Toward a Thirteenth Amendment Exclusionary Rule as a Remedy for Racial Profiling

Abstract

This chapter addresses a particular remedy for a specific type of Thirteenth Amendment violation: namely, the exclusion from criminal trial of evidence obtained by racial profiling. As a matter of constitutional interpretation and historical context, racial profiling should be treated as a badge or incident of slavery prohibited by the Thirteenth Amendment. The victims of racial profiling should both be able to sue violators and to prevent evidence obtained by racial profiling from being used against them in criminal proceedings.

The exclusionary rule bars the use of evidence in a criminal trial where that evidence was unconstitutionally obtained. Whatever the abstract merits of current arguments surrounding the efficacy or wisdom of the exclusionary rule generally or in other contexts, the Thirteenth Amendment does not countenance the government's obtaining criminal convictions based upon evidence gathered by police practices that amount to a badge or incident of slavery. While the exclusion of evidence that is relevant to the defendant's guilt potentially carries social costs, those costs are justified in cases of racial profiling because the practice is abhorrent to the Thirteenth Amendment and the rule of law.

Keywords: thirteenth amendment, badges and incidents of slavery, exclusionary rule, Hudson v. Michigan, racial profiling, slavery

JEL Classification: J70, J71, J78, J79, K14