1. What effect do Regulatory Criminal Laws have on police/minority relations?
2. Are minorities more susceptible to Regulatory Criminal Law enforcement because of heavy police deployment and activity quota policies? Explain your answer.
3. Should police deployment to minority neighborhoods be reduced? What about the high victimization rates in those neighborhoods? Explain your answer.
The Impact of
Regulatory Criminal Law on
American Criminal Justice
Are There Too Many Laws?
Vincent Del Castillo
This chapter will explore the issue of race relations and the various ways regulatory criminal laws contribute to strained relations between police and minority communities. Minority recruitment into police departments as a means of alleviating some of those issues will also be reviewed. Particular attention will be given to the practice of police discretion, racial profiling, stop and frisk, and the vulnerability of inner city residents to opportunistic regulatory criminal law enforcement.
Racial disparity in the United States can be traced back to the establishment of the country. The acceptance of slavery by the founders and the continuance of the practice was a direct contradiction to the spirit of the Declaration of Independence, particularly the conviction that all men are created equal. Although many of the founders were against slavery, the issue became subordinate to the need to establish a union that could withstand the possible return of the British army.
The practice of slavery was not unique to America, however; throughout history conquering nation’s enslaved people to serve in a variety of capacities, from domestic servants to agricultural and construction laborers. The perception that racial differences equaled inferiority only served to justify the practice. However, the idea of racial inferiority was inconsistent with the principles under which America was founded and there were continual efforts to resolve this disparity. Nevertheless, fiscal differences among the states exacerbated the controversy over slavery, leaving no amicable resolution to the problem. The agricultural southern states relied on slavery out of economic necessity while the northern states depended more heavily on industries where slavery was not particularly suitable. The issue of slavery continued to divide the country until its abolition following the Civil War.
The abolishment of slavery did not resolve the problems associated with race relations, however. Blacks were still considered socially inferior to whites, particularly in the South. Racial segregation was practiced openly and unabashedly in virtually every segment of society, including in churches, schools, restaurants and public transportation. These practices continued until the 1950s, when incidents of resistance began to gain national prominence. For example, in 1955, a woman by the name of Rosa Parks was arrested for refusing to sit in the “colored section” of a bus in Montgomery, Alabama.1 Also, in a landmark case (Brown v. Board of Education of Topeka Kansas) the Supreme Court unanimously ruled that segregation in public schools was unconstitutional. Finally, in 1964, President Lyndon Johnson signed the Civil Rights Act that prohibited any kind of discrimination based on race, color, religion or national origin.2 The 1960s also witnessed the Voting Rights Act of 1965 and an executive order by President Johnson requiring government contractors to take affirmative action in all aspects of hiring and employment. That is, to give preferential consideration to minorities in order to compensate for past discrimination in hiring.
The 1960s was also an era of civil unrest across the country. Demonstrations for racial equality occurred simultaneously with protests by anti-Vietnam War sympathizers and frequently devolved into riots. Most police officers in the 1960s had never experienced a riot or angry demonstration and most departments did not include riot control in their academy training. Therefore, police, who were not prepared to control large-scale demonstrations, often precipitated riots by their over-reaction to the behavior of the demonstrators. For example, in Selma, Alabama, in 1965, civil rights marchers led by the Reverend Martin Luther King were set upon by police wielding clubs and cattle prods. In 1967, one of the worst riots took place in Detroit. It took five days to restore order and only after 43 people died, about 7,000 were arrested, 1,300 buildings were destroyed and 2,700 businesses were looted. After the Reverend Martin Luther King was assassinated in 1968, rioting, looting and burning erupted in over one hundred cities across the country. Many spontaneous riots also erupted over police actions that resulted in the death or serious injury of a member of the black community. One of the incidents that achieved national prominence involved the video taping of several Los Angeles police officers beating a black motorist, Rodney King, who apparently offered little resistance. Six days of rioting broke out in 1992 after four of those officers were acquitted of all charges, including assault. In the wake of those riots, over 50 people had died, 2,383 injuries were reported, over 13,000 people were arrested and over $700 million in property damage was reported.3
Race and Class
The relationships between the police and ethnic and racial minorities present some of the more challenging problems to law enforcement. The blending or confusion of race and class further serves to complicate that relationship. This is particularly evident in inner city, economically depressed neighborhoods. According to the U.S. Census Bureau, the poverty level for blacks and Hispanics is about 27%, compared to about 10% for non-Hispanic whites.4 Because inner city depressed neighborhoods are inhabited by economically disadvantaged people, it is more probable that they will be minorities. This phenomenon tends to feed the stereotype that minorities, blacks in particular, are a homogenous, economically downtrodden group. Other views, however, point to a stratified model whose members range from the prosperous to the destitute. It is further argued that an increasing black middle class migrated out of the inner cities to suburban life, leaving an underclass isolated from middle class life and influence.5
These neighborhoods also have a disproportionately high level of violent street crime, extreme poverty, unemployment, inferior educational opportunities and welfare-dependent single mothers that further serve to shape a stereotypical view of blacks and Hispanics. According to the Bureau of Justice Statistics (BJS), blacks were more likely than whites to be victims of violent crime, including robbery and aggravated assault, and somewhat more likely than whites to be victims of rape or sexual assault.6 Additionally, Hispanics were victims of robbery at rates higher than those of non-Hispanics.7 Murders are also higher in depressed neighborhoods and are most frequently intra-racial in nature. BJS statistics show that from 1976 through 2005, 94% of black homicide victims were killed by other blacks.8 The same report also found that homicide victimization rates for blacks were six times higher than for whites and offender rates were more than seven times higher than the rates for whites.9
Statistics like these, which are based primarily on class, tend to reinforce racial stereotypes, particularly by white Americans. Current trends in police department staffing point to a gradual increase in minority and female representation, however, police departments still consist predominantly by white officers. Because mostly white officers staff police departments, and because primarily people of color inhabit these neighborhoods, there is a tendency to associate race rather than class with crime.
Police deployment strategies include a number of considerations, including calls for service, rush hour traffic conditions, schools, special events, and crime. However, the bulk of police resources are assigned according to reported crime. Because of the higher incidence of crime in poorer neighborhoods, there is a higher concentration of police assignments in those neighborhoods. Although necessary to address serious crime problems, the presence of police in large numbers carries with it several problematic outcomes.
Due to their economic status poor people are more likely to come in contact with the police. Many are homeless, resulting in minor offenses such as loitering, sleeping on park benches or public transportation, panhandling and various other disorderly acts. If a poor person owns a car it usually needs repair for such problems as cracked windshields or broken lights that can result in summonses by the police. Regulatory criminal law enforcement such as this tends to be resented by members of the community. From their perspective, the police, who are there to protect them from violent crime, are instead harassing them by focusing on petty violations of laws. Activity quotas, particularly for traffic and other regulatory criminal law offenses, only serve to exacerbate the resentment. The police image is one of being prejudiced, unfairly targeting minorities and applying a different set of enforcement standards on the basis of race.
Arrests for Regulatory Criminal Law Violations
Government statistics show that blacks experience a disproportionately high rate of arrests for violating regulatory criminal laws. According to the 2010 Census, 14% of all people in the United States identified themselves as black, either alone, or in combination with one or more other races, while 75% of all people in the United States were identified as white, either alone, or in combination with one or more other races.10 Additionally, data show that the rate of drug use among blacks and whites is comparable.11 In a 2005 national survey on drug use by the Substance Abuse and Mental Health Services Administrations (SAMHSA) the percentage of whites who reported using drugs in the past month was 8.6% as compared with 9.7% of blacks.12 Marijuana use was also comparable with 6.7% of whites and 7.9% of blacks having used marijuana over the past month.13 Yet, according to FBI statistics, blacks accounted for 41% of arrests for weapons possession, 40.7% for prostitution, 33.6% for drug abuse and 68.6% for gambling.14
The large number of mostly Hispanic illegal immigrants has skewed arrest statistics for Hispanics. For example, in 2007, Hispanics accounted for about 40% of sentenced federal offenders as compared to about 27% white and 23% black. About 75% of Hispanics sentenced for immigration crimes were convicted of entering the U.S. illegally and 19% were convicted of smuggling, transporting or harboring an unlawful alien.15 However, after discounting the 29% of Hispanics who were non-U.S. citizens, the percentage of Hispanics was reduced to about 11%.16 About 56% of sentenced Hispanic citizens were convicted of drug offenses, 14% for immigration offenses and 30% for all other crimes.17 One of the explanations for the disparity in arrests of blacks and Hispanics, as indicated above, is the high concentration of police in minority neighborhoods, resulting in increased opportunities for observation of offenses. Another, more widely held explanation is that minorities are treated differently by police due to their broad discretion in the enforcement of regulatory criminal law. As noted in previous chapters, because regulatory criminal law offenses rarely have victims or complaining witnesses, the decision to arrest is solely at the discretion of the police officer.
The idea of criminal profiling has been the subject of several movies, books, and at least one television series, although in theory, profiling is not a new concept. It gained prominence as a forensic tool when the Federal Bureau of Investigation established a profiling unit primarily for the purpose of tracking and identifying serial killers. Traveling from place to place to commit their crimes, serial killers often leave a trail of unsolved murders because in each city or town that they kill someone the murder is considered a single incident and often goes unsolved. By debriefing serial killers, F.B.I. profilers assigned to the Bureau’s Behavioral Analysis Unit-2 (BAU-2) are able to identify certain personal characteristics of those killers that might relate to others who commit similar crimes. For example, Ted Bundy was responsible for assaulting and killing at least 36 women in several states across the country at the rate of about one victim each month. Following his arrest, the profilers sought to understand how he became a serial killer. After a number of debriefings, they determined that the answer could be found in his development from birth to adulthood. Specifically, his behavior was influenced by his life experiences.18
The term “profiling” took on a different, more negative connotation when in the late nineties accusations were made against the New Jersey State Police for race-based profiling; the idea that certain racial or ethnic groups are likely to be engaged in criminal activity and by stopping and searching cars operated by members of those groups the officers would probably find sufficient evidence to make an arrest. The controversy reached media prominence when a van operated and occupied by black and Hispanic men was stopped and during the process, after the van moved in what was perceived to be a threatening gesture, the officers fired 11 shots into the van. The police reported that as they approached the van from behind it lurched backwards in their direction. They later admitted that they stopped the van because of the race of the occupants. After an investigation by the New Jersey Senate Judiciary Committee, a consent decree was signed in which the state agreed to allow the U.S. Department of Justice to oversee State Police activities, including how traffic stops are conducted.19
The problem is not limited to New Jersey, however. Ample evidence shows that nationally, police stop black drivers at a higher rate than whites. During 1999, BJS estimates that as a percentage of licensed drivers, over 12% of African Americans were stopped compared with 10.4% of white drivers.20 Although the percentage differences are not dramatic, when put in the context that blacks drive over 2,000 fewer miles per year than white drivers and black households are likely to own fewer cars than white households or none at all, the differences in rates take on greater significance.21 It should be emphasized that virtually all of the racial profiling issues are associated with regulatory criminal law violations. For example, if a robbery victim reports to a police officer that they were just robbed and point out the assailant, the police have little choice but to stop the suspect and conduct an investigation. However, with regard to regulatory criminal laws, police can choose when, where, and with whom those laws may be enforced.
Stop and Frisk
Traffic stops are not the only situations that lend themselves to accusations of racial profiling. Police may also stop, frisk and question a person under certain circumstances. This authority emanated from the U.S. Supreme Court’s opinion in the 1968 case, Terry v. Ohio. The case involved a police officer who observed three men who were engaged in conduct which, based on the officer’s training and experience, appeared to be consistent with casing a store in preparation for a robbery. The officer approached the men, identified himself and began to question them. After not receiving prompt identification he patted the exterior clothes of one of the men and discovered a gun that led to the arrest of that man (Terry). The Court ruled that the conduct observed by the officer reasonably led him to believe that an armed robbery was about to be committed and he was therefore justified under the fourth amendment.
Since the Terry case, police have used the stop and frisk process as a tool to intercept criminals, thus preventing crimes from occurring. Also, by identifying suspicious persons the police are able to gather intelligence that might later be used in follow-up investigations. Unfortunately, because this practice is used primarily in high crime neighborhoods, the subjects of these stops are more likely to be minorities. Nevertheless, stops involving a disproportionate number of minorities have resulted in mostly negative public reactions across the country.
New York City Police stop and arrest data reveal that in 2011 they stopped 684,330 people; a 14% increase over 2010, and a 100% increase over 2004. Of that number, about 12% were arrested or received summonses. About 87% were black or Hispanic and whites made up only about 9% of the total. Those percentages were consistent with previous years. The City’s racial composition is about 25% black, 29% Hispanic, and 33% white. In defense of the practice, New York’s Mayor Bloomberg pointed to a reduction of over 5,600 homicides compared to the previous decade. It was also reported that over 8,000 weapons were recovered, including 819 guns.22
Even where stop and frisk practices receive a good deal of community support, police are still criticized for their decision-making. A survey by the Pew Institute found that about 65% of Philadelphia residents support their Mayor’s stop and frisk policy. However, 44% of black respondents, compared with 15% of whites, did not believe that police used good judgment in executing the policy.23 The practice of large scale stop and frisk efforts in New York has since abated.
Over the past decades, police departments across the country have made concerted efforts to attract minorities and women into policing. Although there are many reasons for these efforts, including equal opportunity legislation, it was envisioned that departments representing communities that they serve would gain greater respect and cooperation from members of those communities. Minority officers often possess particular qualities that help facilitate the police mission. For example, bilingual officers have a distinct advantage in not only interviewing witnesses and victims of crime but they can also function as undercover officers to infiltrate gangs and other criminal enterprises.
Efforts to integrate police departments were not without unique challenges, however. Minority and women officers often had to deal with resentment from fellow officers, especially if they were hired under affirmative action mandates. Some residents of the communities that they served also resented minority officers. Some expected the officers to give them special breaks and others treated the officers as traitors, having “sold out.” Some minority officers, in responding to those pressures, found themselves treating minority offenders more harshly than white officers in an effort to gain acceptance by their fellow officers.
Initially, minorities and women also found difficulty in attaining upper supervisory and command positions within their departments. A number of legal actions brought by minority and women officers resulted in federal, state and local court-ordered promotions so that the racial and gender makeup of departments’ management achieved consistency with the proportions of minorities and women officers.
Another area of contention is in the deployment of minority officers. In order to provide communities with a better-represented cadre of officers, some departments assign minority officers to patrol neighborhoods with people of the same race or ethnicity as the officer. Legal actions taken by those officers resulted in an order of the U.S. Fifth Circuit Court of Appeals (Allen v. City of Mobile, 331, 1971) that deemed that the practice of assigning officer based on their race or ethnicity was discriminatory and ordered the departments to cease engaging in this practice.
Problems associated with the integration of minority officers have diminished somewhat with the appointment of minority and women police chiefs and commissioners as well as increased integration of police departments in general. This trend is having some positive results in public confidence in the police, particularly in minority communities served by these departments.24
Nowhere are the consequences of regulatory criminal law more evident than in poor neighborhoods. Police and minorities are pitted against one another in an inner city arena with both sides being victims of circumstances that are beyond their control. Police are sworn to enforce all laws and are often mandated to meet specific quotas of enforcement. Community members, themselves frequent victims of violent crimes, are victimized anew by a system designed to protect them. As a result they are stigmatized as criminals and the police labeled as bigoted persecutors. The victimization does not end there, however. Family members, particularly children, suffer when parents and loved ones are imprisoned. The police image is tarnished and people who are distrustful of the police and fearful of the violent criminals find themselves in the middle of a helpless and hopeless circumstance.
One of the book’s principles seems appropriate here, that is: Because police service is qualitative in nature, measures of that service should be expressed in qualitative rather than quantitative terms. This principle is consistent with the concept of problem solving policing that was discussed in the chapter on police. Police, together with the rest of the criminal justice system and appropriate social service efforts, should be directed to solving underlying community problems rather than attacking the more obvious symptomatic manifestations of those problems, such as gambling, prostitution and drug abuse. Besides the wasteful expenditure of valuable criminal justice resources, the disproportionately high arrest and incarceration of minorities serves to perpetuate a racial and ethnic underclass.
America was founded upon principles of human equality and yet tolerated slavery for nearly one hundred years. Even after the abolishment of slavery, many areas of the country forcibly separated blacks from whites in almost every societal setting. Eventually, this practice, too, was abolished legislatively. Although slavery and racial segregation are no longer contemporary issues, there continues to be a perception of inferiority associated with people of different races and ethnicities. Often, fear and distrust are associated with racial and ethnic differences as well. Those differences are most visible in the enforcement of law, particularly regulatory criminal law. Because of the disproportionate economic deprivation of minorities, a large proportion tends to live in poorer inner city neighborhoods, places where the incidents of violent crime are common. Although those neighborhoods, with their accompanying crime problems, are typically identified by race or ethnicity they are more correctly related to class.
These neighborhoods, because of a higher rate of crime, necessitate a higher concentration of police patrols. While there, police are in a position of observe regulatory criminal law violations and because of activity quota mandates must take action, limiting their exercise of discretion. Historical racial differences between police and inner city communities contribute to the specter of racial bias into the situation. Additionally, the prevalence of summons and arrest activity involving minorities raised claims of racial profiling. Crime and summons statistics showing that a disproportionate number of minorities are subjects of police enforcement including stop and frisk activity, tend to support those claims. Because there are seldom any complaining witnesses or victims of these crimes police have wide discretion in their enforcement policies and practices.
One of the measures to alleviate the tension between police and inner city communities has been the recruitment of minorities by police departments. These efforts were not without problems, however. Initially, minority officers experienced resentment from fellow officers and from members of the community, as well. However, with the advancement of minorities and women to higher levels of authority within police departments many of those initial problems were resolved