Iowa's Law Targeting "Critical Race Theory"

A few weeks ago, Iowa's governor signed a law that she claimed would address the teaching of "critical race theory." Shortly after she signed the bill into law, the Des Moines Register reported:

Iowa Gov. Kim Reynolds signed a new law that she said will target the teaching of critical race theory and other concepts in government diversity trainings and classroom curriculum.

“Critical Race Theory is about labels and stereotypes, not education. It teaches kids that we should judge others based on race, gender or sexual identity, rather than the content of someone’s character,” Reynolds said in a statement. “I am proud to have worked with the legislature to promote learning, not discriminatory indoctrination.”

Critical race theory, a decades-old legal theory that examines how slavery's legacy continues to influence American society, is not specifically named in the new legislation. But the law would ban teaching certain concepts, such as that the U.S. or Iowa is systemically racist.

The new law, House File 802, goes into effect July 1.

Reynolds' signing comes as other Republicans across the country have said they want to eliminate teaching critical race theory and associated concepts from classrooms. Iowa is among more than a dozen states that have considered legislation this year aimed at eliminating similar concepts from classroom curriculum.

That same Register article notes that Iowa's law is based "nearly word for word" on an executive order issued by the Trump Administration (that is now repealed) that banned certain forms of diversity training for federal contractors. The Register's prior reporting on that order is here, the order itself is here.

There are a number of glaring practical problems with the law, which appear to be based, in part, on the bill's origin in a ban on training for contractors. For one, the law contains no penalty or disciplinary provisions, so it is unclear what would result from a violation of the law. The bill also includes prohibitions on certain types of training, but also includes restrictions for school curricula. While the restrictions on training are somewhat explicit, the restrictions on school districts and their curricula are woefully vague.

These defects, and others, are addressed in the remainder of this post, which walks through the law and tries to make sense of what is being restricted.

California Lawsuits Allege That Suspension of Drivers' Licenses Violates Due Process

The Los Angeles Times reports:

Civil rights lawyers filed suit Tuesday accusing the Los Angeles Superior Court of improperly suspending driving privileges for tens of thousands of poor people because they can’t afford to pay their traffic fines. 

The suit said the court triggers license suspensions by the Department of Motor Vehicles without determining whether the motorists “willfully” ignored fines or were too broke to pay the often exorbitant penalties. The suspensions disproportionately hurt black and Latino people, the suit alleged. 

“If they are poor and don’t have the money to pay, by definition, they cannot be found to have willfully failed to pay,” said Antionette Dozier of the Western Center on Law and Poverty, one of the lawyers on the case. “They are just poor.”

The ACLU reports that they recently filed a similar lawsuit in Solano County:

A lawsuit was filed today against Solano County Superior Court, challenging the court’s practice of suspending the driver’s licenses of people who are too poor to pay exorbitant traffic fines. In 2015, over 11,000 driver’s licenses were suspended in Solano County for failure to pay alone. In California, millions of people do not have valid driver’s licenses because they cannot afford to pay traffic fines and fees. This is the first lawsuit in California to challenge the suspension of driver’s licenses as a means of collecting unpaid traffic fines. 

Lead plaintiff in the suit is Rubicon, a nonprofit that provides employment, career, financial, legal and health & wellness services thousands of low-income people across the Bay Area. “Many of Rubicon’s program participants rely upon having a driver’s license to find or keep employment,” said Jane Fischberg, CEO, Rubicon Programs. “When their license is suspended due to traffic fines and fees they cannot afford to pay, our participants’ lives are put on hold, and their families suffer.”:

Here is the complaint for the ACLU lawsuit. I have not yet been able to find a copy of the Los Angeles County lawsuit. The ACLU complaint and this press release on the Los Angeles complaint indicate that both lawsuits allege violations of due process rights when drivers' licenses are suspended due to failure to pay traffic fines.

Vehicle Code section 14601.1 criminalizes driving on a suspended license. There is a mandatory minimum fine of $300 for first time offenses, and a mandatory minimum $500 fine for offenses that occur within five years of an initial violation. With court fees and penalties factored in, these fines can total to thousands of dollars. These can be a substantial -- if not impossible -- burden on people whose licenses were suspended due to failure to pay fines on other traffic offenses. And, as this report suggests, the burden of suspended licenses tends to fall disproportionately on racial minorities and the poor.

Unfortunately, I do not have the time to investigate the legal questions these lawsuits raise to give an evaluation of the complaints' merits. But I do think that these lawsuits highlight an important, if under-emphasized aspect of California criminal law. The mandatory fines accompanying suspended license violations may render it impossible for those convicted to pay off their fines and obtain the ability to drive.

In areas of California where driving is a virtual necessity, these laws and their associated penalties may present an insurmountable obstacle on those who are convicted. While these violations are misdemeanors or infractions, the impact they have on people's lives can be profound. These lawsuits will hopefully draw attention to this unfortunate reality, and perhaps will prompt changes that lead to a more practical set of suspended license laws.

DISCLOSURES

One of the organizations representing the Plaintiff in the Los Angeles lawsuit is A New Way of Life, which runs a reentry clinic in conjunction with UCLA School of Law's El Centro legal clinics program. I volunteered for the reentry clinic from 2011 to 2014. On the other hand, I filed and prosecuted dozens of driving on suspended license cases between 2014 and 2015 while I worked for the Orange County District Attorney's Office.  So it is up to you, dear reader, to determine the direction of my potential biases.

Criminal Records and Reentry, and the Importance of Civil Reform

Via the CrimProf Blog, I learned about a recent article by Michael Pinard entitled, Criminal Records, Race and Redemption. The citation is 16 N.Y.U. J. L. & Pub. Pol. 963 (2013).  Here is the abstract:

Poor individuals of color disproportionately carry the weight of a criminal record. They confront an array of legal and non-legal barriers, the most prominent of which are housing and employment. Federal, State and local governments are implementing measures aimed at easing the everlasting impact of a criminal record. However, these measures, while laudable, fail to address the disconnection between individuals who believe they have moved past their interactions with the criminal justice system and the ways in which decision makers continue to judge them in the years and decades following those interactions. These issues are particularly pronounced for poor individuals of color, who are uniquely stigmatized by their criminal records. To address these issues, this article proposes a redemption-focused approach to criminal records. This approach recognizes that individuals ultimately move past their interactions with the criminal justice system and, therefore, they should no longer be saddled by their criminal records. Thus, the article calls for greatly expanding laws that allow individuals to remove their criminal records from public access and, in the end, allow them to reach redemption.

I have not had very much time to read through the paper in depth, but from what I have read, Pinard seems to be presenting and addressing an extremely important issue facing the criminal justice system. Speaking from my own experience volunteering at a reentry clinic for a few years, I can say that (1) Pinard's arguments that criminal records make finding jobs and housing difficult are spot on, and (2) that I am relieved to be working at a clinic in California rather than Maryland, where expungement rules seem to be far more restricted.

Pinard also seems to offer some strong suggestions for reform. I would add to his conclusions by re-emphasizing the importance of civil remedies against employers who discriminate based on criminal background. I am aware that California has enacted legislation that provides for statutory damages in the event an individual can prove that they were not hired specifically because of their criminal background. And while Pinard correctly points out that this may be difficult to prove, I have nevertheless met numerous people who have heard either explicitly from employers that they were not hired because of their record -- or who had significant circumstantial evidence that this was the case. Legislation providing for substantial statutory damages would provide employees with record with a significant source for redress in the event they are not hired because of their criminal record.

Automated Surveillance and Police Discretion

Cyrus Farivar of Ars Technica writes that the Boston Police Department has suspended their use of license plate readers.  They note that an investigation by the Boston Globe revealed a number of holes in the program, and some strange practices.  For example, the Globe pointed out that there were instances where license plate scanners would send reports of stolen vehicles, but the police would fail to follow up on these reports:

Beyond providing snapshots of where thousands of vehicles were spotted at given moments, the data indicate that Boston police routinely failed to follow up on repeat alarms. 

Nearly 1,700 plates registered five or more scanner hits over the six-month period, most for insurance violations or unpaid traffic fines. The most-scanned plate came back as a hit for lapsed insurance more than 90 times. 

But some repeat alarms were for serious violations. One Harley Davidson motorcycle that had been reported stolen passed license plate scanners a total of 59 times between Oct. 19, 2012, and March 13, 2013. It was often recorded on sequential days or multiple times in a single day, all by the same scanner and almost always within the same half-hour span in the early evening. 

Boston police chief technical officer John Daley indicated that each of these scans prompted an e-mail alert to the department’s Stolen Car Unit, but there is no indication that the motorcycle was ever apprehended or even stopped.

Privacy advocates generally do not favor the use of automated surveillance technologies like automatic license plate scanners.  This technology, they argue, can be used to collect massive amounts of information on large numbers of people that can be stored indefinitely and used to track people's movements.

A possible silver lining to automatic surveillance practices is that evenly distributed surveillance devices could reduce police abuse of discretion in deciding whether to investigate a vehicle as stolen or in violation of the law.  Police can generally enter in any license plate information they see to their database to determine whether the vehicle they are scanning is stolen or if the registration on the vehicle is expired.

When police make these entries themselves, there is a possibility that they will enter these number in an imbalanced way.  For example, officers may, consciously or unconsciously, run license plate checks on vehicles driven by racial minorities more than they do for vehicles driven by non-minorities.  While these checks minimally intrude on those whose plates are entered into the system, it could result in disproportionate stops and enforcement of criminal laws against racial minorities, since a higher proportion of license plate checks against a certain group will likely lead to a higher proportion of that group being found in violation of the law.

Automatic scanners could partially solve this problem.  By setting up devices that automatically collect license plate information or other information, the decision of whether that information should be collected in the first place is not up to the discretion of a police officer.  While more information on more people will be collected, that information will at least be collected in a consistent manner.  One would hope that the information would be used in a consistent manner -- with uniform practices for following up on violations that are discovered.  This would seem to reduce some of the disproportionate enforcement of laws that could result from police abuse of discretion.

The flaws with the Boston surveillance program that the Globe's investigation revealed show that this hope may be misguided, or at least not guaranteed.  If police choose not to follow up on certain results, then the potential for abuse of police discretion is re-introduced into the system at a higher level.

Boston's program has been suspended for now, but it is likely that automatic surveillance will continue to be employed by more cities and law enforcement agencies.  Going forward, this story should serve as a reminder of the importance of established, consistent practices for investigating and following up on automatic surveillance reports.  And future surveillance programs will hopefully have established investigation procedures in place that will minimize the potential for abuse of discretion.

Technology Companies Demand Surveillance Reform

The New York Times reports:

Eight prominent technology companies, bruised by revelations of government spying on their customers’ data and scrambling to repair the damage to their reputations, are mounting a public campaign to urge President Obama and Congress to set new limits on government surveillance. 

On Monday the companies, led by Google and Microsoft, presented a plan to regulate online spying and urged the United States to lead a worldwide effort to restrict it. They accompanied it with an open letter, in the form of full-page ads in national newspapers, including The New York Times, and a website detailing their concerns.

And from the companies' website:

The undersigned companies believe that it is time for the world’s governments to address the practices and laws regulating government surveillance of individuals and access to their information. 

While the undersigned companies understand that governments need to take action to protect their citizens’ safety and security, we strongly believe that current laws and practices need to be reformed. 

Consistent with established global norms of free expression and privacy and with the goals of ensuring that government law enforcement and intelligence efforts are rule-bound, narrowly tailored, transparent, and subject to oversight, we hereby call on governments to endorse the following principles and enact reforms that would put these principles into action.

The Guardian reports on this development here.  The BBC's coverage is here.

While I think that this is a significant development, and while it will be interesting to see how the government responds to these powerful voices, I want to note that focusing calls for reform to the internet domain may be too limited of a reaction to the government's surveillance.  Those who are concerned with the overreach of government police power would do well to leverage popular discontent with the government's internet surveillance into a broader criticism of surveillance and searches in general.  After all, internet surveillance is only one part of the government's broader surveillance practices and its exercise of police power.

An approach that channels collective interests into broad reforms may end up helping those whose privacy interests are infringed the most -- for example, those who are constantly stopped and frisked -- in addition to achieving stronger safeguards for information shared with websites.  A narrow focus on internet surveillance is the may detract from a push for broader change, and I hope to explore the potential for such change and the potential for distractions in a future paper that I described in more detail here.  I hope to work on this project in more depth once my final exams are finished.

I don't mean to say that this move by the internet companies is a bad thing for privacy advocates.  The call for reform is certainly a step in the direction of limiting government police power, and a general push to limit this power may gain momentum from this development.  But I do want to emphasize that maintaining perspective is crucial -- especially as the big players in this issue make their positions known.

The Disproportionate Impact of Mass Surveillance

The New York Times reports on federal grants amounting to $7 million that were recently awarded to Oakland, California.  This grant money will be used to fund broad new surveillance programs throughout the city, apparently ranging from the low to high income neighborhoods.

The Times reports on the appeal of the system to law enforcement:

For law enforcement, data mining is a big step toward more complete intelligence gathering. The police have traditionally made arrests based on small bits of data — witness testimony, logs of license plate readers, footage from a surveillance camera perched above a bank machine. The new capacity to collect and sift through all that information gives the authorities a much broader view of the people they are investigating.

Privacy advocates are not enthusiastic about this development:

The American Civil Liberties Union of Northern California described the program as “warrantless surveillance” and said “the city would be able to collect and stockpile comprehensive information about Oakland residents who have engaged in no wrongdoing.”

And then there are those who see this development as simply another part of life in a world of expanding technological capabilities:

Steve Spiker, research and technology director at the Urban Strategies Council, an Oakland nonprofit organization that has examined the effectiveness of police technology tools, said he was uncomfortable with city officials knowing so much about his movements. But, he said, there is already so much public data that it makes sense to enable government officials to collect and analyze it for the public good.

I think that more surveillance technology is not necessarily a bad thing (but see: Neil M. Richards, The Dangers of Surveillance, 126 Harv. L. Rev. 1934 (2013) for an interesting and extremely readable account of the inherent harms of increased surveillance).  I do think that implementing expanded surveillance programs can be done in a manner that causes a great deal of harm.

Gideon and the Complex Problems of the Criminal Justice System

UCLA Law has been sending out notifications informing students that we should apply for the Gideon Fellowship.  The application form for this fellowship indicates that UCLA has partnered with Gideon's Promise, an organization that focuses on promoting and improving indigent representation in the South.  Students who are accepted into this fellowship will enter a training program with Gideon's Promise and then be placed by that organization in one of several southern Public Defender's offices.

My summer work experience throughout law school has been entirely centered on the prosecution side of criminal law, so I am not sure if I would be viewed as a particularly credible candidate for this fellowship.  I am familiar with the criticism that prosecution-oriented students seek to become part of an oppressive system that all too often disregards the rights and circumstances of defendants.

Moreover, I suppose that I am a bit jaded when it comes to Gideon because I recently read this article by Paul Butler.  The citation is: Paul D. Butler, Poor People Lose: Gideon and the Critique of Rights, 122 Yale L. J. 2176 (2013).  Here is the abstract.

A low income person is more likely to be prosecuted and imprisoned post-Gideon than pre-Gideon. Poor people lose in American criminal justice not because they have ineffective lawyers but because they are selectively targeted by police, prosecutors, and law makers. The critique of rights suggests that rights are indeterminate and regressive. Gideon demonstrates this critique: it has not improved the situation of most poor people, and in some ways has worsened their plight. Gideon provides a degree of legitimacy for the status quo. Even full enforcement of Gideon would not significantly improve the loser status of low-income people in American criminal justice. 

This article is one of many Gideon-focused articles in Yale's symposium issue commemorating the fiftieth anniversary of the landmark ruling that the Sixth and Fourteenth Amendments required states to provide counsel to indigent criminal defendants.  While I think that Butler's article makes some controversial claims, he makes it clear that a Gideon-centered approach to systematic injustice in criminal law is at best incomplete, and at worst, destructive.

Unless there are massive developments on the legislative level, or a fundamental reworking of constitutional doctrine, the most important place to seek change is at the level of the police and prosecutors.  Police have wide discretion when it comes to enforcing the law and arresting individuals, and prosecutors often have a great deal of discretion when it comes to determining whether to prosecute and how high of a sentence to seek.  While some nicely-named commentators have argued for the removal of discretion in the policing process, this removal may be politically unfeasible and can probably only proceed in a step-by-step manner.

In the meantime, students, academic organizations, and programs that care about defendants should not alienate students interested in criminal prosecution - they should instead encourage these students to pursue their career goals while keeping in mind the circumstances of those they prosecute.  Defense-oriented individuals and organizations should work to (non-condescendingly) educate those on the side of the prosecution, even as they oppose them in court.

I have been trying to do my part at keeping an open mind.  After my summer with the district attorney, I wrote my rather defendant-friendly paper on self-defense.  During my summer at the attorney general's office, I wrote a brief where the strongest defense argument I needed to answer was one I raised in my own brief after I discovered it in my own research on the case.  Hoping to remain fair and balanced, however, I have balanced out my defense-oriented briefing and blog posts by writing an essay where I strongly favored prosecution of poor, unaware defendants.

Public defenders are an important part of the system - and Butler recognizes this even while he criticizes Gideon.  One must always keep in mind, however, that defenders are only a part of the system, and a disproportionate focus on this part may fail to affect any meaningful, systematic change in the long run.

Introduction: Interest Convergence and the Limits of Law Enforcement: Developments, Prospects, and Distractions

In a New York Times Op Ed released yesterday, Professors Devon Carbado, Kimberlé Crenshaw, and Cheryl Harris reacted to Judge Scheindlin's opinion that the New York City Police Department's "Stop-and-Frisk" policy violated the Fourth and Fourteenth Amendments.  (That opinion is available in two parts: here and here).

Carbado, Crenshaw, and Harris focus on how this decision makes little difference to the status quo where the Supreme Court's approach to the Fourth Amendment permits police officers' use of race as a factor in stopping, frisking, and pulling over African-Americans and Latinos.  The government's law enforcement power remains characterized by the vast discretion afforded to officers.

This article is a very good primer on police discretion under existing Fourth Amendment law.  It effectively outlines the various parts of police searches and seizures and does so in a very approachable manner.  The article does not explore how these problems can be solved.  This is not surprising because virtually all of the practices the article discusses have been upheld by the United States Supreme Court.  This means that short of legislative action or systemic changes to police enforcement policies, changes to the status quo face a very difficult uphill battle.

My next project will be to argue that there may be a solution within reach.  Drawing on Derrick Bell's theory of interest convergence, I will outline how recent developments in the Supreme Court's Fourth Amendment jurisprudence indicate that the Court may be willing to give new force to this often-neglected safeguard.  I will then note that current discussions of government surveillance practices and the executive's use of lethal force present an excellent opportunity for a paradigm shift in Fourth Amendment law.  Finally, I warn against potential distractions that may undermine the coalition of interests that the current political climate can foster.

My hope is to have this written and sent out by the end of the current law review slating cycle.  At the same time, I will plan to write a number of posts that correspond to the various parts of the essay I will be writing in order to summarize and outline the arguments I intend to make.  This post is dedicated to the introduction, a more developed version of which appears after the jump.

Reaction to the Zimmerman Verdict

I have seen dozens of reactions to the Zimmerman verdict this weekend that express reactions across the joy-rage spectrum.  Some folks get the law right, many of them don't, and there are many ships passing each other in the night as far as arguments are concerned.  Starting tomorrow, I expect to see the first salvo of critiques of this weekend's criticism.

In the volumes of coverage, I have found a few reactions that I think are worth reading.  PrawfsBlawg's Dan Markel posts about some of the tangled legal analysis of other reactions so far and directs reform-oriented critics to focus more attention on whether the state or defendant bears the burden of proof.  Eugene Volokh confirms that Florida is not an outlier in this area of law, with 49 out of 50 states requiring the government to prove beyond a reasonable doubt that the defendant did not act in self-defense as long as the defendant puts forth some evidence of self-defense.

As far as Florida's "stand your ground" law goes, Markel notes in his earlier post that the Zimmerman case and the facts that ultimately were most important do not make this case a good example of that law in operation.  Despite this, the case has at least gotten people talking about the law.  Here is of the more interesting posts I've seen on the subject that explains the controversy in far more detail and depth than I could hope to contribute at this point.  While I agree with Markel in that I don't think that the Zimmerman case is a particularly accurate instance of this law in action, that law is still an important issue and the fact that it does not apply 100 percent to the Zimmerman case should not distract from the very real arguments that can be made for and against stand your ground laws.

As far as my own reaction to the case, I've spent most of this past year studying self-defense and I can say with confidence that it is very difficult to have an accurate, knee-jerk reaction to this area of law.  Self-defense law involves competing considerations on the social, political, and philosophical levels, with different debates to be had in each area.  These different levels of debate lead to different conclusions.  One might find that, depending on the premises one proceeds from, one's philosophical considerations support one type of self-defense law, but social/political considerations support an entirely different one.  When it comes to arguing about whether self-defense law should fit into, say, what free will considerations demand versus what critical race considerations demand, the debate can get dangerously muddled.

I will admit that was a pretty vague paragraph.  If you're interested in the details of what I think about self-defense law and you have a lot of time on your hands, feel free to read this draft of a paper I am writing, where I lay out some arguments of my own on the subject.

With the complexities of the law and legal issues in mind, and the varied accounts that I have heard about the evidence involved in the Zimmerman case, I am going to remain agnostic on the verdict.  I do think that the case can serve as an illustration of some important issues of self-defense law as well as the role of race in the criminal justice system in general.

I am not going to say that "we need to have a discussion."  That sort of conclusion signals nothing more than punting on the issues. Moreover, if you read my paper, you'll see that the discussion has already been underway for some time.  I mainly look forward to seeing who gets involved now, and how much of an impact this discussion ends up having now that so many people are paying attention.

"Street Cred": An Important Argument with Unnecessary Problems

CrimProf Blog notes that Montré Denise Carodine recently posted to SSRN "Street Cred," an upcoming article in Volume 46 of the UC Davis Law Review.  Here is the abstract:

The killing of unarmed teen Trayvon Martin by a neighborhood watch captain and the purported lackadaisical response to that killing by the Sanford, Florida Police Department riveted the country and sparked an important conversation regarding the breakdown of the relationship between the police and the communities that they serve. Regardless of one’s opinion on what happened the night that Martin was killed, it is undeniable that this entire case has jeopardized the already fragile relationship between law enforcement and not only the Sanford community, but communities across the nation. This Essay considers the effect of the dysfunctional relationship between the police and the communities that they serve on the perceived reliability of the evidence that police provide in our criminal justice system on a daily basis. The evidence rules, which are particularly crucial in criminal cases, should reflect the reality of public perception of law enforcement. I propose that communities call for and legislatures implement a moratorium on the admissibility of certain types of law enforcement testimony in communities with strong levels of distrust of the police. And, in turn, when confidence in the credibility of law enforcement is restored, which is the ultimate goal of this Essay, the evidentiary regime can and should then reflect a new reality and take the opposite approach. The rules of evidence should incorporate a community policing approach to the admissibility of police testimony. 

My approach is novel, as criminal law and evidence scholars have not considered the importance of the community in assessing evidentiary reliability. But we should rely on the community to adjudge police credibility and the evidentiary value of their testimony. This approach is superior to relying solely on prosecutors, judges, and the police themselves. My proposal will help to restore the public’s trust in law enforcement, which is at an all-time, critical low.

My initial comment on this article is that it should not be dismissed -- especially not by those who are particularly prosecution-minded.  My first reaction to the thesis after reading the abstract was one of incredulity.  Excluding all law enforcement testimony from certain cases?  My initial impression was that the article would seem credible only to those who already hold these strong views, and would seem completely incredible to all others.  As I read the article, however, I found a great deal of interesting discussion on community perspectives of law enforcement and specific strategies that law enforcement agencies can take to repair broken relationships with an untrusting public.  The problem of distrust and the solutions the author presents in Part II make this article worth reading, even by those who disagree with the author's ultimate proposal.  The perspective is important, and the problem is real; it is of social importance to reformers and of strategic importance to prosecutors.  The article does have its problems, which I discuss after the jump, but I think that Part II is certainly worth reading.

However,

Marijuana Legalization, Racial Disparity, and Interest Convergence

"A black person in Iowa is more than eight times as likely to be arrested for marijuana possession than a white person, even though both use marijuana at about the same rate, according to a report issued Tuesday by the American Civil Liberties Union" notes the Des Moines Register.  The full report is available here.  The report is a national-level call for the legalization of marijuana due to the racial disparity in those prosecuted and punished for marijuana-related crimes.

This report shows that the real, underlying problem is the detrimental impact of racial profiling and racial disparity in arrest and incarceration rates.  The report's stated conclusion, however, is that "the War on Marijuana, like the larger War on Drugs of which it is a part, is a failure."  This statement, which is the overriding theme of the report, overshadows the evidence of arrest rate disparities by race.  While discussion of race is admirably prominent, the plausible advocacy of the report seems focused on legalizing marijuana.  The conclusions of the article relating to racial profiling of African Americans are limited to several page-long, platitudinous recommendations that "Police Departments Should End Racial Profiling" and (even more naively) "Police Procedures Must Be Fair and Constitutional."  Police departments are not going to simply end racial profiling since race-based stops are usually not going to cause any significant constitutional problems for prosecutions (See Whren v. United States and United States v. Brignoni-Ponce).  Changes on the statutory or law enforcement guideline level that prohibit these practices might make a difference, but that is not what this report advocates.

First, two disclaimers.

First Disclaimer: I'm no expert in critical race theory.  I have done some research into implicit bias and racial performance in other projects, but I am looking to make a point along the lines of interest convergence, a theory I have peripherally explored but would not claim to fully know.  Because of this, I will do my best to make an argument involving interest convergence, but I warn that I may be mistaken in my application of the theory or in the terminology I use.

Second Disclaimer: From what I have learned in my reading on interest convergence, I have my own hesitations regarding the theory.  My biggest concern is that arguments from interest convergence can form intuitive, compelling stories, but it is unclear how much of an actual effect interest convergence has on the development of policies.  I am certain that more research has been done on this point by supporters and detractors of the theory, and I am not looking to explore the debate here, but I just want to make my overall position clear.  The argument that follows sets aside any concerns I have with the merits of interest convergence theory and proceeds from the assumption that the theory is valid.

My argument is that the ACLU's report seems to be a paradigmatic example of interest convergence.  While this report's advocacy may lead to some net gain, underlying problems will remain unsolved and efforts that further the legalization of marijuana may result in an inefficient use of political capital.  

The report and the reforms it advocates harness the power of interest convergence in seeking solutions to problems faced by African Americans.  Ending the war on marijuana would reduce arrests for people of all races.  As the report admits, both Whites and African Americans use marijuana at similar rates, and while Whites are not arrested with the same frequency, they are still arrested and they still face the risk of arrest, even if this risk is lower than the risk faced by African Americans.  This risk would be eliminated for all whites who use marijuana if marijuana were legalized.  Admittedly, this argument applies to those Whites who are interested in smoking marijuana and is therefore not universally applicable (though it certainly would be widely applicable to many in the Los Angeles community).   Furthermore, the report emphasizes the costly nature of marijuana prosecutions and argues that overall legalization will reduce this financial burden on the citizenry.  This argument is structured to appeal both to Whites and African Americans, since the entire citizenry shares in the cost of paying for these prosecutions.

Viewing the report in this manner reveals that marijuana legalization is an indirect way to address racial disparities in arrest and incarceration rates.  There may be a benefit to this policy: the report details the high number of arrests of African Americans due to marijuana-related crimes, and arrests for these crimes would not occur if  these crimes were eliminated.  On the other hand, the legalization of marijuana would do nothing to address racial profiling by police, which is the real reason for the disparity in arrests and incarceration that prompted this report.  The political capital that would need to be spent on advancing the controversial policy of marijuana legalization could be better spent elsewhere, namely on statutes and ordinances that go beyond the limited protections provided by the Fourth Amendment and prohibit the use of race in forming probable cause or reasonable suspicion.  These statutes would have the benefits of directly addressing the problem and would apply to all prosecutions, not just prosecutions for marijuana-related crimes.  This alternate approach may also be perceived as less controversial than marijuana legalization and would be a good initial step towards trying to solve the problem.  Statutes barring race-based searches and seizures would likely run into problems if the marijuana legislation suggested by the ACLU were passed: detractors of the search and seizure statutes could argue that the problem has been solved by the marijuana legislation, or that advocates of new policies would at least need to wait and see the effects of the marijuana legislation before they could make convincing empirical arguments.

As a final thought, there may yet be some merit to advancing the argument about marijuana legalization as the alternative to statutes that prohibit racial profiling and race-based searches and seizures.  Given the apparent option between nothing, search and seizure statutes, or marijuana legalization, the search and seizure statutes might seem like an acceptable middle ground.  Voters may compromise if there is this wider spectrum of policy options.  In the future, organizations like the ACLU that advance marijuana legalization policies should do a better job of developing the middle ground of search and seizure statutes since people who are not willing to go all the way and legalize marijuana may still seize onto the alternative of statutory restrictions on searches and seizures.