Mimesis Law
21 June 2018

Racial Profiling, Community Relations & Discretion

Oct. 27, 2015 (Mimesis Law) — One of the fundamental principles taught in a criminal law or criminal procedure class in law school is the idea of discretion. Police officers have discretion on whether or not they stop someone. They have the discretion to determine whether or not they wish to seek charges.  Prosecutors have the discretion to determine whether or not they wish to accept charges.  They have the discretion to dismiss a case or proceed to trial with it.

A police officer’s discretion over whether or not to make contact and detain a citizen is one that is generally protected, as long as there is some articulable infraction of the law.  This protection under the law allows officers to stop individuals on very minor infractions and subsequently attempt further investigation.  These pretext stops have been held to be constitutional under the Whren decision, but they illustrate the point that just because a police officer can do something, doesn’t necessarily mean that the officer should do so.

Sunday’s edition of The New York Times had a front page article entitled The Disproportionate Risks of Driving While Black by Sharon LaFraniere and Andrew W. Lehren, which examined racial differences in traffic stops in Greensboro, North Carolina.  The comprehensive article does an outstanding job of analyzing the line between aggressive police work and racial profiling, which is no simple task.

Documenting racial profiling in police work is devilishly difficult, because a multitude of factors – including elevated violent crime rates in many black neighborhoods – makes it hard to tease out evidence of bias from other influences.

While only the insanely naïve would argue that there was no such thing as racial profiling when it comes to police work, there is virtually no tangible remedy for it within the criminal justice system.  Little sympathy is extended to the defendant  caught with a kilo of cocaine who claims that the reason for his detention was racial profiling.  Those individuals who suffer instances of racial profiling that don’t end in arrest must take to the media or perhaps initiate a civil lawsuit to address the wrong done to them.

The New York Times article utilizes the Greensboro Police Department as the backdrop example of the disproportionate rate of “contacts” between the police and African-Americans.

. . . officers pulled over African-American drivers for traffic violations at a rate far out of proportion with their share of the local driving population. They used their discretion to search black drivers or their cars more than twice as often as white motorists – even though they found drugs and weapons significantly more often when the driver was white.

The article notes that Greensboro’s police responded with the standard explanation of “more African-Americans live in neighborhoods with higher crime, where officers patrol more aggressively.”   That isn’t an entirely baseless argument for a stronger police presence in an area, but the Greensboro officers are accused stopping the drivers for extremely minor violations and then searching their cars.

That type of proactive police work may net some additional arrests for the Department, but the overall effect is a negative one.  After all, museums with priceless artifacts employ a high number of security guards to deter theft, but those guards don’t randomly stop visitors in the hopes of catching them with a stolen painting – especially not when there has been no indication that a painting has been stolen.

LaFraniere and Lehren point out that “criminologists and even some police chiefs argue that such tactics needlessly alienate law-abiding citizens and undermine trust in the police.” While this opinion makes sense, it has no legal bearing on a case that has yielded contraband or has otherwise resulted in higher criminal charges. That does not mean, however, that it doesn’t have a practical bearing.

Contrary to popular belief, prosecutors aren’t entirely isolated from public opinion and most are aware that selling a case where indications of racial profiling have occurred is embarrassing, especially if it resulted in some level of injury to the accused.

During closing arguments, a prosecutor who finds himself with no rebuttal to a defense attorney’s allegations of racial profiling is in a very awkward spot.  Cases that fit the mold of a racially motivated “probable cause” get sold cheap by prosecutors – plea bargain offers often consist of significantly reduced sentences.

Accusations of police agencies participating in racial profiling aren’t exactly novel, but all the police really need to dispute the allegation from a legal standpoint is simply the most minor of law violations. What makes the Times’ article noteworthy isn’t their profile of Greensboro’s policies, but of their profile of Fayetteville, North Carolina, where a new police chief has changed his department’s policies regarding traffic stops.

Chief Harold Medlock also deploys more officers in higher crime areas, but he isn’t encouraging them to make detentions for minor infractions:

[Chief Medlock] said he had told his officers to focus on drivers who speed, drive drunk or ignore traffic lights and stop signs – the violations that cost lives. Because officers typically cannot see who commits a moving violation like speeding, he said, it also “tends to eliminate the disparity in who is being stopped.”

Furthermore, the Fayetteville officers changed their policy on vehicle searches following traffic stops.

. . . the City Council required officers in 2012 to obtain written permission for consent searches – a requirement endorsed this year by a White House task force on policing. Since then, the number of consent searches has plummeted to about one a week.  Probable-cause searches dropped by more than half.

That’s a fascinating statistic, but it is also one that would probably dissuade most police departments from adopting such a policy. Police departments and individual officers generally regard their arrest numbers as statistics that prove their effectiveness.  A decrease in searches naturally leads to a decrease in discoveries of contraband and therefore a decrease in arrests.

If a police department looks like it isn’t making very many arrests, the presumption is that the officers aren’t working very hard.   This very issue explains why officers make so many pretext stops in high crime areas in the first place.   It also explains why police departments don’t believe there is anything “racist” about those stops.

Chief Medlock’s outlook on policing is a progressive one, and one that seeks to foster community relations rather than boosting arrest statistics. It is an investment that illustrates that the Chief clearly knows the difference between those things one can do and those things one should.

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  • REvers
    28 October 2015 at 10:51 am - Reply

    Requiring written consent means the person searched actually had to consent.

    Could it be that cops have been misunderstanding what consent really is? Surely they wouldn’t be lying, would they?