To reduce and mitigate the effects of bias in policing, departments and communities should confront the current reality, and long history, of racism and discrimination in America and its impact on individuals, families, communities, and society.
IntroductionPart 1Part 2Part 3Part 4Part 5Recommended Best Practices
Introduction
Equal treatment of all people, regardless of background, class, or characteristic, protects and preserves public safety and builds trust and confidence in policing. Yet much work remains to be done to achieve this ideal in the field of law enforcement. Uprisings in cities like Detroit and Newark in the 1960s, Los Angeles in the 1990s, and Baltimore in the 2010s were reactions to discrimination against Black people by police officers. And yet, even after decades of protest, discrimination against people of color continues, sometimes with lethal effects. Indeed, police shootings of Michael Brown in Ferguson, Missouri; Tamir Rice in Cleveland, Ohio; and Stephon Clark in Sacramento, California — all unarmed Black men — have led many to question whether these deadly incidents would have occurred had these men been White.
Discriminatory policing, which targets people of color more often than others,[i]has serious consequences not only for individuals and communities but also for law enforcement and for society. Indeed, it fostersdistrust of and a lack ofconfidence in law enforcement, which, as the National Institute of Justice notes, “undermines the legitimacy of law enforcement and, without legitimacy[,] police lose their ability and authority to function effectively.”[ii]As police officers well know, police need the community on their side to function well.
Distrust of and lack of confidence in police stem from a long history of police violence against people of color, from early enforcement of fugitive slave laws to beatings of civil rights protesters to the modern-day impact of bias-based police practices on communities of color[iii]and other marginalized groups.[iv]This history is perpetuated by police cultures that position officers as “warriors” against chaos and anarchy rather than as “guardians” of public safety.[v]
Discriminatory policing is, as the Police Executive Research Forum states, “antithetical to democratic policing.”[vi]Yet inadequate policies and accountability systems allow it to continue. The good news is that better policing ispossible. Through training, policy, and practice, departments can prevent discriminatory policing and reduce and mitigate its disparate impact on marginalized communities. To achieve this goal, departments should work with communities to create cultures of inclusivity and accountability and promote bias-free policing; condemn bias and discrimination in all police practices; ensure that all officers are trained to counteract biases; implement robust accountability systems; and track data on disparate outcomes.
[i] SeeEzekial Edwards, Will Bunting & Lynda Garcia, Am. Civ. Liberties Union, The War on Marijuana in Black and White 4 (June 2013), https://www.aclu.org/files/assets/aclu-thewaronmarijuana-rel2.pdf(finding, “. . .a Black person is 3.73 times more likely to be arrested for marijuana possession than a white person, even though Blacks and whites use marijuana at similar rates.”); Lynn Langton & Matthew Durose, U.S. Dep’t of Justice, Bureau of Justice Statistics, Police Behavior During Traffic and Street Stops (2011 rev. Oct. 27, 2016), https://www.bjs.gov/content/pub/pdf/pbtss11.pdf; NAACP, Born Suspect: Stop-and-Frisk Abuses & the Continued Fight to End Racial Profiling in America 9 (2014), https://www.naacp.org/wp-content/uploads/2018/07/Born_Suspect_Report_final_web.pdf(discussing national data on racial profiling that shows “racial profiling happened to men, women, and children of all ages and socio-economic backgrounds, and in virtually every context of people’s lives: on the streets, inside cars, at home, at airports, at shopping centers, and at places of worship”); N.Y. Civil Liberties Union, Stop-and-Frisk Data, https://www.nyclu.org/en/stop-and-frisk-data(last accessed Dec. 17, 2018) (noting that “[n]early nine out of 10 stopped-and-frisked New Yorkers have been completely innocent and “black and Latino communities continue to be the overwhelming target of these tactics”); Wesley Lowery, New Study: Only 24% of Population, Blacks in Boston Make Up 63% of Stop and Frisk Encounters, Wash. Post, Oct. 8, 2014, https://www.washingtonpost.com/news/post-nation/wp/2014/10/08/new-study-only-24-of-population-blacks-in-boston-make-up-63-of-stop-and-frisk-encounters/?utm_term=.352c97f03c03.
[ii] U.S. Dep’t of Justice, Nat’l Inst. of Justice, Race, Trust and Police Legitimacy, https://www.nij.gov/topics/law-enforcement/legitimacy/Pages/welcome.aspx(last visited Jan. 23, 2019).
[iii] See, e.g., Jeffrey A. Fagan et al., Street Stops and Broken Windows Revisited: The Demography and Logic of Proactive Policing in a Safe and Changing City, in Race, Ethnicity, and Policing: New and Essential Readings 309-10 (Stephen K. Rice & Michael D. White eds., N.Y. Univ. Press 2010) (describing the origins of the NYPD’s stop-and-frisk program and its disproportionate effects on people of color); U.S. Dep’t of Justice, Civil Rights Div., Investigation of the Ferguson Police Department 62 (2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf(“Despite making up 67% of the population, African Americans accounted for 85% of FPD’s traffic stops, 90% of FPD’s citations, and 93% of FPD’s arrests from 2012 to 2014.”); Kara Dansky, Am. Civ. Liberties Union, War Comes Home: The Excessive Militarization of American Policing 35-37(2014), https://www.aclu.org/report/war-comes-home-excessive-militarization-american-police(explaining that Special Weapons and Tactics (SWAT) deployments primarily and disproportionately target communities of color).
[iv] See, e.g., Christy Mallory, Amira Hasenbush & Brad Sears, Williams Inst., UCLA, Discrimination and Harassment by Law Enforcement Officers in the LGBT Community 8 (Mar. 2015), https://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT-Discrimination-and-Harassment-in-Law-Enforcement-March-2015.pdf(describing the impact LGBTQ community).
[v] Sue Rahr & Stephen K. Rice, New Perspectives in Policing: From Warriors to Guardians: Recommitting American Police Culture to Democratic Ideals (Apr. 2015), https://www.ncjrs.gov/pdffiles1/nij/248654.pdf.
[vi] Lorie Fridell et. al., Police Exec. Res. Forum, Racially Biased Policing: A Principled Response, at x (2001), https://ric-zai-inc.com/Publications/cops-w0172-pub.pdf.
Profiling
Racial and ethnic profiling and other discriminatory police practices arise from biases — beliefs and attitudes about people and groups. [i] Explicit biases are deliberate attitudes or beliefs that can predict discriminatory behavior and, indeed, lead to it. [ii]Discriminatory behavior harms individuals and communities, such as when police officers stop young Black men because they believe that they’re more likely to carry contraband than other people. This kind of bias is clear-cut, unambiguous, and contrary to the Fourteenth Amendment, which prohibits government action where a “discriminatory purpose has been a motivating factor in the decision.” [iii]
Implicit biases are subconscious assumptionsformed by automatic associations people make about groups of people based on their personal characteristics. [iv]These associations shape how people understand the world and influence their decisions and actions. [v]This neurological process is innate and, in general, helps people navigate life. [vi]Children, for example, learn early on to associate fire with heat, which protects them from burns.
But this process also causes people to associate specific personal characteristics with larger social groups and to overgeneralize about, or stereotype, them. [vii] In fact, people can make negativeassociations about social groups even if they consciouslydisagree with them. [viii]Implicit biases about social groups are reflected in scientific research. One study found that White people perceive Black faces with certain expressions as angry — but they don’t come to the same conclusion about White faces with the same expression. [ix]Another study found that people reacted similarly to computer-based “shoot/don’t shoot” scenarios: they more likely to misperceive an object as a gun when displayed by a Black person and to automatically associate Black male faces with guns. [x]
In policing, racial biases can lead officers to assume that some people are inherently more dangerous than others, more prone to criminal activity, and more prone to certain types of crime, based on their personal characteristics — and then to act on those assumptions in a way that has a discriminatory effect. [xi]Such biases may cause an officer to assume that a young Black man in a nice car has stolen it and to stop him without cause. Or, they may cause an officer to make positive— but also problematic — assumptions that certain groups of people do notcommit crime.
Negative implicit biases also lead to racial and ethnic profiling in stops, searches, arrests, and other police activity and, as noted above, to inappropriate, and sometimes lethal, uses of force.
Despite their danger, implicit social biases are pervasive and persistent across human society. Allpeople, including those with firm commitments to justice and equality, make assumptions about people based on their personal characteristics, whether they are aware of it or not. [xii]Even people from marginalized groups can hold negative implicit biases against people from their own groups. These biases result in inequity and discrimination, which harms individuals and communities and erodes trust and confidence in law enforcement and the government, especially when officers and departments are not held accountable.
Police leaders should be clear that explicit bias is against the law, morally and ethically wrong, and antithetical to the field’s fundamental mission to provide services equitably to all people. Implicit biases are more difficult to detect than explicit biases and, consequently, more complicated to address. But the result is the same for those on the receiving end: discrimination. Fortunately, departments can address and mitigate the harm caused by implicit biases through education, training, inclusive cultures, and diverse workplaces. Discrimination, in short, is not merely a problem of the past. It exists today, but, with the right interventions, does not have to in the future.
[i] SeeJody Feder, Cong. Res. Serv., Racial Profiling: Legal and Constitutional Issues 1 (Apr. 16, 2012), https://fas.org/sgp/crs/misc/RL31130.pdf(“Racial profiling is the practice of targeting individuals for police or security detention based on their race or ethnicity in the belief that certain minority groups are more likely to engage in unlawful behavior.”).
[ii] SeeSarah E. Burke et. al., Informal Training Experiences and Explicit Bias against African Americans among Medical Students, 80(1) Soc. Psychol. Q. 65 (2017), https://journals.sagepub.com/doi/full/10.1177/0190272516668166(finding that explicit racial biases predict discriminatory behavior in a wide range of contexts).
[iii] Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 265-66 (1977).
[iv] SeeBertram Gawronski & Galen V. Bodenhausen, Associative and Propositional Processes in Evaluation: An Integrative Review of Implicit and Explicit Attitude Change, 132 Psychol. Bull. no. 5 692, 693 (2006), http://www.bertramgawronski.com/documents/GB2006PB.pdf, (“[E]valuative tendencies resides in associative processes, which build the basis for…implicit attitudes. Associative evaluations are best characterized as automatic affective reactions resulting from the particular associations that are activated automatically when one encounters a relevant stimulus. Such activation processes do not require much cognitive capacity or an intention to evaluate an object[.]”).
[v] SeeNewark Police Div., General Order 17-06 Re: Biased-Free Policing 2 (Sept. 19, 2017), https://npd.newarkpublicsafety.org/assets/docs/consent_decree/approved_policies/bias-free-policing-1706.pdf.
[vi] See generally Daniel Kahneman, Thinking, Fast and Slow(2011).
[vii] Pamela M. Casey et al., Helping Courts Address Implicit Bias: Resources for Education 1-2 (2012), https://ncsc.contentdm.oclc.org/digital/collection/accessfair/id/246/.
[viii] Bertram Gawronski & Galen V. Bodenhausen, Associative and Propositional Processes in Evaluation: An Integrative Review of Implicit and Explicit Attitude Change, 132 Psychol. Bull. no. 5 692, 693 (2006),http://www.bertramgawronski.com/documents/GB2006PB.pdf(“[A]ssociative evaluations are independent of the assignment of truth values. That is, associative evaluations can be activated irrespective of whether a person considers these evaluations as accurate or inaccurate. For example, the activation level of negative associations regarding African Americans may be high even though an individual may regard these associations as inadequate or false . . . Thus, associative evaluations are not personal in the sense that they are not necessarily personally endorsed”).
[ix] SeeJenessa R.Shapiro et. al., Look Black in Anger: The Role of Implicit Prejudice in the Categorization and Perceived Emotional Intensity of Racially Ambiguous Faces, 35 Personality and So. Psychol. Bull. 1356 (Oct. 2009), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2798889/; Paul B. Hutching & Geoffrey Haddock, Look Black in Anger: The Role of Implicit Prejudice in the Categorization and Perceived Emotional Intensity of Racially Ambiguous Faces, 44 J. Exp. Soc. Psychol. 1418, 1420 (2008), https://www.researchgate.net/publication/222413010_Look_Black_in_Anger_The_Role_of_Implicit_Prejudice_in_the_Categorization_and_Perceived_Emotional_Intensity_of_Racially_Ambiguous_Faces(finding that “White participants high in implicit prejudice were significantly more likely to classify an angry ambiguous face as being Black compared to participants low in implicit prejudice.”).
[x] SeeJoshua Correll & Tracie Keesee, Racial Bias in the Decision to Shoot?, 76 Police Chief (May 2009) (“The study found that…Denver police officers…showed significant bias in their reaction times” in a study where participants were given the computer task of deciding whether to shoot a series of white or black male targets.); Brian Keith Payne, Prejudice and Perception: The Role of Automatic and Controlled Processes in Misperceiving a Weapon, 81 J. Pers. & Soc. Psychol. 181, 190 (2001) (noting that “research strongly support[s] the hypothesis that the race of faces paired with objects does influence the perceptual identification of weapons”), https://www.researchgate.net/publication/11825666_Prejudice_and_Perception_The_Role_of_Automatic_and_Controlled_Processes_in_Misperceiving_a_Weapon. Recent studies indicate that training is having a positive effect, however, as officers exhibit less racial bias in shoot/don’t shoot decisions. SeeTom Jackman, This Study Found Race Matters in Police Shootings, but the Results May Surprise You, Wash. Post (Apr. 27, 2016), https://www.washingtonpost.com/news/true-crime/wp/2016/04/27/this-study-found-race-matters-in-police-shootings-but-the-results-may-surprise-you/?noredirect=on&utm_term=.851d3a6b68be.
[xi] SeeCharles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 355 (Jan. 1987) (“[R]ecognizing unconscious racism provides a mechanism for effectively responding to continuing race-based inequalities[.]”).
[xii] David Edmonds, Implicit Bias: Is Everyone Racist?, BBC Magazine (June 5, 2017),https://www.bbc.com/news/magazine-40124781.
Equal Protection Under the Law
The equal protection clause of the Fourteenth Amendment to the U.S. Constitution guarantees equal protection under the law and safeguards the public from unlawful police conduct. This means that police officers can’t treat some people differently than others based on race, national origin, religion, or gender.[i]Discriminatory policing occurs when police officers selectively enforce, or fail to enforce, the law based on these — or other — personal characteristics.[ii]
Police leaders should address discrimination and bias in policing; otherwise, they undermine their ability to protect and serve the public and expose themselves and their departments to civil liability. To ensure police practices meet legal and constitutional antidiscrimination requirements, departments should develop policies, training, and accountability systems to address officer behavior and department practices.[iii]
Equal protection violations arise when departments implement practices with express classifications (e.g., a policy to stop all Latinx drivers) or enforce facially neutral policies (i.e., nondiscriminatory as written) in a discriminatory manner.[iv]If the policy is facially neutral, then someone who challenges it must show that the department’s enforcement was motivated by a discriminatory purpose and had a disproportionate impact on a certain group; moreover, they must show that the enforcement action could not be justified on a legitimate basis.[v]
Direct evidence of discriminatory intent is hard, if not impossible, to obtain.[vi]For this reason, courts allow circumstantial evidence to show discriminatory intent.[vii]This can include contemporaneous statements by decision-makers that reveal discriminatory intent; the disproportionate impact of an action on a particular group (i.e., its “disparate impact” or “disproportionately adverse effect”); actions, decisions, or events leading to the adoption of a policy or enforcement practice; and evidence of departure from normal practices or procedures.[viii]
Under this analysis, police departments have been held accountable for discriminatory policies and practices that violate the Fourteenth Amendment. In Floyd v. New York, a federal court found the New York Police Department’s (NYPD) stop-and-frisk program unconstitutional because, while not discriminatory on paper, it targeted Blacks and Latinxs in a discriminatory manner and had a disproportionate impact on them.[ix]The plaintiffs presented statistical evidence showing that young Blacks and Latinx men were more likely than their White counterparts to (1) be stopped, (2) be arrested rather than given a citation, and (3) have force used against them.[x](For more detail, see Chapter 3.)
This statistical evidence of a disproportionate effect —coupled with the department’s policy of targeting “the right people” (which meant, in practice, people of color) and the NYPD commissioner’s acknowledgment that stops focused on Blacks and Latinxs —showed that the program “violated the bedrock principles of equality.”[xi]As a remedy, the court appointed an independent monitor to oversee the NYPD’s reform of stop-and-frisk policing and required the department to work with community stakeholders to develop policies and provide input on the reform process.[xii]
Profiling constitutes intentional discrimination in violation of the equal protection clause if it involves an express classification based on race or ethnicity, as was the case at the Maricopa County Sheriff’s Office (MCSO) in Arizona. In 2013, a federal judge found that, despite its written ban on racial profiling, the MCSO allowed deputies to use race as a factor in immigration sweeps and traffic stops.[xiii]The plaintiffs in the case (Melendres v. Arpaio) produced evidence revealing that then-Sheriff Joe Arpaio forwarded racially charged constituent letters to his deputies, who exchanged racially charged emails with each other.[xiv]
This evidence, combined with the department’s express permission for officers to make racial classifications in law enforcement decisions, led the court to conclude that the department’s policies and practices violated the equal protection clause.[xv]As a result, the court ordered the MCSO to stop ethnically profiling Latinx people. Arpaio was later found guilty of criminal contempt of court for defying the judge’s order[xvi]and lost his bid for reelection. (See Chapter 3 for a discussion of racial profiling on the New Jersey Turnpike.)
Racial biases can lead officers to assume that some people are inherently more dangerous than others.
[i] SeeYick Wo v. Hopkins, 118 U.S. 356, 369 (1886) (concluding that the Fourteenth Amendment guarantees equal protection of the laws “without regard to any differences of race, of color, or of nationality”); See alsoWhren v. United States, 517 U.S. 806, 813 (1996) (affirming that the Fourteenth Amendment prohibits selective or discriminatory enforcement of the law); 42 U.S.C. § 2000a et seq.(prohibiting discrimination based on race, religion, or national origin).
[ii] SeeU.S. Dep’t of Justice, Identifying and Preventing Gender Bias in Law Enforcement Response to Sexual Assault and Domestic Violence 23 (2015), https://www.justice.gov/crt/file/799316/download; Whren v. United States, 517 U.S. 806, 813 (1996).
[iii] SeeVillage of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977) (requiring strict judicial review of any government action upon finding “proof that a discriminatory purpose has been a motivating factor” in government decision-making); Melendres v. Arpaio, 989 F. Supp. 2d 822, 910 (D. Ariz. 2013), aff’d, 784 F.3d 1254 (9th Cir. 2015) (directing the Maricopa County Sheriff’s Office to remedy its Fourteenth Amendment violations and to cease “using race or Latino ancestry as a factor” in stopping vehicles and making law enforcement decisions).
[iv] Griggs v. Duke Power Co., 401 U.S. 424, 429–30 (1971) (noting that facially neutral practices and procedures are not immune from judicial scrutiny if they operate in a racially discriminatory manner).
[v] Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, 135 S. Ct. 2507, 2513 (2015).
[vi] Floyd v. City of New York, 959 F. Supp. 2d 540, 558 (S.D.N.Y. 2013) (“Because there is rarely direct proof of discriminatory intent, circumstantial evidence of such intent is permitted.”).
[vii] Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (“Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.”).
[viii] SeeVillage of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66; see alsoInclusive Communities Project, 135 S. Ct. at 2513 (quoting Ricci v. DeStefano, 557 U.S. 557, 577 (2009)). Note that under the disparate impact analysis, plaintiffs must also prove that any legitimate, nondiscriminatory interest served by the practice could be served by a less discriminatory alternative policy. Inclusive Communities Project, 135 S. Ct. at 2514-15.
[ix] Floyd v. City of New York, 959 F. Supp. 2d 540, 662 (S.D.N.Y. 2013).
[x] Floyd v. City of New York, 959 F. Supp. 2d 540, 560, 573-4, 589 (S.D.N.Y. 2013).
[xi] Floyd v. City of New York, 959 F. Supp. 2d 540, 606, 660-1, 664 (S.D.N.Y. 2013).
[xii] Floyd v. City of New York, 959 F. Supp. 2d 540, 667, 676-7, 686-8 (S.D.N.Y. 2013).
[xiii] Melendres v. Arpaio, 989 F. Supp. 2d 822, 827, 848-9, 910 (D. Ariz. 2013), aff’d, 784 F.3d 1254 (9th Cir. 2015).
[xiv] Melendres v. Arpaio, 989 F. Supp. 2d 822, 859, 903-04 (D. Ariz. 2013), aff’d, 784 F.3d 1254 (9th Cir. 2015).
[xv] Melendres v. Arpaio, 989 F. Supp. 2d 822, 899-902 (D. Ariz. 2013), aff’d, 784 F.3d 1254 (9th Cir. 2015).
[xvi] Richard Perez-Peña, Former Arizona Sheriff Joe Arpaio Is Convicted of Criminal Contempt, N.Y. Times (July 31, 2017), https://www.nytimes.com/2017/07/31/us/sheriff-joe-arpaio-convicted-arizona.html; Devilin Barrett & Abby Phillip, Trump pardons former Arizona sheriff Joe Arpaio, Wash. Post (Aug. 25, 2017), https://www.washingtonpost.com/world/national-security/trump-pardons-former-arizona-sheriff-joe-arpaio/2017/08/25/afbff4b6-86b1-11e7-961d-2f373b3977ee_story.html?utm_term=.8e5f3034f5cf.
Societal Costs and Causes
Over time, the U.S. Supreme Court has recognized the disparate impact of seemingly neutral policies by tracing them back to invidious racial discrimination practices in areas such as employment, housing, and education.[i]Indeed, Black people have been subject to a long history of discrimination. After slavery was outlawed, the Black Codes continued a legalized system of oppression, followed by Jim Crow laws that enforced racial segregation in virtually all walks of life. In 1954, the Supreme Court declared segregation in public schools (i.e., “separate but equal” education) unconstitutional.[ii]And, in the 1960s, Congress banned segregation in public places and discrimination in employment, voting practices, and in the sale, rental, and financing of housing.[iii]
Nevertheless, discrimination continues. Though outlawed more than 50 years ago, “redlining” — the systematic practice of denying loans and housing insurance to people based on race or ethnicity — continues to concentrate people of color in low-income communities.[iv]Other forms of discrimination have also arisen. In the 1990s, for example, lenders targeted subprime loans to people of color,[v]which influenced residential patterns and rates of home ownership.
These patterns led to police practices that have had a disparate impact on communities of color. To cite one example, Baltimore’s history of city-sponsored racial segregation denied Black residents economic and educational opportunities by systematically preventing them from moving to neighborhoods with better jobs and schools.[vi]In 2016, the Baltimore Police Department’s “zero tolerance” approach to crime, which involves stopping and searching people and arresting them for minor offenses, such as drug possession, was found to have a disparate impact on the city’s Black community because it focused on predominantly Black neighborhoods.[vii]
While the full impact of bias-based policing on individuals and communities remains unclear, criminal justice experts suspect it has long-term negative psychological and social effects.[viii]A recent study identified symptoms of post-traumatic stress disorder (PTSD) and anxiety among young men in New York City who had been subjected to intrusive or “more invasive [police] tactics[,] such as frisks, threats and use of force, or handcuffing.”[ix]Research also shows that contact with police officers and the criminal justice system suppresses engagement with the political system. People who have had negative experiences with police officers are more likely to distrust authority figures and less likely to advocate for themselves through the political and democratic processes.[x]But much more research is needed to quantify the full impact that discriminatory police practices have on individuals, communities, and society.[xi]
[viii] Phillip Atiba Goff, On Stop-and-Frisk, We Can’t Celebrate Just Yet, N.Y. Times (Jan. 7, 2018), https://www.nytimes.com/2018/01/07/opinion/stop-and-frisk-celebrate.html; Amanda Geller et al., Police Contact and Mental Health, Colum. Pub. L. Res. Paper No. 14-571 2 (2017), https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=3079&context=faculty_scholarship(reporting that “the broader implications of police activity beyond crime control” had largely evaded academic review); Nat’l Acad. of Sci., Eng’g, and Med., Proactive Policing: Effects on Crime and Communities 315 (2018), https://www.nap.edu/read/24928/chapter/10#315(more aggressive policing tactics that are focused on individuals may have negative outcomes on those who have contact with the police.).
[ix] Amanda Geller et al., Police Contact and Mental Health, Colum. Pub. L. Res. Paper No. 14-571 25-26, 30 (2017), https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=3079&context=faculty_scholarship.
[x] Amy E. Lerman & Vesla M. Weaver, Arresting Citizenship: The Democratic Consequences of American Crime Control 10 (2014), https://books.google.com/books?hl=en&lr=&id=CWyXAwAAQBAJ&oi=fnd&pg=PR7&dq=weaver+lerman&ots=lDf8MeB27R&sig=pK2lY7FAE9ZOHduDKpc0s9Cx0_Y#v=onepage&q=weaver%20lerman&f=false.
[xi] Phillip Atiba Goff, On Stop-and-Frisk, We Can’t Celebrate Just Yet, N.Y. Times (Jan. 7, 2018), https://www.nytimes.com/2018/01/07/opinion/stop-and-frisk-celebrate.html(lamenting the lack of research on the collective consequences of negative contact with the police); Amanda Geller et al., Police Contact and Mental Health, Columbia Public Law Research Paper No. 14-571, 2 (2017), https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=3079&context=faculty_scholarship(reporting that “the broader implications of police activity beyond crime control” had largely evaded academic review).
[vi] U.S. Dep’t of Justice, Civil Rights Div., Investigation of the Baltimore City Police Department 70-72 (2016), https://www.justice.gov/crt/file/883296/download.
[vii] U.S. Dep’t of Justice, Civil Rights Div., Investigation of the Baltimore City Police Department 24-27 (2016), https://www.justice.gov/crt/file/883296/download.
[iv] Tracy Jan, Redlining Was Banned 50 Years Ago. It’s Still Hurting Minorities Today, Wash. Post (Mar. 28, 2018), https://www.washingtonpost.com/news/wonk/wp/2018/03/28/redlining-was-banned-50-years-ago-its-still-hurting-minorities-today/?utm_term=.3b93fa5e56d0; U.S. Dep’t of Hous. and Urb. Dev., Unequal Burden: Income and Racial Disparities in Subprime Lending in America (2000), https://www.huduser.gov/Publications/pdf/unequal_full.pdf;see alsoU.S. Dep’t of Justice, Civil Rights Div., Investigation of the Baltimore City Police Department 12 (2016), https://www.justice.gov/crt/file/883296/download(discussing Baltimore’s history of redlining and segregation and its effect on communities of color); See alsoTa-Nahisi Coates, The Case for Reparations, The Atlantic (June 2014), https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/(discussing the collective and multiplying effects of racial segregation, race-based policies, and subprime lending on African-American communities).
[v] See, Ta-Nahisi Coates, The Case for Reparations, The Atlantic (June 2014), https://www.theatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/.
[iii] Civil Rights Act of 1964, Pub. L. No. 88-352; Voting Rights Act of 1965, Pub. L. 89-110; Fair Housing Act (Civil Rights Act of 1968 Tit. VIII), Pub. L. 90-284.
[i] Civil Rights Div., Dep’t of Justice, Title VI Legal Manual Section VII Proving Discrimination – Disparate Impact 2, https://www.justice.gov/crt/case-document/file/934826/download(last visited Feb. 11, 2019) (citing Griggs v. Duke Power Co., 401 U.S. 424, 430–31 (1971); City of Rome v. United States, 446 U.S. 156, 176–77 (1980); Gaston Cty. v. United States, 395 U.S. 285, 297 (1969)).
[ii] Brown v. Board of Education, 347 U.S. 483 (1954).
Data-Driven and Place-Based Enforcement
Data used to “predict” or “forecast” crime compound problems. Predictive policing technologies often use data that originate from biased decision-making by officers and, thus, produce biased results.[i]If discriminatory practices yield the crime data that are analyzed, then the results and conclusions will be inherently biased. More heavily patrolled neighborhoods naturally have more enforcement activity, which is then reflected in crime data. In other words, an initial enforcement decision to patrol a certain community produces data that then determine future decisions about which neighborhoods to patrol and how to do so.[ii]This creates a “feedback loop” in which officers consistently return to the same neighborhoods.[iii]
This phenomenon also occurs in “proactive policing,” whereby departments use crime data to determine which communities to saturate with officers to enforce minor offenses. This practice exacerbates racial and ethnic disparities and creates the appearance of higher crime rates in communities of color. The Tampa (Florida) Police Department’s bike-stop practice, for example, was found to have racial disparities “related to place-based differences in bicycle law enforcement” because stops occurred at substantially higher rates in higher crime areas than in lower-crime areas and because Black bicyclists faced a disproportionate risk of being stopped.[iv]The U.S. Department of Justice (DOJ) concluded that the racial disparity arose from the department’s focus on high-crime areas and on Black cyclists.[v]Moreover, enforcement based on “going where the crime is” has been found to be largely ineffective in reducing crime.[vi]
[i] Victoria McKenzie, The Dirty Data Feeding Predictive Police Algorithms, The Crime Report (Aug. 18, 2017), https://thecrimereport.org/2017/08/18/does-predictive-policing-mathwash-bias/.
[ii] Victoria McKenzie, The Dirty Data Feeding Predictive Police Algorithms, The Crime Report (Aug. 18, 2017), https://thecrimereport.org/2017/08/18/does-predictive-policing-mathwash-bias/.
[iii] Danielle Ensign et al., Runaway Feedback Loops in Predictive Policing, 81 Proc. of Mach. Learning Res. 1 (2018), https://arxiv.org/pdf/1706.09847.pdf.
[iv] Greg Ridgeway et. al., U.S. Dep’t of Justice, Community Oriented Policing Services, An Examination of Racial Disparities in Bicycle Stops and Citations Made by the Tampa Bay Police 3 (2016), https://ric-zai-inc.com/Publications/cops-w0801-pub.pdf.
[v] Greg Ridgeway et. al., U.S. Dep’t of Justice, Community Oriented Policing Services, An Examination of Racial Disparities in Bicycle Stops and Citations Made by the Tampa Bay Police 3 (2016), https://ric-zai-inc.com/Publications/cops-w0801-pub.pdf.
[vi] SeePolicing Project, N.Y.U. School of Law, An Assessment of Traffic Stops and Policing Strategies in Nashville 11 (2018), https://static1.squarespace.com/static/58a33e881b631bc60d4f8b31/t/5bf2d18d562fa747a554f6b0/1542640014294/Policing+Project+Nashville+Report.pdf.
Best Practices in Bias-Free Policing
Police leaders should make clear that discriminatory policing has no place in police departments or law enforcement.
The effects of discriminatory policing can’t be reversed — but they can be changed. To reduce and mitigate the effects of bias in policing, departments and communities should confront the current reality, and long history, of racism and discrimination in America and its impact on individuals, families, communities, and society. They should reevaluate existing strategies and practices to account for this reality and history. Otherwise, solutions will be nothing more than stopgaps.
To ensure policing is fair and impartial, they should develop policies that explain how officers can carry out law enforcement duties without bias and explain prohibited conduct and behavior in detail. Training should reinforce the principles of bias-free policing, explore how biases influence decisions and actions, and instruct officers in cultural competency so they can better appreciate and understand the norms and traditions of various communities.
Supervisors should closely monitor officers to detect and address biased enforcement activities. This involves not only reviewing and analyzing officer-generated reports but also department wide data that may indicate officers who are statistical outliers (when compared with fellow officers) and if any policies or practices have disproportionate effects on marginalized communities. (For more detail, see Chapter 8.)If and when bias-based policing is discovered, supervisors should swiftly address it through interventions and discipline.
Recommended Best Practices
Recommended
Best Practices
2.1 Adopt comprehensive bias-free policies
To affirm their commitment to treat everyone equitably and with respect, police departments should develop written policies that lay out expectations of bias-free police services. These policies should provide guidance on bias-free policing, implicit bias, cultural competency, and procedural justice, and they should be reinforced through academy and in-service training.
Many departments have formal policies (some of which are also reflected in their mission or values statements) that endorse fair and equal treatment of all people and that prohibit discrimination. Policies that address explicit bias should be updated and expanded to cover implicit bias as well. Departments should invite community members and stakeholders to participate in this effort to ensure that bias-free policies adequately address community concerns and comport with community views on fairness and equity.
Procedural justice in police interactions with communities includes:
- Being professional and polite.
- Explaining the reason for the contact.
- Detaining a person no longer than necessary.
- Explaining the reason for any delay.
- Answering the person’s questions.
- Providing name and badge number when requested.
- Apologizing for any inconvenience if the officer determines the person was not engaged in criminal activity.
Sources: New Orleans Police Dep’t, Operations Manual Chapter 41.13: Bias Free Policing 3-4 (eff.July 10, 2016), https://www.nola.gov/getattachment/NOPD/Policies/Bias-Free.pdf/; Baltimore Police Dep’t, Draft Policy 317: Fair and Impartial Policing 4 (Aug 24, 2018), https://www.baltimorepolice.org/317-draft-fair-and-impartial-policing.
2.2 Ensure officers are trained
in bias-free policing.
Officers should be trained inbias-free policing in order to put bias-free policies to work, and officers should know how to recognize implicit biases before taking action. Bias-free principles and tools should be taught during training in bias-free policing and in other subjects as well. For example, use-of-force training should instruct officers to identify and combat biases when deciding to use force.
Read More2.4 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]
[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.
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