Race and Law Enforcement: What We Do Know

Alan Jenkins

Only two people know what actually went down between Professor Henry Louis Gates and Sergeant James Crowley last week, and even they disagree—apparently in good faith—about what transpired. So as the two prepare to have a beer with President Obama later this week, let’s move on to a more productive conversation about race and law enforcement.

Whatever happened at Gates’s Cambridge home, Americans correctly see disparate law enforcement based on race as a serious problem that needs remedying. In a 2007 national poll commissioned by The Opportunity Agenda, 84% of Americans agreed that “when the police stop and search people solely based on their race or ethnicity they are violating their human rights.”

As many explained in subsequent focus groups, this treatment, when it occurs, is also a violation of American values. As a Caucasian participant in Columbus, OH, explained, “Life, liberty and pursuit of happiness. You’re restricting people’s ability to be happy in their life… that’s a violation of their human rights.”

Many also noted that unwarranted police stops are frequently accompanied by disrespectful treatment. As an African-American woman in Houston asserted, “the majority of the time they [police officers] mistreat them when they pull them over, they talk bad to them or hit them or disrespect them. They don’t just say, ‘May I see your driver’s license?’ They say, ‘Whatchya doing boy, why are you here? You don’t have any business over here, do you live here?’”

And we heard from many Latino participants that officers increasingly, and inappropriately, link their race and ethnicity to stereotypes about immigration status: “They should not pull you over just to ask for your papers because when you are getting pulled over they are supposed to have just cause. They need to have a reason for why they are pulling you over. They can’t just say, ‘Oh, he’s Mexican, let’s pull him over and find out if he is from here or not.’ I am Hispanic, but I was born here and that doesn’t give you the right to just pull me over for no reason at all and ask me if I am here legally. That is a violation of my rights.”

To say that racial profiling is a real problem that needs real solutions is not to dispute that the vast majority of police officers are working hard to enforce equal justice—a fact that Americans of all races also acknowledge. Indeed, one of the complexities of racial bias in law enforcement, research shows, is that it frequently occurs in settings of great subjectivity and discretion. Does a customs agent search a fidgety passenger, or let her pass? Does a traffic cop ignore a faulty taillight, or stop and ticket the driver? Does a beat cop ignore a pedestrian’s angry reaction, or push back and possibly escalate the situation to an arrest? Officers can lawfully do many things in these situations, so long as racial biases do not play a part.

Those same complexities call for clear approaches, combined with training, that rely on objective evidence and circumstances to the greatest extent possible. That’s why the Supreme Court has, for over 40 years, required officers to have an articulable suspicion of illegal conduct before stopping and frisking a passerby. It is the same reasoning that the framers of our Bill of Rights used in requiring that home searches be both “reasonable” and authorized by a warrant.

Those who fear that racial bias was afoot in the Gates-Crowley encounter are implicitly calling for an objective rule for law enforcement: when you’ve confirmed the identity and homeownership of someone, in their own home, and there is no evidence of danger or criminality, withdraw from the situation. We can’t know what’s in your heart or mind, but we do know how to minimize the possibility of bias, of escalation, and conflict that erodes public confidence in law enforcement.

Those kinds of objective approaches are especially important when it comes to criminal charges like “disorderly conduct”—the charge leveled, then dropped, against Gates. “It’s probably the most abused statute in America,” Eugene O’Donnell, a professor of law and police studies at John Jay College of Criminal Justice, told Time magazine. Similarly, having local law enforcement enforce federal immigration laws along with their local policing duties increases the likelihood for mistakes and bias.

So as President Obama turns down the heat on the Gates-Crowley debacle, let’s have a calm and cool conversation about the changes necessary to prevent similar situations in the future, and to rebuild trust between law enforcement and diverse communities around our country.

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