Student Review:

In this article, Karlan discusses the Supreme Court's choice to address racial issues under Equal Protection Clause rather than under criminal procedure rights.  She explores discrimination against minorities in police practices, charging decisions, sentencing, and classification of criminal offenses.  Originally, the Supreme Court addressed race discrimination using criminal procedure rights.  The remedies under criminal procedure protections include the exclusion of evidence, reversal of convictions, dismissal of indictments, and civil damages.  Now, however, the Supreme Court is addressing these issues under the Equal Protection Clause rather than under criminal procedure.  Under the equal protection context, the same remedies do not apply.  Karlan explores the effects of this choice and the complications that arise.
     Karlan first discusses racially discriminatory pretextual traffic stops by police.  Under the equal protection doctrine these stops  would most likely be held unconstitutional.  Individuals could point to statistical profiles used by police, the fact that the substantial proportion of drivers who are stopped by police are minorities, and use testers to show discrimination. Whren v. United States clearly placed racially discriminatory law enforcement under the Equal Protection Clause.  However, Karlan remains concerned about the remedies provided for such claims.  Under the Fourth Amendment, exclusion of evidence would be the remedy, but it remains to be seen if there is also an exclusionary rule for the Fourteenth Amendment.  Karlan's concern is that exclusion of evidence will no longer be a remedy for defendants under the Equal Protection Clause.  Karlan feels that the exclusion of evidence is the only avenue to fully vindicate racially selective prosecution.  Civil damages and injunctive relief do not provide the necessary incentive to litigate racial discrimination claims.
     Secondly, Karlan discusses racial discrimination in jury selection. In these claims, the Supreme Court has again turned to the Equal Protection Clause rather than a criminal procedure remedy under the Sixth Amendment.  The Court has also focused on the excluded juror as the victim of discriminatory jury selection rather than recognizing that the defendant would be the victim from a possible changed trial outcome.  Federal courts have treated racial discrimination in jury selection as subject to per se reversal.  However, these courts have also increasingly used nonracial explanations for prosecutorial strikes in order to find that no violation occurred.  Karlan urges that these reason be assessed by courts more carefully.
     Karlan also explores the problem of racially selective prosecution.  Under the equal protection clause and United States v. Armstrong, the defendant must show that the government has declined to prosecute similarly situated suspects of other races.  Karlan demonstrates that ordinary equal protection cases do not pose the same problems as racially selective prosecutions.  Furthermore, eliminating the remedy of dismissal would discourage defendants from bringing selective-prosecution cases.
     Thus, Karlan finds that the Supreme Court's choice to move racial discrimination cases out of criminal procedure and into equal protection claims cause a number of problems.  The change restricts the remedies of these claims and presents the possibility of courts finding fewer constitutional violations.  Karlan urges that the remedies under criminal procedure practices should not be lost in equal protection claims.

Article Summary by: Corrie Noir
Wake Forest University School of Law 1999