INDY'S WEEKLY ALTERNATIVE NEWSPAPER HIGHLIGHTING ARTS, ENTERTAINMENT AND SOCIAL JUSTICE

Color of Justice

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. To the right of the judge’s bench sit 12 men and one woman, all wearing bright orange jumpsuits and all handcuffed and chained together. This is “drug court,” so the people sitting here are defendants facing Class A, B or C drug felony charges, and they are Marion County Jail inmates. Every one of the 13 is African-American. The court’s afternoon session begins, and is devoted mostly to pre-trial conferences and guilty plea hearings. Cases are called, more prisoners are brought in. The audience area is almost entirely made up of African-Americans, among them a few defendants who made bond after their arrest. By the time the court session is over, 33 people have appeared in front of Judge William Young. Thirty-one are African-American. One white defense attorney walks over to where another lawyer is sitting and gestures toward the area where the African-American defendants are sitting. “This is the way it is every time I come here,” he says, shaking his head. “It just makes me sick.” Representatives from the Indiana Civil Liberties Union observed the Marion County felony drug court in 29 separate half-day sessions in the summer of 2004 and winter of 2004-2005. During those sessions, we observed 675 defendants appear for their hearings. Before beginning this project, we reviewed research showing that the rate of illicit drug use is fairly consistent across major U.S. ethnic groups. The 2003 National Survey on Drug Use and Health (conducted by the U.S. Department of Health and Human Services) showed that the percentage of African-Americans and whites who use illicit drugs was approximately the same. The Monitoring the Future study, conducted in 2003 by the University of Michigan Institute for Social Research, showed white teens have substantially higher rates than African-American youth for use of illicit drugs. According to the 2000 Census, African-Americans make up about 24 percent of Marion County’s population. Since whites use drugs at about the same rate as African-Americans, it would seem logical to assume that African-Americans would make up about a quarter of the county’s felony drug arrests. It didn’t work out that way. During the period of our observation of the drug court, nearly 71 percent of the defendants were African-American. When informed of the racial breakdown of the ICLU study, Judge William Young was surprised that the percentage of African-American defendants wasn’t higher. “That seems low to me,” he said. The judge, a Republican who has been hearing felony drug cases since 1995, emphasizes that the court doesn’t have any influence on the racial composition of who gets arrested for drug crimes. That racial breakdown, Young and others in the criminal justice system say, is entirely dependent upon who police officers decide to stop, investigate and search. “There are three main ways a person gets picked up on one of these charges, and there is a tremendous amount of discretion in how aggressive a police officer wants to be,” Young says. “Either there is an ongoing investigation of someone selling out of a house, which results in a search warrant and an arrest, or the person is stopped on the street, pulled over and then searched, or there is an undercover buy-bust operation,” he says. “It’s like the traffic cop sitting on the corner who can write a ticket for every single solitary soul if they want to. If police decide they want to search you, they can figure out a way to do that.” While confirming the racial disparity in the population of defendants that appear before him, Young says he is not certain why it exists. “It may be because the Indianapolis Police Department or their narcotics department are better funded [than the Marion County sheriff, which patrols the outskirts of the county] and they have more African-Americans in their jurisdiction,” he says. (Forty percent of the population in Indianapolis Police Department’s jurisdiction is African-American.) “I know that there are national studies showing that there is racial bias in police stops and searches,” the judge says. “But I’m not sure we have that here.” 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.” 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. For example, attorney Derek Eley, an African-American man who is president of the Marion County Bar Association, says he has been stopped twice in the past year by Carmel police with no apparent justification. “The first time, the officer actually pulled up beside me on I-465, looked in the car at me and then pulled behind me to turn on his lights,” Eley says. “It was quite obvious what he was doing. I’ve had a large number of African-American clients who have been stopped up there. They just take it as accepted practice in Carmel. And now that it’s happened a couple of times with me, I take it as normal practice as well.” Carmel police Chief Mike Fogarty says that his department has a record of only one stop of Eley, and that was for a valid observation that Eley’s license plate had expired, a violation that resulted in a warning ticket. Fogarty says he is aware that a perception exists that Carmel police single out minorities for traffic stops, but he says video and audio records of stops, mandated by the settlement of the racial profiling lawsuit against the town, show the perception is not justified. “Singling out racial minorities for stops is not the case today in Carmel, and as far as I can tell, it has never been the case here,” he says. Hilary Bowe Ricks is a criminal defense attorney in Indianapolis whose husband is African-American. She believes they were recently profiled on an Indiana highway near New Albany. “My husband was driving my BMW and not speeding. We passed a state trooper who had someone pulled over going the other way. Next thing we knew she had hopped in her car and was pulling us over,” Ricks says. “The reason she gave? The tint on my windows was too dark. No, I think the driver was.” Ricks says her years of defending criminal cases leads her to believe that the stop was simply a pretense for the officer to look for a drug arrest. “I’m guessing she uses that excuse to get the window down so if she smells marijuana she has probable cause to search the car.” Daniel Winston also has a criminal law background, currently working both as a licensed private investigator and as a security guard at Hyatt Regency Hotel. On the evening of April 24 of last year, Winston and his fiancée Nickole Griffin, both African-American, finished their shift at the Hyatt at 10 p.m. and picked up their children, ages 10, 9 and 3, from the baby-sitter. While they were heading east on 21st Street and stopped at an intersection with Ritter Avenue, an IPD car made a left turn in front of them. “The officer made eye contact with me and gave me a strange look,” Winston says. “I just had a feeling and I said to my fiancée, ‘They’re getting ready to pull us over.’ My fiancée says, ‘Why would they do that? We haven’t done anything.’ “The officer put on his lights and siren and pulls us over. He asks my fiancée for her license and registration. She asks what his probable cause was for pulling us over. He got red-faced and angry and makes her get out of the car and starts going through her purse. He was trying to get her riled up so he could charge her with disorderly [conduct]. I know how this works.” Eventually, the IPD officer, who they later learned was named Thomas Westrick, said he had pulled over Griffin and Winston because he had received a radio call that a blue Ford had been seen with an adult female and a juvenile female in the car with a gun. Winston and Griffin were in a green Kia with three children in the back seat. Eventually, the police officer released them without any ticket or charges. Winston and Griffin filed a complaint with the Indianapolis Citizen Complaint Review Board, and gave taped statements to an investigator. A few weeks later, they received a letter saying the officer’s behavior that evening “conforms to departmental policy.” Westrick did not respond to repeated requests, delivered through an IPD spokesperson, seeking his comment on Winston’s and Griffin’s account. As for Winston, he says he was not surprised by either the stop or the lack of success of his complaint. “With the work that I do, I’m out late all the time, and I get stopped all the time. I know they are going to come up with some bogus reason.” 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.