Investigating methods for preventing racial profiling in the field

Racial profiling occurs when law enforcement officers interpret race (specifically minority membership) as an indicator of increased risk of criminal behavior. Most racial profiling is conducted by officers engaged in street-level policing and this practice is generally banned by federal law, state statutes, and police manuals or guidelines (Wu, 2005). According the United States Department of Justice Fact Sheet on racial profiling:

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Racial profiling sends the dehumanizing message to our citizens that they are judged by the color of their skin and harms the criminal justice system by eviscerating the trust that is necessary if law enforcement is to effectively protect our communities (United States, Department of Justice, 2003).

Major stakeholders with an interest towards this problem include the state’s Attorney General, county commissioners or city council members, agency leadership, law enforcement officers, and the public. In recognition of the problem, various corrective steps have been taken by states. These measures have included the development of statewide anti-racial profiling policies and mandatory demographic data collection to be conducted by law enforcement officers during all stops.

This writer recommends the implementation of an early intervention system to compile information including the assignment history of each officer, traffic enforcement data, citizen complaints, and disciplinary actions taken against the officer. This system would be used by supervisors to monitor officer performance and to address potential problems before they escalate to serious racial profiling events. Used regularly, the program would identify potential racial biases more effectively and would place greater accountability upon supervisors to monitor officers’ performance.

Problem Statement

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The problem is the use of racial profiling in the field of law enforcement. Specifically, the problem is the disproportionate number of minorities that are targeted for investigatory stops in comparison to non-minorities. Historically, African Americans, Hispanics, and since 9/11, Arab Americans have been subjected to higher instances of traffic stops and investigatory detentions. By definition, “racial profiling” occurs when a law enforcement officer questions, stops, searches, arrests, or investigates and individual because the officer holds a prejudicial notion that members of that person’s racial or ethnic group have a greater likelihood than the rest of the population to commit the sort of crime the officer is investigating. (Barnes, Gross, 2002) Officers who practice racial profiling are in violation of the Fourteenth Amendment Equal Protection clause which states, “No state shall…deny to any person within its jurisdiction the equal protection of the laws.” (Ward, 2002) In addition to the violation of civil rights, racial profiling contributes to the greater social problem of public distrust towards law enforcement.

Stakeholders

Attorney General

In most states, the state’s Attorney General serves as the top law enforcement officer and lawyer for the state. For state-level law enforcement agencies, particularly the highway patrol or state police, the attorney general acts as a supervisor to the agency’s director and therefore holds the responsibility for appointing the agency director as well as providing guidance to the agency in regards to the proper application of the law. In the event that a lawsuit is filed against a state law enforcement agency, the attorney general acts as the state’s legal representative. Furthermore, in a majority of states the attorney general is an elected official and is therefore subject to lose votes if the public is dissatisfied with his job performance. He must therefore stay abreast of any updates or changes to the law and ensure that the state’s law enforcement officers operate in compliance with these laws.

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County commissioners and City council members

Within counties, cities, and towns, the county commissioners, city or town council members are legislative bodies responsible for passing laws, bills, and ordinances that govern the municipality. In city or town police departments, the police chief is appointed by the council and in county Sheriff’s offices, the Sheriff is sometimes appointed by county commissioners (in instances where the position is vacant outside an election year). In the event that citizens are not satisfied with local law enforcement’s actions, the county commissioner or city council members will hear the complaint and make a final decision on the matter. As decision makers (and citizens) they have an interest in maintaining public safety and order. As elected officials, their performance is subject to public scrutiny and failure to adequately address rights violations is unlikely to get them reelected.

Agency Leadership

Depending on the level of law enforcement (state or local), the agency Director, the Chief of Police, or the county Sheriff have a direct responsibility in addressing racial profiling. All law enforcement agencies operate using a “top-down” leadership approach, with the Director, Chief, or Sheriff at the top of the hierarchal ladder, followed by Captains, Lieutenants, Sergeants, and Officers or Deputies. The agency’s leader has an interest in making sure the department adheres to the laws and policy standards for law enforcement set forth by the state or local government. The federal government has enacted anti-racial profiling laws and most states have followed suit. Law enforcement agencies that are found to be non-compliant with these laws are held accountable. As the highest ranking employees within their respective agencies, these officials serve as the “face” of the agency and are often called upon to answer to the aforementioned commissioners or councils when allegations of officer misconduct are made by the public.

Law Enforcement Officers

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Law enforcement officers are stakeholders because the public’s perception of the police can have either a positive or negative impact on performance of their duties. Racial profiling is a contributor to the larger social problem of public distrust of the police. In “Race, Cops, and Traffic Stops”, Angela Davis argued that when minorities experience injustices that are tolerated by criminal justice officials, they develop distrust and disrespect for the justice system. That lack of faith translates into hopelessness, frustration, and sometimes violence (Davis, 2007). For law enforcement officers, public trust and cooperation is essential to their job function. When these two elements are diminished or absent in a community, fewer crimes are solved and officer safety is in jeopardy.

Public

The public relies on the police to enforce the law and maintain order. As a subgroup of the public, minority populations share these expectations that law enforcement officers will behave ethically. Inability to rely on the police to remain fair and impartial creates a barrier between the police and the minority communities they serve. When this occurs, the public is less likely to report crime and/or provide assistance to the police during criminal investigations. Eventually, some law enforcement officers develop an “Us against Them” approach towards minorities while minority groups adopt a “Them against Us” mentality. As a result, fewer crimes are solved and criminals remain on the street. Thus, racial profiling contributes to the perpetual cycle of police ineffectiveness caused by the disconnect between the police and the public.

Background of Problem

In “Analysis of Racial Profiling as Policy Analysis”, Samuel Myers, Jr. presents a 1999 report by Knowles, Persico, and Todd that in a stretch of Interstate 95 in Maryland from 1995 to 1999, 63% of all motorists searched were African American. However, only 18% of the motorists on the road were African American. Similar studies have shown patterns of disproportionality in traffic stops conducted by other law enforcement agencies. Allegations of racial profiling have resulted in a number of class action lawsuits and law enforcement agencies’ response to the problem varies. Some states or police departments have banned racial profiling while others have focused on collecting racial data on stops and searches in order to monitor the ratio of minorities to non-minorities being subjected to these activities. Many have also instituted training and education programs designed to specifically address racial profiling.

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In 2002, the Minnesota state legislature recommended a voluntary initiative for police departments to address this problem. The preamble to this legislation read in part, “Law enforcement policies and training programs must emphasize the need to respect the balance between the rights of all persons to be free from unreasonable governmental intrusions and law enforcement’s need to enforce the law.” Key components of the legislation included:

The development of a statewide anti-racial profiling policy that obligated police to provide their name or badge number during routine traffic stops.

Providing training to law enforcement officers to adhere to the model policy and dismiss from service any officer who did not complete the training.

Collection of data for a 2-year period among participating agencies (Myers, 2002).

In its response to racial profiling, the General Assembly of North Carolina enacted a law in 2009 that mandated both state and local law enforcement officers to compile information for each traffic stop to include the race, ethnicity, and sex of the driver along with the alleged traffic violation that led to the stop.

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The results of these studies and measures taken by state legislatures indicates recognition that the racial profiling does exist and that appropriate measures need to be taken to ban this practice.

Alternative Policies

In considering alternative ways to address the problem of racial profiling, one could consider a revision to departmental policy to include specific disciplinary action, adjusting training and policy standards to incorporate cultural sensitivity and diversity awareness training, or implementing an early intervention program to monitor officer performance and provide guidance.

Alternative Policy #1 – Disciplinary Action

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In an effort to deter officers from racial profiling, one alternative would be to revise departmental policy to include disciplinary guidelines that prescribe specific punishment according to the number and severity of substantiated offenses. For example, the guideline would prescribe counseling for a 1st offense, a written warning to be added to the officer’s personnel file and possible suspension for a 2nd offense, and termination for a 3rd offense.

This method would provide officers with strict guidelines to govern their behavior and would leave no room for misinterpretation. Issuing a punishment-based policy would also give the public the perception that the agency takes the problem seriously and will respond to complaints with appropriate corrective action. The implementation of a “zero tolerance” policy, in theory, could improve police relations with minority communities and increase public confidence in law enforcement.

This alternative could also lead to a decrease in officer morale, higher turnover, and fear of punishment (amongst officers) for doing their jobs. Officers who feel that stops involving minorities will be scrutinized may make an effort to avoid these investigatory stops, meaning that some guilty people will go undetected. This method does not take into account that some officers, by nature of their assignment or job function, will simply have more contacts with minorities and will likewise conduct more stops involving these groups. For example, an officer patrolling an inner city area is more likely to have interaction with minorities than an officer assigned to a rural area because metropolitan areas tend to be more racially and ethnically diverse. This should not serve as a definitive indicator that the officer with a higher percentage of stops involving minorities is guilty of racial profiling. This policy also does not allow for alternative measures such as reassignment, additional training, or psychological assessment that would give the officer an opportunity to redeem himself.

Lastly, punishment-based alternatives are generally ineffective in treating the root cause of the problem. Instead of determining “why” an officer has more stops involving minorities, this alternative is reactive in nature and only seeks to penalize the officer after this behavior is detected.

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Alternative #2 – Adjust Training and Policy Standards

The majority of law enforcement agencies across the nation require officers to complete yearly training to provide legal updates, refresher courses in officer safety, and to renew firearms qualification. In addition to these classes, departments should incorporate mandatory cultural sensitivity/diversity awareness training into the annual in-service training curriculum to specifically address racial profiling. In addition, agency policy could be adjusted to restrict officers to random interdiction and indiscriminate investigatory detentions.

Training in cultural sensitivity and diversity awareness would help dispel stereotypes and overcome communication barriers that exist between the police and minority communities. In the District of Columbia for example, the Diversity Awareness and Sensitivity Training Program was developed by the Institute for Public Safety & Justice to explore how issues of bias, prejudice, and stereotyping negatively impact effective law enforcement and the relationship between law enforcement agencies and the communities they serve. Representatives from cultural and community groups are invited to incorporate culture-specific information into the program (Institute for Public Safety and Justice).

While on patrol, police officers often use apparent violations of traffic laws as a pretext to stop and question drivers whom they suspect of involvement in illegal drug or firearm offenses. In actuality, the driver was stopped because of race. (Joh, 2007) With this alternative, agency policy would be adjusted to require officers to use “discretionless policing” and to prohibit pretextual traffic stops. Police officers would be required to take universal prescribed enforcement measures regardless of the circumstances of the stop. For instance, all drivers stopped for speeding, broken taillights, or seat belt violations would be asked the same questions and issued citations. In addition, officers conducting highway interdiction or running radar would be required to point their patrol vehicles away from traffic in order to eliminate racial identification as a factor in the decision to conduct a traffic stop.

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Critics of cultural sensitivity training for law enforcement view these efforts as an attempt at “political correctness” that is discriminatory and demeaning to non-minority officers. Training coordinators could also find it difficult to deciding which cultures should be highlighted in the training program. Some would view the inclusion of only African American and Hispanic cultures as singling out these races (or ethnicities) as having negative interactions with the police. As a result of this training, law enforcement officers may consciously or subconsciously treat these minority groups with “kid gloves”.

Police discretion is an integral part of effective policing. Forbidding the police from considering racial characteristics may reduce this effectiveness. Oftentimes, those who engage in certain criminal activities tend to share certain characteristics relating to specific socioeconomic and ethnic backgrounds. For instance, because of its low cost, the sale of crack cocaine is more common in poor, predominately African American communities. However, the sale of methamphetamine is more common amongst whites. Forcing the police to disregard such characteristics may lead to less effective policing and to increased crime. (Persico, 2002)

Alternative #3 – Early Intervention Program

Law enforcement agencies could implement an early intervention system that would be used to identify officers who appear to have a tendency towards racial profiling. This system would be a centralized database within the agency that compiles information to include: each officer’s assignment area (or zone), traffic enforcement data (of all individuals stopped or detained), citizen complaints, and a record of all tentative or final formal disciplinary actions taken against the officer in the past.

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Early intervention is not to be confused with a formal discipline, which carries a negative connotation. Whereas discipline involves official documented actions toward officers in response to substantiated misconduct allegations, early intervention actions are informal and confidential. Officers flagged by the early intervention system should be addressed in confidential counseling sessions and a Performance Improvement Plan (PIP) should be agreed upon between the supervisor and the officer.

Recommended Policy

An early intervention program represents a proactive approach eliminating racial profiling that tailors corrective measures to fit the individual officer. Early intervention systems are useful in identifying potential problems before they escalate into more serious issues requiring formal disciplinary action. Using this method also places greater accountability upon supervisors to closely monitor the performance of their subordinates. In contrast to traditional performance reviews that involve subjective assessments, this policy is objective in nature, identifying specific areas of performance, such as citizens’ complaints, and developing an appropriate response to these problems.

Implementation and Monitoring

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An early intervention program should include four basic components: performance indicators, an identification and selection process, intervention, and post-intervention monitoring (Walker, 2005, 108).

Performance indicators – Include data such as assignment area, racial demographic data of individuals detained (whether citation were issued or not), citizen complaints, and history of disciplinary actions.

Identification and Selection – Should be treated as two separate stages. This would result in some officers who are initially identified based on compiled data that would not be selected for intervention. Instead, the nature and context of these criteria should be further evaluated before selection is made. An officer working in a high-crime area is likely to receive more complaints than an officer working in a low-crime area. Therefore, officers identified in the system as having relatively high numbers of complaints would be subject to further screening that may reveal a legitimate explanation.

Intervention – Consists of confidential counseling between the selected officer and supervisor and may include the recommendation for remedial training specific to the officer’s needs. The counseling session should include a discussion of the performance problems identified by the system and an agreement on the steps that will be taken to correct these issues.

Post-intervention monitoring – Following the intervention, the supervisor would be required to monitor the selected officer’s performance for a specified time period. Once the time period has passed without a significant number of additional problem indicators, monitoring frequency may be decreased or discontinued.

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Funding

Funding could be accomplished by reallocating law enforcement grant funds to include a fund that designed to target racial profiling. These funds would be provided to departments as an incentive to voluntarily implement an early intervention strategy. Grants would be used towards assisting in startup, supervisor training, and maintenance of the system along with remedial training materials for officers.

Evaluative Criteria

Equity

Supervisors should analyze officer reports and field interview cards while continuing to monitor the early intervention system to access citizen contacts and the purpose for stops and/or arrests. Using this method of evaluation will ensure that officers are enforcing the law fairly across minority and non-minority populations.

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Liberty/Freedom

Periodic monitoring of the early intervention system would highlight the frequency and type of citizen complaints against an officer and would initiate further inquiry into the officer’s performance. From there, the department could determine if any civil rights violations have been committed by the officer and take immediate action.