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Color of Justice
Does racism infect the criminal justice system ?
It is an unseasonably warm January day, and the courtroom in the City-County Building basement is both overcrowded and overheated. As the 1:30 p.m. session of Marion County Superior Court, Criminal Division, Room 20 is about to begin, 15 defense attorneys, prosecutors, sheriff deputies and bailiffs mill around a small carpeted area in front of the judge’s bench, exchanging documents and checking computer records. Every one of the 15 men and women is white. 
Driving While Black? Donald Winston and Nickole Griffin say that they and their children were pulled over by IPD officers and held without any legal basis.
Widespread evidence of racial profiling
The national studies the judge refers to include a 2004 report for the Texas Criminal Justice Reform Coalition that analyzed data from 413 Texas law enforcement agencies. That study found that police in three out of four agencies stopped African-Americans and Latinos at higher rates than whites, and police in six of every seven agencies searched minorities at higher rates than whites following a stop.
A study of the Los Angeles Police Department in 2002 showed that, once pulled over, African-American drivers were three times as likely to be asked to step out of their cars and then more likely to be subject to a pat-down or search. A six-year study of Maryland police stops yielded similar results, as did a review of U.S. Customs Service practices. New Jersey, Florida, Massachusetts and Connecticut studies had similar results. These discrepancies commonly exist even though further research on agencies like the New York Police Department and U.S. Customs Service showed that the “hit” rate of searches — meaning the search led to discovery of contraband — was actually less for minorities than whites.
This widespread evidence of racial profiling, Georgetown University law professor David Cole recently wrote, is the predictable result of racial stereotyping being enabled by the increasingly large amount of discretion the United States Supreme Court has allowed police when they conduct warrantless searches. “This accounts for why so many minority citizens can recount a story of being stopped for nothing more than the color of their skin,” Cole says. “For all practical purposes, they simply do not enjoy the same constitutional protections that white citizens do.”
Indiana University School of Law-Indianapolis clinical professor Frances Hardy, who teaches in a criminal defense clinic where she and her students defend drug possession cases, among other charges, says that the police discretion that Cole refers to is connected to the disproportionate number of African-Americans, and low-income people, arrested for drug crimes in Marion County. “It seems to me that the focus of law enforcement here is on the inner-city drug trade rather than the use by college students or professionals,” Hardy says. “I’ve always been of the mind that poor folks don’t fuel the drug trade, but they are definitely the ones we see in the courts.”
Indiana police and race
There appear to be no studies that have attempted to measure racial bias in Indiana police activity. However, there are a number of individual cases suggesting Hoosiers are not exempt from the phenomenon consistently documented in other states. In recent years, the ICLU has successfully litigated cases involving systematic racial profiling by IPD and the City of Carmel Police Department. (See, sidebar, “Recent ICLU litigation on racial profiling” below) In the African-American communities of Indiana, anecdotal allegations abound of racial bias in local law enforcement.
Recent ICLU litigation on racial profiling
NAACP and David Smith vs. The City of Carmel (1997): A class action suit filed in U.S. District Court on behalf of the Indianapolis chapter of the NAACP, an African-American Indiana state trooper sergeant and the class of racial minorities who had been unlawfully stopped in Carmel. Settlement included agreement by the City of Carmel to videotape traffic stops, enact written standards for lawful stops and conduct annual training on lawful traffic stops. (The agreement called for the taping of traffic stops for only four years, but Carmel police Chief Mike Fogarty has continued the practice, partly to defend his officers against allegations of wrongdoing. “It is just a good management tool, and it allows us to make sure that no group is being singled out,” he says.)
John Doe et al. vs. City of Indianapolis (1998): A class action suit filed in U.S. District Court on behalf of African-American youth who had been stopped, searched, confined, photographed and questioned at the Circle Centre Mall by members of the Indianapolis Police Department’s Metro Gang Task Force. Settlement included expungement of any information obtained from the plaintiffs, and a promise by the defendants that “in creating criminal intelligence information, they will comply with all requirements of federal and state law and the Indiana and United States Constitutions.”
Brian Gaddie vs. City of Indianapolis (1997): A suit filed in state court on behalf of a 28-year-old African-American man who was arrested and handcuffed at gunpoint by Indianapolis Police Department officers in the Glendale Mall parking lot for allegedly stealing the new car he was sitting in. Gaddie owned the car and was picking up his mother from her job at L.S. Ayres. Settlement included apology by the IPD officer.
We can’t ignore complaints
IPD spokesperson Sgt. Stephen Staletovich flatly disputes any suggestion that IPD officers engage in racially biased policing tactics. “That is absolutely ridiculous,” he says. “You wouldn’t find officers agreeing to do such a thing. Someone would stop and say, ‘This is wrong and we’re not doing it.’”
Staletovich says that the majority of the department’s felony drug arrests stem from neighborhood complaints of drug dealing. IPD logged nearly 6,000 such complaints in 2004. “It think it is unfair to ignore the social issues involved,” Staletovich says. “Instead of assuming the cops are biased, isn’t it possible they are just doing their jobs? If we get complaints on African-Americans, we can’t just ignore that.”
But Charles Moose is among those who say racial profiling is a reality in policing both in Indiana and across the country. Moose was the police chief of Montgomery County, Md., and Portland, Ore. He holds a Ph.D. in urban studies and criminology, but he is best known for catching the “D.C. Snipers” who terrorized the Washington, D.C., area for three weeks in October of 2002. Now Moose works to address racial profiling through organizations including the American Civil Liberties Union.
“The statistics across the country certainly show the same kind of bias that the Marion County Court figures suggest,” Moose says. “Police are just people, and they can be influenced by stereotypes or prejudice. But it is also a matter of rewards being given throughout the law enforcement system and in our communities for making these kinds of stops and arrests. It’s not just the drugs. African-Americans are associated with a different level of violence, and so the perception is that arresting them for drugs will also address the violence.”
There are two problems with this type of race-influenced policing, Moose says. The first is the bias that leads to African-Americans being massively over-represented in the country’s prisons and jails. In the 2000 Indiana Census, African-Americans made up 8.4 percent of the state’s population, but almost 38 percent of the incarcerated population. “History shows us that there are three bad things that have happened to African-Americans: The first was slavery, the second was discrimination and the third is bad policing,” he says. Other legal experts have noted that nearly all of the riots in the U.S. since the mid-20th century had their origins in race-sensitive police-citizen disputes.
The broader problem, Moose says, is that this type of policing is based on a mistaken assumption that it has some positive effect for the community. “It’s not all simply racism, it is also misinformation,” he says. “The way we are doing law enforcement does not reduce the problem of drugs. The street price holds even or is reduced, which is an indicator that we are not having any success, certainly not the kind of success we could have by providing people with treatment and a chance to get a good job. You’re just getting rid of the low end of the drug population.”
IPD spokesman Staletovich disagrees, saying aggressive drug policing has contributed to Indianapolis’ significant reduction in homicides from 1998, when a record high 120 killings took place in IPD’s district. In 2004, there were 88 homicides in the district, and the number stayed below 90 for several years before that. “One of the reasons the homicide rate has changed dramatically is our specific targeting of drug offenders, because that is where most of the homicides occur,” Staletovich says.
Although IPD arrests many more African-Americans than whites, countywide figures show whites account for 72.5 percent of the persons issued traffic tickets. (See sidebars) IPD, like most Indiana law enforcement agencies, does not collect demographic information for all the individuals they stop or pull over, nor do they report the racial breakdown of who they choose to search. Several African-American community leaders, including state Rep. William Crawford and the civil rights organization Concerned Clergy, are joining with the ICLU to review legislation that would require law enforcement agencies to better track who they stop and search.
Collecting such accurate data is critical, these community leaders say, if some white citizens are going to be persuaded that the problem exists, and the police are going to be persuaded to correct it. The ACLU is among a broad coalition supporting the End Racial Profiling Act, introduced in both the U.S. House and Senate in the last Congress and expected to be reintroduced soon. The proposed legislation would define racial profiling, institute data collection systems to identify and track racial profiling and make grants available to police departments for in-car video cameras, police training and portable computer systems.
The data is likely to reveal further evidence that the relationship between race and criminal justice is as complex as it is dysfunctional. Increasingly, urban police departments are led by African-Americans, like Indianapolis’ director of public safety Robert Turner and Marion County Sheriff Frank Anderson, who oversee white majority forces spending a disproportionate amount of law enforcement resources in minority neighborhoods. As IPD spokesman Staletovich says, “A lot of our officers are assigned to areas where pretty much the only people they could pull over are African-American.”
Those who are accused of racial profiling vigorously deny its existence, and appear to be completely sincere in their insistence. But the racial disparity in the stop, arrest and incarceration rates can’t be ignored, nor can the deep sentiment of unfairness felt in Indiana’s African-American communities. It is undeniable that, in our current system, whites are permitted youthful indiscretions that occur in college dorm rooms or SUVs cruising 86th Street, while those same acts lead African-American youth to arrest, jail and criminal records that can handcuff their futures.
Moose is among those supporting the federal legislation and thinks state laws are needed as well, saying that reporting accurate police stop and search data is necessary if communities in Indiana — and throughout the country — are going to move toward a method of law enforcement that truly addresses the problems of drug addiction and crime, rather than continue the perpetual drug court cycle of African-American men and women placed in chains for non-violent crimes. “The strategy we are using is not successful, so you wonder why we are doing it,” Moose says. “Isn’t doing the same thing over and over again and expecting a different result the definition of insanity?”
Fran Quigley and Jacqueline Ayers are the executive and associate directors, respectively, of the Indiana Civil Liberties Union, www.iclu.org, and Elizabeth Stull completed an internship with the ICLU in the course of earning her masters in social work degree from Indiana University.
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