Effective Racial Profiling Legislation

By Susie Hartigan

Vol. 24, No. 3-4 2002 pp. 6-7

Racial profiling presents one of the most pressing civil rights issues of our time. It extends beyond direct victims to negatively affect all persons of color of all generations and income levels. It undermines the legitimacy of the criminal justice system and hinders effective policing in the communities that need it the most.

Under the narrowest definition, racial profiling occurs when a law enforcement officer stops and questions, searches, and/or arrests someone solely on the basis of that person’s race or ethnicity. This definition, which has been incorporated into a few states’ anti-profiling statutes, is so narrow that it would exclude police actions based on multiple motives; for example, on a person’s race and age, or on a person’s race and the high crime rate of the neighborhood in which they are stopped. A broader more realistic definition encompasses officers’ use of race or ethnicity as a factor in deciding to stop, question, search; or arrest someone.

Monitoring in a number of jurisdictions around the United States has revealed that racial profiling results in an overrepresentation of people of color among those stopped by the police. For example, a 1996 study in Maryland found that while African Americans accounted for only 16.9 percent of the drivers on 1-95, they constituted 72.9 percent of the drivers stopped and searched by the Maryland state police.

Civil Rights Violation

Racial profiling is a civil rights violation with profound economic, social, and personal consequences for all people of color, of all income levels and all ages. Innocent persons of color are repeatedly stopped, questioned, and searched for reasons that would not result in similar actions toward white drivers. Neighborhoods in which African Americans and Latinos live are often targeted for “aggressive” enforcement of traffic laws, and conversely, people of color are also stopped in white neighborhoods because they look like they “don’t belong.”

Racial profiling is the first stage in a criminal justice process in which institutional racism works to the disadvantage of people of color. At every stage, persons of color are treated more severely than their white counterparts. “In a society dedicated to the ideal of equal justice under the law,” writes David Harris, “forcing one group of citizens to put up with disparate treatment because of the color of their skin is positively abhorrent.” A policy of treating all citizens like criminals in order to catch the offenders favors crime prevention over all other values, even people’s civil rights.

Unsound Policing

Racial profiling not only discriminates against people of color, it is an unsound, inefficient method of policing. One traditional law enforcement justification for racial disparities in police stops is that it makes sense to stop and search people of color in greater numbers, because they are more likely to be guilty of drug offenses. The reality is that people of color are arrested for drug offenses in connection with vehicle stops at a high rate because they are targeted at a high rate, not because they are more likely than whites to have drugs in their car. Studies have shown that people of color are no more likely than whites to be found with contraband. Dr. John Lamberth, in a study of stops by Maryland State Troopers on 1-95, found that the “hit rate”–the percentage of searches in which contraband was found–was the same for black and white drivers, 28 percent. New Jersey’s attorney general reported in 1999 that the hit rates for motorists stopped by New Jersey State Troopers were 10.5 percent for white drivers and 13.5 percent for black drivers. New York’s attorney general reported that in “stop and frisk” incidents in 1998 and 1999, the arrest rates were 12.6 percent for whites, 11.3 percent for Latinos, and 10.5 percent for blacks. In 1998 the U.S. customs service reported similar numbers for stops and searches in airports nationwide. Their hit rates were 6.7 percent for whites, 6.3 percent for blacks, and 2.8 percent for Latinos.

Profiling also impedes effective police work by damaging police-community relations, alienating communities of color from the officers who are supposed to serve and protect them. A 1999 Gallup poll found that nationally, 42 percent of African Americans believe they have been stopped by police because of their race, 77 percent of African Americans believe racial profiling is widespread, and 87 percent disapprove of the practice

People of color are more likely than whites to be victims of crime. They need the protection offered by effective police work. Mistrust of the police makes people less likely to cooperate by reporting crimes and aiding police investigations.

Twenty states have enacted legislation addressing

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racial profiling: California, Colorado, Connecticut, Florida, Kansas, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, North Carolina, Oklahoma, Rhode Island, Tennessee, Texas, Utah, Washington, and West Virginia. Of these, the Missouri law is the strongest.

Key Components of Effective Anti-Profiling Legislation

Mandatory, Ongoing Data Collection – The first step toward addressing racial profiling is for law enforcement agencies to collect data on the race of all the drivers they stop, as well as related data about the character of the stops. This is necessary for identifying the problem and giving direction to efforts to eliminate profiling both as a practice of individual officers and as an institutionalized departmental policy.

The most essential element of an effective statute is a mandate for the collection of data on all traffic stops by all state and local law enforcement agencies. The California, Oklahoma, and West Virginia acts require no data collection, falling short of this basic requirement. The North Carolina, Tennessee, and Washington laws require only the state police to collect data. Six states–Connecticut, Maryland, Missouri, Nebraska, Rhode Island, and Utah–have laws mandating data collection by all state and local law enforcement agencies.

Data should be collected indefinitely. The recording requirement may deter law enforcement officers from racially motivated stops they might otherwise have made. Also, the collection of race data for all traffic stops is necessary to ensure that the police are not violating the civil rights of citizens of color. Data collected so far a sites around the country, anecdotal evidence, and public opinion polls all indicate that racial profiling is a widespread and common civil rights violation.

Racial profiling is an important law enforcement issue that affects civil rights. Allowing local municipalities to decide whether or not to collect data will give us only a fragmented idea of the extent of racial profiling and how to address it. Under voluntary programs, different localities will collect different information, making comparison and analysis difficult at best. Unless the state sends a clear message that it takes the issue seriously as a civil rights concern, we cannot hope to deal with it effectively.

Necessary Data Categories – The better state statutes require officers to record enough data to allow analysis of racial disparities not only in the number of stops, but in the character of the stops (whether a search was conducted). The necessary categories are the location, date, and time of the stop; the race, age, and gender of the driver; the reason for the stop; the disposition of the stop; and data relating to searches.

Search data in general is necessary because people of color are not only more likely to be stopped by the police; once stopped, they are also more likely to be searched, or to have their vehicles searched. Information about the results of a search is necessary for analysis of the “hit rates,” the rates at which contraband is found when people of different races are searched.

Independent Analysis of the Data – A credible data-collection and analysis program requires the use of an independent consultant to design and analyze the data.

Accountability Measures – Data collection programs should be linked to accountability of both police agencies and individual officers. Public dissemination of the data collected is also an important part of accountability. Reports should include only summary data for police agencies, excluding information that would permit. the identification of individuals. Most current statutes require reports to the governor and the legislature, but like the Rhode Island statutes, state laws should specify that these reports become public records.

Accountability of individual officers should be a matter for the employer agencies. Missouri law requires each law enforcement agency to adopt procedures for determining whether any officers have a pattern of disproportionately stopping people of color and to provide counseling and training to any such officers. The Sacramento police require the officer’s badge number on each stop record, and information from the officers’ personnel records will be turned over to the independent consultant analyzing the data.

Advisory Committee – Statutes should include provisions for the involvement of affected communities in the oversight of the data collection. Rhode Island’s statute calls for a racial profiling advisory board to work with the attorney general in designing ‘data collection, and in choosing who will analyze the data. The advisory committee includes legislators, a professor of statistics, and representatives from the Police Chiefs Association, the state Commission for Human Rights, and the Rhode Island Urban League. This provision is a step toward remedying the persistent underrepresentation of people of color in decision-making bodies addressing racial profiling. It provides an opportunity for police and community representatives to begin working together to address racial profiling and to begin developing the cooperative relationships necessary to heal the divisions.

Susie Hartigan is a Research Fellow, focusing on issues in the criminal justice system at the Institute on Race and Poverty at the University of Minnesota. For more information on IRP, visit: www instituteonraceandpoverty.org.