertaken in situations requiring “swift action predicated upon the on-the-spot observations of the officer on the beat.” In Terry, Martin McFadden, a thirty-nine-year veteran of the Cleveland police, spotted individuals “casing” a store, approached the men, and when the men proved unresponsive, conducted a carefully limited frisk for weapons. The Supreme Court reasoned that because unlawful Terry stops and unlawful Terry frisks would result in the exclusion of evidence, the police would be deterred from violating individuals’ Fourth Amendment rights. A Terry search policy that intentionally singled out members of one racial group for stop and frisk would violate the equal protection clause of the Constitution, even if there were reasonable suspicion to stop members of the group. Harvard Law School professor Randall Kennedy notes courts have held that although race may not be the sole factor in a reasonable suspicion stop, it may be one of several factors relied on by the police. Individuals may be stopped for investigation who fit the victim’s description of the perpetrators of a robbery where the individuals’ size, gender, and race matches the victim’s description and the individuals are detained within several blocks of the robbery. Kennedy argues that relying on race as the sole factor other than in “extraordinary circumstances” promotes distrust, interferes with minority–police relations, and leads to a perceived abuse of authority (R. Kennedy 1998: 137, 151, 153). District court judge Scheindlin held that New York City’s stop-and-frisk policy was unconstitutional, in violation of the Fourth Amendment and equal protection clause of the U.S. Constitution. Judge Scheindlin appointed a federal monitor to supervise a reform of the New York City policy of stop and frisk, including the use of body-worn cameras for officers in some precincts, community consultation on the use of stop and frisk, and a modification in training. New York City subsequently implemented a series of reforms to the police department’s use of stop and frisk. Judge Scheindlin concluded that although NYPD policy formally prohibited racial profiling, the police practiced a policy of conducting stops in a “racially discriminatory manner.” Between January 2004 and the middle of 2012, roughly 4.4 million stops were recorded by the police. Eighty-three percent of the stops involved African Americans (52 percent) or Hispanics (31 percent), although these two groups constitute close to 50 percent of New York City residents. In 2011, over 40 percent of stops targeted African American and Hispanic males between the ages of 14 and 24, a demographic group that comprises 4.7 percent of the New York City population. Mayor Bloomberg and the police defended the stop-and-frisk policy based on the fact that young minority men commit a disproportionate percentage of crime. Judge Scheindlin noted that this argument might be valid if the “people stopped were criminals.” However, she pointed out that the data indicate that 88 percent of individuals stopped are “overwhelmingly innocent” and their seizure results neither in an arrest (6 percent of detainees) nor in a summons (6 percent of detainees) to appear in court for a minor violation of the law. Judge

Scheindlin wrote, “It is impermissible to subject all members of a racially defined group to heightened police enforcement because some members of that group are criminals.” There also was little evidence that the Terry stops resulted in the seizure of weapons. Judge Scheindlin went on to note that roughly half of all individuals detained were frisked, although only 1.5 percent of frisks led to the seizure of weapons. Weapons were seized in 1 percent of stops involving African Americans, 1.1 percent of stops involving Hispanics, and 1.4 percent of stops involving whites. Contraband other than a weapon was seized in 1.8 percent of stops involving African Americans, 1.7 percent of stops involving Hispanics, and 2.3 percent involving whites. Once stopped, African Americans and Hispanics were treated differently than whites. African Americans were 14 percent more likely and Hispanics 9 percent more likely than whites to be subjected to physical force during a stop. Judge Scheindlin concluded that the focus on African American and Hispanic young people for investigative stops was based at least “in part” on the fact they were viewed as the “right people.” She pointed to police supervisors lecturing officers to stop “the right people, the right time, the right location,” which she concluded, based on the testimony of high-ranking police officials, was a code for targeting African American and Hispanic young people. Judge Scheindlin noted that police reports indicated that minority youth were detained based on broad categories of behavior such as “furtive movement” or a “suspicious bulge” in their pocket. Furtive movements might encompass being “fidgety, changing directions, walking in a certain way, grabbing at a pocket or looking over one’s shoulder.” Eleven percent of African Americans and 9.6 percent of Hispanics were stopped based on a “suspicious bulge” as compared to 4.6 percent of whites. In most instances, the bulge turned out to be a wallet or cell phone. Judge Scheindlin stressed that a wallet or cell phone does not justify a stop, nor does the presence of a wallet or cell phone entitle the officer to continue to conduct a search. She observed that if the NYPD mistakenly believed this type of behavior constitutes reasonable suspicion, it should come as no surprise that so many stops yielded so little evidence of criminal activity. In other instances, individuals aged 14 to 21 were stopped because they allegedly fit the profile of the individuals responsible for committing crimes. Individuals falling into this category were stopped even if they were not acting in a suspicious fashion or did not fit the description of the perpetrator of a crime. Judge Scheindlin stressed that the equal protection clause does not authorize treating similarly situated members of different racial groups differently based on racial disparities in crime data. The result was that minorities were being detained based on a lesser standard of reasonable suspicion than was being used to detain whites. Judge Scheindlin cited the seizure of Cornelio McDonald, who was walking down the street in Queens late at night. He was stopped based on the fact that two African American males had committed robberies and a burglary in the vicinity. “In other words, because two black males

committed crimes in Queens, all black males . . . were subject to heightened police attention.” The larger impact of this stop-and-frisk policy was to make individuals fearful of walking down the street, distrustful of the police, and afraid to venture into white areas of the city. Despite the awareness of government and police officials that the stop-and-frisk policy was being carried out in an unlawful and racially discriminatory fashion, Judge Scheindlin concluded these officials were indifferent to the discriminatory application of stop and frisk. Police officers were pressured to increase the number of stop and frisks regardless of whether the stops were justified, and as a result, the number of stops increased sevenfold between 2002 and 2011 (from 97,000 stops in 2002 to 686,000 in 2011). Judge Scheindlin concluded that New York City’s highest officials “have willfully ignored overwhelming proof that the policy of targeting ‘the right people’ is racially discriminatory and . . . violates the United States Constitution.” New York mayor Bill de Blasio implemented a number of agreed-upon reforms of NYPD’s stop- and-frisk policy, which resulted in a dramatic decline of seizures (10,861 in 2017 as compared to 686,000 in 2011) that was accompanied by a decline in the crime rate. An audit of the department’s practice of stop and frisk nonetheless found that the reforms were not being fully implemented by officers in the field (A. Baker 2016). In 2018, the lawyers who brought the case against the NYPD in Floyd reported that police officers failed to record stops in 73 percent of seizures. Racial disparities in seizures were at similar rates to when stop and frisk was at its “peak.” More than 80 percent of individuals seized were African American or Latinx, and the police patrolled more aggressively in minority neighborhoods as compared to white neighborhoods. Since the NYPD began tracking complaints of racial profiling in 2015, the department over the next three years had yet to find a single complaint regarding stop and frisk that was justified (Borchetta, Charney, and Harris 2018). A 2017 report from the Civil Rights division of the U.S. Department of Justice found patterns of discriminatory stop and frisk in Baltimore and that suspicionless stop and frisks were a common feature of law enforcement’s street enforcement efforts. Similar patterns of suspicionless stops of minorities were found in Chicago, Philadelphia, and other cities (U.S. Department of Justice 2017a: 201–264). Michael D. White and Henry F. Fradella reviewed the social science literature on stop and frisk in New York and in other cities, and their analysis led them to several conclusions (M. White and Fradella 2016: 81–115): Crime. The impact in New York and in other cities indicates that stop and frisk at best had a “minimal to modest” impact on crime. Constitutional rights. Stop and frisk as practiced in New York violated the constitutional rights of thousands of individuals, particularly African American and Hispanic young people.

Consequences. The widespread misapplication of stop and frisk had negative emotional and psychological consequences for individuals who were detained and searched, and in some instances, detainees were physically or sexually abused. Community relations. The use of stop and frisk in minority communities has contributed to a lack of trust of the police and has strained relations between the police and these communities. Legal experts who are critical of stop and frisk note that although stop and frisk may be effective in regard to deterring and preventing crimes by individuals, it never was intended to be used as a dragnet tactic to control crime in an entire community (M. White and Fradella 2016: 113). In 2016, New York City entered into a consent decree and paid $75 million in damages for nine hundred thousand summonses issued to individuals between 2007 and 2015 who had been falsely charged with minor offenses such as disorderly conduct, trespassing, and drinking in public. The plaintiffs bringing the legal action alleged that this was part of a pattern and practice of selectively and disproportionately stopping young minority males and that the police in order to meet a quota of arrests had been told to issue a summons regardless of whether they could establish a violation of the law (Weiser 2017). A 2012 New York Times poll revealed that New Yorkers were fairly equally divided on whether stop and frisk was an acceptable method to make New York City safe. Among white voters, 55 percent believed stop and frisk made New York safer, and 39 percent did not believe the policy made New York safer; 35 percent of African American voters believed stop and frisk made New York safer while 56 percent believed stop and frisk had not made New York safer; and 48 percent of Hispanics agreed that stop and frisk had made New York safer while 44 percent believed stop and frisk had not made New York safer. An October 2016 Rasmussen poll found that 47 percent of the public oppose stop and frisk, 41 percent favor stop and frisk, and 12 percent have no opinion. The public was divided on whether stop and frisk reduces crime although two-thirds were concerned that the policy violated civil liberties. In November 2019, former New York City mayor Michael Bloomberg, in anticipation of a formal announcement that he was running for the Democratic nomination for president, apologized for the stop-and-frisk policy he implemented during his tenure in office. Bloomberg stated that his concern as mayor was for public safety and saving lives although he now realized far too many innocent individuals, most of whom were African American and Latinx, were unjustly stopped under New York City’s stop-and-frisk policy. Professor Ogletree reviewed a study conducted by the American Civil Liberties Union of police stops in Los Angeles between 2003 and 2004. The report concludes that minorities are “over- stopped, over-frisked, over-searched, and over-arrested.” Ogletree notes,

• Per ten thousand residents, the African American stop rate is 3,400 stops higher than the white stop rate, and the Hispanic stop rate is almost 360 stops higher.

• Relative to stopped whites, stopped African Americans are 12 percent more likely and stopped Hispanics are 43 percent more likely to be frisked.

• Relative to stopped whites, stopped African Americans are 76 percent more likely and stopped Hispanics are 16 percent more likely to be searched.

• Relative to stopped whites, stopped African Americans are 29 percent more likely and stopped Hispanics are 32 percent more likely to be arrested.

• Frisked African Americans are 42.3 percent less likely to be found with a weapon than frisked whites, and frisked Hispanics are 31.8 percent less likely to have a weapon than frisked non-Hispanic whites. (Ogletree 2010: 110–111)

Several important studies of racial profiling involve traffic stops in New Jersey and in Maryland. The New Jersey study found that African Americans and whites violated traffic laws at the same rate. Minorities comprised 15 percent of drivers on the New Jersey Turnpike while constituting 42 percent of all individuals stopped and 73 percent of all individuals arrested. The New Jersey attorney general conducted a second study that found that 77 percent of all consent searches conducted by the police involved African Americans. Consent searches are significant because they involve the police asking a driver’s permission to search an automobile in situations in which they may otherwise lack a legal basis to conduct a search (Alexander 2010: 131–132). The Maryland study found that African Americans were 17 percent of drivers on I-95 outside of Baltimore but 70 percent of drivers stopped and searched on the highway. Racial minorities (Hispanics, Asians, and African Americans) constituted 21 percent of all drivers but almost 80 percent of drivers pulled over and searched (Alexander 2010: 141). The Maryland data are based on police reports that were made available as a result of a lawsuit filed by an African American, Harvard-trained lawyer who had been stopped while traveling with his family on I-95. One explanation for the focus on stopping African American drivers is that a memo distributed to the state police advised the officers that drug traffickers are predominantly African American and are armed and dangerous and travel I-95 in the early morning. The reality was that whites driving on I-95 were four times more likely to be carrying narcotics than were African Americans (Ogletree 2010: 107–108). In New Jersey, whites were twice as likely to possess unlawful drugs as were African Americans and five times more likely than Hispanics to be in possession of unlawful narcotics (S. Walker et al. 2007: 131). Similar findings of racial profiling were found in studies in Florida, Illinois, and California (Alexander 2010: 132). A 2002 study by the Bureau of Justice Statistics stressed that traffic stops are important because they account for 80 percent of police-citizen contacts and shape citizens’ perceptions of the police. African Americans and Hispanics, according to the study, are more than twice as likely as whites to be arrested in a traffic stop. They are more than three times as likely to have force used against them during the stop (S. Walker et al. 2007: 128–129). Charles Epp, Steven Maynard-Moody, and Donald Haider-Markel in a study of traffic stops in Kansas City, Kansas, distinguish between police safety stops and investigative stops. There is little difference in the racial identity of drivers who are stopped in safety stops because they are driving at a rapid rate of speed that threatens road safety. Drivers are treated the same regardless of their race. However, African Americans are 270 times more likely than whites to

be subjected to an investigatory stop, and during these stops, the police are five times more likely to search African Americans than whites although they are less likely to find a gun or contraband in searches of African Americans (Epp, Maynard-Moody, and Haider-Markel 2015). A study of 250,000 traffic stops in Durham, North Carolina, between 2002 and 2013 also found a pattern of racial discrimination. The pattern of traffic stops in Durham is similar to the pattern of stops in the entire state of North Carolina. Frank R. Baumgartner and his co-authors analyzed every traffic stop in North Carolina between 2002 and 2016. Their comprehensive and complex analysis of 20 million traffic stops found that the police engaged in the disproportionate stop, arrest, and search of African American and Hispanic motorists (Baumgarten, Epp, and Shoub 2018). A U.S. Department of Justice study of 11,610 vehicle stops over a two-year period in Ferguson, Missouri, found that African American motorists were overrepresented compared to their percentage of the local population in the number of traffic stops and that African American motorists were searched and arrested at a much higher rate than white motorists. Yet contraband was seized far more frequently in searches of white motorists. African Americans were over two times more likely than other motorists to receive a citation or to be arrested than white motorists (U.S. Department of Justice 2015a: 70–78). Stops of African American drivers in Ferguson have increased by five percentage points since 2013, and stops of white drivers have dropped by 11 percent. A report by the Missouri attorney general finds that African American motorists are almost twice as likely as other drivers to be stopped based on their share of the driving-age population. White drivers are stopped 6 percent less often than would be expected based on their share of the driving population (Eligon 2019; Koster 2015). There are documented racial disparities in arrests for a host of minor legal violations. In New York City, police officers in sworn affidavits stated that they were directed to target African American and Latinx young people for subway fare evasion and to overlook fare evasion by other racial and ethnic groups. In a two-year period, 73 percent of individuals who received a ticket for fare evasion whose race was recorded were either African American or Latinx. These same groups comprised 90 percent of individuals who were arrested rather than issued a ticket (J. Goldstein and Southall 2019). In 2015, then attorney general Eric Holder updated the Department of Justice’s 2003 Guidance Regarding the Use of Race by Federal Law Enforcement Agencies. The new guidelines provide that federal law enforcement officers may not use race, ethnicity, national origin, religion, sexual orientation, or gender identity to “any degree in making routine or spontaneous law enforcement decisions” such as ordinary traffic stops. Federal officers may rely on the listed characteristics in those instances in which this is part of a suspect’s physical description or characteristic. More than half of the states have legislation addressing racial profiling by the police.

In July 2009, the issue of racial profiling was thrust into the national political stoplight when Sergeant James Crowley of the Cambridge, Massachusetts, police arrested esteemed Harvard professor Henry Louis Gates Jr., an African American, for a crime against “decency and good order.” Crowley had been called to Gates’s home when a neighbor reported seeing two men push open the front door, which, as it turns out, was jammed. A confrontation developed when Gates refused to exit his home in response to a request from Sergeant Crowley. Gates responded to being suspected of breaking and entering by loudly calling the officer a racist and shouting several times that this is “what happens to a black man in America.” Professor Gates subsequently agreed to leave the house and showed Crowley his Harvard identification and driver’s license indicating this was his home. Ogletree, in analyzing the situation, concludes Crowley believed, because of his “prejudice,” that the 59-year-old Gates could not be the owner of the home and a crime was being committed. Crowley could have waited for the Harvard police to arrive to corroborate Gates’s explanation before arresting him. The legally questionable charges later were dismissed (Ogletree 2010: 15–64). President Barack Obama later commented that the “Cambridge police acted stupidly” and invited both men to a “beer summit” at the White House. The episode illustrates the continuing racial divide on race and criminal justice. According to a CNN poll, 61 percent of African Americans as compared to 29 percent of whites sympathized with Professor Gates. Forty-five percent of whites sympathized with Sergeant Crowley as compared to 19 percent of African Americans. At the same time, over 60 percent of Americans of all races believe that the police engage in racial profiling of motorists and pedestrians and oppose the practice (Elkins 2016). A 2019 study by the Plain View Project provided partial insight as to whether police misconduct is due to “bad apples” or whether there is a deeper issue of a shared culture of “bias” among police officers. Researchers viewed public Facebook posts by roughly 2,800 current officers and nearly 700 more individuals who had once worked for one of eight police departments. The posts of one in five of the current officers including a number in supervisory roles and the posts of more than two in five former officers used racist, misogynist, Islamophobic, or biased language or language that dismissed the importance of due process of law. These types of comments, in turn, often were endorsed by several other officers. A related study of Philadelphia by BuzzFeed and Injustice Watch found that almost a third of the police whose posts were flagged because of objectionable content were the subject of civil rights and brutality complaints that resulted in settlements or verdicts in favor of the citizens involved (Dewan 2019). Efforts to regulate police conduct are complicated by a documented pattern of “testilying” or police misrepresentation of the facts in their encounters with the public (J. Goldstein 2018). There is some indication that the New York City Police Department targeted and arrested minority young people for violation of “social distancing” rules. The arrests took place on the same days that the police overlooked pockets of densely packed white sunbathers, many of whom were not wearing masks (Southall 2020).

LAW AND DIVERSITY: THE CULTURAL DEFENSE Jill Norgren and Serena Nanda describe the cultural defense to a criminal charge as follows: “[Persons] socialized in a minority or foreign culture who regularly conduct themselves in accordance with their own cultural norms should not be held fully accountable for conduct that violates official United States law, if those individuals conduct prescriptions of their own culture” (Norgren and Nanda 1996: 265). Neither U.S. nor English law historically has recognized the cultural defense. In Rex v. Esop in 1836, a native of Baghdad (later established as the capital of Iraq) was convicted in England of a sexual offense that was not a crime in his homeland. The British court affirmed his conviction and held that “custom had to be subordinated to the law of the land” (Rex v. Esop, 173 Eng.Rep. 203 [Cent.Crim.Ct. 1836]). In 1872, in Carlisle v. United States, the U.S. Supreme Court held that an undocumented immigrant who enters the United States is bound by U.S. law (Carlisle v. United States, 83 U.S. 147 [1872]). The Court quoted Secretary of State Daniel Webster, who in 1851 wrote that every “foreign born residing in a country” owes to “that country allegiance and obedience to its law so long as he remains in it. . . . This is the universal understanding in all civilized States, and nowhere a more established doctrine than in this country” (Norgren and Nanda 1996: 266). In 1986, a student note in the Harvard Law Review argued for recognition of a cultural defense. This defense would allow individuals who are charged with a criminal offense to plead that their act was justified based on their culture. The note argued that a failure to recognize the cultural defense “may send a message that an ethnic group must trade in its cultural values for that of the mainstream if it is to be accepted as an equal by the majority. It is . . . a system . . . likely to convince a person that the majority regards her culture as inferior” (Note 1986: 1293, 1302, 1311). The notion of a cultural defense rests on the belief that individuals’ attitudes and beliefs are shaped by the practices and values they learn at home, in school, in church, and in the media. The law, on the other hand, assumes that despite our differences, we should be held to a single standard of behavior. Consider how these two perspectives clash in the Kong Moua case (Norgren and Nanda 1996: 266–267). Moua, a member of the Hmong tribe, had lived in the United States for six years after immigrating to the country from Laos. The Hmong practice “marriage-by-capture,” in which a man consummates marriage with a woman by abducting her and forcing her into sexual intercourse. The woman demonstrates her virtue by resisting the man, and the man demonstrates his masculinity by forcing her into sexual relations. Moua abducted a 19-year-old “Americanized” Laotian woman from a college campus and forced her to engage in sexual intercourse (Evans-Pritchard and Renteln 1994). A defendant’s reasonable belief that a woman consented to sexual intercourse may constitute a defense to rape. The judge determined Moua sincerely believed that the woman consented

and that the woman’s protests were nothing more than part of the ritual requirements of marriage-by-capture. However, the judge also was convinced the woman had vigorously resisted and had not consented. After consulting with Hmong clan elders, the judge approved a plea agreement in which Moua pled guilty to the reduced charge of false imprisonment and received ninety days in jail. He was fined $1,200, $900 of which went to the woman’s parents (Cohan 2010: 234–235). The “true cultural defense” would authorize a defendant to raise culture as a complete defense to a criminal charge. This potentially would result in Moua’s acquittal. The culture defense would include a four-step process: An individual is a member of an ethnic or religious or other distinct group. The individual’s behavior was required by the group’s cultural tradition. The individual was aware and a reasonable person would be aware that the individual’s act violated U.S. domestic criminal law. The social interest in preventing the criminal behavior is outweighed by the interest in respecting and recognizing the individual’s cultural tradition. For example, the interest in punishing marijuana possession may be outweighed by a religious group’s use of marijuana in a religious ritual. On the other hand, preventing murder outweighs the interest in recognizing an individual’s cultural claim. A number of arguments are made in support of recognition of the cultural defense: Pluralism. An appreciation of diversity and equality of groups are important American values. Individualized justice. The justice system should treat each defendant as a distinct individual and should not follow a “one size fits all” approach. Knowledge. A recent immigrant may not realize that his or her act is criminal. Deterrence. Individuals who are not members of the group will not mistakenly believe that if they commit a crime, they will benefit from the cultural defense. Social stability. Immigrant groups whose values and traditions are appreciated will be strong and stable and loyal Americans. There are several objections to the cultural defense, outlined as follows: Conformity. Individuals should abide by the law. Equality. Immigrants and members of ethnic groups should be held to the same standard as other Americans. Ignorance. Ignorance of the law traditionally is not recognized as a defense. Uniformity. Individuals who commit the same crime should be treated in the same fashion. Society cannot function if there are different standards for different groups. The goal is to integrate groups into society rather than to encourage groups to follow their own standards of behavior. Legitimacy. Different standards of criminal conduct will lead to disrespect for the law. People will resent the double standard for determining criminal conduct and will disregard legal rules. Vulnerable groups. Recognition of the cultural defense threatens the rights of women and children who may be subject to sexual and physical abuse.

Fraudulent claims. Individuals may attempt to rely on the cultural defense who, in fact, may be aware that their conduct violated U.S. law. Judicial resources. The judge or the jury will spend time listening to expert witnesses debate the requirements of an individual’s culture rather than focusing on the facts of the case. One well-known case that has been at the center of the debate over the cultural defense is People v. Kimura. In 1984, Fumiko Kimura’s husband revealed he had been having an extramarital affair and supporting a mistress for several years. Two months later, after having failed to achieve a reconciliation, Kimura, while holding her 6-month-old daughter and 4-year- old son, walked into the Pacific Ocean in an effort to commit parent-child suicide. Kimura and her two children were pulled from the water, but only Kimura survived (Chiu 2006: 1318). Kimura was charged with two counts of premeditated and deliberate murder and confronted a possible penalty of death. A petition was submitted to the judge signed by twenty-five thousand individuals from the United States, Japan, and Europe. The petition asserted that in Japan, Kimura likely would confront a maximum charge of voluntary manslaughter (manslaughter in the heat of passion) and likely would receive a suspended sentence with probation and supervised rehabilitation. The petition explained Kimura had followed a practice known as oyako shinju, parent-child suicide. Her actions were an expression of Japanese culture and were committed without an “intent to do harm to her children whom she deeply loved.” Her lawyer did not raise a cultural defense and instead presented psychiatric evidence that Kimura was temporarily insane. The prosecutor agreed to reduce the charge of first-degree murder to voluntary manslaughter (murder in the heat of passion) (Chiu 2006: 1349). Kimura lived in a closed Japanese community. She washed her husband’s feet every night and never learned to drive. After being rescued from the ocean, her reaction was that the rescuers must have been Caucasians because the Japanese would have let her drown (Chiu 2006: 1354). Oyako shinju was common in Japan in the 1950s and 1960s and occurred at a rate of two cases every three days. At the time of Kimura’s act, oyako shinju no longer was a regular practice in Japan. Kimura’s decision to take her life was a response to the humiliation of a failed marriage and is an appropriate response in Japan to an insurmountable and painful situation. She accepted blame as a bad wife and mother. The belief is that the child and parents form a closely connected unit and that it is more merciful to take the child’s life than to leave the child alone without a mother. The cultural defense would have permitted Kimura to explain her actions to the judge and to the jury and would have enabled her to be judged in accordance with the standards of her culture. Her attorney portrayed Kimura as temporarily insane rather than explain her motivation. On the other hand, the law generally limits the taking of the life of another to self- defense, and there is no legal justification for the taking of the life of two innocent children. Kimura nonetheless received a relatively light sentence for homicide that was similar to the sentence she would have received in Japan.

Several states have what are called de minimis statutes that courts on occasion have relied on to drop charges against immigrants who the judges believed were acting in a lawful fashion. Mohammad Kargar, an immigrant from Afghanistan, was arrested for kissing the penis of his 18-month-old son and explained that this was a traditional method of displaying affection in Afghanistan. Members of the Afghan community testified the penis is considered a “dirty” portion of the human anatomy and kissing this area of the child’s anatomy is a selfless display of affection. The Maine court recognized that Kargar violated the sexual assault statute but dismissed the charge because Kargar did not act out of a sexual motive and the child was not subjected to pain or embarrassment (State v. Kargar, 679 A.2d 81 [Me. 1996]). Commentators have cautioned that the cultural defense may be used to justify the abuse of women and children. Male defendants allege that the woman’s conduct provoked the violence or that the punishment of children reflected cultural norms (Cohan 2010: 247). In People v. Chen, Dong Lu Chen, an immigrant from Hong Kong, had been in the United States for roughly a year where he worked as a dishwasher. Chen lived in an insular Chinese community and had not learned English. He became embroiled in an argument with his wife of twenty-three years, Jai Wan. Dong became enraged when Jai Wan refused to sleep with him and announced that “this need was being taken care of elsewhere.” Dong interpreted this comment as indicating that Jai Wan was having an affair and hit his wife over the head eight times with a claw hammer. He later admitted through an interpreter to his son and to the police that he had killed Jai Wan (People v. Chen, N.Y. Sup. Ct. Mar. 21, 1989). An anthropologist testified that marriage is a sacred institution in China. Dong had experienced dishonor and humiliation and knew that other Chinese males would view his marriage as a failure. Dong’s shame and embarrassment would prevent him from being accepted in the Chinese community or remarrying. Judge Edward Pincus accepted that Dong had been provoked and reduced the charge from murder to manslaughter and sentenced Dong to five years’ probation discounted by the time that he had already served. Judge Pincus explained Dong had brought his culture with him to the United States and “was not entirely responsible for his actions. . . . [H]e was the product of his culture.” The judge recognized that culture, although not a complete defense to the murder charge, explained why Dong had “cracked more easily” (Norgren and Nanda 1996: 272–273). Brooklyn district attorney Elizabeth Holtzman was “enraged” at the verdict and insisted anyone who enters the United States should be prepared to abide by the laws of this country and there should be one standard of justice. Asian American groups complained that the judge’s verdict placed women at risk and that the message was that Asian women would not be protected against domestic violence under U.S. law. Experts on Chinese culture contended that domestic violence was condemned under modern Chinese law and the judge had relied on an outmoded stereotype in reasoning that domestic violence was tolerated in China (Norgren and Nanda 1996: 274).

In some instances, defendants have relied on cultural arguments to support their reliance on a traditional criminal defense. In People v. Aphaylath, Aphaylath killed his wife when he discovered her talking on the phone with her former boyfriend. Aphaylath’s attorney successfully appealed the trial judge’s refusal to hear the testimony of two anthropologists. The New York Court of Appeals held that the judge should have permitted the jury to hear evidence that the phone call had resulted in Aphaylath feeling shame and humiliation and losing control. The prosecutor reduced the charge to manslaughter, and Aphaylath pled guilty (People v. Aphaylath, 502 N.E.2d 998 [N.Y. 1986]; see also Chiu 2006: 1356). In summary, individuals are products of their culture, and the question arises in a multicultural society whether the law should provide some recognition to different cultural practices in considering a criminal charge. On the other hand, there is the argument that individuals within the United States should conform to a single standard, particularly with regard to serious criminal offenses (Donovan 2008). In the international perspective, we look at how global inequality has helped fuel human trafficking.