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by Kent A. Gernander
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Thurgood Marshall was born in 1908
in Baltimore, a segregated city. The son of a Pullman car waiter
and a schoolteacher, he attended schools for "colored"
children in Baltimore before graduating with honors from Lincoln
College and the Howard University School of Law. After graduation,
he practiced law in Baltimore, and began his long association
with the NAACP and its Legal Defense Fund (LDF).
In 1935, in one of his first cases, he secured the admission of blacks to the University of Maryland Law School, which he could not attend because of his race. Over the next three decades, he was the chief civil rights trial lawyer of the LDF, successfully fighting discrimination in education, employment, voting and criminal law. He won 29 of 32 civil rights cases before the United States Supreme Court. His most notable victory was Brown v. Board of Education, which ended racial segregation of public schools.
In 1961, President Kennedy appointed him to the 2nd Circuit Court of Appeals. In 1965, he accepted President Johnson's appointment as United States Solicitor General. In 1967, he was appointed by President Johnson to the United States Supreme Court, on which he served with distinction for 24 years.
As a civil rights lawyer, Marshall experienced physical threats and danger. But among his lasting memories was the discriminatory treatment he received in his youth. On one occasion he was in an area of Baltimore in which public restroom facilities were not open to blacks. With an urgent need, his only recourse was to ride a bus to another section of the city. He didn't make it to his destination. Years later, a proud and successful man, he felt the indignity of that experience.
Racial discrimination is based on stereotyping -- the notion that race or skin color is accompanied by other characteristics that justify disparate treatment. Overt discrimination is no longer legally sanctioned, thanks in large part to Thurgood Marshall. Racial stereotyping and disparate treatment persist.
In 1967, the National Advisory Commission on Civil Disorders ("The Kerner Commission") heard complaints that blacks were often stopped by police, on foot or in cars, without obvious basis. Three decades later, complaints continue that motorists are stopped for "driving while black or brown." In a Gallup Poll conducted in 1999, three-fourths of the young black male respondents believed they had been stopped by police because of their color.
Statistical studies confirm that minority motorists are stopped more frequently and treated differently than white motorists. In an Illinois study, Hispanic drivers, who accounted for 3 percent of the motorists, comprised 30 percent of the drivers stopped for such minor violations as driving less than five miles per hour over the posted limit or failing to signal a lane change. In a New Jersey study, 77 percent of the vehicles searched after stops on the freeway involved black or Hispanic motorists. Similar results have been reported in studies of police action in several other jurisdictions.
The purported justification for such actions is a law enforcement practice commonly referred to as "profiling." Police identify common characteristics of violators or suspects, and target those who fit such profiles for investigation. Some officials believe that race or ethnicity is associated with certain criminal activity, such as drug trafficking. This produces a "racial profile" of suspected criminals, and results in disproportionate targeting of racial minorities for police contact.
There are several reasons for being opposed to such police practices. First, they encourage "pretext" stops - using a minor infraction as a pretext to investigate other suspected criminal behavior for which probable cause is lacking. Second, they are based on faulty assumptions as to the correlation between race and criminal behavior. Drug traffickers and users, for example, are not predominantly minorities, although targeting them for stops and searches results in disproportionate rates of arrest and conviction. Third, race-based stops are simply unacceptable. Stopping or investigating members of a race or ethnic group cannot be justified by the belief that there is a greater probability of criminal behavior among its members than in the general population.
People of color live daily with the prospect of race-based police contacts. They mistrust law enforcement and a justice system that tolerates discriminatory practices. They fear being stopped by armed officers who suspect them of criminal behavior; they try to avoid being "out of place"; they accept humiliation to avoid confrontation. Sadly, they prepare their children to expect and deal with biased treatment.
This is not exclusively a police issue, and it is not confined to racial profiling. Disparities in treatment of minorities extend throughout the justice system. The disparities begin with investigative stops, but they continue and are magnified in rates of arrest, conviction, and incarceration. According to an ACLU report, blacks constitute 13 percent of the country's drug users, 37 percent of those arrested on drug charges, 55 percent of those convicted, and 74 percent of all drug offenders sentenced to prison. In Minnesota, the disparity between rates of incarceration of blacks and whites is greater than that in any other state.
Gathering and analyzing statistics will confirm the existence of disparities and help us to understand them. We need this understanding. More than that, however, we need to care about how people are being treated in the justice system, and to find ways of eliminating all forms of discrimination.
Kent A. Gernander is president of the MSBA. A general practice and trial lawyer in the Winona firm of Streater & Murphy, P.A., he is a graduate of Harvard College and of the University of Minnesota Law School.