Guy Rubinstein
93 Geo. Wash. L. Rev. 789
Scholars have long regarded the prohibition against racially selective enforcement by the police as a dead letter. Formally, the Supreme Court forbids police officers from stopping or searching individuals based on race. In practice, the traditional evidentiary standard for proving selective enforcement is nearly insurmountable, and successful claims are rare. Remarkably, the Court has never specified the remedy judges should grant in criminal cases to victims of selective enforcement. Nevertheless, recent years have seen a revitalization of the doctrine of selective enforcement. An increasing number of state and federal courts have made proving selective enforcement much easier by relaxing the evidentiary standard claimants must satisfy. Additionally, lower courts have adopted suppression of incriminating evidence or dismissal of criminal charges as the remedy for successful claims. This Article explores these recent developments in selective enforcement remediation, which have largely escaped academic attention. Although celebrating the adoption of powerful remedies for selective enforcement, this Article critiques the justifications courts have provided for them. Despite the promises made by courts, suppression and dismissal are unlikely to serve as effective deterrents to selective enforcement. Nor will they necessarily help courts maintain their judicial integrity. Rather than relying on these two justifications, selective enforcement remedies should be grounded in the same goal that equal protection remedies have traditionally sought to promote—namely, corrective justice for victims of unconstitutional discrimination. Courts, therefore, should grant remedies aimed at eliminating the harmful effects suffered by victims of selective enforcement due to the police’s discriminatory conduct, to the greatest extent possible.
