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Institute on Race & Poverty's

Racial Profiling Data Collection Status Report
(This is a draft of a document that is a work in progress. Information in this document is being periodically updated and citations may not yet be complete.)

I. Background

Racial profiling is defined as "the practice of targeting people for police or security stops based on their race or ethnicity in the belief that certain ethnic groups may be more likely to commit a particular crime,"1 or based on unsupported assumptions about race and criminality. Available evidence suggests that racial bias in the criminal justice system may be most acute in the initial stages of interaction between law enforcement and the general public, so racial profiling warrants the public's acute attention.

In most states, police are not required by law to collect data regarding the race and ethnicity of individuals they stop, so evidence regarding the extent of racial bias is limited. However, the few studies conducted so far reveal substantial 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 I-95, 72.9 percent of the drivers stopped and searched by the Maryland state police on I-95 were African American.2 Studies of racial profiling have also shown that people of color are not more likely than whites to be carrying drugs in their vehicles. Thus, the traditional law enforcement justification for racial profiling - people of color are targeted because they are more likely to be guilty - is unfounded.

Racial profiling is most commonly associated with DWB (driving while black/brown). This practice extends into other aspects of the lives of people of color. For example, African Americans and Latinos are stopped in white neighborhoods simply because they look like they "don't belong."3 The literature examines other " . . . while black" phenomena: walking while black, idling while black, standing while black, shopping while black, and breathing while black.4 This injustice cuts across racial, class, and generational lines, creating an opportunity to form broad-based coalitions to address the problem.

Because the so-called "war on drugs" targets people of color, it has resulted in pervasive racial profiling by the police in the enforcement of drug laws. In fact, some would argue that skin color has now become a proxy for criminality.5 The emergence of crack cocaine in 1986 and the exaggerated press accounts of inner-city crack use have reinforced the public's impression that drug use is predominately a problem among low-income, urban, communities of color. Subsequent operations undertaken in cities across the nation have targeted these communities where drug dealing is easy to detect.6 As a result, arrests for drug possession reported by state and local police nearly doubled between 1981 and 1988.7

In 1986, the Drug Enforcement Agency (DEA) introduced a racially biased drug courier profile into the highway patrol in a nationwide drug interdiction training program called "Operation Pipeline." Approximately 27,000 police officers in 48 states have been trained to use pretext stops in order to find drugs in vehicles under this program.8

These policies of racial profiling are based on the untrue premises that most drug offenses are committed by minorities, and that profiling practices help catch criminals. Because police look for drugs mainly among African Americans and Latinos, they find disproportionate numbers of people of color with contraband. Consequently, more minorities are arrested, prosecuted, convicted, and jailed, thus reinforcing the perception that drug trafficking is primarily a minority activity, and perpetuating the assumption that it makes sense to stop a disproportionate share of blacks.9 The government admits, however, that 80 percent of the nation's cocaine users are white, and typically middle-class and suburban.10 Moreover, using minor traffic violations to find drugs on the highway is like trying to find needles in the haystack. For example, in 1997, the California Highway Patrol canine units stopped nearly 34,000 vehicles, of which only two
percent were carrying drugs.

The consequences of these policies and practices - along with harsher sentencing guidelines and mandates - are alarming. According to a 1999 report by The Sentencing Project for the U.S. Commission on Civil Rights, out of a total of 1.7 million inmates in the U.S. either awaiting trial or serving time, approximately 400,000 are in for drug offenses. African Americans constitute 13% of the country's drug users; 37% of those arrested on drug charges; 55% of those convicted; and 74% of all drug offenders sentenced to prison.11

The notion that minorities are more likely to engage in criminal activity means that, to the police, anyone who is African-American is automatically suspect every time s/he drives a car. Suspicion is thus focused on an entire racial group, and race becomes a proxy for general criminal propensity.12

The use of racial profiling demands our attention. By addressing this issue, we may be able to reduce discriminatory incarceration rates and reduce a source of tension between law enforcement agencies and personnel and communities of color. Further, the costs associated with race-related police abuses are significant, and include psychological trauma, humiliation and degradation, and a decline in the legitimacy of the criminal justice system.13 Police brutality lawsuits and institutional racism cost taxpayers tens of millions of dollars.14 It is intolerable to accept "blackness" as a standard indicator of criminality.15

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A. The Effect of Whren v. United States

The literature concludes that the U.S. Supreme Court's Whren decision marked a significant decline in the civil rights of minorities. Whren held that the temporary detention of a motorist upon probable cause to believe that he has violated the traffic laws does not violate the Fourth Amendment's prohibition against unreasonable seizures, even if a reasonable officer would not have stopped the motorist absent some additional law enforcement objective.16 A police officer who observes a minor traffic violation - a burned-out taillight, a cracked windshield, failure to signal when changing lanes - may stop the driver even if a hypothetical "reasonable officer" would not have "been motivated to stop the car by a desire to enforce the traffic laws."17 The officer may ask the driver questions unrelated to the purported purpose of the stop, and may attempt to secure consent to search the car.

The Whren decision has given the police virtually unlimited authority to stop and search any vehicle they want.18 David Harris suggests that under Whren we can expect African Americans and Latinos to be subjected to a greater number of pretextual traffic stops. Whren authorizes the use of police power against racial minorities in a disparate way, and Harris expresses disdain that the Supreme Court has failed to curb such abuse.19

Whren is just one in a series of cases that has undermined the rights of African Americans in the criminal justice system. Terry v. Ohio, for example, held that police can conduct a limited seizure and patdown search of a person based on a degree of suspicion that is less substantial than the "probable cause" standard that police must satisfy when conducting arrests.20 "Reasonable" suspicion was held to be enough to perform a "Terry stop and frisk" in response to "the need for law enforcement officers to protect themselves and other prospective victims of violence."21

The Terry case involved two black men standing on a street corner, peering into store windows in downtown Cleveland. A white plainclothes police officer concluded that the men were in the process of "casing a job." The officer grabbed Terry, pat down his outer clothing, and ultimately found guns on both men. In its decision to protect public safety over individual liberties, the Supreme Court excluded any discussion of race, which presented a dilemma in its analysis.22 The search and seizure had to be supported by specific facts that gave rise to reasonable suspicion, yet the officer articulated no reason for stopping the men other than "they didn't look right to me." In response to an amicus curiae brief filed by the NAACP, the Court explained, "the wholesale harassment by certain elements of the police community, of which many minority groups, particularly Negroes, frequently complain, will not be stopped by the exclusion of evidence from any criminal trial," and explained that exclusion would unnecessarily hamper and endanger police officers.23

In United States v. Martinez-Fuerte, the Court upheld the use of racial profiling for inspections at fixed checkpoints along the Mexican border without probable cause or reasonable suspicion of criminal activity. The Court upheld the practice on the ground that the intrusion was "sufficiently minimal that no particularized reason need exist to justify it."24

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B. Racial Profiling as a Civil Rights Issue

At every stage in the criminal justice process, people of color are treated far more severely than their white counterparts. Black citizens face a greater danger than whites that police will violate their Fourth Amendment protections: police use greater force against blacks, and black suspects may face greater difficulty in distinguishing between police requests that are mandatory and those that may be obeyed at the suspect's discretion.25 In response to this institutional injustice, David Harris writes, "[i]n a society dedicated to the ideal of equal justice under the law, forcing one group of citizens to put up with disparate treatment because of the color of their skin is positively abhorrent." Harris rejects the policy of treating all citizens like criminals in order to catch the offenders, because this policy choice favors crime prevention over all other values.26

Robin K. Magee asserts that the Supreme Court "has perpetuated a paradigm that privileges (often) white police officers with a presumption of innocence, contrasted with the presumption of guilt that burdens black males, which undermines their ability to receive fair hearings in cases involving police brutality, misconduct, or corruption.27 " She further explains that "racially biased results in the criminal justice system are a consequence of the combined disadvantages of persons of color and the advantages of whites and symbols of 'the whiteness.'"28

Pretextual stops aggravate years of accumulated feelings of injustice, resulting in distrust by African Americans toward the criminal justice system. Many courts have upheld the "out of place" doctrine, which allows officers to use a person's race as a basis for a stop if that person is in an area where another race predominates.29 Such a policy encourages police to view black men as de facto guilty, and results in the restriction of African Americans' freedom of movement.

Katheryn K. Russell has identified protective mechanisms that persons of color have developed to avoid stops - sitting with perfect posture while driving, traveling at precisely the posted speed limit, avoiding certain neighborhoods, not wearing baseball caps, avoiding flashy cars - or to minimize potential for harm if stopped - placing both hands on steering wheel, responding to officer's questions with "sir" and "ma'am," keeping the car radio tuned to a classical music station.30

A majority of whites believe that blacks face racism at the hands of the police, so the bias in the system undermines the integrity of the entire criminal process in the eyes of all people.31

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C. Racial Profiling is Unsound Policing

Racial profiling not only discriminates against communities of color, it is also simply an unsound, inefficient method of policing. The percentage of cars stopped for pretextual reasons that are found to be actually carrying contraband is extremely low. As noted above, in 1997 the California Highway Patrol Canine Unit stopped and searched 34,000 vehicles as a part of "Operation Pipeline", a major drug interdiction program that relies on pretext stops to search for illegal drugs. Of the 34,000 vehicles stopped, only 2% contained any illegal drugs. David Harris points out that programs like "Operation Pipeline," which are based on a high volume of pretext stops and searches, rely heavily on racial profiling. He highlights a study of a similar program that was initiated by the Illinois State Police called "Operation Valkyrie." Troopers assigned to Valkyrie units stopped Hispanic drivers for traffic violations two or three time more frequently than other ISP officers. This discrepancy became especially clear in the case of discretionary offences such as failing to signal a lane change. In addition, while Hispanics comprise less than eight percent of the Illinois population, and take fewer than three percent of the personal vehicle trips, they comprised 27 percent of the searches conducted by Valkyrie officers. In one district, where less than 1 percent of the population is Hispanic, 41 percent of the people subjected to police searches were Hispanic. Similar disparities were found for African-Americans.32

A common law enforcement justification for such disparities is that it makes sense to stop people of color in greater numbers, because they are more likely to be guilty. Yet data collected in [Maryland? New Jersey?] show that neither African Americans nor Hispanics are more likely than whites to be found with contraband in their vehicles. [citation] As a result, state and local police departments put a lot of effort and resources into these racially discriminatory strategies and get very little out of them.

Another crucial reason why racial-profiling is an inefficient method of policing has to do with community policing. Racial-profiling, or the widespread pretextual stopping and searching of innocent people of color, tends to alienate communities of color from those who are supposedly there to "serve and protect" them. This makes citizens of color less likely to cooperate with law enforcement officers. Because a major impediment to successful police work is a lack of community support, racial profiling actually reduces, rather than enhancing, police effectiveness.

Data collection can be a useful management tool for law enforcement agencies to monitor the performance of their officers, and to eliminate the discriminatory and inefficient practice of racial profiling. Although racial profiling often occurs because of systemic factors, procedures, and law enforcement structures, it cannot be disputed that there are some bad police officers that engage in unacceptable behavior. By using data collection as an oversight and management tool to insure officer accountability, departments could identify officers who engage in profiling and other unacceptable forms of behavior and thereby work to eliminate the problem on both a personal and a departmental scale.

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D. Suggested Solutions

The literature offers many strategies for curbing the use of racial profiling for the alleged purpose of reducing crime. Sean Hecker suggests that "[p]olice civilian review agencies, vested with the power to investigate and address the problems associated with pretext stops, offer the best approach to fighting the real and perceived discrimination in pretextual traffic stops."33 Jennifer Larabee asserts that there should be a new equal protection test for analyzing consideration of race by police in detaining motorists for traffic violations.34

Similarly, Tracey Maclin suggests that because pretextual traffic stops unreasonably use racial profiling, the Supreme Court should make racial impact a factor in determining the constitutionality of the pretextual seizure.35

The ACLU explains that Title VI of the Civil Rights Act of 1964 could serve as an important protection against civil rights violations. Title VI prohibits any program or activity that receives federal funding from discriminating on the basis of race. Every law enforcement agency receives federal funding.

The ACLU-Northern California has established a hotline for people to call if they believe they have been stopped or searched by police only because of their race.

Most authors advocate the passage of legislation requiring law enforcement officials to collect data on the race and ethnicity of the motorists they stop. Without such data it is extremely difficult to prove that race-based stops actually happen and that this problem deserves the voting public's attention. Other plans of action include policy reform and voluntary data collection, police training, litigation, grassroots organizing, and expanding public education efforts. Additionally, the ACLU advocates ending the use of pretext stops, such as the use of minor traffic violations to find drugs on the highways; passing the federal Traffic Stops Statistics Study Act to document the disproportionate number of minorities stopped; ensuring that racial profiling is not used in federally funded drug interdiction programs; and collecting traffic stop data in every major city.

David Crump warns that "Driving While Black Bills" do not make an individual claim of racial discrimination by the police more readily available than it is under current equal protection precedent. The results of statistical studies of racially motivated stops are generally not admissible in judicial or administrative proceedings.36 Litigation about profiling is challenging, given that the Supreme Court fails to provide an effective remedy for discriminatory pretextual traffic stops.37 Precedent shows that the Equal Protection Clause will not protect racial minorities from racially motivated stops.38

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II. Who is Collecting Race and Other Data on Stops and Why

Police departments begin collecting racial data under one of four circumstances:

· Legislation mandates data collection;
· Litigation forces data collection;
· Executive order or local ordinance requires data collection;
· Departments volunteer due to general public concern or request.

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A. Legislation

Ten states have enacted legislation aimed at curbing racial profiling: California, Connecticut, Kansas, Missouri, North Carolina, Oklahoma, Oregon, Rhode Island, Tennessee, and Washington.

Connecticut Act

The Connecticut Act, which was passed June 28th, 1999, outlaws racial profiling by law enforcement agencies. Law enforcement agencies in the state must adopt a written policy that prohibits stops, searches, and detentions based on race, color, ethnicity, age, gender or sexual orientation.

Beyond the basic prohibition of racial profiling , the act establishes requirements for the collection of information at all traffic stops. Departments are required to record:

1. The total number of people stopped;
2. The race/ethnicity, gender, and age of each person stopped;
3. The reason for the stop (the alleged violation);
4. Whether the stop resulted in a search, citation, or arrest.

This information is the minimum required, but departments may collect more at their own discretion.

The collected information must be presented to the state attorney general in annual reports. In addition, each complaint received by a department pursuant to the Act, along with written documentation of the review of the complaint, must be given to the attorney general. Finally, the attorney general's office, having received these reports, must review the information, and present their findings regarding police stops to the Governor and Assembly by Jan. 1 2002. The Act's requirements of department reports and state review are in effect only until Jan. 2002.

Kansas Act

The Kansas Act requires the governor, with the assistance of the attorney general and the Kansas Law Enforcement Training Commission, to "develop a request for proposal for a system" to collect and report statistics relating to people who come into contact with law enforcement.

Proposals submitted are to include a system to collect data on a "statistically significant" sample of people arrested, stopped while driving, and stopped as pedestrians. The data collected is to include the race, ethnicity, gender, age, and residency by state and county of each person stopped or arrested. Data collected may not contain any information revealing the identity of any individual.

Proposals must also include a schedule and plan of implementation, including training, and a system for collecting complaints of bias received by law enforcement agencies.

The governor will select the most comprehensive proposal for implementation, "subject to the availability of any grant or grants for such purpose from the United States department of justice or any other governmental or private agency.

The results of the study are to be submitted to the governor and attorney general within 90 days of the conclusion of the study. The governor will then submit a report to the legislature, with at least one of the following: an evaluation of the study, recommendations for expanding the study and/or making the study permanent, or recommendations to improve law enforcement training and operations to address racial, ethnic, gender, age or residency bias.

Missouri Act

The Missouri Legislature recently passed a bill mandating data collection that is expected to be signed in June. Every time peace officers stop a car, the bill requires them to record:

1. The age, gender, and race of the person stopped:
2. The alleged violation;
3. Whether a search was conducted;
4. If a search was conducted, whether the person consented, what the probable cause for the search was, whether the person's property was searched, and the duration of the search;
5. Whether any contraband was found and what kind;
6. Whether a warning or citation was given, and if so what for;
7. Whether an arrest was made and what for;
8. The location of the stop.

Each agency reports to the attorney general, and the attorney general analyzes the information and reports to the governor, the assembly, and local agencies. The attorney general's report must include the total number of vehicles stopped, the number and percentage of stopped vehicles that were driven by each particular minority group, and a comparison between that percentage and the percentage for the state's population.

In addition to mandating the collection of the above information, the bill sets guidelines for law enforcement agencies to follow regarding race-based stops. Agencies must adopt policies that prohibit the routine use of pretextual traffic stops. Furthermore, agencies must conduct periodic reviews of the attorney general's report to determine if any of their officers are disproportionately stopping minorities. If they are, an investigation must be held, and officers who don't comply must submit to appropriate counseling and training. Annual "sensitivity" training is to be given that "shall stress understanding and respect for racial and cultural differences" and noncombative law enforcement methods for a multi-cultural environment. Also, agencies are authorized to use federal community policing funds to purchase video cameras or microphones for their squad cars.

Finally, the bill states that cities or counties "may" set up civilian review boards. These boards are authorized only to make recommendations, and may not make recommendations based solely on an unsworn complaint or statement, or on unsubstantiated or withdrawn complaints.

North Carolina Act

This Act, passed April 22, 1999, adds the collection of traffic stop information to the duties of the pre-existing Division of Criminal Statistics, which is under the auspices of the Department of Justice and the State Attorney General. The information that is required to be collected at each stop is more thorough than the Connecticut requirements. The officers must record:

1. The number of drivers stopped and whether a citation or warning was given;
2. The race, ethnicity, age, and gender of each person stopped;
3. The alleged violation;
4. Whether a search ensued;
5. Whether the vehicle, personal effects, driver, or passengers were searched, and the race, age, and gender of each person searched;
6. Whether the search was conducted pursuant to consent, probable cause, or reasonable suspicion, as well as the basis for consent or the reasons for probable cause or suspicion;
7. Whether contraband was found, and what type and the amount of contraband;
8. Whether a citation or warning was given;
9. Whether an arrest was made;
10. Whether any property was seized, and what it was;
11. Whether the officers encountered any physical resistance;
12. Whether the officer used force;
13. Whether any injuries resulted;
14. Whether the circumstances of the stop were the subject of an investigation, and the results of the investigation.

This information need not be collected in connection with impaired driving checks or other types of roadblocks, vehicle checks, or checkpoints.

The Division is also required to analyze the information, correlate it with information collected by federal agencies, and provide reports to the governor and assembly biennially.

Oklahoma Act

The Oklahoma Act outlaws racial profiling, and states that race may not be used as a basis for probable cause or suspicion. The Act makes racial profiling, defined as "the detention, interdiction or other disparate treatment of an individual solely on the basis of the racial or ethnic status of such individual," a misdemeanor.

The Act requires every state and local law enforcement agency to adopt a written policy outlawing racial profiling as defined in the Act.

The Act also sets up a procedure by which a person who believes s/he has been stopped or arrested in violation of the Act can file complaints with the Oklahoma Human Rights Commission, and with the local prosecutor. A copy of each complaint will be forwarded to the employer of the officer in question for investigation for purposes of disciplinary action and/or criminal prosecution. The Human Rights Commission shall provide an annual report to the governor and legislature of all complaints of racial profiling.

Oregon Act

The Oregon Act is primarily concerned with the establishment of basic police procedure when making stops, frisking people, searching vehicles, etc. It stresses that an officer must have reasonable cause to make stops, make searches, and so forth, and provides vague guidelines for what is to be considered reasonable, while leaving much to the discretion of the officer. The Act does not mention race, or race-based stops until the end, and then is far less specific than either the Connecticut or North Carolina Acts.

The Act requires that agencies adopt policies prohibiting the stopping, detention, or searching of people when the action is motivated by the officer's perception of race, age, or gender, or when it would violate the person's civil rights. Additionally, the Act requires the establishment of a process to facilitate the reporting of complaints, to review complaints, and to collect data. The Act states that violations of this portion that deals with race-based stops is grounds for corrective action, and that the data collected under this Act must be provided to the Asset Forfeiture Oversight Committee, which in turn will submit a report to the legislature.

Rhode Island Act

The Rhode Island Act creates an advisory committee to advise and assist the attorney general in conducting a study of traffic stops in Rhode Island. The 13-member committee is to be made up of: three members of the house, three members of the senate, two members to be appointed by the governor, the president of the Rhode Island Police Chiefs Association, the executive director of the Urban League of Rhode Island, the executive director of the National Conference for Community and Justice, the executive director of the Rhode island Commission for Human Rights, and a professor of statistics from a Rhode Island University to be appointed by the governor.

The study requires officers to fill out a form for each motorist stopped, including the following information:

1. The date, time, and location of the stop;
2. The race or ethnicity, gender, and approximate age of the driver stopped;
3. The alleged violation that led to the stop;
4. Whether a search was conducted;
5. The scope of any search;
6. Whether the search was conducted pursuant to consent, probable cause, or reasonable suspicion;
7. Whether any contraband, including money, was seized, and what it was;
8. Whether a citation or warning was given;
9. Whether an arrest was made;
10. The approximate duration of the stop;
11. Whether the vehicle is registered in Rhode Island or out of state.

Law enforcement agencies are required to submit monthly reports to the attorney general that include all of the forms collected, and any complaints filed by motorists who believed they were the subject of racial profiling, without identifying the complainant, or the officer involved. The attorney general is to conduct the study for twenty months, and submit a final report to the governor and the general assembly. In addition, the attorney general is to prepare a quarterly report summarizing the monthly reports received from police departments. This quarterly report would be a public record.

The attorney general is directed to procure the services of an outside organization with an expertise in statistics to assist with the study. The outside entity will help with the design of the methodology of the study, monitor compliance with the Act, and conduct a final statistical analysis at the conclusion to determine if racial profiling is happening.

In contrast to many states' bills, Rhode Island's provides funding to the attorney general for implementation of the study.

Finally, police departments are to adopt written policies banning racial profiling and outlining a plan to collect and transmit the data to the attorney general. They will be held accountable for compliance through civil actions taken by either the attorney general or outside organizations.

Tennessee Act

The Tennessee Act directs the Tennessee Highway Patrol and any local law enforcement agencies that volunteer to participate, to record the following data:

1. The number of people stopped for traffic violations;
2. The race, age, and gender of each person stopped (according to the officer's perception);
3. The alleged violation that led to the stop;
4. Whether a warning or citation was given, or an arrest made;
5. Whether a search was conducted, and if so, the type of search and the legal basis for the search, and whether any contraband was found or property was seized.

Agencies are required to report the data collected to the comptroller of the treasury, who reports on the prevalence and disposition of stops to the governor and the general assembly. The program will be in effect only until July 1, 2002.

Washington Act

The Washington State Act requires the Washington State Patrol to collect information on traffic stops and report semi-annually to the Criminal Justice Training Commission. The state patrol officers are required to record:

1. The number of people stopped for routine traffic stops;
2. The race, age, and gender of each person stopped;
3. The nature of the alleged violation;
4. Whether a search was made;
5. Whether an arrest was made or citation given.

The Criminal Justice Training Commission is required to make a report on the information to the legislature by Dec. 1, 2000.

In addition, the state patrol is instructed to work with the Training Commission and the Washington association of sheriffs and police chiefs to further develop collection and evaluation criteria, and to create training materials on racial profiling for local law enforcement agencies. The state patrol and the association of sheriffs is also instructed to "encourage" local law enforcement to voluntarily collect data on traffic stops, and to provide the legislature with information regarding which agencies are collecting information, what information they are collecting, and how the information is being used.

Analysis of the legislation

Of the nine acts that have been passed, three of them - the acts from Oregon, Oklahoma, and Kansas - are extremely unspecific and ineffective. The Oklahoma Act does not mandate any sort of data collection, and simply outlaws racial profiling, which is already illegal under Title IV of the 1964 Civil Rights Act. The Oregon Act mandates data collection, but is the least specific about what data is to be collected. It prohibits race-based stops, but it does not provide any specific requirements for the manner in which data is collected or monitored by police. Therefore, it leaves anti-racial bias policies and data collection procedures to be created by individual departments or agencies.

The Kansas Act also leaves a good deal to be created by local departments, and could be described as a statewide suggestion box for how to create a data collection program, rather than a bill that mandates one. In fact, the Act does not specifically require data to be collected, it merely solicits ideas about how a data collection program could be initiated. However, the Act does create some requirements for what sorts of data are to be collected. Interestingly, the Act requires that departments plan to collect data on pedestrian stops as well as on traffic stops, an important feature that no other bill contains.

The Washington and Tennessee Acts is also weak, in that they only require the state patrol to collect data, while local law enforcement agencies are simply encouraged to act voluntarily. This leaves even more discretionary powers to individual police departments than does the Oregon Act, which at least requires some sort of data collection, however vague.

The North Carolina Act requires a more extensive set of information than does the Connecticut Act, but the two acts are comparable regarding the requirements for reporting the data collected. The Connecticut act is more specific about the collection and reporting of individual complaints, but the program outlined in the Act is in effect only for a short time, until January 2002. The requirements set forth in the North Carolina Act, on the other hand, are built into the operations of the Criminal Statistics Division, a permanent state agency within the Department of Justice.

The Missouri Act, although thorough in terms of the information it requires and innovative in its use of counseling, diversity training, and the use of non-combative techniques, does not hold the police accountable to an outside authority. The department itself is responsible for reviewing the attorney general's report, and is responsible for investigating itself in the event that a pattern of racial bias appears. Furthermore, the Act allows for, but does not mandate, civilian review boards. Even if they were mandated, the civilian review boards have no real authority over police departments. This Act seems useful in collecting evidence that racial profiling is happening. However, although the governor can limit an agency's funding for non-compliance, the Act does not provide a strong outside authority to force the police to change in the event that they themselves don't find anything wrong with their own conduct.

The Rhode Island Act is comparable to the Missouri Act, although the data collection program mandated in Rhode Island is more thorough. More oversight by a relatively balanced state committee is required in Rhode Island, and reports are to be made more often. Furthermore, the reports are to be made public. Importantly, the state is required to enlist the assistance of an outside entity in the design and implementation of the collection program. Failure to comply with the requirements of the Act may be grounds for a civil suit, and the act explicitly allows and encourages such legal action. Rhode Island, unlike virtually all other states, provides additional state funds for its data collection program. However, although the data collection is fairly extensive, like the Missouri Act, it does not tie the data collection program into police management or early warning systems. It does not emphasize a potential change in police practices, should evidence of racial profiling come to light, as the Missouri Act hints at by requiring police departments to stop the use of pretext stops. The data collection program in Rhode Island could be strengthened by integrating the collection of data with police management, oversight, and officer accountability structures.

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B. Pending Legislation

Racial profiling and data-collection legislation is pending in at least 21 states. The following is a summary and analysis of bills currently pending in Alabama, Arkansas, Florida, Iowa, Illinois, Indiana, Kansas, Kentucky, Maryland, Massachusetts, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah, Wisconsin, and Virginia.

Alabama Bill (SB 374)

The bill outlaws racial profiling, and requires the Department of Public Safety and all municipal police departments to adopt written policies that prohibit stops and searches on the basis of race, gender, or sexual orientation. The bill further requires that the Department of Public Safety and all municipal departments to record the following information:

1. The number of motorists stopped;
2. The race, color, ethnicity, and age of each person stopped, according to the officer's perception;
3. The alleged traffic violation that resulted in the stop;
4. Whether a warning or citation was issued, an arrest made, or a search conducted;
5. Any additional information that the department deems appropriate.

Departments are required to provide the attorney general with a copy of each complaint in reference to this bill, and notification of a review of the complaint.

Each department is required to provide the attorney general with an annual report, beginning October 1st, 2001, based on the collected information. The attorney general will then provide a review of prevalence and disposition of traffic stops and complaints, and submit a report to the legislature and governor, along with recommendations.

Departments will be held accountable for fulfilling the requirements of the Act through the withholding of funding.

Arkansas Bill (HB 1261)

The Arkansas bill is directed at the Arkansas State Police. It requires all troopers to record the following:

1. The number of individuals stopped for routine traffic violations;
2. The race or ethnicity and approximate age of each person stopped;
3. The alleged infraction that led to the stop;
4. Whether a search was conducted;
5. The scope of the search and the rationale for the search;
6. Whether any contraband was found and what it was;
7. Whether a warning or citation was given
8. Whether an arrest was made.

The director of the State Highway Patrol is required to publish an annual summary of the data collected.

California Bill (SB 66)

State Senator Murray introduced a bill called SB 1389, that mandated the collection of traffic stop data, and report on the data once a year until 2005. The data that was to be collected included:

1. The number of vehicles stopped
2. Whether a citation was issued
3. The race of the person stopped
4. Whether the stop was based on a violation of the penal code, the vehicle code, a local ordinance, or the fact that the appearance of the vehicle or driver matched the description of a crime suspect or vehicle used in a crime
5. Whether a search took place
6. Whether weapons, controlled substances, cash, or other property believed to be unlawful were found
7. Whether a citation, warning, or arrest was made

The bill required a statistical analysis of the information and an annual report to the Governor and Legislature.

However, under pressure from Governor Davis, Murray withdrew the above bill and re-introduced an amended version of a different bill: SB 66, or the Anti-Racial Profiling Act of 2000, which Governor Davis has signed. The Act outlaws racial profiling, stating that it is a practice that "presents a great danger to the fundamental principles of democratic society," that it is "abhorrent" and "cannot be tolerated."

Aside from outlawing racial profiling, the bill contains two new requirements. First, law enforcement officers are required to provide their business card to any person detained in a traffic stop, whether a citation was given or not. The card would include the officer's name, division, precinct, badge number, as well as a phone number that "may be used for any comments, positive or negative, regarding a specific incident."

Second, the act requires all law enforcement officers to participate in expanded training programs that will include an examination of the patterns, practices, and protocols that result in racial profiling, and prescribe new ones that prevent profiling. The curriculum for the training will be created by the Commission on Peace Officers Standards and Training, the Tools for Tolerance for Law Enforcement Professionals Program, and a five-person community advisory panel appointed by the governor.

Florida Bill (HB 177)

The Florida bill creates the Florida Traffic Stop Evaluation Task Force and establishes its duties, and creates requirements for the collecting, reporting, and analyzing traffic stop data. The task force must conduct a study of the practices used by law enforcement agencies in making traffic stops, to analyze the data and draw conclusions, and to report its findings to the governor and to the legislature.

The bill specifies that the task force is to include seven members: the attorney general or the attorney general's designee, a member of the Florida Sheriffs Association, a member of the Florida Police Chiefs Association, a member of the Florida Highway Patrol, an at-large member who is a representative of the ACLU, a member of the house of representatives, and a member of the senate. The governor appoints the members, except for the legislators, who are appointed by their respective speakers. The staffing for the task force is to be provided from the attorney general's office, and the task force may appoint sub-committees.

The bill requires all law enforcement officers to collect the following the data on traffic stops from July 1, 2000, to June 30, 2001:

1. A description of the vehicle, including manufacturer;
2. The license number;
3. The race, age, and gender of all occupants of the vehicle;
4. The exact location and time at which the stop occurred;
5. The alleged violation that was the basis for the stop;
6. Whether a stop was conducted of the vehicle or the occupants, the rationale for the search, and how it was instituted;
7. The nature of any contraband found;
8. Whether a warning or citation was given, or whether an arrest was made;
9. Whether any items were seized for forfeiture.

Departments are required to transmit the data each month to the Office of the Attorney General, and the attorney general then will transmit the data to the task force. In addition, the attorney general is required to prepare a quarterly analysis of the data, which is to include, at minimum:

1. The total number of vehicles stopped;
2. The number and percentage of motorists stopped who are members of racial or ethnic minorities;
3. A comparison between the percentage of minority drivers stopped and the percentage of that minority in the state's population;
4. A statement on the benefit of traffic stops with regard to the interdiction of drugs and proceeds from drug trafficking, including the approximate quantity and street value of seized drugs and drug trafficking proceeds.

Finally, the bill provides $150,000 to the Office of Civil Rights to fund two positions and to carry out the purposes of the act and the duties of the task force.

Iowa Bill (Senate File 2183)

The Iowa bill would require the Department of Public Safety to create a central data depository. Law enforcement agencies would be required to furnish the following data for each stop:

1. The driver's race, age, and gender;
2. Whether a search was conducted;
3. Whether a citation was given or an arrest made.

The department would be required to submit an annual report to the general assembly.

Illinois Act (HB 3911)

The Illinois bill establishes a four-year traffic data collection program, and states that whenever a State law enforcement officer issues a uniform traffic citation or warning citation for an alleged violation of the Illinois Vehicle Code, the officer will provide the following additional information on the citation:

1. The race of the motorist;
2. Whether a search was conducted.

The director of the state police will then submit the data to the secretary of state, who is required to study the data to determine whether discrimination is taking place. The bill states that the report shall not contain any information regarding the identity of persons stopped, or of any law enforcement officer.

Indiana Bill (SB 487)

This bill initiates a study to be conducted by the Indiana Attorney General's Office on routine traffic stops. The study is to include the collection and analysis of information about all traffic stops in the state. The information collected is to include:

1. The number of individuals stopped;
2. Race, ethnicity, age and gender of each motorist stopped;
3. The location of the stop;
4. The time of the stop;
5. The alleged violation that led to the stop;
6. Whether a search was conducted;
7. The scope of the search and the rationale;
8. Whether the search was pursuant to consent, probable cause, or reasonable suspicion
9. Whether any contraband was discovered;
10. The nature of the contraband;
11. Whether a warning or citation was given;
12. Whether an arrest was made;
13. Other factors deemed appropriate by the attorney general.

The study is to last from July 1st, 2001, to July 1st, 2002. According to the bill, the report that the attorney general is to submit to the legislature may not be used for any legal or administrative proceedings to establish an inference of discrimination based on certain characteristics, and, just as in the Illinois bill, the report may not reveal the identity of any individual stopped or any law enforcement officer.

Kentucky Bill (SB 222)

The Kentucky bill requires officers to record and report to the attorney general the following information on each traffic stop:

1. A description of the vehicle, including its manufacturer and license plate number;
2. The race, approximate age, and gender of the driver and occupants;
3. The exact time and location of the stop;
4. The alleged breach of the criminal law that resulted in the stop;
5. If the stop resulted in a search, the rationale for the search and how the search was instituted;
6. Whether and contraband was discovered and the nature of the contraband;
7. Whether an oral or written warning or citation was given or an arrest made;
8. Whether any item was seized for forfeiture.

The attorney general is required to analyze the data and report on:

1. The total number of vehicles stopped during the year;
2. Of the total, the number and percentage of vehicles driven by each particular minority group;
3. A comparison between the percentage of stops for each minority group and the population percentage of that group;
4. The benefit of traffic stops with regard to the interdiction of controlled substances and proceeds from the trafficking in controlled substances, including the amount and value of seized contraband and proceeds.

The attorney general is required to submit a report along with recommendations annually to the general assembly.

Massachusetts Bill (SB 1180)

The Massachusetts Traffic Stops Statistics Act directs the attorney general to conduct a study of routine traffic stops by collecting the following data:

1. The number of individuals stopped;
2. The race or ethnicity and approximate age of each motorist stopped;
3. The alleged infraction;
4. Whether a search was conducted
5. How the search was conducted;
6. The rationale for the search;
7. Whether any contraband was discovered;
8. The nature of the contraband;
9. Whether a warning or citation was given;
10. Whether an arrest was made;

The data is not to be used for legal or administrative proceedings to establish an inference of discrimination, and may not reveal the identities of those stopped or of law enforcement officers. A report on the study is to be made to the legislature no later than two years following the passage of the bill.

Maryland Bill (HB 225)

The program for data collection outlined by HB 225 is to be formulated and overseen by the Police Training Commission, which is a unit with the Department of Public Safety, along with the Maryland Justice Analysis Center (MJAC). These organizations are responsible for creating: a uniform form for recording traffic stop data, guidelines to be used by agencies as a management tool to evaluate data collected for use in counseling and training, a standardized format for the reporting of data to the MJAC, and a model policy against race-based traffic stops.

The requirements of the bill would apply initially to agencies with 100 or more officers. Agencies with 50 or more officers would be included after a year, and all agencies after two years.

Officers are required to record the following information at all traffic stops until December 31, 2005:

1. The date, location, and time of the stop;
2. The approximate duration of the stop;
3. The alleged violation
4. Whether a search was conducted;
5. Whether any search was consensual or nonconsensual, and whether the person or the person's property was searched;
6. Whether any contraband or other property was seized;
7. Whether a warning, safety repair order, or citation was given;
8. The warning, citation, or order given;
9. Whether an arrest was made;
10. The crime charged in the case of arrest;
11. The state in which the stopped vehicle is registered;
12. The gender of the driver;
13. The birth date of the driver;
14. The state and, if available, the county of residence for the driver;
15. The race or ethnicity of the driver as Asian, Black, Hispanic, White, or other.

Agencies are required to compile the data and submit an annual report to the MJAC. The MJAC, in consultation with the Police Training Commission, will analyze the annual reports, and submit an annual report to the governor, the general assembly, and each law enforcement agency.

In addition, each law enforcement agency is required to adopt a policy against race-based traffic stops that is to be used as a management tool to promote nondiscriminatory law enforcement and in the training and counseling of its officers. The policy will prohibit race-based stops, but may not undermine police authority to make stops, arrests, searches, or conduct other obligations.

If an agency fails to comply with this law, its non-compliance will first be reported to the Police Training Commission, who will urge compliance, and will then be reported to the Governor and the General Assembly. However, there are no consequences specified for non-compliance.

New Jersey Bill (SB 863)

The New Jersey bill calls for the establishment and maintenance of a database of information collected by the state police. The information collected by the state police and entered in the database is to include:

1. The race, sex, and age of any subject of a motor vehicle stop, pursuit, search or arrest;
2. The time and location of any stop, pursuit, search, or arrest;
3. The reason for any stop, pursuit, search, or arrest, and any charge brought;
4. The race, sex, and age of any person taken into custody;
5. The identity, including name and badge number, of all law enforcement officers who make stops or arrests;
6. A description of any force used in the stop or search, and the identities of those who used such force;
7. The reason for the use of force;
8. A description of any property seized;
9. The disposition of any charge brought as a result of the stop or search;
10. The identity of any witnesses to the incident;
11. The nature and disposition of any formal or informal complaint lodged by the subject or others as a result of the stop or search;
12. Disciplinary actions taken against an officer or trooper, including the type of complaint and degree of seriousness;
13. Criminal or civil actions filed against the officer alleging criminal acts, domestic violence or civil rights violations;
14. Any other information deemed necessary.

The superintendent of state police is required to make an annual report to the governor and legislature on the data collected.

The information collected and entered into the database is to be used to create a computerized personnel early warning system, so that the performance of individual officers can be analyzed over time. The early warning system will be aimed at identifying those officers who show a tendency to stop, search, or use force against people based on their race. When a pattern of unacceptable behavior is found, the officer's supervisor will be informed, as will the state police superintendent.

In addition, the superintendent will be responsible for establishing a program to address and eliminate patterns of unacceptable behavior in individual officers. This program will include psychological testing, counseling, re-education and training, as well as disciplinary procedures. Officers who persist in unacceptable behavior will be dismissed. "Unacceptable behavior" is taken to mean law enforcement activity initiated on the basis of race or sex, other sorts of discrimination, excessive force, or any other violation of State Police policy.

Finally, the superintendent will establish a training program for personnel in supervisory or administrative roles to train them in the purpose and operation of the early warning system; the reason for data collection; how to use the system as a tool to improve management and performance, performance assessment and counseling; and the training and re-education for officers engaging in unacceptable behavior.

New York Bill (SB 6094)

The New York bill calls for the collection of the following data by all law enforcement officers:

1. The number of drivers stopped and whether a citation or warning was issued;
2. The race, sex, and age of each driver stopped;
3. The alleged violation that led to the stop;
4. Whether a search was conducted;
5. Whether the vehicle, personal effects, driver, or passengers were searched, and the race, gender, and age of each person searched;
6. Whether the search was based on consent, probable cause, or reasonable suspicion, and the basis for the search;
7. Whether any contraband was found, and the type and amount of contraband;
8. Whether a citation or warning was given;
9. Whether an arrest was made;
10. Whether any property was seized, and what it was;
11. Whether the officer encountered any resistance;
12. Whether the officer used any force;
13. Whether any injuries resulted from the stop;
14. Whether the circumstances of the stop were subject to any investigation and if so, the results of that investigation.

The information is to be compiled and analyzed to look for statistical aberrations - e.g., if the percentage of minority drivers stopped is significantly higher than that group's percentage in the population, or if a significant number of false stops (i.e., stops where no citation or warning was given) occur - and an annual report made to the governor and legislature.

The data collected is to be made available to the department of law and to the attorney general in the event of any complaints, and these bodies will be responsible for investigating complaints.

Ohio Bill (HB 363)

The Ohio bill requires law enforcement officers to collect the following data for all traffic stops:

1. A description of the vehicle;
2. The license plate number;
3. The race, approximate age, and gender of the driver and all occupants;
4. The exact location of the stop;
5. The time of the stop;
6. The alleged violation that resulted in the stop;
7. Whether a search was conducted;
8. The rationale for any search and how the search was conducted;
9. Whether any contraband was found and what it was;
10. Whether a citation or warning was given;
11. Whether an arrest was made;
12. Whether any items were seized.

Agencies are required to report the data to the attorney general at least once a year. The attorney general will analyze the data to determine the total number of motor vehicle stops made, a comparison between the percentage of minorities stopped and the percentage of minorities in the population, and the benefit of traffic stops to the interdiction of drugs and the proceeds from drug trafficking, including the amount and value of drugs and proceeds seized. The attorney general will report to the general assembly annually.

Pennsylvania Bill (HB 873)

The Pennsylvania bill requires the attorney general to collect the following information:

1. The number of individuals stopped;
2. The race, gender, and approximate age of each person stopped;
3. The alleged violation that led to the stop;
4. Whether a search was conducted;
5. The manner in which the search was instituted;
6. The rationale for the search;
7. Whether any contraband was found;
8. The nature of such contraband;
9. Whether a warning or citation was given;
10. Whether an arrest was made;
11. The benefit of traffic stops to the interdiction of drugs and proceeds from trafficking, including the approximate quantity and value of drugs and proceeds seized;
12. Any other information deemed appropriate by the Attorney General.

The bill specifies that the data may not be used in legislative or administrative proceedings to establish discrimination, and that it may not identify those stopped or the law enforcement officers involved.

The attorney general is to report on the findings of the study no later than two years after the law takes effect.

South Carolina Bill (SB 778)

The South Carolina bill mandates the collection of the following information by all law enforcement agencies:

1. The number of drivers stopped who are issued warnings or citations;
2. The race, age, and gender of each driver stopped and given a citation or warning;
3. The alleged violation that led to the stop;
4. Whether a search was conducted;
5. The basis for the search;
6. The race or ethnicity of the officer.

The Department of Public Safety must report annually to the legislature the number of licensed drivers in each county, and categorize the licensed drivers by age, gender, and race. In addition, the collected data must be reported to the legislature each year. Also, the Department of Public Safety and other agencies must annually publish reports regarding formal complaints by the public. These reports must include the following information:

The number of complaints received by type and location of incident
The gender, age, and race of the complainants, and of the officers involved;
The disposition of each complaint: a.) the officer is exonerated because actions taken were justified; b.) the investigation proved the allegation; c.) sufficient evidence was not provided to prove or disprove the allegation; or d.) the allegation was unfounded;
The total number of disciplinary actions, organized by type of action.

The annual report may not include the name or badge number of officers involved, or any other identifying information on complainants or officers.

Utah Bill (HB 106)

The Utah bill prohibits racial profiling and requires law enforcement agencies to adopt written policies prohibiting racial profiling. In addition, it requires the collection of the following information:

1. The number of traffic stops made by the agency;
2. The race, gender, and age of each driver stopped;
3. The reason for stopping the vehicle;
4. Whether a search was conducted;
5. The time and location of the stop;
6. Any additional information the agency deems appropriate.

After recording each traffic stop, the officer must issue a form letter to the driver of the vehicle that indicates the benefits of pro-active traffic enforcement, the procedure to file a complaint, and the officer's name and badge number.

Agencies are required to report to the Department of Public Safety quarterly on the information collected regarding traffic stops and citations, as well as a copy of each complaint and written documentation of review. The Commissioner of Public Safety shall study the information and report to the attorney general, the governor, and the legislature by January 1, 2004. Agencies that do not comply with the Act will lose their state funding.

Virginia Bill (SB 743)

The Virginia bill requires the Superintendent of State Police to record:

1. The race, gender, and age of each motorist stopped;
2. The reason for the stop;
3. Whether the traffic stop results in a search of the driver or vehicle;
4. Whether the driver is detained for questioning, or is charged or arrested for an alleged criminal offense.

The superintendent is also responsible for developing a mechanism for collecting, analyzing, synthesizing, and validating the data collected, as well as reporting annually to the governor and the general assembly. The superintendent may seek outside support from other public or private institutions in analyzing and reporting the results. The mechanism must ensure that the superintendent is able to determine:

1. Whether racial profiling is used by agencies to make traffic stops;
2. A profile of motorists in traffic stops;
3. Whether stops, particularly along I-95, involve primarily minority drivers, whether these drivers are detained, searched, or had property seized, and how they compare to white drivers in similar circumstances;
4. The reasons given by police for such stops;
5. Whether minority drivers are advised of their constitutional rights;
6. The extent to which officers know the constitutional rights of citizens;
7. Public perspectives regarding racial profiling;
8. Whether minority communities are aware of their rights regarding search and seizure and;
9. Accurate conclusions from the data.

Wisconsin Bill (AB 716)

The Wisconsin bill requires law enforcement agencies to collect the following information on all traffic stops:

1. The reason for the stop;
2. The age, gender, and race of the driver;
3. The number of people in the vehicle;
4. Whether a search was conducted, and for each search the following information: whether the search was based on probable cause or reasonable suspicion, whether the search was consensual, the age, race, and gender of each person searched, and whether anything was seized as a result of the search.
5. Whether any person who was asked refused consent to search the vehicle;
6. Whether a warning or citation was given, and what the alleged violation was;
7. Whether an arrest was made, and the reason for each arrest;
8. Any other information deemed appropriate.

Each agency is required to report the collected information to the Department of Justice. The Department will then analyze the information to determine whether a disproportionate number of minorities were stopped, and whether the stops appear to be due to racial bias. The Department will report annually to the governor, the legislature, and the director of state courts.

In addition, the bill mandates police training to prevent racial profiling and racial bias.

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Federal Bills

The U.S. Congress is also considering legislation pertaining both to states and to the U.S. Customs Service.

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Analysis of Proposed Legislation:

There is no model bill, although clearly some are better than others. No single bill contains all of the elements that we are looking for in effective legislation, but many of the things needed to make strong legislation can be found in separate bills; by piecing together these different elements, it would be possible to synthesize something like a model bill. In addition, many of the bills contain elements that should be noted in terms of what not to include in a bill, as they are ineffective and counterproductive.

The Maryland and New Jersey bills are among the most comprehensive. Both collect a wide range of data indicators for every stop, and more importantly, are specific about tying the data collection program into early warning systems and other tools for improved police oversight, management, and accountability. In addition to the standard indicators on race, location, whether or not searches or arrests were made, and so forth, a number of the data indicators required by the New Jersey Act are specifically linked to these oversight and management plans. For instance, the bill requires that the officer's name and badge number be recorded, along with a description of any force used, the people who used force, the reason for the use of force, the identity of witnesses to the incident, the nature and disposition of any complaints brought as a result of the incident, any disciplinary actions taken against the officer, and any criminal or civil charges filed against the officer. The Maryland and New Jersey Acts are more effective than others, because they go beyond the simple collection of data, to integrate evaluative and oversight procedures into the data collection programs themselves. Therefore, the evaluation, oversight, and improvement can take place while the data collection is still going on.

However, there are other desirable elements that the Maryland and New Jersey bills do not include. One important element that appeared in a few, sometimes otherwise ineffective, bills was the requirement that the usefulness of traffic stops be examined in terms of how effective they are in the interdiction of drugs. Florida, Kentucky, Ohio, and Pennsylvania all included this element in their requirements for how the data should be analyzed. Similarly, South Carolina's bill, which is otherwise one of the least effective, includes a requirement that the number of false stops - stops where no citation or warning was given - be analyzed. These requirements are crucial for a couple of reasons. First of all, the rise in pretext stops has been directly influenced by the "war on drugs." Police strategies like "Operation Pipeline" have used pretext traffic stops as a central component of drug interdiction programs. However, as the ACLU of Northern California has pointed out, the use of pretext stops is a highly ineffective drug interdiction strategy. By requiring the traffic stop data to be analyzed in this way, these acts will hopefully draw attention to the fact that pretext stops not only tend to disproportionately affect people of color, but also that they are simply an ineffective police strategy, and that resources used for such efforts could be better used somewhere else. In addition, by focusing on drug interdiction programs, the acts may provide a closer look at the real, detrimental affects of the "war on drugs."

In another effort to build accountability into the process, the Utah bill contains an improvement on the California law that requires officers to give drivers they stop a business card with the number for a "suggestion line." The Utah bill requires officers to issue all drivers they stop a form letter that includes the name and badge number of the officer who stopped them, and information on the procedure to file a formal complaint. Unlike the California law, this act would provide drivers with information that connects them with the formal accountability structure. Although the Utah act does not specifically mention it, such a program could also easily be tied into a personnel early warning and management system like those outlined in the Maryland and New Jersey bills.

Another useful component of some bills is the creation of permanent evaluative and oversight committees or task forces like the one contemplated by the Florida bill. However, the creation of such committees can be deceptive and problematic, and the Florida legislation is a good example of how these task forces can be both good and bad. Although it does create a permanent oversight and evaluative task force, the Florida bill should not be viewed as a model. The seven-member task force created by the bill, aside from the legislative and administrative members, is comprised almost exclusively of law enforcement officials. The one member who is not from law enforcement, designated as a representative of the ACLU, seems like a token gesture to data-collection lobbyists. Police accountability may be specious when law enforcement agencies are left to oversee and evaluate themselves. A police accountability task force should be comprised of independent monitors, who are not under the control of law enforcement or executive branch forces. The advisory committee that is established in the Rhode Island bill, which includes more outside civil rights and academic members, is a much better example.

The problems with the Florida task force highlight a major shortcoming of all of the proposed bills: they do not make sufficient provisions for police accountability. Although some bills give Attorney Generals or Departments of Public Safety the authority to cut police funding for non-compliance, virtually all of the bills leave evaluation, disciplinary action, and behavior modification to the discretion of individual departments or state law enforcement agencies. There is a need for independent analysis and evaluation of the data, and independent, but effective, outside monitoring to ensure that departments are held accountable for improving police behavior and eliminating racially biased practices. The most glaring examples of this shortcoming are found in bills that prevent the identities of individual police officers from being revealed in reports. The bills from Illinois, Indiana, Massachusetts, Pennsylvania, and South Carolina all fall into this category. This restriction prevents any kind of effective evaluation or behavior modification, and actually undermines the purpose of the entire data collection effort by preventing the discovery of patterns of racial bias in individual departments and officers.

As the Northern California ACLU has pointed out several times, the California legislation is basically meaningless. Although it is long on rhetoric (racial profiling is "abhorrent") it is short on substance. As John Crew and Michelle Alexander from the ACLU have pointed out, racial profiling is already illegal under the Fourth Amendment and under Title IV of the Civil Rights Act of 1964, so this legislation is redundant. Also, the business card handout seems like a gimmick with little utility. As a close reading of the bill makes clear, the card handout is sort of a toothless suggestion box, in that the number on the card is not specifically tied to other established formal complaint processes or early warning systems. As far as Michelle Alexander is concerned, SB 66 is worse than no statute at all, because it gives the impression that improvements have occurred when in fact they haven't. It is a smokescreen, and as such it is dangerous.

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Summary of Effective Legislation:

Four crucial aspects should be included in any effective data collection legislation:

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C. Litigation

Notable litigation includes:

New Jersey entered into a consent decree with the U.S. Department of Justice in return for the DOJ not pursuing a lawsuit against the state police. The decree requires the New Jersey State Police to record race data from all arrests and traffic stops, and to compile reports on the data every six months. New Jersey also agreed to overhaul its training and procedures. An independent monitor will oversee implementation.

Maryland settled a lawsuit alleging profiling by the Maryland State Police in 1995 by agreeing not to use race as a factor in traffic stops and agreeing to keep records of searches and arrests.

A four-year Department of Justice investigation into the Montgomery County, MD police ended in January with an agreement requiring officers to collect race, gender and date of birth information on every traffic stop made on a public highway.

Police in Mount Prospect, Illinois will begin tracking traffic stops as part of a settlement reached between a fired Hispanic police officer and the police department.

Accusations of racism against the Pittsburgh police department led to a consent decree with the DOJ in 1997. Pursuant to the decree, the police department has compiled records of stops, arrests and use of force.

The U.S. Department of Justice is pursuing a racial discrimination case against the police department in Columbus, Ohio, and has reached a consent decree similar to the New Jersey decree with Steubenville, Ohio.

The Ninth Circuit Court of Appeals ruled in April that the Border Patrol may not use "Hispanic appearance" as a reason for stopping motorists near the U.S.-Mexico border.

The ACLU has filed lawsuits challenging racial profiling in California, Illinois, Maryland, Pennsylvania, Florida, Colorado, Oklahoma, New Jersey and Indiana, as well as against the U.S. Customs Service. One request in at least some of the lawsuits is for departments to maintain comprehensive traffic-stops records.

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D. Executive Order or Local Ordinance

On June 9, 1999 President Clinton ordered the Justice, Treasury and Interior Departments' law enforcement agencies to collect race, ethnicity and gender data on the people they stop or arrest. The departments must report on the findings of the data collection after one year, and make additional recommendations on ensuring greater fairness in law enforcement procedures.

Police in Ann Arbor, Michigan will begin to record race data under a policy approved by the Ann Arbor City Council.

Governor Davis in California ordered the California Highway Patrol to collect race data on traffic stops.

Governor Paul Patton of Kentucky issued an executive order on April 21, 2000, prohibiting racial profiling and declaring it to be a violation of the civil rights of the person stopped, requiring data collection by all state-level law enforcement agencies, creating a commission of cabinet officials to design a model policy for data collection to be distributed to all local law enforcement officials, and urging all local law enforcement agencies to adopt the model policy within six months of its dissemination.

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E. Voluntary Data Collection

Most police departments that record race do so voluntarily. The ACLU reports that at the beginning of 1999, there was almost no data collection, but by the start of 2000, there were well over 100 law enforcement agencies tracking race data, including:

Brookline, Massachusetts has been voluntarily collecting ethnic data since 1997 to try disprove allegations of racial profiling.

Ohio has collected traffic stop data for a year and a half.

At least 55 law enforcement agencies in California are voluntarily collecting race data now, according to the California Highway Patrol.

Michigan State Police, Florida Highway Patrol and Washington State Police are beginning to collect race data to monitor racial profiling.

Other municipalities collecting data include:

· Dearborn, Livonia and Farmington, MI
· Portland, Oregon
· Philadelphia, PN
· Spartanburg, SC
· Houston, TX
· Salt Lake City and St. George, UT
· Richmond, VA
· Seattle, WA
· Milwaukee, WI
· Minneapolis and St. Paul, MN
· Sacramento, CA

Prince George's County, Maryland will begin outfitting police cruisers with video cameras this summer to better monitor brutality and profiling.

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F. Other public statements against racial profiling:

International Association of Chiefs of Police passed two resolutions in November condemning racial profiling and urging all law enforcement agencies to implement a variety of steps, including traffic-stop data collection. They also urge states to incorporate race and ethnicity as a data element on driver's licenses.

Two dozen Portland, Oregon-area police agencies endorsed a resolution against racial profiling.

The National Organization of Black Law Enforcement Executives passed a resolution on July 20, 1998 denouncing racial profiling and supporting U.S. legislation calling for collection of traffic stop data.

Police departments throughout the state of Massachusetts signed a resolution against racial profiling.

The policy wing of the Democratic Leadership Council called for an end to racial profiling, outlining an anti-crime strategy aimed to foster better police-community relations.

Stanford, Connecticut formally banned racial profiling in honor of Martin Luther King, Jr. Day.

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III. Methods of Data Collection

In order for data collection programs to be effective, enough categories of data must be collected for a sufficient period of time, or better yet, permanently.

According to John Crew, Coordinator of the ACLU Campaign Against Racial Profiling, more data categories are nearly always preferable to fewer. The more sophisticated efforts, such as those in Sacramento and North Carolina, collect not just race data, but up to 17 categories of information, including the driver's gender and age (adult or juvenile), the reason for the stop, the disposition of the stop, and whether a search was made.

The Federal Traffic Stops Statistics Act, introduced in 1998 and 1999 by Rep. John Conyers (D-MI), but not yet passed, would require the U.S. Attorney General to collect the following data nationwide:

1. The traffic infraction alleged to have been committed that led to the stop
2. Identifying characteristics of the driver stopped, including race, gender, ethnicity and approximate age of the driver
3. Whether immigration status was questioned, immigration documents were requested, or an inquiry was made to the Immigration and Naturalization Service with regard to any person in the vehicle
4. The number of individuals in the stopped vehicle
5. Whether a search was instituted as a result of the stop and whether consent was requested for the search
6. Any alleged criminal behavior by the driver that justified the search
7. Any items seized, including contraband or money
8. Whether any warning or citation was issued as a result of the stop
9. Whether an arrest was made as a result of either the stop or the search and the justification for the arrest
10. The duration of the stop

This act provides a good model for other data-collection programs.

As for the length of time for which data should be collected, a lesson can be learned from the San Francisco police department, which recently "concluded" that persons of color were not being disproportionately stopped after studying just a week's worth of data (and in this case the data did not include all stops but only those at which traffic tickets were issued - a much weaker indicator). The short time frame and the limited focus of this study undermined the usefulness and credibility of the study.

John Crew of the ACLU argues that at least a two-year period of data collection is necessary. The first full year is necessary to get adequate data and to cover various seasonal enforcement and deployment patterns. The second year is necessary for comparison purposes. Crew also notes that, policy and training reforms that are enacted in response to problems identified in the first year of the study need to be assessed for impact after they are implemented.

Permanent data collection would be the best practice, particularly because ongoing data collection may itself deter racial profiling. Unless there is a strong reason not to, traffic stop data should be included in the data that law enforcement agencies regularly collect on an on-going basis.

The analysis of the data must also be adequately sophisticated, and open to refinement over time. Acknowledging that analyzing data from stops will be a complex process must not hinder immediate collection efforts, however.

Nor should the cost of implementing these data collection efforts be exaggerated, as it has been in Florida. There the state patrol estimates it would need approximately 34 new patrol officers - or the equivalent - to record stop data. This estimate anticipates that it will take each officer five minutes to capture the additional data after each stop. According to Crew, however, other agencies are taking only about 15 seconds.

Priorities must be set, and budgeting, while a legitimate consideration, must not deter local agencies from acting.

Finally, data collection must be seen as only one component of a statewide, comprehensive plan to detect and eliminate racial profiling and other forms of racial bias. Several other strategies must also be undertaken including ending stops based on pretext as a crime-fighting tactic, passing state data-collection legislation, and linking police accountability and training to the analysis of data.

As this process moves forward, it is important to remember that racial profiling is a civil rights violation. It carries with it profound economic, social, and personal consequences for all minorities of all income levels and all ages. Innocent people of color, not just offenders, are stopped and persecuted with very few actual arrests made.

To sum up:

· Enough types of data must be collected;

· Data collection must occur over an adequate period of time;

· Data must be analyzed correctly;

· Data collection must be tied to police accountability programs and other comprehensive measures.

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A. Computerized Data Collection Efforts

1. San Jose, Calif. Police Department

San Jose began an in-depth study and analysis of the racial profiling issue, entitled the Vehicle Stop Demographics Study (VSDS), on June 1, 1999. The first analysis was reported on December 17, 1999.

Under the VSDS, when an officer makes a stop, s/he advises a department radio communications dispatcher that a stop is being made. This is done by voice or by entering the information into a mobile computer terminal in the vehicle. The event is then automatically tracked by a computer-aided dispatch system (CAD).

In the past, when the officer cleared a stop, s/he advised the dispatcher of the outcome, i.e., whether or not a traffic citation was issued, an arrest made, etc. This was done with a single-letter alpha code. CAD would then provide automated information about how many traffic citations were issued.

Under the new program, three additional alpha codes are used by officers clearing a traffic stop: the reason for the stop, the race of the driver, and whether the driver was an adult or a juvenile. The race codes are based on those used by the state and federal governments to indicate race/ethnicity.

This new data is communicated via radio or computer. No written report is needed and the information is fully automated. No additional personnel are needed to enter the data and it is always up-to-date.

As a matter of course, the Department generates statistics electronically. The Crime Analysis Unit collects the statistics, translates them into real numbers and prepares a semi-annual written report.

2. Sacramento

Our best model will likely be Sacramento. Beginning July 1, 2000, the Sacramento police will voluntarily collect 17 categories of data for one year. After each stop, officers will fill out a standardized form answering 17 questions about the stop. The forms will be given to an independent research facility - probably USC - for analysis. The research facility will also consider census data (Sacramento recently did its own census, so they have current data), and information from the officers' personnel records. A status report will be issued after six months of data collection, and a final report after one year. There will also be a telephone survey of 2-4% of the people stopped, to confirm that the information about the stops is correctly recorded on the forms. The list of categories of data to be collected in Sacramento is the end result of a process that included public hearings at which community members could suggest types of information to be gathered. The 17 categories of information on the Sacramento form are:

1. Time of stop
2. Date of stop
3. Reason for stop
4. Race and gender of driver
5. Driver's year of birth
6. Driver's license number
7. Was driver asked to exit the car?
8. Number of passengers
9. Was a search done of the driver, passenger, or vehicle?
10. Authority for the search
11. What was discovered or seized as a result of the search?
12. Did the stop result in an arrest, citation, report, "advise," or "PC" ?
13. Stop location
14. Vehicle license plate number
15. Duration of stop in total minutes
16. Officer's badge number
17. Was the police vehicle equipped with a camera?

The Sacramento police will use their computer-assisted dispatch (CADS) system to capture the data and feed it all into their early warning system called RAMS (produced by Police Foundation). They will use an add-on to RAMS called QSI (quality of service indicator) to analyze the data for possible problems. Tying traffic stop data collection into early warning systems makes sense practically and may be easier to "sell" if it is understood as one part of a comprehensive management oversight and monitoring system. There is already a strong trend towards establishing early warning systems.
See:

http://www.apbnews.com/cjprofessionals/behindthebadge/2000/04/05/earlywarning0405_01.html

and

http://www.apbnews.com/cjprofessionals/behindthebadge/2000/04/05/earlywarning0405_02.html .

3. Florida Highway Patrol

Beginning January 1, 2000, the Florida Highway Patrol began collecting data on stops. Manual recording of data will occur until either one of the following two options can be implemented:

a. Modification of the computer aided dispatch system (CAD) at an estimated $1.1 million (including the hiring of 34 additional duty officers).

b. Equipping of each patrol car with a mobile data terminal at an estimated cost of $4.75 million.

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B. Written Data Collection Efforts

1. Michigan State Police Data Collection

Beginning this year, Michigan state police began collecting more detailed traffic enforcement information. Their UD-2 form is redesigned to provide a section to collect data based on the driver's race and sex, enforcement actions taken, and whether a search of the vehicle was conducted.

Officers are to rely on their independent discretion when making a determination regarding race or ethnicity. Under no circumstances is an officer to discuss or question a driver regarding their race or ethnic origin for purposes of data collection.

The following codes are used:

Race/Sex Code Search Code

W/M = White Male C = Search
W/F = White Female PC = Probable Cause search including
B/M = Black Male incident-to-arrest or plain-view situations
B/F = Black Female
L/M = Latino or Hispanic Male
L/F = Latino or Hispanic Female
O/M = Asian, American Indian, Native Alaskan, Hawaiian or Multiracial Male
O/F = Asian, American Indian, Native Alaskan, Hawaiian or Multiracial Female

 

2. Washington State Patrol

The Washington State Patrol now requires a written record of gender, age, race and ethnicity of persons stopped, on the back of their revised Time and Activity Report (TAR) form. The officer records the drivers' the race/ethnicity as s/he perceives it, and does not ask drivers to identify their race.

The following numerical codes are used:

Field 1 Sex

1 = Male
2 = Female

Field 2 Age

Numerical age

Field 3 Race

1 = White
2 = African American
3 = American Indian
4 = Asian
5 = Pacific Islander
6 = East Indian
7 = Other

Field 4 Origin

1 = Hispanic
2 = Non-Hispanic

3. California Highway Patrol

Beginning October 1,1999 the California Highway Patrol began collecting data on additional fields. It now includes race, gender, age, whether the vehicle was searched, and the result of the stop. The data is collected on a second CHP 415 Daily Field Record reworked to include these new fields.

A separate MIS Menu Screen has been developed to collect this contact data. Data entry is required, however.

The following codes are used:

Race
B = Black/African American
W = White/Caucasian
H = Hispanic
A = Asian
O = Other

Result
1 = In-custody Arrest
2 = Notice to Appear
3 = Notice to Correct Violation
4 = Verbal Warning
5 = Public/Motorist Service

Search
Y = Searched
N = Not Searched (including a vehicle inventory, search incidental to lawful arrest, and search pursuant to lawful search warrant)

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C. Providing Racial Background on Driver's Licenses

Although federal funding may be available to assist states wishing to modify their driver's license and databases for this purpose, only one state is considering such a modification. It is completely unnecessary however, to use data on a license when collecting stop data. The officer's perception of the race of the driver is what matters.

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IV. Analysis of the Data

A. San Jose Police Department

Three months' worth of stop data were examined.

The following data was broken down:

· Number of Stops
· Reason for Stops
· Driver's Racial Background
· Disposition of Stops
· Driver's Age (adult or minor)
· Driver's Gender

The racial demographics of San Jose were estimated using census data and data from the California Department of Finance.

The analysis was conducted:

· The race/ethnicity of drivers stopped during the three-month period was compared to the racial/ethnic makeup of the city's residents.

· At first glance, it appeared that some minorities were over-represented in the number of stops made.

However, two other factors were considered:

· People in areas with higher concentrations of minorities were making more calls for police assistance, resulting in greater police presence, and thus more police stops, in those neighborhoods

· These same districts with higher minority concentrations and higher calls have socioeconomic factors such as higher rates of unemployment and poverty, making vehicle stops on improperly maintained vehicles more likely.

· This analysis, however, is being refined with the assistance of the ACLU. It is acknowledged, for example, that the increased number of service calls in an area are not made for vehicular violations and therefore should not be used to justify increased stops.

The possibility that not all of the racial disparity in traffic stops is due to racial profiling or bias must be acknowledged as part of an objective analysis of the data. But at the same time, facile explanations for disparities must be closely examined, and not accepted at face value. Some researchers de-emphasize bias because of higher rates of offending among minorities. Yet, the disproportionate rates of offending still leave about 20-25 percent of the black incarceration rate unaccounted for. Moreover, the premise upon which racial profiling is largely based - that most drug offenses are committed by minorities - is untrue.

As Katheryn Russell, author of the book, The Color of Crime, points out, racial disparity and racial bias are often considered antithetical when, in fact, they coexist. Therefore, both bias and disparate offending rates must be examined further. Indeed, even disparate offense rates are cause for alarm and require our attention.

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V. Need for a Comprehensive Strategy for Eliminating Racial Profiling

 

A. Proposed Comprehensive Strategy

Data collection and analysis alone are not enough. A comprehensive strategy to eliminate racial profiling must include:

Eradicating pretextual stops as a crime-fighting tactic.

Banning pretextual stops does not mean banning enforcement of petty offenses. It
means an end to the use of minor traffic violations for non-traffic safety purposes (i.e."fishing expeditions" for contraband or just as a way to apply "heat"). The primary motivation for the stop must always be enforcement of the violation that forms the basis of the stop.

This is not always easy to enforce. However, it starts with a policy statement. Deployment, supervision, and training issues can then follow.

Specialized highway drug interdiction units whose only tool is the traffic stop would be disbanded (as they have been in the Washington State Patrol). Evaluation of officers based on quantity of stops - rather than quality - would become less likely and less meaningful. The "stop and think" effect on officers might also take hold. In other words, if officers were taught to ask themselves, "why am I really stopping this guy for this petty violation?" it might help stem the unconscious racism and stereotyping underlying the "hunch" style of racial profiling stops.

Banning racial profiling in all federally funded drug interdiction programs as well as all other state and local drug interdiction programs that rely on pretext stops as methodology.

Through litigation, lobbying, and grassroots organizing, drug interdiction programs that rely on pretext stops as methodology must be eliminated.

Federal funding for Operation Pipleine and other highway drug interdiction programs must be restricted to local, state and federal agencies that (1) agree to collect and report comprehensive race data on stops and searches; and (2) agree to implement preventative measures such as written "consent to search" forms that inform drivers of their right to refuse a search, and early warning systems that track officers' behavior and identify officers engaged in discriminatory practices

Passing the federal Traffic Stops Statistics Study Act.

The Traffic Stops Statistics Study Act passed the House of Representatives in March of 1998 by a unanimous vote. However, it died in the Senate Judiciary Committee without any hearings. In April 1999, Rep. Conyers reintroduced the Act (HR 1443) and Senators Frank Lautenberg (D-NJ) and Russell Feingood (D-WI) sponsored it in the Senate (S.821). The bill has been referred to the full House of Representatives, but has not yet come up for a vote.

The Act does not regulate traffic stops nor require particular policies. It does, however, require the gathering of solid, comprehensive information so that the discussion can move beyond whether the question of whether racial profiling is going on, and on to issues of prevention.

Passing remedial legislation in Minnesota and in every state.

Significant resources must be devoted to advocating legislation requiring ongoing statewide data collection regarding traffic enforcement practices.

In North Carolina, for example, a bill requiring data collection on all traffic stops was passed by overwhelming majorities in both houses and signed into law in April, 1999.

Eliminating other conscious and unconscious racist police practices.

Initiating new police training programs to change the culture of law enforcement.

Fostering community-training programs for those community members and organizations who wish to help eliminate racially biased police practices.

The capacity of grassroots and civil rights organizations to eliminate racially biased police practices and to develop police accountability programs must be increased through training and organizing.

Expanding public discussion and education on the problem of racial profiling.

 

B. An Example of a Somewhat Comprehensive Approach (albeit under a consent decree): New Jersey State Troopers

In 1999, the United States entered into a consent decree with the State of New Jersey, the State Police, and the Department of Law and Public Safety after alleging that the State Police troopers improperly used race to target minority drivers and passengers.

The most relevant components of that decree are:

Policy Requirements: State troopers may not rely on race or ethnic origin of motorists in selecting vehicles for traffic stops and in deciding upon post-stop actions, except where looking for a specific suspect.

Traffic Stop Documentation: State troopers will document the race, ethnic origin, and gender of all drivers stopped, the reason for each stop and any post-stop action taken.

The troopers must accurately record this information in written reports, logs, radio communications, radio recordings and/or video recordings.

The Communication Center's Computer Aided Dispatch system will record the bulk of the information. An initial call shall be made prior to the stop unless unsafe or impractical. Other forms for searches must also be completed.

The State shall develop and implement a computerized system for maintaining and retrieving the information necessary to supervise this process (the "Management Awareness Program" or MAP).

MAP shall include: all information collected for all motor vehicle stops;
information on civilian complaints, investigations of police misconduct; reports on use of force; civil suits and criminal charges, etc.
interventions and training programs implemented.

MAP shall have the capability to: search and retrieve numerical counts and percentages for any combination of the above-referenced information and run reports for specified time periods, and for individual troopers, squads, and stations.

Supervisory Review of Individual Traffic Stops: Supervisors will regularly review trooper reports and may require counseling or additional training for officers whose records reveal cause for concern.

Supervision of Patterns of Conduct: The state will implement an early warning system that uses computerized information to assist supervisors to identify potentially problematic behavior.

Misconduct Allegations: The State Police will make complaint forms available at a variety of locations, institute a telephone hotline and publicize the toll-free number at all rest stops on limited access highways. Allegations of discriminatory traffic stops, etc., will be investigated by the Professional Standards Bureau or by the State Attorney General's Office.

Training: The State Police will continue measures to improve training.

Auditing by the New Jersey Attorney General's Office: The State Attorney General's Office will ensure implementation of this decree.

State Police Public Reports: The State Police will issue semiannual public reports containing aggregate statistics on certain law enforcement activities including traffic stop statistics.

Independent Monitor: An Independent Monitor will monitor and report on the state's implementation of the Decree.

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V. How We Currently Collect Data in the Minnesota

A. State Patrol: written reports, although CAD being tested for the metropolitan area.
B. Minneapolis Police Department: CAD and mobile computers. Types of data collected:

1. Race of driver
2. Driver's license information
3. Current insurance information
4. Reason for the stop

C. St. Paul Police Department: Unknown at this time. Types of data collected:

1. Race of driver
2. Gender of driver
3. Whether driver and/or passenger(s) were searched
4. Whether weapons were found in search of persons
5. Whether vehicle was searched
6. Whether contraband was found in search of vehicle

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