Recommended Best Practices
Recommendation 2.4: Take corrective action when data indicate bias-based policing.
In addition to preventing biased conduct at the individual level, department leaders should also prevent it at the department level. They should look for indications of bias-based policing and practices that have a disparate impact on marginalized communities, and they should take corrective action when found. Specifically, supervisors should:
Evaluate policies, training, and enforcement data. To prohibit and prevent discriminatory policing, bias-free policies generally address conduct at the individual level. These policies focus in part on intentional, or explicit, bias and unintentional, or implicit, bias. Nevertheless, even the strongest policies can’t prevent all biased outcomes. As the Seattle Police Department’s bias-free policy states: “The long-term impacts of historical inequality and institutional bias could result in disproportionate enforcement, even in the absence of intentional bias.”[i]
The absence of policies and/or underenforcement of the law can also contribute to disparate impacts. Departments that lack policies about how to interact with people with limited English proficiency, or who fail to train officers to provide language assistance, deny them equal police services.[ii]Likewise, failure to investigate allegations of sexual assault or intimate partner violence disproportionately impacts women and LGBTQ people.
To reduce disparities, department leaders should periodically review, analyze, and evaluate training programs and curricula and data about enforcement activities (e.g., stops, searches, and arrests, the number of complaints, community feedback, etc.).[iii]If statistical or other data indicate that a facially neutral policy is producing disparities or negative perceptions, leaders should review and evaluate — and possibly rescind — it, and they should consider updating training curricula to address practices that lead to disparities. When policies or practices are found to have a disparate impact or produce discriminatory outcomes, leaders should work with communities and other stakeholders (e.g., businesses or police affinity groups) to explore alternatives.[iv]
Require supervisory review and approval for enforcement of minor offenses that involve a large degree of discretion. Racial and other disparities often arise when officers are enforcing minor incidents, which involve a high degree of discretion. Officers sometimes stop or ticket people for no reason other than they’ve stereotyped them. Departments can remedy this problem by removing discretion from activities where bias heavily influences decisions to enforce. By requiring supervisory approval and review before acting (e.g., before an officer arrests someone for disorderly conduct), departments can reduce bias-based enforcement and ensure that officers take action with a legal basis and in a bias-free manner.
The Baltimore Police Department took steps to achieve this goal after the DOJ found that its officers arrested Black people in disproportionately high numbers. The investigation found that Black people comprised 88 to 91 percent of arrests for “quality-of-life” offenses, such as resisting an officer, disorderly conduct, failure to obey, and misdemeanor trespassing.[v]In response, department leaders required officers to get supervisory approval before making arrests for minor offenses.[vi]The Newark Police Department also requires supervisors to respond to the scene and approve any arrests for minor offenses.[vii]This policy serves as a check on officers and helps ensure that arrests are lawful and based on probable cause.
[i] Seattle Police Department Manual Section 5.140 (eff. July 15, 2018), https://www.seattle.gov/police-manual/title-5—employee-conduct/5140—bias-free-policing.
[ii] Civil Rights Div., Dep’t of Justice, Title VI Legal Manual Section VII Proving Discrimination – Disparate Impact 14, https://www.justice.gov/crt/case-document/file/934826/download(last visited Feb. 11, 2019); See, e.g., U.S. v. Maricopa Cty., 915 F. Supp. 2d 1073, 1079 (D. Ariz. 2012) (finding disparate impact where the agency’s lack of language access policies and training resulted in a denial of access of services).
[iii] Seattle Police Department Manual Section 5.140 (eff. July 15, 2018), https://www.seattle.gov/police-manual/title-5—employee-conduct/5140—bias-free-policing; Consent Decree, United States v. City of Newark, No. 2:1 6-cv-0 1731 -MCA-MAH, ¶ 19-20 (D. NJ Apr. 29, 2016), https://www.justice.gov/opa/file/836901/download.
[iv] Seattle Police Department Manual Section 5.140 (eff. July 15, 2018), https://www.seattle.gov/police-manual/title-5—employee-conduct/5140—bias-free-policing.
[v] U.S. Dep’t of Just., Civil Rights Div., Investigation of the Baltimore City Police Department 56 (Aug. 10, 2016),https://www.justice.gov/crt/file/883296/download.
[vi] Consent Decree, United States v. Police Dep’t of Baltimore City, No. 1:17-CV-00099-JKB, ¶ 61 (D. Md. Jan. 12, 2017), http://www.mdd.uscourts.gov/sites/mdd/files/ConsentDecree_1.pdf.
[vii] Consent Decree, United States v. City of Newark, No. 2:1 6-cv-0 1731 -MCA-MAH, ¶ 37-38 (D. NJ Apr. 29, 2016), https://www.justice.gov/opa/file/836901/download.