The Reasonable Black Child: Race, Adolescence, and the Fourth Amendment
67 Am. U. L. Rev. 1513 (2018).
* Agnes N. Williams Research Professor of Law and Director, Juvenile Justice Clinic, Georgetown Law. I am grateful to Brittany Harwell and Jenadee Nanini for their excellent research assistance. I am also grateful to the many colleagues who reviewed earlier drafts of this Article in the Mid-Atlantic Criminal Law Research Collective and the faculty research workshop at the George Washington University Law School.
Police contact with black youth is ubiquitous. Under the guise of reasonable articulable suspicion, police stop black youth on the vaguest of lookout descriptions—“black boys running,” “two black males in jeans, one in a gray hoodie,” “black male in athletic gear,” and “black male with a bicycle.” Young black males are treated as if they are “out of place” not only when they are in white, middle-class neighborhoods, but also when they are hanging out in public spaces or sitting on their own porches.
In this Article, Professor Henning seeks to reduce racial disparities in the juvenile and criminal justice systems by urging courts to modify the reasonable person standard that undergirds much of Fourth Amendment jurisprudence. Drawing upon recent advances in cognitive science and developmental research, this Article attempts to bring the search and seizure doctrine into line with what we now know about normal adolescent development, implicit racial bias, and contemporary relationships between black youth and the police. This Article explores four contexts in which the unique interplay between race and adolescence should alter current Fourth Amendment analysis—seizure, the consent-to-search doctrine, the officer’s recitation of facts to support reasonable articulable suspicion for a stop, and the court’s assignment of meaning to those facts.
Historically, courts have gauged the reasonableness of an officer’s on-the-street encounter with a youth against the same “reasonable person” standard applied to adults. However, in 2011, the Supreme Court announced a major shift in criminal justice jurisprudence when it held in J.D.B. v. North Carolina that the test for determining whether a child was in “custody” for purposes of Miranda v. Arizona must be evaluated through the lens of a “reasonable juvenile” rather than a reasonable adult. Since then, several scholars have called for the extension of the reasonable child standard to other aspects of criminal law and procedure, including the Fourth Amendment. These shifts provide a critically important advance in criminal procedure, but may not go far enough to protect the rights of black youth who are disproportionately overrepresented in the juvenile justice system.
To ensure adequate Fourth Amendment protection for black youth, Professor Henning argues that police and courts should be honest about how race and age affect every critical decision in the Fourth Amendment inquiry. To this end, it is incumbent upon police officers to better understand the nature of adolescent development and implicit racial bias and to develop more appropriate strategies for engaging black youth. It is equally incumbent upon reviewing courts to reject outdated assumptions about the meaning of “suspect” behavior—including flight from the police—and to rethink the limits of the reasonable person standard throughout the Fourth Amendment doctrine.