The disparate treatment of minorities in the American criminal justice system begins at the very first stage of that system: the investigation of suspected criminal activity by law enforcement agents. Police departments disproportionately target minorities as criminal suspects, skewing at the outset the racial composition of the population ultimately charged, convicted and incarcerated. And too often the police employ tactics against minorities that simply shock the conscience.
There is no reason to believe that overt racism or bigotry is more prevalent among police officers than among other professionals. To be sure, there have been highly publicized instances of such bigotry, such as the annual “Good Ol’ Boys Roundup” for law enforcement personnel in Eastern Tennessee which, when investigated in 1995, was found to feature a Redneck of the Year contest, performances in blackface, the wearing of masks in the likeness of Martin Luther King, Jr., with a bullet hole in the face and the display of a banner entitled “Nigger Check Point.” But such blatant prejudice is always roundly condemned when it comes to light. In contrast, the racial generalizations that inform policing strategies in America today are subtle, deeply rooted, and difficult to eradicate.
A. Racial Profiling and the Assumptions that Drive It
Some crimes are brought to the attention of the police by circumstances (e.g., a dead body) or by bystanders who witness it. But very often the police seek to uncover criminal activity by investigation. They patrol the streets looking for activity they think is suspicious, they stop cars for traffic violations in the hope of discovering more serious criminality and they engage in undercover operations in an effort to uncover crimes without complaining witnesses, like drug trafficking and prostitution. Each of these police tactics involves the exercise of a substantial amount of discretion – the police decide who they consider suspicious, which cars to tail, what conduct warrants further investigation, and which neighborhoods are ripe for enforcement activity.
Unfortunately, that discretion is routinely exercised through the prism of race. The practice of racial profiling – that is, the identification of potential criminal suspects on the basis of skin color or accent – is pervasive.
For example, a growing body of statistical evidence demonstrates that black motorists are disproportionately stopped for minor traffic offenses because the police assume that they are more likely to be engaged in more serious criminal activity. This ironically labeled “driving while black”syndrome has two deleterious effects. It causes a large number of innocent black drivers to be subjected to the hassle and humiliation of police questioning, and it results in a lopsided number of blacks being arrested for non-violent drug crimes that would not come to the attention of authorities but for the racially motivated traffic stop.
The practice is widespread:
Under a federal court consent decree, traffic stops by the Maryland State Police on Interstate 95 were monitored. In the two year period from January 1995 to December 1997, 70 percent of the drivers stopped and searched by the police were black, while only 17.5 percent of overall drivers – as well as overall speeders – were black.
In Volusia County, Florida, in 1992, nearly 70 percent of those stopped on a particular interstate highway in Central Florida were black or Hispanic, although only 5 percent of the drivers on that highway were black or Hispanic. Moreover, minorities were detained for longer periods of time per stop than whites, and were 80 percent of those whose cars were searched after being stopped. The discriminatory treatment of minority drivers was duly noted by Volusia County Sergeant Dale Anderson, who asked a white motorist he had stopped how he was doing; the motorist responded “[N]ot very good,” to which Anderson responded, “Could be worse – could be black.”
A study of traffic stops on the New Jersey Turnpike found that 46 percent of those stopped were black, although only 13.5 percent of the cars on the road had a black driver or passenger and although there was no significant difference in the driving patterns of white and non-white motorists.
A Louisiana State Police Department training film specifically encouraged the Department’s officers to initiate pretextual traffic stops against “males of foreign nationalities, mainly Cubans, Colombians, Puerto Ricans, and other swarthy outlanders.”
In 1992, as part of a report by the ABC news program “20/20”, two cars, one filled with young black men, the other with young white men, navigated the same route, in the same car, at the same speed through Los Angeles streets on successive nights. The car filled with young black men was stopped by the police several times; the white group was not stopped once, despite observing police cars in their immediate area on no less than 16 separate occasions during the evening.
Even the United States government has facilitated racial profiling. The Volusia County highway interdiction program discussed above is part of a network of drug interdiction programs established and funded by federal authorities under the name “Operation Pipeline.” And it was the Drug Enforcement Agency that encouraged New Mexico state police to use a “cocaine courier profile” one element of which was that “[t]he vehicle occupants are usually resident aliens from Colombia.”
Racial profiling is also carried out in forms other than pretextual traffic stops. Enforcement of the controlled substances laws, in general, seems premised on the bizarre perception that drug trafficking is exclusively a minority-owned business. Drug-courier profiles have regularly included race as an explicit element of suspicion. In sworn testimony, DEA agents have at various times in recent years stated their belief that most drug couriers are black females, and that being Hispanic or black was part of the profile they used to identify drug traffickers. In light of these perceptions, it is no surprise that a police officer working at the Memphis International Airport testified that approximately 75 percent of those stopped and questioned in the Airport were black, or that none of the three judges who arraigned felony cases in New York County could recall a single New York Port Authority drug interdiction case where the defendant was not black or Hispanic.
The immigration law context furnishes further evidence of widespread racial profiling. A recent study by the National Council of La Raza identified a pattern of selective enforcement of U.S. immigration laws by INS and local officials, whereby individuals of identifiably Hispanic origin – including many who were American citizens, legal permanent residents, or otherwise lawfully in the United States – were targeted by the authorities and subjected to interrogation, detention, or arrest for suspected immigration violations.
One of many examples of such targeting was “Operation Restoration” in Chandler, Arizona, a joint endeavor of the Chandler Police Department and the U.S. Border Patrol. According to a study conducted by the Arizona Attorney General’s office, local police and U.S. Border Patrol officials implementing Operation Endeavor “without a doubt. . . stopped, detained, and interrogated [Chandler residents] . . . purely because of the color of their skin.”Similarly, in Katy, Texas, the INS and officers from the Katy Police Department conducted a joint operation whereby they stopped and detained cars driven by individuals of “Hispanic appearance,” conducted street sweeps in which Hispanics were the only ones targeted or questioned, and undertook searches of Hispanic residences.
Overall, nearly three-quarters (73.5%) of all of those deported by the INS are of Mexican origin, according to INS statistics, even though Mexicans constitute less than half of all undocumented persons in the United States. Hispanics constitute approximately 60% of all undocumented persons, but well over 90% of those subjected to INS enforcement actions are Hispanic.
Racial profiling is seemingly inconsistent with today’s dominant law enforcement philosophy: community policing. But community policing is still a vague and elastic concept. At its best, community policing refers to a more diverse police force working with community institutions to prevent crime before it occurs. For example, Boston’s anti-gang efforts have featured after-school programs for high-risk students and a constructive partnership between the police and crime prevention agencies. In places where the police have consciously integrated themselves into the fabric of the neighborhood, community policing deserves credit for helping to reduce crime rates.
But too often, community policing is just a label, a slogan to attract federal grants and favorable headlines. In some jurisdictions, community policing means little more than giving street level officers wide discretion to “clean up” the communities they patrol by whatever means seem expedient. Thus, community policing may come to mean “quality of life” policing, under which the police adopt a zero-tolerance approach to minor violations of law. Such an ends-justify-the-means approach invariably works to the detriment of – and is disproportionately targeted at – black and Hispanic populations. Professor David Cole has pointed out that such an enforcement strategy “relies heavily on inherently discretionary police judgments about which communities to target, which individuals to stop, and whether to use heavy-handed or light-handed treatment for routine infractions.” According to Professor Angela Davis, “[t]he practical effect of this deference [to law enforcement discretion] is the assimilation of police officers’ subjective beliefs, biases, hunches, and prejudices into law,” and the evidence suggests that such discretion is exercised to the detriment of America’s minorities. As Harvard Law School Professor and African-American Charles Ogletree has observed, “If I’m dressed in a knit cap and hooded jacket, I’m probable cause.”
Professor Ogletree’s comment is echoed in the practices of the New York City Police Department, which in the late 1990’s began to aggressively employ “stop and frisk” tactics against city residents. “Stop and frisk” entails the practice of temporarily detaining, questioning and patting down pedestrians based on an articulable suspicion that the detainee is involved in criminal activity. While “stop and frisk” is constitutional, it has not traditionally been used as a free-standing law enforcement strategy because in such a regime the discretion to choose who to stop is virtually unconstrained.
Predictably, black and Hispanic New Yorkers were disproportionately targeted for “stop and frisk” pat-downs. A December 1999 report by the New York State Attorney General found that of the 175,000 “stops” engaged in by NYPD officers from January 1998 through March 1999, almost 84 percent were of blacks and Hispanics, despite the fact that those groups comprised less than half of the City’s population; by contrast, only 13 percent of stops were of white New Yorkers, a group that comprises 43 percent of the City’s population. Of the 10 police precincts with the most stops, seven were majority-black/Hispanic districts, and two of the majority-white districts were commercial districts whose census figures did not reflect the demographics for policing purposes, leaving only one majority-white precinct in the top 10. By contrast, of the 10 precincts with the lowest stop rates, all but two were majority-white. The Attorney General also identified racial disparity in stop rates within white neighborhoods – in precincts that were approximately 90 percent white, more than 53 percent of the total stops were of blacks and Hispanics. Thus, more stops occurred in majority-minority precincts, and more stops of minorities than of whites occurred even in majority-white neighborhoods.
The Attorney General also determined that stops of minorities were less likely to yield arrests than stops of white New Yorkers – the NYPD arrested one white New Yorker for every eight stops, one Hispanic New Yorker for every nine stops, and one black New Yorker for every 9.5 stops. The statistics were even more stark with respect to stops engaged in by the NYPD plainclothes Street Crimes Unit, which stopped 16.3 blacks and 14.5 Hispanics per arrest, but only 9.7 whites per arrest. Given racially disparate overall stop rates, these statistics reveal that far more innocent minorities are subjected to stop and frisk tactics than innocent whites.
Some continue to defend racial and ethnic profiling by law enforcement as a rational response to patterns of criminal conduct. Such arguments rest implicitly or explicitly on two basic assumptions, each of which is flawed, pernicious, and divisive.
The first assumption is that minorities commit the majority of crimes, and that therefore it is a sensible use of police resources to focus on the behavior of those individuals. This attitude was epitomized by Carl Williams, Superintendent of the New Jersey State Police until his dismissal in March 1999, who stated in defense of racial profiling that “mostly minorities” traffic in marijuana and cocaine. Superintendent Williams’ assumption, shared by many, is flatly incorrect with respect to those crimes most commonly investigated through racial profiling – drug crimes. Blacks commit drug offenses at a rate proportional to their percentage of the United States population: Black Americans represent approximately 12 to 13 percent of the U.S. population, and, according to the most recent federal statistics, 13 percent of all drug users. And for the past 20 years, drug use rates among black youths has been consistently lower per capita than drug use rates among white youths.
Findings related to the “driving while black” phenomenon and other forms of racial profiling lead to the same conclusion. While black motorists were disproportionately stopped by Maryland State Police on I-95, the instances in which drugs were actually discovered in the stopped vehicles were the same per capita for black and white motorists. Similarly, a nationwide study by the United States Customs Service revealed that while over 43 percent of those subjected to searches as part of the Service’s drug interdiction efforts were black or Hispanic, the “hit rates” for those groups per capita were lower than for white Americans. And according to the congressional General Accounting Office, while black female U.S. citizens were nine times more likely to be subjected to x-ray searches by U.S. Customs Officials than white female U.S. citizens, these black women were less than half as likely to be found carrying contraband as white females.
The baseless assumption that most criminals are members of minority races is accompanied by the second, equally flawed assumption that most minorities are criminals. The premise of racial profiling is that random checks of black or Hispanics are likely to yield an arrest for criminal activity. But there is no evidence to support that racist assumption. Even after being disproportionately targeted for stops and searches, most blacks and Hispanics are not arrested because the vast majority of those stopped are actually innocent of the conduct the police suspected they were engaged in. Less than 10 percent of all blacks are even arrested in a single year. The vast majority of blacks and Hispanics – like the vast majority of whites – are law-abiding citizens.
For example, only nine of more than 1,000 stops in Volusia County, Florida in 1992, 70 percent of which were of black or Hispanic motorists, resulted in a ticket, much less criminal charges. And in Eagle County, Colorado, the Sheriff’s Department’s regular use of pretextual stops against minorities did not yield a single arrest for violation of the drug laws, although it did result in a court settlement of $800,000 in favor of the 400 black and Hispanic drivers who had been subjected to this offensive police tactic.
Pretextual traffic stops and other manifestations of racial profiling essentially treat race as evidence of crime, targeting certain segments of the population as potential criminal offenders solely by virtue of their race. Thus, through racial profiling, law enforcement officials not only “racialize” crime by assuming most crimes are committed by minorities, they also “criminalize” race. In so doing, they place the primary burden of law enforcement on the backs of innocent minorities who are the victims of racial and ethnic stereotyping. Innocent minorities are harassed more than innocent white Americans, and wrongdoing by minorities is punished more harshly than wrongdoing by whites. Such unfair treatment of minorities breeds distrust and disrespect for law enforcement in those communities.
The harms caused by racial profiling extend beyond racial division and distrust. In effect, racial profiling becomes a self-fulfilling prophecy. As noted by Professor David Harris, a leader in identifying the “driving while black” phenomenon:
Because police will look for drug crime among black drivers, they will find it disproportionately among black drivers. More blacks will be arrested, prosecuted, convicted, and jailed, thereby reinforcing the idea that blacks constitute the majority of drug offenders. This will provide a continuing motive and justification for stopping more black drivers as a rational way of using resources to catch the most criminals.
And, indeed, this prophecy has come to pass. Despite the fact that, as noted earlier, blacks are just 12 percent of the population and 13 percent of the drug users, and despite the fact that traffic stops and similar enforcement strategies yield equal arrest rates for minorities and whites alike, blacks are 38 percent of those arrested for drug offenses and 59 percent of those convicted of drug offenses. Moreover, more frequent stops, and therefore arrests, of minorities will also result in longer average prison terms for minorities because patterns of disproportionate arrests generate more extensive criminal histories for minorities, which in turn influence sentencing outcomes.
B. Violent Consequences of Race-Based Policing
Police tactics based on racial assumptions are not only unfair to minorities; they actually place minorities in physical danger. In recent months, several highly publicized police shootings appeared to result from the police acting on unjustified racial generalizations.
Amadou Diallo was a young black man living in a predominantly minority neighborhood in New York City. On the night of February 4, 1999, Diallo was approached by four police officers as he stood by the front steps of his apartment building. He reached for his wallet to produce identification. The officers mistook this action as reaching for a weapon, and fired 41 gunshots, killing Diallo. Testifying in his own defense, one of the officers who had shot Diallo noted that “[t]he way he was peering up and down the block” had made the officers suspicious. “He stepped backward, back into the vestibule as we were approaching, like he didn’t want to be seen . . . and I’m trying to figure out what’s going on. You know – what’s this guy up to? I was getting a little leery, from the training, of my past experience of arrests, involving gun arrests.”
Soon after the officers who shot Amadou Diallo were acquitted of criminal charges, a 26 year-old black man named Patrick Dorismond was also killed by the police. On March 16, 2000, Dorismond was trying to hail a cab on a midtown Manhattan street corner when he was approached by three undercover police officers who, without apparent reason to believe that Dorismond was a drug dealer, tried to buy drugs from him. Dorismond became angry, and in the ensuing fight Dorismond was shot and killed by a bullet from the gun of one of the police officers. The first response of New York City’s Mayor Rudolph Giuliani was not to express regret for the tragic death, or to determine why the police, without apparent predicate, undertook a sting operation of a young black man minding his own business. Rather, Mayor Giuliani cited Dorismond’s police record – which consisted of stale unsubstantiated charges and two convictions for disorderly conduct – to support the conduct of police, despite the fact that Dorismond was doing nothing wrong when the police approached him.
Hispanics have also been the victims of violence associated with racial profiling. On April 25, 1997, a factory in Salt Lake City owned by an American citizen, Rafael Gomez, was the subject of a police raid in which 75 heavily-armed police officers brandished rifles and pistols, struck Gomez in the face with a rifle butt, pointed a gun at his six-year old son, ordered the 80 factory employees to lie down on the floor, and dragged Gomez’ secretary across a room by her hair. The raid, based on an anonymous tip, uncovered no illegal activity.
In each case the questions linger: Would Diallo’s actions have generated suspicion if he had not been black, and would the officers who shot him have seen a gun where there was only a wallet if he had been white? Would the officers who approached Dorismond simply have left him alone, or walked away from a fight, if Dorismond had not been of Haitian descent? Would an anonymous tip about a white business owner been treated like the tip that caused an armed raiding party to descend on Rafael Gomez?
There is little doubt that these tragedies were the consequence of a law enforcement culture that encourages suspicion of minorities. The same assumptions that lead police to engage in disproportionate stops of minority drivers and minority pedestrians led police to assume the worst about Diallo, Dorismond and Gomez. These cases made headlines in the cities in which they occurred. Countless incidents that do not result in death or wildly unsuccessful police raids occur every day and escape public notice. But they contribute to a well-grounded fear among minorities that the police will assume the worst about them, and on a dark street corner that assumption can be fatal.
C. Race and Police Misconduct
The unequal treatment of minorities by law enforcement officials extends beyond racially based traffic stops and profiling. Minority citizens are also the prime victims of police brutality and corruption. Such misconduct is unacceptable in any form, but it is doubly offensive when it flows from attitudes about race that are contrary to our commitment to equal justice and the rule of law.
Current events again provide evidence of race-motivated misconduct. Authorities in Los Angeles are currently investigating a police corruption ring centered in the anti-gang unit of the Rampart division – a police station located in one of the city’s poorest neighborhoods. The investigation has already revealed that officers in that unit manufactured evidence and perjured themselves to produce convictions, thousands of which could be affected by the revelations; routinely engaged in police brutality to intimidate their victims; participated in the drug trade; and used the Immigration and Naturalization Service to deport antipolice witnesses, in violation of Los Angeles city policy. As part of their abuse of the immigration laws, the officers allegedly compiled a list of more than 10,000 Hispanics whom they believed to be deportable, effectively placing an entire community under suspicion on the basis of its racial composition.
General patterns of misconduct similar to the Los Angeles scandal have been revealed in New York, where the Mollen Commission uncovered widespread brutality and corruption in the Bronx directed largely at blacks and Hispanics, and in Philadelphia, where similar patterns of misconduct were found to persist in the predominantly black neighborhood of North Philadelphia. To name these cities is not to ignore the breadth of police abuse and misconduct that occurs throughout the country. Indeed, in a nationwide poll, 59 percent of respondents believed that police brutality is common in some or most communities in the United States, and 53 percent of respondents believed that police are more likely to use excessive force against black or Hispanic suspects than against white suspects. One of the most publicized instances of brutality has been the Abner Louima case, in which two current and one former New York police officers were recently convicted of attempting to cover up another officer’s assault on Louima, a black New Yorker, whom the officer had beaten and sodomized with a broken broomstick.
Practices like racial profiling and the actions uncovered by the Mollen Commission and in the Rampart investigations are related. First, they all proceed in large part from the twin misperceptions that (1) blacks and Hispanics commit most crimes, and (2) most blacks and Hispanics commit crimes – misperceptions that have justified everything from pretextual traffic stops to the entirely unjustified beatings and abuse of innocent individuals. Second, both profiling and police misconduct contribute to the belief – shared to one degree or another by Americans of all races and ethnicities – that the police do not treat black and Hispanic Americans in the same manner as they do white Americans, and that the promise of fair treatment enshrined in the Constitution has limited application when police confront a black or brown face.