Discovering Racial Discrimination by the Police

Abstract

For decades, it was virtually impossible for a criminal defendant to challenge racial discrimination by police or prosecutors. In United States v. Armstrong, 517 U.S. 456 (1996), the Supreme Court set an insurmountable standard for obtaining discovery in support of a selective prosecution claim. Lower courts subsequently applied this same standard to selective law enforcement claims alleging race-based discrimination by the police, leading them to deny discovery and stifle potentially meritorious claims. Recently, a new wave of challenges has arisen in the context of “fake stash house” operations, through which federal law enforcement agencies like the ATF and the DEA approach people — overwhelmingly people of color — and induce them to rob a non-existent drug stash house. Defense attorneys have argued these practices constitute racially selective law enforcement. Federal courts of appeals have responded by recognizing the differences between prosecutors and law enforcement officers and lowering the discovery standard for defendants alleging racial discrimination by the police. We argue that federal and state appellate courts should follow suit. Although the recent cases arose in the stash house context, the new discovery standard applies to any claim of racial discrimination by the police.

This Article is the first to describe this important development in equal protection jurisprudence. Recognizing that federal courts hear only a fraction of race discrimination claims, this Article embraces the spirit of federalism and proposes an innovative state-level solution: a state court rule lowering the insuperable discovery standard to which most states still cling. This Article draws on a recent Washington State Supreme Court rule aimed at preventing racial discrimination in jury selection to propose that state courts adopt a similar court rule setting a new discovery standard for racially selective law enforcement claims. Such a rule would ensure that state-level equal protection claims are not blocked at the discovery stage, thus enabling courts to adjudicate those claims on the merits.

Keywords: selective enforcement, selective prosecution, equal protection, United States v. Armstrong