For years, African American motorists have complained of being stopped by the police for the offense of DWB — "Driving While Black." From grueling life experience, African Americans have known that they were singled out on the nation's roads for traffic stops and searches, and subject to humiliation, intimidation, and, all too often, police violence. But to white America, "racial profiling" — the police policy of acting on the basis of racial or ethnic stereotypes that has the effect of treating minority group members differently from non-minorities — was largely invisible.
In New Jersey in 1996, a Superior Court judge ruled that there had been racial profiling on the southern NJ Turnpike over a three-year period. Black drivers were five times as likely as white drivers to be pulled over by troopers, noted the judge, who found that the police had a policy of "selective enforcement" by "targeting blacks for investigation and arrest." Moreover, the "utter failure" of the state police hierarchy to "investigate the many claims of institutional discrimination, manifests its indifference if not acceptance." The administration of Republican Governor Christine Todd Whitman responded by filing an appeal without bothering to conduct any investigation to see whether there was any merit to the judge's findings.
Then, in April 1998, two white NJ state troopers fired 11 shots into a van carrying four unarmed minority males on their way to a basketball clinic, wounding three, two seriously. The troopers claimed that the driver had put the van into reverse to run them down after they had pulled the vehicle over for speeding. The evidence made the troopers' claim extremely dubious — witnesses said the van was moving too slowly to be a threat to anyone — and a grand jury is currently looking into the matter. But in any event the incident propelled the issue of racial profiling into public focus. The troopers at first asserted that they had detected the speeding van by radar, but their patrol car was not equipped with radar; it seemed clear that what they had detected was black and brown drivers. State officials still denied that profiling occurred, but two-thirds of blacks and even a third of whites disagreed. Protests, prayer vigils, and lawsuits further mobilized public pressure.
By early 1999, the controversy over racial profiling presented a potential problem for Whitman, who hoped to run for the U.S. Senate seat vacated by Democrat Frank Lautenberg. And it created an even bigger problem for State Attorney General Peter Verniero, who had been nominated by Whitman to fill a vacancy on the State Supreme Court. As the chief law enforcement officer in the state and in charge of the state police, Verniero worried that his court bid might be thwarted by the profiling furor.
Under these circumstances, Verniero ordered an investigation of racial profiling. A final report was due out in June, but an interim report was issued on April 20, in time for Verniero's nomination hearings. The interim report had many problems: it did not turn a critical eye to the responsibility of top officials for the racial profiling, nor did it challenge any of the basic assumptions of the current drug war, nor did it analyze the myriad ways other than highway racial profiling in which racism is built into the criminal justice system. Nonetheless, the report was the first official acknowledgment of racial profiling and, as such, may serve as a useful tool for activists fighting for social justice in New Jersey and in the rest of the country. (The Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling is available on the web in PDF format at http://www.state.nj.us/lps/.)
The report found that "minority motorists have been treated differently than non-minority motorists during the course of traffic stops on the New Jersey Turnpike." The "problem of disparate treatment is real — not imagined." Minorities were more likely than whites to be stopped by the police. Blacks and Latinos were the "overwhelming majority" (77.2%) of those who were searched by the police and most of those who were arrested.
Is this disparity in traffic stops due to the greater propensity of minorities to commit traffic infractions? "We are aware of no study," stated the report, "that supports the hypothesis that minority motorists are more likely to violate motor vehicle laws than non-minority motorists, or that violations committed by minority motorists tend to be more serious than violations committed by non-minority motorists."
There were actually two sources of the disparity, according to the report: One was "willful misconduct" by a "small number" of state police. (The day before the release of the interim report, a separate grand jury indicted the two state troopers involved in the van shooting incident for falsifying patrol records that could have shown they were targeting minority drivers. At least ten other troopers were suspected of the same kind of falsification.) The second source of the differential treatment was "more common instances of possible de facto discrimination by officers who may be influenced by stereotypes and may thus tend to treat minority motorists differently during the course of routine traffic stops, subjecting them more routinely to investigative tactics and techniques that are designed to ferret out illicit drugs and weapons."
A police officer, the report argued, need not be a racist to violate people's right to equal protection under the law. Discriminatory practices were reinforced by ambiguities in stated policies, conflicting messages given out by drug interdiction training programs, formal and informal reward systems, and inadequate procedures for identifying, investigating, and remediating disparate treatment. The report recommended that "as a matter of policy for the New Jersey State Police, race, ethnicity, and national origin should not be used at all by troopers in selecting vehicles to be stopped or in exercising discretion during the course of a stop (other than in determining whether a person matches the general description of one or more known suspects)," a policy which goes beyond the requirements of federal law.
Would such an approach mean less effective policing? Aren't certain ethnic groups statistically more likely to be involved in criminal activity? The report gives three answers to these questions.
First, the major impediment to successful police work is the lack of community support. Racial profiling and other forms of unequal treatment have alienated African Americans from those who are supposedly assigned to "serve and protect" them, making minority citizens less likely to report crimes or cooperate with law enforcement officers. Thus, the elimination of racial profiling should enhance, not reduce, police efficacy.
Second, the report argues that the claim that a group is over-represented in crime is a self-fulfilling prophecy, particularly for drug offenses. How do we know how many people have committed drug offenses? "Only a negligible percentage of drug offenses that are actually committed ever come to the attention of law enforcement agencies." Survey data can tell us about drug use and they show roughly comparable rates among blacks, whites, and Latinos; but for drug trafficking the only indicator is the arrest rate. But drug arrests reflect not the rate of drug offenses but "the extent and nature of law enforcement's proactive efforts." That minorities are disproportionately arrested for drug offenses reflects the fact that "urban drug dealers tend to operate in open-air drug markets, making them easier to identify and arrest than [those] who operate more discreetly behind closed doors in suburban and rural jurisdictions." And minorities are also arrested more often because they are the subject of racial profiling, which in turn is based on their allegedly greater propensity for criminal activity. In short, a vicious cycle.
And third, even where there are solid sociological data linking a particular ethnic group to a type of crime, the vast majority of the members of that group are not criminals. Therefore, no rational conclusion can be drawn inferring criminal behavior on the basis of group membership.
In the past few months legislation has been proposed in at least ten states requiring police to maintain data on traffic stops. In the U.S. Congress, John Conyers has re-introduced his "Traffic Stops Statistics Act." Such legislation would make it easier for activists to fight racial profiling.
Racial profiling has been exposed and is under attack everywhere. But it will take sustained popular pressure to eliminate it once and for all.
Stephen R. Shalom teaches political science at William Paterson University in NJ. He is the author of IMPERIAL ALIBIS (South End, 1993) and is currently working on WHICH SIDE ARE YOU ON? AN INTRODUCTION TO POLITICS.