Suspicion Nation Page 21

  The chief problem with arrest and incarceration statistics, compiled so diligently by law enforcement annually and relied upon heavily by most legal analysts, is that they are only as good as the humans making decisions as to where to focus police, what crimes to charge, what plea bargains to offer, what sentences to impose. As we’ve seen, nearly everyone harbors implicit racial fears and assumptions, and the humans staffing our criminal justice system are no better nor worse than the rest of us. We know that at every turn, similarly situated African Americans are treated more punitively than whites in the criminal justice system.

  Thus the decisions made at the entry point to the criminal justice system—community policing decisions as to who gets watched, who gets stopped, who gets questioned, who gets patted down for contraband—powerfully determine not who is a criminal, but who gets labeled as criminal. All things being equal, inmate numbers would easily tell us who has broken the law. But again, almost nothing is equal in our justice system.

  For example, arrests. We know that overall, blacks and whites use marijuana at about the same rate171 (whites are more likely to sell). Among young people aged eighteen to twenty-five, the most common age to be caught up in the criminal justice system, whites are more likely to have smoked marijuana. This is contrary to the widely held association of drug use with African Americans. When we include other narcotics, whites constitute the vast majority of drug users. Yet in one survey, when subjects were asked, “Would you close your eyes for a second, envision a drug user, and describe that person to me?” Ninety-five percent of respondents pictured a black drug user.172

  Nationwide, four times173 as many African Americans as whites are arrested for marijuana possession. In Iowa and the District of Columbia, the number jumps to eight times as many. How does this happen? Because police departments, partly driven by a desire to increase their drug arrest statistics, concentrate on minority or poorer neighborhoods. Focusing on low-level offenses is easier and cheaper than investigating serious crimes and drives those arrest numbers high, triggering increased funding. And so hundreds of thousands174 of inner-city residents are arrested, convicted, and incarcerated for having a joint, a brownie, or a baggie of marijuana in their pocket, even though the majority of Americans favor legalization.

  When was the last time you saw a drug sweep in the suburbs?

  If one reasoned only from arrest records, one would conclude that blacks are four times as likely as whites to smoke marijuana. And we know that would be wrong. Reasoning backward from arrest or imprisonment statistics to conclude that minority groups are violent criminals is equally flawed.

  We know that police disproportionately target neighborhoods of color, so that’s where the vast majority of arrests occur. That does not necessarily mean that’s where most of the criminals are. To drill down on this, let’s take a look at a timely case study of focused policing, where due to a federal judge’s intervention, the police themselves compiled massive data as they patrolled, stopped, questioned, and frisked millions of citizens over many years in America’s largest city.

  Watched, Followed, Stopped, Frisked

  WHEN ZIMMERMAN LOOKED out his car window and labeled Trayvon “suspicious,” he was using the very language law enforcement is constitutionally required to consider before stopping citizens on the street. (Not a coincidence. He was familiar with legal language from his neighborhood watch training and his criminal justice class.) In Terry v. Ohio (1968), the United States Supreme Court required police officers to have a “reasonable”—there’s that requirement again—“reasonable articulable suspicion”175 that someone is engaged in criminal activity and is dangerous before stopping, questioning, and frisking her. (This was a step down from the requirement up to that time that the police have probable cause or a warrant before stopping a citizen. The court reasoned that police needed this lower standard to protect themselves and others on the streets.) In the decades since the Terry case, police stops have become commonplace, at least in urban communities of color, based on law enforcement’s purportedly “reasonable suspicions” of criminality. But since police officers, like the rest of us, walk around with unexamined implicit racial biases, how truly reasonable have those stops been? Given that suspicion is subjective, how often have the educated hunches of trained police officers been borne out by a finding of a criminal offense?

  Consider New York City, one of the most liberal and ethnically diverse cities in America, with a similarly racially mixed police force, the NYPD. In the summer of 2013, New York was harshly criticized by a federal judge for its ongoing racial profiling and harassment of millions of its boys and men of color. After reviewing mountains of the police’s own data describing many years of police stops throughout the city, and after presiding over several full-blown trials on various aspects of New York’s “stop and frisk” policy, U.S. District Court Judge Shira Sheindlin176 ordered the New York police to stop the practice on the grounds that it violated the constitutional rights of the men and boys of color so often stopped and frisked. Concluding that blacks and Hispanics were stopped and frisked excessively (blacks and Hispanics, 52 percent of New York City’s population, constituted 83 percent of police stops), and treated differently than whites once stops were made, Judge Scheindlin ordered a variety of remedial measures to fix the problem, including the appointment of an independent monitor to oversee police practices. Though whites were more likely to be found with weapons or contraband (generally drugs), for instance, minorities were more likely to be subjected to force.

  Pause for a moment and contemplate that whites were more likely to be found with weapons or contraband. In fact, when stopped by the NYPD, white New Yorkers were almost twice as likely to be carrying a weapon than African Americans. According to a study177 by then Public Advocate (now New York City mayor) Bill de Blasio, police found a weapon in one out of every forty-nine stops of white New Yorkers, but in only one of every seventy-one stops of Latinos and ninety-three stops of black New Yorkers. De Blasio’s study also revealed that whites were more often found with contraband than blacks. Thus racial profiling does not make sense even if we cared nothing about the dignity of black and Hispanic Americans, and we concerned ourselves only with crime prevention.

  In addition, racial profiling is extremely inefficient. Unlike civilians like Zimmerman, police are trained in how to spot suspicious persons. Race alone, they know (or should know), is insufficient. New York City police did not randomly stop people, such as every tenth person walking down the street. Instead, they stopped those who were doing something in particular that caught police attention and raised concerns of criminality. For example, a bulge in a pocket that might be a gun; looking around anxiously or appearing to case a property; running. But even of this group of people deemed “articulably suspicious” in the eyes of skilled police officers, how many of them were actually criminals? How often were the cops right in their assessments?

  Almost never.

  Nearly nine in ten young men of color stopped in New York under its “stop and frisk” policy were entirely innocent of any crime. Of those found with contraband, the offenses were most often minor—an open bottle of alcohol, marijuana possession. Only 1 percent of these “suspicious” young men of color who’d been stopped by trained police officers were found with weapons (carrying concealed firearms is generally illegal in New York City because the permit is difficult to obtain, unlike Sanford, Florida, where Zimmerman’s concealed firearm permit was easily approved and entirely legal).

  Overwhelmingly, then, just about all of the “suspicious” young men of color were simply ordinary citizens going about their day-to-day lives. Though police are more trained than the rest of us to observe and identify questionable behavior, in ninety-nine out of one hundred incidents, the men weren’t doing much of anything wrong. “It is better that ten guilty persons escape than that one innocent suffer,” the English jurist William Blackstone said, a principle that underlies our system’s respect for civil liberties a
nd its requirement of the presumption of innocence and proof beyond a reasonable doubt. NYPD had flipped the concept on its head, hassling ninety-nine innocents for every one wrongdoer.

  Under the Fourth Amendment to the U.S. Constitution, as we’ve seen, reasonable suspicion is required before police officers may stop and frisk civilians. But New York City police, the judge found, cast a wide net that often seemed to include nearly all young men of color in some neighborhoods, with only the fuzziest of justifications for those law enforcement interruptions of their lives. Many of the over four million stops conducted by New York City police and analyzed in the Floyd case were justified by police, for example, as based on a suspect’s claimed “Furtive Movements” or an allegedly “Suspicious Bulge”—actual boxes police officers checked on after-the-fact forms to explain the stop and frisk.

  This is reminiscent of George Zimmerman explaining on a recorded police call that he became suspicious of Trayvon because he was, ostensibly, walking slowly in the rain, and Zimmerman reported his concern that Trayvon put his hand in his waistband, implying he had a weapon. After Trayvon was shot and killed, it became clear that he was not carrying any contraband, but merely a soft drink and candy. Similarly, in analyzing the NYPD, Judge Scheindlin recounts story after story of black boys and men who were simply walking home, minding their own business, when they were suddenly accosted by police officers cursing at them, shoving them up against fences or police cars, handcuffing them without justification. Police often said the young men appeared to move in suspicious ways or had something unusual in their pockets, which often turned out to be a wallet or phone. That nearly everyone now carries a cell phone, the judge points out, does not give the police carte blanche to suspect every pocket bulge is a weapon and harass community members.

  When may race be taken into account in determining who is suspicious? In the Zimmerman trial, the defense argued that the fact of a recent neighborhood burglary conducted by two African-American men justified Zimmerman’s heightened suspicion of Trayvon, because Trayvon, due to his race and youth, was a “match.” And in the NYPD case, the city said that crime statistics justified their stops and frisks of black and Hispanic men and boys. Judge Scheindlin sensibly held that race may be taken into account as one of many factors when looking for a particular suspect, but “it is impermissible to subject all members of a racially defined group to heightened police enforcement because some members of that group are criminals. The Equal Protection Clause does not permit race-based suspicion.” (My emphasis.)

  In the NYPD case, Judge Scheindlin found the city to be “deliberately indifferent” to overwhelming racial bias in its police stops of citizens—that is, though officials had often been warned of its unconstitutional nature, they closed their eyes to the racial profiling inherent in their policing. That same blindness lies at the core of the widespread inferior treatment of African Americans throughout the criminal justice system, once those racially profiled young men (mostly) are arrested, charged, pleaded out (usually), and incarcerated.

  And that indifference allows the humiliation of racial profiling to continue. Because too often the stops are not only inconvenient, they’re downright insulting.

  We can get a sense of the indignity of racial profiling from the testimony of some of the participants in the NYPD case. Leroy Downs is a black resident of Staten Island, a borough of New York City. One evening after work, he was standing in front of his home, talking on his cell phone. Two plainclothes police officers accused him in an aggressive tone of smoking marijuana, told him to “get the fuck against the fence,” and shoved his back against his fence. Downs explained that he was a drug counselor and had merely been holding the microphone on the cord to his cell phone up to his mouth. Without asking permission, the police officers patted him down and removed the contents of his pockets: a wallet, keys, and a bag of cookies. They also searched his wallet. Walking back to their car, the officers told Downs that he was lucky they didn’t lock him up. This is but one example of many times Downs has been stopped by New York police based on false suspicions that he’d engaged in criminal behavior.

  David Ourlicht, a college student of mixed black and white heritage, was walking to a deli near his dormitory in Queens, New York, when police officers pulled up and asked him what he was doing in the area and where he was going. After providing his ID, Ourlicht asked the officer if he could take down his name as well. At that point, a patrol car arrived and the officer said, “Okay, now you’re going to get the full treatment, up against the wall.” Ourlicht faced the wall, hands above his head, while the police frisked him. They found only his cell phone, a five-subject notebook, pens, keys, wallet, passport, and iPod. He was then ordered to sit on the ground while they wrote him a ticket for disorderly conduct.

  Clive Lino, a thirty-two-year-old African-American social worker in the Bronx, New York, has been stopped and frisked by the NYPD multiple times. One evening he was standing on a subway platform carrying a plastic bag containing some food he was bringing home from a visit with his mother. Police officers surrounded him, and one put his hand into Lino’s pocket. Lino was told to wait, causing him to miss his train. He asked why he was being detained and was told to “shut the fuck up.” After he was told to put his “fucking bag down,” he was frisked and further detained until the officers ran his ID and released him.

  A thirteen-year-old African-American boy,178 the son of a former cop, was handcuffed and then detained for six hours because he allegedly reached into his pants’ waistband. Other police officers punched and then pepper-sprayed a thirty-eight-year-old veteran who was discussing Memorial Day plans with friends on a street corner.

  Each time a citizen is stopped on the street, on a bus or train or on a highway, he’s reminded that he’s seen by authorities as different, “other.” He’s reminded that he must be wary of the police, who consistently view him as suspicious, dangerous, worthy of being watched. Any ordinary activity—going to school, coming home from mom’s house, going out for some food—may be marred by intrusive police questioning or pat-downs.

  And that’s just for those who are simply hassled, not arrested and charged with crimes. For those swept into criminal justice system processing, on top of the humiliation that flows from being the object of racial profiling, once released after serving time, few opportunities exist for a second chance to regain a footing in American life. The job market blacklists African-American ex-offenders once they’re released, singling them out for especially negative treatment. A few years ago, Princeton sociology professors sent black and white men with identical resumes to a wide variety of businesses looking to hire, from couriers to cashiers, deli clerks to telemarketers, undergoing 3,500 job interviews across New York City. The study’s179 authors minimized the applicants’ nonracial differences to the greatest extent possible—their personalities, communication skills, and level of education (they all reported they were high school grads). Some of the job seekers told prospective employers they had felony drug convictions and had served eighteen months in prison. Others reported clean records. The result? When both had a prison record, the white ex-offender got the job three times as often as the black ex-offender. When neither had been in trouble with the law, black men were half as likely to get the job as the white male applicants. White men with felony records were as or more likely than black men with no criminal histories to get the job. (This mirrors common workplace discrimination regardless of any felony record. A white-sounding name on a resume is 50 percent more likely to get a job interview than a black-sounding name. Emily and Greg are more employable than Lakisha and Jamal.180)

  This is why fixing racial bias at the beginning is so important. Failing schools produce uneducated, unskilled, unemployable young people, as we’ve seen. And most of those swept into correctional control are young people too, many under the age of eighteen, most under twenty-five. A young African-American man with a simple drug conviction will not get the job, and without employment, his li
fe will falter. (And surely each of those employers who offers his white counterpart the job would say she is not racist, she just liked the other candidate better, and it “just happened.”)

  The pain experienced by victims of racial profiling runs the gamut from anger at police, alienation from the community, loss of job opportunities, and of course the worst outcome, the grief at the loss of a loved one, as experienced by the families of Trayvon Martin and other young people whose lives were extinguished based on incorrect assumptions that they were violent, aggressive, or armed. That horror is then magnified by the perpetrator escaping accountability in our justice system, where we have the right to demand absolute fairness. It’s one level of pain when a beloved family member is lost because an individual commits a hotheaded, violent act; quite another when calm, rational players in our system of justice review the matter and nevertheless back someone like Zimmerman. Trayvon’s brother, Jahvaris Fulton, summed up that pain in three searing words on the day that George Zimmerman was acquitted: “Et tu, America?”181

  Echoing the last words of Shakespeare’s Julius Caesar when he discovered that his close friend Brutus had conspired with his enemies to kill him, Fulton’s words cried out against his own country’s betrayal of his American family. Georgetown University Professor Maurice Jackson echoed the sentiment: “Like Trayvon Martin’s father, my heart is broken. I am sad to say that I expected this verdict,” he said. “There is much to love about our country, but there are also things that happen to black people every day that make you want to put your head down and cry.”182