Alternatives to Incarceration
The Orange County Branch NAACP is committed to lowering ever-rising rates of incarceration. Ask these questions of your community leaders:
- Are up-to-date screening tools used to determine which people convicted of crimes can be helped through intense supervision outside of jail or prison?
- Is there screening to determine which people convicted of crimes are likely to re-offend and are leaders invested in decreasing those risk factors?
- Are there enough in-patient drug treatment facilities (and beds) to handle nonviolent drug offenders?
- What alternatives to incarceration are used and what are the opportunities for expansion?
Sadly, sometimes cities and counties don’t invest in alternatives to incarceration because prisons are a primary employment source for some small-town populations.
Ask questions and fight for good answers.
Use of Force Policies
Request that your police department provide you with a copy of its use of force policies, sometimes referred to as the use of force continuum. This should spell out the allowable levels of force officers should use and the progression of force they should follow prior to resorting to tasers or deadly force. Become fluent in these policies.
Also look for data concerning homicide closure rates. You want to make sure commensurate amounts of time and resources are used to catch bad actors in our community, as they are in other communities.
You want to gather (through whatever means you can – which is sometimes not easy) data on the number of officers charged with excessive force, who conducted the investigations and the outcomes of each of the cases. Sadly, in most communities you’ll find the total numbers hard to secure. Police departments are usually in charge of investigating themselves, and very few officers are terminated for misconduct or excessive force.
Push to ensure that officer-involved shootings and cases of excessive force are investigated by independent agencies. If you don’t have a citizens review board, work to establish one. Do not settle for an advisory board. You want a review board that reports at least to the city manager level, with subpoena power, and whose findings are binding.
This is a far more complex campaign to design and run effectively. An effective racial profiling campaign will require litigious and legislative advocacy and those pieces must (by jurisdiction) be handled by a state conference instead of a branch. However, there are some very important pieces of data that you can and should collect at the branch level which should then be provided to your respective state conference to assist in the overall effort.
The classic act of racial profiling in a vehicle involves an officer selecting a person they want to question or search, not because of some crime or infraction, but because of their appearance, the appearance of the vehicle, the neighborhood they’re in or some other extraneous point. They follow that vehicle until they can find a legal justification for stopping it. Police departments refer to the action as a “pretext stop,” thus acknowledging that the “infraction” was in fact a pretext to conduct the stop.
Many (if not most) young Black men have had the experience of noticing a police car following behind them while they are driving. The car may follow them for several minutes or miles, changing lanes and turning along with them, watching and waiting for any traffic infraction – no matter how minor – to justify a stop. Once stopped, the officers request their paperwork, ask a barrage of questions, and may even ask or attempt to initiate a vehicle search. This is the common experience of racial profiling.
Whren vs. United States
Profiling is easy to identify when you’re experiencing it, but very difficult to prove after the fact. Why? (Glad you asked!) Police departments don’t consider pretext stops to be racial profiling. In fact, police departments around the country will tell you they believe pretext stops are legal pursuant to the decision of the Supreme Court in the Whren vs. United States case of 1996.
The Supreme Court case Whren vs. United States stems from a 1991 incident in Washington, D.C., involving Michael Whren and James L. Brown. A police officer recognized Whren and knew he had a history with drugs. The officer performed a pretext stop for a minor infraction and searched Whren’s vehicle, where he found drugs.
Whren filed suit, claiming that the stop was illegal since he had committed no crime that would have warranted the officer singling him out. He therefore asked that the search be ruled illegal and inadmissible and filed a Fourth Amendment claim, citing the constitutional protection against illegal search and seizure.
The Supreme Court ruled that because the officer pulled the car over after noting a (minor) traffic infraction, the stop was legal.
While this would seem like a pretty clear-cut indication that pretext stops are in fact legitimate policing techniques, they are not. To fully understand the issue, you must read the dissenting opinions in the case. One of the justices stated that Whren argued his Fourth Amendment protection from illegal search and seizure, when he should have considered arguing the 14th Amendment’s equal protection under the law.
Traffic Stop Data Collection
All serious racial profiling efforts must stipulate the need for data collection, but many police departments either don’t collect the data, or if they do, they don’t want to release it.
To fight racial profiling, fight for detailed, disaggregated, categorized stop data. You want that data to be GIS mapped as well. This ties the data to a map and provides additional information about the location and possible patterns. Any mid-sized city or larger has the capability to provide it.
Fight for answers to explain enforcement disparities and demand a plan to end them. Consult with legal counsel to consider your options if a clear racial correlation can be established. And, share the data you receive with the NAACP State Conference so it can look at statewide patterns and practices and consider further legal and/or legislative remedies.
All across the country, officers and police departments are using minor infractions – such as wide turns, failure to signal 100 feet from an intersection, tires crossing the center line, etc. – to make traffic stops on people they wish to question or search.
While there is no reliable data anywhere that suggests different races have different driving abilities, a detailed analysis of traffic stop data would likely show that certain types of traffic enforcement are predominantly used on certain populations and in certain neighborhoods. Having detailed data that shows a racial correlation to the application of certain policing strategies or the statistical likelihood of being stopped, searched or questioned would provide the necessary raw data to make a prima facie 14th Amendment claim.