Document Type


Publication Title

Harvard Civil Rights-Civil Liberties Law Review

Publication Date



Notwithstanding claims that the election of President Barack Obama signals a post-racial epoch, one does not have to look far for evidence that race still matters. It is particularly evident in how we police, which remains very much racially inflected. Even when racial animus is absent, there often persists the perception that racial bias is present, even inevitable, as the recent firestorm over the arrest of Harvard Professor Henry Louis Gates attests to. Scholars such as Randall Kennedy have long argued that disparate treatment by police amounts to the imposition of a “racial tax.” But this comparison, while descriptively apt, falls short of capturing the complexity and interconnectivity of the harms resulting from disparate treatment. It is time for a broader argument. It is time to identify such disparate treatment, as well as the perception of disparate treatment, for what it is: a flaw in our claim of equal citizenship. This Article makes that argument.

To remedy this state of affairs, this Article proposes a new criminal procedure revolution, one that understands criminal procedure rights, and specifically the Fourth Amendment, as inextricably linked to citizenship rights. This new criminal procedure would re-conceptualize reasonable suspicion and consensual encounters, encourage randomization, and reinvigorate civil actions, all with a view of furthering the goal of equal citizenship. While these changes may not eliminate race-based policing entirely, they will move us significantly closer to the goal of equal citizenship. And they will move us closer to a post-racial America.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.