Road work: racial profiling and drug interdiction on the highway.

• Date: 01 December 2002
• Author: Gross, Samuel R.

TABLE OF CONTENTS I. INTRODUCTION II. STOPS, SEARCHES AND HITS A. The Maryland State Police Data 1. Searches and Stops 2. Hits B. The Process 1. Pretext Stops and Operation Pipeline 2. Consent and Probable Cause 3. Intelligence C. Do the Data Describe Reality? 1. Misreporting 2. Preselecting D. Is This Racial Profiling? 1. Stops 2. Searches and Hits E. Summary III. DRUGS BY WEIGHT A. Users and Dealers B. The Legal Bases for the Searches C. Direction of Travel D. Race 1. Quantities Seized, by Race 2. Do the Quantities of Drugs Seized Explain the Racial Patterns of Stops and Searches? 3. Do the Quantities of Drugs Seized Reflect the Reality of Drug Trafficking? IV. CHANGES OVER TIME, 1995-2000 V. COMMENTARY A. Do These Data Prove Racial Profiling? B. Is It Legal? 1. Does the Fourth Amendment Forbid Any Consideration of Race? 2. What Form of Racial Profiling Is Prohibited by the Equal Protection Clause? C. Is It Worth It? VI. CONCLUSION Colombia-based traffickers continued to control wholesale level cocaine distribution throughout the heavily populated northeastern United States ... often employing Dominican criminals as subordinates.... In major U.S. cities, organized criminal groups of Cuban, Jamaican, and Mexican nationals, as well as African-American and ethnic Dominican gangs, dominated the retail market.--United States National Narcotics Intelligence Consumers Committee, November, 1998 (1)

There should be no loopholes or safe harbors for racial profiling. Official discrimination of this sort is wrong and unconstitutional no matter what the context.--John Ashcroft, Attorney General of the United States, January, 2001 (2)

We have emphatically rejected ethnic profiling. What we have looked to are characteristics like country of issuance of passport....--Michael Chertoff, Assistant Attorney General, Criminal Division, November, 2001 (3)

1. INTRODUCTION

   Hypocrisy about race is hardly new in America, but the content changes. Recently the spotlight has been on racial profiling. The story of Colonel Carl Williams of the New Jersey State Police is a well-known example. On Sunday, February 28, 1999, the Newark Star Ledger published a lengthy interview with Williams in which he talked about race and drugs: "Today ... the drug problem is cocaine or marijuana. It is most likely a minority group that's involved with that." (4) Williams condemned racial profiling--"As far as racial profiling is concerned, that is absolutely not right. It never has been condoned in the State Police and it never will be condoned in the State Police"--but he said that the illegal drug trade is ethnically balkanized: "If you're looking at the methamphetamine market, that seems to be controlled by motorcycle gangs, which are basically predominantly white. If you're looking at heroin and stuff like that, your involvement there is more or less Jamaicans." (5) Hours later, still on Sunday, Governor Christine Todd Whitman fired Williams from his job as superintendent of the New Jersey State Police because "his comments ... are inconsistent with our efforts to enhance public confidence in the State Police." (6) Six months later Colonel Williams sued the state for damages, arguing (among other claims) that his statements about race and drugs reflected well-known facts, and pointing out that the United States Office of National Drug Control Policy website told visitors that in Trenton, New Jersey, "crack dealers are predominantly African-American males," powder cocaine dealers are "predominantly Latino," heroin traffickers are "mostly Latinos," and the marijuana market is "controlled by Jamaicans." (7)

   It is not news that American police officers devote a disproportionate amount of their attention to racial and ethnic minorities. The phrase "racial profiling," however, has only recently appeared and has no set meaning. (8) As we use the term, "racial profiling" occurs when a law enforcement officer questions, stops, arrests, searches, or otherwise investigates a person because the officer believes that members of that person's racial or ethnic group are more likely than the population at large to commit the sort of crime the officer is investigating. (9) The essence of racial profiling is a judgment that the targeted group--before September 11, 2001, usually African Americans or Hispanics; now often Arab Americans or visitors from Middle Eastern countries--is more prone to crime in general, or to a particular type of crime, than other racial or ethnic groups. (10)

   Racial profiling depends on police discretion in choosing suspects. At one end of the continuum, racial profiling is impossible once the police are looking for a particular person--the victim's partner, the woman in the surveillance video, Osama bin Laden--although it may be a factor at an earlier stage, in determining who to look for. At the other extreme, racial profiling can flourish in proactive investigations in which the police scan large numbers of people in search of culprits in crimes that have not been reported or have not yet occurred. Recently it has been a controversial topic in debates over the conduct of anti-terror investigations following the September 11, 2001 attacks on the World Trade Center and the Pentagon. (11) Before that, racial profiling was primarily an issue in investigations of crimes of possession, usually of guns or drugs. It has received particular attention in the context of highway drug interdiction, which is the subject of this study.

   Did Colonel Williams's comments amount to an admission of racial profiling? At first blush, he seems to have done no more than restate the common law enforcement position that minority groups dominate major drug trafficking in the United States. (12) Supporters have described him as an honest cop who was fired for telling the unpleasant, politically incorrect truth. (13) In their view, he was saying: "We don't target by race, we arrest those who should be arrested; it's unfortunate that most of them are black and Hispanic, but it's not our fault."

   But Colonel Williams's comments could also be interpreted in a somewhat different manner, as a defense of racial profiling: "Of course we stop and search motorists based on their race--because it works. So cut us some slack." Seen in that light, his firing may not have been entirely unprincipled. Of course he didn't say that racial profiling is justified, but didn't he imply it? In the political climate of 1999, a police commander could hardly defend racial profiling directly. The most he could do is say that blacks and Hispanics do in fact commit most of the drug crimes that matter, and wink. Line officers are sometimes a bit more explicit. In June 1999, for example, Sergeant Mike Lewis of the Maryland State Police told a reporter for the New York Times:

   Ninety-five percent of my drug arrests [used to be] dirt-ball-type whites--marijuana, heroin, possession-weight. Then I moved to the highway, I start taking off two, three kilograms of coke, instead of two or three grams. Black guys. Suddenly I'm not the greatest trooper in the world. I'm a racist. I'm locking up blacks, but I can't help it. (14) So far, most disputes about racial profiling have been battles over police records. Racial profiling is impossible to detect or prove without detailed information on police conduct: whom they stop, question, and search, by race; why they take these actions; and what they discover in the process. Historically, most police departments did not systematically keep this type of information. In general, they only maintained records of arrests, and of those searches that resulted in seizures or that were conducted pursuant to court warrants. Police departments may be reluctant to allow outsiders to see the records they do keep, but they can be compelled to do so by courts in discovery in civil or criminal litigation, or by legislatures under freedom of information acts. The essential step is to require that the information be recorded and kept in the first place. For several years, police departments and police unions managed to defeat most efforts to require the sort of record keeping that would make it possible to detect racial profiling, but in the last few years, as racial profiling has become an increasingly powerful political issue, the tide has turned. (15) As of this writing, at least twelve states and hundreds of cities have passed laws requiring racial record keeping, (16) and several additional jurisdictions must keep such records under consent decrees entered into after being sued by the United States Department of Justice. (17)

   It's easy to understand police antipathy to the early record-keeping regimes. They had every reason to believe that the records would be used against them, and some reason to fear that they would be unfairly singled out for doing what they had been told to do. The controversy that led to the dismissal of Colonel Williams illustrates this problem. In 1996 Colonel Williams emphatically rejected a suggestion from his own subordinates that he authorize an internal "racial monitoring program" to address glaring racial disparities in the stops and searches by some state troopers. (18) Two months later, confronted with an investigation by the Civil Rights Division of the United States Department of Justice, the New Jersey State Police (apparently in consultation with the New Jersey State Attorney General) decided to "consistently attempt[ ] to limit what we will be giving to the Department of Justice," because they saw the federal investigation as a "witch hunt" that was "obviously intended to make us look bad." (19) There is no justification for this sort of cover-up, especially since Colonel Williams continued to insist publicly that his department abhorred racial profiling, but the anger and frustration behind it are understandable. The very same practices that the Civil Rights Division condemned in 1996 as racial profiling had been taught to New...