WHAT WOULD MARTIN LUTHER KING, JR., SAY?
Nobody liked working “duty day,” but as the name implied, it wasn’t a choice. About once a month, each of us in the public defender’s office set aside our cases and took a turn serving as a lawyer for the general public. Whoever walked or called in became your responsibility. If the issue involved the criminal justice system, you helped them directly. If it didn’t, you referred them to another agency or service provider. The original idea behind duty day was that a lawyer should always be available if somebody had a legal emergency and needed a public defender. The classic scenario we imagined was the person who called saying, “The police are at my door with a search warrant—do I have to let them in?” Calls like that did come in now and then. One of my first murder cases began when a mother called to say that her son was at police headquarters speaking to homicide detectives. She thought he might be a suspect and wanted to know if it was a good idea for him to be talking to the police. (Answer: No, it wasn’t.)
But duty day mostly involved issues that were less attention-grabbing. I once counseled a grandmother who feared that she would lose her public housing if she allowed her grandson to move in with her upon his release from prison; housing authorities were notoriously hostile to people with criminal convictions. I tried to help a man who called to say that he had been denied permission to visit his cousin in the D.C. Jail; jail officials later said that they banned him because, years earlier, he had gotten into a fistfight in the jail’s waiting room. I met with a middle-aged taxicab driver from Guyana whose car had been seized by police; they had arrested an alleged prostitute in the backseat and accused the driver of using the cab to facilitate prostitution. (This case had a happy ending when friends of mine from law school who worked at a big D.C. firm agreed to take the case pro bono. They got the cab back and won money damages after proving that the police had illegally seized it.)
By far the most common duty-day requests were from people trying to get their arrest records sealed. These cases were as difficult as they were frequent. In D.C., as in most of the country, there were few legal grounds to erase an arrest from your record, even if the case was quickly dismissed and never led to a criminal conviction. But despite the long odds of success, there was at least a way for individual citizens to make the request. They needed to file a relatively simple legal motion, and our duty-day job was to tell people about the law, give them a copy of the paperwork, and show them where to fill in the blanks. These consultations normally took less than twenty minutes.
But Sandra Dozier clearly had no intention of leaving so quickly. In her early thirties, with a caramel complexion, a short-cropped Afro, and a determined manner, Ms. Dozier was telling me about the traffic stop that led to her arrest. After hearing the words “arrest” and “clear my record,” I had assumed she needed the simple motion to seal. But she kept talking, barely glancing at the forms I pushed in her direction. Since I could see that she wasn’t going to leave until I had heard the entire story, I took out my yellow legal pad and started taking notes.
Ms. Dozier had been driving home from her mother’s house, along with her nineteen-year-old cousin, Charles, and two-year-old daughter, Tanisha. She was on Alabama Avenue, near the intersection with Good Hope Road, in Southeast D.C., when a police car pulled up behind her with its lights flashing. After she pulled over, an officer came to her window—she couldn’t remember much about him except that he had dark brown skin and was tall and polite (“a southern gentleman type,” she said). Another officer came to the passenger window, where Charles was sitting—she remembered only that he was white, with a “red face,” and that he didn’t say much.
The brown-skinned officer asked her for her license and registration. She gave them to him, but not before she asked, “Why are y’all messing with me? I’m coming home from work.” I didn’t ask, but I thought I knew why she had mentioned her job. The area where Ms. Dozier lived and had been stopped suffered from chronic unemployment. My clients who worked were quick to use that fact as a form of character evidence when confronted by police or other authorities.
Without answering Ms. Dozier’s question, the officer took her documents back to his police car. A few minutes later, he returned with the papers and told her that he needed to check whether the tint levels on her windows were “too high.” It was a common tactic: traffic regulations in D.C. and elsewhere often limit how dark a car’s windows can be. Stops for exceeding the tint limits were a police favorite. Ms. Dozier told the officer he must be mistaken; she had had the tinting done at a reputable place that knew what was permitted.
Despite her protestations, the officer said he needed to check anyway. His red-faced partner, the one who had been standing near Charles on the passenger side, brought over a small machine and fitted the edge of the car window into a groove in the machine.
While that was happening, Ms. Dozier said, the brown-skinned officer told her, “We’ve been having a lot of problems with shootings and guns and weapons out here. Do you have anything like that with you? In the car?” Ms. Dozier remembered thinking that the officer must be crazy—what would she be doing with anything like that? One of her brothers had been shot a few years before, and another was locked up on a gun charge, and she was determined to stay far, far away from all that. She told him, “You have the wrong person if you are looking for guns.”
She said the officer nodded, that he seemed to understand where she was coming from. Then he said, “Since you don’t have anything, you don’t mind if we check real quick?”
I had been expecting this. I didn’t know the precise words the police would use—those varied—but I knew that at some point during the encounter with Ms. Dozier, they would try to search her car.
That was, after all, the entire point of the stop. To understand what was happening to Ms. Dozier, it is crucial to distinguish between the various types of traffic stops the police conduct. Not all stops are created equal. Sometimes the police pull people over for traffic safety reasons—for speeding or running a red light, for example. More nefariously, recent reports by the Department of Justice and others have shown that police departments in Ferguson, Missouri, and elsewhere have used traffic enforcement to generate fines to fund local government.1
But Ms. Dozier had fallen prey to another type of traffic stop, one whose motive is neither traffic safety nor revenue enhancement. This kind of stop—an investigatory or pretext stop—uses the traffic laws to uncover more serious crime. Such stops (and subsequent searches) exploded in popularity during the 1990s as part of police efforts to target drugs and guns.
“What did you say?” I asked Ms. Dozier. She looked down—it was the first time she seemed less than assertive—and said, “I told him to go ahead.” Before I became a public defender, this response would have surprised me. I remember studying the law of search and seizure in law school and wondering why anybody would consent to a search, especially if they knew that there was something illegal in their car. But studies showed that most people—90 percent or more—did eventually give consent.2 From what I had seen, it was closer to 100 percent.
When I talked to my clients about why they allowed police to search their cars, such behavior became more comprehensible. A few said they figured the police wouldn’t find what they had hidden, but most had a more basic reason: they didn’t think they could refuse. This was Ms. Dozier’s reason, though she had an extra flourish as well. As she explained, “I figured they would search if they wanted to, regardless, so I thought, if I say yes, maybe they won’t even bother, since they will see I have nothing to hide.”
I had heard this explanation many times before. It was quite logical, I thought—indeed, if I hadn’t seen so many of these cases, I would have given consent for the same reason. But it never worked. The police still always searched—as they did with Ms. Dozier.
Soon after granting the police request, she found herself standing with Charles in front of the car and trying to console the whimpering Tanisha. The southern gentleman kept an eye on the three of them while the red-faced officer looked under the seats, in the center console, in the trunk, and, eventually, in the glove compartment. All in all, she said, the search was “on the gentle side”—she had seen police tear cars apart, and she appreciated that the red-faced officer didn’t do that. He was businesslike, but not mean, and not messy.
As she had promised, there were no guns or weapons to be found. But even a gentle search was enough to find the two small baggies of marijuana (about twenty dollars’ worth) in the glove compartment. When the red-faced officer emerged holding them, Ms. Dozier lost it. “I started crying, telling them I couldn’t be locked up for this, that I had just started a new job, that I had to be at work in the morning, that I couldn’t miss work or I’d be fired.”
Now that she was crying, Tanisha started wailing, while Charles leaned over trying to comfort them both. “We were a mess. All crying and hugging on the side of Alabama Avenue, with people driving by wondering what was going on.”
The officers conferred, and the southern gentleman came back in a few minutes. He had what seemed like good news. Since Ms. Dozier had no record and no outstanding warrants, he could release her from the police station with a citation to appear in court. This was much better than the alternative, in which she would be held in jail overnight and wouldn’t see a judge till sometime the next day, missing work as a result.
Ms. Dozier was thrilled to learn that she’d be able to go to work the next day. A few weeks later, she got more good news: she went to court and after waiting all day was told that the marijuana possession charges had been “no papered,” D.C. court lingo meaning that the prosecutor’s office had decided not to bring charges.
Ms. Dozier was free to go, and she rushed quickly out of the courthouse. She had no pending charges and no criminal conviction. She was a free citizen in the eyes of the law.
So what was she doing in my office? Ms. Dozier had been a new employee at FedEx, and at the end of her probationary period, they asked her to bring them proof of a clean record. This was a routine request, but in Ms. Dozier’s case, the paperwork came back showing her recent arrest for marijuana possession. And FedEx promptly fired her.
She opened a folder and put some papers on my hopelessly cluttered desk. On top was a printout I had seen many times. It was from the D.C. Superior Court Clerk’s office, and it contained Ms. Dozier’s criminal record. An eight-hour duty-day shift typically included three or four inquiries from frustrated citizens who had requested proof of a clean record to give their employers, only to find that the police, or the Superior Court, still had evidence of a past arrest on file. The system sometimes seemed like a lottery: I had seen cases where it missed multiple arrests for a single individual, and others in which it had captured every detail, even a minor citation like this one.
As I looked down at the printout, I couldn’t help but notice how unusually “clean” Ms. Dozier’s record was. I was representing people charged with serious felonies, including murder, armed robbery, and sexual assault, and it was rare for me to encounter somebody whose only criminal involvement was a single no-papered arrest for marijuana possession.
“So, can you help me?” It was Ms. Dozier’s voice, and I realized that I needed to refocus. She had to get her job back.
It looked bleak. As an at-will employee on probationary status, she had almost no job protection. The law permitted employers to consider any criminal record—including mere arrests—in making hiring decisions. I told her this, and her body seemed to shrink in her chair. Nobody came to our office if they had other options, and now her lawyer of last resort was letting her down as well. Desperate to try something, I told her, “Well, I can call FedEx and see if I can talk them into giving you another chance.”
Ms. Dozier liked the idea. She was organized and prepared, and she fished her supervisor’s phone number out of the sheaf of papers she had with her. After what seemed like a dozen rings, I heard a deep, thick “Hello,” and when I asked for Mr. Mills, he said, “The one and only.”
“I’m calling on behalf of Sandra Dozier,” I said, and launched into my pitch. (Since no one was eager to talk to public defenders, we had learned to jump in fast, before people had time to put us off.) I focused on the prosecutor’s decision not to bring charges and explained that only the most frivolous cases got no papered. I couldn’t say Ms. Dozier was innocent of possessing marijuana, because she had never suggested that the baggies weren’t hers. But I went as far as I could, pointing out that an arrest wasn’t a conviction, that the case had been dismissed, and that she had no pending charges. She would never need to miss work for a court hearing or probation appointment. Legally, I told him, she was a person with a clean record. She was a free citizen who deserved the chance to keep her job.
Mr. Mills was sympathetic. He said that he liked Ms. Dozier, had been rooting for her, and was very disappointed when the record check came back with an arrest. It was one of the final stages of the process before an employee moved off probationary status. He even agreed that marijuana possession was a small-time charge, saying at one point, “You’re right, weed is everywhere, she just got caught with it.”
I brightened at his understanding. I normally addressed audiences that ranged from indifferent to downright hostile: probation officers who doubted a client’s explanation for why he had missed an appointment, prosecutors who could pick apart a rap sheet to argue that somebody was a menace to society, judges who feared public outcry if they were too lenient.
So Mr. Mills’s empathy was a welcome change of pace. I was on the verge of giving Ms. Dozier a thumbs-up sign when Mr. Mills said, “But here is the thing. It isn’t my decision. We have a firm policy that if you get arrested while you are on probation with us, we can’t hire you.”
I started to reply—I’m not sure what I was going to say, but I had to interrupt his flow—when he shut me down for good.
“Look, that’s all there is to it. It’s company policy. It’s done. I’ve got to go.” I murmured my thanks to him for taking my call, and we both hung up.
I didn’t have to relay the details to Ms. Dozier. She could read the bad news on my face, in my tone of voice, and in the abrupt way the call had ended.
I tried to think of something positive to say, but I had nothing to offer. The call had been my last shot, and it had failed. Ms. Dozier was gathering up her things and heading for the door when I remembered that my office had recently gotten copies of flyers for an upcoming job fair hosted by the D.C. government and various employers. Maybe this would help?
As soon as I handed her the flyer, I could see it was a mistake. She glanced at it for all of two seconds, then looked up at me with a mixture of disdain and despair. “Right. Another job fair. I know about all the job fairs. For almost a year I’ve been going to every one I can find, standing in lines that stretch for miles. Finally, finally, I got this job. And I’d still have it, except for this.” Ms. Dozier was pointing at the police form, the one that showed her arrest. Her eyes were wet. Her jaw was no longer holding firm. She turned and walked down the hall and out of the office.
“I’m sorry,” I said to her back, the useless words serving as final proof of my inadequacy.
Now I wanted to cry. It wasn’t an unusual feeling during my years as a public defender; sometimes the only thing that stopped the tears was another case or client who needed me right then. And so it was on duty day. I don’t remember who came in after Ms. Dozier, but there was invariably a line of clients in the waiting room, not to mention calls to be returned.
Duty day finally came to an end, and as I set about straightening up my desk, I noticed that Ms. Dozier had accidentally left a small stack of papers. On top was her printout from the courthouse. Underneath was a letter of commendation from sometime in high school when she had been Intern of the Month during a summer job with the D.C. government. The last piece of paper was a photocopy of her diploma—she had graduated from Ballou High School in Southeast D.C., a school more often in the news for fights or disorder than for anything good.
I stared at the letter and the diploma, and I imagined that she had brought them for the same reason she had told the officer she had a job. They were her armor, her stereotype busters, her proof to the world that she was one of the good ones. I imagined her taking them with her to job fairs, to FedEx, to anyone she thought might have any power.
And I hated the futility of her effort. A just world would care that she had grown up in a neighborhood with few jobs, attended a school with a 50 percent dropout rate, lost family members to prison and violence, yet had resisted and transcended all that. A just world would label her an achiever, a striver, a person with grit. But her strength of character, her diploma, her Intern of the Month certificate—none of it mattered now. What governed her life was a single line on a Superior Court printout: “Sandra Dozier, DOB: 7/3/77, Arrest: Possession Controlled Substance (Marijuana), 2/15/00.”
* * *
When Ms. Dozier was stopped, she asked the officers, “Why are y’all messing with me?” She never got an answer, and despite the officers’ tint machine ritual, she was never persuaded that dark windows were the reason she had been singled out for questioning. She was right to have her doubts.
Ms. Dozier had become the victim of the latest pretext-stop strategy. Designed to get guns off the street, it required casting a wide net—wide enough to capture lots of minor offenders like Sandra Dozier with her two baggies of marijuana. Yet even this was only part of the problem. As we shall see, this policing strategy was reserved for the city’s black neighborhoods—and its poorest. As a result, its burdens fell on residents who, like Ms. Dozier, could least afford the consequences of an arrest.
The people of Washington, D.C., in 1995 are in some respects no freer than the people of Selma, Alabama, in 1955.
—Eric H. Holder, Jr., United States Attorney for the District of Columbia, 1995
On January 13, 1995, a racially diverse audience of more than a thousand people crowded into the main ballroom at the Sheraton Hotel in Arlington, Virginia, for a birthday celebration honoring the memory of Dr. Martin Luther King, Jr. The featured speaker, Eric Holder, was the first African American to serve as U.S. Attorney for the District of Columbia. Holder’s appointment just over a year earlier had been big news. Though black leadership was well established at the local level (police chief, mayor, city council), no African American had ever served as the District’s chief prosecutor, a fact that had long rankled many blacks in the city.
As Holder took the stage, D.C. had emerged from the worst of the crack years, but just barely. Though homicide and other violent crimes had fallen from the record levels they reached during the epidemic, they were still extraordinarily high: D.C.’s murder rate was almost three times what it had been in 1985, before the crack explosion.3 The risk was greatest for the city’s black residents, as it was for blacks nationally. A Department of Justice survey of criminal victimization in 1997 would find that blacks experienced violent victimization at rates 50 percent higher than those for whites.4 Blacks understood that they lived at greater risk: in a national survey in 1994, 58 percent of blacks said there was an area within a mile of their house where they were afraid to walk alone at night; 45 percent of whites said the same.5
Using a conceit common among King Day speakers, Holder asked the enormous audience to imagine what Martin Luther King, Jr., would think about the state of black America today. According to Holder, “Dr. King would be shocked and disheartened by the condition of his people in 1995—and I, for one, would be ashamed to reveal to him what we have let happen to our community.”6 Holder reminded the crowd that in the fifteen months since he had become the city’s top prosecutor, more than five hundred people had been murdered—nearly all of them black. Those doing the killing, Holder declared, were betraying King’s legacy. “Did Martin Luther King successfully fight the likes of Bull Connor so that we could ultimately lose the struggle for civil rights to misguided or malicious members of our own race?”7
Holder’s critique was part of a national trend. In the mid-1990s, it was difficult to attend a Martin Luther King Day sermon without hearing a minister or other speaker invoke King’s memory in order to denounce crime and violence in black America. The year before Holder’s speech at the Arlington Sheraton, Rev. Jesse Jackson had a similar message for an interracial crowd of more than six hundred people at Washington National Cathedral. Saying that “violence—particularly black-on-black violence—is spiritual surrender,” Jackson pointed out that more blacks had been killed by other blacks in one year than had been lynched throughout history.8
Appeals to King’s memory could take a hard edge. During a visit to Alabama’s Birmingham Jail in 1995, Jackson chastised a group of prisoners for betraying King’s dream. “You are costing everybody’s freedom,” Jackson said, by “taking up the money we need for day care and Head Start.” He urged them to change their ways: “You’ve got dignity. You’re God’s child. You can rise above this if you change your mind. I appeal to you. Your mothers appealed to you. Dr. King died for you.” Jackson’s tough-love approach left little room for gentleness: after seeing a female prisoner wearing a T-shirt with a picture of King on it, Jackson said, “If he’s your hero, you wouldn’t be in here.” The woman bowed her head and cried.9
President Bill Clinton had his own version of the “what would Dr. King say about the black condition” talk. In November 1993, Clinton traveled to the Mason Temple Church of God in Christ, in Memphis, Tennessee, to the same pulpit from which King delivered his final sermon the night before he was assassinated. Speaking to a gathering of black ministers, Clinton wondered aloud what King would say if he were to “reappear by my side today and give us a report card on the last 25 years.” On the one hand, Clinton said, King would be pleased with the increased political power of African Americans, their elevation into the top ranks of the armed forces and the government, and the growth of the black middle class. On the other hand, Clinton imagined King assailing drug abuse and gun violence in the nation’s urban centers: “I did not live and die to see 13-year-old boys get automatic weapons and gun down 9-year-olds just for the kick of it. I did not live and die to see young people destroy their own lives with drugs and then build fortunes destroying the lives of others. This is not what I came here to do.”10 Citing recent crimes against black children in Baltimore and Washington, D.C., Clinton imagined King saying, “I did not fight for the right of black people to murder other black people with reckless abandonment.”11
Although the language Holder and Clinton used was similar to that of religious and civic leaders like Jesse Jackson, Holder and Clinton had concrete power that those leaders did not. In Clinton’s case, he invoked black victims in support of a variety of tough-on-crime positions, including the 1994 federal crime legislation that funded prison construction across the country.12
In Holder’s case, he asked the King Day audience at the Arlington Sheraton to join him in a community-wide effort against gun violence. Tougher law enforcement alone wouldn’t be enough, Holder said, telling the crowd that he wanted to enlist athletes and musicians in a public relations campaign to “break our young people’s fascination” with guns.13 But while Holder embraced root-cause responses to violence—in 1994 he told the D.C. radio journalist Derek McGinty that “if we want to get a handle on this problem long-term we’re going to have to deal with the social conditions that breed crime”—such broader solutions were beyond Holder’s direct control and would take years to show an impact.14 Meanwhile, people were dying right now.
Reducing violence in the short term, said Holder, required getting guns out of the hands of those most likely to use them to commit crimes—primarily young black men. But the means for disarming these potential offenders were limited. D.C. already had some of the nation’s toughest gun laws, and national legislation remained politically impossible. What was left?
Holder’s answer was straightforward: Stop cars, search cars, seize guns. He called it Operation Ceasefire.15
In embracing investigatory stops, Holder was part of a movement. In a much-discussed op-ed in The New York Times in March 1994, the prominent criminologist James Q. Wilson had argued that police should conduct more pretext stops of pedestrians and frisk them in order to detect illegal guns. The practice would have costs, Wilson admitted: “Innocent people will be stopped. Young black and Hispanic men will probably be stopped more often than older white Anglo males or women of any race. But if we are serious about reducing drive-by shootings, fatal gang wars and lethal quarrels in public places, we must get illegal guns off the street.” That same year, the New York Police Department adopted a strategy similar to the one Wilson had proposed. In Getting Guns Off the Streets of New York, the NYPD detailed its aggressive strategy of stopping, questioning, and frisking more citizens, especially young men of color.16
Holder wanted to do to drivers what Wilson and the NYPD sought to do to pedestrians. In 1995, new research from Kansas City suggested that such a plan just might work. Dubbed the “Kansas City Gun Experiment,” the federally funded program aimed to increase the number of investigatory stops in a “target beat.” Officers working overtime and assigned to “hot spots patrols” were instructed to identify suspicious vehicles and then use any available legal pretext to pull them over and search the drivers as well as their cars. These officers also increased the number of pedestrian stops.17 The results, when first published, were inspiring to law enforcement: gun violence decreased by 49 percent in the target beat, and the participating officers seized significantly more guns than their counterparts did in an area of the city that didn’t deploy the tactic.
As the political scientist Charles Epp and his coauthors explain, “It is hard to overstate the influence of the Kansas City Gun Experiment.”18 A program in Indianapolis attempted to replicate its findings, and both initiatives generated major national news coverage.19 While Holder’s office planned the new gun interdiction program for D.C., Holder’s special counsel, Monty Wilkinson, traveled to Kansas City and Indianapolis to study their efforts firsthand.20
Holder proposed to train and equip teams of D.C. officers to look for vehicles they deemed suspicious, with the goal of searching them for guns whenever possible.21 Prosecutors would then back up the police effort by vigorously pressing charges in court, making sure the cases didn’t get dropped or fall through the cracks, and seeking jail time for those convicted of illegal gun possession.22
Pretext traffic stops were an attractive tool for Holder’s purposes because D.C., like every other city, has a dizzying number of traffic regulations, and most drivers violate at least one every time they get behind the wheel. (As Attorney General Robert Jackson said in 1940, “No local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning.”) Thus, if a car draws suspicion from the police, they can almost invariably find a way to stop it legally, especially if they follow it long enough.23 This tactic has been deemed constitutional by the Supreme Court, despite its obvious invitation to selective enforcement and racial profiling.24
Holder had no such qualms. Ten days after his Martin Luther King Day speech, he appeared as a guest of the D.C.-based radio journalist Diane Rehm in order to build public support for Operation Ceasefire. Holder told Rehm that his goal was to cut violent crime in the city by 40 percent over the next four years and that “the cornerstone of this effort” would be getting “guns out of the hands of criminals.”25 Citing the Kansas City Gun Experiment, Holder said that he wanted to train D.C. police “to do constitutional, appropriate things to confront people” and, ultimately, get their guns. When Rehm asked him to explain what he meant by “constitutional means,” his response laid bare why pretextual policing was so powerful—and so problematic.
Investigatory car searches start, said Holder, with the fact that the police have broad authority to pull over any driver who violates the traffic laws. “[T]he police for instance are able to stop cars that do not have their lights on at night,” he said. “The police are able to stop cars that don’t have license plates.” These examples were two of the more serious traffic violations. Holder didn’t mention that many less serious, even petty, traffic infractions give the police just as much authority to pull over a car.26 A broken taillight or vent window, too much tint on the windows, a rear license plate but no front one, or even too many air fresheners hanging from the rearview mirror—these are also valid bases for a traffic stop.
But the stop itself, as Holder went on to explain, is just the beginning. Once the police pull a car over for even the most minor violation, they have been given broad power by the courts, starting with the authority to “look inside of a car.” Just looking could be an effective crime-fighting tool, Holder said, telling Rehm that she would “be surprised [at] the number of cases … where police officers are just looking in from outside and see guns that are hastily shoved under seats.”27
What if police didn’t see anything illegal? Most people who haven’t been subjected to a pretext stop would assume that the encounter would end there, perhaps with the officer writing a ticket. But, Holder said, the police have another tool available to them: “techniques where they ask people to allow them to search cars.” Like looking inside a car, consent searches were successful more often than Rehm’s listeners might think: “Surprising again, people—even though they have guns in their cars—will consent to those searches, and guns were taken that way.”28
What “techniques” do the police use to obtain such consent? Often, as with Ms. Dozier, just asking is good enough, especially because most people don’t know that they can refuse.29 For drivers who are more reluctant, officers are trained in how to wrangle consent, and the best are very good at it. A core tactic is to blur the distinction between commands that a driver must obey (such as providing a license and registration, or stepping out of the car) and requests that he may decline (such as giving permission to search).30 Many people don’t know the difference, and having acceded to a series of commands, they are primed to assume that the final, crucial request to search is also one they must obey. Finally, if the driver is adamant in refusing consent, there is always the fallback option: search anyway and later claim that you got consent.
Although Holder was remarkably forthright in outlining his plan, there were two aspects he failed to emphasize. First, he didn’t discuss the immense volume of innocent people who would have to be stopped in order to obtain a sizable number of guns. This volume of stops is necessary because the overwhelming majority of cars the police stop and search won’t contain guns. (Results vary from study to study, but most conclude that somewhere from 1 out of 20 to 1 out of 100 searches of cars will recover weapons.)31 Although not widely shared with the general public, the fact that hit rates for firearms are so low was well known in the police academies where officers learned to conduct pretext stops. As a popular textbook explained,
Remember, you need a lot of contacts to find the relatively few felony offenders you’re most interested in. To get the volume you want, you’re going to have to intensively enforce the traffic laws. You may need to call upon more trivial violations or public safety considerations, like having a taillight out or a cracked windshield, changing lanes without signaling, impeding traffic, following too closely, failing to dim lights, speeding 3 to 5 mph over the limit … and so on.32
Even the Kansas City and Indianapolis studies showed how seldom guns were actually found. In Kansas City, police in the target area seized guns in only 3.57 percent of traffic stops, while in Indianapolis they found guns in less than 1 percent of traffic stops.33
The other aspect of Operation Ceasefire that Holder failed to mention was that, although relatively few cars will contain guns, many more will contain evidence of minor crimes such as possession of marijuana.34 Police are sworn to enforce the law, and although it is theoretically possible to imagine a pretext-stop program in which police seize guns but ignore other minor offenses, it would be extremely difficult to execute. Among other obstacles, officers would need to be trained on which minor offenses to overlook, and few police chiefs would be eager to attend a public oversight hearing in which they were forced to explain where they got the authority to decide which laws mattered. As a result, pretext-stop regimes invariably operate as Ceasefire did. Officers may start out with a particular goal, such as seizing illegal guns, but if they uncover other illegal items, even less serious ones, they typically arrest.
But not everybody was at equal risk. In D.C., one police district was officially exempt from Operation Ceasefire: the city’s Second District, which included middle- and upper-middle-class white neighborhoods such as Georgetown, Foggy Bottom, and Woodley Park. The exemption was intentional. The Second District, Holder explained, had almost no gun crime, so there was no need for pretext stops there.35
Holder’s explanation was entirely rational. In 1993, two years before Operation Ceasefire went into effect, there were 399 homicides in Washington, D.C.36 Only two of them were in Ward 3 (which largely covers the Second District), despite the fact that this ward contained more than 13 percent of the city’s population.37 In one respect, though, the exemption of the Second District was problematic. By concentrating pretext policing in the areas where gun crime was highest, Operation Ceasefire created unwarranted disparities in other areas, such as drug enforcement. Drivers in majority-black neighborhoods were no more likely to possess drugs than were drivers in majority-white neighborhoods, but under Holder’s plan, they were more likely to be stopped, searched, and arrested. These drivers—including Ms. Dozier—were the collateral damage from Operation Ceasefire’s response to gun violence.
Such discrimination, one might think, would have been sure to raise alarm bells in the city. But few seemed to care. Robert Wilkins from the Public Defender Service challenged Operation Ceasefire before the city council. Wilkins, who later would be appointed to the Court of Appeals for the D.C. Circuit, criticized the program because it relied on racial profiling and because such profiles “are frequently wrong, resulting in innocent people being targeted by the police.”38 Wilkins knew whereof he spoke, as he had successfully sued the Maryland State Police after he and his family were stopped pursuant to a racial profile in 1992.39 The case won substantial media attention, and Wilkins told his story at the hearing. But apart from an expression of concern from a single council member, Wilkins’s critique attracted minimal support, and Operation Ceasefire continued unimpeded.40
Why was Wilkins the lone voice? What explains the lack of opposition to the racial discrimination inherent in the structure of Operation Ceasefire?
* * *
Some of the answers are similar to those we have seen earlier. Memories of the crack years were fresh, their trauma lasting. When Holder told the audience at the Arlington Sheraton that 94 percent of black homicide victims were slain by black assailants, he was simply putting a number on a problem his audience knew well. A range of black voices—and not just from law enforcement—agreed with Holder that safety was a civil rights issue. “If we’re not safe within our homes, if we’re not safe within our person, then every other civil right just doesn’t matter,” said Wade Henderson, the head of the NAACP’s Washington office.41 In such times, when Holder asked other blacks to help him respond to black America’s “group suicide,” few would say no.
That the call for pretext policing came from Eric Holder, a highly respected African American prosecutor, was also crucial. Black federal prosecutors are viewed with tremendous respect in majority-black communities. Lenese Herbert, who worked under Holder, recalls that black prosecutors, along with other black lawyers and judges, were viewed as “part of the race’s success,” its “shining Black princes and princesses.”42 Paul Butler, a former federal prosecutor, describes how his stature helped him win convictions from majority-black juries in D.C.:
In my black city, I love to stand in front of the black jurors and point, like I learned in training, at the black defendant. I represent the United States of America, I boast, and I am going to present evidence that proves beyond a reasonable doubt that that guy over there is a big jerk. Then I proceed to kick a little butt myself.43
Holder’s standing lent him similar credibility when he spoke to black audiences about Operation Ceasefire. “I’m not going to be naïve about it,” he told an audience at a community meeting on upper Georgia Avenue. “The people who will be stopped will be young black males, overwhelmingly.” But, as he had done in his King Day speech, Holder argued that such concerns were outweighed by the need to protect blacks from crime.44 He took a similar tack when celebrating the first anniversary of Operation Ceasefire with officers from the city’s gun squads, which had seized 768 guns and $250,000 in cash and had made 2,300 arrests. Holder acknowledged that most of the arrestees were black. But he had no regrets, he told the assembled officers, and neither should they. “Young black males are 1 percent of the nation’s population but account for 18 percent of the nation’s homicides,” he said. “You all are saving lives, not just getting guns off the street.”45
Holder’s approach was embraced by the black police chiefs who were running departments in several major cities by the late 1990s. In response to allegations that police were engaged in racial profiling, Bernard Parks, the African American police chief in Los Angeles, said that racial disparities resulted from the choices of criminals, not police bias. “It’s not the fault of the police when they stop minority males or put them in jail,” said Parks. “It’s the fault of the minority males for committing the crime. In my mind it is not a great revelation that if officers are looking for criminal activity, they’re going to look at the kind of people who are listed on crime reports.” Charles Ramsey, who became D.C.’s police chief in 1998, agreed. “Not to say that [racial profiling] doesn’t happen, but it’s clearly not as serious or widespread as the publicity suggests,” Ramsey said. “I get so tired of hearing that ‘Driving While Black’ stuff. It’s just used to the point where it has no meaning. I drive while black—I’m black. I sleep while black too. It’s victimology.”46
But it was more than fear of crime or the credibility of black law enforcement officials that sold Operation Ceasefire. Also critical was the fact that the program targeted guns, not drugs.
From the late 1960s through the late 1980s, much of black America had remained committed to the War on Drugs, even supporting mandatory minimum sentences. But African American public opinion began to shift, if slowly, by the early 1990s as evidence of the drug war’s racial impact began to mount. In 1990, Michael Isikoff and Tracy Thompson of The Washington Post found that federal judges had become frustrated with mandatory minimums and the harsh treatment of offenses involving crack cocaine. Stringent antidrug laws, the reporters wrote, had given rise to a “form of robotic justice which metes out harsh penalties every day to low-level offenders—most of them poor, young and members of minority groups.”47 That same year, in a front-page story headlined “Blacks Feel Brunt of Drug War,” the Los Angeles Times reporter Ron Harris reported that studies from both the FBI and the National Institute on Drug Abuse had found that blacks and whites used drugs at comparable rates. Yet a visitor to a courtroom or jail would conclude that most drug users were black. The only way to explain this disparity was to recognize that blacks were being unfairly targeted; or, as Harris put it, “the nation’s war on drugs has in effect become a war on black people.”48
Shifting attitudes toward the War on Drugs could also be seen among members of the Congressional Black Caucus (CBC). African American members of Congress had been evenly divided over the 1986 federal law that introduced stiff penalties for drug offenses, including the provision that punished crack offenses much more harshly than powder cocaine offenses. But as the racial effects of mandatory minimums and the crack/cocaine disparity became apparent, the CBC came together in unanimous and increasingly vocal opposition to the law.49 At the local level, concerns about unfair drug sentencing led the D.C. Council in 1995 to roll back the mandatory minimums for drug crimes that voters had approved in 1982. (The resistance went only so far, however, as the council doubled the statutory maximums.)
While the drug war was beginning to come under attack, the D.C.-based Sentencing Project started documenting the damage that America’s increasingly punitive criminal justice system was doing to black America. In 1990, the group published a report with an explosive and unprecedented finding: one in four young black men were trapped in the criminal justice system—either through probation, parole, prison, or jail. The next year, the group issued a report showing that the United States had surpassed South Africa and Russia to become the world’s largest jailer (a status it retains today). Both reports were widely disseminated and discussed, especially by black commentators, with the ACLU’s Nkechi Taifa, for example, comparing the double standard in American criminal justice to slavery and Jim Crow.50
The growing opposition to discriminatory policing and over-incarceration was also reflected in editorial cartoons in black newspapers. In the 1970s and 1980s, the cartoons had emphasized rising crime and lawlessness. Now, increasingly, they dramatized the costs of punitive crime policy.
(The Washington Afro-American, March 3, 1990)
But while critics were increasingly vocal in challenging the drug war, when the topic turned to guns, the opposition grew quiet. The roots of the tough-on-guns stance can be traced to the gun control debate of the 1970s, when spiraling gun violence persuaded African Americans in D.C. and elsewhere to embrace prison sentences, including mandatory minimums, for gun possession.51 By the 1990s, with the wounds from the crack years barely healed, the tough-on-guns posture had solidified to the point that antigun tactics were almost immune to criticism.52
For example, even as D.C. eliminated mandatory minimum sentences for certain drug offenses in 1995, it kept those punishments for a long list of gun crimes.53 Similarly, in Richmond, Virginia, a black federal prosecutor joined forces with a black police chief to create Project Exile, which sought to ensure that any felon arrested with a gun would be prosecuted in federal court and receive a mandatory minimum sentence.54 In New York, Bronx district attorney Robert Johnson, the state’s first African American D.A., began referring gun possession cases to federal court in hopes of securing harsher mandatory prison terms.55
(Los Angeles Sentinel, November 13, 1997)
Against this backdrop, the lack of resistance to Operation Ceasefire is not surprising. If Holder’s plan had targeted drugs, it might have faced resistance. But because the target was guns, Robert Wilkins was the only witness at the city council hearing raising questions about racial profiling.
Still, even the focus on guns didn’t ensure support for Operation Ceasefire. There was one more factor, often ignored in discussions of the politics of crime and punishment in black communities: class.
(Los Angeles Sentinel, July 24, 1997)
They know who they can push around and who they can’t.
—Resident of low-income black neighborhood in D.C.
When Holder announced Operation Ceasefire on Martin Luther King Day, he spoke before an audience that included members of D.C.’s black establishment. They came from Howard University; from Prince George’s County, Maryland, the nation’s wealthiest black suburb; and from the Gold Coast, the black middle- and upper-middle-class neighborhoods along Sixteenth Street. But the policing strategy Holder announced would mostly pass over those communities and instead exact its toll in places that, if anything, seemed more thoroughly depressed and permanently abandoned than they had been under Jim Crow.
The class discrimination line wasn’t drawn as formally as its racial counterpart. Whereas the majority-white neighborhoods west of Rock Creek Park were officially exempt from Operation Ceasefire, most black residents of D.C., including many of its more privileged citizens, lived in police precincts that, at least on paper, were subject to the gun squads. As a result, it wasn’t unheard of for the police to conduct a pretext stop on a member of the black establishment.56 But in the main, pretext policing was concentrated in the poorest parts of D.C.
My colleagues and I at PDS were well aware that the police operated differently in the wealthier majority-black neighborhoods. When Ms. Dozier was describing how she was stopped and searched, before she even told me where she was driving, I had already started to imagine likely locations. All of them were in the city’s poorest black communities. I made the assumption, in part, because that’s where most of our cases came from, and also because I and many of my black colleagues lived in the city’s more privileged black neighborhoods, and we could see with our own eyes that the policing styles on our streets were typically less aggressive than those our clients experienced.
My evidence was entirely anecdotal, but research by the sociologist Ronald Weitzer confirmed my impressions. In 1996 and 1997, Weitzer began studying police-citizen relations in three Washington, D.C., neighborhoods: a white middle-class neighborhood he referred to as Cloverdale, a black middle-class neighborhood he called Merrifield, and a lower-class black neighborhood he called Spartanburg. Along with his graduate students, Weitzer conducted more than 150 interviews of residents, attended police-community meetings, and observed traffic stops and other police-citizen interactions. As he had expected, the affluent white community didn’t interact with police much and was generally satisfied with officers in the neighborhood. The results from the black neighborhoods were more interesting: Weitzer quickly saw the power of neighborhood class. African Americans who lived in the middle-class Merrifield neighborhood were generally pleased with their local police and reported few instances of unjustified stops, verbal abuse, or excessive force. Those who lived in lower-class Spartanburg, by contrast, were four to seven times more likely than Merrifield residents to complain of unjustified stops or abuse.57
These different attitudes showed up in community meetings as well as in survey results. In Merrifield, when it came time for community members to ask questions of the officers running a meeting, Weitzer was surprised at how often people would take the chance to express their gratitude, saying things like, “Well, this isn’t a question, but I just want to thank you for all the hard work you do day in and day out, and the police really never get enough credit.” Spartanburg residents were much more likely to complain about police treatment. Weitzer recalled seeing small groups of young black men, normally sitting in the back of the room, waiting for the chance to speak. When their turn came, they would say, “You know, racial profiling, it happens every day, what are you gonna do about it? Me and my friends are out there and we’re being stopped for no good reason, and it doesn’t happen once, it happens repeatedly, and we’re sick and tired of it.”58
Complaints often revolved around a particular type of police action: the pretext stops that Holder thought were essential to reducing gun violence. According to Weitzer, “Police are thought to engage in fishing expeditions: pretextual stops ostensibly for minor traffic violations but actually intended to discover evidence of some other offense.”59 Spartanburg residents were clear-eyed about why police could treat them like this: they were poor and black, living in a neighborhood that was poor and black. These facts were far more powerful than shared racial identity with the city’s black political establishment. As one twenty-four-year-old black man from Spartanburg put it,
Up there [Georgetown, Gold Coast—affluent white and black communities] I know they don’t treat them like that. Those people got a lot of influence. Police could lose their jobs, you know? For us, come on, what can you do if you’re stopped on the street? You’re just a regular Joe. You could go file a complaint or write a letter, but that’s all that’s going to happen. But these [affluent] people can make two or three phone calls, and there’s going to be an investigation. We don’t have that power. They know who they can push around and who they can’t.60
The poor weren’t the only ones to understand how class worked in D.C.’s black communities. Merrifield’s black middle-class residents did, too—their neighborhood was full of doctors, lawyers, and other politically connected people, and they knew that their status influenced their interactions with law enforcement. One man told researchers that if police mistreated Merrifield residents, “citizens would be up in arms,” and an officer interviewed for the study confirmed that these citizens had “‘pull’ with city officials and the police hierarchy.”61 Weitzer’s subjects spoke a truth I knew well. A black judge lived on my block, and two others lived close by. Even though I tangled with them in the courthouse, I had little doubt about whom I would call with a complaint about police conduct.
It is no small success that the African Americans on my block, or the residents of Merrifield, felt this way. To the generations of black middle-class D.C. residents routinely humiliated and harassed by Jim Crow policing, respectful police treatment would have seemed an impossible dream. The idea of a majority-black police department would have seemed equally miraculous. But for Ms. Dozier and the black poor trapped in Spartanburg, there was nothing to celebrate. Indeed, in one crucial respect, things had gotten worse: they were still being stopped and searched because of where they lived and the color of their skin, but now they were told that this is how Dr. King would have wanted it.
* * *
There are a lot of Sandra Doziers. In the twenty years since Holder unveiled Operation Ceasefire, its brand of pretext stops has become part of the fabric of policing in cities across America. In D.C., the journalist David Shipler rode with officers doing the same things the police were doing the night they stopped Ms. Dozier: working the city’s poor black neighborhoods exclusively, pulling people over for minor traffic violations (tinted windows remain a favorite), and cajoling their way inside cars.62 As Shipler recalls, after a night of watching the Gun Recovery Unit at work,
[h]ardly any of the searches had been justified by probable cause or even by the lesser standard of reasonable suspicion. The [Gun Recovery Unit] had relied almost entirely on citizens’ acquiescence. While officers combed through vehicles, I asked drivers who were sitting on curbs or leaning on trunks whether their permission had been requested. Some looked blank, as if they hadn’t known that a policeman had to ask and that a citizen could say no.63
The problem is hardly limited to D.C. The New York City Police Department came under sustained political and legal attack for its reliance on stop-and-frisk, a tactic we might think of as Operation Ceasefire applied to pedestrians. Although the NYPD has dramatically reduced its use of stop-and-frisk since 2011, it continues to target drivers for minor traffic offenses. And it does so for the same reason that D.C. police adopted Operation Ceasefire: as a pretext to question drivers and, whenever possible, search their cars. In 2014, for example, the NYPD conducted just over 47,000 stop-and-frisks; in the same year, it gave out almost 75,000 traffic tickets for tinted windows alone. And that number is likely dwarfed by the number of drivers who, like Ms. Dozier, were stopped on suspicion of a minor offense and never received a ticket.64
Pretext stops are responsible for most of the racial disparity in traffic stops nationwide. Although popular discussions of discriminatory traffic enforcement often lump all traffic stops into one category, Charles Epp and his colleagues have shown that pretext stops are the real villain. Analyzing the results of a survey of black and white drivers in the Kansas City area, Epp finds that when the police are actually enforcing traffic safety laws, they tend to do so without regard to race.65 But when they are carrying out investigatory or pretext stops, they are much more likely to stop black and other minority drivers: blacks are about two and a half times more likely to be pulled over for pretext stops.66 Moreover, the disparities are present regardless of gender. Black men are more than twice as likely as white men, and black women are more than twice as likely as white women, to be subjected to a pretext stop.67 In fact, black women are more likely to be pulled over for pretext stops than are white men, despite the fact that white men carry guns and commit violent crimes at much higher rates than black women do.68
These racial disparities are all the more troubling because the damage from a pretext stop—of a driver, a pedestrian, a loiterer—doesn’t end with the stop itself or the subsequent search. Perhaps the single most destructive aspect of the pretext-stop regime is that it propels disparities in the rest of the criminal justice system. Consider Ms. Dozier. She wasn’t innocent: at the time she was arrested, possession of even the smallest amount of marijuana was a crime in D.C. She had marijuana in her car, and she was arrested for it. Case closed. This is where many discussions of disparities in law enforcement end. But such a simple account fails to acknowledge the world that pretext stops create—a world in which Ms. Dozier is arrested for an offense that white drivers commit with impunity.
Appreciating how pretext stops contribute to criminal justice disparities brings clarity to important debates over racism in American policing. Police officers—including black police officers—understandably resent allegations of racism and racial profiling. In resisting such claims, however, even thoughtful police leaders overlook the damage done by pretext stops. For example, Chuck Ramsey, who served as D.C.’s police chief and more recently as the cochair of President Obama’s Task Force on 21st Century Policing, rejected allegations of racial profiling by saying, “Black people commit traffic violations. What are we supposed to say? People get a free pass because they’re black?”69 But Ms. Dozier and the residents of her neighborhood are not asking for a free pass. They are just asking not to be singled out.
Pretext stops also show what FBI director James B. Comey missed in a February 2015 speech on racial bias in policing. Comey was praised for acknowledging that police officers in urban settings can be influenced by implicit, or unintentional, bias, some of which results from the fact that they “often work in environments where a hugely disproportionate percentage of street crime is committed by young men of color.” Before making this point, however, he sought to defend police from accusations of intentional racism. “Why are so many black men in jail?” Comey asked. “Is it because cops, prosecutors, judges, and juries are racist? Because they are turning a blind eye to white robbers and drug dealers?” Answering his own question, he said, “I don’t think so.”
In some respects, Comey’s speech deserved the accolades it received. The notion of implicit bias—that we all harbor attitudes and stereotypes that operate without our conscious awareness—is a powerful scientific development, and he was right to elaborate on its connections to law enforcement. To his credit, he also pointed out that poverty and other forms of social disadvantage help produce the high crime rates that police must contend with. But Comey never mentioned pretext stops—and as a result, he made the problem of racial discrimination by police seem harder to solve than it actually is. Compared with unconscious bias, or the social conditions that foster criminal behavior, pretext stops are a direct, easily remedied source of racial disparities in the criminal justice system, and they are entirely within the power of law enforcement to correct.70
If Comey had recognized pretext stops as a racially discriminatory practice, he would have had to revise his claim that police are not “turning a blind eye” to white drug dealers. For although he is right that no individual officer chooses to ignore criminal behavior by whites, structurally a pretext regime does precisely that. When Holder and the D.C. police department decided to target black communities for pretext stops, they gave a free pass to white drivers right across town with marijuana (and other drugs) safely stashed in their glove compartments.
* * *
Before she left my office, after seeing that I couldn’t help her get her job back, Sandra Dozier said, “I can’t believe I lost my job for this.” I still can’t believe it myself, but I now have a better understanding of how it happened. By the time Ms. Dozier was stopped and received her marijuana citation in 2000, D.C. and the nation had been steadily, incrementally, building the punitive criminal justice system we still live with today. Most of the pieces—the aggressive prosecutions and policing, longer sentences, prison-building, collateral consequences of convictions such as losing the right to vote or the chance to live in public housing—had been put in place, and the years since had been primarily dedicated to maintaining and tinkering with that basic architecture.
This history reveals that no single actor, or even institution, is responsible for what happened to Sandra Dozier. But it also suggests that there were many moments when D.C.—and the nation—could have pursued a different course. If the D.C. Council had chosen to decriminalize marijuana when it first considered the issue in 1975, Ms. Dozier would still have had her job. If the D.C. police hadn’t targeted drivers in the city’s poor black neighborhoods for pretext stops, she would still have had her job. If FedEx and other employers had a more forgiving policy toward arrests, if they were willing to look at individual circumstances rather than adopting a policy of blanket exclusion, she would still have had her job. And if America had implemented a more robust policy of urban revitalization—if it had ever undertaken a Marshall Plan for the cities—somebody with Ms. Dozier’s grit and determination would have had her choice of jobs.