Introduction
The equal and just application of law is central to the mission of criminal justice in the United States. Despite this goal, law enforcement has historically struggled with race and gender discrimination. The fourteenth amendment of the constitution protects citizens from state actions that ”deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Since the 1960s, courts have used evidence of disparate treatment and outcomes based on race and gender as a means to evaluate whether various law enforcement practices are unconstitutionally biased.
Addressing the challenges of discrimination, both real and perceived, has become critical as local law enforcement agencies across the country embrace community policing models, which depend on the trust and confidence of all members of the community. We explore public perceptions of discriminatory treatment in the enforcement of justice and racial and gender disparities that have emerged in statistics regarding traffic stops, arrests, and use of force as well as the legal and legislative responses to discriminatory treatment of citizens by the police. Such treatment in the hiring and promotion of employees within police agencies also is discussed.
Racial Discrimination in the Application of Criminal Law
Perceptions of Police by the Public
Perceived disparate treatment of groups in the enforcement of justice strongly shapes the public trust and confidence in the police and may lead to legal claims of discrimination. The loss of public trust, particularly among minority groups, has led to legal challenges of discrimination against the police. In general, a majority of Americans express confidence in the police; however, non-whites consistently demonstrate lower confidence levels than do whites. In 2004, according to Gallup Poll results, 90% of U.S. citizens had at least some confidence in the police. Seventy percent of white Americans had a ”great deal” of confidence in the police, compared to 43% of non-white Americans. In addition, non-whites were almost twice as likely to indicate that they had ”very little” confidence in the police when compared to whites (Bureau of Justice Statistics 2003).
In general, race tends to influence public perception of police injustice. Blacks are considerably more likely to perceive criminal injustice (Hagan and Albonetti 1982). More recently, Weitzer (2000) demonstrated that a majority of all individuals, regardless of race, believed that being black made a difference in how an individual was treated by the police. Ultimately, however, research indicates that although non-whites are more likely to believe the police are unjust, these attitudes are affected by factors other than race exclusively.
A variety of factors negatively influence non-white perceptions of the police, including marital status, income, and neighborhood crime rate (Parker, Onyek-wuluke, and Murty 1995). Class inequality appears to be a significant factor in blacks’ experience of social institutions. Research indicates that perceptions of blacks from a middle class neighborhood more closely paralleled those of middle class whites than those of blacks from a lower class neighborhood (Weitzer 1999, 2000). Ultimately, in examining police perception, neighborhood and class characteristics appear to play a more significant role than race alone.
Racial Profiling
During the past decade, concern about racial profiling and the disparate treatment of drivers during routine traffic stops has become a critical issue for law enforcement. Although there have long been allegations of police targeting people of color, aggressive crime control strategies utilized by police in an effort to reduce crime rates throughout the 1980s and 1990s heightened the perception that police may use traffic offenses as a pretext to conduct disproportionate numbers of roadside investigations of black or Hispanic drivers and their vehicles. The term ”racial profiling” was derived from the use of a ”profile” of drug couriers developed by the Drug Enforcement Agency during the mid-1980s to interdict interstate drug trafficking. Allegations of racial profiling become so common that the phenomenon was popularly labeled ”driving while black” or ”driving while brown.”
Racial profiling is generally understood as any ”police-initiated action that relies upon the race, ethnicity, or national origin of an individual rather than the behavior of that individual or information that leads the police to a particular individual who has been identified as being engaged in or having been engaged in criminal activity” (Ramirez, McDevitt, and Farrell 2000). Using this definition, it is appropriate for police to use race or ethnicity to determine whether a person matches a specific description of a particular suspect but not appropriate to use racial or ethnic stereotypes as factors in selecting whom to stop and search.
National surveys indicate that a majority of Americans, regardless of race, believe that racial bias in police stops is a significant social problem. In Gallup Polls from 1999,2001, and 2003, almost 60% of Americans surveyed believe that the practice of racial profiling is widespread. For black respondents, the perception that racial profiling is widespread actually increased from 77% in 1999 to 85% in 2003.
In April 1999, the issues of racial profiling took the national spotlight when the New Jersey attorney general released a report concluding that the New Jersey State Police illegitimately used race as a basis for stopping drivers on interstate highways in an attempt to make drug arrests. The attorney general’s findings followed public outcry over several high profile incidents, including the shooting and wounding of three unarmed black and Hispanic men during a traffic stop by New Jersey state troopers. In the same year, the U.S. Department of Justice brought a federal civil rights suit against the New Jersey State Police based on ”pattern and practice” of discrimination. Ultimately, the New Jersey State Police and the Department of Justice came to an agreement memorialized in a federal consent decree.
Arrest
Suggestions of racial disparity and discrimination in policing have also been attributed to arrest discretion. Black and Hispanic individuals are disproportionately likely to be arrested, compared to their representation in the general population. In 2002, blacks comprised 12.9% of the population but 26.9% of all arrests. Whites represented 77.1% of the population but made up 70.7% of arrests (Bureau of Justice Statistics 2003). Further, blacks perceive that they are more likely than whites to be hassled by police, both personally and vicariously (Browning et al. 1994).
Although research does indicate the veracity of at least some level of disparity in arrest discretion, there exists no consensus or clear indication of the presence of specific racial discrimination. As with other components of police work, the decision to arrest involves a multitude of factors, and thus disparity may in fact be attributable to other confounding variables. Arrest discretion has been attributed to situational factors, and further, it has been suggested that disparity could be accounted for by factors such as increased disrespectfulness to the police or greater involvement in more serious crimes (Walker, Spohn, and Delone 2004). The neighborhood in which an incident occurred may also play a more significant role than race alone in determining arrest decision.
It is possible that discrimination exists but has little to do with the suspect. Some research indicates that even when no evidence of racial bias against suspects is ascertained, police appear more inclined to arrest in the event that a white complainant is involved. Thus, it becomes unclear as to whether disparities can be attributed to the existence of racist practices or to other criteria such as seriousness of offense, neighborhood characteristics, age, suspect history, behavior and demeanor, or presence of a complainant.
Research also suggests that differential treatment by police occurs in relation to female suspects. The presence of chivalry, where women receive preferential treatment, has been suggested and examined. Visher (1983) found that women were treated differently than males in arrest situations, with the decision to arrest a female being made more on the basis of individual factors than larger situational cues. Results also indicate that females who violate stereotypical female characteristics and behaviors are less likely to be afforded chivalry. Here, young, black, and hostile women did not receive preferential treatment, while calm older white women were granted leniency. The presence of a complainant or victim appeared to influence chivalry, with victim request for arrest discouraging chivalry. Further research has supported the discrepancy between arrest decisions for black and white female suspects (Smith, Visher, and Davidson 1984).
Additional research is needed in the area of disparity and discrimination in police arrest discretion. Research has been used to both support and to refute the presence of discriminatory practices. It is possible that disparities may be more attributable to where a suspect lives or to the nature of the suspect’s interaction with police than to specifically race in and of itself. However, gender does appear to play a role in arrest discretion. Ultimately, conclusions cannot be drawn until further experimentation is conducted and confounding variables are more specifically examined.
Use of Force by the Police
From the Wickersham Commission’s 1931 examination of the practice of using the ”third degree” and infliction of pain in order to obtain confessions to reactions to the 1991 beating of Rodney King by Los Angeles police officers, police use of force has and continues to represent an issue of fundamental concern in the United States. This concern is heightened by the suggestion that force may be used disproportionately on certain groups.
It is estimated that police use force in approximately 1% of police-citizen interactions (Langan et al. 2001). Use of force is relatively infrequent, typically occurs at the lower end of the spectrum of force, and typically occurs when a suspect is resisting arrest. Research has shown that minorities have an increased likelihood of experiencing police use of force. For example, a 1999 Bureau of Justice Statistics national survey of contact between the police and public suggests that blacks and Hispanics were more likely than whites to have reported police use of force, or threatened use of force (Langan et al. 2001).
Discerning the extent and nature of use of force is challenging. Recent empirical research examining local police departments supports prior findings that use of force is infrequent and that when it does occur, it usually involves a low level of force. Factors previously thought to influence use of force, such as the race of both officers and suspects, do not appear to significantly predict police use of force (Garner et al. 1996). Research also indicates that officers tend to use higher levels of force against suspects of the same ethnicity as the officer (Alpert and Dunham 1999).
A more specific subcategory of police use of force that receives significant public attention is the use of deadly force by officers. Public outcry, such as the Cincinnati riots following the shooting of a black man in April 2001, heightens social concern about disparate uses of force. Although there is evidence of racial disparity in fatal shootings by police, there appears to be no consensus as to whether the disparity that does exist is indicative of discrimination. Data suggest that a growing percentage of felons killed by police are white, while a declining percentage are black. In 1978, blacks were killed at a rate of eight black to every one white victim. By 1998, such discrepancy had decreased by half (Brown and Langan 2001).
Ultimately, it is unclear as to the extent to which discriminatory use of force exists and, if present, what the nature of such discriminatory practices is. As with other components of policing and discrimination, there potentially exist other factors (such as age, class, or suspect behavior) that may additionally explain findings. Further research is necessary, specifically research that examines both the explicit nature of use of force as well as the dynamic interaction of confounding variables that might exist.
Legal Responses to Discriminatory Treatment
Lawsuits against the Police
A number of laws protect individuals from discriminatory conduct by the police in arrests, traffic stops, and use of excessive force, in the use of racial slurs, or in the refusal of an agency to respond to complaints alleging discriminatory treatment by its officers. The Omnibus Crime Control and Safe Streets Act of 1968 and Title VI of the Civil Rights Act of 1964 together prohibit discrimination on the basis of race, color, sex, or national origin by police departments receiving federal funds. These laws prohibit both individual acts and patterns or practices of discriminatory misconduct by state and local law enforcement agencies that receive any financial assistance from the federal government. Departments found to have engaged in discriminatory practices risk losing all federal funding.
Individuals who are subject to police discrimination can also bring civil litigation against police officers or municipalities for violations of 42 U.S.C. § 1983. To establish a legal claim of discrimination under § 1983, a citizen must show that the action occurred ”under color of law” and that they were deprived of a constitutionally protected right. Over time, however, it has become more difficult for citizens to succeed in § 1983 claims against police officers or agencies. The courts have consistently ruled that the citizen must prove that discriminatory treatment by the police was intentional, not merely a practice with a disparate impact on a particular group. Additionally, state and local law enforcement agencies have largely escaped liability under § 1983 because citizens must additionally show that the leadership of an agency either promoted, condoned, or had knowledge of discriminatory practices within the organization and failed to prevent such practices.
Prior to 1994, the federal government primarily prevented discrimination by the state and local police through legal action to withhold federal funding if discriminatory treatment was found. Following the high profile beating of Rodney King by Los Angeles Police Department officers, Congress passed legislation amending the federal code under 42 U.S.C. § 14141, which made it unlawful for state and local law enforcement officers to engage in a pattern or practice of conduct that deprives persons of their constitutional civil rights. Section 14141 allows the U.S. Department of Justice to mandate structural changes within law enforcement agencies to end patterns of abusive and discriminatory practices.
Commissions and Civil Rights
Perceived police misconduct and racial discrimination by the police has historically led to racial turmoil in many minority communities. In response to these high profile events, numerous government sponsored commissions have addressed the impact of disparate treatment and discrimination. Following urban race riots of the 1960s, President Johnson appointed the Kerner Commission to investigate community upheaval and offer recommendations. The commission identified deep hostility between the police and the minority communities as a primary cause for the public disorder and a glaring lack of minority representation in policing as a primary cause of the negative relationship between communities of color and the police. The conclusion of the commission was that predominately large city police departments employed few individuals of color and ”loomed as virtually all-white occupying armies” in urban neighborhoods (Walker, Spohn, and Delone 2004, 197).
Since that time, numerous commissions have found that discriminatory treatment by the police in the application of justice and employment practices has led to community distrust and instability. More recently, the Christopher Commission was formed to investigate the beating of Rodney King by members of the Los Angeles Police Department. The commission concluded that ”the problem of excessive force [was] aggravated by racism and bias within the LAPD” (Commission, 54).
To address the concerns raised by these commissions and other public outcry, law enforcement has largely moved from reactive patrols to more proactive models of community policing. Under a community policing model, police agencies are expected to solicit input and participation from citizens and communities in order to determine what neighborhoods or individuals should be targets of law enforcement attention. As a result of this shift, minority representation in the police force has gained increased attention since it constitutes an important tool for helping police departments gain the trust of minority community members who might not otherwise serve in a police-community partnership. The underrepresentation of minorities among the police ranks has historically signified a lack of sensitivity and understanding of minority concerns and culture within law enforcement, which threatens to reduce the support for community policing within the communities where partnerships are needed the most.
Bias and Discrimination in Employment
Prior to the 1960s, there were very few women or racial minorities employed in law enforcement professions. Employment discrimination through formal requirements and informal practices kept many qualified individuals out of the police ranks. Changes in employment law since the 1960s have largely reversed biased practices that were codified in departmental hiring policies. Despite these legal advances and the widespread acceptance and support for diversifying the law enforcement profession, the majority of law enforcement agencies continue to struggle with issues of recruiting a diverse work-force—particularly people of color and women. A 2002 Bureau of Justice Statistics report on police departments nationally indicated that more than three-quarters (77.4%) of officers were white males (Reaves and Hickman 2002). The same report estimated that, as of June 2002,10.6% of all full-time officers were female and 22.6% members of a racial/ethnic minority.
Historically, physical requirements, including height-weight proportion and physical strength, prevented women from advancing through the recruitment process, thus limiting the pool of qualified female applicants (Milton 1972; Sulton and Townsey 1981; Police Foundation Report 1989). Although many of these tests have been modified to test the true occupational requirements of law enforcement, the ability of female recruits to pass physical agility tests remains a concern for administrators interested in diversifying the police workforce. In a 1998 study by the International Association of Chiefs of Police looking at women in policing, physical strength was listed as the top concern (28%) regarding women’s skills. Among the explanations provided for the under-representation of minorities are a lack of education, including higher dropout rates (Winter 1991), and the use of drugs and arrest rates (Clark 1989). Thus, the criminal background check has limited the pool of minority recruits.
Despite these barriers, one of the primary reasons for the small proportion of women and minorities available within the applicant pool is a lack of interest or perceived lack of interest in law enforcement careers by women and racial and ethnic minorities. Life experiences, including higher education and familial obligations, of both women and minorities vary from the conventional model of a police officer. Due to the traditional all-white, all-male environment, there is also a low probability of mentors or support for female or minority officers within the upper echelons of police organizations.
Legal Remedies to Discrimination in Law Enforcement Hiring and Promotion
The legal landscape has changed dramatically since 1960, protecting the rights of persons seeking employment and enabling applicants facing discrimination to seek compensatory and punitive damages from employers or potential employers. Most prominent among these changes were the Civil Rights Acts of 1964 and 1970, which provided explicit protection of employees from discrimination based on race, sex, religion, or ethnicity. Title VII of the Civil Rights Act states that it is unlawful for an employer ”. . . to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” The Supreme Court has subsequently interpreted disparate treatment of individuals based on these protected categories as a violation of Title VII. Therefore, employers must not engage in hiring or promotion practices that have a disparate impact on certain groups, which might be indicative of a pattern of discrimination.
The Equal Employment Opportunity Act of 1972 amended Title VII and created the Equal Employment Opportunity Commission (EEOC). The EEOC has been the primary governmental agency to investigate disparate hiring and promotion practices that may violate employees’ civil rights. Employers may also face liability for discriminatory treatment when they ”use employment practices that although apparently unbiased on their face, operate to the disadvantage of groups of persons based on race, color, sex, religion, or national origin” (Sustra et al. 1995). In essence, standards set forth by departments and to be applied to all applicants, such as written exams, cannot have a purposefully disparate effect.
More recently, federal law and the courts have expanded the protected categories of individuals who can be protected from discrimination in hiring. The Age Discrimination Act of 1967 prohibits discrimination in hiring and promotion against people older than forty. The Americans with Disabilities Act of 1990 again amended Title VII of the Civil Rights Act of 1964, providing significant protections against discrimination for people with handicaps, mental impairments, or medial illness. The 1990 act provided compensatory and punitive damages, which had previously been available only to racial and ethnic minorities but can now be sought by any victim of intentional discrimination based on sex, religion, or disability.
As courts continue to expand and clarify the protections to citizens facing discrimination by law enforcement in either the administration of justice or professional employment, fair and equitable enforcement will be central to the operational mission of law enforcement agencies seeking public trust.
