Racial Profiling Legislation

5. Establishment of an advisory committee of legislators, police representatives and community representatives

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

A Resource Guide on Racial Profiling Data Collection Systems, published by the U.S. Department of Justice, defines racial profiling as:

any police-initiated action that relies on the race, ethnicity or national origin rather than the behavior of an individual or information that leads the police to a particular individual who has been identified as being, or having been, engaged in criminal activity.[1]

In the context of traffic stops by police officers, racial profiling should be defined broadly as encompassing officers’ use of race or ethnicity as a factor in deciding to stop, question, search or arrest someone.

Racial profiling has been monitored in a number of jurisdictions, and in nearly all of these jurisdictions it was found to be a significant problem. For example, a 1996 study in Maryland found that while African Americans accounted for only 16.9% of the drivers on I-95, they constituted 72.9% of the drivers stopped and searched by the Maryland State police.[2]

Racial profiling affects law-abiding citizens as well as offenders. Innocent persons of color are stopped, questioned and searched for reasons that would not lead to stops of white drivers. People of color report stops based on minor equipment violations such as items hanging from the rear view mirror, and even stops followed by inquiries such as, “whose car is this you’re driving?” or “what are you doing in this neighborhood?”

Racial profiling not only subordinates the civil rights of entire communities to the goals of criminal justice, but it is an ineffective crime prevention tool that ultimately victimizes the very people that its supposed to protect (the non-criminal public). 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.”[3]

So far in Minnesota, only the Minneapolis and Saint Paul police departments have collected race data on traffic stops. The two cities’ data-collection programs differ from each other, and both lack some of the components necessary for comprehensive analysis of the extent to which racial profiling is practiced. Until such data is collected throughout the state, we will not know the extent to which racial profiling is occurring in Minnesota. We do know, however, that people of color in Minnesota have experienced racial profiling, and that the perception in communities of color is that profiling is common.

A 1999 Gallup poll found that nationally, 42% of African Americans believe they have been stopped by police because of their race, 77% of African Americans believe racial profiling is widespread, and 87% disapprove of the practice.[4] The testimony presented by citizens of Minnesota at legislative hearings both last year and this year, and at public meetings last summer at Sabathani Community Center in Minneapolis and River of Life Christian Church in Saint Paul, indicates that the experiences and perceptions of people of color in Minnesota are similar.

The widespread perception among people of color that they are unfairly targeted by the police because of their race has led to a lack of trust in the police. This mistrust harms both the police and communities of color, by impeding effective police work. Communities of color need effective policing. People of color are more likely than whites to be victims of crime. They need the protection offered by effective police work, and the police want to do their job effectively. Mistrust of the police frustrates this goal because it makes people less likely to cooperate with the police by reporting crimes and aiding police investigations. The investigation and eradication of racial profiling serves the common interests of police and communities of color.

The police, communities of color, and the entire community have an interest in effective policing. In order to further this goal, we must first gather the information necessary to move us beyond the stalemate of police denial of racial profiling, and community insistence that it is happening. After the information is gathered and analyzed, we will have a solid basis for designing measures that will allow police and communities of color to better work together to fight crime.

Racial Profiling is Unsound Policing

Racial profiling not only constitutes discrimination against people of color; it is also an unsound, inefficient method of policing. One traditional law enforcement justification for racial disparities in police stops and searches is that it makes sense to stop and search people of color in greater numbers, because they are more likely to be guilty of drug offenses. The reality is that people of color are arrested for drug offenses in connection with vehicle stops at a high rate because they are targeted at a high rate, not because they are more likely than whites to have drugs in their cars. Studies have shown that even when people of color are searched at higher rates, they are no more likely than whites to be found with contraband.

Dr. John Lamberth, in a study of stops by Maryland State Troopers on I-95, found that the “hit rate” – the percentage of searches in which contraband was found – was the same for black and white drivers: 28%. New Jersey’s attorney general reported in 1999 that the hit rates for motorists stopped by New Jersey State Troopers were 10.5% for white drivers and 13.5% for black drivers. New York’s attorney general reported that in “stop in frisk” incidents in 1998 and 1999, the arrest rates were 12.6% for whites, 11.3% for Latinos, and 10.5% for blacks. In 1998 the U.S. customs service reported similar numbers for stops and searches in airports nationwide. Their hit rates were 6.7% for whites, 6.3% for blacks, and 2.8% for Latinos.[5]

Eleven states have enacted legislation addressing racial profiling to date: California,[6] Connecticut,[7] Kansas,[8] Massachusetts,[9] Missouri,[10] North Carolina,[11] Oklahoma,[12] Oregon,[13] Rhode Island,[14] Tennessee,[15] and Washington.[16] Of these statutes, the Missouri law is the strongest. So far in 2001, legislators in another thirteen states, including Minnesota, have introduced bills dealing with racial profiling. In general, the 2001 bills are stronger than the laws enacted in 1999 and 2000, with the trend in the 2001 bills being toward mandatory, indefinite data collection by all state and local law enforcement agencies. The following analysis identifies the most effective legislation aimed at eliminating racial profiling through traffic stop racial data collection efforts. We have identified five key components of effective legislation:

The first step toward addressing racial profiling is for law enforcement agencies to collect data on the race of all the drivers they stop, as well as related data about the character of the stops. Data collection is necessary for identifying the problem, and giving direction to efforts to eliminate profiling both as a practice of individual officers, and as an institutionalized departmental policy. Data collection is not intended as a “study,” and should not be viewed as something that delays the implementation of a solution to racial profiling. Data collection is part of the solution. Ongoing monitoring and measuring of police performance is necessary to ensure effective police work and to serve the important mandate of protecting the civil rights of the public. Measuring performance and outcomes is an established and necessary element of effectively implementing and administering any program or policy.

Three states – Connecticut, Missouri, and Rhode Island – have laws mandating data collection by all state and local law enforcement agencies. Three more states – North Carolina, Tennessee and Washington – mandate data collection by the state police only. The trend is definitely toward mandatory, universal data collection. This year, almost all of the bills introduced around the country – bills in 10 of the 12 states other than Minnesota considering new profiling legislation – include mandatory data collection by all state and local police.[17] A bill has also been introduced in Washington to expand that state’s mandatory data collection from state police to all police.

Racial profiling is an important law enforcement issue that affects civil rights. A voluntary policy would be ineffective and place the rights of people of color at the whim of individual jurisdictions that may perceive it to be in their best interest not to evaluate the problem. Jurisdictions that feel that they have something to hide and/or are not seriously committed to civil rights will not voluntarily collect data. Also, the nature of our metropolitan areas and the nature of our driving habits require many of us to cross city boundaries every day. Allowing local municipalities to decide whether or not to collect data will give us only a fragmented idea of the extent of racial profiling and how to address it. Under voluntary programs, different localities will collect different information, making comparison and analysis difficult at best. The different data categories recorded by Minneapolis and Saint Paul police in their voluntary programs illustrate this point. Finally, the perception of the problem in minority communities is so strong that unless the state sends a clear message that it takes the issue seriously as a civil rights concern, we cannot hope to effectively deal with it.

It is necessary for effective analysis of the data that sufficient categories of data be recorded. The necessary categories are the location, date and time of the stop; the race, age and gender of the driver; the reason for the stop; the disposition of the stop; and data relating to searches. We recommend the recording of comprehensive search data: whether there was a search, the authority for the search, and whether any contraband was discovered.

Search data in general is necessary because data reported in other jurisdictions indicates that people of color are not only more likely to be stopped by the police; once stopped, they are more likely to be searched, or have their vehicle searched. Information about the results of the search is necessary for analysis of the “hit rates,” the rates at which contraband is found when people of different races are searched. As noted above, hit rate studies in other jurisdictions have shown that disproportionate stopping and searching of people of color is not an effective drug interdiction strategy.

Of the six states currently mandating data collection by either state police or all police, five require the recording of data regarding searches.[18] Three of the five[19] require all of the search data we recommend: occurrence of search, authority for search, and whether contraband was found. Of the 10 new state bills mandating data collection, eight require search data,[20] with four of those eight including all of the search data we recommend.[21]

Data collection is a monitoring tool for protecting civil rights and ensuring ongoing achievement of key law enforcement goals; it is not simply a tool for measuring the magnitude of a problem at a particular point in time. Four states’ laws currently require ongoing data collection,[22] but the trend in this year’s bills is definitely toward ongoing data collection. All 10 of the bills in other states that mandate data collection do so indefinitely. No new bill in any state other than Minnesota terminates the data collection after a study period. Also, a bill has been introduced in Connecticut to extend that state’s existing data collection program until 2012.

Racial profiling is a serious civil rights violation, and an obstacle to police-community relations and effective policing. This is not a short-term concern. Data collected thus far at sites around the country, public opinion polls, and testimony presented at hearings here in the Twin Cities all indicate that racial profiling is a widespread civil rights violation, one that warrants ongoing monitoring of law enforcement officers and agencies. Also, the requirement of recording the race of every driver stopped may deter law enforcement officers from making improper racially motivated stops. The benefits of this deterrent effect should be reaped indefinitely.

The Missouri law requires each law enforcement agency to adopt procedures for determining whether any officers have a pattern of disproportionately stopping people of color, and to provide counseling and training to any such officers. New bills introduced in Illinois, Indiana and Texas contain similar provisions.

The ability of police agencies to identify and address problem officers is necessary to an effective response to a finding of racial profiling. Unlike the other two Minnesota bills, Representative Gray’s bill requires that the officer’s badge number be included in the record of each stop. Under this bill, the identity of individual officers would not be public information, but would be solely for internal use by the law enforcement agencies in identifying officers who may need additional training or other remedial attention. The Saint Paul Police Department currently uses a similar system, which has allowed the department to identify a small number of officers whose disproportionate stopping of African Americans was handled within the department.[23] The Sacramento, California, police department voluntarily employs similar procedures, as do the New Jersey State Troopers, under a consent decree with the U.S. Department of Justice. No existing law in any state specifies that officer identification information must be recorded, but the Missouri law and the new bills in Illinois, Indiana and Texas seem to anticipate such data collection, since they require departments to identify officers who need additional training and/or disciplinary action.

5. Establishment of an Advisory Committee of Legislators, Police Representatives and Community Representatives

Rhode Island’s statute includes a provision calling for the creation of a racial profiling advisory board to work with the attorney general in designing the data collection program, and choosing the independent analyst to analyze the data. This provision is a step toward remedying the persistent under-representation of people of color in decision-making bodies addressing racial profiling. It also provides an opportunity for police representatives and community representatives to begin working together to address the problem of racial profiling, and to begin developing the cooperative relationships that will be necessary to the process of healing the divisions between police and communities of color.

[1] Deborah Ramirez, Jack McDevitt & Amy Farrel, A Resource Guide on Racial Profiling Data Collection Systems: Promising Practices and Lessons Learned 3 (2000).

[2] David A. Harris, Driving While Black: Racial Profiling on Our Nation’s Highways, An American Civil Liberties Union Special Report 21-22 (1999).

[3] David A. Harris, Car Wars: The Fourth Amendment’s Death on the Highway , 66 Geo. Wash. L. Rev. 556 (March 1998).

[4] The same poll showed that although only 6% of whites believed they had been stopped by police because of their race or ethnic background, 56% of whites believed racial profiling was widespread, and 80% disapproved of profiling. The Gallup Poll, September 24-November 16, 1999.

[5] Ramirez, supra note 1, at 10.

[6] CA S.B. 1102 (1999).

[7] Conn. Public Act No. 99-198 (1999).

[8] Kan. H.B. 2683 (1999).

[9] 2000 Mass. Legis. Serv. Ch. 228 (S.B. 2238).

[10] R.S.Mo. ch. 590 (2000).

[11] N.C. St. § 144-10 (1999).

[12] Okla. S.B. 1444 (1999).

[13] HB 2433-A (1997).

[14] Rhode Island Laws. Ch. 00-251(2000).

[15] Tenn. S.B. 2415 (1999).

[16] Wash. Legis. Sev. Ch. 118 (S.S.S.B. 6683) (2000).

[17] Those ten states are Alabama, Georgia, Illinois, Indiana, Mississippi, Montana, Nebraska, New York, Texas, and Virginia.

[18] The five states are Connecticut, Missouri, North Carolina, Rhode Island, and Washington.

[19] Missouri, North Carolina, Rhode Island.

[20] Georgia, Illinois, Indiana, Montana, Nebraska, New York, Texas, and Virginia.

[21] Georgia, Illinois, Indiana, and Texas.

[22] Connecticut, Missouri, North Carolina and Washington. Massachusetts law also requires indefinite data collection, but only for stops that result in a citation.

[23] Phillip Piña and Janet Roberts, St. Paul Police Stops Show Racial Disparity , St. Paul Pioneer Press, January 10, 2001, at 1A.