SJC’s Ruling in Long Revises Racial Profiling Burden, But Challenges Remain in Proving Race-Based Policing

September 17, 2020.

In Commonwealth v. Long, 485 Mass. 711 (2020), the Massachusetts Supreme Judicial Court revised the burden of proof for defendants claiming racial profiling in traffic stops. The court ruled that defendants can now establish a reasonable inference of racial motivation based on the totality of the circumstances, rather than relying solely on statistical evidence, thereby making it easier to challenge racially discriminatory traffic stops.

Our Take:

I’m not surprised the court held that equal protection applies to pedestrians just as it applies to motorists. I think we’re all in agreement that race based policing violates the constitution. The question is how to prevent it. The purpose of the Long decision was to provide a more practical way to prove a stop was racially motivated given the recognition that the Lora framework created an impossible hurdle.

The Long court noted that as of September 2020, only a single defendant successfully proved they were racially profiled under Lora – and that was in May of 2008. And yet, despite the Court’s intent to give defendants an effective mechanism to combat race based policing, once again the hurdle proves too high. Rader is another example of how difficult it is to implement our aspirations of racial equality into the criminal justice system.

We know race-based policing happens.

We know minorities are sentenced disproportionately and convicted at higher percentages.

But how do you take the statistics and convince a court that racism is happening here and now?  It takes a lot of courage for a judge to say, “yes, those officers stopped the defendant because he’s black.” And when you look at the reasoning in Rader, it’s sound. Intelligent people may disagree with the holding, but they can’t argue that it doesn’t make sense. As a member of the defense bar, I think we’re all waiting on a case to come out that shows us how to convince judges that racism is not just occurring generally, elsewhere, but that it in fact occurred in our client’s case. What kind of evidence can convince a court to say that a defendant was racially profiled? Until we are given the answer to that question, we will debate important problems but do nothing to solve them.