The document discusses three main arguments about criminal law and justice: 1) Criminal sentencing laws like California's Three Strikes law have disproportionately impacted minority communities and have fallen short of their intended goals. These laws often result in extreme sentences that outweigh their effectiveness in reducing crime. 2) Social science research on issues like cross-racial eyewitness identification has helped inform criminal procedure and shed light on how race influences criminal trials. 3) Existing criminal procedure has created burdens for criminal defendants. Aggregation of discretionary decisions in the criminal justice system can lead to racial unfairness if not addressed. More analysis is needed on how race impacts criminal punishment and jurisprudence.

1. ARTICLES
Race and the American Criminal Justice
System: Three Arguments About Criminal
Law, Social Science, and Criminal
Procedure
∗
HARVEY GEE
INTRODUCTION
The last two years have witnessed a two-year rise in the rate of violent
crime in large United States metropolitan cities. 1 Simultaneously, the rate
of incarceration in the United States is continuing to rise at unprecedented
rates. The Sentencing Project notes that “the number of people in prisons
and jails increase[ed] from 330,000 in 1972 to 2.1 million today.” 2 This
dramatic observation is produced by many factors, among them: changing
crime rates, strict sentencing, politics, culture, and demographics. 3 There
has been no consensus on these new realities; however, sentencing laws
and increased incarceration is often referred to as the solution to address
increasing crime rates. A reliance on this approach will exclusively impose
a heavy burden on courts and communities, while having only a marginal
impact on crime. 4 The racial divide in crime and punishment in America is
∗ The author is a Washington, D.C. attorney; LL.M, The George Washington
University Law School, J.D., St. Mary’s University School of Law; B.A. Sonoma State
University.
1. Lara Jakes Jordan, Study Finds Violent Crime On Rise in U.S. Metro Areas, DEN.
POST, Mar. 9, 2007, at 2A.
2. RYAN S. KING, MARC MAUER & MALCOM C. YOUNG, THE SENTENCING PROJECT:
INCARCERATION AND CRIME: A COMPLEX RELATIONSHIP 1 (2005); see also Marc Mauer,
Thinking About Prison and Its Impact in the Twenty-First Century, 2 OHIO ST. J. CRIM. L.
607, 607 (2005).
3. KING, MAUER & YOUNG, supra note 2.
4. Id. at 8; see also Mauer, supra note 2 at 611 (“As with offenders, imprisonment
has always posed a set of burdens on the family members of people in prison. These have
included financial strains, psychological burdens, and social stigma. All of these dynamics
still exist, but mass imprisonment has created a considerably greater level of effects in many
neighborhoods.”); Marc Mauer, Why Are Tough on Crime Policies So Popular?, 11 STAN.

2. 116 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 85:115
also exacerbated by unequal treatment in sentencing. The American Bar
Association (“ABA”) has called for the elimination of such disparities in
sentencing for cocaine offenses: “We continue to believe that Congress
should amend federal statutes to eliminate the mandatory differential
between crack and powder cocaine and that the Commission should
promulgate guidelines that treat both types of cocaine similarly.” 5
Professors Franklin Zimring and Sam Kamin conducted a study on the
impact of California’s Three Strikes and You’re Out Legislation on crime
and punishment, concluding that reduction in the crime rate as a result of
imposing three strikes was minimal. 6 In fact, according to their study of
three cities: San Francisco, Los Angeles, and San Diego, the Three Strikes
law reduced California crime by only six-tenths of one percent. 7
Since its implementation, the Three Strikes law has had a major
effect on the . . . prison population. Since 1994, the courts have
sent over 80,000 second strikers and 7,500 third strikers to state
prison. . . . As of December 31, 2004, there were almost 43,000
inmates serving time in prison under Three Strikes law, making
up about 26 percent of the total prison population. 8
Interestingly, the sentiments of California voters who want criminals
to be locked up under toughened sentences are at odds with their opposition
to spending more money to build more prisons. 9 The nonpartisan Public
Policy Institute of California presented survey findings that showed just
thirty-four percent of the public supported more prison funding while
nearly two-thirds opposed it. 10 Similarly, the Texas prison officials are
overwhelmed with a staggering prison population, which is draining the
state’s prison budget. In response, Texas politicians are considering
alternatives to incarceration, including early parole, as well as drug and
L. & POL’Y REV. 9, 13 (1999) (“The relative ineffectiveness of more and longer prison
sentences in reducing crime is well known among criminologists and practitioners in the
field of a criminal justice.”).
5. Eliminating Disparities in Sentencing for Cocaine Offenses, Before the U.S.
Sentencing Commission, Nov. 14, 2006, at 2, available at
http://www.ussc.gov/hearings/11_15_06/Saltzburg-ABAtestimony.pdf (statement of
Stephen A. Saltzburg on behalf of the American Bar Association).
6. ZIMRING ET AL., CRIME AND PUNISHMENT IN CALIFORNIA: THE IMPACT OF THREE-
STRIKES AND YOU’RE OUT 86 (1999).
7. Id. at 66.
8. LEGISLATIVE ANALYST’S OFFICE, A PRIMER: THREE STRIKES-THE IMPACT AFTER
MORE THAN A DECADE 15 (Oct. 2005), available at
http://www.lao.ca.gov/2005/3_Strikes/3_strikes_102005.pdf.
9. See David Lesher, Crime or Punishment, L.A. TIMES, Feb. 18, 2007, at 2, available
at 2007 WLNR 3229458. Colorado is also grappling with the problem of prison
overcrowding and recidivism. See Ann Imse, Revolving Door to State Prisons, ROCKY
MOUNTAIN NEWS, Feb. 16, 2007, at 34, available at 2007 WLNR 3060813.
10. Lesher, supra note 9.

3. Winter 2008] RACE AND AMERICAN CRIMINAL JUSTICE 117
alcohol treatment. 11 On the national level, the federal prison population is
also swelling; and Congress will eventually have to address the prison
dilemma as well. 12 “[T]he federal prison population grew from 133,921 in
1999 to 191,988 in September” of 2006. 13 The Justice Department’s
Bureau of Prisons, in trying to accommodate overcrowding and
understaffing, has been operating at 130 percent or more of capacity.14
These sobering facts support the growing concern that the federal and state
governments may have to focus on effective alternatives.
The ABA recognizes the seriousness of issues facing the American
justice system, and has concluded that America’s criminal justice systems
are too heavily relying on incarceration, and more effective alternatives are
necessary. 15 To this end, the ABA Justice Kennedy Commission has made
recommendations to address “sentencing and incarceration issues, racial
and ethnic disparities in criminal justice systems, prison conditions and
prisoner reentry issues, and pardons and clemency processes.” 16 The
Commission recommends programs that help inmates transition back into
communities and “provide[s] alternatives to incarceration for offenders
who would benefit from substance abuse and mental illness programs.” 17
Professor Stephen Saltzburg, chair of the Commission, remarked, “[t]hese
recommendations are intended to make our criminal justice systems more
effective and to utilize our limited resources more efficiently[.]” 18
Likewise, criminologist Elliot Currie suggests that the justice system
should emphasize crime prevention, and sincere efforts should be made to
integrate offenders into society instead of locking people behind bars. 19
Against this backdrop, this article makes some casual observations
about crime, policing, sentencing, and criminal justice. Aside from the
occasional consideration of race and criminal justice in conjunction with
one another, the American justice system is typically considered in its
ordinary terms: punishment for offenders, regardless of the race or class of
inmates. A closer look would reveal that African Americans are more
likely victimized by crime than are other groups, and African Americans
exhibit higher rates of serious offending and/or lengthier criminal histories
than other groups. This is reflected in the composition of the prison
11. See Seth Stern, Lean Times Spur Hard Look at Prison Population Boom, CQ
WEEKLY, Sept. 8, 2006.
12. Id.
13. Id.
14. Id.
15. American Bar Association Report Proposes Changes to Criminal Justice System,
DAILY REC. (Rochester, N.Y.), June 28, 2004, available at 2004 WLNR 19602758.
16. Id.
17. Id.
18. Id. (quoting Professor Stephen Saltzburg, chair of the ABA Justice Kennedy
Commission).
19. See ELLIOT CURRIE, CRIME AND PUNISHMENT IN AMERICA 2 (1998).

4. 118 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 85:115
population. 20 “For property offenses, African Americans constituted 32
[percent] of arrests in 1996, disproportionate to their 13 [percent] share of
the national population.” 21 For violent crimes, African American offense
“rates are considerably higher than for other groups, accounting for 43
[percent] of those arrests in 1996.” 22 Since 1980, the “war on drugs” has
been the most significant factor contributing to the rise of prison and jail
populations. 23 Drug policies have also had a disproportionate impact on
African Americans and have exacerbated the racial disparities that already
existed within the criminal justice system. This has come about in two
ways: first, there has been an overall increase of drug offenders in the
criminal justice population; and second, many of these drug offenders are
African Americans. 24 These statistics demonstrate the need for the reforms
such as the development of drug courts that divert addicts from prison and
supervise their recovery.
This article makes three interrelated arguments about the real-world
application of criminal law and procedure: (1) criminal sentencing laws
such as California’s Three Strikes Law and California’s Penal Code section
148.6, which criminalizes the filing of false complaints against police
officers, are shortsighted, have fallen short of their intended results, and
their enforcement have had a disproportionate effect on minority
communities; (2) the issue of cross-racial eyewitness identification in the
context of rules of evidence in the courtroom has demonstrated that social
science has been useful in understanding the influence of race in criminal
trials; and (3) existing criminal procedure jurisprudence has proven to
create burdens on criminal defendants. These arguments reinforce the
interplay between race, crime, and justice, and implicitly make the
assertion that the role of discretion in the criminal justice system and
manner in which these discretionary actions, when aggregated together, can
lead to racial unfairness. Professor David Cole argues that race plays an
improper role in the administration of criminal justice and that if nothing
significant is done, the probability of racial inequalities will exacerbate the
crime problem. 25 This idea needs to be explored in greater detail than the
current literature on criminal punishment and race jurisprudence has
provided thus far.
20. See MARC MAUER, THE CRISIS OF THE YOUNG AFRICAN AMERICAN MALE AND THE
CRIMINAL JUSTICE SYSTEM 2, 4 (1999).
21. Id. at 4.
22. Id.
23. See Marc Mauer, Why Are Tough on Crime Policies So Popular?, 11 STAN. L. &
POL’Y REV. 9, 10 (1999) (arguing that Three Strikes was not the primary reason for the
falling crime rate).
24. Id. at 10, 11, 15, 16.
25. See DAVID COLE, NO EQUAL JUSTICE: RACE AND CLASS IN THE AMERICAN
CRIMINAL JUSTICE SYSTEM 1 (1999).

5. Winter 2008] RACE AND AMERICAN CRIMINAL JUSTICE 119
I. DISPROPORTIONATE EFFECT ON MINORITY COMMUNITIES
Two California laws, the Three Strikes Law and Penal Code section
148.6, as well as similar laws across the nation, have had a detrimental
effect on minority communities. Their costs have outweighed their
effectiveness. First, California’s Three Strikes Law (“Three Strikes”) was
passed by the California Legislature, and later by voters. The law makes
life sentences mandatory for third strikes, with no parole possible for 25
years. The chief reason for its broad sweep is a unique rule, counting any
felony as a third strike.
In a collaborative work, Professor Franklin Zimring, Gordon Hawkins
and Sam Kamin, argue that Three Strikes is not working. In their book
entitled, Punishment and Democracy, 26 the authors reveal that California’s
Three Strikes is a poorly drafted law that causes functional and
constitutional problems, such as disproportionate and, sometimes, extreme
sentences. 27 It was quite possible that California voters did not realize the
severity of the typical sentences that would be imposed under the Three
Strikes law. According to the authors, “[w]hereas most penal laws are
designed to deliver less drastic changes than they advertise—to bark louder
than they bite—the California statute was designed to operate even more
broadly than its specialized title would suggest. [Three Strikes] was a law
designed to bite louder than it barked.” 28
Due to Three Strikes being seemingly at odds with the language of the
Eighth Amendment, the application of the law has resulted in considerable
debate over the constitutionality and propriety of such laws. Supporters of
Three Strikes reason that such laws are necessary to keep serious criminals
behind bars. 29 Additionally, former California Governor Gray Davis says,
“people who are guilty of three strikes are generally guilty of many more
crimes, and it has led to a great increase in public safety over the past
decade.” 30 On the other hand, critics of Three Strikes argue that the law
sweeps beyond its ambit, by subjecting even offenders who have
committed non-serious felonies, to harsh and lengthy sentences. 31
Accordingly, Professor Stephen Saltzburg suggests that,
26. See FRANKLIN E. ZIMRING, ET AL., PUNISHMENT AND DEMOCRACY: THREE STRIKES
AND YOU’RE OUT IN CALIFORNIA (2001).
27. See id.
28. See id. at ix.
29. See Bob Egelko, “Three Strikes” Ruled Unjust in Shoplifting Convictions, S.F.
CHRON., Feb. 8, 2002, at A1; but see Marc Mauer, Why Are Tough on Crime Policies So
Popular?, 11 STAN. L. & POL’Y REV. 9 (1999) (arguing that Three Strikes was not the
primary reason for the falling crime rate).
30. David Kravets, Supreme Court Upholds Long Sentences Under Three-Strikes Laws
for Repeat Criminals, Mar. 6, 2003, available at
http://www.cjcj.org/press/three_strikes.html.
31. Id.

6. 120 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 85:115
[n]ot only are mandatory minimum sentences often harsher than
necessary, they too frequently are arbitrary, because they are
based solely on “offense characteristics” and ignore “offender
characteristics.” In addition, mandatory minimum sentences can
actually increase the very sentencing disparities that they, in
theory at least, are intended to reduce. 32
A few years ago, the debate was settled by the U.S. Supreme Court.
In Lockyer v. Andrade 33 and Ewing v. California, 34 a pair of 5-4 decisions,
the U.S. Supreme Court left intact the nation’s toughest sentencing law,
and most likely guaranteed the survival of laws in many states that
followed California’s lead by imposing harsh prison terms for repeat
offenders. 35 In both cases, Justice Sandra Day O’Connor, writing for the
majority of the Court, ruled to uphold California’s Three Strikes law. The
Court held that the California Legislature had the “broad discretion to
fashion a sentence that fits within the scope of the proportionality
principle” 36 and that the gross disproportionality principle was not violated
when Andrade was sentenced to two consecutive terms of 25 years to life
in prison. 37 In Ewing, after attempting to more clearly define the existence
and contours of any proportionality requirement contained in the Eighth
Amendment, the Court then applied the principle to the facts of the case. 38
Like prior Eighth Amendment cases before it, the opinion is not a “model
of clarity,” and it is still not entirely clear whether the Eighth Amendment
contains a proportionality requirement, and if so how to apply it. 39
Nevertheless, the constitutionality of the Three Strikes law is seemingly no
longer in doubt.
For all practical purposes, the rulings will make it “extremely difficult
to win court review of sentences.” 40 Professor Zimring suggests that the
“principal message [of Andrade and Ewing] is [that it is] business as
32. Eliminating Disparities in Sentencing for Cocaine Offenses, Before the U.S.
Sentencing Commission, Nov. 14, 2006, at 2, available at
http://www.ussc.gov/hearings/11_15_06/Saltzburg-ABAtestimony.pdf (statement of
Stephen A. Saltzburg on behalf of the American Bar Association).
33. 538 U.S. 63 (2003).
34. 538 U.S. 11 (2003).
35. See e.g., Dana Wilkie, Divided Court Upholds State’s 3-Strikes Law, SAN DIEGO
UNION-TRIB., Mar. 6, 2003, at A1; Joan Biskupic, Tough Crime Laws OK’d, USA TODAY,
Mar. 6 2003, at 1A, available at http://www.usatoday.com/news/washington/2003-03-05-
crime-law-usat_x.htm; David Steinberg, Commendable Restraint: Supreme Court Acted
Appropriately in Three-Strikes Ruling, SAN DIEGO UNION-TRIB., Mar. 12, 2003, at B7.
36. Andrade, 538 U.S. at 65.
37. Id. at 74 n.1.
38. See Ewing, 538 U.S. 11.
39. Id. at 31-32 (Scalia & Thomas, JJ., concurring) (concluding that the Eighth
Amendment does not contain a proportionality requirement).
40. National Public Radio: All Things Considered (National Public Radio, Mar. 5,
2003), available at 2003 WL 16702623.

7. Winter 2008] RACE AND AMERICAN CRIMINAL JUSTICE 121
usual.” 41 In fact, the legal community is now reacting in divergent ways.
Ninth Circuit Court of Appeals Judge Harry Pragerson has ignored U.S.
Supreme Court precedent, by dissenting from unpublished affirmances. 42
Even before trial, some Los Angeles prosecutors have “halted prosecution
of most nonviolent third-strikers” in cases where presiding judges would
strictly adhere to following recent judicial precedent. 43
Federal Judge Nancy Gertner refused to apply a three strikes recidivist
sentencing law to an African American defendant in Massachusetts, who
had been convicted of his third offense. 44 Because his prior convictions
had been automobile-related and minor drug charges (not reflecting a
history of violence), and taking judicial notice of how African American
motorists are frequently subjected to police profiling and suspicions, so that
those prior convictions could easily have been the product of racism, Judge
Gertner refused to apply the three strikes law. 45 Judge Gertner concluded
that the defendant’s record overstated his culpability and the likelihood of
his recidivism, and therefore sentenced him, instead to the shorter sentence
of a non-recidivist first or second offender. 46
The vast majority of police minority interactions are routine instances
of police abuse that often go unnoticed. Often, young African American
males have been targeted by law enforcement under the guise of
investigative profiling. 47 Undoubtedly, police brutality has shaped the
history of African Americans and the criminal justice system. 48
A few years ago, in Chaker v. Crogan, 49 the issue of police
misconduct was addressed when the U.S. Court of Appeals for the Ninth
Circuit overturned a 2002 California Supreme Court decision, 50 which held
that California Penal Code section 148.6 does not violate free speech rights
embodied in the First Amendment and that statutory provisions governing
offenses of knowingly filing a false charge of police misconduct are not
41. Matt Krupnick, Supreme Court Upholds Three-Strikes Punishment, CONTRA
COSTA TIMES, Mar. 6, 2003, at a1 (quoting Professor Zimring).
42. Jason Hoppin, Judge Bucks Third-Strike Rules, THE RECORDER (San Francisco),
May 28, 2003, at 1.
43. Nicholas Riccardi, Prosecutors Seek Fewer 3rd Strikes, L.A. TIMES, May 27,
2003, at B1.
44. See United States v. Leviner, 31 F. Supp. 2d 23 (D. Mass. 1998).
45. See id. at 24.
46. Id. at 23.
47. See DAVID A. HARRIS, PROFILES IN INJUSTICE: WHY RACIAL PROFILING CANNOT
WORK (2002); see also DAVID A. HARRIS , GOOD COPS: THE CASE FOR PREVENTIVE POLICING
(2005).
48. See MARC MAUER, THE CRISIS OF THE YOUNG AFRICAN AMERICAN MALE AND THE
CRIMINAL JUSTICE SYSTEM 5 (1999).
49. 428 F.3d 1215 (9th Cir. 2005).
50. People v. Stanistreet, 58 P.3d 465, 473 (Cal. 2002), cert. denied, 538 U.S. 1020
(2003).

8. 122 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 85:115
facially overbroad. 51 The origins of section 148.6 of the California Penal
Code can be traced to the Rodney King riot in March 1991, after which law
enforcement agencies throughout the state revised their citizen complaint
procedures to promote greater accountability on the part of their “line
officers.” In 1995, the California legislature ratified California Penal Code
section 148.6, making it a crime to knowingly file a false citizen
complaint. 52 Section 148.6 created an exception to the rule protecting
citizen complainants from criminal defamation prosecutions. Through the
enactment, California law treated one subcategory of citizen complaints
against public officials—complaints against peace officers—differently
from all others.
Two related themes run through the Chaker decision: (1) avenues for
citizens to voice complaints against the police must be available; and (2)
independent citizen review boards can serve as checks on police conduct.
To begin, Chaker’s importance stems from its potential impact on
citizens who want to file complaints against the police. Citizens may
become the targets of police abuse and misconduct. 53 In situations where
arrestees believe they may have been mistreated by a peace officer, the
opportunity to file a police complaint allows the arrestees to voice their
grievances or concerns about what could be misconduct by an officer.
However, difficulties remain in implementing laws against filing false
complaints against law enforcement officials. For example, who
determines whether a police officer is acting improperly under established
police department policy, or is merely being rude or inconsiderate but
lawful? Would an arrestee be able to determine whether handcuffs are on
too tight? If the arrestee is grabbed, pushed, or kicked, how could he seek
an inquiry into whether the physical contact was appropriate given the
circumstances of the arrest?
Next, in an effort to strike a balance between the interests of
protecting individuals from improper police methods and promoting
effective law enforcement, independently-operated review boards are one
possibility. For example, Denver has established an Office of the
Independent Monitor which conducts independent investigations of
uniformed personnel including Denver’s Police, Sheriff, and Fire
Departments, and makes recommendations about administrative and
51. Id. See also Bob Egelko, Court Backs Cops on Complaint Law; Falsely Accusing
Officers of a Crime, S.F. CHRON., Dec. 6, 2002, at A26 (“To the delight of police groups
and the dismay of civil libertarians, the state Supreme Court . . . upheld a California law that
makes it a crime to file knowingly false complaints against law enforcement officers.”).
52. 1995 Cal. Legis. Serv. page no. 590 (West) (enacting California Penal Code §
148.6). Section 148.6(a)(1) provides in pertinent part that, “every person who files any
allegation of misconduct against any peace officer . . . knowing the allegation to be false, is
guilty of a misdemeanor.” CAL. PENAL CODE § 148.6 (a)(1) (West 2006).
53. See Carlos Illescas, $610,000 Settles Police Shooting, DEN. POST, Feb. 8, 2007, at
A1.

9. Winter 2008] RACE AND AMERICAN CRIMINAL JUSTICE 123
disciplinary actions. The Citizen Oversight Board oversees the Office of
the Independent Monitor, and is responsible for: “(1) assessing whether the
Office of the Independent Monitor is effectively performing its duties; (2)
making recommendations regarding policy and training issues; . . . (4)
directing the Monitor to monitor or review certain cases; and (5) addressing
other issues of concern to the community and other interested
stakeholders.” 54
Notably, the Office of the Independent Monitor has an important role
given Denver’s recent refocus on combating gangs after the slaying of
Denver Broncos cornerback Darrent Williams in an early New Year’s Day
drive-by shooting. 55 Like in other cities, gangs have continued to represent
a pressing issue for Denver. 56 It is a problem that has compelled Denver
District Attorney to call for the revitalization of the Metro Denver Gang
Coalition, a task force to combat gangs and gang violence. 57
Likewise, in San Francisco, voters added police oversight reform and
accountability measures to the City Charter by passing an amendment
thereto. 58 The amendment restructures the San Francisco Police
Commission and grants additional powers to the civilian-run Office of
54. OFFICE OF THE INDEPENDENT MONITOR, CITY’S OVERSIGHT SYSTEM 1, (Denver,
Colo.), (Sept. 28, 2004), available at
http://www.denvergov.org/Portals/374/documents/City's%20Oversight%20System.pdf.
55. See Christopher N. Osher & Felissa Cardona, $460,000 Sought by DA to Battle
Denver’s Gangs, DEN. POST, Feb. 22, 2007, at A1; Christopher N. Osher, DA Refines Gang-
Fight Plan, DEN. POST, Mar. 6, 2007, at B2.
56. See April M. Washington, Pressure on Mayor to Crush Gang Problem, ROCKY
MOUNTAIN NEWS, Feb. 10, 2007, at 4, available at 2007 WLNR 2666448.
57. Id. See Christopher N. Osher, “Police, Schools, Service Providers and the Faith-
Based Community: Everyone is at the Table to Say, ‘I’m Prepared to do What I Can.’” All
Are in to Go All Out vs. Gangs, DEN. POST, Mar. 8, 2007, at A1; Felisa Cardona, Safety in
Crime Numbers Denver Reports 10 Percent Decline, DEN. POST, Feb.14, 2007, at B1. An
interesting related issue combining gangs and the First Amendment are anti-gang statutes.
See e.g., Chicago v. Morales, 527 U.S. 41 (1999); People ex rel. Gallo v. Acuna, 929 P.2d
596 (Cal. 1997); Kim Strosnider, Anti-Gang Ordinances After City of Chicago v. Morales:
The Intersection of Race, Vagueness Doctrine, and Equal Protection in the Criminal Law,
39 AM. CRIM. L. REV. 101, 102 (2002) (exploring the vagueness doctrine and its influence
on communities’ efforts to control gangs and shape public order); Matthew Mickle
Werdegar, Enjoining the Constitution: The Use of Public Nuisance Abatement Injunctions
Against Urban Street Gangs, 51 STAN. L. REV. 409 (1999); Edson McCellan, Note, People
ex rel. Gallo v. Acuna: Pulling in the Nets on Criminal Street Gangs, 35 SAN DIEGO L. REV.
343 (1998); Bart H. Rubin, Hail, Hail, The Gangs Are All Here: Why New York Should
Adopt A Comprehensive Anti-Gang Statute, 66 FORDHAM L. REV. 2033 (1998).
58. Demian Bulwa, Police Union Taps Harris in D.A. Runoff; Ammiano Backs
Incumbent Hallinan, S.F. CHRON., Nov. 27, 2003, at A21; Press Release, ACLU of Northern
Cal., S.F. Bd. of Supervisors Approves to Charter Amendment to Strengthen Police
Accountability (July 16, 2003), available at
http://www.aclunc.org/news/press_releases/san_francisco_board_of_supervisors_approves_
to_charter_amendment_to_strengthen_police_accountability.shtml.

10. 124 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 85:115
Citizen Complaints. 59 The amendment is consistent with the goal of
having a properly administered complaint review system serving both the
interests of the police and the interests of the community. 60
In sum, through such review boards and oversight measures, the
interests of the state in reviewing credible allegations of police misconduct
may be better served, as these neutral civilian review boards mitigate the
risk of placing a person in the precarious position of having to think twice
before lodging any formal allegation of misconduct with the police
department.
II. SOCIAL SCIENCE AND THE RULES OF EVIDENCE IN COURT: CROSS-
RACIAL EYEWITNESS TESTIMONY
Social science has informed conventional understandings of the
influence of race in law. 61 There has been a growing body of social science
research that reveals the important role in which race plays in assessing the
reliability of witness identification when the witness and the person
identified are of the same or of different races. 62
59. S.F. Bd. of Supervisors Approves to Charter Amendment to Strengthen Police
Accountability, supra note 58; see e.g., S.F., Cal. Consolidated Municipal Election,
Proposition H: Police Commission/Office of Citizen Complaints (Nov. 4, 2003), available
at http://sfpl4.sfpl.org/pdffiles/November4_2003.pdf. The Office of Citizen Complaints
(“OCC”) “operates under the purview of the city Police Commission. Commission
members and the OCC director serve at the mayor’s pleasure.” Herbert A. Sample, S.F.
Board to Tackle Police Reforms A Possible Ballot Measure Would Aim to Strengthen The
Agency That Reviews Citizen Complaints Against Officers, SACRAMENTO BEE, July 13,
2002, at A3 (“The city charter requires the Police Department to provide ‘full and prompt
cooperation’ with the OCC, which also enjoys investigatory powers, though it cannot issue
subpoenas.”). The Charter and the SFPD’s regulations require the Department to promptly
and fully cooperate with OCC investigations. Id. Despite this unequivocal mandate, the
Department has hampered OCC’s investigations in significant ways. Id. See generally
Mark Schlosberg, Op-Ed., Public Eyes: ‘Fajitagate’ Scandal Puts Police Accountability at
Forefront, ACLU N. CAL., May 22, 2003,
http://www.aclunc.org/news/opinions/public_eyes_'fajitagate'_scandal_puts_police_account
ability_at_forefront.shtml (last visited July 12, 2008) (“According to the OCC report, the
Department is lax in handing out discipline and the obstruction and delays cited in the report
send a signal to rank and file officers that misconduct will not be taken seriously. More
importantly, the Police Commission, which oversees the Police Department, has done
nothing to address these issues and, in fact, has at times been complicitous in undermining
the OCC.”).
60. See Harold Beral & Marcus Sisk, Note, The Administration of Complaints by
Civilians Against the Police, 77 HARV. L. REV. 499 (1964) (noting that almost every city
had a system in place to process and investigate citizen complaints of police misconduct).
61. See Ian F. Haney Lopez, The Social Construction of Race: Some Observations on
Illusion, Fabrication, and Choice, 29 Harv. C.R.-C.L. L. REV. 1, 5-6 (1994) (“Race may be
America’s single most confounding problem, but the confounding problem of race is that
few people seem to know what race is.”).
62. See generally Cindy J. O’Hagan, Note, When Seeing is Not Believing: The Case
for Eyewitness Expert Testimony, 81 GEO. L.J. 741 (1992); Christopher M. Walters,

11. Winter 2008] RACE AND AMERICAN CRIMINAL JUSTICE 125
“Legal observers have [also] long recognized that cross-racial
identifications by witnesses are disproportionately responsible for wrongful
convictions.” 63 In her law review article, Cross-Racial Identification
Errors in Criminal Cases, Professor Sheri Lynn Johnson analyzes the
problem of unreliable cross-racial identifications, and concludes that there
is a much greater possibility of error when the races are different than when
they are the same. 64 The core of Professor Johnson’s legal scholarship is
built upon the earlier groundbreaking studies completed by psychology and
law professor Elizabeth Loftus. In her book, Eyewitness Testimony, 65
Loftus presents a compelling thesis: eyewitness testimony is not always
accurate or reliable. Furthermore, eyewitness testimony has been the basis
for falsely identifying, convicting, and even jailing innocent people. 66
Loftus’ research provides empirical proof that inaccurate eyewitness
identification undermines the reliability and integrity of courtroom
testimony. The findings in Eyewitness Testimony may help to illustrate the
importance of expert witness testimony in criminal cases. The influence of
race in eyewitness identifications, and the inconsistent use of expert
testimony by the courts will likely continue. Perhaps the most reasonable
proposal is to routinely admit expert testimony to inform the jury and to
provide it with reasons to be skeptical. While the admittance of expert
testimony is not a panacea for the problem of inaccurate witness
identification, it would certainly assist judges and juries in understanding
the importance of accurate eyewitness testimony. 67
In State v. Cromedy, 68 the Supreme Court of New Jersey addressed the
issue of whether a cross-identification jury instruction should be required in
particular cases prior to the establishment of a substantial agreement in the
scientific community that cross-racial recognition impairment of an
Comment, Admission of Expert Testimony on Eyewitness Identification, 73 CAL. L. REV.
1402 (1985).
63. Sheri Lynn Johnson, Cross-Racial Identification Errors in Criminal Cases, 69
CORNELL L. REV. 934, 935-36 (1984); see also PATRICK M. WALL, EYE-WITNESS
IDENTIFICATION IN CRIMINAL CASES 122-25 (1965); MARTIN YANT, PRESUMED GUILTY:
WHEN INNOCENT PEOPLE ARE WRONGLY CONVICTED 99 (1991); BRIAN L. CUTLER & STEVEN
D. PENROD, MISTAKEN IDENTIFICATION: THE EYEWITNESS, PSYCHOLOGY, AND THE LAW 104
(1995); Fred L. Borch, Witness for the Defense, 134 MIL. L. REV. 243, 243-44 (1991); Sheri
Lynn Johnson, Black Innocence and the White Jury, 83 MICH. L. REV. 1611, 1615 (1985).
64. See Sheri Lynn Johnson, Cross-Racial Identification Errors in Criminal Cases, 69
CORNELL L. REV. 934 (1984); see also Robin Parker, “They All Look Alike” - A Historical
Perspective on State v. Cromedy, N.J. LAW., Aug. 2000, at 57. (“After centuries of
experience, courts have concluded that eyewitness identifications of strangers may be
unreliable evidence unless other facts link a defendant to the crime. The problem is
especially thorny when a witness identifies a stranger of a different race.”).
65. See ELIZABETH F. LOFTUS, EYEWITNESS TESTIMONY (1996).
66. Id. at xi.
67. See Henry F. Fradella, Why Judges Should Admit Expert Testimony on the
Unreliability of Eyewitness Testimony, 2006 FED. CTS. L. REV. 3, 3-5 (2006).
68. 727 A.2d 457 (N.J. 1999).

12. 126 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 85:115
eyewitness is significant enough to warrant a special jury instruction. 69 In
Cromedy, the court reviewed a rape and robbery in which a cross-racial
identification was made seven months after the offense occurred. 70 Based
on the victim’s inability to identify the defendant in a photograph, the
seven-month investigation lag time, and the racial differences between the
defendant and the victim, defense counsel sought a cross-racial
identification jury instruction. The proposed jury instruction was, “[y]ou
may consider, if you think it is appropriate to do so, whether the cross-
racial nature of the identification has affected the accuracy of the witness’s
original perception and/or accuracy of a subsequent identification.” 71
Cromedy argued that cross-racial impairment of an eyewitness is a
“scientifically accepted fact.” 72 In addition, Cromedy maintained that
courts can take “judicial notice of the fallibility of trans-racial
identifications and approve the report of the Task Force that recommended
adoption of a cross-racial identification jury charge.” 73 The State
contended that “there is no consensus within the scientific community that
an ‘own-race’ bias exists” or whether it affects “real life” identifications. 74
The State urged the supreme court not to endorse a cross-racial jury
instruction until “there is general acceptance that cross-racial impairment
exists.” 75 The court held that “the trial court’s failure to submit defendant’s
requested charge on cross-racial identification . . . constituted reversible
error.” 76
More recently, the Maryland Court of Appeals reversed two
defendants’ convictions and vacated their sentences when it found that the
trial judge erred in precluding the defendants from discussing cross-racial
identification in closing arguments. 77 The court concluded that when the
single piece of evidence introduced against a defendant is eyewitness
testimony, the defense is entitled to argue about the inaccuracies of cross-
racial identification in closing argument. 78 In particular, it found that the
trial court’s denial of the victim’s testimony regarding her enhanced ability
to recognize faces, raised during trial in its closing argument, was an abuse
of discretion. 79
69. Id. at 458.
70. Id.
71. Id. at 460.
72. Id.
73. Id. at 460-61.
74. Id. at 461.
75. Id.
76. Id. at 457.
77. Smith v. State, 880 A.2d 288, 289 (Md. 2005).
78. Id. at 300.
79. Id.

13. Winter 2008] RACE AND AMERICAN CRIMINAL JUSTICE 127
III. RACE REFLECTED IN CRIMINAL PROCEDURE
All too often, racial minorities have been disadvantaged by criminal
procedure rules that are race-neutral, as the rules have had a
disproportionate effect on communities of color. The subject of criminal
procedure will be examined with regard to the Fourth Amendment
exclusionary rule and third-party residential searches.
Following a majority of circuits, 80 the U.S. Court of Appeals for the
Sixth Circuit in United States v. Pruitt 81 recently held that “reasonable
belief” is a lesser standard than “probable cause,” and that only a
reasonable belief that a suspect is within the residence, based on common
sense factors and the totality of circumstances, is required and is sufficient
to allow officers to enter a residence to enforce an arrest warrant. 82 Pruitt
concerned a defendant’s “appeal[] of the district court’s grant of the
Government’s motion for reconsideration of [defendant’s] motion to
suppress evidence obtained during a protective sweep of a third-party’s
residence.” 83
When considering any search, it is important to remember the
constitutional protections in place which guard against unreasonable
searches and seizures. Particularly, the Fourth Amendment protects
individuals from unlawful search and seizure. A search is unreasonable
where it is performed by a government agent, the defendant had a
reasonable expectation of privacy and there was no warrant based on
probable cause. 84 Probable cause exists where known facts and
circumstances, of a reasonably trustworthy nature, are sufficient to justify a
man of reasonable caution or prudence in the belief that a crime has been or
is being committed. 85 Probable cause is what would lead a person of
reasonable caution to believe that something connected with a crime is on
the premises of a person or on the person themselves; it is also the sum
total of layers of information and synthesis of what police have heard,
know, or observe as trained officers. 86 If no warrant based on probable
80. See United States v. Barerra, 464 F.3d 496 (5th Cir. 2006); United States v. Route,
104 F.3d 59, 62 (5th Cir. 1997); United States v. Risse, 83 F.3d 212, 217 (8th Cir. 1996);
United States v. Lauter, 57 F.3d 212, 215 (2d Cir. 1995); United States v. Edmonds, 52 F.3d
1236, 1248 (3d. Cir. 1995); United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005).
81. 458 F.3d 477 (6th Cir. 2006).
82. Id. at 482, 483; see also Robert F. Ewald, The Lawful Scope of a Search Warrant
Issued For a “Premises,” 8 J. SUFFOLK ACAD. L. 19, 23 (1992).
[T]he protections of the exclusionary rule extend only to the area of a defendant’s
reasonable expectation of privacy. Probable cause must set forth in the search
warrant to authorize the invasion of that protected area. This area must be
particularly described in the warrant. . . . [T]his requirement must be viewed in a
common sense manner. Id.
83. Pruitt, 458 F.3d at 478.
84. See United States v. Jacobsen, 466 U.S. 109, 113 (1984).
85. Draper v. United States, 358 U.S. 307, 313 (1959).
86. See id.

14. 128 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 85:115
cause exists, there must be an exception to the warrant requirement, in
order for the search to be legal. 87
The Sixth Circuit’s holding in Pruitt that a law enforcement officer’s
reasonable belief — and not probable cause — that a suspect is within a
residence is sufficient to enable him to enter such residence to enforce an
arrest warrant was far from surprising. If nothing else, recent decisions
such as Pruitt reinvigorate the debates about the exclusionary rule, and in
particular, discussions concerning the issue of reasonableness versus
probable cause. As Pruitt demonstrates, because Supreme Court rulings
have not offered clear standards for federal and state law enforcement
officers, it has been up to lower courts to decide its meaning and place
within the context of the other Fourth Amendment standards.
Here I argue that the Pruitt decision was wrongly decided, for
different reasons. The reasonable belief standard announced and applied in
Pruitt is insufficient in protecting the heightened privacy interest in the
home, which, as mentioned earlier, dictates the requirement of a search
warrant for all nonconsensual and nonexigent searches in a private
dwelling.
In order to understand Pruitt, it is necessary to consider the
background created by earlier decisions of other circuits that ruled
similarly: that the consideration of common sense factors and the totality of
circumstances sufficiently formulate a reasonable belief that a suspect is on
the premises. In fact, even before Pruitt, a majority of federal courts held
that reasonable belief is a lesser standard than probable cause. In United
States v. Risse, 88 for example, the Eighth Circuit affirmed a district court’s
denial of a cross-appellant’s motion to suppress on the basis that the police
had a reasonable belief that appellant’s girlfriend, the subject of an arrest
warrant, resided with appellant at his home. 89 It was clear that the police
had a reasonable belief that the target of the arrest warrant was present at
the cross-appellant’s residence when the warrant was executed. The court
held that the officer “possessed legal authority to enter the residence
pursuant to a valid arrest warrant,” that “the seizure of evidence in plain
view was valid, and the . . . search warrant was supported by probable
cause.” 90
In a separate appellate decision, the Eleventh Circuit in United States
v. Magluta 91 reversed a district court’s order granting defendant’s motion
to suppress because the facts supported the marshals’ reasonable belief that
defendant was home at the time of the entry and the evidence discovered in
87. Id.
88. 83 F.3d 212 (8th Cir. 1996).
89. Id. at 215-17.
90. Id. at 217.
91. 44 F.3d 1530 (11th Cir. 1995).

15. Winter 2008] RACE AND AMERICAN CRIMINAL JUSTICE 129
plain view during a protective sweep was properly used to secure a search
warrant. 92 The court held:
[I]n order for law enforcement officials to enter a residence to
execute an arrest warrant for a resident of the premises, the facts
and circumstances within the knowledge of the law enforcement
agents, when viewed in the totality, must warrant a reasonable
belief that the location to be searched is the suspect’s dwelling,
and that the suspect is within the residence at the time of entry. 93
In a similar vein, the Fifth Circuit in United States v. Barrera, 94 found
that for entry into a third-party’s residence for a person named in an arrest
warrant, the police are required to exercise due diligence and have a
“reasonable belief.” The same court, a decade ago, offered in United States
v. Route, 95 the standard for determining the amount of due diligence
required to support a reasonable belief that a defendant lives at and is
present within a residence. In that case, police officers executed a valid
arrest warrant for defendant, Route, and found him outside of his
residence. 96 During the search for a co-defendant, for whom officers also
had a valid arrest warrant, officers found further evidence of Route’s
criminal activity inside his residence. 97 Route challenged the district
court’s denial of his motion to suppress evidence seized from his
residence. 98 The court held that the search of Route’s residence was
supported by a valid arrest warrant for the co-defendant and by the officer’s
reasonable belief that the co-defendant lived at the residence and was
within the residence at the time of entry. 99 The circuit court concluded that
the arresting officer had performed sufficient due diligence in concluding
that the co-defendant lived at the residence because the co-defendant’s
credit card applications, water and electricity bills, vehicle registration, and
mailing address confirmed that he lived at the residence. 100 The court
further concluded that the officer’s reasonable belief that the co-defendant
was within the residence at the time of entry was confirmed by the presence
of a vehicle in the driveway and noise from a television inside the
residence. 101
92. Id. at 1535.
93. Id.
94. 464 F.3d 496 (5th Cir. 2006).
95. 104 F.3d 59 (5th Cir. 1997).
96. Id. at 61.
97. Id. at 62.
98. Id. at 61.
99. Id. at 62, 63.
100. Id.
101. Id. at 63.

16. 130 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 85:115
In United States v. Thomas, 102 the U.S. Court of Appeals for the D.C.
Circuit affirmed a denial of defendant’s motion to suppress, concluding that
entry into defendant’s apartment was lawful based on its holding that “an
officer executing an arrest warrant may enter a dwelling if he has only a
‘reasonable belief,’ falling short of probable cause to believe, the suspect
lives there and is present at the time.” 103 During the early morning, Deputy
U.S. Marshals arrived at defendant’s apartment to execute a warrant for his
arrest in connection with a parole violation. 104 In dicta, the court noted
that, “[a]s for whether the officers had reason to believe Thomas would be
at home when they executed the warrant, the early morning hour was
reason enough.” 105
During the following year, in Pruitt, the issue was whether officers
may rely on an arrest warrant, coupled with reasonable belief that the
subject of the warrant is within a third-party’s residence, to enter that
residence to execute the warrant. 106 The defendant, Demetrius Pruitt,
argued that the officer did not have “probable cause based on an
uncorroborated anonymous tip and the statement of an unknown and
untested drug-seeking informant.” 107 The government argued “that a lesser
reasonable belief standard, and not probable cause, [was] sufficient to
allow officers to enter a residence to enforce an arrest warrant.” 108
Writing for the three-judge panel, 109 Circuit Judge David McKeague
began his formal analysis in the second part of the opinion by referencing
the leading case relied on by Pruitt: 110 Steagald v. United States. 111
Steagald addressed the rights of a third-party homeowner when police
entered his home to search for a non-resident suspect named in an arrest
warrant, and held that police must obtain a search warrant before entering
the third-party residence. 112 In that case, pursuant to an arrest warrant for
Ricky Lyons, Drug Enforcement Administration agents entered Gary
Steagald’s home to search for Lyons without first obtaining a search
warrant. 113 In his home the agents found incriminating evidence, and
arrested Steagald on federal charges. 114 Steagald moved to suppress all
evidence uncovered during the search of his home on the ground that it was
102. 429 F.3d 282 (D.C. Cir. 2005).
103. Id. at 286.
104. Id. at 284.
105. Id.
106. United States v. Pruitt, 458 F.3d 477, 486 (6th Cir. 2006) (Clay, J., concurring).
107. Pruitt, 458 F.3d at 482 (majority opinion).
108. Id.
109. Also sitting were Siler & Clay, JJ.
110. Pruitt, 458 F.3d at 481.
111. 451 U.S. 204 (1981).
112. Id. at 205-06.
113. Id. at 206.
114. Id. at 206-07.

17. Winter 2008] RACE AND AMERICAN CRIMINAL JUSTICE 131
illegally obtained because the agents had failed to obtain a search
warrant. 115 The motion was denied, he was convicted, and the Fifth Circuit
Court of Appeals affirmed. 116
The Supreme Court reversed the Fifth Circuit Court of Appeals, and
held that the government is precluded from contending to the Court that
Steagald lacked an expectation of privacy in his searched home sufficient
to prevail on his Fourth Amendment claim. 117 In robust dicta, the Court
stated:
[W]hile the warrant in this case may have protected Lyons from
an unreasonable seizure, it did absolutely nothing to protect
[Steagald’s] privacy interest in being free from an unreasonable
invasion and search of his home. Instead, [Steagald’s] only
protection from an illegal entry and search was the agent’s
personal determination of probable cause. In the absence of
exigent circumstances, we have consistently held that such
judicially untested determinations are not reliable enough to
justify an entry into a person’s home to arrest him without a
warrant, or a search of a home for objects in the absence of a
search warrant. We see no reason to depart from this settled
course when the search of a home is for a person rather than an
object. 118
In the view of the Pruitt court at least, Steagald was distinguishable.
“Steagald does not resolve the issue before us; namely whether officers
may rely on an arrest warrant, coupled with the reasonable belief that the
subject of the warrant is within a third-party’s residence, to enter that
residence to execute the warrant.” 119 The court instead referred to Payton
v. New York, 120 an earlier Supreme Court case, as controlling precedent.
There, the Supreme Court addressed the rights of a suspect in his own
home and held that the police may enter to arrest him when they have a
valid arrest warrant and reason to believe that he is inside, asserting that
“an arrest warrant founded on probable cause implicitly carries with it the
limited authority to enter a dwelling in which the suspect lives when there
is reason to believe the suspect is within.” 121
In Payton, New York detectives assembled evidence sufficient to
establish probable cause to believe that Theodore Payton had murdered the
manager of a gas station two days earlier, and six officers went to Payton’s
apartment the next day to arrest him, without a warrant (at the time
115. Id. at 207.
116. Id.
117. Id. at 208-09.
118. Id. at 213-14 (citation omitted).
119. United States v. Pruitt, 458 F.3d 477, 481 (6th Cir. 2006).
120. 445 U.S. 573 (1980).
121. Id. at 603.

18. 132 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 85:115
warrantless entries were authorized by New York statute). 122 Hearing
music and seeing lighting emanating from the apartment, but with no
response to their knock on the door, the officers used crowbars to break
open the door and enter the apartment. Although no one was inside, “in
plain view, . . . was a .30 caliber shell casing that was seized and later
admitted into evidence at Payton’s murder trial.” 123
As evident in Pruitt, the Court had previously held that police may
enter a suspect’s own home pursuant to an arrest warrant when there is
“reason to believe” the suspect is inside. 124 The Supreme Court reasoned
that “[i]f there is sufficient evidence of a citizen’s participation in a felony
to persuade a judicial officer that his arrest is justified [then] it is
constitutionally reasonable to require him to open his doors” to the police.
125
“Because an arrest warrant authorizes the police to [seize and] deprive
a person of his liberty, it necessarily also authorizes a limited invasion of
that person’s privacy interest when it is necessary to arrest him in his
home.” 126
Even when the two controlling Supreme Court cases are considered
together, they offer little guidance to lower courts. Curiously, under the
Payton-Steagald platform, to go into a third-party home without
permission, courts have required a “reason to believe,” a term used
interchangeably with “reasonable belief” and “reasonable grounds for
believing.” Just what any of those terms really mean remains unclear.
Nevertheless, the Pruitt court proceeded with its interpretation, and relied
on Payton, independent of Steagald. The Pruitt court was persuaded by the
government’s arguments that while a circuit-split exists on this issue, the
majority of courts have ruled that a “lesser reasonable belief standard, and
not probable cause, is sufficient to allow [the police] to enter a residence to
enforce an arrest warrant.” 127 With this in mind, the court then concluded
that the officers in the case had adequate information to meet this
reasonable belief standard based on common sense factors and the totality
of the circumstances. 128
In reaching its conclusion, the Sixth Circuit depended on the use of
“reasonable belief” and “probable cause” as construed in Payton. The court
surmised that under Payton, the Supreme Court intended different
standards for the term “probable cause” and “reasonable belief” to describe
the foundation for an arrest warrant, and that this is the rationale behind
using two different terms. 129 It professed that “[h]ad the Court intended
122. Id. at 576.
123. Id. at 576-77.
124. Payton, 445 U.S. at 603, quoted in Pruitt, 458 F.3d at 482.
125. Payton, 445 U.S. at 602-03.
126. Steagald v. United States, 451 U.S. 204, 214 n.7 (1981).
127. Pruitt, 458 F.3d at 482.
128. Id. at 485.
129. Id. at 484.

19. Winter 2008] RACE AND AMERICAN CRIMINAL JUSTICE 133
probable cause to be the standard for entering a residence, it would have
expressly stated so” and therefore two “different standards apply.” 130
Accordingly, the court reasoned: (1) Reasonable belief is established “by
looking at common sense factors and evaluating the totality of the
circumstances;” (2) “[T]he [officers] considered . . . his drug dealing past
and his street name, to develop a reasonable belief that Pruitt was in the
residence;” (3) “Our decision is consistent with the majority of our sister
circuits who have ruled that consideration of common sense factors and the
totality of the circumstances is sufficient to formulate a reasonable belief
that a suspect is on the premises;” (4) “Our holding contrasts with that of
the Ninth Circuit, which alone has ruled that reasonable belief is the
equivalent of probable cause in determining whether a suspect is within the
residence.” 131 But in a separate concurrence, echoing the Ninth Circuit in
United States v. Gorman, 132 Judge Eric Clay believed that the “reason to
believe” standard under Payton is the functional equivalent of “probable
cause.” 133 He stated that the “[c]ourt must ask whether the officers’ belief
that [the] Defendant was inside 2652 Meistser Road was an objectively
reasonable belief given the circumstances known to the officers at the
time.” 134
Similarly troublesome issues have arisen in Fifth Amendment
jurisprudence. In Davis v. United States, 135 the Supreme Court considered
the degree of clarity necessary for a custodial suspect to invoke the
Miranda rights to counsel after a waiver. 136 Significantly, Davis appears to
set forth a clear and concise rule of law. The decision purports to finally
decide the issue of how clearly a criminal suspect must assert his Fifth
Amendment right to counsel. 137 The Davis Court held that after a suspect
knowingly and voluntarily waives his Miranda rights, law enforcement
officers may continue their questioning until and unless the suspect clearly
requests an attorney. 138 The Court reasoned that although agents continued
to question Davis after he stated, “I think I want a lawyer before I say
anything else,” 139 the continued questioning did not violate the suspect’s
Fifth Amendment privilege against compulsory self-incrimination. 140
130. Id.
131. Id.
132. 314 F.3d 1105 (9th Cir. 2002).
133. Pruitt, 458 F.3d at 490 (Clay, J., concurring).
134. Id. at 490.
135. 512 U.S. 452 (1994).
136. Id. at 460-61.
137. Id. at 455.
138. Id. at 461-62.
139. Id. at 455.
140. See id. at 458.

20. 134 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 85:115
At first glance, this rule seems contrary to Miranda v. Arizona. 141
Under the Davis decision, if a suspect does not unambiguously request
counsel, law enforcement officers may continue questioning him. 142 Under
the Court’s new mandate, a suspect must clearly articulate his desire to
have counsel present, such that “a reasonable police officer in the
circumstances would understand the statement to be a request for an
attorney.” 143 Davis may be considered an advance for the interests of law
enforcement, and a setback for criminal suspects.
From the beginning, critics of Davis have charged that it marks a
departure from the Fifth Amendment’s requirement that the government
bear the entire burden of protecting an individual’s privilege against self-
incrimination. The Court in Miranda held that “[i]f the individual desires
to exercise his privilege, he has the right to do so. This is not for the
authorities to decide.” 144
These criticisms cannot be easily dismissed. While the Court’s new
limitations on ambiguous post-waiver request for counsel may make good
sense as a matter of public policy, the Court has yet to provide a convincing
explanation for its doctrinally unsupported decision. The Court seems
deeply uncertain about what the precise nature of the rule on ambiguous
requests for counsel should be. 145 The basic conceptual uncertainty
together with a series of unexplained doctrinal quirks, has confused and
confounded the state officials and lower-court judges who labor with the
decision at the ground level. 146
Despite these difficulties, limitations placed on ambiguous requests
for counsel under Davis seem destined to remain in place, at least for the
foreseeable future. The Davis decision allows the lower courts, as a
constitutional as well as a practical matter, to ignore ambiguous requests.
The different jurisdictions are now free to develop their own standard for
clarity, thereby creating even more uncertainty than before the Davis
decision. 147 Also, lower courts are confronted with cases which require the
second-guessing of police interrogators’ judgments that a request for
141. 384 U.S. 436 (1966).
142. Davis, 512 U.S. at 461-62.
143. Id. at 459.
144. Miranda, 384 U.S. at 480.
145. See In re State v. Collins, 937 So.2d 95 (Ala. 2006).
146. See David Aram Kaiser & Paul Lufkin, Deconstructing Davis v. United States:
Intention and Meaning in Ambiguous Requests for Counsel, 32 HASTINGS CONST. L.Q. 737,
767 (2005).
The Davis standard, at best, offers no practical guidance in this area. At worst, by
setting forth a standard of interpretation that allows meaning to be separated from
the speaker’s intention, Davis distances interpretation from this essential
determiner of meaning, encouraging both police and courts to engage in arbitrary
acts of interpretation. Id.
147. See People v. Critenden, 885 P.2d 887 (Cal.1994); State v. Hoey, 881 P.2d 504
(Haw. 1994).

21. Winter 2008] RACE AND AMERICAN CRIMINAL JUSTICE 135
counsel was ambiguous enough to alleviate the need for clarification.
Judges are then compelled to perform objective inquiries into the facts
surrounding the interrogation. With these important issues in mind, and the
crucial question that Justice Souter poses in his concurring opinion (“‘how
clear is clear?’” 148 ), it is time to attempt to understand the Davis rule on its
own terms.
Under Davis, an ambiguous invocation of an individual’s right to an
attorney after an initial valid waiver is ineffective (e.g., the sequence is
warning, waiver, questioning, and then an ambiguous statement). 149 The
question remains after Davis: does the Davis rationale apply to an initial
ambiguous response (e.g., sequence is a warning, followed by an
ambiguous statement)? I argue that it does not. That is, the Davis rationale
is limited to the post-waiver ambiguity, not an ambiguous request for
counsel in the context of the initial advisement of rights. Furthermore, if
Davis does not apply to the initial warning, then police officers would not
have to employ a clarification approach. Such an interpretation would
serve as a slight relief to defense attorneys in the trenches and appellate
courts struggling with this question.
In suggesting that Davis does not apply to pre-waiver ambiguity, I do
not mean to applaud the decision itself. In fact, I believe that the Davis
decision is inherently inconsistent. In fact, the inherently inconsistent
analysis of Miranda is troubling because it enables the Court to maneuver
in two directions at once. Alternatively, I argue that Miranda remains the
important source of the standard known as “Miranda rights,” which
positively mark the constitutional limits of custodial interrogations by law
enforcement. 150 The case also remains at the forefront of the debate about
a defendant’s constitutional rights and crime control. 151 For criminal
defendants, Miranda still stands as a shield against coercive police
questioning involving subtle, and sometimes not so subtle sophisticated
ploys, and trickery based on manipulation, persuasion, and deception. 152
Therefore, in situations where a suspect makes an ambiguous response
prior to a waiver of his Miranda rights, the Davis rule is not triggered.
148. Davis v. United States, 512 U.S. 452, 474 n.7 (1994) (Souter, J., concurring).
149. Id. at 461(majority opinion).
150. See Michael Edmund O’Neill, Undoing Miranda, 2000 BYU L. REV. 185, 232
(2000) (relaying that “[b]efore Miranda, no general right to assistance of counsel existed
during police interrogation.”); cf. Bruce G. Peabody, Nonjudicial Constitutional
Interpretation, Authoritative Settlement, and a New Agenda for Research, 16 CONST.
COMMENT. 63, 64 (1999) (explaining that politicians and commentators have debated for
centuries about who has the authority to interpret the Constitution, but the debate has
become even more intense in recent years).
151. See generally THE MIRANDA DEBATE: LAW, JUSTICE, AND POLICING (Richard A.
Leo & George C. Thomas III eds., 1998).
152. Id.

22. 136 UNIVERSITY OF DETROIT MERCY LAW REVIEW [Vol. 85:115
To sum up, unless Fourth and Fifth Amendment jurisprudence
embarks in a new direction, it is likely that the individual rights of the
accused will continue to be weakened.
CONCLUSION
All of the examples offered in this article offer strong support for the
proposition that criminal justice cannot be equally divided between good
guys and bad guys or between justice and injustice. Rather, criminal
justice and racial justice are complex subjects each deserving of deeper
consideration. A closer and more meaningful examination of the
continually evolving criminal justice system would uncover the real
reasons for crime, which would assist policymakers in developing
pragmatic measures to address the present day realities of crime and
punishment.