SJC’s Ruling in Sweeting-Bailey Undermines Promises of Judicial Reform

December 22, 2021.

The defendant in Commonwealth v. Sweeting-Bailey, 488 Mass. 741 (2021), argued that a firearm discovered during a patfrisk should be suppressed, claiming that the traffic stop was a thin pretext to search for evidence of unrelated criminal activity without sufficient cause. The Massachusetts Supreme Judicial Court, however, upheld the search, ruling that it would not inquire into the officer’s subjective reason for pulling someone over, so long as objective evidence of an offense existed – even if that offense was exceedingly minor.

Our Take:

Eighteen months before publishing its opinion in Sweeting-Bailey, each justice of the SJC (as then-composed) penned a public letter which stated, in part, “as judges, we must look afresh at what we are doing, or failing to do, to root out any conscious and unconscious bias in our courtrooms[. T]o create … a place where all are truly equal … [w]e must challenge the untruths and unfair stereotypes about African-Americans that have been used to justify or nationalize their repression.” 

A laudable goal, but civil liberties are not an abstraction to which we commit only in theory or words.  

Yesterday, the SJC had, but fell short of, the opportunity to elevate words into actions.  As Chief Justice Budd bravely and correctly pointed out in disssent, it did worse than fail to act: its conclusions “not only ignore the reality of race-based policing, but also perpetuate it.” 

In the Court’s divided ruling, a majority made clear that it not only condoned race-based policing, it turned the very objection to these invidious tactics into grounds for criminal suspicion.  Worse, it did so not only for the objector, but to others solely for being in his company. 

It is difficult to imagine a fact pattern more laden with coded racism and racism-by-proxy as that endorsed by the majority in Sweeting-Bailey.  A car is stopped in a “high crime” area by detectives who, it appears, chose to detour from their “gang unit” assignment by deciding to enforce a “routine” lane change violation of a car, which just so happened to be occupied by youths which police labeled as “gang members.” Though officers were not investigating any criminal activity, let alone “gang” violence, the black passenger’s protests of harassment, in the majority’s view, justified a quantum leap to reasonable suspicion that someone in the car was hiding a gun. 

Suspicion may be grounded, in part, on specific facts informed by “officer experience,” “training,” or “common sense.”  Yet, none of those factors were at play here: the officers conceded that nothing in their general experience, or specific experience with the black male passenger, suggested the presence of a gun.  They cited no training which suggested the black male’s actions were consistent with illegal gun possession.  And common sense teaches that the black male’s protests of harassment were reasonably grounded in the history of race-based policing rather than the strained series of inferences which led these officers to contort an assertion of civil rights into a sinister act.  

As the dissenting justices pointed out, the majority opinion elevates speculation over fact.

Rather than acting upon the promise contained in its June, 2020 letter to “challenge the untruths and unfair stereotypes about African-Americans that have been used to justify or rationalize their repression,” the SJC turned to those very rationalizations by relying on rhetoric (“traffic stops are especially fraught with danger to police officers”) -which preceded, and in part led to, the sanctioning of police-sponsored violence on minority communities which prompted the June, 2020 letter in the first instance.

The Court’s ruling in Sweeting-Bailey underscores the need for the court – indeed, every stakeholder in the criminal justice system – to engage in the “uncomfortable[,] difficult conversations [and] challenging introspection” which is the condition precedent to the purging of the implicit bias which stains every surface of our justice system.  This condition precedent is necessary, yet far from occurring.  That is because, although there is no credible dispute that racism taints our system at every level, every participant in that system remains unwilling to ask:

• What have I done to contribute to this? 
• If racism exists, why is nobody responsible for it?  

Though a lack of introspection is an ongoing barrier to change, so too is the tacit prohibition against confronting bias.  When those among us invite others to search their own conscience for bias, we are attacked for the asking – as if the suggestion itself is an act more outrageous than the implicit bias which it seeks to lay bare.  See, for example, District Attorney Blodgett’s response to my question: “Does the Essex County District Attorney’s Office believe in justice for all, regardless of race?” as printed in Mass Lawyer’s Weekly on December 13, 2021.  

Sweeting-Bailey reveals the metastasization of a system unwilling to confess its own cancerous cells.  It is ready to talk about the existence of those cells, but not ready to undergo the pain involved in their purging.  And until our highest justices, and those beneath them, are willing to turn words into action, their message of change is drowned out by an older, unwelcome message: those who suffer systemic injustice should remain silent and stay out of the company of those who do not.