Social Justice Brief
Melvin H. Wilson, MBA, LCSWManager, Department of Social
Justice & Human Rights
mwilson@naswdc.org

The Role of Racial Profilingin Encounters with Law Enforcement
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The Role of Racial Profilingin Encounters with Law Enforcement
In recent months, the United States has been grappling with challenges to andconflicts involving our law enforcement and judiciary systems. The issue, ofcourse, stem from grand jury decisions in Ferguson, Missouri and Staten Island,
New York where there were failures to indicted police officers in the deaths of
two unarmed African American men (Michael Brown and Eric Garner,
respectively). On top of the two high profile cases, was the failure to chargea Cleveland, Ohio policeman in the shooting death of a 12 year old black
male, “armed” with a toy gun. These, among other similarly tragic events,
sparked national outrage and provided momentum to a growing movement
calling for reforms in policing and judiciary processes and comprehensive
criminal justice reforms. Perhaps one of the critical action steps related tocriminal justice reform is the elimination of racial profiling.
Racial profiling is one of the most insidiousand potentially damaging phenomenon
related to law enforcement‘s relationship with
communities of color. Concerns about racial
profiling leading to disproportionate arrestsand police stops of ethnic minorities are notnew. For many decades African Americanand Latino communities have accused law
enforcement agencies (or individual officers)of targeting them without probable cause.
More recently, post the September 11, 2001
terrorist attacks, Americans of Asian andMiddle Eastern descent have also been vocal
about police profiling.
Strong reaction to law enforcement policies
and procedures that appear to be racial
profiling gained national prominence during
the 1980’s when the term “driving while

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black” was coined. The term referred to overt
or covert police procedures where law
enforcement officers use race, ethnicity,
gender, religion, or national origin as afactor in deciding whom to investigate, arrest
or detain absent evidence of a specific crime
or criminal behavior (Huffington Post).
Additionally, the 1980s brought us the “Waron Drugs” which begat policing policies suchas “stop and frisk” and reemphasized
policing procedures based on the “broken
windows” theory of targeting specificneighborhoods and communities for proactive
police scrutiny. The concern for the broken
windows policy to the discussion of racial
profiling is that most of the targetedneighborhoods are majority minority
communities, broken windows policing canfunctionally become racial profiling.

Originally proposed by Dr. James Q. Wilson
and George Kelling, broken windows theory
suggests that a society (or a subset of society)that appears to be lawless will itself breed
lawlessness (The Manhattan Institute). Broken
windows theory is most closely associatedwith conservative sociology that embraced anaggressive national emphasis on social
cohesion and law and order. The central tenetof broken windows theory holds that whenneighborhoods appear to be broken down,
disordered, and generally unfriendly, they
serve as a magnet to delinquent behavior andcrime (The Atlantic). Wilson seems to haveembraced social pathology to justify broken
windows policing strategies when he stated:“Community safety can be negatively affected by asurfeit of disreputable or obstreperous or unpredictablepeople: panhandlers, drunks, addicts, rowdy teenagers,
prostitutes, loiterers, and the mentally disturbed.”
He seems to suggest that it was better to havepolice closely monitor such “deviants” before
they commit a serious crime. Many believethat idea that police can preempt crime byfocusing on deviant characteristic andsocioeconomic profile of a given community
became accepted and was widely adopted
as a viable policing policy. The theory had
great influence on law enforcement policy
from the 1980s and still has its adherents.
(Slate.com). In practice, Broken Windows
police procedures, rundown parts of the citywere cleaned up, and police focused moreon problems such as panhandling, turnstile
jumping, and public drinking and evenpeople who cleaned the windshields of cars
at stoplights with squeegees (Law Teacher).
Broken windows theory was operationalized
as an active policy directive in New York City

during Mayor Rudi Giuliani’s tenure. The
homeless were the first targets of New York
City broken windows policy. Advocates ofsuch tactics argued that in order to addressthese crimes, the police must be afforded
wide discretion that skirted constitutionalrules (Law Teacher).
Over subsequent years, the policy wascredited by many with producing dramatic
declines in serious crime (Law Teacher).
Conversely, some critics argue that the theory
is a neoconservative philosophy that results inover policing and mass incarceration for
relatively minor offenses. They also feel thatbroken windows disproportionately target
poor, black and Hispanic people. Moreover,they say there is no empirical scientificevidence there is a connection with the theory
to the city’s drastic decline in major crime(New York Times, 2014).

Traffic Stops Racial Profiling

As we discuss racial/ethnic disproportionalityof law enforcement stops, we must lookbeyond the inner cities and crime-related
stops and arrests. There are emerging datathat show a high degree of racial/ethnic
disproportionality in the number of persons ofSocial Justice Brief»2«

color that were stopped by police on a minor
traffic violation. The ACLU conducted a trafficstop study in Nebraska. In the Nebraska study,
it was found that African Americans andLatinos were significantly more likely to be:» Stopped for traffic violations;» Searched during a traffic stop; and» Arrested (as opposed to being ticketed) fora minor traffic violation;» Of the 171 traffic stop related racial
profiling charges filed in Nebraska from2002 through 2013, none was resolved byan action against the officer. (ACLU, 2014).
Similarly, in 2012 the State of Illinois conducted
its own traffic-stop study (State of Illinois, 2012).
This report examines several items. Of all
traffic stops (not involving an accident) in thestate, 66% involved whites and 34% involved
minorities which is about equal to the ratio of
whites to minorities in the general population.
However, when looking at important variables
related to racial disproportionality the findings
indicated clear racial disparities often
associated with racial profiling. For example:» Of all the traffic stops for 2012, 59% ofminorities received a citation, while 51%
of whites were cited;» While law enforcement officers have agreat deal of latitude to search a vehicle
without a warrant, each officer has thediscretion to ask for a “consent search.” In
Illinois, such searches are contentious
because there is frequently as question as
to whether the motorist actually gave consent;» Searches of vehicles by consent (1,390
times). Chicago Police Department (CPD)
was over four times more likely to search
black and Hispanic motorists, compared towhite motorists (4.74 and 4.09 times);» Paradoxically, CPD was about twice as

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likely to find contraband when they
searched white motorists, compared toblack and Hispanic motorists (2.1 and1.86 times respectively);» Searches of vehicles by non-consent (2,421
times). CPD was far more likely to search
black and Hispanic motorists compared towhite motorists (3.42 and 4.82 times); and» In 2012 when the vehicle of a white driver
was consent searched, police officers foundcontraband 26% of the time. By contrast
when a vehicle driven by a minority driver
was consent searched, officers foundcontraband 17% of the time.
It is more likely than not that such patterns ofdisproportionality in stopping and arresting
persons of color occur nationwide. Perhaps
the most important question is how racial
profiling in low-level crimes and basic traffic
stops does escalate to use of force.

Racial Profiling Relationship to
Disproportionate Risk of Use ofForce for Persons of Color
Based on broken windows and stop-and-frisk
policies, as well a traffic stop data, it isreasonable to state that there is a nexus toracial profiling and risk of experiencing aforceful encounter with law enforcement for
persons of color. Basic probability analysis
tells us that the more often one is stopped bypolice, the greater likelihood that one or more
will involve some form of use of force within
the Use of Force Continuum (National Instituteof Justice). The following is a brief
description of the guidelines:

The Use-of-Force Continuum» Blunt impact. Officers may use a baton or

Most law enforcement agencies have policies
that guide officers in their application of use
of force. These policies describe an escalating
series of actions an officer may take toresolve a situation. This continuum generally
has many levels, and officers are instructed torespond with a level of force appropriate to
the situation at hand, acknowledging that theofficer may move from one part of thecontinuum to another in a matter of seconds(National Institute of Justice).

projectile to immobilize a combative person.
» Officers may use chemical sprays or
projectiles embedded with chemicals to
restrain an individual (e.g., pepper spray).
Conducted Energy Devices (CEDs)» Officers may use CEDs to immobilize an
individual.

Lethal Force» Officers use lethal weapons to gain control ofa situation (should only be used if a suspectposes a serious threat to the officer or anotherindividual) (National Institute of Justice).

Officer Presence — No force is used
» The mere presence of a law enforcement
officer works to deter crime or diffuse asituation;» Officers’ attitudes are professional andnonthreatening.

Verbalization — Force is not-physical» Officers issue calm, nonthreatening
commands, such as “Let me see youridentification and registration.”» Officers may increase their volume andshorten commands in an attempt to gain
compliance. Short commands might include“Stop,” or “Don’t move.”

Empty-Hand Control» Officers use bodily force to gain control
of a situation.
» Soft technique – Officers use grabs, holds
and joint locks to restrain an individual.
» Hard technique – Officers use punches andkicks to restrain an individual.

Less-Lethal Methods» Officers use less-lethal technologies to gain
control of a situation.

Excessive Force By Police Data
No precise figures exist for the number ofpeople killed by the police in the UnitedStates, but police departments each year
voluntarily report about 400 “justifiable
police homicides” to the Federal Bureau of
Investigation (New York Times). However,these figures are probably low.
An interesting statistic about police use of
lethal force is the disparate manner in which
they are resolved in judicial system. For
example, on a per capita basis, the rate ofpolice officers officially charged with murderin an excessive force incident is only 1.06%
higher than the murder rate general
population murder rate. However if excessive
force complaints involving fatalities wereprosecuted as murder, the murder rate forlaw enforcement officers would exceed thegeneral population murder rate by 472%
(Cato, 2010). When the element ofrace/ethnicity is added to the equation, theodds of use of less-than lethal or lethal force
greatly increases.

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Legislative and National Policy
Efforts to Eliminate Racial Profiling
Given the fact that suggestions of raciallybased police misconduct often leads tovolatile and polarizing responses, it importantto seek solutions to racial profiling that do notcompromise public safety. For this reason,
many in the criminal justice advocacy
community (including NASW) have long
pushed for the passage of the End Racial
Profiling Act (S.1038) which will be
re-introduced in 2015. The End Racial
Profiling Act is designed to enforce theconstitutional right to equal protection of thelaws by eliminating racial profiling throughchanging the policies and procedures
underlying the practice. The bill provides:» A prohibition on racial profiling, enforceable
by declaratory or injunctive relief;» Training on racial profiling issues as part ofFederal law enforcement training,» Routine data collection on all routine or
spontaneous investigatory activities that is
to be submitted to the Department ofJustice (DOJ);» States and local government receiving
federal law enforcement and related funds
must adopt effective policies that prohibit
racial profiling.
» DOJ will provide grants for the development
and implementation of best policing
practices, such as early warning systems,
technology integration, and othermanagement protocols that discourage
profiling; and» The Attorney General will be required toprovide periodic reports to assess thenature of any ongoing discriminatory
profiling practices. (Leadership Conference
for Civil and Human Rights)

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Additionally, Attorney General Eric Holder
recently authorized the release of DOJ’s
revised guidance on racial profiling (Guidance
for Federal Law Enforcement Agencies
Regarding the use of Race, Ethnicity, Gender,
National Origin, Religion, Sexual Orientation,or Gender Identity (Department of Justice).
Succinctly, the guidance states:“…when making routine or spontaneous law
enforcement decisions, such as ordinary traffic
stops, federal law enforcement officers may not use
race, ethnicity, gender, national origin, religion,
sexual orientation, or gender identity to any
degree, except that officers may rely on the listed
characteristics in a specific suspect description. This
prohibition applies even where the use of a listed
characteristic might otherwise be lawful.”(Department of Justice).
The major changes in the DOJ revised racial
profiling guidelines is that it broadens
coverage to include religion, sexual
orientation, and gender identity. The inclusionof religion as a characteristic is especially
important for persons of the Muslim faith who
experienced a significant spike in police stops
after September 11, 2001. It also is
important to state that South Asians such as
those from the Sikh faith saw increased stops,
after September 11, because they are often
mistaken for being Arabs (Muslims).
Among the numerous criticisms of the DOJ
revised guidance on racial profiling is that it
does not have any enforcement powers
beyond federal law enforcement agencies.
This means that state and local law
enforcement entities can simply ignore them.

Recommendations
An end to racial profiling in any form willalmost certainly lead to greatly reduced
incidents of and exposure to use of force by
law enforcement on the part of persons ofcolor. It is undeniable that is a nexus between
law enforcement racial profiling and thedisproportionate number of young African
American and Latino men you injured or
killed during a spontaneous law enforcement
decision. However, ending racial profiling is
not as simple as passing legislation orchanging policing policies. Some Americans
have deeply held views of young men ofcolor as being inherently dangerous people
with a tendency to develop a criminal
lifestyle. Such views are gross stereotypes
and are ultimately racist. Therefore, if we areto avoid lethal force tragedies such as thoseseen in Ferguson, Staten Island, andCleveland there has to be a national
commitment to reforming our approach tocommunity policing.
It should be emphasized that calling forreforms in community policing does notsuggest that public safety is compromised.
There is universal acceptance within the social
justice and human rights community thatreforms and public safety are not mutually
exclusive. That said, the following arerecommendations for moving towards
significantly reducing racial profiling:

1. Need for disaggregated data collection
on incidents of racial profiling.
At present, there is no national mandate forhaving all law enforcement agencies collects,
maintain, analyze and publish racial profilingdata using agreed upon data collection
guidelines. These data have to be

disaggregated based on race, ethnicity,religion, sexual orientation, gender, andgender identity. The DOJ racial profilingguideline should be further amended to include
a mandate that federal, state, and local law
enforcement agencies collect such data.

2. Need for related data on incidents of use
of force for all levels of law enforcement.
Another area about which there is a paucity
of data is for tracking incidence of use offorce by law enforcement. These data mustalso be disaggregated to identify race,
ethnicity, religion, gender, gender identity,and sexual preference of the individual on
which force was used. Use of force datacollection should be mandated for all federal,state, and local law enforcement agencies.
Each jurisdiction should develop and makepublic use of force reports on an annually.

3. Support the AG’s plan for acomprehensive review of policing practices.
Following the Ferguson and Staten Island
grand jury report, the President and theAttorney General committed to reviewing
police practices throughout the country. In
December, 2014, the Attorney Generalannounced the formation of a commission,
Task Force on 21st Century Policing, tocomplete the review. President Obama
appointed the Philadelphia Police
Commissioner (Charles Ramsey) to chair thecommission. NASW and other social
justice/civil rights organizations should
support the work of Task Force on 21stCentury Policing;

4. Support appointing a special prosecutorin police excessive and lethal force cases.
The perception among many communities ofSocial Justice Brief»6«

color that racial profiling is directly connected
to disproportionate incidents of excessive force
at the hands of law enforcement is likely tocontinue for a long time. The related perceptionthat the race of the victim of lethal force is amajor determinant of whether or not a police
officer will be charged and indicted will also
continue to be held. Additionally, many criminal
justice scholars, advocates, and legal experts
agree that the relationship between police
and states attorneys is far too symbiotic
resulting in prosecutors becoming advocates
for the officer accused of excessive and lethal
force rather than for the rights of the victim.
As stated in a Washington Post recent editorial:“A sensible first step would be to establish
automatic mechanisms to invoke a special
prosecutor in cases where the police themselves are
the suspects. There are many ways to create such asystem, plenty of ways it can misfire, and noSocial Justice Brief»7«

guarantee that it will produce better outcomes than
the status quo, under which local prosecutors handle
cases where police are accused of abuses up to andincluding the unjustified use of lethal force.
At the least, though, special prosecutors candampen or eliminate real and perceived conflictsof interest when a local district or state’s attorneyprosecutes a law enforcement official.”(Washington Post). December, 2014)
The automatic appointment of a special
prosecutor for all police excessive force casesthat result in serious bodily injury or death
seems to be a sensible step. Social workers
should join other social justice and civil rights
organizations in supporting this idea.
For more information please contact Mel Wilson –Manager, Department of Social Justice and Human Rights,
at mwilson@naswdc.org.

Resources
American Civil Liberties Union
www.aclu.org/racial-justice/racial-profiling
Department of Justice Agencies
www.justice.gov/agencies
Community Oriented Policing (COPS)
www.cops.usdoj.gov/Default.asp?Item=1972
La Raza
www.laraza.com/section/temas/?type=kw&kw=
racial_profiling&label=Racial+profiling&source=temas-de-esta-nota
Leadership Conference for Civil and Human Rights
www.civilrights.org/criminal-justice/racial-profiling
National Association for the Advancement ofColored People
www.naacp.org/blog/entry/naacps-fight-againstracial-profiling-nationwide

References
American Civil Liberties Union(www.aclu-il.org/wgn-aclu-traffic-stop-data-showspersistent-patterns-of-racial-bias/)
ACLU Chicago(www.thenewspaper.com/rlc/docs/2014/
il-aclustops.pdf)
The Atlantic(www.theatlantic.com/magazine/archive/1982/
03/broken-windows/304465/)
The Cato Institute(www.policemisconduct.net/2010-npmsrp-policemisconduct-statistical-report/#_Excessive_Force)
Department of Justice(www.justice.gov/sites/default/files/ag/pages/
attachments/2014/12/08/use-of-race-policy.pdf)

Huffington Post
(www.huffingtonpost.com/keith-rushing/dissectingracial-profiling_b_2740246.html).
LawTeacher.Net(www.lawteacher.net/criminology/essays/brokenwindows-theory-of-policing.php#ixzz3NV9rUMxf)
Leadership Conference for Civil and Human Rights(http://civilrightsdocs.info/pdf/policy/ERPA%20
Section%20by%20Section%20-%20Senate%20-%
20112th%20Congress.pdf)
Manhattan Institute(www.manhattan-institute.org/pdf/_atlantic_
monthly-broken_windows.pdf)
National Institute of Justice(www.nij.gov/topics/law-enforcement/officersafety/use-of-force/Pages/continuum.aspx)
New York Times(www.nytimes.com/2014/08/11/nyregion/
author-of-broken-windows-policing-defends-histheory.html?_r=0)
Slate.com(www.slate.com/articles/news_and_politics/
crime/2014/12/edward_banfield_the_racist_classist_origins_of_broken_windows_policing.html)
State of Illinois(www.idot.illinois.gov/Assets/uploads/files/
Transportation-System/Reports/Safety/TrafficStop-Studies/2012/2012%20Illinois%20Traffic%20Stop%20Summary.pdf)
Think Progress(http://thinkprogress.org/justice/2013/05/24/
2057481/analysis-nypd-stop-and-frisks-lead-tomore-marijuana-arrests-than-anything-else/)
Washington Post. December, 2014(www.washingtonpost.com/opinions/police-abusecases-need-special-prosecutors/2014/12/06/fcf5
7e28-7cd6-11e4-b821-503cc7efed9e_story.html)

Department of Justice(www.justice.gov/sites/default/files/ag/pages/
attachments/2014/12/08/use-of-race-policy.pdf)

Social Justice Brief»8«

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