Ending Racial Profiling in Law Enforcement

© 2002 Peter Free

 

(This is page 4 of 4)

 

Go to: Page 1 ─ Page 2 ─ Page 3 ─ Appendix A

 

Appendix B ─ Appendix C ─ Appendix D ─ Appendix E ─ Footnotes

 

 

Part IV

 

Data Collection ─ Legislative Efforts to Force Racial/Ethnic Data Collection

 

Profiling reform requires that we collect and analyze the demographics of the distribution of police stops, searches, and arrests.  Absent such a database, it will not be possible to recognize, monitor, or correct inequitable policing.  For example, known disparities in criminal justice [47] have prompted a number of legislatures to mandate data collection in traffic enforcement.  A Federal Traffic Stops Statistics Study bill has languished in Congress since 1997. [48]  It would mandate reporting:

                        (a) the race, ethnicity, age, and gender of the people stopped;

                        (b) the number of people in the car;

                        (c) whether immigration status was queried;

                        (d) whether a search was done, including any requests for consent;

                        (e) the legal justification for the search;

                        (f) whether a warning or citation was given;

                        (g) whether an arrest resulted; and

                        (h) how long the stop lasted. [49]

            Fourteen states have drafted similar legislation; Connecticut, North Carolina, and Maryland have actually enacted racial profiling bills. [50]  State police in Rhode Island, New Jersey, Florida, Ohio, Michigan, and Washington are voluntarily collecting data.  [51]  City police in Houston, San Diego, San Jose and Oakland are doing the same. [52]

 

Problems with the Mechanics of Data Collection and Analysis

 

            There are problems to face in the creation of data collection systems.  The Department of Justice lists some common ones. [53]  Dividing them into logical groups:

             Practical Problems in Collection and Analysis

             - How can police determine race/ethnicity without escalating intrusiveness?

- Is it possible to capture the context of individual stops in efficient fashion?

- How should accuracy and reporting consistency be monitored?

- How will a representative comparison population be chosen?

             Potential Officer Resistance  [54]

             - Will discipline be part of the package?

- How can departments ensure line compliance with the new procedures?

             - Will police reduce numbers of citizen contacts to escape added scrutiny?

            Administrative: Budget and Departmental Efficiency

- How will data collection impact police time and money?

Legal

            - Will the program provide fodder for lawsuits?

            Three police departments are experimenting with the basics of what to collect and how. [55]  But the mechanics of the task are not easy.  Obvious deficiencies in the three efforts include (a) line opposition to the collection of identifiers that permit the data to be used for disciplinary purposes; (b) mechanical/time problems in collecting enough detail to determine clearly why a stop was made; (c) lack of data verification; (d) no method for identifying and quantifying a comparison population, and (e) no collection of data for pedestrian stops. [56]

            None of the three departments does a good job of forcing police to articulate individualized reasons for reasonable suspicion or probable cause.  Check-off boxes on a computer screen are often not adequate, yet written reports take time.

In some cases, were it not for police opposition, documentation that accompanies a stop could be used to flesh out the otherwise inadequate data collected.  For example, in cases where enforcement action is taken, there is usually an attending report.  Traffic citations provide a narrative of what the officer observed.  Arrest reports document custodial detentions.  Police resistance to the inclusion of the accompanying officer identifiers mean situation-specific reports cannot be tied to the racial data collected by the new system.

            Similarly, systems that operate without listing the location of the stop are suspect.  Representative populations vary by geographic location, often down to the block, and arguably by time of time of day.  Bankers may work nine to five; lower socioeconomic groups tend to work at less desirable hours.

            There are no methods for verifying the data collected.  Nor are there inherently good ways of seeing that it is collected in the first place, given officer foot-dragging, union opposition and the absence of close line supervision.  Officers confronted with boxes and computer systems that require entries on specified fields simply make up the data when it was not obtained in the first place.

            Not all deficiencies in data collection are due to police resistance.  Some officers abbreviate contacts and data collection so as to minimize confrontation.  Not all police interventions require copying data from a driver's license and registration.  Additionally, not all officers are so race conscious that they are aware of the distinctions among races and ethnicities obvious to others.

            For data collection systems to work well, it will probably be necessary to correlate the results with existing Department of Motor Vehicle (DMV) information.  The latter contains personal information and self-identified race and ethnicity codes. [57]  The DMV data might serve as a rather painless check for accuracy.

One very major problem in data analysis arises in determining who and where the representative populations are.  In the case of traffic enforcement, studies like those done in the Maryland and New Jersey highway patrol civil litigation may be sufficient.  In those cases, researchers simply drove around clocking speeds and noting the apparent race of vehicle occupants.  Urban areas will need a more sophisticated approach, given their more frenetic and variable pace.

            Given these shortcomings, initial statistical efforts at racial profiling have only a moderate correlation to reality.  One commentator writes that data collection laws appear to be meaningless in that they do not provide guidelines for data interpretation, nor do they require remedial steps if disparities are found. [58]

            Nevertheless, these laws and individual department efforts will provide at least some impression of how police are doing in the distribution of their contacts. This should increase officer sensitivity to the racial profiling problem.  It should encourage self-analysis and self-monitoring.  If publicized, the data will encourage civilian input and overview.

Part V

 

Accountability ─ Citizen Input, Monitoring, and Review

            Civilian oversight of the police function is required if racial profiling is to be defeated. [59]  The mechanism by which to accomplish this is uncertain.  The obvious choice, an external civilian review board reviewing officer and departmental actions, does not have a confidence-inspiring history.  For example, as of 1994, there were about 66 civilian review boards associated with police departments in the majority of large cities. [60]  Given the abuses of on-going racial profiling, these panels seem to be an unlikely avenue of reform.  Almost all current external review boards are restricted to making recommendations for discipline only. [61]

            There is some hope.  Many review boards have the power to bring harmful police practices to light.  About half conduct public hearings on individual citizen complaints. [62]  These hearings can occasionally impact police practice.  In Denver, the Public Safety Review Commission raised concerns about the Denver Police Department practice of indiscriminately adding names to a "gang list." [63]  Public outcry forced the recalcitrant department to reduce the list by about 40 percent just prior to a public meeting. [64]  With legislatures now mandating the collection of demographic data associated with traffic stops, publication of these statistics should lend power to review board voices.

            Police will be on notice that they are being watched.  This is particularly true because this issue arguably affects more people than the specifics of an individual brutality.  It is difficult for police to blame the detainee for instigating an abuse of force or authority when statistics show a jurisdiction-wide pattern of oppression.

Voluntary Efforts at Reform

            Publicity of police abuses sometimes encourages agencies to voluntarily involve citizens in the examination of old policies and the design of new ones.  Embarrassed by newspaper revelations of its practice of failing to investigate sex crimes, the Philadelphia Police Department asked women's and domestic violence groups for help in reviewing past files. [65]  The department insisted that the groups agree to review only closed cases, avoid note taking, and maintain confidentiality.  Despite these restrictions, civilian input led to revisions in the department's legal code manual, file-completion practices, interview training, supervision, and the handling of juvenile cases in the sex crimes unit. [66]

            Important elements in the Philadelphia success were:

(1) the Philadelphia Inquirer's exposure of what had been going on;

(2) the city council's demand for change and the public hearings it held;

(3) public interest groups' willingness to forgo litigation by agreeing to the secrecy the department demanded in favor of a chance at more direct reform; and

(4) the cohesive approach they took. [67]

            Building on this example, one can see that publicizing information about police practices can be a valuable initiator of public action.  To this end, Colorado goes so far as to require police officers to give people whom they stop a business card and an explanation of how to file complaints. [68]  A process that guarantees acceptance and review of any complaints would ensure that this technique achieves its intended result.

            One underutilized method of fostering increased accountability and trust is the use of voluntary mediation in the administrative handling of citizen versus officer complaints.  Nationally only about sixteen such programs are in place. [69]  Very few complaints are actually handled due to (i) police union and officer hostility, (ii) lack of departmental resources, (iii) procedural misunderstandings, and (iv) the lack of officer incentives. [70] Two successful programs operate in Portland (Oregon) and Minneapolis.  Experiences there indicate that, over time, a fair-minded program can win officer trust, particularly when combined with intradepartmental disciplinary procedures that are strict in comparison. [71]  An emphasis on community policing helps [72], since officers have already bought into the idea that community trust and respect is vital to their mission.

            Mediation holds promise, because the average citizen is not interested in harsh disciplinary action.  Many want a forum in which to be heard.  Some want a simple apology or an explanation of why the officer acted as she did.  Officers, too, sometimes welcome an opportunity to explain themselves.  None of these ends are well served by traditional police procedures. [73]

            Mediation can enhance accountability simply by forcing officers to account, person-to-person, for what they did or for what impression they left. [74]  Similarly, such a process can force the citizen to account for his misbehavior when the complaint is exaggerated or unjustified.  The process can break down the impersonality of policing, by dragging officers out from the protection of their cars or department walls.  It can force them to recognize their essential connection with the people they police.  Though an apparently mild corrective procedure, mediation has the important result of humanizing both participants.  An accumulation of a few such personalized experiences carries over into the contacts the officer has on the street. [75]

            The mechanics of ongoing accountability are difficult.  There must be some provision for citizen review of police actions and general police behavior.  Police shy away from formalized review processes of this kind.  Where the supervisory processes inherent in the political structure of the city, county or state fail, citizens rightfully clamor for a more responsive bodies to oversee and control the police.  Some general points regarding civilian review and participation should be made:

(1) Departments should establish committees with civilian involvement to investigate law enforcement procedures and processes and their result on community and minority affairs. [76]

(2) Some of the citizens sitting on formalized police review or information panels should have direct, street knowledge of what police deal with.  They should provide informed, yet outsider-based, insights. [77]

(3) The department should take their input seriously; department procedures should mandate timely, publicly made replies.

(4) There should be a mechanism for publishing the citizen review findings in a highly visible forum. [78]

(5) Racial profiling data collection results should be published monthly, along with statistical data on disparate impacts.

(6) An independent firm/agency should regularly evaluate profiling data collection.

(7) A department hotline should clearly indicate how citizens should file officer complaints; it should also provide the names and telephone numbers of city, county, or state agencies with legal or political overview of the police or sheriff's department.

(8) Officer hiring panels should include a voting civilian representative.

(9) Community groups should have formalized access to the department command structure.

(10) Formal mediation procedures should be established to mediate citizen versus officer complaints with the aim of building accountability and trust.

 

Conclusion

           

            Changing police selection, training and supervision is the most effective way to defeat the use of racial profiling in law enforcement.  Redirection of this magnitude will require reorienting law enforcement's mission to include a better balance between crime suppression and freedom protection.  The public must demand professional accountability via political means.

            The key, ultimately, is refocusing police attention so that is consciously equal, scrupulously fair, and deliberately freedom enhancing.  When demographic information regarding the racial/ethnic distribution of police stops is publicly available, police, realists that they are, will come to conform their enforcement behavior to a more equitable standard.  Accountability becomes primarily a matter of putting bite, via civilian input and oversight, into the each agency's sense of honorable service.

 

 

(This is page 4 of 4)

 

Go to: Page 1 ─ Page 2 ─ Page 3 ─ Appendix A

 

Appendix B ─ Appendix C ─ Appendix D ─ Appendix E ─ Footnotes