Title

Implicit Racial Bias and the Perpetrator Perspective: A Response to Chin and Vernon’s 'Reasonable but Unconstitutional'

Abstract

In their article, “Reasonable but Unconstitutional: Racial Profiling and the Radical Objectivity of Whren v. U.S.,” Professor Chin and Mr. Vernon not only provide a withering critique of the U.S. Supreme Court’s unanimous decision in Whren v. U.S. but they also present novel doctrinal arguments for reversing its problematic dicta that racial discrimination is constitutionally reasonable. Their arguments are compelling and require no extension of current doctrine. For instance, Chin and Vernon embrace Whren’s endorsement of pretextual traffic stops as long as those stops do not involve racial profiling. Additionally, the authors implicitly embrace a central premise of the Courts’ current race jurisprudence, which is that only conscious racism violates the Constitution. Thus, their framework allows the Court to reach the identical outcome in Whren, without sanctioning race-based policing. However, this Response argues that there are some disadvantages to relying upon the Court’s existing jurisprudence when questions of race are concerned. First, their defense of pretextual policing is troubling because the practice likely will exacerbate the racial burdens that non-Whites experience at the hands of the police, even if conscious racial bias is non-existent. Furthermore, focusing solely on officers’ subjective racial motivations to determine whether discrimination has occurred ignores the victims’ experiences of profiling. In sum, the Court’s current conception of race discrimination is anemic and in urgent need of reform. Chin and Vernon’s arguments increase the likelihood that the Court will condemn racial discrimination as unreasonable under the Fourth Amendment. This would mark an important first step towards moving the Court to adopt a more realistic and broader conception of the harms of race discrimination.

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