Photo Credit: Truthout

On January 9, 2017, a 17-year old Black kid named Tykorie Evelyn was walking on the sidewalk when a police car pulled up beside him and police began asking him questions. Evelyn continued walking while giving short responses to the officers. The officers continued to drive alongside Evelyn until eventually they stopped. One officer got out of the car. Evelyn began to run, and the officer chased after him, eventually pulling out his gun. Evelyn then stopped. The police found a gun near the sidewalk shortly after.

Whether the gun found on the sidewalk can be used to support a criminal conviction will depend on at what point in the encounter Evelyn was seized. A person is seized if a reasonable person in his position would have “believed that he was not free to leave.” If the officers did not have a reasonable suspicion now of seizure for stopping Evelyn, then the Constitution would require a judge to suppress the firearm and exclude it as evidence.

Currently, criminal procedure evaluates the “reasonable person” from an objective and therefore race-neutral perspective. This is a mistake. As a young Black kid, whether Evelyn felt “free to leave” is inseparable from a long history of racialized violence and patterns of socialization that teach Black kids to indulge police commands as a matter of survival. A failure to understand the unique position of race in juvenile-police encounters perpetuates police violence and undermines constitutional limitations on police power.

A race neutral Fourth Amendment doctrine is neither inevitable nor unchangeable. In Massachusetts, the Supreme Judicial Court recently considered calls to adopt a “reasonable Black child” standard for assessing Evelyn’s case. This standard builds on the United States Supreme Court’s decision in J.D.B. v. North Carolina where the Court held that the Fifth Amendment custody analysis must account for a juvenile’s age because it “generates commonsense conclusions about behavior and perception.” Similarly, advocates in Evelyn’s case argued that race and adolescence intersect to generate commonsense conclusions about how Black kids in Evelyn’s position feel during police encounters.

Last month, the Supreme Judicial Court declined to reach the reasonable Black child standard, but racial justice requires the Court to embrace the standard when raised in future cases.

Doctrinally, the Supreme Judicial Court has all the tools it needs. As explained previously, the Fifth Amendment already accounts for age under J.D.B. and in Evelyn, the SJC extended J.D.B. to the seizure test. Additionally, Massachusetts’ Declaration of Rights offers broader protections for Black defendants than its federal counterpart. For example, the Supreme Judicial Court, on the same day as Evelyn, held that Black people pulled over must have a meaningfully viable means of demonstrating racial bias motivated the traffic stop. Additionally, the Court in Commonwealth v. Warren held that when deciding if police had a reasonable suspicion to detain a Black person fleeing, courts must account for the possibility the Black man is fleeing to avoid the “indignity of being racially profiled.” So, a Black person’s flight, without more, is insufficient to justify an investigatory stop.

Taken together, these cases strongly support the reasonable Black child standard. Beyond seemingly constant reminders of racialized police violence in the news, Black kids are conditioned early on to accept police surveillance and authority as part of their everyday lives. In Boston, kids growing up in communities of color have likely seen a family member or loved one racially profiled, as 70% of Boston Police Department’s investigatory stops involve Black citizens. School resource officers are substantially more likely to use violence, issue citations, and arrest students when Black students are involved. Daily police surveillance teaches kids to fear and distrust police such that a non-coercive encounter for a white kid could feel incredibly coercive to a kid who grew up learning to fear abuse from police.

The stakes of what might seem like a narrow doctrinal question could not be higher. On any given day, America detains tens of thousands of kids in the juvenile justice system. Black youth are five times more likely to be incarcerated than white youth. For every adjudication, period of detention, and encounter with police, a kid is more likely to be incarcerated in the future. More broadly, the juvenile justice system was designed for precisely this type of abuse: politicians built the juvenile justice system in response to a highly racialized and sensationalized crime wave in which poor Black youth were at the heart of it. The contemporary surveillance of Black youth continues to reflect the belief that they are perpetual suspects and threats to white communities.

Altering constitutional criminal procedure doctrine to account for this stark racial reality would go a long way in limiting the negative effects of the juvenile justice system. To breathe life into constitutional limits on police power, rights must account for the lived experience of the people they are supposed to protect. When an officer asks for consent to search a Black teenager, it is impossible to separate that question from the well-founded fear Black kids report when encountering police. Put differently, a “reasonable juvenile” standard employs a colorblind test to regulate a deeply racialized system. That is a recipe for perpetuating inequality and undermining constitutional law’s ability to protect the most marginalized.

Resistance to adopting the reasonable Black child standard comes partially from a commitment to an objective test for constitutional rules. Courts cling to the “reasonable person” standard to ensure predictability for officers, administrability for courts, and fairness across cases. This is flawed for two reasons. First, for juvenile defendants, that ship has already sailed. The Supreme Court’s decision in J.D.B. made clear that age is part of the custody determination for juveniles. Accounting for both age and race is merely the extension of J.D.B.’s logic, as commonsense inferences about race influence police encounters in a similar manner as age. Second, and more broadly, clinging to complete objectivity does little to provide fairness to defendants when the entire process leading up to adjudication is unequal. If Black children witness police harassment as integral parts of their lives while middle-class white people do not, then courts should evaluate their respective police encounters differently. As explained above, the Supreme Judicial Court has already acknowledged the impact of this racist reality in other criminal legal contexts. It is time the procedural rules regulating juveniles catch up as well.

Some have taken the call for reasonable Black child standard and have argued that criminal procedure should account for other races as well. For example, one scholar called for a “reasonable Latinx child standard.” Or what about a reasonable Muslim child standard? While beyond the scope of this post, these extensions sensibly build on the deeper point reflected in the reasonable Black child: encounters with police are not race-neutral and the rules regulating those encounters must account for that reality. To the extent that this might further subjectivize the reasonableness inquiry at the heart of the Fourth Amendment, that is more of a benefit than a curse. Criminal defense litigation is already incredibly fact-intensive and reasonableness already gives judges a degree of discretion in assessing the facts of a case. Incorporating race and identity into the application of law to the facts simply tells judges to focus on a different aspect of the facts of a case. Given the way race fundamentally shapes policing, asking how race influenced an encounter is imperative.

Race-neutral standards in criminal procedure mask the oppressive tactics police use to surveil communities of color.  When combined with the immaturity and emotions of youth, the intersection of race and adolescence poses a unique risk of coercion and abuse of power at the hands of police. The more constitutional rights reflect this reality, the more those rights will actually empower young people caught in the criminal legal system.