April 2019

Cars are indelibly linked to the American idea of freedom. Free travel, new opportunities, and matters of personal style are all a part of the mythology of the automobile. But the arrival of the horseless carriage also brought a crucial shift in law enforcement procedures, one that gave police vastly more discretion to stop ordinary citizens, search their belongings, and seize anything incriminating that they found. Automotive searches have become standard procedures, often initially prompted by as little as a broken headlight or a failure to signal.

Not only that, but there is strong evidence that discretionary searches following a routine traffic stop are administered in racially biased ways. Early 20th-century police knew well that they had to exercise some discretion, given the proliferation of confusing and constantly changing traffic laws from one jurisdiction to the next, and the ways in which criminals made eager use of the new technology. But giving discretion meant opening the doors to pervasive but manifestly unfair policing—quite the opposite of freedom.

Our lead essayist this month is University of Iowa Professor Sarah A. Seo; she has written a just-published book called Policing the Open Road: How Cars Transformed American Freedom that addresses these topics. She looks at the history of the automobile in American law — and how it gave rise to new powers for law enforcement officers, while subjecting ordinary citizens to greater police power than they had previously known in the land of the free.

Joining her to discuss this month are three other experts in criminal justice: Clark Neily, Vice President for Criminal Justice at the Cato Institute; Fordham University Law Professor John Pfaff; and R Street Institute Senior Fellow in Criminal Justice Lars Trautman. Comments are open for one month, and we welcome letters to the editor as well. We hope you’ll join us for a stimulating conversation.

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Lead Essay

  • Sarah A. Seo argues that the advent of the automobile changed American policing. Millions found themselves face to face with law enforcement in new and often unexpected ways. An ethos of “courtesy” soon developed in response to public concern about this new presence in the lives of law-abiding citizens. But courtesy implied discretion, and discretion has often meant racially disparate treatment, as well as serious erosions of the Fourth Amendment.

Response Essays

  • Clark Neily zooms in on the case Whren v. United States, which sustained an extraordinarily deferential standard regarding when law officers may search vehicles. He notes that under Whren, police may even be overtly racist in their choice of whom to search; constitutional reasonableness, the Court has said, does not permit inquiries about such matters.

  • Lars Trautman agrees that automobiles were a big part of the story of police discretion as it developed in the twentieth century. He suggests, however, that the pedestrian stop was also important. Under current Supreme Court doctrine, police may stop pedestrians for a seemingly endless number of “reasonable” causes, allowing them wide discretion to search—or decline to search—anyone. He calls attention to the related developments in pedestrian policing, suggesting that we might have “reached the same destination on foot.”

  • John Pfaff calls attention to the importance of overcriminalization, particularly with regard to misdemeanors. Unfortunately, Americans experience the criminal justice system in very different ways; particularly for white and upper-class people, courtesy is the norm. But others commonly experience another criminal justice system, one in which only trivially bad conduct may lead, not to a warning, but to a stint in jail, a heavy fine, and a criminal record. The solution, he says, is not to abandon courtesy, but to think carefully about the wide range of misdemeanors we have written into law.

Coming Up

Conversation through the end of the month.

Related at Cato

Commentary: A Pretextual Traffic Stop Should Require Sufficient Pretext,” Jonathan Blanks, April 5, 2019

Policy Forum: Coercive Plea Bargaining,” with Clark Neily, October 18, 2018

Public Opinion Brief: Deep Racial Divide in Perceptions of Police and Reported Experiences, No Group Is Anti-Cop,” by Emily Ekins, March 1, 2017