.égmyfiss . .x .9; “Wm... _ L JR. .. 9. Pmm ,.....n..u.... . i a J v . 1:: I). 9... . It 2 .- _t 4: 7: ..a. .hvdw...n...J .— 313$. 31%! (a. [$12. sih’zz. 3...- .nfljxvuir 5.9.1. .ufizxsz I ‘1‘ D‘- . 9. 3.... {Oman 3;. as u... : § «5.2:.sunvl1r 5... . z... .9113}; 3 :5; ti} .7‘ 1w v .325fl‘ofl: . 2337 .FII. 549.. 2‘2? ! I:‘ 1.3!... i). x. . 2...... l...- oii.‘ :. I or) 1.)... ~ ||||Hill!”lllllllllllllllllllllIll!Ulllllfllllllllllllllll :1» 31293 02048 3982 c C O This is to certify that the dissertation entitled A CASE STUDY OF DIFFERENTIAL TRAFFIC ENFORCEMENT IN THE FLINT POLICE DEPARTMENT presented by Jude Thaddeus Rariden has been accepted towards fulfillment of the requirements for Doctorate in degreein College of Social Philosophy Science with a Concentration in Cr inal Justice Date W />;<22000 MSU is an Affirmative Action/Equal Opportunity Institution 042771 ———v— LIBRARY Michigan State University 4L ,fi—Agjkn— ‘1— - — ‘ PLACE IN RETURN BOX to remove this checkout from your record. TO AVOID FINES return on or before date due. MAY BE RECALLED with earlier due date if requested. DATE DUE DATE DUE p out ‘Jlg‘mgp ’o/ 1 ‘V Evy. ‘4' rigfit< U R “fir-A L' . SW 28 ME W 11 2002 . “mm CL'LJ it‘lmzt l 6’ woo c/CIRCJDatoDmpes-p.“ AC in A CASE STUDY OF DIFFERENTIAL TRAFFIC ENFORCEMENT IN THE FLINT POLICE DEPARTMENT by Jude Thaddeus Rariden A DISSERTATION Submitted to Michigan State University in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY College of Social Science School of Criminal Justice 2000 ACAL T . EU The priman purpose its Flint C it} Police 1 statement. This was Lite acknowledged fa temples of law enforc Easement. This study attempte- a“: relied heavily on c Cifioiice officers w as I statement" ofiieer a 00533 linked to tl 1LMas EXplored Kn...‘ ABSTRACT A CASE STUDY OF DIFFERENTIAL TRAFFIC ENFORCEMENT IN THE FLINT POLICE DEPARTMENT by Jude Thaddeus Rariden The primary purpose of this study was to identify whether or not officers in the Flint City Police Department engaged in race based differential traffic enforcement. This was examined in light of traditional principles expounded by the acknowledged father of modern policing, Sir Robert Peel. Peel’s ten principles of law enforcement are central to the issue of differential traffic enforcement. This study attempted to examine this issue from a qualitative view point and relied heavily on classical criminal justice concepts. In this light the role of police officers was examined vis a vie the role of the police as “law enforcement” officer and “peace” officer. Closely linked to these two paradigms is the notion of discretion. This concept was explored as to the impact that it has had on the notion of race based differential traffic enforcement from both the legal and ethical viewpoints. The legal exploration examined several court decisions while the ethical portion examined three theories: utilitarianism, Kantian and, reflective equilibrium. Finally, a quantitative review of the Flint City’ s Patrol Division for 1997 was undertaken. Specific items examined included: 1) number of traffic m3) race and gentleI we issued anti 5) “he" slumber of the unit IlittSi data sets were tl aspect to difierential try. We practices. The a: tliierential traffic entll itaftctor in dilierentii Jude Rariden stops, 2) race and gender of offender, 3) race of officer) 4) whether tickets were issued and, 5) whether an arrest was made. In addition to this review, each member of the unit was given an opportunity to answer a survey. Both of these data sets were then analyzed to determine if officers motives with respect to differential traffic enforcement were based on racial attitudes or police practices. The analysis revealed that race itself was a primary factor in differential traffic enforcement, however subjective individual racism was not a factor in difl'erential traffic enforcement. Cepyright by Jude Thaddeus Rariden 2000 To m wife SUppot DEDICATION To my mother Christine (Rariden) Darby, my wife Elizabeth and son Logan whose love, support and encouragement made this possible. iv l lretor Hampton, C apta‘ here were a great n shout whose help this to he OillCCIS 0f the lwish to especially t hsipport and encoura. treated to Albert Cafag Stile to thank the otl hid Caner for their ll] 14ml}. 1 would like I WC: .2 ,- "' “M the “ 1th Valuer ACKNOWLEDGMENTS 'I‘here were a great many people who assisted me with this project and without whose help this would not have been completed. These include Chief Trevor Hampton, Captain Bradford Barksdale, Lieutenant Jody Matherly and all of the officers of the Flint City Police Department who participated in the study. I wish to especially thank Dennis Payne, my advisor and chairperson, for his support and encouragement and critical review of this work. I am indebted to Albert Cafagna for his guidance and valued comments. I would also like to thank the other two committee members, Chris Vanderpool and David Carter for their time and effort. Lastly, I would like to give a special thanks to Dr. Mary Tierney who Provided me with valued help and assistance on this project. Linollablesm-u fllil'lER l hTRODUCflON Oreniew of Resez Prim Concerns Shtemenr of Prob] ‘ism---....... Racial Targeting- “@056 0f the Stu Practical and Theo “limes“... legal Concerns... Emlial Concerns Political Social Cc olice Function--- lSCiethn\ \q [Mid Helplessr its World Therm S 0f C One' HlPOIhese3\ SWX TABLE OF CONTENTS Page List of Tables x CHAPTER I INTRODUCTION Overview of Research Problem 1 Primary Concerns of Research 1 Statement of Problem 3 Racism 4 Racial Targeting 7 Purpose of the Study 9 Practical and Theoretical Concerns 9 Attitudes 9 Legal Concerns 11 Ethical Concerns 11 Political/Social Concerns 14 Police Function 14 Discretion 16 Learned Helplessness 18 Just World Theory 20 Summary of Concerns 21 Hypotheses 21 Summary 23 11 REVIEW OF RELATED LITERATURE Introduction 24 Police—--~** Police Role: “Law Discretion-«mm Pretext lrallic Sto learned Helplessn Snrmary ----- lllllEllEW 0F SEL Ehics--—---- lltilitarianismm- Kantian Ethics—m Refletive Equilihr Summary“... lllLlNT POLICE D Flint Police Depan Rationale for Gen-.- Racial Gender Ma Flint Cir) Demogn SWIM—m... l monomer Int est Police Officers D Reasons for Trafi‘ TWWC Citations“ CngonS issued... WW “iv/Genderl ’geA ll)’ dctitiry Ref 8 umllEliiailOn.._ Police 24 Police Role: “Law Oflicer” versus “Peace Officer” 25 Discretion 36 Pretext Trafic Stops 50 Learned Helplessness and Just World Theory 59 Smmnary 62 III REVIEW OF SELECTED ETHICAL PARADIGMS Ethics 65 Utilitarianism 70 Kantian Ethics 83 Reflective Equilibrium 95 Summary 109 IV FLINT POLICE DEPARTMENT AND AREA DEMOGRAPHICS Flint Police Department 116 Rationale for General Patrol 118 Racial/Gender Make-up of Patrol 119 Flint City Demographic Information 120 Summary 125 V METHODOLOGY Preliminary Investigation 128 Police Officers’ Daily Activity Reports 130 Reasons for Traffic Stops 133 Traffic Citations 137 Citations Issued 139 ShifilSection/Name/Partner 140 Race/Gender/Age 141 Daily Activity Reports as Related To Questionnaire 142 Instrumentation 143 Survey Design 145 Population 146 Sample Design 147 Sampling Frame 148 Rationale for Sampling 148 Sampling Error 149 vii | Sample Size-W" Confidentiality and Analysis of Seconc AnahSis of Questii Demographic Vari. Closed Ended Que liken Scale Quest Open Ended Ques Validity-mu»- Statistical Analyst Summary of Major ll .t‘lALYSlS OF D Introduction-m... Daily Activity Re; lraiiic Contacts... Traffic Tickets-m lionWarmm Arte WWII Arrests-- Pill TWO: SUTWV roman] vanai. f . tional Va Drsctssion of Hep Seton-.4. WWCLUSIONS union..- Wmlltsions and W Bibliography“ Sample Size 150 Confidentiality and Anonymity 150 Analysis of Secondary Data 151 Analysis of Questionnaire 151 Demographic Variables 152 Closed Ended Questions with Ordered Choices 152 Likert Scale Questions 152 Open Ended Questions 153 Validity 153 Statistical Analysis 154 Summary of Major Research Steps 155 VI ANALYSIS OF DATA Introduction 156 Daily Activity Report 157 Traffic Contacts 157 Traffic Tickets 163 Non-Warrant Arrests 169 Warrant Arrests 175 Part Two: Survey Responses 182 Attitudinal Variables - Race 182 Organizational Variables 191 Discussion of Hypotheses 205 Summary 207 VII CONCLUSIONS AND RECOMMENDATIONS Introduction 209 Conclusions and Recommendations 210 Bibliography 215 viii lPPlNDlCES A. Transmittal Lettc R Transmittal Lem C. Research lnstrur APPENDICES Page A. Transmittal Letter to Flint Police Chief 219 B. Transmittal Letter to Respondents 221 C. Research Instrument 223 Race/Gender 1990 Race b Population b} Percent of Po Population b) Age-«m... Sample Size Traffic C0111. Traffic Cont. Mean Numhtl Lii’enes Tes'l West for E we“ Cont? NWber of I. let'enes Tes LIST OF TABLES 13:12.12 fllge. 4. 1 Race/Gender Flint Police Department - Patrol 120 4.2 1990 Race by Percentage 121 4.3 Population by Race 121 4.4 Percent of Population Mobil 123 4. 5 Population by Gender 124 4.6 Age 125 5. 1 Sample Size - Research Instrument 150 W 6- 1 Traflic Contacts by Race 157 6.2 Traffic Contacts by Race and Gender 158 6.3 Mean Number of Stops based on Officers’ Race 158 6.4 Levenes Test for Equality of Variance - Race of Officer--------161 6.5 T-Test for Equality of Means - Race of Officer 162 6.6 T-Test Confidence Interval - Race of Officer 163 6.7 Number of Tickets Issued by Race and Gender 164 6-8 Levenes Test for Equality of Variance - Race of Oficer---—---—-l66 X T-Test for I-Test C c Non-Wan Levenes l T-Test f0: T-Test C t Arrest 0t Warrant . Levenes T-Test ft T-Test C Warrant Attitudir. levenes T"Test fl Table 6.9 6. 1 O 6. l l 6. l 2 6. l 3 6. l 4 6. l 5 6. l 6 6. l 7 6. 1 8 6. 1 9 6.20 6.2 l 6.22 6.23 6.24 6.25 6.26 6.27 6.28 Page T-Test for Equality of Means - Race of Officer 167 T-Test Confidence Interval - Race of Officer 168 Non-Warrant Arrests by Race and Gender 169 Levenes Test for Equality of Variance - Race of Officer--------171 T-Test for Equality of Means - Race of Officer 172 T-Test Confidence Interval - Race of Officer 173 Arrest Other than Warrant - Race and Gender 174 Warrant Arrest by Race and Gender 176 Levenes Test for Equality of Variance - Race of Officer ---------- 177 T-Test for Equality of Means - Race of Officer 178 T-Test Confidence Interval - Race of Officer 179 Warrant Arrest by Race and Gender 181 Attitudinal Variables - Race 187 Levenes Test for Equality of Variance - Race of Oflicer--------—-188 T-Tcst for Equality of Means - Race of Officer 189 T-Test Confidence Interval - Race of Officer 190 Organizational Variables - Race 199 Levenes Test for Equality of Variance - Race of Officer --------- 200 T-Test for Equality of Means - Race of Officer 201 T-Test Confidence Interval - Race of Officer 203 xi pen-ten oi the Resep this research prOjCy specific practices that r others. It is mainly fc disproportionately brim ptraily because of th Specifically, nation wit petition. while they isizarcerated (Franklin: Giyen this large sta lift the black person WW3 With a great (1 WW Wallet and .V Wilda, 1971) th; WW1 Unfriendly an Webs on police at looking to blame Pill-o. sarong lri , PGllCe dep l «5 ‘ ent car . the premISe the Chapter 1 Introduction Overview of the Research Problem This research project is designed to facilitate police agencies in identifying specific practices that may cause conflict between minorities and police oflicers. It is mainly focused on the notion that police officers frequently and disproportionately bring the powers of the state to bear upon minorities primarily because of their over representation in the criminal justice system. Specifically, nation wide blacks account for roughly 12 percent of the population, while they account for nearly 50 percent of all those that are incarcerated (Franklin: 1991). Given this large statistical disparity police officers often, understandably, View the black person with suspicion. For their part, blacks also view police Oflicers with a great deal of suspicion and animus. There have been many Studies (Bayley and Mendelsohn, 1969; Campbell and Schuman, 1968; Jacob, 1 970; Hahn, 1971) that have shown that blacks view police officers as Corrupt, unfi'iendly and in essence as the enemy. The impact this has is devastating on police/minority relations. Neither group fully trusts the other, each looking to blame the other for the large rifi and the constant upheaval in relations. Primary Concerns for Research Police departments often have a structured environment. They operate Under the premise that officers’ behavior will be consistent with departmental 1 policies as well as rule eraluation programS. V mirequire ofiicers to tree tasks usually incl oherthirrgs, however ‘ hilsto perform at the . leparmental sanctions ephrrands, to deny in; zenice from the agene lootlrer instances‘ lose beeattse they fee irons management. WWW their police W 3 Consequence. he wisdom of eValuar {lilting that focus on LWillience of being WTOPOrtionate Share W W related is 2:7 . Im OUI f0r higher * I policies as well as rules of law (Lundman, 1983). Some agencies have formal evaluation programs, while others have informal programs. They all expect and require officers to perform “x” amount of activities. For patrol officers these tasks usually include conducting traffic stops and making arrests among other things, however traffic stops are the focus of this research. If an officer fails to perform at the expected level, he or she is often subject to departmental sanctions. These sanctions may range from: written reprimands, to denying a promotion, up to the most severe, termination of service fi'om the agency. In other instances’ officers are not “pressured” into stopping citizens, but do so because they feel that this is the most effective way to quantitatively irnpress management. These officers are statistically driven to excel as defined by their police departments. As a consequence, the primary issue that these officers bring to the table is the wisdom of evaluation programs. Namely, whether or not evaluation Systems that focus on an individual officer’ 5 statistics has the unintended consequence of being unfair to minorities and others that seemingly draw a diSproportionate share of attention from the police. The next related issue deals with how oflicers acquire the knowledge that a given person is most likely to have either committed a crime or have a Warrant out for his/her arrest. Presumably this knowledge would come from training and learned behavior. Most departments have programs in which new recruits are required to ride along with training officers. Usually these Programs last for only a short period of time, normally fourteen weeks. Dln’ing this time, training officers are suppose to indoctrinate new recruits not 2 orlywith department p 'rrforrrnlly, into the mo ought about ways to cl llren the new recrt pardon their own, on testable level which ruritatirely assessed Statement of Problen Policing in a free St tale decisions that ot til.- upholding society expected to take a pro ltequerrtly this means or wish to comply w i hit. that law enforce: tttlmtary contact is mttl activity, this i the that law breaker i— lt‘r r‘ - Whoa lit problem is no, Stine it, only with department policies and safety procedures but also, albeit informally, into the mores of the police community. The new recruits are then taught about ways to enhance their job performance. When the new recruits reach a level of proficiency they are then flee to patrol on their own, once on their own, they are expected to perform at an acceptable level which once off of formal probation is usually only quantitatively assessed. Statement of Problem Policing in a flee society has always been a difficult task. Police have to make decisions that often effect citizens flee movement. Oflicers are charged With upholding society’s legal mandates, moreover, police agencies are eXpected to take a pro-active stance with respect to the suppression of crime. Frequently this means that officers come into contact with persons who do not wish to comply within the rules that society has promulgated. It is at this Point that law enforcement officials must determine if a police/citizen involuntary contact is going to be initiated. Normally, with respect to serious criminal activity, this is not a ten'ibly difficult issue to deal with, since most agree that law breakers ought to be conflonted. However, what is at issue is how the police determine which people will become the focus of their attention The problem is not whether the police should arrest, since most would agree that rapists, those who commit murder, robbery and other crimes against people ought to be punished, in these cases one would not object to Dance officers arresting the offenders. The question is, absent knowledge of 3 nyspec‘ific crime how lllt‘t interaction with? agua'oly, justifiably sol which come into quest First there is the is films these are into istreobject of this mp cheers choice, albeit lotlhave violated the hayoung African Ar .lrrerican the officer r W35 that is of inter any specific crime how do police officers determine whom they are going to have interaction with? These decisions are often subject to scrutiny and arguably, justifiably so. There are several types or classes of decisions which come into question. First, there is the issue of police oflicers initiating traffic contacts with citizens, these are involtmtary contacts with police officers. The person that is the object of this contact has no choice in the matter, it is the police oflicer’s choice, albeit legal. If an officer is presented with two vehicles that both have violated the same law contemporaneously, one vehicle being driven by a young Aflican American and the other driven by a young white American, the officer must decide which one he/she is going to stop. It is this process that is of interest. Next, there is the issue of law enforcement officers who investigate a “ suspicious” circumstance. This may include seeing a person that does not fit the area which they would normally be associated. As an example seeing an old, rather worn car with several occupants of color, that has committed a IIlinor tramc violation, being driven in an area that is known for its affluence, Presents the police officer with the dilemma of whether or not to stop the Vehicle and conduct an investigation. The other option is for the officer to Simply ignore the violation. l‘acism This leads to the general issue of racial targeting. Racial targeting occurs when a police officer conducts a legal traffic stop based upon the offender’ 3 characteristics. With respect to flaflic contacts, this is known as a pretext 4 Paloma-:1 with stop. A pretext ire-it violation with tl‘. hthis context, a prete‘ police to stop vehicles hearrcillary motive. \ hiscould lead to the c hecase that the policel tulcepractices. In orl tnunbent that racitl when of what it meal thvtpractices mustl ti hilgou H1980 dcir l Elicitation that rein fo Wumillions of the bla llhat th'n means is th; trenore Crime Prone WMWC POpul er°n1fr0m the Oil]: l traffic stop. A pretext traffic stop is when a person is stopped for a minor traflic violation with the pretext of investigating other more serious crimes. In this context, a pretext traffic stop is nothing more than a tool used by the police to stop vehicles in order to conduct investigations with the stop being the ancillary motive. When these stops are based upon the race of the driver, this could lead to the charge that the officer is racist. However, it could be the case that the police oflicer is simply acting in accordance with sound police practices. In order to determine this two things must be done. First, it is incumbent that racism be defined and further it must then be put it into the context of what it means to be a “racist” police officer. Secondly “sound” police practices must be identified with respect to police/citizen encounters. Wilson (1980) defines racism as: “...norms or ideologies of racial domination that reinforce or regulate racial inequality . . . based on the assumptions of the black man’s biological and cultural inferiority” (p.9). What this means is that an officer acting upon the belief ,in this case blacks are more crime prone than whites, that he/she has universalized about a Segment of the population, namely black people, treats this group in a manner difl‘erent fi'om the other groups. In this definition racism is described in the individual sense, in other words, it is subjective racism. However, there is also structural or objective racism. In this case racism is endemic within the institutions policies and procedures. It is not necessary that the officers themselves be racist to carry out racist policies. From the standpoint of the reCipient, it matters little that the officers themselves are not racist as the end reSuIt is still differential treatment. The general problem with racial targeting centers on traffic stops that are 5 racially motivated but ntistoliicer. On the l halavior is merely vig tracially motivated tr. Ancially motivate pliceothcer decides I ohvsical characteristic 1 I thathe ofiicer is giver notations of the same heron subsequently, text book example 0 plice'citizen contact hitch Police may be conl him than}; moral or e believed as the diffe aathin moral theorv ct Whereas a thick ml Prevent cheat in floral idea]. Eih] C a] l: 905.3, ' . “53ng the 1693] a 1th issues has. . War . )3 a p01“ the action based l 13’ racially motivated, but, legally permissible; this seemingly is indicative of a racist officer. On the other hand it simply may be the case that the officer’s behavior is merely vigilant. Here it is necessary to identify what is meant by a racially motivated traffic stop. A racially motivated traflic stop may be identified as one in which the police officer decides to stop a person or vehicle primarily based upon the physical characteristics of the person. Additionally, it is necessary to assume that the officer is given a choice on whom to stop, i.e., two contemporaneous violations of the same nature, one by a white person and the one by a black person subsequently, the black person is st0pped. Prirna facie, this seems like a text book example of what is meant by a racist officer, in that the police/citizen contact is primarily brought about by the fact that the citizen is black. Police may be confronted with what legal choices of action may be and What if any moral or ethical dimensions exists with those actions. This may be viewed as the differences between a thin and thick moral theory. That is, as a thin moral theory one might confront “don’t harm, don’t lie, don’t cheat etc -” whereas a thick moral theory would recommend “prevent harm, prevent 1y ing, prevent cheating.” The difference 5 are between a moral rule and a I11<>ral ideal. Ethical issues are not so concerned with police officers possessing the legal authority to act in a certain manner, rather they are concerned with issues of justice and fairness in conducting these types of St<>ps. In this way, a police officer may be ethical in carrying out duties that require action based upon a selection of traffic targets that are racially 6 directed, but, could neI non a racist motivatit targets. much like the s complete a task. The l innards any person or lesed upon the notion treatment is predicatec relationship. Lash; racial target in Ihm is the stign mention This is relat his context differenti- atom on the person action her’she chooses However if one choos would be discriminate, “36‘ be treated the SL 10le racist to Use ra race“'35 [he only or p 95*“ primarn , I ) baSc if hits‘foretical Americl Rm Targcti ng directed, but, could never be ethical if the selection of targets were based upon a racist motivation. In the former circumstance an officers selection of targets, much like the carpenters use of a hammer, is merely a tool to complete a task. The officer would not harbor any personnel animus directed towards any person or group. However in the later, the selection of targets is based upon the notion that one group is superior to the other and that treatment is predicated upon the notion of the dominant/subordinate relationship. Lastly, racial targeting impacts the minority community in several ways. First, there is the stigma of being wrongly selected as an object of police attention. This is related to what can be described as differential justice. In this context differential justice is when a police officer bases his/her legal actions on the person rather than the violation. If in an officer’s choice of action he/she chooses relevant traits it is not wrong or racist in itself. However if one chooses one’ s enforcement action on irrelevant traits then it would be discriminatory. This Aristotelian viewpoint would require that like cases be treated the same and unlike cases treated differently. Thus it would n0t be racist to use race as a factor in stopping motorists. It would be racist if 1"'--ice was the only or primary factor in the decision making process. If ofiicers primarily based these decisions on race, this would be antithetical to file theoretical American concept of j ustice. lkllcial Targeting In the police context there are two forms of racial targeting. First, there is file use of race in the selection of traffic contacts. Second, there is the use of .‘in‘ii‘i‘ nceinthé apprehensis predicated on the notic iris-one that has violatl characteristics of the c sheets use race as a r orerating motor vehic vehicles are speeding yang black male. the racial targeting dictate sored, merely becat tiring discovered. Ar people of a certain rat scnrhy. lathe latter instan. ihanrotor vehicle. Ill i515 a traflic CDCOUli tread}- COmmitted cri|l toe alerted to the fol mi car, The Vigil: arvehrcles side r a I other one driven l 3pr . male 15 SIOPPecI halo , . HE iethle was I ‘. fr». lattice 58:3 I “15 co "Bed mm race in the apprehension of criminals in the non-trafiic context. The former is predicated on the notion that police officers have the discretion to stop anyone that has violated the law. Officers base their actions on the characteristics of the driver rather than the violation of law. In this case officers use race as a means to detect unknown criminals whom happen to be operating motor vehicles. As an example, consider the case in which two vehicles are speeding at the same rate, one of the vehicles is occupied by a young black male, the other by a middle aged white male. The theory behind racial targeting dictates that the vehicle driven by the black male ought to be st0pped, merely because of the greater likelihood of hidden criminal activity being discovered. Among the problems that this creates is that this puts people of a certain racial type under the likelihood of increased police scrutiny. ' In the latter instance, oflicers use race to detect known criminals that are in a motor vehicle. Here oflicers are not looking for violations of the law to j ustify a traflic encounter, they are merely looking for people who have already committed criminal acts. As an example, suppose that the police Were alerted to the fact that a white male robbed a bank and drove off in a red Sport car. The vigilant police officer looking for the vehicle observes two Silnilar vehicles side by side. One of the vehicles driven by a white male and file other one driven by a black male. In this case, the vehicle driven by the white male is stopped by the police; clearly this is a case of racial targeting in t1lat one vehicle was chosen over the other because of race. This police practice seems commonsensical even though racial targeting was used, it was used because society has a vested interest in apprehending known criminals. 8 Practical and Theor There are seV'eIa] [- oncems vvhiCh deal \ ailconverseih the pi theoretical concems V phical’social. Attitudes dwell-I010“n priI‘ in equal and 013905 contest? Simply that s’hethet it is volunlaf. hecitizen in return d* reshted into an attii perceptions are a “co hfrpret sensory stint told ...” (p.88). hose evaluative bel nfds w i'e J!“ toward some 0’2 “ml/hike oflicers ar I?" 1.- lhhd them will be r ‘i‘h‘mpnate Th tl'e 31' e OIII)’ UM Purpose of Study Practical and Theoretical Concerns There are several motivating factors for this study. There are the practical concerns which deal with the general attitude of the citizens toward the police and conversely, the police attitude toward the citizens. Then there are the theoretical concerns which can be identified as legal, ethical and political/social. Attitudes A well-known principle in physics roughly stated is: for each action there is an equal and opposite reaction. So how does this apply in the police context? Simply that for every contact with a citizen that a police officer has, whether it is voluntary or involuntary, the officer is conveying a message and the citizen in return develops a perception of the officer, which in turn is translated into an attitude. In fact, according to Berelson and Steiner (1964), Perceptions are a “complex process by which people select, organize and interpret sensory stimulation into a meaningful and coherent picture of the World . . . ” (p. 88). Homant (1989) defines an attitude as “the set of all those evaluative beliefs and other relevant cognition(s) that an individual l'1<)lds toward some object or situation” (p. 54). Thus, if a person perceives I:Ilzlt police officers are racist, then it necessarily follows that his attitude tOWard them will be negative providing that the receiver views racism as inappropriate. There are only two ways in which a person can develop an attitude toward 9 hepolice. First it car citizen has contact vs i svidization process r atrial encounter with stories about them vvl: ehnocentrism vvhich ' our particular cultura‘ Behavioral psychol combination of both. 3‘21 the major source harm from our menu huh three discrete hictuve manner in vv mm 5) retrieval, my” 35 aPplied t halllliicable to the r For the citiZen the hon experienc es or \ atonement officials the police. First it can be formed through a personal experience and, the citizen has contact with the police. Secondly it can be developed through the socialization process of the citizen. That is, a citizen may not have had an actual encounter with the police while growing up, but, he may have heard stories about them which shape the attitude. In essence, this is akin to ethnocentrism which is nothing more than looking at something through one’ s own particular cultural biases. Behavioral psychologists believe that it is very likely it could be a combination of both. Some theorists (Bandura, 1977; Hamilton, 1981) say that the major source of evidence for beliefs comes fiom relevant instances drawn fi‘om our memory. They say that the memory or belief process goes through three discrete but interrelated phases: a) encoding, which refers to the selective manner in which the events are summarized and stored into memory; b) retrieval, when the events are brought back from memory; c) j udgment, in which the individual judges the event’s worthiness to be retrieved as applied to the decision. To summarize this concept, belief may be applicable to the relevance of past experiences. For the citizen then, the attitude one has for a police officer is dependant ‘Jpon experiences or socialization that one has had with respect to law enforcement officials. The attitude then is not necessarily related to the officer’ 3 race, gender or age. However, for the officer, race, gender, age and social economic status are partial determinants of attitude. Homant (1989) States that these demographic variables provide a “sociological shorthand for , a Wide variety of experiences that individuals are more likely to have because of such a characteristic.” (p. 56) 10 lnessence then. b) laced on probability. misauseful pr0‘33dur tot-re particular thus :. The type of relatio then dictated by ever look no farther than tl‘ police officers in the l helieved tint the mint justice system after St of a black motorist. [legal Concerns lhebasic assump hate facie legal. Th Morin the officer l canton, much like 1 Druids of legality re‘ cg sliggested is th In essence then, by using demographic data, one can make assumptions based on probability. The major criticism of this is the very thing that makes this a useful procedure, i.e., predicting behavioral patterns from the universal to the particular thus stereotyping. The type of relationship between the police department and the citizens is often dictated by events in the community. To illustrate this, one needs to look no farther than the riots in Los Angles that followed the acquittal of the police oflicers in the Rodney King Beating Trial. In this situation, it was believed that the Afiican-American community lost faith in the police and justice system after several white police officers were acquitted in the beating of a black motorist. Iaegal Concerns The basic assumption is that each traffic stop that an officer engages in is prima facie legal. This is not to suggest that every time an officer stops a motorist, the officer has a legal reason to do so. This would be a ridiculous assertion, much like positing that every lawyer and judge act within the bounds of legality reference every decision they make. However, what is being suggested is that for the purpose of this study, the officers are presumed to have acted within the legal limits when they conducted a traffic stop. Officers are presumed to have had a justifiable legal reason when deciding which person they have stopped. Ethical Concerns In order to assess the oflicer’s decision to stop an individual based on 11 group characteristics Consequential. Non-t ostenr consists of thr| l9‘l5l. lhey are: l) c individual rights. Go. they ought to be maxi lrhers a goal and co. Wits apply to int M 009 is obligated t are based upon some 095.5 Pmmises. Wh‘: milling notion 5( 5mm beating on the ‘ ”uphold the law, Rights on the Otl‘ hat are essentially ( 333m non‘iflte rfer group characteristics three different ethical systems will be examined: Consequential, Non-Consequential and Reflective Equilibrium. Every ethical system consists of three distinct, but, interrelated components (Benjamin, 1995). They are: 1) overall social goals, 2) individual duties and, 3) individual rights. Goals are states of affairs that are good in themselves and they ought to be maximized. We can then say that an action is right if it fin'thers a goal and conversely, an action is wrong if it restricts the goal. Duties apply to individuals. They require a rule of principle and are things that one is obligated to do. Basic duties are primary, while derivative duties are based upon something. For instance, a basic duty requires that one keep one’ s promises. While a derivative duty requires an action based upon an underlying notion, such as a police officer taking action to stop one spouse from beating on the other spouse, simply because the officer was sworn to Uphold the law. Rights on the other hand are entitlements that are possessed by individuals that are essentially claims against others. Put another way. They are claims against non-interference. .As an example, person “A” has a right to walk down any street in the city, this implies that the police officer has a duty not to interfere with person “A” and his walk down the street. One person’s right l‘equires that others have a duty not to interfere. In society goals, rights and, dllties often come into conflict. The problem for police officers is resolving the two when they conflict with each other. The issue that law enforcement officers must deal with is whether or not it is ethically justifiable to stop a person merely based on characteristics aSsigned to the lottery of birth. The solution is dependent upon which ethical 12 Wign the officer t relatinsm. then it met. denudation of right npentites, then to t: gamble. The question. und system do they beliex indications are at tht operate under is relex While it is not what i- sjrstem underlying thl addressed since the i justice. For instance, if it ffitness and justice, Emlfmal t0 SOciet hithepofice, then 1 paradigm the officer operates under. If one holds to the notion of ethical relativism, then it merely depends upon which society one is in to make that determination of right and wrong. However, if one believes in categorical imperatives, then to treat a person as a means rather than an end is not justifiable. The question, under which system do officers actually operate and which system do they believe in, is itself beyond the scope of this study, but it’s implications are at the heart of the issue. The ethical system that officers operate under is relevant to the evaluation of differential tramc enforcement. While it is not what is being directly measured by the study. The ethical system underlying the practices is one of the central points that must be addressed since the implications are of utmost importance to the notion of j ustice. For instance, if it is determined that oficers act in ways contrary to fairness and justice, the impact on the community could be significantly detrimental to society. Arguably, if citizens are treated in an unjust manner by the police, then the community as a whole suffers. Studies have shown t1lat more than 87 percent of citizen encounters with police, in which a crime was reported, were citizen initiated (Verdun-J ones, 1983). The obvious irriplication is that the police and the criminal justice system are dependant upon the cooperation of the citizenry. Without this cooperation the police become hampered in their ability to solve and prevent crimes. Further, if by reason it can be shown that there is one ethical paradigm that h‘eats people justly and fairly and, if the paradigm is not already part of the culture, it may be possible to inculcate it into the culture. 13 PoliticaVSmial 0’“ We are Several mien oi the police ll seniee Kennedy W m melting mm llessues come in m' mnnlalns to the P0“ pressure his Commaf exert pressure U90“ '5 by conducting U3 he cheers themSC‘ ushered lazy 0‘ use atoids this led: lesel of prod UCIiOl are pressures to n Mommce is as Next, there ar lose that are the msequenees to meted by the r the 0’ ' ithe enter Police F unctio llhardl y got Political/Social Concerns There are several concerns in both these areas. First, there is the general notion of the police fimction which has been described as ranging fi'om social service (Kennedy, 1983) to crime control (Packer, 1968). There are also issues involving internal pressures placed upon officers. These types of pressures come in many forms. For example, suppose that a local politician complains to the police chief about crime in his district, the chief in turn may pressure his command staff to make arrests. The command staff may then exert pressure upon patrol oflicers to make arrests. One way to make arrests is by conducting traffic stops. A second kind of pressure is self imposed by the officers themselves: peer pressure. Seldom does an oflicer want to be considered lazy or unproductive by others, arresting people is a way in which one avoids this label. There are also pressures from superiors for a constant level of production, which in this sense means making arrests. Finally, there are pressures to make arrests since in some departments, one’s past Performance is assessed when promotional opportunities arrive. Next, there are the effects that police behavior has on citizens, especially t1Those that are the targets of police intrusion. Specifically, there are e<>Ilsequences to individuals whom are wrongly singled out when they are Stopped by the police for suspected violations when racial profiling is used as One of the criteria. l)olice Function It hardly goes without saying that a police ofiicer’s job is intrusive in 14 F_-_ nut. Police officer dailpbasis. The intrt locked out of their hd 'nereeding in criminz tahc laws. ln fact, I odeeris the true soc marriage counselor. i germ-ally lite P00r pt nen'ene dail.V at the [ppm disadt'anlag in the police often Packer (1968) Vi intriguing work. Pac with respect to law . people who keep th: role should be to en afenders those prc in people be reasc gosser toms of de union is directl I WW it is justi Yr me n wOuld coml ‘ IhCPOiiCe Tole E 3%ch Ifthe; nature. Police oflicers are asked/required to intrude upon citizens’ lives on a daily basis. The intrusion comes in many forms, from helping people who are locked out of their houses and cars to acting in a ministerial fashion, to interceding in criminal matters, to preventing criminal acts and, to enforcing traflic laws. In fact, Kennedy (1983) argues persuasively that the police officer is the true social servant agent. Ofien, he claims, the officer acts as a marriage counselor, a priest, procures shelter for the homeless and is generally the poor persons’ psychologist. The general point is that the police intervene daily at the request of citizens, both black and white. Further, that to many disadvantaged, arguably minorities, the police role is more salient in that the police often provide more help to the least advantaged. Packer (1968) views the police mission somewhat differently. In an intriguing work, Packer describes what he thinks the police role should be with respect to law enforcement: “Ideally, the police should be seen as the people who keep the law of the jungle fiom taking over. Their predominant r()le should be to enforce, by prevention of oflenses and detection of qfirenders those proscriptions that guarantee the first requisite of social living: tIlat people be reasonably secure in their persons and possessions against the grosser forms of depredations” (p. 28, italics added). This view of the police Iillission is directly on point with the issue of stops. Seemingly, Packer would assert that it is justifiable for officers to stop offenders based on probability 3 ince it would comport with the primary mission, namely, detection of Offenders. The police role and their interpretation of the role then is of central importance. If the police believe that arresting people is the primary duty of a 15 law enforcement otii public service might ; becomes more obvio they feel represent tt. cheers stop people ; telntior, st0pping p more than Skinneria; Discretion ' Related to the vs discretion Typicall with people. The di policies and law. \l Matted that deli am The most n< riolenee occurs or him accident. Ex all“ officers 30m. “‘3” given sub sta Laws on the Otl law enforcement oflicer, then it is possible that other areas associated with public service might receive a lower level of police attention. Further, it then becomes more obvious that police scrutiny will be focused upon those whom they feel represent their target population, for example, criminals. The more oflicers stop people and have these notions reinforced, the more likely the behavior, stopping people, will be continued. This is on one level nothing more than Skinnerian behavior. Discretion Related to the whole issue of police encounters is the notion of police discretion. Typically, officers are given a great deal of latitude in dealing with people. The discretion usually is only limited by specific departmental policies and law. With respect to departmental policies, it is rare that orders are drafted that delineate whether or not an officer can or cannot make an arrest. The most notable exceptions involve instances in which domestic Violence occurs or involving an intoxicated driver at the scene of a serious inj my accident. Even in these situations, policies are generally drafted to allow oflicers some latitude in deciding whether or not an arrest is made, albeit given substantial mitigating circumstances. Laws on the other hand are usually crafted so that enforcement decisions are left up to the discretion of the officers. Frequently clauses like “ . . . the Oflicer may arrest based upon probable cause” appear throughout eIljforcement sections of laws. Seldom does the phrase “ . . . the officer shall arrest” appear, usually this phrase is reserved for orders from the court mandating a specific police response. 16 With respect to tr to stop otienders, fa' dependents mandat The application of d gun such relative t- are going to stop. T )‘etneed quantitatit the likelihood of an also would be able t their Steps. BM (1983) at is influenced by a 1 8mm“: Peers. Purge which hElp. his dlSCFEIion in ‘ which little discre robba 0r, murde- Sane the greateg With respect to traffic enforcement, laws governing arrests and decisions to stop offenders, fall mrder the former category. Seldom do any departments mandate or place restrictions on whom their officers can stop. The application of discretion to this situation should be quite obvious in that given such relative fi'ee reigns, officers arbitrarily pick and choose whom they are going to stop. The less enthusiastic officers who do not make many stops, yet need quantitative results will seemingly look for the “quality” stop where the likelihood of an arrest is greatest. The officers who are more aggressive also would be able to enhance their quantitative performance by targeting their stops. Bartol (1983) argues that the use of police discretion in any given context is influenced by a number of factors, these include: training officers, supervisors, peers, judges, prosecutors, politicians and to some degree the public which helps set agendas for elected officials. Officers learn how to use fliis discretion in contextual situations. That is, there are some situations in Which little discretion is afforded. Examples include, dealing with a rapist, robber or, murderer. On the other hand, traffic enforcement affords officers Some the greatest amount of discretion. Bartol contends that officers who deviate from the norm in the use of discretion and pursue minor offenders create upward system pressure that results in prosecutors and judges providing informal sanctions as they find tlleir heavy case loads bogging down the system. In addition, these officers also risk losing support of the public whom they ostensibly serve. In essence, the contention is that officers who improperly use discretion Will be subject to both internal and external sanctions. Internal sanctions 17 A would include a neg most extreme circun public outcry agains criminal prosecutiori Such conditions . oops. loltce admin cheers are olien juc Asaresult. officers enforcing traflic reg his ripe of discreti only minimal. T inderstand the po‘ police oflicer, exc discretionary poo “element leadi- would include a negative evaluation fiom peers and supervisors and in the most extreme circumstances, dismissal. External sanctions would include public outcry against unfair or unjust practices as viewed by the public; to criminal prosecution for discretionary abuses. Such conditions lead to the central point, the discretionary nature of traffic stops. Police administrators are seemingly driven by statistics in which oflicers are often judged by the number of tickets written and arrests made. As a result, officers do not get into much trouble with the administration when enforcing traffic regulations. Prosecutors and judges seldom complain about this type of discretion since the impact on the criminal justice system is usually minimal. The public, seldom happy when they receive a citation, understand the police function in this regard. All this simply means is that police officer, except under egregious circumstances, are able to utilize discretionary powers with little opposition fiom the community or government leaders. harried Helplessness Until now the focus has been mainly on police officers and the varied reasons and justifications for the targeting of a specific group. However, tllere is another side to this issue, namely the people that are wrongly targeted by the police. In other words, police officers stopping a vehicle because of a group characteristic, yet the occupants are law abiding citizens. The impact Of this can have a tremendous impact on the psyche of the wronged individual. Specifically, individuals learn to respond to police in a given pattern namely with hopelessness and futility. 18 As explained in l hellh’ was ilISt testc l it next day, they jt lite researchers second day that the he dogs did not a recited 3 Shock, did n01 initially SUt comm, the SCCOr ricelition of the st if). Om'l’elforme PetergOn end 5 apply it ‘0 hmnan “ . "'“hen unco when the filtile, i1 m As explained in Peterson and Seligman, (1983) the learned helplessness theory was first tested on laboratory animals. Briefly, these tests consisted of putting dogs on a shock pad from which they cannot escape. The dogs over a period of twenty-four hours are repeatedly shocked; the next day they are again shocked, but this time they are offered an avenue of escape. The dogs typically responded to the second day of shocking by nmning in circles and then lying down and whimpering, not even attempting to escape. Next, a second group of dogs were given electrical shock over a twenty- four hour period, but this group was given a means of escape. When tested the next day, they just left the area that was receiving the electrical cm'rent. The researchers found that the first group of dogs did not “notice” on the second day that their sometimes successful response terminated the shock. The dogs did not appear to realize that they could control whether or not they received a shock. They simply gave up. When given learning tests, if they did not initially succeed, they performed poorly on the assigned tasks. In contrast, the second group of dogs, “believing” that they could control the reception of the shock, left the area; when they were given the learning tasks, tlley out-performed the first group of dogs. Peterson and Seligman (1983) extrapolate the results of this study and apply it to human beings; they state: “...when uncontrollable bad events precede helpless behavior, and when the helpless individual expects future responding to be futile, it may well be that learned helplessness is operative... both learned helplessness and victimization responses are partly brought about by a generalized belief about future response futility” (p. 107). 19 it seems plausib the minority commu have led to a situatic paradigm JustWorld Theo . Closely aligned theon. Briefly, the an individual, the ir about the negative people and bad thi simplification of ti he non—criminal r than blaming exte \le malces t} “film. innocent r the confrontation It seems plausible that given the storied history between the police and the minority community, that some of the responses to police intervention have led to a situation in which learned helplessness is the operative paradigm. Just World Theory Closely aligned with the notion of learned helplessness is the just world theory. Briefly, the just world theory posits that when bad things happen to an individual, the individual must have done something to cause or bring about the negative action. Since in a just world, good things happen to good people and bad things happen to bad people. This, although an over simplification of the just world theory, has the impact of blaming the victim, the non-criminal member of the target population, for their misfortune rather than blaming external forces which are beyond the individual’ 3 control. What makes the just world theory problematic is that both characters, the Victim, innocent motorist, and the observer, police officer, public, etc., view tlle confi'ontation as the fault of the victim rather than ascribing it to the l()ttery of birth such as race and socioeconomic status. It should be noted that it is unlikely that the police officer is assigning “fault” in the pejorative sense. It is more the case that the officer is simply Iflaking an assumption based on his beliefs that the person would be likely to l‘Zlave an out-standing arrest warrant. When the oflicer determines that he/ she Was incorrect in this assumptions, the officer simply releases the person with Or without a citation‘believing the matter has ended. But, for the motorist, this simply becomes another instance in which the powers of the state have 20 Wrought down .. mpression that then that resulted in the 9 Summary of Cones From the police and apprehension ol from the citizens pei importance. The qt accomplish this tasl would argue that ut lite community, es new point in that : litlllhut and fair ; ill-ice are allowed tiaraCIeristics suc Ht‘potbesa To begin with uploratorv in na 21 generaliz on . - e‘err It is Sti 3347‘,“ mg dOres h' been brought down upon him. Possibly leaving the individual with the finpmssion that there is little that can be done to change the circumstances that resulted in the encounter. Summary of Concerns From the police perspective the essence of police work is the detection and apprehension of criminals engaged in their illicit activities. Arguably fiom the citizens perspective notions of fairness and justice are of the utmost irriportance. The question then as to what methods should be employed to accomplish this task is at the heart of this problem. The police seemingly Would argue that utilizing all legal tools within their means would be just. The conununity, especially the minority, would probably have a different View point in that allowing the police to do what is legal does not always yield just and fair results. In fact, as a result of police officers discretion police are allowed to legally impart differential justice to individuals based on characteristics such as race, age and, gender. Hypotheses To begin with, there is a specific limitation with this study, namely the Sample from which it is drawn is concentrated in a specific locale. Therefore, the proposed study utilizes convenience sampling and, additionally it is exploratory in nature. In other words, although there is no basis that will allow a generalization of the findings to the police population as a whole, however, it is still valuable. According to Hy et. al. (1983) “...convenience sampling does have its place. It is particularly useful for testing theoretical 21 propositions. If a ti subjects” (p. 93). ' lhe following a: l. .llll Police are not m majority motoris Alternate r Police ollicers a majority motori- arm Police are not r Slandmd police m propositions. If a theoretical statement is correct, it will hold for any group of subjects” (p. 92). They go on to note that it does not matter if the sample is randomly selected or not. Lastly, they note that convenience sampling is ofien used in theory testing and exploratory research. The following are the hypotheses: 1 . Hull Police are not more likely to stop a minority motorist rather than a majority motorist. AIM Police omcers are more likely to stop a minority motorist rather than a majority motorist. 2 . L‘Lull. Police are not more likely to view racially unbalanced traffic stops as standard police practice based on a focus of criminal behavior. Altemgte Police are more likely to view racially mbalanced traffic stops as standard police practice based on a focus of criminal behavior. 3 . 13.11.11 Police decisions to stop people of color are based on racist attitudes, not on imbalanced statistics. Alternate Police decisions to stop people of color are not based on racist attitudes, but on imbalanced statistics. 22 4. lull Anenforcemcm officers to stop 1 An enforcement ollicers to stop L Summary In this chapter is paradigms and the < been explored. Thr notion of differenti itcanbejustifred i: lust-rice. Justice is 1 i0! Society. In this safeguardmg both P be answered is use Olfacial large A related 133m Frolic . ”he Practice of 4. Null I An enforcement pro-active police agency is not more likely to encourage officers to stop a greater number of minority motorists. ;A_l_t_e_n_1a£ An enforcement pro-active police agency is more likely to encourage officers to stop a greater number of minority motorists. Summary In this chapter issues involving: police discretion, police role, ethical paradigms and the consequences upon the public of police decisions have been explored. The major thrust of the arguments thus far have dealt with the notion of differential treatment of minorities by the police and whether or not it can be justified in the context of the police mission and the notion of j listice. Justice is ephemeral, what is right for the individual may not be so for society- In this sense the police must perform a balancing act, Safeguarding both societal and individual interests. Of comse the question yet to be answered is whether or not this can be accomplished given the police use of racial targeting when involved in traffic enforcement. A related issue deals with notion of racism and its influence with the police practice of racial targeting in the traffic enforcement context. This research does not attempt to seek causes of racism, it merely seeks to determine whether or not it is prevalent in the police officers psyche when deciding which motorist should be stopped. 23 “production . lo the follow iné‘ Police mission and mocepts are “sad i' clans being “gm although mom“ he pm functio policing in a free SC policing first dew‘l Further, when re cheers in order t0 pith principles 38“ accomplished in SC officers own conce olicers’ ethical vie alimeuork for he P0licc ‘ One of the signi usPatients is the J0 be lmderstated Chapter 2 Review of Related Literature Introduction In the following two chapters, a specific position is posited regarding the police mission and in general the nature of policing. As such, classic concepts are used in order to formulate a qualitative argument. Essentially, what is being argued with respect to the police mission is that crime fighting aJthough important, has not historically been and, should not be considered the primary function of the law enforcement oflicer. Secondly, the nature of policing in a fiee society requires that officers adhere to the principles of policing first developed in the early part of the 19"“ century. Further, when reading both chapters 2 and 3, the putative argument is that Qfficers in order to be responsive to community needs must act in accordance Vvith principles associated with respect for the individual. This is accomplished in several ways, including the just use of discretion and the Officers own conception of his/her role. Another important aspect deals with officers’ ethical viewpoints. Taken together these two chapters will present a framework for how officers ought to function in a free society. Police One Of the significant issues confronting both police officers and police departments is the establishment of an identity. The importance of this can not be understated, since officers and agencies are going to respond to the 24 community in ways placed in the conte. role the oliicer per particularly critical activity. Police roles ma; Benton (1970) pos arerepressive in nu criminalactivity. l society's mandates issues of societal r The peace Ollie machine to Crim individual) Tospon: PW officers in thz “If“ the role as E h 15 in light 01 lipase that each Police ROIQ: “14 Police are e community in ways in which they perceive that their jobs are defined. When placed in the context of how citizens are selected for traffic enforcement, the role the officer perceives that he/she has is of the utmost importance. This is particularly critical to the citizen who is the object of the enforcement activity. Police roles may be referenced as “law officer” or a “peace officer.” Banton (1970) posits that the police activities in the law enforcement mode are repressive in nature in that they view their mission as suppression of criminal activity. In this, they are more interested in gaining compliance for Society’s mandates through coercion. This means that law officers focus on issues of societal retribution versus causative factors of crime. The peace officer on the other hand focuses on environmental factors that contribute to criminal activity. The emphasis is not placed so much on individual responsibility as on causative factors. Peace officers differ from law oflicers in that the former view the police role as helping and the latter \Jiew the role as adversarial. It is in light of these two view points that the police role in society and the impact that each has on the citizenry will be discussed. l’olice Role: “Law Officer” vs. “Peace Officer” Police are empowered by the rule of law to apprehend and arrest those who violate societal mandates. These mandates come in two forms: mala in se and mala prohibita. The former refer to acts that are evil in themselves, in which there is general agreement as to their wrongness. For example rape, I‘Obbel')’, murder are some of crimes that are considered mala in se. It is 25 reasonable to assur‘. reel out and arrest criminal offenders ; serious offenders, \ atemrina state per However police regulating the enfor words. they deal it demoed as “victiml Pluhibita They ar itlr'bidllell. AS an c With a license plate tampon With this t" EmPilot as easily llll'thicle. Unlilr reasonable to assume that there is strong community support for officers who seek out and arrest these felons. Police are to be applauded when serious criminal Ofl‘enders are arrested, but, mostly officers do not deal with the serious offenders, who have committed felony crimes in which punishment is a term in a state penitentiary. However police largely deal with citizens who have violated laws regulating the enforcement of traffic, drinking, drug and sex laws. In other words, they deal with people who have gone awry of laws that have been defined as “victimless” crimes. These crimes are referred to as mala [Jr-ohibita~ They are crimes that are defined as evil merely because they are forbidden As an example, the State requires one to operate a motor vehicle With a license plate attached to the outside of the automobile. If one does not comport with this dictum, one has violated the law. However, the State could have just as easily required that motor vehicle registration merely be inside of the vehicle. Unlike unjustifiable murder, the failure to properly register a Imotor vehicle is not intrinsically wrong, it is wrong simply because it is decreed wrong. Seemingly, there is less public support for officers who seek cut and arrest persons who have committed these types of misdemeanor crimes. How an oflicer views his/her mission is significant in the treatment of citizens because it is largely predicated on their paradigm of the police Inission. It is important that officers realize that there is a difference in both approaches, i.e., law enforcement officer and peace officer. Primarily, the difference centers on the notion of force versus compliance. The law enforcement officer uses the might of the State to gain compliance. While the 26 peace officer uses l of law. This distinction The law enforceme Weber (1947) “Po relationship will be regardless of the b conception of po“ law enforcement ( citizens are the re: 011 the other h Weber terms 1m; (1947) defines thi ”Wands will l argues that this is $th Implic peace officer uses the willing compliance of the citizenry to enforce the rule of law. This distinction is somewhat important and it bears a closer examination. The law enforcement officer uses “power” to gain compliance. According to Weber (1947) “Power (Macht) is the probability that one actor within a social relationship will be in a position to carry out his own will despite resistance, regardless of the basis on which this probability rests” (p. 152). Clearly this conception of power is within the tradition of and is congruent with that of the law enforcement omcer. After all, all encounters between officers and citizens are the result of a relationship defined by the State. On the other hand peace oflicers use the notion of obedience or what Weber terms imperative co-ordination to solidify compliance. Weber ( 1947) defines this as “...the probability that certain specific commands (or all Commands) will be obeyed by a given group of people” (p. 324). Weber argues that this is done willingly and out of a sense of commitment to the hierarchy- Implicit in this is the notion of loyalty and the sense of kinship. In other words, obedience is afforded by the citizen and given to the individual oflicer based on the notion that the officer acts in a manner that comports Vvith notions of justice and fairness. Conversely, if the police are seen as biased in the administration of justice and other social services, then they cannot command obedience, which after all is the lynchpin of a democratic society. TO 8111me assert that police officers either fall under the category of “law enforcement officer” or “peace officer” is in itself rather myopic. If the truth be known most competent police officers mix and match the two styles 27 depending UP of minorities police ofiicer should be wil \tfiling to cor Officers t mandate mm portion of tin that officers with varying non-criminal have indicatr activities. A all-‘Pl’t‘hendin needs. Kennedy “ices Ver “-rhe amen] Ito Famed The 1mm Officer COnc Ming to 3 Pee( “ho fc 1839 lists d 1 Eh? police 01 depending upon the situation. In this specific case, the differential treatment of minorities with respect to traffic enforcement, the two styles collide in that police officers are using the legal powers of the State upon citizens who should be willingly compliant, but, given historical realities are less than willing to comply and at best are suspicious of police motives. Officers that believe they are destined to fulfill the law enforcement mandate must keep in mind that in reality this ftmction occupies a small portion of their job. In fact, studies (Wilson: 1968; Reisszl971) have shown that omcers spend a small amount of their time handling criminal complaints With varying degrees of seriousness and 83% to 90% of their time handling non-criminal complaints. Although later studies (Swanson and Territo: 1996) have indicated that only about 50% of police time is used in non-criminal activities. As such, oflicers who view their job mainly in the context of apprehending criminals ostensibly would be less sympathetic to the public needs. Kennedy (1983) argues that the police role should be classified as human services versus law enforcement. Kennedy describes hmnan services as “...the attention and assistance offered to people by other helping people” and “...to remedy individual and social breakdown” (P.41). The human service role that the police play is closely related to the peace officer conception of his role within society. That is, the peace officer is 1005118 to aid the distressed and prevent further harm. In fact, Sir Robert P661, who formed the first modern police department in London England in 1 829 listed nine principles of law enforcement, he argued persuasively for the police Oflicer to play a role akin to human service in society. Out of his 28 mneprinciples six remaining three. or police. Given that context it may be l ihe first one st. 33):" This first pr formation for the formed to prevent “its inherent with nine principles six deal directly with the treatment of citizens. Out of the remaining three, only one deals directly with the law enforcement role of the police. Given that the police role can best be understood in the historical context it may be helpful to examine these principles. The first one states that “(T)he basic mission for which the police exist is to prevent crime and disorder as an alternative to the repression of crime and disorder by military force and severity of legal punishment (Lee: 1901; p. 28).” This first principle is noteworthy for several reasons. First, it lays the foundation for the establishment of the police department. That is, it was formed to prevent crime and disorder without the associated oppression that Was inherent with the military forces of the time. This is an important point since if law enforcement itself was to be a priority, then there would be little heed for the police officers, as the military could with harshness and draconian measures suppress criminal activity. Peel’s second principle states “(T)he ability of the police to perform their duties is dependent upon public approval of police existence, actions, Behavior, and the ability of the police to secure and maintain public respect (Lee: 190 1; p. 28).” Although this principle seems somewhat antiquated, it is nonetheless still relevant today, but, not in the sense that public approval is needed for the formation of the police, but, that public approval is needed for Validation of policing decisions. In other words, if the police conduct themselves in a manner that causes them to lose the confidence of the public, they are isolating themselves from the people that they serve. The third principle “(T)he police must secure the willing cooperation of the public in voluntary observance of the law to be able to secure and 29 r-A-A; _ maintain public re Weber’s notion 0' ordination Weber their authority dir given to the offio hmmwM‘ police use of poo power’s sake. T and as society‘ 5 ' compliance of so Ofipower the mo power society “- hi manner. Interestingly any filrther than police to inter“)! banned in Mi ‘P aha5°11; 1982 ~ hconfeSSiOn 0 rein. 1n the la] maintain public respect (Lee: 1901; p. 28).” This principle deals directly with Weber’s notion of power and imperative co-ordination. By imperative co- ordination Weber means a system of commands which officers by virtue of the ir authority direct commands and expect compliance. Compliance is then given to the oflicers because they are the visible symbol of the State’s force. For society to have confidence in policing decisions they must believe that the police use of power is just and fair and not used arbitrarily, simply for power’s sake. The result of this confidence obviates the need for more power atld as society’s positive attitude increases, the police in turn gain the willful compliance of society’s members. Paradoxically, the less that the police rely on power the more confidence they engender within society; hence the more power society willingly will cede to them if they are perceived to use it in a j ust manner. Interestingly enough, this can see this in our society, one need not look any further than Supreme Court decisions that have limited the abilities of the police to interrogate those taken into police custody. As an example this has happened in Miranda v. Arizona (1966) and Argersinger v. Hamlin (1972) (Peltason; 1982). In the former the Court ruled that police could not coerce the confession of a suspect without first advising him of specific enumerated rights. In the later, the right to counsel was guaranteed to all those facing imprisonment, this regardless of the person’s ability to pay. These decisions are the Court’s response to the perceived over zealousness of police. The fourth principle “(T)he degree of cooperation of the public that can be seemed diminishes, proportionately, the necessity for the use of physical force and compulsion in achieving police objectives (Lee:1901; p. 28).” 30 Simply, if the citiz turn are more likel assistance, but aiSt been mentioned, ti cooperation of citi this would seemins thenrtresumabry n alJPFEhension of er I The fifth Princi I catering to public . impression of inco regard to the justic ohenng of individ tort/20111 regard to Picsening life ( Ila _ one is the mar S imply, if the citizenry has confidence that the police are not abusive, they in turn are more likely to approach the police, not only with their own pleas for assistance, but also as witnesses to other peoples crimes. As has already been mentioned, the police in the battle to suppress crime, rely on the cooperation of citizens. If members of society view the police as oppressive tltlis would seemingly reduce the likelihood of cooperation. If it is reduced, thlen presumably the police would be left in the lurch with respect to the apprehension of criminals and the solving of crimes. This in turn creates an impression of incompetence which forces the police to employ even more draconian methods in order to solve crimes. Thus, for societal interest, police restraint is not only desirable, but necessary. The fifth principle “(T)he police seek and preserve public favor, not by catering to public opinion, but by constantly demonstrating absolutely i Impartial service to the law, in complete independence of policy, and without regard to the justice or injustice of the substance of individual laws; by ready Offering of individe service and fiiendship to all members of the society without regard to their race or social standing; by ready exercise of friendly good humor; and by ready offering of individual sacrifice in protecting and preserving life (Italics added) (Lee: 1901; p. 28).” Of all Peel’s principles, this one is the mandate for the fair and equitable treatment of all citizens. Peel recognized that for the police to be effective, they must not only have the support of the ruling class, but, most importantly, they had to have the support of the masses. Without this support the police were nothing more than an army of occupation. Interestingly enough, this is the same complaint that is often heard in inner cities throughout contemporary United States. 31 become focused o Ihecriminal justict “1051 important pri demmmnts. Tha' senice to the law exactly the Oppos't person’s race. The Peace om c0‘11”“th and s. happeustance of, the work “as I This is also salient to the targeting of individuals on the basis of racial characteristics for differential traflic enforcement. The law enforcement oflicer obviously justifies the selective targeting on the basis of crime control. That is, blacks account for merely twelve percent of the population as a whole, but, they account for nearly fifty percent of the prison occupancy. It is easy to see how those preoccupied with arresting criminals could also become focused on the segment of the population that is over represented in the criminal justice system. But to do so means that they are ignoring this most important principle formulated by the acknowledged father of police departments. That is, this type of officer fails to demonstrate impartial service to the law regardless of the person’s race. Instead, the officer does exactly the opposite, demonstrating partial service to the law based on the person’s race. The peace officer on the other hand ostensibly values service to the community and seemingly would be less apt to target a person based on the happenstance of the birth lottery. In addition if an oflicer’s paradigm of police work was service oriented versus law enforcement, one could reasonably assume that the equitable treatment of citizens would be more salient then simply the quantity of arrests that could be made based on the probability of a certain segment of the population being involved in criminal activity. The sixth principle “(T)he police should use physical force to the extent necessary to secure observance of the law or to restore order only when the exercise of persuasion, advice, and warning is found to be insufficient to achieve police objectives; and police should use only the minimum degree of 32 physical for: police objec that power 5 mmmc compliance. have been 11 officers. Cl public, not . The sew relationship Mice are t members 0 are incumb 1901; p. 25 English U‘a “he“ calle citiZen pol; Crime in ti his memb€ Even “ Dficers w] a‘. dime-n15 \ physical force which is necessary on any particular occasion for achieving a police objective (Lee: 1901; p. 28).” Here again Peel is reiterating the notion that power should not be the primary tool of police ofiicers. He is suggesting tlaat in fact, physical power should be the last resort to gain public compliance. Again, if power was suppose to be the main tool, there would have been little reason not to have the military serve in the dual role as police officers. Clearly, this was unacceptable to Peel, the police were to serve the public, not abuse them. The seventh principle “(T)he police at all times should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and that the public are the police; the police are the only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interest of the community welfare (Lee: 1 901; p. 28).” Peel is deriving this concept from the historical context of the English tradition. Every adult male had an obligation to act as a police officer when called to do so. It is important to understand that Peel’s idea of a citizen police force was created in the context of the industrial revolution. Crime in the cities was rampant, there was a general call for society to protect it’s members from those who would prey upon them. Even with such a climate, Peel developed the concept of paid police officers who would be charged with protecting society from the invidious elements within England. Moreover, Peel did not want the paid police force to mitigate individual responsibility for the welfare of society. This is obviously central to the notion that the police are the public and the public are the police. The inferred meaning to this is that for the police, rights that 33 Clllzens have» that rights thatthe poli citizens. We can cautioned in turnit to regain what on I lite eighth prit toward their funct by avenging indiv PUIliShing the guil‘ powers of the p01 This is iImportant 0f the police was that it was intpro; Additionally he i; M] the criminal police have a sto beliefs to SOCieta The final Prir an disorder, not (Italics added) (1 mm“ by P. Mite dEp e l measUred by the ’33ch - ‘ Filing to Pee ’5: OUITOIled. It citizens have, that have been granted due to excessive police powers are rights that the police themselves will also have granted in their capacity as c itizens. We can extrapolate from this principle that the public too is cautioned in turning their backs on police excesses, since it is often difficult to regain what one has already given up. The eighth principle “(T)hc police should always direct their actions toward their functions and never appear to usurp the powers of the judiciary by avenging individuals or the state, or authoritatively judging guilt or punishing the guilty (Lee: 1901; p. 28).” Peel is attempting to limit the powers of the police so that they will not become the sole arbiters of justice. This is important in the sense that he realized unfettered power in the hands of the police was a dangerous thing. To put it somewhat differently, he felt that it was improper for the police to act as judge, jury and executioner. Additionally he is calling for impartiality with the respect to the treatment of both the criminal and civilian populations. Further, he is suggesting that the police have a stoic reliance on the system of justice, subjecting personal beliefs to societal norms. The final principle “(T)he test of police efficiency is the absence of crime an disorder, not the visible evidence of police action in dealing with them (Italics added) (Lee: 1901; p. 28).” This is one of the crucial principles expounded by Peel. Police efficiency is not measured by how many arrests a police department generates or by how many traffic stops are conducted, it is measured by the absence of crime and disorder. This is significant in that according to Peel, the mark of a good police department is one in which crime is controlled. It is not one in which public order crimes (traffic, vice, etc.) 34 tales precedence not simply be deti officers for traffic prohibited for put prohibited becaus it would seem departmental non two roles to choo peace.” He belie determined by th dlat these roles a Ostensibly this r into lheir roles t The role 0ft beBelicia} to th. Wider some BI fathom] in so i £031, or to a 3‘ consistent, Kb knowledge, a fOr mime 3g takes precedence over the police mission. In other words, police success can not simply be defined by the number of written reports generated by the oflicers for traffic arrests and other such activities. These are crimes that are prohibited for public order (mala prohibita); they are not crimes that are prohibited because they are intrinsically bad (mala in se). It would seem that officers adjust their role conception to comport with departmental norms. In fact according to Misner (1969) the police officer has two roles to choose from, either that of a “rule enforcer” or a “guardian of peace.” He believes that these roles are not selected by the officers, but, are determined by the Chief and/or the officers immediate superiors. He feels tlmt these roles are determined at an early time in an officer’s career. Ostensibly this means that with the proper guidance officers can be socialized into their roles whether it is an enforcer or guardian. The role of come depends upon which is determined to be most beneficial to the agency. It can be surmised that police departments operate under some type of rational system. According to Weber (1947) “(A)n act is rational in so far as (a) it is oriented to a clearly formulated unambiguous goal, or to a set of values which are clearly formulated and logically consistent; (b) the means chosen are, according to the best available knowledge, adapted to the realization of the goal (p. 17).” The primary goal for police agencies in a democratic society is crime prevention without unnecessary oppression. However, as has been suggested, police departments have evolved into a second function, i.e., human service. According to Goldstein (1968) the dual role of the police function causes the police to provide a wide range of services including mediating domestic 35 and neighborhooc both law enforcer fact he asserts the derived from the they are given the disputes. As has been p with the peace ke Nothing that has i function that the administrators an more diverse the Significant role th Radeler(1936) SL and neighborhood disputes and other miscellaneous services. He claims that both law enforcement and peace keeping functions are intricately related. In fact he asserts that the peace keeping function relies heavily on the authority derived from the law enforcement fimction. It is through this authority that tihey are given the necessary legitimacy to resolve these non-criminal disputes. As has been previously noted, the police spend most of their time dealing with the peace keeping or human service fimctions of the police role. Nothing that has been written is intended to minimize the law enforcement function that the police so ably fill. However, it is incumbent upon police administrators and line officers alike to recognize that the police role is much more diverse then simply catching criminals. They must come to realize the significant role the peace officer plays in the law enforcement system. In fact Radelet (1986) summarizes the dilemma that officers are confronted with given their dual roles, he states “(T)he truth in general terms, proclaims a mix of both theories, varying in proportion to individual and social circumstances. In practical language, this means that the police, for instance, must at times be repressive and at times be compassionate—and be wise enough to know when to act one way or the other (p. 9).” Discretion The role of the police officer although important, is not sufficient in tmderstanding the dynamics of differential traflic enforcement. Probably the most important aspect of the police officers job is the discretion that the oflicer is afforded in everyday job decisions that he/she makes. Such 36 decisions include mffic citation, Accordingly, diSt enforcement in th free to either sto ignore the violati Police officers st decisions include whether or not to make an arrest, to stop a vehicle, to issue a traflic citation, to give an intoxicated person a ride home, etcetera. Accordingly, discretion is at the center of this issue, of differential traffic enforcement in the context of race. This must be the case since oflicers are flee to either stop any given motorist for traffic violations or similarly to ignore the violation as if it never happened. In fact without discretion, differential traflic enforcement would not be an issue since oflicers would be forced to either stop all violators or turn a blind eye to the violations. In practical terms, it is not reasonable to suggest that police officers stop either everyone or no one for traffic violations. To employ such a policy, police supervisors would have to be omniscient or a seer. According to Davis (as cited in Klockars: 1985) discretion is defined as: “A police oflicer or police agency may be said to exercise discretion whenever efl’ective limits on his, her, or its power leave the officer or agency flee to make choices among possible courses of action or inaction (p. 93).” As Klockars notes, an important part of police discretion is that it is not only reserved for the police officer, but, also for the agency itself. This is noteworthy in that discretion on the street level is the province of the oflicers, but, administratively, the department can and arguably does set parameters for officers to follow. As an example of the later, some police agencies have adopted policies that mandate arrest when responding to domestic violence calls. The result is that in these departments it is unlikely that officers would over-ride departmental policy, hence discretion in these circumstances has been 37 ritually eliminat ln traffic situ; However in man and involved in : mitigating ClICUI‘. in other situatior officers are free department's h is Discretion gd encountering mi: immediate arresr complaining pan Eye“ in the case Party, they are s incident will be lhis does no POlice decisions influence 0n p0 lad) is the Wig basis fOr action W that in Set'Entyfive pe complainant di. were made in 2 totes what is c virtually eliminated. In traffic situations official policies mandating a specific response are rare. However in many departments it is expected that a driver who is intoxicated and involved in an accident will be arrested. Even then, given substantial Initigating circumstances an oflicer may choose not to arrest the individual. In other situations, especially those that involve routine traffic violations, oficers are free to exercise their discretion without interference from the department’s hierarchy. Discretion goes beyond the traffic enforcement context. Oflicers encountering misdemeanor criminal offenses determine whether or not an immediate arrest shall be made. In fact in instances in which the officer is the complaining party, they determine whether or not the crime will be reported. Even in the case of felony offenses in which the officer is the complaining party, they are still given significant latitude in determining whether or not the incident will be brought before the prosecutor or for that matter reported. This does not mean that the public does not exert [imssme or influence police decisions. Klockars (1985) posits that the single most important influence on police decision making (here he is referring to the patrol officer level) is the wish of the complaining party, providing of course that legal basis for action exists. Although police have latitude in arrest situations, he found that in cases in which the citizen expressed a desire to arrest, over seventy-five percent of the time an arrest was made. In cases in which the complainant did not either express a desire for arrest nor for leniency, arrests were made in approximately two-thirds of the cases. However, Klockars notes what is of more significance is the fact that in cases in which the 38 arcspectfttl and complainant expressed a desire that no arrest be made, his/her request was honored over ninety percent of the time. He also points out that a significant influence on the oficer was whether or not the complainant treated him/her in a respectful and civil manner. Similarly, Lipsky ( 1980) argues that for the system to work properly that police officers (or as he terms them, street level bureaucrats) must have a great deal of discretion to deal with problems that they encounter. As an example of the use of discretion, an officer has the authority to impound an improperly registered motor vehicle. However, this does not mean that an officer must impormd the vehicle. Given sufficient mitigating circumstances such as the vehicle being the persons only means to work, the officer may allow the offender to simply park the vehicle and thus save the associated impormd costs. In fact, Lipsky argues that generally people in society realize the enormous power afforded these bureaucrats and that citizens for the most part act deferentially towards officers. Lipsky does not believe that the acquiescence of the public is due to the notion that the officers always act in a fair and impartial manner, but, it is a way of minimizing conflict. This seems especially plausible when one considers that officers have the immediate tools to sanction behavior that they believe is unwarranted or challenging. In other words in most cases, it is the police officer that dominates the interaction, not the citizen. They are the ones that are able to exert control over the public and subordinate citizen demands to ensure compliance. Notwithstanding, the police are constrained by due process, departmental standards and significantly, by social norms in how they deal with citizens. 39 there are specifi play in the crimit objectively be. tl Their role is rath prosecute nor co. powers so they c criminal activitie lhis does not citizens are not a one could quite ditisions 33¢ ac role in Curbing pr Citizens Can 2 allerttive to thei r beset With a heat desired are able allocation In 01 that the auEm-lm o . litter by taking EX ' There are specific limits placed upon police behavior and the role that they play in the criminal justice system. No matter how guilty a person may objectively be, the police are not allowed to exact any type of punishment. Their role is rather narrowly defined in that they have no authority to prosecute nor convict the accused; however they have broad discretionary powers so they can target those that they feel are most likely to commit criminal activities. This does not mean that client demands are always suppressed and that citizens are not able to exert upward pressure upon police officers. In fact one could quite persuasively argue that citizen review boards, internal afl‘air divisions and, activist groups (i.e. NAACP, ACLU, etc.) all play a significant role in curbing police abuse and/or misuse of authority. Citizens can also exact a cost upon officers whom they do not think are attentive to their special issues. Lipsky argues that since officers are typically beset with a heavy work load, citizens who do not get the attention that is desired are able to impose a cost upon the officer in the form of time allocation. In other words, if the citizen either rightly or wrongly believes that the attention given was not sufficient, they can increase the cost to the officer by taking more time. Essentially this means that the citizen can exercise control over the officers most valuable resource, time. The results of such a strategy, citizens taking more time than the officer feels that they are entitled to, can be costly to both parties. For the oflicer, the loss of time cannot be replaced and his attention is diverted from other pressing issues. For the citizen the consequences of this strategy may result in punitive sanctions or other undesirable outcomes. 40 Lipsky feels t midirectional. i one who sets the the strategies, as are simply desigt outcomes. “The I their own manag I negative evidenc eSpecially salient officer, not the p Citizens Who den Circurnuances, b AS an examp] liafiic VlOlalion ; reason for the str like"lockers. Li the Person Ofien hating the diSCrfi his decision Upoi Simply asserting mack Upon his} cite the Violator seekour the Don, g. Lipsky feels that the interaction of both client and server is on the whole unidirectional. That is, the bureaucrat, or in this case the police officer is the one who sets the pace, tone and, direction of the encounter. He believes that the strategies, asking the officer for more attention, imposed by the citizens are simply designed to manipulate the police officer in order to affect future outcomes. “The disadvantaged position of clients forces them to conspire in their own management in order to avoid offending the workers or providing negative evidence about their character (Lipsky: 1980; p. 59).” This is an especially salient point in that citizen/police interaction is governed by the officer, not the person that is the recipient of the service. Lipsky notes that citizens who demand service or theirlrights may be successful in certain circumstances, but that it is usually not a successfirl long term strategy. As an example, one can imagine being stopped by a police officer for a traffic violation and in the course of the encounter, demanding to know the reason for the stop. It is perfectly legitimate to assert this position. However, like Klockars, Lipsky feels that the tone of the request and the demeanor of the person often determines the outcome of the encounter. The police oflicer having the discretion to either warn the violator or issue a citation, often bases his decision upon these verbal and non-verbal cues. The point being is that simply asserting rights can be costly if the officer views the assertion as an attack upon his/her integrity. It is the oflicers prerogative whether or not to cite the violator. Incidently, it is often the disadvantaged person that seeks the assistance of law enforcement officials. These clients are more apt to seek out the police and utilize their services for everything from mediating a quarrel to halting criminal activity. Citizens who have had prior negative 41 vehicle searched debate. Several African America Carter v. Mary! mm”? Towns. 30PM for traf drugs Wilh non. dealings with officers may pay a higher price in terms of being the brunt of discretionary enforcement. It is not difficult to imagine that an officer who perceives that his time is being wasted by a client, may on subsequent encounters, view the person in a negative manner. A questionable case with respect to the police use of discretion is that of traffic stops based on a pretext. This occurs when police use traffic stops as a pretext to stop cars that often result in the occupants being questioned and the vehicle searched. This type of stop is at the heart of the police discretionary debate. Several law-suits have been successfully filed and won on behalf of Afi'ican American plaintiffs, these include Wilkins v. Maryland (1992), Carter v. Maryland (199 7), Smith v. City of Carmel (1996), Wilson v. Tinicum Township (1991). In each of these cases Afi'ican Americans were stopped for traffic violations and had their vehicles and persons searched for drugs with none being found. The major issue in all of these cases is the notion that these individuals were stopped because in the vernacular “they were driving while black.” These cases will be discussed albeit in a truncated fashion later on. Delattre (1989) views the use of police discretion somewhat differently. He asserts that discretion is “...the authority to make the decisions of policy and practice (p. 45).” In essence he feels that police officers by the very nature of their jobs are, and should be, given a broad range in which to utilize discretion, they determine when, why, where and how to use it. He believes that discretion is a necessary part of the job and that police officers could not adequately function without a wide ranging discretionary powers. The problem with discretion, of course, is employing it in a fair and just manner. 42 To this, Delattre. comparing the d darkness” and Children of ti‘ qualities. He llhl types of individt 0n the other of the darkness. they perceive to According to Children of the . desires which c for exactly the . “or Pmpmsiry however the in Police are eXp e impartial and fl mitigate its 1m; and fairneSs be To this, Delattre borrows an analogy fiom the Theologian R. Niebuhr comparing the discretion that police officers use to both “children of the darkness” and “children of the light” (p. 50).” Children of the darkness are people who possess dark and sinister qualities. He likens these people to Nazis. In other words, he feels that these types of individuals personify what is the worst about people. On the other hand, children of the light are the polar opposites of children of the darkness. They however have set standards and act upon them on what they perceive to be the “goodness.” According to Delattre, neither of these types are suited for public service. Children of the darkness because they cannot be trusted to control their desires which could result in excesses. Children of the light cannot be trusted for exactly the opposite reason, that is, “they have no capacity for misconduct nor propensity to excess (p. 51).” For Delattre then, discretion is a necessity, however the implementation of it is somewhat problematic. On the one hand, police are expected to abide by the laws and make decisions that are both impartial and fair. On the other hand, they are expected to control crime and mitigate its impact on the citizenry. The problem arises when crime control and fairness become incompatible. Delattre believes that the best solution is to only appoint those to police positions who have a capacity to do what is right, but also to push the limits of conduct in order to obtain the best possible outcome. In other words, only appoint those children of the light with “an attitude” to police service. In essence, Delattre is arguing that in some instances the means may justify the end. This is much like the famed “Dirty Harry” problem in which 43 the rogue police i isobjectively gu with the attitude between legal at litelatter is sub facie principles. citralegal methc Hanewicz (1 Cases such as th laws governing asserts that the Order, the hum; relationships (l m Person mu Thought, in if: relationships is Titles, Social in For hm 0r TECQS ’ Slty. Par; the rogue police officer violates several rights of the killer whom he “knows” is objectively guilty. In this case Dirty Harry is in fact the child of the light with the attitude. However in doing this he has crossed the boundary between legal and moral guilt. Philosophers ( Hare: 1988) refer to this type of decision making as critical moral thinking versus intuitionist thinking. The difference is that the former is based on reasoning absent human weakness. The latter is subject to human weaknesses, it relies on intuition and prima facie principles. In essence, sometimes just ethical outcomes require extralegal methods, the trick of course is finding the right person for the job. Hanewicz (1985) offers another perspective on the use of discretion. Hard cases such as the “Dirty Harry” problem for him are not difficult at all, as laws governing illegal conduct are prescribed and must be followed. He asserts that the problem with discretion is “...a variation on the problem of order, the human need to have closure, in perception, thought, and relationships (Hanewicz: 1985; p. 47).” With respect to perception he feels that person must organize each cognition into a relevant experience. Thought, in it’s basest form replaces doubt with certainty. The need for relationships is satisfied by “...predictability in behavior, by commitments, roles, social institutions (Hanewicz: 1985; p. 47).” For him, order is not merely a pleasantness for human beings, it is a necessity. Paradoxically, it is also something that he does not believe exists except in a few “photograp ” of life. He believes this for two reasons, first the vagaries of life are often hap-hazzard and leaves one unsated. Secondly, he posits that the legal system is too rigid to account for the complexities of human beings and all of their capriciousness. As such, discretion becomes a 44 necessary part 0 when one consit has already be cI discretion dehur bring about a 861 representative. ' dialogue takes p the cause of poli Hanewicz fee the citizen and t lm‘titutions that necessary part of the police profession. He feels that this is especially true when one considers that police officers are often thrust into a situation which has already be characterized by disorder. He believes that the very nature of discretion dehumanizes the encounter. This is because police, when they bring about a semblance of order do so not as a person, but as society’s representative. They are constrained to act in manner in which no real dialogue takes place. They act and the citizen reacts. Discretion then is both the cause of police problems and at the same time, the solution. Hanewicz feels that this is a significant cause of dissatisfaction for both the citizen and the oflicer. The problem is that society and it’ s legal institutions that promulgate rules are inadequate to deal with the complexities of human encounters. Thus absolutes are good for the hard cases, but, cannot be applied to the vast majority of police/citizen encounters since these often involve mitigating circumstances which are often not covered by legal mandates. The general thrust of the argument is that discretion is a necessity as the police “...do not therefore, merely enforce the law; rather, they must r_e_fg to the law in handling the situation...” “...This arena is bgtyve_en_ the law and the person; it is outside the law and therefore the law is least helpful here where discretion is born (Hanewicz: 1985; p. 49 - 50).” In other words, he is arguing that it is the law itself that provides the basis for discretion. As he sees it, the problem with discretion is the mixing of the “is” and the “ought.” Here the “is” refers to how things are in the reality of the situation; and the “ought” refers to how things should be done. He feels that it is only through training and experience that doing what is right and what is best can be reconciled. In this case “best” refers to results that taken together provide 45 for the most her what is legally r The problem police discretior lottery of birth c object of police comes in the for refers to mandat is best for sociei the domestic vie children; sibling allows POlice 0. {firm of discipl When In the questionable as Society. Han e\ “best” but it re entrpled With a- lt Seems the human frantics ludgemem of f; olprejudiCeS a; lliscretmn? Bu lust for all peo ObviouSlv t for the most beneficial outcome for the individual and society, not necessarily what is legally mandated. The problem is trying to link these two often competing notions so that police discretion is used positively, not punitively against those who by the lottery of birth or circumstances of poor life choices find themselves the object of police attention. The conflict between what is “right” and “best” comes in the form of the legal right and the moral best. Here the legal right refers to mandated responses as prescribed by law. This compared to what is best for society and the individual. As an example in the State of Michigan the domestic violence statute encompasses situations in which parents strike children; siblings strike one another. The literal interpretation of this law allows police officers to jail parents who employ corporal punishment as a form of discipline. It also allows police to jail teenage siblings who fight one another. In these situations, the police have the legal right to act, but, it is questionable as to whether this course of action is in the best interest of society. Hanewicz feels that the police can reconcile the “ri t” and the “best” but it requires that officers acknowledge their particular biases coupled with adequate training and experience. It seems that the whole problem with discretion is that it is subject to human fiaflties. By it’s very nature, discretionary practices rely on the judgement of fallible human beings who have ingrained in them their own sets of prejudices and foibles. The question is not: How do we eliminate discretion? But, how do we ensure that discretionary practices are fair and just for all people, not simply skewed in favor of the advantaged? Obviously, the answer does not lie in any one place. As has already been 46 stated, training malOFlty. It is i inditiduals as p Runner rather t individuals that Case basis via ( fonnulate gene WHY them b. m5» discr requires 0mm: judgements m. stated, training coupled with experience are necessary conditions for the just use of discretion, but they are not sufficient. Also needed are individuals who understand the complexities and diverseness of a multi-ethnic culture such as that of the United States. It is incumbent upon oflicers to have a working knowledge of cultural idiosyncrasies in their assigned districts. Here the claim is not that society should engage in policing practices that are based merely upon notions of cultural relativism, but, mores within a given population should not simply be ignored as if irrelevant. Cultural difl‘erences do exist and are no less relevant simply because they are not shared by a majority. It is in this vein that society should attempt to select those individuals as police officers who are able to look at problems in a casuistic manner rather than myopically. Those best suited for this position are individuals that are able to reason through demanding situations on a case by case basis via deduction. As such it is incumbent upon police officers to formulate general strategies prior to actual encounters, then have the ability to modify them based upon the particular facts surrounding the incident. Thus, discretion should not be thought of as unidirnensional, it not only requires officers to use fair and sound judgement, it also means that these judgements must be based on careful reflective reasoning. This itself may seem somewhat peculiar, especially when policing in a complex society often calls for instant decision making on the part of oflicers. It is precisely these types of decisions that require thoughtful contemplation. Police ofiicers are charged with making life and death decisions. More fiequently, they are charged with making decisions of a lesser magnitude, but, still significantly life altering or at least potentially so. Seemingly, society should have a 47 vested interest i with obeisance. reasoning. Hare (1988) ratiocination } the abilities to t contrasts this v. using intuitive t archangel and tl provide the hex better term, the envisions all kn Peculiar PTObler Choices and arri Position in the Q vested interest in ensuring that officers treat the awesome power of discretion with obeisance, but this can only be gained through an understanding of reasoning. Hare (1988) discusses vexing problems such as decision making using ratiocination. He believes that in an ideal situation all would be blessed with the abilities to use reason, much like the omniscient “archangel.” He contrasts this with the Orwellian “prole” who possesses abilities to reason by using intuitive thinking. At this point one may legitimately wonder what the archangel and the prole have to do with police discretion? Simply, they provide the nexus between the reasoned use of discretion and for lack of a better term, the capricious use of discretion. By critical thinking, Hare envisions all knowing beings, who have the ability when confronted with peculiar problems to immediately assess the situation, scan all possible choices and arrive at a solution that would be acceptable regardless of his/her position in the situation. That is, regardless of the role in the encounter, the decision would stand. In addition, for the archangel when making the decision, outside influences would be of no consequence. Primarily what Hare is referring to is the notion of partiality to one’s self, fiiends or, any significant other. Another condition is that the archangel’ s decision would be objectively right. That is, all archangels given the exact set of circumstances would themselves make the exact same decision no matter what role each occupied in the encounter. The prole on the other hand uses intuitive thinking. By using the prole Hare is merely attempting to draw a stark contrast between the two extremes styles of “thinking.” Since unlike the archangel, the prole is only able to 48 “...rely on intui for most of the or sound critic 45).” The point th thinking, but thlI fact, he believe the archangel, associated h ina vacuum, 1h essence, Hare i Pmdilections a] Ofany given Sit PW facie pri; Mortals are (at U.ObleCtiV'elyfl r Wblance of C “...rely on intuitions and sound prima facie principles and good dispositions for most of the time; he is totally incapable of critical thinking (let alone safe or sound critical thinking) even when there is leisure for it (Hare: 1988; p. 45).” The point that he is making is not that people are incapable of critical thinking, but that they are fallible and subject to individual partialities. In fact, he believes that at times people do engage in critical thinking but, unlike ' the archangel, most people are not able to set aside their biases and other associated human weaknesses. In other words, people do not make decisions in a vacuum, they are arrived at given the totality of circumstances. In essence, Hare is asserting that people take into account their own predilections and must somehow comport these feelings to the circumstances of any given situation. Hare believes that this is done through the notion of prima facie principles. What is meant by this is that as fallible beings, mere mortals are (at least at present) not able to deduce things that are “objectively” right or for that matter wrong. At best humans can, through a semblance of critical drinking, deduce from circumstances what the best course of action would usually be. In fact, it is only through critical thinking or a facsimile thereof that prima facie principles can be developed. It is through the careful deliberation of facts that these principles are formulated. As an example, suppose that through research, legislators have determined that gun-locks reduce the likelihood of accidents amongst children. Further, that research has shown that it is ninety-nine percent more likely that a child would be injured with a gtm then it is that the home owner would be injured from an intruder had the gun been locked. The prima facie principle here is 49 that gt could 1 simply one do for the the imp grim c inculcat The should i tisceral may be 1 discretio Pretextf A pret amflic v tiolation ; Vehicle, . ”mic C011 chamelefi: that guns ought to be locked even though there is a chance that a locked gun could result in harm to a home owner from an intruder. Hare argues that simply because a chance exists that harm could come to the home owner, that one does not abandoned the principle. In fact he states: “...The principle is for the actual world. One thing, therefore, that we do not do is to call to mind the improbable or unusual cases that novelists, or philosophers with axes to grind, can dream up, and ask whether in those cases the outcome of inculcating the principle would be for the best” (Hare: 1988; p. 47). The connection between critical thinking, intuitionism and discretion should be apparent in that use of discretion, based merely on unexanrined visceral feelings ought to be viewed with great trepidation . At this point it may be helpful to look at actual case histories involving police use of discretion in the context of differential traffic enforcement. Pretext Traffic Stops A pretext traffic stop is one in which an officer legally stops a motorist for a trafic violation, however, the officer’s motives are not based upon the violation itself, but upon characteristics intrinsic to the operator of the motor vehicle. Frequently race and, often gender are determining factors in pretext traffic contacts. However as with most things, these are not the only characteristics involved in this type of encounter. Sometimes, people are subject to the pretext stop not because of what they are, but because of who they are. An example of the former would include an ofiicer who observes a youth driving an automobile. In this example the what refers to the class of people entitled “youths.” The important point here is that the pretext for the 50 stop is based 0 the historical 5 official. An example = because of win solely for the p automobile to . However, 19% stop is based on the characteristics of the driver, not, the violation nor even the historical significance that the person may have to the law enforcement official. An example of the later would be an officer that stops an individual because of who he is, a drug courier. The stop albeit legal, is conducted solely for the purpose of giving the officer access to the traffic “violator’s” automobile to search for suspected contraband. The difference between these two types of stops is considerable. In the first instance, pretext stops are prima facie discriminatory. That is, the officer is focusing upon individuals because they were born a certain color or because they are in the youthful years of life. This is seemingly unfair that officers would stop a person simply because of a happenstance of birth. However, legally stopping people because of who they are, that is known criminals, would probably be applauded by most. Of course in a free society this is not easily regulated. Society must balance the often competing values of freedom and safety, and then determine which is most important. One of the problems with pretext traffic stops is that although legal, they are seemingly in direct violation of the fourth amendment to the United States Constitution, the guarantees the prohibition against unreasonable search and seizrn'e, albeit the Supreme Court of the United States has carved out exceptions. Briefly, this amendment was designed to prohibit government officials from violating a person’ s legitimate right to privacy. Of course, what is at issue is the Courts blurring of the difference between what is legitimate and what is not legitimate. In United States v. Chadwick (I97 7) the Court ruled that persons are 51 protected, not of a residence. i evidence coul ' home. protected, not places. For instance, evidence resulting from the illegal search of a residence, could not be used against the home owner. However the same evidence could be used against a third party who did not have standing in the home. With respect to automobiles the Court in United States v. Salvucci (1980) ruled that individuals do not have an expectation of privacy in a car that they are merely a passenger in. Here the Court stated that the warrant-less search of the glove box and the subsequent seizure of evidence was admissible against the passenger as he did not have an expectation of privacy for things that he had placed in the glove box. In Mincey vs. Arizona (I 970) the Court enumerated ten exceptions to the search warrant rule. One of these are searches of automobiles. Here the Court allowed the police to search a motor vehicle as long as the officer had “...probable cause to believe that an automobile is being used to commit a crime, including traflic oflemes or irregularities. .detain the persons found therein, search them and the passenger compartment, including any containers found inside the passenger compartment (Peltason: 1982; pp. 144-145 [italics added]).” The importance of these rulings are that they allow the police to search vehicles as long as they are legally detained. There are those that would argue that such a rule is perfectly acceptable since the enforcement of traffic laws are necessary for society to operate in a safe and orderly manner. In fact most people would agree with the necessity of traffic regulations. Further, police officer would claim (and rightfirlly so) that it is important for their own personal safety, as well as to control crime, that they be allowed to search 52 vehicles that IE are important 1' agree that giV reasonable su. ought to be all Ohio (1961) 5' people for we] for doing so. i needs to reaclt is set rather 10 This in itse concern if dI‘iV such as Speedil nearly all drive State of Mich i ll gOVems eve depth of tire tr from the Fear \ to deiect intox vehicles that they have legally stopped. There can be little doubt that these are important reasons. Regardless of one’s position in society, most would agree that given sufficient reason, probable cause of a criminal activity or reasonable suspicion that one was happening or about to happen, an officer ought to be allowed to stop and detain a person. In fact the Court in Terry v. Ohio (1961) specifically allows the police, for their own safety, to search people for weapons as long as they are able to articulate reasonable reasons for doing so. As can be seen, the standard that a law enforcement officer needs to reach a level where the officer can legally invade a person’s sanctity is set rather low. This in itself, although problematic, would not be a significant cause for concern if drivers had to only concern themselves with moving violations such as speeding, disregarding traffic control devices, and so on. However, nearly all drivers violate the motor vehicle code whenever they drive. The State of Michigan’s motor vehicle regulation manual is several inches thick. It governs everything from when one can operate fog lamps, bumper height, depth of tire tread, cracked tail-light lenses, to having air-fiesheners hanging fiom the rear view mirror. Additionally, police oflicers are instructed on how to detect intoxicated drivers, which under most conditions is a good thing, but, in the comext of a pretext stop, is subject to abuse. For instance, policeman are told that a person who is driving too slow, the speed is dependent upon the officer’ 5 perception, or who is staying within his lane, but straddling the fog line or, lane demarcation stipe, is possibly drunk. Further, if a person has not crossed either line, but goes from lane edge to lane edge, this too is a possible indicator of a drunken driver. Thus, a driver could 53 actually be wit vehicle while I occupant exit same time, ins contraband. 1 law simply to challenged at s defend the decll given the polic them out. In 1996 the me United s,fl the 0pinj0n the Stop any citize was a legal bar that an Oflicer’ relet-am3 as 10 h is easy to imi dilapidated am decision the pc 0i . an} ConCel-n Cohdu . Cling a tr t; . llh the relaliy actually be within the law, yet stopped on the suspicion of operating a motor vehicle while intoxicated. This allows the officer the opportunity to have the occupant exit the vehicle, ostensibly conduct a sobriety check and, at the same time, inspect the motor vehicle and operator for weapons or other contraband. This is not to give the impression that police officers violate the law simply to stop a vehicle, because surely most do not, and, if the officer is challenged at some later point in time, he/ she must be able to articulate and defend the decision to stop the motorist. It is society and the courts that have given the police this authority so that they may detect law breakers and ferret them out. In 1996 the practice of pretext traffic stops was legitimized in Whren v. The United States (1996). Here the United States Supreme Court proflemd the opinion that a police officer, under the guise of a pretext traffic stop, may stop any citizen for any violation of the motor vehicle code, as long as there was a legal basis to do so. What is important here, is that the Court stated that an officer’s motive, whether nefarious or not, in stopping the car is not relevant, as long as the traffic stop comports with the law. To illustrate this, it is easy to imagine an officer wanting to identify the occupants of a dilapidated automobile found in an affluent neighborhood. Given the Whren decision the police are able to do this even though traflic enforcement is not of any concern to them. The idea of an officer having a nefarious motive and conducting a traffic stop, not having any concern for the violation; coupled with the relative ease of obtaining a reason to stop a person, is exactly the issue involved. Obviously, decisions like these affect every person, citizen or not, who is 54 within the b( minority COR ofaflluent w everyone eqt traffic violati people, basec Thus by allox Step, the C on against peOplt activity. The “Upped by th. the form of iss minorities are "31350 Citation, coun imposes, pmsiding J Udgt the Police are E within the boundaries of this country. But, the impact is especially felt in minority communities. Certainly, the Court did not prohibit the pretext stop of aflluent white males. On the contrary the Court in it’s haste to treat everyone equal has allowed the police to stop eveggone given the pretext of a traffic violation. Paradoxically, the impact of this decision is that it allows people, based on the ofiicer’ s preference to be subjected to a pretext stop. Thus by allowing officers to pick and choose the people that they wish to stop, the Court is in essence was giving the police permission to discriminate against people that they subjectively believe may be involved in criminal activity. The simple laws of probability dictate that the more a person is stopped by the police, the greater the likelihood that punitive enforcement in the form of issuing a traffic citation will occur. Unfortunately, these minorities are the people who can least afford the cost associated with a traflic citation. If for any reason the person does not pay the fine that the court imposes, arrest warrants and licensing sanctions are issued by the presiding judge or magistrate. Then, the next time the individual is stopped the police are able to “find” the “criminal” thus giving credence to the pretext stop. In the minority community, African Americans often feel that they are the fi‘equent focus of unwarranted police attention. Interestingly, these impressions seemingly transcend the economic status of the individual. In 1992 Robert Wilkins, a Harvard trained lawyer, and family members were returning to Washington DC. from his grandfather’ s fimeral. While traveling through Maryland they were stopped by the State Police for speeding. The officer asked for consent to search the vehicle for contraband. When Wilkins 55 Pt. -—1.' . f ..- ‘W' rehtsed to cor inferred that i. detained the t" car looking in stand out in and the Wilk' in Federal C or 535661 profile . v. .llaq*land l In 1996 a: University Pn was retained . resP’ect to p01 comPGSition ( racial compos mOIOTlSts StOr " refused to consent to the search citing the fourth amendment, the trooper inferred that innocent people had nothing to worry about and the searching of vehicles was ordinary procedure for the State Police. Wilkins remained steadfast in his refusal to allow the search. At this point the trooper simply detained the family until a narcotics trained dog arrived and went through the car looking for drugs. During this time, Wilkins and his family were forced to stand out in the rain. Upon conclusion of the search, no drugs were found and the Wilkins family was allowed to leave. Subsequently Wilkins filed suit in Federal Court claiming that he was singled out simply because of a race- based profile which targeted young black men driving rental cars (see Wilkins v. Maryland I 991). In 1996 a statistical brief was filed with the Federal Court by Temple University Professor John Lamberth, Ph. D., on behalf of Wilkins. Lamberth was retained by Wilkins’ legal team to design and conduct a study with respect to police searching of motorists. Specifically, he looked at the racial composition of motorists who used the corridor traveled by Wilkins; the racial composition of traffic violators; and the racial composition of all motorists stopped and searched by the State Police. Briefly, Lamberth trained a number of observers to detect traffic violations. The observers were finther instructed to tally the race of occupants in all vehicles, that is those who violated traffic laws and those that were not in violation of these laws. They were then charged with traveling the same I-95 corridor as Wilkins did; dates and times (daylight only) were randomly selected. Observers recorded 5,741 cars. They were able to determine the race 56 96.8 percent ( were listed as. found that 93. points out, the Lamberth l lanuaiy 1995 corridor that n were black, 74 were white mt corridor wher Oflhe time cc mmwn 96.8 percent of the time. Out of these 16.8 percent were black, three percent were listed as minorities other than black and 74.7 percent were white. They found that 93.3 percent of all drivers were violating the law and as Lamberth points out, they were subject to being legally stopped by the police. Lamberth using data generated by the Maryland State Police between January 1995 and September 1996 found that on the same section of the I-95 corridor that troopers searched 823 motorists. Out of this total, 72.9 percent were black, 7.6 percent were minorities other than black and, 19.7 percent were white motorists. Interestingly, Lamberth found that outside of the corridor when searches were conducted, whites were searched 63.7 percent of the time compared to thirty-two percent for blacks. Lamberth concluded that the odds of this police action randomly occurring on the I-95 corridor was one in a quintillion (a cardinal number in the US. followed by 18 zeros). In Smith v. City of Carmel (1996) a black police sergeant with the Indiana State Police was driving an unmarked police car through the city limits of Carmel when he was pulled over by an officer. When Smith (who incidently was in firll uniform) asked why he was pulled over, he was told that it was because he had three antennas on the rear of his car. In the 1991 lawsuit of Wilson v. T inicum Township (1991) Township, four black people on the way back from a church celebration were stopped in Pennsylvania on I-95 for having an obstructed rear view mirror due to an air- fieshener was hanging down. After the officer examined the license and registration, other police cars along with a narcotics dog was called to assist in the search of the automobile. The results of the search did not turn up any illegal drugs. When they asked the ofiicer why they were pulled over, they 57 were told that drug trailickir in another I: l-95 corridor narcotics trair" According to their daughter blown to the bflng handc ut allowed to us Carters Were V. rilan’land These fox 1100‘“th 0r were told that it was because they were young, black, driving a nice car in a drug trafficking area. In another Maryland case, an elderly black couple was pulled over on the I-95 corridor by State Troopers. Once again their vehicle was searched by narcotics trained dogs and all the contents in their vehicle were taken out. According to statements, some of their things were urinated on by the dogs, their daughter’s wedding dress was placed on the hood of the car and was blown to the ground several times. The elderly lady was even threatened with being handcuffed for being uncooperative as she requested that she be allowed to use the restroom. The police did not find any drugs and the Carters were allowed to continue on their way (see Charles and Etta Carter v. Maryland State Police et al. I 99 7). These four cases are meant to illustrate the fact that it is not simply young hoodlums or known criminals that become the focus of police scrutiny, but, focus is placed on ordinary law abiding people merely because of the pigmentation in skin color. Arguably most officers that engage in pretext tramc stops do so not because of a particular bias against an individual, but, in order to fulfill society’s mandates. These include keeping drugs off of the street out of schools, reducing violence and other associated criminal activities. At issue here is whether it is best to denigrate a segment of the population in the hopes of keeping some drugs off of the streets. This becomes especially salient when one considers that the debate regarding the effectiveness with respect to society’s present strategies involving drug control policies. There are several other problems associated with pretext traffic stops. 58 lhese includefi individual su respect to the and more insi deserving of t next section. The fonne of one grOUp i differential ’ not secure an } lnthe followir Learned Het AHOther as Who have bee “aw abiding Looking at th. place the “Vic that by definh idea that P60; their reality b2 who” gr 011p These include the general notion of fairness and the impact to both the individual subjected to unfair treatment and it’ s impact on society. With respect to the latter, it may result in damage to one’s perception of oneself and more insidiously it may cause others to look upon the individual as deserving of the unfair treatment. This will be discussed more fully in the next section. The former, is problematic since if society allows the differential treatment of one group over another, then there is not any rights (with respect to the differential treatment) that society can secure for anyone. A right that does not secure anything, cannot said to be a right. This concept will be discussed in the following chapter. Learned Helplessness and Just World Theory Another aspect of pretext stops deals with consequences to individuals who have been targeted, but, who have done nothing wrong. In this instance a law abiding person is unfairly stopped based upon a profile of a drug dealer. Looking at this from somewhat of a different perspective, it would be easy to place the “victim” moniker on these people. Especially when one considers that by definition a victim is one who unjustly suffers. At issue here is the idea that people subjected to differential treatment will begin to formulate their reality based upon their experiences and general experiences of their cohort group. In this case the cohort group refers specifically to the category of race. This is so because of similar treatment that blacks of all demographic backgrounds have experienced whether they were young, old, rich, poor, male or, female). In this case, it is obvious that a person who is treated 59 ditierently b6 disparate trea Of course right to stop a argtunent, aft'l they did not h course is that that laws and misconduct. discretion as . differently because of race easily suffers from humiliation imposed by such disparate treatment, albeit psychologically. Of course there are those that would argue that if the police have the legal right to stop a person, they are not victimizing anyone. This is a legitimate argument, after all, it would be nearly impossible for the police to operate if they did not have discretion to act or ignore violations. The problem of course is that discretion itself is subject to abuse. It has already been posited that laws and court decisions have been formulated as a result of police misconduct. The courts and the legislature have at times limited police discretion as a result of abuse. The general point is that although a tactic may be acceptable, it does not mean that it is “right.” Putatively, there is a difference between what is legally acceptable and what is morally/ethically acceptable. Thus citizens who are victimized by a system that allows for disparate treatment based on physical characteristics would seemingly learn that they were not in control of events in their lives. Maier and Seligman (1976) substantially argue this very fact. They posit that not having control in an “...original event is crucial for the development of subsequent deficits.” “...There is an obvious parallel between responses to victimization and learned helplessness” (p. 105). They believe that both share three things in common. First, there must be some event which is either a catalyst or triggering mechanism Second, both involve subsequent events in which the person believes that they have little power or ability to change or control these events. Third, both generalize as to their abilities to control unrelated situations, adopting an almost fatalistic attitude when encormtering difliculties. 60 The insidi' .. ml responds, the accept the sit to control. Franklin t with blacks tr 0f, any other the encounter African Amel authority ove ameliorating including am, Shoulders of Ihe infer the tIeaunem blaming the Ti blaming the d P0llce is anal The insidiousness of learned helplessness is that it becomes a way of life that perpetuates itself. The individual “knows” that no matter how he/she responds, the outcome is predetermined. The coping mechanism is to simply accept the situation and tacitly acknowledge that life’s events are not subject to control. Franklin (1991) in essence argues that some police oflicers use encomters with blacks to further assert their dominance. For instance, with traflic stops or, any other type of involuntary contact, the oflicer is the one that controls the encounter. He believes that this allows the police officer to denigrate the African American professional by detaining and asserting legitimated authority over him. Franklin further posits that society uses race as a way of ameliorating middle class whites. In this sense, race serves many purposes including among other things, placing the blame for the crime problem on the shoulders of Afi'ican Americans. The inference, is that Afiican Americans are themselves responsible for the treatment that they receive. Interestingly enough this has the effect of blaming the recipient of the treatment for the treatment itself. For example blaming the African American for the treatment tl'mt he/ she received by the police is analogous to blaming the battered spouse for allowing herself to be struck by her husband. This leads directly to two problems. The first problem with this is that it mitigates the responsibility of the actor. Secondly it perpetuates the general notion that the recipient must have done something wrong to attract police attention. This has the effect of telling other members i of society that this person must have warranted police attention. Of course with respect to racial profiling in the traffic enforcement 61 context, this i violation ofie searched. To done somethi automobile. . searched, fee the incident, 1 Summary The role 0 understood kl rule enforcer.| oflaw-Cnforc. Capacity 0f er than this, he 1 impmiantly, ] Public’s Oblig &’ being guar in notions of ”@159 that e. eflreClive and SCCQndlv F E‘L‘m— ..=”Q’ . context, this is exactly the issue. Minorities that are stopped for minor traffic violation often find themselves standing beside their automobile while it is searched. To the passing motorist this is indicative that the person must have done something wrong, otherwise the police would not be searching the automobile. Moreover, not only does the person, whose automobile is searched, feel like he/she was treated like a criminal, but to all that witnessed the incident, the person was a criminal. Summary The role of the police officer in contemporary United States must be understood in the context of service to the cormnunity, rather than merely as a rule enforcer. In this sense, the police role is best defined by Peel’s principles of law-enforcement. Peel simply did not conceive of officers acting in the capacity of enforcers for the State. He believed that they were much more than this, he felt that they were in the truest sense public servants. Most importantly, Peel believed that the police were the public and that it was the public’s obligation to act as police. Clearly, the conception of police oflicers as being guardians is incomplete. Peel felt that officers who were grotmded in notions of justice and fairness were essential for public support. Peel argued that without public support and approval, police officers could not be effective and at best would be nothing more than an army of occupation. Secondly, issues involving police discretion are central to the nature of policing. Police must use discretion wisely and judiciously. However, being mortal, police oficers can and do abuse the authority given to them by society. It is precisely this issue that is involved in difl‘erential traffic 62 enforcement. not mean tha enforcement ' usually writt written as co this allows o oliicers may motorists to Discretior enforcement. stops, ditfere use Of discre The majc police Office llmtitittely ti 0n the Sulfa “Tong Ho~ has Sanctior ’70P anyon, ”35 nut dis white, Ye¢ Nike “'61- The im minority I3 Hone in t enforcement. Simply because one has authority to perform an action, does not mean that the person must perform the action. Rules governing traffic enforcement are written pemiitting officers to stop automobiles, they are usually written in the conditional form: an oflicer may stop... They are not written as commands: an officer must or shall stop... The difference is that this allows officers to exercise their will. The problem arises given that some oflicers may be predisposed to act upon their own prejudices when choosing motorists to stop. Discretion is the nexus between the police role and differential traffic enforcement. Since, if oflicers did not have the discretion to conduct traflic stops, differential traffic enforcement would not be an issue. The nature and use of discretion is essential to understanding this problem. The major problem with differential traffic enforcement is that it allows police officers to target minorities simply because they are minorities. Intuitively this seems to be little more than discrimination in its bases form. On the surface, most would acknowledge that discrimination based on race is wrong. However, what makes this problem vexing is that the Supreme Court has sanctioned this behavior. In the Court’s rulings they permit oflicers to stop anyone committing a traffic violation. In their haste, they said that this was not discriminatory since the police were free to stop any person, black, white, red, etc. that had committed a violation. The reality meant that the police were also free to stop whomever they pleased. The impact of racial profiling in traffic enforcement is normally felt on the minority population. Specifically, minorities are thought to be more crime prone in that they are over represented in prison populations. However, 63 Franklin (199 enforcement i population is result that ste that the polic often learned enforcement. response over rtthing that c lhe other person SIOpp the focus of p can lower (hi Seemingly Vic Franklin (1991) argues that this is merely the result of differential traflic enforcement in the first place. In addition, he believes that the prison population is also affected by disparate sentencing policies. In any event one result that stems from this is the notion that people get what they deserve and that the police usually deal with criminals. This being the case the result is often learned helplessness on the part of those selected for differential traffic enforcement. It is thought that if some action is repeatedly done, then the response over a period of time to the action becomes resignation: “there is nothing that can be done about being stopped by the police.” The other half of this problem is that the on-lookers now perceive that the person stopped and searched must have done something wrong, since they are the focus of police scrutiny. This perpetuates the cycle and in some instances can lower the self worth of the person stopped. While to the public they seemingly view the minority with more suspicion. Ethics In the cor an officer 0p the Whren d infraction wi Inc. In this I (D r? S O r-0 0 i :1 ——'— Chapter 3 Review of Selected Ethical Paradigms Ethics In the context of differential traffic enforcement the ethical paradigm that an officer operates under is of the utmost importance. As has been shown in the Whren decision, officer may ostensibly stop a person for a minor traffic infi'action with the real motive being that the driver was of a particular racial type. In this sense it is important that officers are made aware of their particular prejudices so that they can act in a manner compatible with society’s mandate of equal justice under the law. The ethical issue involved with differential traffic enforcement is whether or not an officer should stop an individual based on racial type or what the oflicer believes is a person’s propensity to be involved in criminal activity. This is distinguished from whether an officer may legally stop a person because of racial type or propensity to be involved in criminal activity. The obvious distinction is that the United States Court has ruled that an officer may stop an individual upon the commission of a traffic violation regardless of any other motive that the officer may harbor. Simply because an officer has the right to do action “A” does not mean that the right must be exercised. In our society there are many rights that the courts have enumerated yet are not acted upon. One example in the non-police context is the right to vote. Here not only courts, but, also legislative bodies have intervened and granted the right to vote to everyone (with minor exceptions) over seventeen years of 65 age. ln fact voting is me right to stop person is lu< The poin it has to be t to vote, it is that a signifi has been ext nutrients, alt again very ft mWwo do somerhin The poli He is Charge Society from the Officer, hunt ac, hilt 0f form involved in 3130‘” Ofiice feeling aboU-i the Sallie set I We facts j I In a “ray age- In fact in a democratic society there are those that would argue that voting is more than a right it is an obligation. Another example involves the right to stop feeding oneself. Here, courts have rule that as long as the person is lucid and wishes to stop feeding, they have a right to do so. The point being, is that simply because a right exists it does not mean that it has to be exercised in all or even most instances. In the first case, the right to vote, it is obvious to even the most casual observers of American elections that a significant portion the voting public chooses not to exercise a right that has been extended to them. In the second case, the right to cease taking nutrients, although more extreme has also been afforded to the individual, again very few individuals actively exercising this right. However, this does not solve om' problem, this merely acknowledges that simply because one can do something, does not mean that one must. The police officer is confronted with several different competing values. He is charged with protection of both individual liberties and safeguarding of society from the criminal element. These two often come into conflict when the oflicer, albeit subjectively, believes that a person is responsible for a criminal act yet is unable to prove that the person is culpable without some type 0f formal intervention. This is often the case with oficers who are involved in drug interdiction programs. Difl‘erential traffic enforcement is about Oflicers and their subjective beliefs. In other words, it is an officers feeling about a person in a given situation. Here two officers could observe the same set of facts and arrive at different conclusions as the interpretation 0f the facts is dependant upon the officers life experiences. In a Way this is like ethical nihilism. Briefly, Harman (1977) has define 66 ethical nihili and no more such thing a could not 58 people, let 2 asserted tha Operating in isnothing n term “ethic: PWSUppose that relativi vagaries of EXPRESS a n With one 1 With e1] ethical nihilism as “the doctrine that there are no moral facts, no moral truths, and no moral knowledge (p. 11).” Basically, nihilists believe that there is no such thing as right or wrong, there are simply acts. In the extreme, a nihilist could not say the torture of a suspect is wrong nor is the killing of innocent people, let alone allowing an officer to conduct a pretext stop. It is not being asserted that police officers are ethical nihilists, however, they may be operating under a system using similar notions, that is ethical relativism which is nothing more then ethics being determined by cultural predilections. The term “ethical relativism” may seem to be an oxymoron in that ethics presupposes a pattern of behavior based on what is right and obligatory and that relativism assumes that what is right and obligatory is subject to the vagaries of any particular culture; however it is merely a convenient way to express a notion that some believe that ethics is dependant upon the culture in which one resides. With ethical relativism right and wrong are culturally dependant. Acts are judged, based on mores within the culture. It is appealing in that presemly there does not seem to be anyway in which an ethical belief can be proven right or wrong. As an example, abortion, although most people have a visceral reaction to its appropriateness, cannot be said to be morally wrong without appealing to some higher authority, e. g., god. In fact ethical relativism seems almost reasonable with issues that rational people could disagree on. However, with other issues involving the disparate treatment of peOple, ethical relativism is not so appealing. For instance it is difficult to imagine the system of slavery that once flom'ished in the United States while banned in most other societies as being deemed acceptable based on the 67 principles 1 that this is slavery cor erploitatio they are as declares. l incomplete abstract ex beliefs. Cl citizens is 1 standard or 10 incomplt his case st The cha ciIizen witl that Societ) three Specii each of “it theOries inc mill are ea plel’alem‘ i1 [he 1egislan demo; rule, Clean. mlofity is ‘ principles of cultural relativism. In fact Arras and Steinbach (1995) argue that this is one of the criticism of ethical relativism. That is, an act like slavery could be considered “just” when its components (cruelty and exploitation) are what the term “unjust” is comprised of. In essence, what they are asserting is that “right” is independent of what a specific culture declares. Seemingly then ethical nihilism and ethical relativism are incomplete ethical theories as the former denies that ethics even in the abstract exists. While the latter predicates “just” ethical standards on cultural beliefs. Clearly in a pluralistic democratic society the treatment of it’ s citizens is of great importance. As such the mere denial of any ethical standard or the assumption that ethics is merely culturally specific are simply to incomplete for the purposes of differential traffic enforcement as applied in this case study. The challenge is finding a particular ethical strategy that will treat the citizen with compassion and at the same time take into account the demands that society has placed on it’s police officers. With this in mind there are three specific and often competing ethical theories that will be examined, each of which are recognizable in different aspects of our society. These theories include: Kantian, utilitarianism and, reflective equilibrium. Not only are each of these theories represented in society at large, but they are prevalent in our jurisprudence and legislative government. As an example, the legislative branch operates under the notion of a representative democracy, more specifically, they operate under the premise of majority rule. Clearly this has utilitarian overtones, that is what is good for the simple majority is what rules the House of Representatives. 68 On the « What is im people not overtones i an end, but Reflect. that is user branch. Bl evaluative play that is either char dissonant l defendants Upper and The ma science the lhtt heat ri experimen. a” Situatio] Adherems l0 tell a 1 ie ind them "Mite the } mean that c Older 10 p“ On the other hand the judicial system is predicated on individual rights. What is important for the judiciary is the safeguarding of these rights for all people not simply the majority of people. Clearly, the judiciary has Kantian overtones in that they believe that pe0ple ought not be treated as a means to an end, but as an end in and of themselves. Reflective equilibrium enters into the picture as a compromise strategy that is used primarily in intra-negotiations whether in the legislative or judicial branch. Briefly, reflective equilibrium allows one to hold a set of pre— evaluative beliefs that are prima facie valid. When a cognition comes into play that is dissonant from a pre-evaluative belief, the person is required to either change the belief so that it is consonant or simply live with the dissonant belief. This is illustrated in court room negotiations where defendants plea bargain or between intra-legislative negotiations between the upper and lower houses. The main stumbling block with ethics of course is that unlike natural science there are not any proofs to any ethical claim. For instance it is known that heat rises in relation to the ground. This can easily be verified through experiments and once proven through the laws of physics it is known that in all situations heat will rise. Unfortrmately the same cannot be said for ethics. Adherents to utilitarian, Kantian and reflective equilibrium would assert that to tell a lie is wrong. However given mitigating circumstances each could find themselves willingly purporting an untruth. In this sense then ethics unlike the hard sciences is fluid and is situationally dependant. This does not mean that one can simply manipulate the ethical rules so as to fit the case in order to provide the best personal outcome (although surely this does occur). 69 It simply behavior] circumsta shown in [tilitaria Utilita greatest 3 words, th notion tha utilities. ] versus grr discemab l’alued w} avoided, Highness ; Arras z feannes n Ofactions consequfl Secondly, simply tie; ofunhappi. neagmabk piOhlemS h It simply means that ethics is part of a changing universe (universe of behavior) that the topic cannot be treated as if it were monolithic, since as circumstances change, so do ethical decisions. This is what it is hoped is shown in the following discussion as these three theories are outlined. Utilitarianism Utilitarianism is grounded in the notion that society ought to promote the greatest amount of happiness for the greatest number of people. In other words, this is a view of the maximin calculation. That is, it is centered on the notion that one should maximize positive utilities and minimize negative utilities. In practice this results with a contrast between individual benefits versus group benefits. As such, it is merely a calculus that in theory is easily discernable. Those acts that produce happiness (positive utility) are to be valued while those that produce unhappiness (negative utility) are to be avoided. Utilitarianism then is a form of consequentialism in that the rightness and wrongness of an act is outcome based. Arras and Steinbock (1995) argue that there are several advantages and features that make utilitarianism attractive. First the rightness and wrongness of actions are judged by the consequences they produce and similarly, the consequences in the absence of an action is also judged if not performed. Secondly, in theory it is easy to decide what course of action to take as it sirnply depends on the amount of happiness produced relative to the amount of unhappiness caused. Third, they assert that happiness is empirical, measurable and comparable. Seemingly this would mean that societal problems have definitive answers which tell one how to act. Lastly 70 __‘ militarianisi not depend; for the com the calculus anemone is utilitarians 1 will be shot lhe hap vacuum. Tl isolated eve example, th of a suspect arongness. W1 and st Person‘s rig action that i mistreatme ”105! tolera murderer f, latenemd r "if guilt of would be a JOhn St i“ the indj imp- Min. utilitarianism is impartial in that the rightness or wrongness of any given act is not dependant upon how much good it produces for the individual, but rather for the community. This means that the happiness of the person performing the calculus is not to be given anymore weight then any other person. Hence everyone is assigned the same value in the overall equation, which means that utilitarians are seemingly committed to the notion of equality. However, as will be shown this notion is somewhat misguided in a large complex society. The happiness/unhappiness calculus is itself not to be considered in a vacuum. That is, happiness that an action causes is not to be viewed as an isolated event. It is to be viewed in context with other events in society. For example, the police officer who illegally obtains evidence that proves the guilt of a suspected murderer has produced both conditions of rightness and wrongness. On the one hand, the officer has identified a murderer. This is good and should be lauded. On the other hand the ofiicer has violated a person’s rights that are protected by constitutional guarantees. This is an action that is wrong in that it puts all members of society at risk for mistreatment by the police. For the utilitarian the question is which action is most tolerable? The calculus then would weigh the consequences of setting a murderer free compared to the consequences of allowing police officers unfettered reign to violate constitutional rights as long as officials believed in the guiltofthe suspect. Inthis case the utilitarianmustactas ifthe rule would be applied to all members of society, not simply as a casuist. John Stuart Mill (1858) one of the formding fathers of utilitarianism argues that the individual must subordimte his or her particular desires to that of the group. Mill flatly rejects the notion of a social contract in which rights and 71 obligations arguing that means that Although ht “retum a be protections asocial obl Significant. bane of bi return for tl does not er Sllbordinatc Howeve inditidua] 1 Wind be “its so 101 infallible; t: compafisor hm a goon b'elcome d; the issue is A“ exan should not I We“ a coc obligations are derived. This notion is important because essentially he is arguing that rights and obligations are fluid within a given society. Which means that rights and duties are in some sense culturally dependant. Although he readily acknowledges that each member of society has a duty to “return a benefit (p. 75),” simply because each individual enjoys certain protections that society offers. The distinction between a social contract and a social obligation would seem slight, but the implication is really somewhat significant. In the former, one symbolically enters into an agreement by virtue of birth within any given society and gives up specific natural rights in return for the protection that society affords the individual. In the latter, one does not enter into a hypothetical agreement upon birth, but, agees to subordinate particular desires for the benefit of society, not the self. However he offers a caveat in that he is unwilling to merely sacrifice individual goals merely for the sake of public opinion. In fact he argues that mankind being imperfect should be able to express themselves in a variety of ways so long as there is no harm to others. He states “(T)hat mankind are not infallible; that unity of opinion, unless resulting fiom the fullest and fieest comparison of opposite Opinions, is not desirable, and diversity not an evil, but a good... (p. 57).” What is meant is that Mill believes that society should welcome differing opinions, but, once adjudicated via the happiness calculus the issue is closed pending a societal shift. An example deals with the notion of lying, which most people would agree should not be tolerated. One can imagine a situation in which a police oflicer enters a court room and takes an oath to tell the truth about how evidence in a particular criminal matter was seized. All present expect that the officer 72 would test the officer would be ‘ utilitarians compelled would be faith in tin responsib OfWhatev controlled interferen filthy of t Ofiicer to Ostern in Which . b‘hereabc Would be case the l inclined t mmitess. lithium concepI ( An Ob. calCulus f dab life. would testify truthfully about the matter at hand. However, also imagine that the oflicer obtained the evidence illegally and by telling the truth the suspect would be freed because his constitutional rights were violated. In this case, utilitarians as well as most other people would assert that the officer is compelled to tell the truth because if not the credibility of the judicial system would be put in peril. The calculus for the utilitarian centers on the notion of faith in the system. Mill argues strongly for this point when he discusses the responsibility of individuals in relationship to society. He states that “(A)cts, of whatever kind, which, without justifiable cause, do harm to others, may be, controlled by tmfavourable sentiments, and, when needful, by the active interference of mankind (p. 56).” Here the damage in releasing a person guilty of murder is not as gcat as the harm done to society in permitting the officer to lie. Ostensibly in certain situations, lying would be permissible. Take the case in which a band of criminals looking for an individual ask another about his whereabouts. If the person tells the criminals the location, the individual would be harmed. If the person lied, no harm would befall anyone. In this case the prohibition against lying is less certain and the utilitarian would be inclined to excuse the untruth. At this point it should be mentioned that it is unnecessary to further refine the concept of utilitarianism between act- utilitarianism and rule-utilitarianism since what is at issue is the general concept of utility of which both share common gound. An objection to utilitarianism involves the belief that the cost/benefit calculus for happiness would be too cumbersome when applied to a person’ 3 dain life. Mill did not envision this as an insurmountable problem. Because 73 what he bl ununon, described between t duerSpe for instar bgmMi circumstz hdhidua mmhm With pens continua bthat'ior of tours. 0f such a Seco; —._ ‘_._ what he believed was that utility did not have to be calculated for each situation, as this would be nearly impossible, he believed in what is best described as “social utility” as opposed to “personal utility.” The difierence between the two is that social utility relies upon the legislature to pass laws to cover specific situations, where as personal utility is used in every day life. For instance personal utility would govern whether or not one should engage in gambling. This would be an individual decision based upon one’s own circumstances. Social utility would not ask the question of whether or not individual gambling is permissible, it would ask whether or not the State should approve of gambling houses. This is an important distinction in that with personal, utility individual choices, as long as they did not affect the community at large are permissible. However, social utility cannot promote behavior that on the balance causes more suffering than not, keeping in mind of course that this calculation must take into consideration the filture impact of such an activity. Secondly, Mill asserts that it would not only be unnecessary, but, also unreasonable to calculate the cost/benefit of each decision previous to each action that one undertakes. He believes that there is value in precedent and that for the most part in day to day matters issue are settled based on past practice. In fact he states “...as if any one were to say that it is impossible to guide our conduct by Christianity, because there is not time, on every occasion on which any thing has to be done, to read through the Old and New Testaments. The answer to this object is that there has been ample time, flatnely, the whole past duration of the human species (p. 531).” Clearly the appeal is that for certain issues past experience has settled the notion of how 74 one s the r state requ with any cou wit‘. is a cor are der enj in dis We de In—v-t b—r) one should conduct oneself. Mill even goes a bit farther when he discusses the notion of “ fundamental” principles and “subordinate” principles. He states “(W)hatever we adopt as the fimdarnental principle of morality, we require subordinate principles to apply it by; the impossibility of doing without them, being common to all systems, can afl'ord no argument against any one in particular; but gavely to argue as if no such secondary principles could be had, as if mankind had remained till now and always must remain without drawing any general conclusions fiom the experience of human life, is as high a pitch , I think as absurdity has ever reached in philosophical controversy (p. 532).” The clear implication of this is that primary principles are what the initial calculus was about and that secondary principles are derivative fi'om primary principle. For instance, the notion that all persons enjoy equal protection under the law would be considered a primary principle. A derivative or secondary principle would prohibit the courts fi'om disparate sentencing of criminals based upon racial characteristics as this would violate the primary principle. Further derivative principles are deduced from primary principles and a cost /benefit analysis is not needed since the primary principle has already been decided beforehand. Another criticism that utilitarians encounter is how units of happiness are calculated. For instance, suppose that action “A” involves several people (I 0) each of whom are ambivalent towards the action, but are in general agreement that it should be carried out. Further that the increase in units of happiness for the goup is a plus 12. However, there is one person in the goup that is very passionate in his beliefs that action “A” should not be done. If done, the decrease in his units of happiness are minus 20. The question 75 then beco ten peopl cause is come dow the most. person he almost all inespectir desirable 1 acquaintel tough kn would not capable 01 superiorin °°mPatisc to coum tl This Ofco fittest for . then becomes whether or not the goup should continue with the action when ten people would benefit and one passionate person lose? The problem of course is that the utilitarian when conducting the cost/benefit calculus must come down on the side in which the overall level of happiness is increased the most. Mill (1981) in fact does come down on the side of the passionate person he asserts that “(O)f two pleasures, if there be one to which all or almost all who have experience of both give a decided preference, irrespective of any feeling of moral obligation to prefer it, that is the more desirable pleasure. If one of the two is, by those who are competently acquainted with both, placed so far above the other that they prefer it, even though knowing it to be attended with a geater amount of discontent, and would not resigr it for any quantity of the other pleasure which their nature is capable of, we are justified in ascribing to the preferred enjoyment a superiority in quality so far outweighing quantity, as to render it, in comparison, of small account (p. 524).” Clearly then, utilitarianism is inclined to count the passionate person more so then the dispassionate or ambivalent. This of course leads to one major stumbling block for utilitarians in their quest for equality, since in the utilitarian equation, the passionate enjoy more leverage in the calculus then do those inclined to ambivalent ways. A final criticism of utilitarianism involves the notion of individual responsibility. The utilitarian is outcome driven in that what matters is not so much who caused the result, but, that the result occurred. In this sense utilitarianism treats the individual as a means rather than an end and thus the responsibility of the individual is mitigated by the societal outcome that results. Mill is not persuaded that this is wrong. In fact he states that “(T)he 76 utilitarian as an end Clearly tl the sake r develop r commrmi member. Now ‘ member ' reducing sacrifice 0n utilita: individua One coulr WOtlld be The p aDSWer ll COmmum Ottt in cm us be . Linfommz going to p widenCe ( consume Stake and l utilitarian doctrine is that happiness is desirable, and the only thing desirable, as an end, all other things being only desirable as means to that end (p. 537).” Clearly this doctrine is premised on the subordination of individual rights for the sake of community happiness. The problem with this is that one could develop many scenarios in which individual liberties are curtailed so that the community’s happiness would be increased at the expense of a particular member. Now the utilitarian response would assuredly center on the fact that if a member were harmed unjustly, the community itself would be harmed thus reducing the overall level of happiness within society. In addition, the sacrifice of an individual for the sake of the community could not be justified on utilitarian gounds since one could ever be sure that one would not be the individual sacrificed. This being the case, if one lived in perpetual fear that one could be sacrificed for the community, the overall level of happiness would be diminished due to this uncertainty. The problem with this line of thinking of course is that it still does not answer the objection that an individual could be sacrificed for the good of the community. The response offers a mitigation if an act could not be carried out in complete secrecy. Utilitarians then hope that innocent people could never be convicted of a crime without the real culprit being discovered. Unfortrmately there have been many documented cases of innocent people going to prison for crimes they did not commit as well as police planting evidence on suspects in order to secure convictions. Still, the utilitarian is constrained to agree with the notion that if the community’ s interest is at stake and the sacrifice of one innocent person is necessary providing that no 77 one (butt and provi harm caut 0f cor that the dr accomplis level of h situatioru bad acts . Utilitariar iitis mus that one I cOurse is Shown tc innocent may resu afflITnati one (but the framer) would ever know that an innocent person was flamed and providing that the overall units of happiness increase compared to the harm caused to the individual. Of course, the utilitarian response to this is that no one could be certain that the deed would go undetected and if detected the level of utility accomplished by such an act would have the opposite effect and decrease the level of happiness in the community. As such they state that hypothetical situations like this are unlikely to dissuade them since one can not be sure that bad acts will never be discovered. Of course this is true, but, then the utilitarian if believing this (which they must) would be paralyzed by inaction. This must be the case since the utilitarian bases his/her objection on the fact that one can never be sure that an evil deed will be discovered. Which of course is true, but, one can never be sure that any course of action will not be shown to be faulty and thus suffer the same consequence of framing an irmocent individual. The utilitarian would be forced to inaction since action may result in the future decrease of utility. An example of this is the affirmative action law. It was commonly thought that based upon centuries of discrimination that one class of citizens should receive preferential treatment at the expense of the class accused of mistreatment. Initially affirmative action laws were passed by the Congress of the United States and received support from the Supreme Court. Both bodies reviewed the laws and deemed them to be appropriate and in the best interest of the country. This meant of course that one segment of the population would be discriminated against so that a goup of pe0ple that had long sufl‘ered could operate on the same playing field. However, less than thirty years later aflirmative action 78 programs from it be both the wrong he utilitariar made dur calculus ‘ happines cannot cl constrain person is inIn the : Looki can be se. already b. for sociee Calculus r comm 0Ut Cl’imin progams have begun to dismantle. This is not because those that benefit fi'om it have declared that the conditions of play are now even, it is because both the Supreme Court and Congress have decided that the notion was wrong headed, that discrimination against anyone is de j ure wrong. The utilitarian would be constrained to acknowledge that either a mistake was made during it’s implementation or during it’s dismantling. Either way, the calculus was wrong at some point and decreased the overall level of happiness for society. Thus, just because a mistake could be or was made, cannot change the fact that given the right conditions utilitarians are constrained to acknowledge that at times the unjust sacrifice of an innocent person is permissible for the sake of perceived good that society receives from the sacrifice. Looking at utilitarianism in the context of differential traffic enforcement it can be seen tlmt this paradign offers several attractive features. First, as has already been stated, it’s primary concern is increasing the overall happiness for society. Further, it is not concerned with individual rights as long as the calculus remains tilted in favor of society. As such utilitarians are comfortable with treating individuals as means rather than an end. Ostensibly American society would be served by a police force that pro-actively sought out criminals and reduced the burden that they place on society. Arguably, the Supreme Court has taken a more utilitarian point of view especially with respect to pretext traffic stops. As has already been mentioned, the Court allows police oflicers to stop a person based on racial characteristics as long as there is a traffic violation to substantiate the encounter. In this instance, the Court’s ruling allows officers to stop the 79 individual involved to deterrrt Clearly, t in examir allow po character Mbma time the be that tl ibis wor Well as f impact 0 race has. Even ability K State P0 0“ 3 pre' Preterm 5 i5 Prove] Seen; antelrdm Opposed compact 1 repildlatk individual based upon goup characteristics of those most likely to be involved in criminal activity. The rationale is that an officer can use a profile to determine who he wants to stop as long as the traffic stop itself is legal. Clearly, this is a case of minimizing the individual in relation to society. But, in examining the entire issue, it can be seen that the Court did not intend to allow police officers to discriminate against individuals based upon racial characteristics, more likely the Court was merely attempting to close a loop hole in a potential criminal defense argument. Namely that each and every time the police arrested a minority based upon a traffic stop the claim would be that the person was stopped simply because they fit a specific profile. This would have done nothing but clog an already overburden court system as well as free those objectively grilty of a crime. However, the unintended impact of the Court’s ruling is that by default it allows officers to conduct race based differential traflic enforcement. Even with the Supreme Court’s ruling, the police do not have unfettered ability to only stop minorities. In fact civil litigation against the Maryland State Police has in effect limited the ability of police to stop a person solely on a pretext stop. As has been discussed, several courts have posited that pretext stop albeit legal can still subject the departments to civil damages if it is proven that the stops were racially motivated. Secondly, a reading of the United States Constitution, particularly the amendments, will readily reveal that it is premised upon individual rights as opposed to goup rights. This is of significant importance in that it is the contract upon which our government is based. In essence, this is a formal repudiation of utilitarianism in the American context. In fact to bolster this 80 federalist democrat writes of SO as not organizer to a majo c0mmon Citizens, l 1961; p, t factions [ the effect Madis factions_ assertion one needs to look no farther than the Federalist Papers first published in 1787. In Federalist 10, James Madison urnder the pseudonym “Publius” published arguably one of the most important essays in defense of a federalist style government. In it Madison Specifically argues against a pure democratic form of government in favor of a representative one. Madison writes of factions that whether in the minority or majority must be controlled so as not to ride roughshod over the riglnts of other factions that may not be so orgarnized. For him a faction is “...a number of citizens, whether amournting to a majority or minority of the whole, who are united or actuated by some common interest or passion, or of interest, adverse to the rights of other citizens, or to the permanent aggegate interests of the commurnity (Madison: 1961; p. 78).” He felt that there were only two ways in which to deal with factions majorities (or minorities). First remove the causes or, second control the effects of the factions. Madison felt that there were only two ways to remove the causes of factions. The first was to have a monolithic society in which everyone would basically agree on the basic principles. He realized that this was impractical. This is somewhat interesting when one considers that 19th century United States was relatively homogenous and if it could not be accomplished during it’ s infancy, it could probably never be accomplished. The second way to remove the causes of factions was to reduce individual liberty. Botln of these were unacceptable to our fourndirng fathers, so they chose to try to control the efi‘ects of factions. It is in this light that representative a bicameral democracy was formed. In fact, Madison and the other founding fathers were so fearful of a factions majority subverting the fledgling union that they 81 delibera those of majority majorit) society, of the C popular passiorn secure tl faction. The l individu knew tln majority happenj] be subje majority g0l’ermr a mediu] We inte- 16351 like Since elltense,» p ”bin e: be, Cow deliberately built safeguards irnto the system to protect individual rights above those of the goup. Madison writes “(I)f a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. ...it may convulse the society, but it will be unable to execute and mask its violence under the fornn of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passions or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction... (Madison: 1961; p.80).” The general point being is that the fi'arners of our country decided that individual rights and freedoms were more important than goup desires. They knew that once a goup obtained power that with a simple calculus of majority rule tyranny would not be far behind. In fact the fear of this happening was of geat concern, not so much that the framers felt they would be subjected to tyranny themselves since at the time they were the in the majority, but, for finture generations. Madison felt that the republican form of government was the best to ensure individual freedom. He wrote “...tlnrough a medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations (p. 82).” Since utilitarianism requires the maximization of goup happiness at the expense of the individual, it appears to be in direct contradiction with the principles that the United States was fournded upon. Although there lave been court decisions that have limited the scope of irndividual rights there are 82 still print such prir mistaker Principle its stron; limited l enforcer that vall Kantian Kant universe meant b legudle ibiance this was lien all dea “Oi inns corner 5 milieu: mainlait is Predjc still principles that are sacrosanct within the criminal justice system. One such principle roughly stated is that it is better for ten guilty people to be mistakenly set free then it is to mistakenly imprison one innocent person. Principles like this seemingly would not comport with the notion of utility and its strong goup emphasis. As such, utilitarianism although appealing on a limited basis, does not seem to be a reasonable paradign under which law enforcement oflicials should operate. This is especially so in an environment that values individuality. Kantian Ethics Kantian theory is predicated on the notion that there are things in our universe that can be said to be urniversally prescribed or proscribed. What is meant by this is that there are certain acts or actions that are riglnt or wrong regardless of what positive law or nornns within the culture decree. For instance, Kant believed that truth telling was one such principle. He felt that this was unniversal in that it was prescribed for everyone since if one could lie then all could lie. This would break down the fabric of society in that no one could ever trust another if lying was permissible. Without trust society could not furnction with any type of stability. In fact, it can be said that trust is a corner stone in any long lasting society. It can be said then for a Kantian, universal prescribed behavior is not simply a luxury but a necessity for a well maintained society. In essence (although somewhat of an over simplification), Kantian theory is predicated on the notion that there is a contract between society and the individual. The contract places both conditions and responsibilities on 83 society and the individual. The former is constrained to treat the individual as an end in and of himself; while the latter must adhere to certain precepts, or put somewhat differently, categorical imperatives. What this all means of course is that there are certairn duties and obligations that are required of each. In other words, a categorical imperative is nothing more than a principle of conduct which Kant believed applied to all people due to their “name as a free and rational beirng (Rawls: 1971; p. 253).” Of particular interest is the notion that these principles are applied to rational beings. The implication of course is that these principles are the result of a rational choice. The problem of course is determining what principles are to be followed especially when proving objective principles is beyond what is krnown to be possible. In fact Kant asserts that “...the objective reality of these concepts (viz., that they are not mere chimeras) and also the truth of falsity of metaphysical assertions cannot be discovered or confirmed by any experience (Kant: 1977a; p. 69).” The question then becomes what prirnciples of conduct ought to be followed? Kant (1977b) believed that for an action to have moral worth, it must be done fi'om a sense of duty. For instance, Kant felt it was a duty to “maintain one’s life (1977b; p. 177)” however he felt that the maxim as applied to most people is empty of moral worth in most cases because although people preserve their lives “as duo) requires (p. 177), ” they do not do so “because duty requires (p. 177). ” On the other hand, Kant felt that the person who albeit despondent and willing to take his own life but does not fiom the notion of duty has exhibited moral worth. Clearly, for Kant simply adhering to a principle does not give it moral worth, it must have intrinsic 84 value. Secc complet- have to worth ( attemp‘ withou stands Spring. by son volitiOi Princip Thi law (k W501 value. Secondly, the moral worth of the principle is not derived from the completion of a specific action, it is fiom the maxim itself. The act does not have to be completed, however it must be done voluntarily. For Kant, the worth of an action is not affected by its completion, but by its legitimate attempt. He states “(I)t cannot lie anywhere but in the principle of the will without regard to the ends which can be attained by the action. For the will stands between it’s a priori principle, which is formal, and it’s a posteriori spring, which is material, as between two roads, and as it must be determined by something, it follows that it must be determined by the formal principle of volition when an action is done from duty, in which case every material principle has been withdrawn fi‘om it (Kant: 1977b; p. 179)." Third, Kant views duty as “...the necessity of acting fiom respect for the law (Karnt: 1977b; p. 179).” In other words, duty is done irrespective of personal inclinations. In fact, duty is done despite these inclinations. When duty involves a choice between personal inclinations and to obedience of law, duty requires that the former does not enter into the calculus and the latter is scrupulously obeyed. It is from this conception of duty that Kant formulates the categorical imperative which states “I am never to act otherwise than so that I could also will that my maxim should become a universal law (Kant: 1977b; p. 180).” To test this principle Kant poses the hypothetical situation in which one is to imagine that one is int distress and the only way out is to lie. In his hypothetical the person asks another to lend money based on the promise of repayment, however circumstances as they are, the borrower has no irntention 85 of r 0rd 8Ch' nee Elli 21135? E u of repaying the loan. The question then is: Is it permissible to tell a lie in order to get out of a bad situation? Kant clearly does not think so although he acknowledges that one may have alleviated the situation (in which money needed to be borrowed), he has failed to fulfill his duty to society. Kant answers the question with a question: “Should I be content that my maxim (to extricate myself from difliculty by a false promise) should hold good as a urniversal law, for myself as well as for others; and should I be able to say to myself, “(E)veryone may make a deceitful promise when he finds himselfin a difficulty from which he cannot otherwise extricate himself (Kant: 1977b; p. 180)?” Basically he is saying that in this situation what is personally prudent (telling the lie) is socially imprudent. Because by tellinng the lie, one cannot universalize this behavior. That is, one cannot make the argument that lying is permissible in situations which one finds to be personally prudent, since this would lead to consequences in which no one could trust another. Therefore according to Kant, any maxinn tint permitted lying would collapse urnder its own weight. Indeed, Karnt’ s theory does not require anyone to be adroit irn the matters of philosophy to discern what is morally good, one need only ask himself whether or not the maxim one is operating urnder can be universalized. If it cannot, Kant states that “...it must be rejected, and that not because of a disadvantage accruing from it to myself or even to others, but because it cannot enter as a principle into a possible universal legislation, and reason extorts from me immediate respect for such legislation. I do not indeed as yet discern on what this respect is based (this the philosopher may inquire), but at least I understand this-that it is an estimation of the worth which outweighs 86 all wr acting whicl being l977l imper the pr as an a me: comr categ actua they 1“ fat mOra all worth of what is recommended by inclination, and that the necessity of acting fiom pure respect for the practical law is what constitutes duty to which every other motive must give place because it is the condition of a will being good in itselfi and the worth of such a will is above everything...(Kant: 1977b; pp. ISO-181).” Clearly he is positing that following the categorical imperative is necessary for ethical behavior. By adhering to it one enhances the prospect that one shall never treat another merely as a means, but always as an end. This in turn increases one’s own prospects of not being treated as a means to an end, but as an end in oneself. Kant argues this very point when he discusses the notion of imperative commands. He classifies imperatives as either hypothetically or categorically. The former refers to things that are good due to a possible or actual purpose. The latter refers to things that are good in and of themselves they declare “...an action to be necessary in itself without reference to any purpose, that is without other end, is valid as an apodictic (practical) principle (Kant: 1977b: p. 182).” What this means of course is that categorical imperatives express necessary truths that are absolutely certairn. Where as hypothetical imperatives look at an action myopically in terms of an action being good only as a means to something else. Now for Kant being rational is what separates man fiom the lower ordered creatures. In fact, he argues that rationality is a condition that is unique to man and it is what makes man distinctive from the other creatures of the world. It is this rationality that allows man to discover principles of morality. In fact he believes that rationality is the key to discerning principles of morality. In the past he felt that the discovery of these principles failed in 87 part because man believed that he was bound to duty by laws but did not recognize the fact that man was the author of these laws. This meant that man looked at hirnselfas a subject of law not as an actor with responsibility for its consequences. In other words the duty was to follow the law simply because it was the law, not to follow the law because it had some intrinsic worth. In this sense man did not follow a moral command, but simply obeyed a system of laws due further one’ s own parochial vantage. Kant describes the former concept as autonomy of will and the latter concept as heteronomy of will. Kant felt that autonomy of will was the supreme principle of morality and that heteronomy was its antithesis. Kant describes the prinnciple of autonomy of will as “(A)lways so to choose that the same volition shall comprehend the maxims of our choice as a urniversal law...that the principle of autonomy in question is the sole prinnciple of morals can be readily shown by mere analysis of the conceptions of morality. For by this analysis we find its principle must be a categorical imperative, and that what this commands is neither more nor less than this very autonomy (Kantzl977b; p. 193).” Of course this means that the individual must be self regulating in the sphere of morals. That is, the person must not simply accept the principle due to some inclination, but because it is intrinsically right. Heteronomy of will on the other hand is nothing more than the uncritical acceptance of a rule believing that one does not have control over moral development, further it is the acceptance of the hypothetical imperative. It is merely acquiescing to one’ s particular inclinations. In this sense heteronomy treats duty as a means to some other end rather than an end in itself. For 88 for 1 0rd kl SOC mc ea: en instance promoting truth telling in an instance for pecuniary gain rather than for the fact that truth telling is necessary for the maintenance of a well ordered society is an heteronomous act. It is through the autonomy of will that man evolves and is able to enter the “kingdom of ends.” The kingdom of ends is merely Kant’ s terminology for a society comprised of rational beings sharing a system of common laws. In this society people act on principles through notions of rationality, duty and, morality. He felt that all rational beings in the kingdom of ends must treat each other “never merely as means, but in every case at the same time as ends in themselves (Kant: 1977b; p. 191).” Importantly, Kant believed that in the kingdom of ends each person potentially has the capacity to act both as a member and a sovereign. In the capacity of member, he must abide by the imperatives and laws; while as a sovereign he must be able to promulgate laws. However, he did not believe it necessary that each person serve as sovereign. Kant was attempting to mitigate the power that sovereigns enjoyed and as such he asserted that there were limits on their abilities to promulgate unjust rules. Kant believed that morality is what makes the kingdom of ends possible. He felt that “legislation” (categorical imperatives) exists in every rational being. The means that each person in the kingdom of ends must possess an autonomous will. The autonomous will can never act contrary to a universal law and remain autonomous. In this sense the will is duty bound to follow universal maxims as well as objective principles. If not, Kant did not believe that it could be conceived as an end in itself, hence it could not be considered autonomous. 89 uh “a Putting Kantian ethics in the context of differential traffic enforcement in the United States seems rather straight forward. Since in this country individual freedoms and choices are valued and considered prima facie irrefirtable. For instance, several amendments (1“, 2“d , 4‘“, 5‘”, 6‘”, 7‘“, 8‘“, 9“, 10th 13‘“, 14‘“, 15“, 19‘“, 26‘“) to the United States Constitution guarantee a plethora of rights to all individuals. These are granted irrespective of their impact upon society. As an example, the 4th amendment guarantees protection fi'om unreasonable search and seizme by the government. If an agent of the government believes that a given person committed a crime (murder, robbery, burglary, etc.) and illegally gains entry into that person’ s residence; finds evidence that establishes guilt, that evidence is not admissible in court because the search was conducted in violation of the 4th amendment. Clearly the intent of these provisions is to protect the individual fiom a potentially unscrupulous government with significant resources. In Kantian terms, the agent of the government has treated the person as merely a means to an end rather than an end in and of himself. This is because the officer was more interested in solving the crime rather than safe- guarding the rights of the individual. Remembering the categorical imperative “act only on the maxim where one can will that the action itself become a universal law” it is easy to see that the officer treated the person as a means rather than an end. Especially since the results of the oficers action would dictate that the maxim read as follows: Violating a persons rights is acceptable as long as an officer believes that the person may have committed a crime. The results of such a maxim would in effect negate the 4m amendment. Since it could not guarantee tmwarranted searches by police 90 In h, oflicers. Clearly if police were allow to fi'eely interpret the Constitution and apply maxims because of a perceived societal interest, then the Constitution would become meaningless. As such we can see that the United States operates under a type of Kantian system. The problem of course is that law enforcement ofiicers rarely operate under conditions that are ideal and often do not consider whether or not their actions comport with maxirns. Police officer simply respond to situations and often ad lib as they go. When considering differential trafiic enforcement, officers ostensibly use the rationale that proportionately more Afiican Americans are in prison than non-Afiican Americans, therefore Afiican Americans are responsible for a disproportionate percentage of crime. The truth or falsity of such an allegation is of little importance for a Kantian, in that the issue is whether or not a maxim could be developed to treat those subjected to differential traffic enforcement in a way that would treat them as an end in themselves rather merely as a means. In this case the maxim would have to be stated something like this: It is permissible to conduct a legal traffic stop on a person simply because of racial characteristics. Remembering of course that this maxim must be universalizedto be of autonomous value, otherwise it would be heteronomous and as such would look after one’ s parochial interests. The results of this maxim is that it would be permissible for police officers to stop people simply because of racial characteristics. If this were the case, this would mean that officers would be treating people solely based on racial characteristics in order to accomplish a societal goal: the reduction of criminal activity. This necessarily means that the officers would not be treating those subjected to differential traffic 91 enfi otfi duf. col on: lav in As dif Wa 6X] me put Pro at: enforcement as an end in themselves. In Kantian terms this means that these officials would be acting irnmorally in that they would be circumventing their duty to universalize treatment of individuals and instead treat them as a collective group. Further, the danger of promoting a maxim such as this is that people presently in the majority, may suffer the same treatment as minorities if there numbers relative to the rest of the population were to decrease, they could easily find themselves in the minority. Then this disparate treatment may be thrust upon those who formulated the maxim. A question that arises is: What happens when two ends compete, requiring one to be treated as merely a means and the other as an end in himself? In law enforcement this question is often a reality. Very often conrpeting interests arise that cause consternation. For instance, public interest and the rights of the individual often must be weighed in developing public policy. As has already been discussed, when the Supreme Court sanctioned difi'erential traffic enforcement the argument center on the notion of whether it was fair to handicap police officers in combating criminal activity at the expense of equality. The Court did address the notion of equal treatment under the law, it said that members of the majority could be targeted as well as members of the minority. However the implication is that the Court has said that it is alright for the law enforcement officers to treat all persons as a means rather than an end in of themselves. In this case the Court sided with public interest versus individual rights. Kant addresses this notion. In fact he would not disagree with this procedure of ranking maxims, since in his kingdom of ends he recognizes that at times maxinrs conflict with each other. When they do, he posits that a 92 maxim may be replaced by another maxim as long as it is of equal value. The problem of course is when value cannot be placed on a maxim. In these cases, Kant would argue “that which constitutes the condition under which alone anything can be an end in itself, this has not merely a relative worth, that is, value, but an intrinsic worth, that is, dignity (Kant: 1977b; p. 192).” What this means is that there are certain maxims that cannot be compromised, although he does not state which ones, it is fair to assume that those involving human rights and equality under the law would fit the criteria. This must be the case since all rational beings must consider the issuance of maxims in the context of universalization. In other words, once the maxim is promulgated it must be applicable for all people, not simply those that are in a disadvantaged position. Since if we simply considered what was in the best interest of society, rather than the individual, this would be little more than a subterfuge for a utilitarian philosophy. The question of whether or not a Kantian paradigm is practical for police officers to operate under given the complexities of their job in a multi-ethnic environment seems to be nothing more than a tautology. Kantian ethics require the urriversalization of treatment for all people, therefore the police ought to treat all people the same, this reasoning is circular. That is not to say that all people ought not be treated the same, but it minimizes the vagaries of law enforcement. In fact, Kantian ethics is most appealing when considered in light of utilitarianism in that it treats the individual as sacrosanct. In a democratic society this is of the utmost importance, since if liberty is allowed to be sacrificed in one instance, then, it could be reduced in other instances. The problem of course with the Kantian paradigm is that it is too rigid in 93 its application. If police officers were required to universalize every action, treating everyone the same, this would lead to inaction. This must be the case since it would be impossible to treat all people in a like fashion, especially considering the many diverse personalities that officers encounter each day. This is not to say that police oflicers should be allowed to simply violate the Constitutional rights of the citizenry, to the contrary, they should scrupulously uphold its precepts. However, each and every decision should be considered in the context of a fluid society with needs that are ever changing. To this end the notion of categorical imperatives are somewhat antiquated in that what was once considered right, may in fact be misguided. For instance, Kant’s maxim that one ought not tell a lie is seemingly reasonable. However through reflective reasoning one can imagine situations in which telling a lie would save a life. Would it be unreasonable then to lie? Imagine that a person knows that another is going to kill his wife for an infidelity, should this person who knows the location of the would be murderers wife divulge her location when asked? The Kantian may respond by saying that yes and then develop a maxim like this: In cases where another is going to be killed it is alright to lie. Very well, now imagine that this person knows that another did comnrit a murder of which he is on trial for and if found guilty, the murderer would receive the death penalty. This person also knows that if he provides an alibi for the murderer then this person would not be convicted or would at the most receive a prison term (how this person knows this is of little importance). According to the maxim, the person ought to lie in court after swearing to tell the truth. 94 Of course the Kantian would then wish to modify his maxim now to exclude lying in cases dealing with murderers. So the maxim would now read something like this: In cases where another is going to be unjustly killed it is alright to lie in order to protect that person. However, assume that one is the brother of the murderer and that one does not think it just that his brother be executed. Then this person lies for his brother feeling that he is justified in saving a life that will be unjustly taken. The problem of course is that once there are cracks in these maxims, they quickly become fodder for anyone wishing to justify anything. As such Kantian ethics suffer fiom the fact that they cannot be empirically proven or deduced. This although not fatal in the theoretical sense is somewhat terminal in the practical sense, since if principles cannot be deduced, only infererrtially so, officers can not be expected to always make the nexus between what is right for the individual and what is right for society. In essence, officers are forced to precariously balance societal and individual interests. However, it should be realized that Kantian ethics does provide a fiamework for officers to follow. It provides general rules of conduct that form a basis for the treatment of the citizenry. In this way, it is very helpfirl, but its rigidity is its downfall. This leads directly to the next ethical theory, reflective equilibrium. Reflective Equilibrium Although there are many other ethical theories the purpose is not to put forth an anthology of them. It is of course to outline what is believed are the 95 major precepts under which ethical theory in the United States operates. Some of these have already been mentioned, these include notions of justice and fairness. The problem is that both justice and fairness seem to be relatively elusive concepts depending upon which ethical theory one subscribes with. In the American context, justice is seemingly predicated on the treatment of the individual. However there is always the notion of the state and its predominance over the individual given suficient mitigating circumstances. For both Kantian and utilitarians this is exactly the problem, whether individual interests should predominate over societal interests or vice versa. To this end Rawls (1971) offers somewhat of a hybrid theory which he terms reflective equilibrium. In essence his solution is a melding of both theories. Rawls attempts to reconcile both individual and societal interests with his sirnile of justice as fairness. He has delineated two principles of justice which he states as follows: “First Principle - Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all. Second Principle - Social and economic inequalities are to be an'anged so that both: (a) to the greatest benefit of the least advantaged, consistent with the just savings principle, and (b) attached to oflices and positions open to all under conditions of fair equality of opportunity (p. 302).” Importantly, for Rawls these principles are ranked by order so that liberty 96 is valued first and foremost. Rawls like Kant believes that the only way that liberty can be restricted is for the sake of another liberty. He states that it can only be restricted providing that: “(a) a less extensive liberty must strengthen the total system of liberty shared by all; (b) a less than equal liberty must be acceptable to those with the lesser liberty (p. 302).” As can be seen reflective equilibrium requires that society honor the notion of individual liberty, firrther, that it is prior to social good. Rawls second principle of justice posits that fair opportunity is to be given priority over efficiency and welfare. That if there is to be inequality of opportunity, it can be so only if it “...enhances the opportunity of those with the lesser opportunity...(p. 303).” This is important in that Rawls is outlining ways in which difl‘erential treatment of individuals would be allowable in society. However, differential treatment is not allowable at the expense of liberty, only at the expense of social advantages. In fact Rawls makes this clear when he combines both of these principles into what he calls the general conception, he states that this is: “All social primary goods - liberty and opportunity, income and wealth, and the bases of self-respect — are to be distributed equally unless an unequal distribution of any or all of these goods is to the advantage of the least favored (p. 303).” What is important to note here is that Rawls is not making an argument for individual treatment, but for the application of these principles in what he calls the basic structure. In other words he is setting up what he believes are prima facie principles, indeed, basic principles for society. Interestingly enough, Rawls suggests 97 that these principles are inrrnutable. He posits that “...the original agreement is final and made in perpetuity, there is no second chance. ...Thus the parties must weigh with care whether they will be able to stick by their commitment in all circumstances (p. 176).” The question then is how does Rawls determine which sets of liberties are to be meted out to individuals within a given society? Rawls in the spirit of social contract theorist, does this through a hypothetical state which he calls the “original position.” In the original position there are certain constraints placed upon individuals. That is Rawls keeps each actor in a state of “unknowing.” This state simply means that each person is unaware of his position in life relative to any decision that is made. Rawls calls this the “veil of ignorance.” Simply put, in the veil of ignorance, people “...do not know how the various alternatives will affect their own particular case and they are obliged to evaluate principles solely on the basis of general considerations (p. 136- 137).” He assumes that no one knows his place in society. This means that the actor in the original position under the veil of ignorance is unaware of his class position or social status, “...nor does he know his fortune in the distribution of natural assets and abilities, his intelligence and strength, and the like. Nor does anyone know his conception of the good, the particulars of his rational plan of life, or even the special featm‘es of his psychology... (p. 137).” These are important constraints for Rawls as he believes that this will produce a fair outcome when choices are made by rational people in the original position. For Rawls this means that the person would want more primary social 98 good rather than less, firrther, that the rational person would tend to maximize his position relative to any possible loss. Rawls refers to this as the “maximin” position. This should be viewed in context of Rawls and his ties to game theory. What he is suggesting here is that people in the original position line up all the possible outcomes and then choose the result that provides the most gain while limiting losses. He believes that it is necessary that people in the original position act in such a manner since they do not have any knowledge of their true station in life. In this way Rawls believes that man enhances his opportunity to obtain the best possible outcome. He acknowledges that once principles are chosen some may be unhappy when the veil is lifted, however, he believes that if they were chosen rationally, the person must simply accept the proverbial roll of the die. lrnportantly Rawls sees the veil of ignorance as a way to provide the best chance at social equality but he believes that it provides absolute political equality. In this sense he is arguing the fact that all pe0ple enjoy certain liberties and that these are not subject to the caprice of any social structure. Accordingly, the primary principle of justice is the principle of liberty. Rawls recognized that there are times in which conflict within a society would erupt with respect to liberties. Rawls developed a mechanism to deal with this conflict. First, he felt that when principles are chosen they should be general in nature. This is because no one knows exactly one’s position in society. Thus, liberties can not be tailored to the particular individual. This insures that individuals can not stack the liberties in favor of a particular group. Second, the application of the principles must be universal. That is Rawls 99 u in the Kantian manner assumes that principles can only be chosen with the assrmrption of full compliance. In other words he is ruling out principles that if followed by everyone would be contradictory. Here he is essentially referring to instances like the maxim that would allow one to tell a lie for one’ s parochial interests. This has the effect of treating all persons as an end in themselves and minimizes the possibility of treating them merely as a means. Third, he assumes that all principles chosen are known to all. This must be true with respect to the original position since here all people are given the opportturity to have input into the formulation of laws. Rawls felt that this was also desirable in that the awareness of principles would firrther facilitate “stability and social cooperation (p. 133).” More importantly the publicity principle allows each party to evaluate general principles in context of the impact that they have on the social and moral life. Once again at issue here is the notion of liberty placed in the political context. The publicity principle insures that society will not pass a law under the cloak of darkness that would infringe upon personal liberties. Further if such a law were passed it would be done so with full public scrutiny. Fourth, he argues that when liberties do collide that the highest order liberty should prevail. This is done so “.. .to avoid the appeal to force and cunning that the principles of right and justice are accepted (p. 134).” This is essential to the conception of justice since to do otherwise would be nothing less that a Hegalian style argument of “might makes right.” Clearly in societies that purport to value civil rights the imposition of laws by force and cunning is unacceptable. 100 Rawls does offer some insight into what he believes are the basic liberties. He states that “(T)he basic liberties of citizens are, roughly speaking, political liberty (the right to vote and to be eligible for public office) together with fieedom of speech and assembly; liberty of conscience and fi'eedom of thought; fieedom of the person along with the right to hold (personal) property; fieedom fiom arbitrary arrest and seizure as defined by the concept of law italics added (p.61).” The point of course is that Rawls is making the argument that some liberties are of greater value than others. That if it is necessary to circumvent one set of liberties for another, the one affording the greatest range of liberty ought to prevail over the one offering the least amount of liberty. The last condition is that of finality. Again it is important to remember that finality occurs in the original position where no one knows his own particular circumstances. In this way the ratiorml person makes a choice as to which sets of rules ought to be followed. Doing so in a way tlurt maximizes positive outcomes while minimizing negative results. It is also important to recognize that Rawls believes that all people in the original position would necessarily choose the same set of rules, so in this case there would be unanimous agreement. This is the case since he feels that everyone, being rational, would opt to maximize the gains while insuring the least amount of losses, thus using the maximin rule, each choice would be serially ordered and every rational person, which in the original position everyone is assumed to be, would by definition make the same choice. With respect to reflective equilibrium, Rawls felt that once the general principles are settled, they are settled for all time. However he recognized 101 that societies are fluid and that fi'om time to time issues would arise that may not have been initially dealt with in the original position. He did not view this as problematic, he felt that people had the capacity to put themselves in the original position. Of course this does not mean that it is necessary for all members of society to place themselves in this state, and then arrive at the same conclusion vis-a-vis the maximin formula. What is meant is that people place themselves in this position in order to create new laws. The question then is how is this possible? Clearly what he is asserting is that people charged with legislating and adjudicating laws place themselves in the original position when deciding outcomes. In contemporary United States, this burden falls upon the elected and judicial officials. In this sense Rawls is asserting that jurist and legislators act as if oblivious to their own stations in life when crafting and adjudicating laws. Having outlined reflective equilibrium it can now be applied to the case of differential traffic enforcement. As can be seen, reflective equilibrium requires that society’s first order of business is to secure liberty for all. Secondly it is to arrange social goods to benefit the least advantaged. The implication is that discrimination is acceptable with respect to the distribution of goods, but, that it is never acceptable as applied to liberties. It may seem counter-intuitive that discrimination in any form would be acceptable, but one should remember that as applied to social goods discrimination is a necessary result of liberty. Because Rawls himself would be constrained to admit that owning property is a form of liberty when applied to rights and freedoms. This means that person “A” who wills his lot to person “B” is in effect discriminating, or at least differentiating against 102 person “C” whom he leaves nothing. Here “B” receives the benefit of “A’s” discriminating. To deny “A” the right to discriminate against “C” would deprive “A” of a right to his property and dispose of it as he sees fit. In fact to deny anyone the right to dispose of property as he sees fit would diminish the notion of rights as Rawls conceives of them in his two principles. This must be the case since the first principle of Rawls is his most important in that it secures liberty. As has already been mentioned, liberty is prior to social considerations. Thus social institutions must conform to the liberty principle and not vice versa. Therefore discrimination based on the distribution of social goods is permissible because otherwise the right to property (or to dispose of property as one wishes) would hold no tangible value. The right to property would be meaningless and as such would not secure a right to anything, it would be self-contradictory. It is seen discrimination is not prima facie wrong with respect to the distribution of goods, however it is wrong with respect to liberty. Rawls posits that in the original position, discrimination would not occur since they would not have any motive to make up pointless distinctions considering that their own station is tmknown. For instance in the original position, it would not make sense for anyone to “...urge that special privileges be given to those exactly six feet tall or born on a sunny day. Nor would anyone put forward the principle that basic rights should depend on the color of one’ 3 skin or the texture of one’s hair (p. 149).” He argues that people in the original position would act rationally and as such this would guarantee that ethical principles would be chosen. This of come would eliminate any possibility of racist principles being chosen since they would be both unjust and irrational. 103 This is directly on point with the notion of differential trafiic enforcement. Here what is required is that people in the original position must actively choose to select a segment of the population for differential treatment. Remember of course that in the original position no one knows his particular race or gender, however what is known is the general racial composition of society. Also known are other relative factors such as overall poverty levels and the general distribution of goods as well as the social and legal structure as reflective equilibrium assumes knowledge of all but one’s personal position and the effects of rules directly on oneself. This would mean that in contemporary United States one would have approximately a one out of eight chance of being an Afiican American and nearly four chances out often of being a minority of any kind. Looking at differential traffic enforcement from this perspective it would hardly seem reasonable to permit the practice based on the considerable probability of one’s self being a minority. Since rules that are made in the original position are final, one cannot simply assert that differential treatment based on race is acceptable and then when the veil of ignorance is lifted one cannot then maintain that the rule is unfair upon discovering that one is a member of a minority group. Given that four chances out of ten, one could end up as a minority and be discriminated against, the likelihood of adopting such a rule would be nil. However imagine since all aspects of society are known one would also know the rates of drug dealers amongst the particular races. Further imagine that the race of green peOple were all known to be drug dealers and that green people comprised .0001% of the population. Would it then be wrong to 104 institute a policy of differential trafiic enforcement against green people? Arguably no. In fact reflective equilibrium requires that the criminal impact of actions on society be weighed as a factor in deciding restrictions on liberty. Remember of course that liberty cannot be limited unless there is a liberty of equal or greater value competing with the liberty in question. In this case, the calculus centers on the notion of liberty of the masses to conduct everyday business without fear of being victimized by the crinrinal element. Remember it is known that green people comprise 1/10,000"l of the population. Rational people in the original position would then compute the odds and determine whether or not the restriction of liberty on such a small segment of the population would be justified in comparison with the benefit received, i.e., elimination of the drug dealing population. Having made the decision, the result is final and simply because after the veil of ignorance is lifted and one finds himself a green person, necessarily means that one must accept the consequences of differential traffic enforcement. On the other hand, imagine that the race of green people once again comprised 1/10,000th of the population and that all drug dealers were green people (note that this is different than all green people being drug dealers). However in this instance only one out of ten green people are drug dealers. The question at hand is whether or not it would be permissible to allow differential traffic enforcement in this case. Here the calculus is somewhat difierem in that only lO-percent of green people are involved in criminal activity. To allow differential traffic enforcement activities on the basis of a small minority’ s (relative to the whole minority) participation in illicit activities would have the impact of treating all green people as a means to an 105 end, not merely as an end in themselves. This would be in direct violation to the principles in the conception of right. In that one could not rightfirlly universalize a principle that allowed all green people, especially the innocent, to be stopped by police officers. Additionally, this principle could not be formulated in a general way. That is, the principle would necessarily refer to a racial characteristic. Clearly this is wrong since to discriminate on the basis of race is irrational and, in the original position, rationality is the presumed state of being. In this case reflective equilibrium demands that green people be treated like all others and hence, not be subject to differential traffic enforcement. In the former example Rawls employs a decidedly utilitarian model in that those in the original position act to maximize benefit for the greatest number of people. However, in the earlier calculus involving a minority that comprised 40% of the population Rawls is decidedly not utilitarian. Since here the calculus centers not merely on what the majority wants, but, on the probability of being in the minority. Clearly Rawls does not want to limit the liberty prospects of a large segment of the population. In the latter example, Rawls adopts a Kantian system to arrive at the conclusion. Here, even though the populations are equivalent, the actors in the original position are constrained to treat green people in a way that respects their right to liberty. This of course is due to the circumstances in which the restriction of liberty for drug dealers (a small portion of the green population) would come at the expense of the larger segment of the green people. Reflective equilibrium does not allow this, as liberty cannot be sacrificed for expediency. 106 The point is that reflective equilibrium requires that decisions be made in context of societal goals providing that justice in the form of liberty is enhanced and fairness in the form of distribution of societal resources is accomplished in compliance with Rawls two principles. Differential traffic enforcement must then be thought of as the restriction of liberty for the purpose of reducing criminal activity. In the Rawlsian paradigm this means that people in the original position must actively choose the restriction of liberty. Of course this is antithetical to the principle of justice, as such it would be irrational. In the Rawlsian model, one of the necessary assumptions is that by definition all people in the original position are rational beings. As such, they could not choose the restriction of liberty for a segment of society merely as a precautionary measure against possible criminal activity. Interestingly enough, Rawls does not believe that reflective equilibrium applies to individuals. It is his contention that it applies to the basic structure of society. This of course is especially important to the notion of differential traffic enforcement in that it places the onus for ethical behavior on society rather than the individual. This means that in essence the notion of ethical treatment is not intrinsic to the officer, but, that it must necessarily be codified. Considering the Kantian paradigm this is a strange assertion in that seemingly officers would act ethically because of the law as oppose to acting ethically because of something within oneself. Reflective equilibrium requires that ethical choices be made in the original position and that they are based on notions of justice and fairness. This decisions dictate how the basic structures (police, courts, legislatures) in society treat the individual. In turn, 107 since the basic structures are comprised of people, they provide a road map on the ethical treatment of individuals by representatives of these structures. However this does not mean that people are not capable of ethical behavior on their own. To the contrary all rational people are able to act ethical, but outside of the original position it is not required that they do so. In fact this is precisely why there is a veil of ignorance in the original position. Since all rational beings will each try to advance their own interests, outside of the original position, without set parameters, the rational individual would try to increase his position relative to others in society. This leads to a rather startling conclusion. Namely that differential trafic enforcement or any behavior that requires ethical decision rmking ought not to be left up to the caprices of the individual oficer. This type of behavior ought to be codified so that there are specific rules in which officers must follow instead of allowing officers to formulate their own ethical paradigms in a hap hazzard fashion. In fact, taking this one step farther, reflective equilibrium requires that ethical decisions remain the sole province of the legislature. This must be the case since Rawls requires that those making legislative decision place themselves in the original position, formulate, contemplate and, implement laws governing behavior (justice and fairness) as if they were behind the veil of ignorance. In this way, individuals within society are not subject to the vagaries of eclectic law enforcement policies. This would limit police discretion with respect to differential traflic enforcement. It would place the burden and justification of these types of stops where it belongs, on the legislative and to some extent judicial bodies. 108 Now there are those that will argue that such laws do exist in that police omcers must have a trafiic violation prior to stopping any individual, that this has come as a result of thoughtfirl reflection on the part of legislators and jurists. To which must be admitted is partially true. However there are two issues, first and foremost is whether or not these rulings and laws were contemplated (reflected upon) from the standpoint of justice for the individual or fi'om a notion of broadly defined societal interest. Secondly there is the issue of whether or not a disproportionate number of minorities are selected for traffic enforcement versus their relative numbers in the general population. If this is shown to be the case, the practice of differential traflic enforcement must cease. Summary The preceding discussion has focused on the issue of ethical responsibility. Three different ethical paradigms were examined. Those were: utilitarian, Kantian and, reflective equilibrium. It was shown that the utilitarian model although appealing in certain aspects was deficient in that in a democratic society, like contemporary United States, individual fi'eedoms suffer to the benefit of the group. The problem of course is that this leads directly to a person being treated as a means to an end rather than an end in itself. Putting it somewhat differently the problem that utilitarians experience is comporting the happiness principle with individual liberty. Utilitarians are constrained to admit that in all cases societal interests must weigh greater than individual concerns. This means that it is entirely possible that an entire segment of the 109 population, albeit not a majority, could suffer discrimination if on the whole the discrimination created more happiness than unhappiness. This reduces ethics to a mere calculus: if action “A” results in 10 units of happiness and the absence of action “A” results in a decrease in 1 unit of happiness then, action “A” ought to be done. Another problem with utilitarianism is that it places the responsibility for ethical belmvior on the actor. Although arguably, this is not necessarily wrong, it does place a strong emphasis on the individual and his interpretation of the good. In the case of race based differential traffic enforcement the officer finds himself denigrating a person simply because of racial characteristics. Seemingly this is done with the motive of creating a better living environment for society as a whole. However what is conspicuously absent are the nefarious motives of some officers. For instance, an officer acting under the auspices of utilitarian motives in fact could discriminate against a person, violating his rights as a human being. Utilitarianism does not and cannot address this possibility since what is right is fluid within a given society. In other words, the concept of right is judged on a case by case basis meaning that an officer’ s motivation for conducting a stop or his treatment of individuals is unimportant as long as the general notion of utility is satisfied. The result of this is that ethical behavior in the context of utilitarianism is somewlmt unimportant when confionted with the enhancing the perceived happiness of society. This seems to be clearly misguided, additionally, it is questionable whether or not that this is in the truest sense an ethical theory or merely a form of ethical nihilism masquerading in the cloak of ethics. 110 Kantian ethics on the other hand provides several answers to the objections that result fiom utilitarianism, including an answer to the critical means/ends question. First the principle of utility is soundly rejected in favor of the categorical imperative which simply stated is that act not lest you could will that your action be universally adopted. In other words the Kantian is required to formulate maxims that are universal. If this is the case the means/ends question is resolved in favor of the individual. This requires that neither society nor its agents are allowed to treat any individual as a means to and end, rather they must always treat the person as an end in himself. To fail to do this would necessarily cause the categorical imperative to implode upon itself. It is easy to see that Kantian ethics and differential traflic enforcement are incompatible. This is the case since with respect to differential traffic enforcement the police oficer necessarily treats a group of people as a means to an end. This is so because the whole purpose of this type of enforcement is to reduce some activity (drug dealing, armed robbery, burglary or any other type of criminal enterprise) by stopping people because they fit a certain racial profile. This has the impact discriminating against a person simply because of the triviath of skin color, which is nothing more than a happenstance of birth. Clearly this activity has the effect of treating a person as a means to and end and not as an end in himself. Secondly, Kantian ethics require that the maxim of difl‘erential traffic enforcement be applied equally across the board. However, this concept is logically impossible since one cannot both at the same time espouse treating people differently and yet treat people the same. As such, the maxim with respect to differential traffic 111 enforcement implodes upon itself and thus is not allowable. A problem with Kantian ethics more so than utilitarian theory is that the onus for behavior is placed upon the individual. Which means that the person determines whether or not to act in a given situation. In the case of an rmethical police officer his actions can be judged as they comport with laws relative to the legal system; since if the ofiicer does not violate the law there is no cause for concern. However if officers do violate the law they can then be dealt with in accordance with the penalties that are set forth. Seemingly then, this is not a big concern since there are safeguards to insure punishment of offending officers and secondly, the laws in theory apply to all equally. However, in a system in which a wide range of discretion is given to officers in their treatment of the public, the ethical vulnerability of an oflicer is always at question. Simply, because bad officers can use the laws to differentially treat people on the basis of race and or gender, not to serve a societal goal but, to satisfy their own particular desires. It follows then that good omcers can also use the law to treat people of difl‘erent races and gender difl‘erentially, simply because a good oficer uses a law does not make the law itself good. The law must stand the test of the categorical imperative. If it can not, then from the Kantian perspective, it must be deficient. Kantian theory asks that society’s agents treat people as an end in themselves. However, with modern day policing this is exactly the problem. Officers are not required to treat people as individuals since the rule of law has somewhat obfuscated the line demarcating the individual and society. In this way Kantian ethics fails within the policing context. The remedy of come may seem cormter-intuitive, it is not to give the police more discretion, 112 which incidently would allow them to ignore violations, but to give them less discretion. This would mean that they would in fact move in the direction of the categorical imperative and treat all pe0p1e alike. Since if everyone was being stopped, then no one could complain that they were discriminated against. One final problem to mention with respect to Kantian ethics is the result of reducing police discretion; if discretion is reduced the law is seemingly unbending in the treatment of people. This of course in a highly fluid society makes the Kantian paradigm ever problematic. This leads to the hybrid theory of reflective equilibrium. As has been discussed reflective equilibrium applies specifically to the basic structure of society, not to particular individuals within the society. This means that it is society’s responsibility to guarantee that all people are treated in a just manner comporting with the primary principle of liberty. This is accomplished by rational people in the original position selecting principles so as to maximize gains of all people while minimizing their losses. Rawls refers to this as the maximin principle. It is important to realize that all rational people in the original position know the basic structure of society. They all know the relative poverty levels of each group of people as well as knowing the general social and political environment. This is central to the notion of reflective equilibrium in that only through knowledge can people make just rules that are fair to all. According to Rawls, liberty is the primary aim of society, given that there are sufficient resources to provide sustenance for all. He believes that liberty would be chosen by all rational persons since through it all other desires can 113 be accomplished. Thus every principle chosen in the original position must comport with the notion of liberty. The only way that a liberty can be restricted is for the sake of a liberty of equal or greater value. Essentially this means that a person’s liberty cannot be infringed upon to promote a societal value, unless of course the infiingement occurs to all people alike. In this sense reflective equilibrium is Kantian in nature, since like treatment for all people is prescribed. It is also similar in that once rules are set, they are settled in perpetuity. This is an important feature in that once the veil of ignorance is lifted and one knows his station in life, one cannot claim that the selection of rules was unfair since ostensibly everyone in the original position selected these rules as rational beings. However it is also utilitarian in that rules are adopted based on a consensus of people within the original position, keeping in mind that the rules must comport with liberty. Moreover once the basic structure of society is settled and the veil of ignorance is lifted, people are expected to abide by laws that may seem to be against their own interests, simply for the good of society. As an example, considered Rawls second principle and the distribution off goods. Here he clearly asserts that for the good of society and the notion of fairness; the distribution of resources ought to be so that the least advantaged increases his lot relative to that of the more advantaged. Differential traffic enforcement poses a problem for Rawls and reflective equilibrium in that in the original position, one would have to assume that rational beings choose to discriminate against people on the basis of race. Clearly this is an irrational position, especially when one considers that in the original position one would not know if he were a minority. In the American 114 context, this would mean that forty-percent of the time one would find himself part of the minority class. Using the maximin principle this would be unacceptable. What is appealing about reflective equilibrium is the notion that it is applied to the basic structure of society, not specifically to individuals. Of course one may posit that this is really a distinction without a difference in that individuals are the ones that develop the basic structure. This is true, however once the basic structure is settled, individuals must comport with its principles. This means that once the veil of ignorance is lifted individuals are dependent upon the settled precepts and must act accordingly. The importance of this is that in theory this reduces the amormt of differential treatment that is allowed. Which in turn ought to reduce discretion. Which ought to reduce the incidence of discriminatory practices currently allowable under the judicial and legislative rules. It is easy to place blame upon the police and criticize them for practicing differential traffic enforcement. It is easy to call into question their ethics, however, the blame (or some might argue credit) for this practice must lie with the people that have given the officers the latitude to do this, i.e., the judiciary and the legislature. To use an analogy, police oflicers simply play the hand that is dealt to them. They are charged with enforcing the law, but they do not make the law. Utilitarian and Kantian ethics place responsibility for the treatment of the people on the level of the officer, where as reflective equilibrium places the responsibility up one level, on both the judiciary and the legislature. Reflective equilibrium does not mandate that an officer know that he is acting ethical, however it does mandate that the officer act justly. 115 Chapter 4 Flint Police Department and Area Demographics Flint Police Department The Flint Police Department has approximately 325 sworn officers. Like most police departments it’s size, Flint has several divisions which include: 1) general patrol division, 2) traflic division, 3) precinct oflicers (these are also known as community policing officers), 4) support services (K-9 oflicers and tactical team, 5) detective bureau and 6) crime scene units (comprised of non- sworn personnel). The largest section of the department is the general patrol division and in 1997 it accounted for 145 of the sworn patrol officers. Not included in this total are the number of sergeants and lieutenants assigned to supervise these officers. The Flint Police Department makes a distinction between it’s three uniformed divisions, i.e., patrol bureau, traffic division and, precinct oficers. Although all of the officers can and do enforce criminal and trafic laws, they each have a specific function within the police department. Officers assigned to the patrol bureau are expected to handle emergency and non-emergency calls in their assigned districts. They are also expected to take enforcement action when they deem it necessary. These officers are given their district assignments on a daily basis. In fact they may work any part of the city. Traffic unit officers, which number approximately 25, are specifically assigned to work traffic enforcement. They are responsible for investigating 116 all accidents. In fact, if a general patrol car or a precinct car comes across an accident, they are instructed to wait for a traffic car and allow them to investigate the accident. When traffic units are not investigating accidents, they are expected to enforce traffic regulations, this includes writing of traffic citations. In short their primary function is simply traffic control. However it should be noted that these otfrcers do respond to emergency calls, just like the patrol and precinct officers, they turn the crime scene over to the appropriate tmits when they arrive. Precinct officers, of which there are approximately 62, are assigned special districts to patrol. These are generally small areas within the precinct. Once assigned to a precinct the ofiicer generally remains there for a minimum of six months. This is done so that it gives the oflicer a chance to become familiar with the community. While on duty, they are responsible for all calls in their district, both emergency and non-emergency. However, if a precinct officer is not available then a general patrol car handles the call for service. They are also allotted time to conduct problem solving activities. This ranges fi'om assisting senior citizens to the removal of blight in their area. Precinct oflicers can and do issue tickets, however, they do this almost exclusively in the area that they are assigned to work. The other divisions within the police department, although important to the running of the operation are not essential to this study. As such any explanation of these functions would be rather meaningless. Suffice it to say that they are an integral part of the police operations, but, at best, tangentially related to this issue. 117 Rationale for General Patrol Out of the three patrol divisions, traffic, precinct and, general patrol, only one was selected for inclusion in the study. That division was general patrol. The precinct division was not included for several reasons. First and of primary importance was the fact that unlike general patrol oficers, precinct officers were assigned to specific districts. These officers were not allowed to leave their assignments to conduct traffic stops in other parts of the City. This meant tlmt if an officer was assigned to the north end of the City, an area which is almost exclusively low income black, it would stand to reason that most of their traffic contacts would have to be Afiican Americans. Conversely, officers assigned to the east side of the City primarily deal with low income whites. Of course the implication is that officers assigned to a predominantly black area or predominantly white area are mainly stopping the people in their area. As such, this would have little impact on the subject of differential traffic enforcement since if an officer’s traffic stops are ninety percent white in a white area, this would not mean that an officer is necessarily discriminating against white people. This of course would hold true if the if the stops and population were ninety percent black. Secondly, precinct officers primary responsibility is to act as problem solving agents within their districts. In other words, they are expected to have more interaction with the commmrity on a continual basis than are the other two patrol divisions. This means that precinct officers have less time for other enforcement activities. The trafic division was not included because of the nattu'e of their 118 assignment, that is, strict traffrc enforcement. According to a former member and supervisor in this unit, traffic enforcement contacts were the driving force of their unit. That is, this unit was and is driven quantitatively. Officers assigned to this division are numbers oriented, traffic stops and citations are what keep officers in their assignments. If these officers do not produce, they are not long for the traffic division. The inference in this philosophy is that stops in this section are driven by statistics. The more stops, the better the officer looks to his superiors. Thus given this paradigm, i.e., the stop itself being important, it was felt that this group of officers by default placed more emphasis on the violation than on the violator. This left the general patrol section. This group does not have the pressures associated with the other two sections. They are not driven by traffic numbers (stops) nor are they subject to pressure fiorn the community (at least to a lesser extent than precinct officers). As such it was felt that the motivations of officers not assigned to any special detail would be relevant in determining if there is a racial motivation in the selection of traffic offenders on the part of police officers. Racial/Gender Makeup of Patrol Division The proverbial backbone of the Flint Police Department much like that of other law enforcement agencies is the patrol division. It is the largest single division in the organization. This however is not unusual since patrol divisions have historically been the backbone of police organizations. The entire patrol division is made up of 233 sworn officers (this total does not 119 include sergeants, lieutenants or, captains assigned to manage the oflicers). According to the Flint Police Department Personnel Listing (1997), the patrol bureau is comprised of 39% black officers. Out of this percentage, 31% are male and 8% are female. White officers, again both male and female comprised 61% of the patrol bureau. It should be noted that there were only a few Hispanic officers on the police force and that they were counted in the percentage of white officers. White male officers comprised 53% of the patrol division, while white women accounted for 8% of the division (see table 4.1). Table 4.1: Race/Gender Flint Police Department - Patrol N = 233 Percent Number White male 53% 123 Black male 31% 72 White female 8% 19 Black female 8% l9 Source: Flint Police Department Personnel Records, 1997. Flint City Demographic Information Flint City like many other urban areas throughout the country has a large minority population. According to the 1990 United States Census Bureau the Afiican American population comprised 47.9% of the total and the white population was slightly higher at 49.6%. When this is compared with the data fi'om 1980 United States Census Bureau it is seen that the black population increased 6.8% up from 41.7%. While on the other hand, the 120 census data shows that the white population has decreased 5.6% from 55.2%. However, the 1990 census data shows that Genesee County Michigan, which the City of Flint is located within has an Afiican American population of 19.6% compared to a white population of 78.2% (see Tables 4.2 and 4.3). Table 4.2: 1990 Race by Percentage Location City of Flint Genesee County State of Michigan Percent Percent Percent White 49.6% 78.2% 83.4% Black 47.9% 19.6% 13.9% Hispanic 2.9% 2.1% 2.2% American Indian .7% .7% .6% Asian/Pacific .5% .7% 1.1% Other 1.2% .8% .9% ‘ource: US. Census, 1990 Table 4.3: Population by Race City of Flint - Genesee County State of Michigan Number Number Number White 69,788 336,65 1 7,756,086 Black 67,485 84,257 1,291,706 Hispanic 4,014 8,877 201,596 Native American 1,045 3,132 55,368 Asian/Pacific 690 2,902 104,983 Other 4,014 3,517 201,596 Source: US. Census, 1990. These figures are important for at least two reasons. First, the political 121 landscape in Flint changed. It was in the mid 1980's when the population was shifting towards African Americans, fi'om whites, that Flint elected its first black mayor under the strong mayor form of government. This resulted in the appointment of the first black police chief in the history of the City of Flint. In other words, the population dynamics provided one nexus for the changing of political power within the City of Flint and its institutions. Second, although Flint is a city with a significant Afiican American population, the surrounding areas are decidedly white in their makeup. These areas are tightly packed around Flint. In other words, Flint is a rather congested metropolitan area where there is very little in the way of distinguishing it from the communities that are contiguous. This is important in that travel through the City of Flint is common place as people commute to the City for work and, travel to its outskirts to shop at any one of several major shopping centers. The implication of this is that although Flint is 49.6% white, its transient population probably more closely reflects that of the cormty it is located in. Arguably, this is very important in considering the raw numbers of people that are “available” for the police with respect to traffic enforcement. This fact is represented in Table 4.4. 122 Table 4.4: Percent of Population with Mobility/Disability Issues City of Flint Genesee County State of Michigan Percent /N umber Percent IN umber Percent IN umber Total, persons 71.7% 100,971 74.4% 320,374 63.7% 5924922 16 to 64 Persons 16 to 64 7.4% 7,494 4.8% 15,308 4.6% 270611 mobility/self care limitations Mobility issues 3.3% 3,340 2.3% 7,270 2.3% 136856 Selfcare limits 5.7% 5,735 3.5% 11,266 3.3% 197125 Total 65 years + 26.2% 3,765 22.9% 9,460 20.2% 212688 mobility/self care limitations Mobility issues 19.9% 2,881 17.8% 7,465 20.2% 212688 Selfcare limits 15.6% 2,254 12.5% 5,239 11.7% 123803 Total 16 + with 9.8% 11,289 6.8% 24,768 6.9% 483299 mobility/self care limitations Somce: US. Census, 1990. What is important to note in Table 4.4 is that this tends to show that over ninety percent of the population in the City of Flint and Genesee County are categorized as mobile. This is very significant, especially considering the linkage between municipalities. This should be a good indicator that the fiequency of traffic stops ought to be in favor of whites given their representation in both city and county demographics. 123 With respect to gender, according to the 1990 United States Census Bureau females in the city out numbered males by a little over six percent. The numbers for the county reflect a similar pattern (see Table 4.5). Table 4.5: Percentage Gender Types City of Flint Genesee County State of Michigan Males 46.8% 47 .9% 48.5% Females 53.2% 52.1% 51.5% Source: US. Census, 1990. Seemingly, this should indicate that the proportion of females stopped should be greater than that of males. To somewhat mitigate this claim, one could assert that males have historically been thought to be more aggressive than females. As such, this could be extrapolated into driving patterns, but, ostensibly, females should have the same general rates of stops for equipment violations, since in theory, equipment on automobiles would malfunction regardless of the gender operating the automobile. Age of the motor vehicle operator is another factor in considering differential traffic enforcement. Ostensibly, differential traffic enforcement would predict that the younger driver ought to be stopped more fiequently than the older drivers. However, of interest is the ratio of stops to age. The bulk of the population in both the city and the county is over the age of 25. This is important to note in the representation of the young in proportion to the population (see Table 4.6). 124 Table 4.6: Age Age City of Flint Genesee County State of Michigan Percent /N umber Percent /N umber Percent /N umber 4 and younger 9.5% 13,375 7.8% 33,436 7.6% 702554 5 - 17 20.9% 29,379 20.3% 87.227 18.9% 1756211 18 - 24 11.4% 16,025 10.3% 44,390 10.8% 1004527 25 - 44 31.1% 43,790 31.9% 137,491 31.9% 2980702 45 - 64 16.4% 23,094 19.5% 84,086 18.7% 1742842 65 - 74 6.2% 8,699 6.1% 26,231 7.1% 655838 75 and older 4.5% 6,401 4.1% 17,598 4.9% 452623 Median Age 29.7 years 32.0 years 32.6 years Totals 100% 140,761 100% 430,459 100% 9295297 Source: US. Census, 1990. As can be seen in Table 4.6 approximately 11.4% of the population in the City of flint is below the age of twenty-five. When the entire county is considered in the equation, these figures are somewhat lower at 10.3%. Of course this means that slightly over sixty percent of those eligible for traffic enforcement of any kind are over the age of twenty-five. One would expect that stops in the younger group might be a little higher than that of older drivers, as such the statistics may be skewed slightly because of youthful indiscretions. Summary The Flint Police Department is comprised mostly of white males (fifty- 125 three percent), although black males account for thirty-one percent of the allocated positions. When females are entered into the discretion whites account for approximately sixty-one percent of the police department where as blacks account for about thirty-nine percent. Although these figures are somewhat skewed in favor of whites, according to anonymous people within the hierarchy of the department, these numbers will balance out as ofiicers retire so to reflect the makeup of the community. According to the United States Census Bureau, in 1990 the Flint community was comprised 49.6% white and 47.9 black. This reflects somewhat of a white flight to the suburbs. However, Genesee County of which Flint is located within is predominantly white at 78 percent. Compare this to only 19.6% black. This is important, because in a transient society, which is highly mobile, with three interstate highways going into Flint, travel between Flint and the neighboring communities is common place. This is illustrated in Table 4.4 which shows that cormty wide slightly over 4.8% of those over the age of sixteen have significant limitations in their ability to travel. Ostensible, this would give a higher population of whites relative to blacks fi'om which traffic enforcement activities could be conducted upon. With respect to age and gender, Flint City and Genesee Cormty mirror each other. This is significant if it is found that a particular segment of the population is stopped more fiequently than another. For instance, the rates of stops between men and women should be roughly equal to their representation in the population. Even if one assumes that men do drive more aggressively than females, the rates of white males stopped versus black males should be relatively the same. This should also hold true for the 126 rate of white females stopped versus black females. This seems to be a safe assumption since as was discussed earlier, the rates of whites and blacks violating traffic regulations are roughly equal, each exceeding ninety percent. 127 Chapter 5 Methodology Preliminary Investigation Prior to the beginning of the investigation, during the months of May and June of 1998 several visits were made to the Flint Police Department. During these visits, the researcher met informally with some individual members of the police agency; those included, patrol lieutenants, detective lieutenants, patrol sergeants and some officers. The purpose of these meetings was to establish ground rules for the administration of the questionnaire as well as providing them with a general purpose of the study. Although supervisors were not given questionnaires, it was felt that by including them in the preliminary stages that they would be more receptive to the whole notion of the survey. As such, they were included only in the initial phase of the research. Command and patrol officers were given a chance to ask questions regarding the proposed study as well as expressing corrrrnents, criticisms and, concerns. Most of these comments centered on the perceptions of the minority community and the vitriolic relationship with the police department. That is, the police officers, command included, felt that minorities (in this case African American) were in general hostile and not very sympathetic to the police mission. These same officers primarily defined the police mission in terms of apprehending criminals rather than the more expansive role of the police as defined in community policing as put forth by Peel’s Principles of 128 Law Enforcement that were discussed in Chapter 2. However, it should be pointed out that these ofiicers also felt there was a need for community policing programs and did not dispute the efiicacy of them. They simply felt that community policing programs should be secondary to the detection and apprehension of criminally deviant individuals. Interestingly enough, in this initial phase, black oficers expressed the opinion that some white officers would venture into predominately black sections of the community to conduct traffic enforcement. In fact, a high ranking black command officer even posited that it was the norm for a significant number of officers to do this. However, he even included black officers in this equation. In other words, he felt that even officers who were Afiican American would target those in the minority community for enforcement. This brings up two separate dichotonries, first between the white police officer who is racially motivated and between the white officer who is motivated by the job. Secondly the dichotomy between an officer being a black policeman and a policeman who happens to be black, e. g. where does the person place the emphasis, on his racial characteristics or on his job description. To this assertion, white officers responded by saying that they simply stop vehicles based on the infiaction, not characteristics of the driver. They also argued that race was not as big a factor in conducting a traffic stop as was the actual committing of traffic offenses. In fact, most of these officers felt that race was less a determinant than was age. In essence, officers stated that they placed more emphasis on the age of the offender rather than race of the individual. 129 It was in this phase that some of the questions for the questionnaire were developed. That is, some questions were formulated given this input by the command and patrol oflicers. It should be pointed out, that it was explained to the ofiicers that the research was about determinants in traffic enforcement decision making, these could have been literally anything, from offenders age to socioeconomic status. At this stage of the research, race was not mentioned by the researcher as a determinant, although it was the genesis of the research project. It was the officers that injected the notion of race as a possible factor. This is important because it was felt that if the researcher openly acknowledged that the proposed research dealt with race then police ofiicers would not be as willing to participate or, worse that if they did participate the answers given would be suSpect as the officers might have tried to conceal their motives behind traffic enforcement decision making. Police Officer Daily Activity Reports Prior to the implementation of the survey, it was decided that in order to check the veracity of police officers responses, an unobtrusive method would be needed to perform an integrity check on the officers. After some consultation, it was decided that using the officers previous Daily Activity Reports (DAR’s) would offer some insight into the types of offenders most likely stopped by the oflicers. In order to accomplish this two things were needed, first the acquiescence of the Flint Police Department. Secondly it had to be determined that the ' DAR’s accurately reflected a police officers list of activities for a given day. The first hru'dle was accomplished with the approval of the Police Chief who 130 readily granted permission for the study and use of the DAR’s. The second issue, i.e. do the dailies actually reflect what the officers purport they do, was entirely a different question. To a large degree, one is required to accept them at face value. However, there is a good reason for this acceptance, officers are required to sign each and every DAR at the end of their shift. By signing the document officers are, under penalty of perjury, swearing that the entries are true as these documents are official police reports. One can surmise then that the entries were accurate, but, this does not address the omission of an entry. Several high ranking police officials explained that officers are required to document each and every trafi'rc encormter. They must document them in the following manner: 1. License plate number. 2. Location of stop. 3. Name, race, gender and age of driver a. name, race gender and age of passengers. 4. Reason for the traffic stop. 5. Whether an arrest was made and type of arrest. 6. Whether a warrant arrest was made. 7. Whether or not a ticket was issued or a warning was given. 8. To whom the ticked was issued. However, they acknowledge that a few of the officers do not always log complete and accurate information on their dailies. In fact they assert that some of them do even not log every traflic stop that they conduct. They posit that this is due to the fact that some of the officers will conduct traffic stops and hope to find some evidence of criminal wrong doing and that if they do not find any evidence, they simply let the traffic offender go without tallying the tramc stop on the DAR. 131 This is only problematic if we are incorrect in certain assumptions. First that the officers are doing this in disproportionate racial numbers to those listed on the dailies. In other words, it is only a problem if officers who do not fully document traffic contacts are in fact stopping more offenders of a certain race then their dailies actually portray. For instance, let us assume that the DAR’ s for Oficer “Jones” reflect that seventy percent of his stops are Afiican American and thirty percent are White American. The problem occurs if his undocumented stops are disproportionate to these percentages. However, a problem of this type does not seem to be too likely. Primarily because if officers are stopping offenders looking for reasons to arrest, then those stops reflected on their daily activity reports would probably show the general types of offenders that the officer is looking at to begin with. That is, it would be hard to imagine that any officer would not document trafiic stops simply because the offender was a certain color, since documenting the traffic stop has no impact on the ofl‘ender or the ofiicer. In fact, one could argue that an oflicer documenting more traffic stops looks better to his/her supervisor, that is, the officer would look more productive and more aggressive. On the other hand the motive for not documenting an illegal traffic stop increases when an officer is unable to make an arrest. Once again it simply seems most plausible that even if it is the case that officers do make illegal stops, that they would do so proportionate to the numbers as they actually occur on their daily activity report. In short, one must rely somewhat on what the officers purported to have actually done. This is especially the case since at the time the oflicers were making these stops, they were unaware that a 132 study of this type was going to be conducted. Essentially there was not any possibility that these officers would have known that their entries on their 1997 DAR’s were going to be subject to scrutiny. Aside from traffic stops there were other parts of the daily activity logs that were utilized. The additional data taken fi'om these logs included: 1. Officers identification number 2. Shift worked 3. Section worked 4. Partner (if any) The rationale for obtaining this data will be explained in detail later in this section. Reasons for Traffic Stops The police oflicer’ s daily activity report is a reflection of what an officer does on his tour of duty, which is normally an eight hour shift. In addition to traffic encounters, an officer is required .to document all radio calls for service and all self-initiated activities. For the purpose of this study, interest is only in traffic stops. This meant that the offender had to have been in a motor vehicle either as a passenger or driver. It is important to note that pedestrians who were stopped by police oficers were not included in this study. Although this would have shown the types of pedestrian contacts, it would have shown a disproportionate number of women having these types of contacts. One could reasonably infer that from the location of these stops that a significant number of these women might have been involved in vice activity. Additiormlly, the emphasis of this study focused on the how oflicers 133 determine who they were going to stop for traffic offenses. It was felt that by placing pedestrians in the study it would create an unfair impression of who is actually being stopped. This is especially true when one considers that departmental rules do not require that officers list every person that they have an encounter with. Some officers may stop a person who is walking down the street so that they (the officers) may obtain information fiom that person. The oflicers are not required nor encouraged to document this type of stop. In fact, according to command personnel, they encourage their officers to stop and talk with pedestrians in the hope of gathering intelligence information. On the other hand, an officer is required to document every traffic encounter where the offender is operating a motor vehicle. These stops must be thoroughly documented as it is a violation of law to arbitrarily stop citizens without a legal reason. These traffic encounters were then categorized by type. After reviewing nearly thirty thousand dailies, it was decided that these police citizen/offender encomrters could be placed into three categories: 1) hazardous, 2) non-hazardous, 3) rmknown reason. They were broken down into these categories so that it would be possible to determine which types of stops citizens of a certain race, gender and to a lessor extent age, are most likely to be subjected to. At this point a brief explanation of each is in order. With respect to hazardous violations, these would include all traffic violations in which points are assessed on a person’s drivers license. Points are defined by Michigan Law and are assessed by the Secretary of State whom has administrative authority over licensing drivers. In the State of Michigan, when a driver 134 Illillllll Ill. receives a specified number of points his or her license is subject to review. After which if the driver receives additional points, his or her license is subject to suspension. Types of offenses in which a driver would receive points are for operating a vehicle in violation of laws which are considered to the public, they include (by way of example, but not limited to): l) disregarding a red light, 2) disregarding a stop sign, 3) violation of speed limits, 4) operating under the influence of intoxicating liquor, 5) improper lane use, 6) reckless driving and, 7) careless driving, 8) driving on a suspended license. The preceding list represents the types of traffic stops that most frequently were noted on the oflicers’ dailies. Non-hazardous violations are traffic offenses in which the State of Michigan has not assigned points to the infraction. These violations, although illegal, are not considered to be prima facie dangerous to the public at large. Types of these violations include, but are not limited to the following: 1) defective equipment on a motor vehicle (examples of which include head lamps not operating, turn signals not working properly, cracked Windshields, loud exhaust etc.), 2) violating child restraint laws, 3) items obstructing forward field of vision (i.e. things hanging from the rear view mirror) and, 4) tinted side windows. In addition to these, there are several “financial” violations in which the motorist may have not paid registration fees for their automobile. These would include: 1) driving a motor vehicle with an expired plate, 2) driving a motor vehicle with a license plate registered to another vehicle, 3) driving a motor vehicle without a license plate. Financial violations are merely designed so that the State recoups monies for the privilege of allowing one to drive a vehicle upon 135 roadways. Once again the above listed violations reflect the most likely reported non-hazardous infractions found in the oflicers’ daily activity reports. Another issue is that of having been a passenger in a motor vehicle that was stopped. Officers are required to document passengers on their dailies. These passengers were counted in the study as contacts. At the outset this somds a little peculiar, however, when one keeps in mind the rationale for the study it only seems logical that all persons in the vehicle would be subject to the same scrutiny that the driver would find himself under. As such, it seems plausible that if in fact police officers look for a certain type of person, then all of the occupants of the vehicle would be included. In addition, there are a few reasons that would allow an officer to stop a vehicle based upon the passenger’s actions. Some of these reasons include: 1) the passenger openly drinking alcohol in the vehicle or, 2) the passenger littering. However, the review of the daily activity reports do not include any stops based upon the passenger’s activities. Nonetheless, the dailies do reflect passengers in the vehicles. They also reflect the issuance of tickets to these passengers as well as their ages, gender and race. Therefore listing what enforcement action taken against passengers in stopped motor vehicles may show overall tendencies of these particular police oficers. Lastly, a category was included for those ofiicers who did not list a reason for stopping a vehicle. In these cases it goes without saying that we are not able to determine why an officer initiated the stop. Although listing this as a “reason for a stop” seems somewlnrt paradoxical, we are still able to glean valuable data from these stops. For the most part even if an officer did not 136 list the reason for the stop, he or she would still list the race, sex and age of both the operator and passengers in the vehicle. Additionally, the other data was also included i.e. whether a ticket was issued or an arrest made. Thus, although the reason for the stop was missing, we are still able to determine the general types of individuals that the officer had stopped. It bears mentioning that although the Flint Police Department requires officers to list the reason for stop, it is only done about fifty percent of the time. All oflicers’ dailies are reviewed by the patrol oflicers’ supervisor at the end of each shift (or by the beginning of the next tour of duty) there is not a formal explanation why departmental procedures are not followed. However, after talking with patrol supervisors it is reasonably speculated that when the supervisors are reviewing the patrol officers’ dailies they simply scan them for information that they think is relevant. Normally this would deal with arrests and responses to serious crimes. Seldom are ofiicers questioned about the lack of completeness with respect to traffic stops, however there were some exceptions. These primarily dealt with oficers who were training new police recruits. The inference drawn fiom this was that patrol supervisors closely scrutinized the work of these new officers in an attempt to gain compliance with departmental policies. Traffic Citatio— In the Flint Police Department the issuing of a traffic citation is up to the discretion of the police officer who observed the violation. There are not any requirements to issue tickets. In fact it is against the law in the State of Michigan for any department to require any officer to issue a specific number 137 of tickets. Departmental rules require that officers when issuing tickets make a notation as to what the ticket was for and to record the ticket number. It is assumed that all tickets issued are recorded on the dailies. This assumption is made because there is a record kept of each oflicer’s statistical performance. To not record a ticket that was issued would only diminish that officer’s recorded performance. It would seem that if an officer was going to error, they would error on the side of making themselves look better, not worse. For the purposes of the study, one could only determine whether or not a traffic citation was issued. A determination as to what it was issued for could not be made with certainty since some officers did not document their stops properly. Secondly, officers would fiequently list two traffic violations committed by the same person, and would only issue one citation. For example, an officer may have stopped a person for speeding and also note that the person was not wearing a seat belt. Both of these are violations, however, one is a hazardous violation and the other is not. It is simply known that a traffic ticket was issued. Happily for purposes of this study that is all that one needed to know. At this point one may wonder why the one simply would not look at the trafic tickets to detemrine ratio issued to whites and blacks, since ostensibly this would give a true picture of those who received a ticket. The main reason that this was not done was due to an administrative ruling dealing with how police officers are to complete the citation. In the early 1990's the State of Michigan adopted a uniform traffic citation. This format was designed so that in every court in the State, the same style citation would be used. This 138 would facilitate the court administrators in developing a data base that could be easily downloaded into the main State computer. This meant that every court would be documenting the same information and that it would be uniform. During this period in which rules were promulgated the minority community felt that by designating on the ticket the race of the person, that minorities would receive differential justice from the majority community. As such com't rules dictate that on all civil infractions race of the suspect is omitted. Race is only noted on traffic offenses that result in an arrest. Thus in order for us to determine the race of the individuals receiving the citations, it was necessary to review the DAR’s. Without doing this one would not have a clear picture of the type of person who is most likely to be the recipient of a traffic citation. Citations Issued As has been mentioned earlier, it is generally up to the police oflicer whether or not he/ she wishes to issue a traffic citation to a citizen. The motivations for issuing them is beyond the scope of this study. That is, why an officer gives a citation to person “X” versus person “Y” is not known, what is important is the ratio of tickets issued to minorities versus non- minorities. This is not to say that officers should not be vigilant in their enforcement of traflic regulations and ignore violations, but, that there should be some proportionality to their stops. In other words, in a city with a non-minority (white) population (49.6%) that out numbers the minority (black) population (47 .9%) one would expect 139 the number of traffic citations issued would be somewhat equally distributed. However if we find that for any given omcer that person “X” is usually black and that person “Y” is usually white and that “X” receives a disproportionate number of tickets than “Y” we can assume that either “X” people have characteristics that make them worse drivers than people with “Y” characteristics; or more likely, that the officer has motivations other than merely the enforcement of traffic regulations. The only mitigating factor to an ofiicer giving more Afiican Americans tickets than non-minorities would be ratio of blacks to whites in a given sector. This issue will be discussed in the next section, however officers are not subject to issuing citations in only their assigned districts. Shift/Section/Name/Partner Each officer is required to fill out a daily activity report. If an officer is assigned a partner, then the partner too must fill out his own daily report. Usually these dailies mimic each other, but nonetheless rules and regulations require that each of the officers complete one of these reports. Each ofiicer is required to date the dailies as well as place their shift and assignment on them. All of this is rather routine and is common place in most any department. What is somewhat unusual is that with the Flint Police Department, omcers assigned from the general patrol bureau to a given section can go into other areas and conduct trafic enforcement activities. One high ranking police official asserted that it was even the norm for officers to leave their assigned districts, go to another and there engage in traffic enforcement 140 activities. The problem that this creates is that the city is divided into specific districts some that are predominantly white and others that are predominantly black, allowing officers to cross boundaries to enforce trafiic regulations may skew the data one way or the other. For the purposes of this study one is forced into making the assumption then that if officers are given the latitude to cross boundary lines, that they would encounter both minority and non- minority traffic violators at roughly the same rate. Lastly, since the whole population of officers was sampled, and since all sections of the city were represented, we can assume that officers would encounter proportionately the same number of violators botir minority and non-minority. Race/Gender/Age It is axiomatic that for the purpose of this study, race, gender and age of the traffic offender are some of the most important categories. The police department insists that it’ s officers make the notation as to the race, gender and age of each traffic offender tint they stopped. The reason for this is not to show what type of person is most likely to be stopped, but, it is primarily for intelligence gathering. With respect to the intelligence gathering function, this infomntion can be used to determine who is in an area at a specific time. In other words, if a crime occurred, unbeknownst to the police, and was discovered at a later time, the detectives could check the officers’ dailies to ascertain if anyone had been in the area. With very few exceptions, officers would document the traffic violator’ s 141 race, gender and age. Occasionally an officer would forget to indicate the person’ 3 race, gender and/or age. Sometimes, although very infiequently, the officer would only put the license plate number and reason for stop on the daily. However, for our purposes this did not pose a significant problem. If an oflicer forgot or simply omitted a person’ 3 race and/or age the specific category was not marked. If both race and gender were omitted, the information was not used in the study. On the other hand, if either race or gender was docmnented, it was used in the study. The rationale for this is that if both race/ sex were missing and the data was still used, one would not have any idea as to what type of person officers are issuing citations to. If either the race or gender of the offender is known, one could still use the data generated fiom the traflic contact as it illustrates the type (race/ gender) of the person stopped. One may wonder why age was included in the study since the omission on a daily did not warrant the stop fi‘om being excluded. The reason simply is that age is relevant as studies have shown that the crime prone years are between fifteen and twenty-five years of age. However the focus of this study deals with the differential treatment of minorities from tint of non- minorities. As such age is not relevant, but it is helpful in determining who in the minority and non-minority communities are likely to be stopped and ticketed. Daily Activity Reports as Related to Questionnaire Police officers are required to maintain a written log of their daily activities. In this log officers are required to keep detailed information 142 regarding traffic encounters. For the purpose of this study this is important, since the data fiom the dailies represents what the oficers objectively did. The questionnaire on the other hand measures the officer’ 5 subjective attitude towards differential traffic enforcement. In other words, the daily activity reports measure what the officers have actually done and the questionnaire measures what the officers believe with respect to differential traffic enforcement. Hy et. al. (1983) refer to this type of data as: secondary data analysis. They point out that this type of data can be useful when used in conjunction with other data .fiom questionnaires. This can be used to assist in verification of opinions espoused by respondents. The need for this type of verification is self evident, in tint this provides a way in which one can possibly gauge the level of sincerity of police officers. This is an issue whenever one is asked to comment on one’ s perception of his/her own performance. Instrumentation The patrol brueau of the Flint City Police Department has three divisions which are: general patrol, community policing oflicers and, traflic officers. The entire population of general patrol, one-hundred and forty-five (145) officers, were selected for this study. Prior to the administration of the questionnaire it was indicated by the Flint City command stafl‘ that approximately fifteen (15) officers either retired or, had been reassigned/promoted out of the general patrol division. In addition, a transmittal letter to the Chief of Police, Patrol Captain and to 143 Lieutenants was sent explaining the nature of the study. This letter also included a request to review officers daily activity reports. The Chief of Police granted permission for the study and the use of these reports. Prior to implementation of the survey, all the dailies generated by officers in the general patrol section were reviewed. The number of dailies reviewed approximated thirty-thousand. Since there were so many to review and since all had to be reviewed by hand it was necessary to solicit additional help. To meet this end, two volunteers were selected to assist in this endeavor. They were both trained on how to detect a traflic contact. In addition both worked very closely with the researcher and were instructed to contact the researcher if they had any questions about any particular stop. The time fiame for this began in the summer of 1998 and took approximately nine (9) months to complete. Direction fi'om police department personnel necessitated tint only 1997 dailies be used. This of course presented a slight problem, but their rationale was that they fi'equently used current year dailies and they wanted dailies immediately available to them. The problem that this presented is that it was necessary to review the dailies prior to administering the questionnaire in order to facilitate in the development of questions. This necessitated that the questionnaires were administered to officers in 1999, while data taken from the daily activity reports came fi'om 1997. This meant a time differential between the oflicers completing the daily activity reports and the survey of eighteen to thirty months (fi'om the January 1997 to June 1999). The questionnaire was designed after consultation with Michigan State 144 University faculty and with input from both Flint City patrol officers and Command Personnel. Both M.S.U. faculty and police department personnel expressed concerns about directly asking officers questions regarding race. Police officials felt that officers might try to intentionally mislead the researcher if they believed that the researcher was attempting to assert that their traffic enforcement was racist. Michigan State faculty felt that officers might not participate if they believed that they were going to be inferentially classified as racist. Prior to the implementation of the questionnaire, the researcher met again with Flint City Command Officers as they requested that they be allowed to examine the questionnaire. During this meeting it was explained that the questionnaire was to be administered at each roll call in which officers receive their daily assignments and briefings. Flint has six roll calls daily. The administration of the survey was over a two week period. An interrnl memo was sent to each shift commander informing them tint the Chief of Police had authorized the project and asked for cooperation. However, it also stated that participation was completely voluntary. In order to maximize participation officers were given several opportunities over the two week time frame. Survey Design This survey is best thought of as a one-shot cross sectional design. It is cross sectional in that it observes a single group at one point in time. The use of officers’ DAR’s, even though eighteen to thirty months earlier simply provided a nexus between what was objectively done and between what the 145 officers subjectively believed. The questionnaire itself was constructed using a combination of survey design: attribute, Likert scale and, open ended questions. Questions with respect to respondent’s attributes were asked in order to determine the officer’s age, race and, gender. In addition to these, there were other attribute questions asked which were hoped to link officers’ education levels to differential traffic enforcement. Likert scale questions were used in order to identify which issues police ofiicers in the City of Flint felt were important. In other words, officers were given a statement and provided with five response options. The officer was asked to select the response that best represented his/her personal beliefs with respect to differential traffic enforcement. Several open ended questions were also asked. These were designed to compare the officers perception of how they were treated by police if they were stopped prior to themselves becoming police officers. They were then asked a similar question, but, this time they were asked if they had been stopped since becoming a police officer and how they rated that experience. This survey was designed to elicit responses that will assist in facilitating relevant training issues and most importantly will have a practical impact in the area of police/minority relations. Lastly, because this research is case specific it can be defined as exploratory in nature. Population The sample group consists of patrol officers in the Flint Police Department (Flint, Michigan). By patrol officers, 1 am also including those officers 146 currently assigned to special operations, other than foot or motorized patrol. Currently, there are a total of two-hundred and thirty-three (233) officers classified in the patrol ranks. It should be noted that there are approximately fifty-nine (59) command officers assigned to the patrol division, they will not be considered part of the study. Previously, it was noted that the rmiformed patrol division of the Flint Police Department was broken down into three distinct units: general patrol, traffic and, community policing officers. For reasons already mentioned, the general patrol division was selected as the target group. This unit is comprised of 145 patrol officers. Thus, for the purpose of this study, the total population is 145 police officers. It is reasonable to make this distinction since the duties of these officers are different fi'om those of the other two units. Additionally, these officers are assigned to areas throughout the City. Their assignments may vary day to day. That is, one day they may be assigned to an area predominantly black and the next, to a predominantly white area. This is important in that they are not static like community policing officers. Nor, are they merely focused in on traffic like those officers assigned to the trafic unit. Sampling Design Because of the nature of this research, the entire general patrol rmit of the Flint City Police Department was chosen. This was done in order to provide as complete a picture as possible why officers select certain vehicles for traffic enforcement. 147 Secondly, a review of all DAR’s generated by the general patrol unit for one complete calender year was also conducted. This was done so that time of year would not be an issue. That is, it was felt that selecting a specific period of time within a year might open the study up to criticism. For instance, if the only time period examined was surmner, this might skew the statistics towards the young as they would be out of school. During the colder months, this might provide exactly the opposite results. By examining the entire year these criticisms are somewhat mitigated. Sampling Frame A sampling fiame was provided by the Flint City Police Department. This included the names, race and, gender of each omcer assigned to the general patrol unit. No attempt was made to exclude any officer. No sample was drawn since the entire general patrol unit was used. Rationale for Sampling The reason for reviewing all daily DAR’s was to mitigate any criticism that officers not included could have impacted the study in one way or another. Secondly, there were approxinntely 30,000 dailies generated by all of the officers, this amormt was considered within the range of reasonableness. In other words, it was felt that by reviewing the entire population of “dailies” tint this would provide a complete picture of whom officers stopped. The reasons for selecting one unit, general patrol, over the other two include job assignment and police mission. Informal conversations with 148 oflicers assigned to the traffic unit, indicated that they viewed their job primarily in the context of traffic enforcement. Officers assigned to community policing positions viewed their job more as facilitators, or problem solvers. Similar conversations with officers assigned to general patrol revealed that they viewed themselves more as crime fighters. As such it was felt that they would be the best group to examine differential traffic enforcement. Sampling Error Sampling error is believed to have been reduced significantly with respect to secondary data analysis. Simply because tint all daily activity reports for the year were reviewed. However, by the inclusion of two additional reviewers, one could claim that one or both of them may have this-classified some traffic encounters. To somewhat mitigate this claim, the secondary reviewers were instructed to contact the primary reviewer with questionable entries. Secondly, the primary reviewer periodically rechecked some dailies completed by secondary reviewers. In all, there were no significant differences found amongst reviewers. Prior to the questionnaire being administered, an internal memo was sent to shift supervisors explaining the nature of the study. The researcher also met informally with several of the supervisors and explained the nature of the study and was available to answer any questions. This was done in order to secure the cooperation of the command staff. In the past, some research initiatives that did not include command officials met with some resistence. 149 In this way supervisors were kept abreast of the nature of the study and they were aware of dates and times that questionnaires were administered to their omcers. Sample Size The sample size for the secondary data analysis is equal to the population as all general patrol officer daily activity logs for the year 1997 were included in the study. All general patrol officers were included in the sample. As such, the sample size is equal to the population of officers assigned to this unit. Therefore both secondary data analysis and survey distribution equals: where N is the p0pulation , where n is the sample size. For the previously listed reasons both sample sizes are equal to 100%. Table 5.1: Response Rate - General Patrol Officers Group Sample Size N of Responses Response Rate General Patrol 141 89 63% Officers Confidentiality and Anonymity It is axiomatic that the daily activity reports contain the oficer’ 5 name and badge number. One of the procedural safeguards implemented to guarantee 150 confidentiality and anonymity for data taken was the development of a code book. This book identified officers by gender and race. Badge numbers and names were omitted in the final analysis. As such, without reviewing each daily, there is not any way of determining which specific officers stopped whom. Additionally, the data is considered in the aggregate not individually. In this way, individual officer data is not available. In the administration of the questionnaire all omcers were verbally told that participation in the study was completely voluntary. This was affirmed by the sergeants and lieutenants conducting the roll calls. In addition to these safeguards, a letter was attached to each survey guaranteeing confidentiality and anonymity. Officers were also told that they were not to place their name, badge number or any other identifying marks on the form. Lastly, they were told to place their responses in a sealed box which was picked up after each and every roll call. Analysis of Secondary Data The analysis of this data is rather straight forward. Those items reported include: 1) number of traffic stops 2) whether a ticket was issued, 3) race of the offender, 4) gender of offender, 5) arrest other than warrant, 6) warrant arrests, 7) race of officer, 8) gender of officer. Analysis of Questionnaire The dependent variable that is the focus of this study is: racial bias of officers when conducting traffic stops. The independent variables are: peer approval of conduct, what the officer perceives his/her supervisors want, 151 what the officer perceives the department wants (goals as they relate to arrests), the officers subjective (and some might argue objective) beliefs as they relate to police practices, and finally the officers beliefs as they relate to the notion of whom is likely to have an outstanding arrest wanant or be involved in criminal activity. Demographic Variables There were five demographic variables asked of each officer. They are the first five unnumbered questions following the instructional page. Closed Ended Questions with Ordered Choices There are five questions that deal with the officers treatment by other police officers both pre and post employment as a law enforcement oflicer. These questions are the last five unnumbered questions following the instructional page. Likert Scale Questions There are twenty-seven questions using a Likert scale. The respondents are given a statement to which they are asked to either: 1) strongly disagree, 2) disagree, 3) neutral/don’t know, 4) agree, 5) strongly agree. These questions are designed to measure whether officers subjectively believe that there is a basis for differential traffic enforcement. In other words these questions are meant to elicit whether or not officers believe tint a particular segment of the p0pulation is more likely to have outstanding warrants than other segments. 152 Secondly, questions were asked about where they believed that their department places emphasis. This is related to the notion of peace ofiicer or law enforcement officer. Another series of questions asks officers about law enforcement practices. This is one of the central issues related to the practice of differential traflic enforcement in that it may simply be the case that oflicers are trained in identifying traffic encounters that lead to arrests. A fourth series of questions asks whether or not supervisory behavior influence decision making in the context of traffic enforcement. Finally, in an attempt to mask the race based nature of the study some questions were intentionally asked tint may have led the officers to believe tint peer pressm'e was a focus of this study. Open Ended Question Following the twenty seventh question is an open ended question tint was designed to allow the officer/respondent to explain any of his/her responses tint they felt necessary. It also allowed them to comment on the survey itself. Validity A significant issue with this type of study deals with the notion of construct validity. Briefly, what is meant by this is that what is being tested, racial attitudes of police officers when conducting traffic stops, is an abstract variable, rather than a concrete variable. According to Hy et. al. (1983) a construct variable is something that the researcher has literally developed. It is related to an observable behavior. “To determine their validity, hypotheses 153 (consisting of constructs) are deduced fi'om theoretical statements and tested. If the data support the hypotheses, the construct is assumed valid (p. 58).” The problem of course with this type of study is that the officers may in fact become suspicious about the study if the questions were simply to focus on race. It was felt that ofiicers would be reluctant to participate in the study if it were simply about racial attitudes; firrther if officers did participate believing that they were inferentially being labeled a racist, it was felt that their answers could be less than truthful. As such it was explained to the officers that the study was about decision making with respect to traflic target selection. Further that their honest answers were needed if this research was to have any value. Most respondents were comfortable with this explanation. Statistical Analysis All of the data are ordinal, nominal or, interval. Appropriate statistical tests were used to meet the assumptions. The Levenes test for equality of variance was used to determine whether or not one could use the assumption of equal variance of means between white officers and black officers. A test statistic geater than (.05) required the assumption of equal variance of means. On the other hand a test statistic of less than (.05) indicated tint the assumption of equal variance could not be assumed. The second test of sigrificance used was the t-test for equality of means. This was done to show an indication as to whether or not white officers and black officers stopped, ticketed and arrested white and black people at approximately the same rates. If the means differed in the predicted 154 directions, e.g., white officers proportionately stopping more blacks than black officers, one could inferentially assume that race was a factor in differential traffic enforcement. The standard level of sigrificance used was the (.05) level. In addition if a variable was at or below the (.05) level and the confidence interval contained zero the result could not be considered sigrificant. The tested variables included: traffic contacts based on race, was predicted from the independent variables, which include: police practices, officers’ subjective opinions on likelihood of arrest, seeking supervisor’ s approval and, departmental mandate. Summary of Major Research Steps Preliminary Investigation Development of Sampling Frame Review of Secondary Data - Police Officers Daily Activity Reports Development of Questionnaire Administration of Questionnaire Analysis of Data Presentation of Findings ?°>'.°‘S":PPE°!" Conclusions 155 CHAPTER 6 ANALYSIS OF DATA Introduction The data will be presented in two sections. The first section is the descriptive statistics taken from the police officers’ daily activity reports. These include the number of traffic stops, traffic tickets, traffic arrests and warrant arrests by race, age and, gender of the offender, conducted by Flint police officers. These statistics were initially examined in the aggegate and subsequently broken down according to race and gender of the officer. The second section is the data from the survey instrmnent. It is comprised of two parts. The first part examines the respondents’ demogaphic data. The second part attempts to identify beliefs that may be related to an ofiicer’s predisposition to conduct pretext traffic stops. In this way the data presented in this last section are the proportions of respondents that agee or disagee that a particular variable is descriptive of an officer’s belief that in general a certain segnent of the population is more likely to be a criminal ofi'ender. 156 _— Part One: Daily Activity Report Traffic Contacts Table 6.1 Traffic Contacts By Race N Minimum Maximum Sum Mean #Blacks 145 0 142 4996 34.45 Stopped #Whites 145 0 194 3407 23.5 Stopped Total 145 8403 In Table 6.1 “N” refers to the number of officers whose dailies were examined. In this case “N” is equal to 145 which at the time was equal to the total number of ofiicers assigred to general patrol division. The categories “minimum” and “maximum” refers to the number of stops that ofiicers made. Here it can be seen that some officers did not stop any black motorists and some officers did not stop any white motorists. However, in the City of Flint, blacks are more likely to be stopped than are white. When gender and race of the motorist is accounted for it is seen that black males are stopped more fi'equently than white males, black females or, white females. Table 6.2 illustrates that black males are stopped nearly one-third more than white males; they are three times more likely to be stopped as black females and, nearly four times as likely to be stopped as white females. 157 Table 6.2: Traffic Contacts by Race and Gender N Minimum Maximum Mean #Stops M/B 145 0 142 26.13 #Stops M/W 145 0 194 16.48 #Stops F/B 145 0 54 8.32 #Stops F/W 145 0 70 7.02 As can be seen in Table 6.2 blacks in general are stopped in geater disproportion than whites. Table 6.3 reveals the differences in rates of traflic contacts in terms of race of the ofiicer. According to the data, black oflicers are disproportionately more likely to stop black male motorists and blacks in general than white officers. Interestingly, black officers do not stop white motorists as fi'equently as white officers stop black motorists. Table 6.3: Mean Number of Stops Based on Officers’ Race Race of # of Stops # of Stops # of Stops # of Stops Officer Black Males White Males Blk Females Wte Females White 29.70 21.08 8.99 8.77 Black 19.94 8.49 7.17 3.98 The data in Table 6.4, 6.5 and, 6.6 not only reveal that there is a sigrificant difference in the rates tint police officers stop black males, white nnles, black females and, white females. Closer analysis indicates that black males are stopped more frequently than any other goup and specifically they are over-represented as to what one would normally expect to find with 158 respect to their given population. White males are stopped more fi'equently than are females of either goup. As a goup, black people are stopped more often than one would generally expect to find in the population The Levenes test for equality of variances in Table 6.4 determines whether or not one can use the assumption of equality with respect to the means of the compared goups. When the sigrificance level is above the .05 level it is assumed that there is equal variance. As such, one is required to use the equal variance statistics. If the test result is below the .05 level that equal variance is not assumed and one is required to use the test statistic that indicates unequal variance. However, this is just one part of the test. The Levenes test is used in conjunction with the independent samples test, in this case the t-test for the equality of means. In Tables 6.5 and 6.6 the t-test for equality of means is used. Table 6.5 measures the level of significance found using a two tailed test. Table 6.6 is used to measure the confidence interval of these findings. It is necessary that the confidence interval does not contain zero. If it does then the findings cannot be reported as sigrificant. In all three of these Tables (6.4, 6.5, 6.6) the race of the officer is compared to the rate of traffic stops by race and gender. It is assumed that if officers engaged in differential traffic enforcement that both black and white oficers would stop a certain goup disproportionately to their numbers in society. Further that if racism occurred one would expect to find that white officers stopped blacks as compared to whites at a proportion geater to that of black officers and vice versa for black officers. When examining Tables 6.3, 6.4, 6.5 and, 6.6 it is seen that black officers 159 stop black men in geater proportion than do white officers that this is significant at .031 level (equal variance is not assruned). White officers stop white males in geater proportion than do black officers and this is sigrificant at the .000 level (equal variance is not assumed). When comparing the rates of women stopped it is seen that there is not a difference in the stopping of black females between white and black officers. Equal variance is assumed and the level is of sigrificance between the two goups is at the .254 level, which is above the general level of acceptable sigrificance of .05. On the other hand, when comparing the difi‘erence between white officers and black officers in stopping white women it is seen that white officers stop white women at a geater rate than do black officers. Assuming unequal variance, this is sigrificant at the .01 level. This would lead one to believe that as a whole officers as a goup are not racist, but that there is something within the Police Department’s rules, training or structure that makes it desirable to conduct differential traffic enforcement activities against males, but, in particularly black males. 160 Table 6.4: Levenes Test for Equality of Variances - Race of Officer F Sig. Stop m/b: Equal var assumed 8.411 .004 Equal var not assumed Stop w/m: Equal var assumed .001 Equal var not assumed I 1.282 Stop f/b: Equal var assumed 2.334 .129 Equal var not assumed Stop f/w: Equal var assumed 4.441 .037 Equal var not assumed 161 Table 6.5: t-test for Equality of Means - Race of Officer t (if Sig. (2- tailed) Mean Difference Stop m/b: Equal var. assumed Equal var. not assumed I .906 2.178 143 142.945 .059 .031 9.75 9.75 Stop w/m: Equal var. assumed Equal var. not assumed 3.273 4.051 143 124.634 .001 .000 12.59 12.59 Stop b/f Equal var. assumed Equal var. not assumed 1.145 1 .227 143 131.426 .254 .222 1.82 1.82 Stop w/f Equal var. assumed Equal var. not assumed 2.918 3.320 143 142.794 .004 .001 4.79 4.79 162 Table 6.6: t-test for Equality of Means - Race of Officer 95% Confidence Interval of the Difference Std. Error Lower Upper Difference Stops m/b Equal var. assumed 5.12 -.36 19.86 Equal var. not assumed 4.48 .90 18.60 Stops m/w Equal var. assumed 3.85 4.98 20.19 Equal var. not assumed 3.11 6.44 18.73 Stops f/b Equal var. assumed 1.59 -1.32 4.96 Equal var. not assumed 1.48 -1 .1 1 4.75 Stops f/w Equal var. assumed 1.64 1.55 8.04 Equal var. not assumed I .44 1 .94 7.64 Thus Tables 6.4, 6.5 and 6.6 indicate that there is a sigrificance difi‘erence between goups and that given relative equality in the population each should be stopped proportionately the same. When Table 6.2 is looked at in conjunction with Table 6.3 it can be seen that black people are stopped more frequently than are white people. Traffic Tickets In Table 6.7 it can be seen tint black males are almost two-thirds more likely to receive a traffic citation than are white nnles. They are almost three 163 times as likely to receive a traffic citation than a black female and nearly five times more likely to receive one than a white female. In fact black people are nearly twice as likely to receive a tramc citation than are white people. However, when race is held constant, males are three times more likely to receive a traffic citation than are females. Table 6.7: Number of Tickets Issued by Race and Gender N Minimum Maximum Sum Mean Tickets to m/b 145 0 97 2203 15.19 Tickets to m/w 145 0 132 1360 9.38 Tickets to f/b 145 0 155 819 5.65 tickets to f/w 145 0 38 487 3.36 The data in Tables 6.8, 6.9 and 6.10 coupled with the data in Table 6.7 reveal that when police officers decide to issue tickets, black males are more likely to be recipients than are any other goup of people. There are sigrificant differences in the four goups with respect to the issuance of traffic citations. The data indicates that males in general receive more citations than their representation in the population would suggest. In addition, females, regardless of race receive fewer tickets than would be expected. Again testing for sigrificance was done using the Levenes test as well as 164 the independent t-test for equality of means. Once again using the assumption that if ofiicers engaged in differential traffic enforcement both black and white officers would ticket more blacks than whites. In addition, if racism was the motive behind the tickets, it would be expected that white officers would ticket more blacks as compared to whites at a proportion geater to that of black officers and vice versa for black officers. When examining Tables 6.7, 6.8, 6.9 and, 6.10 it is seen that black officers ticket black men in geater proportion than do white men. This is significant at .031 level (equal variance is not assumed). White oflicers ticket white males in geater proportion than do black officers and this is significant at the .000 level (equal variance is not assumed). When comparing the rates of women ticketed it is seen that between white and black officers there is not a significant difference irn the ticketing of black females. Equal variance is assumed and the level is of significance is at the .175 level. When comparing the difference between white officers and black officers in ticketing white women, it is seen that white officers are twice as likely to ticket white women (means of 4.14 and 2.00 respectively). Assuming unequal variance, this is significant at the .03 level. 165 Table 6.8: Levenes Test for Equality of Variances - Race of Officer F Sig. Tickets b/m: Equal var assumed 8.670 .004 Equal var not assumed Tickets w/m: Equal var assumed 7.162 .008 Equal var not assumed Tickets f/b: Equal var assumed 3.130 .079 Equal var not assumed Tickets f7w: Equal var assumed 2.724 .101 Equal var not assumed 166 Table 6.9: t-test for Equality of Means - Race of Officer t (if Sig. (2 tailed) Mean Difference Tickets m/b: Equal var. assumed Equal var. not assruned 1.830 2.124 143 142.571 .069 .035 5.63 5.63 Tickets w/m: Equal var. assumed Equal var. not assumed 2.703 3.334 143 126.151 .008 .001 6.55 6.55 Tickets b/ f Equal var. assrnned Equal var. not assumed 1.364 1.748 143 107.038 .175 .083 3.22 3.22 Tickets w/f Equal var. assumed Equal var. not assumed 2.505 2.772 143 139.344 .013 .006 2.14 2.14 167 Table 6.10: t-test for Equality of Means - Race of Officer 95% Confidence Interval of the Difference Std. Error Lower Upper Difference Tickets m/b Equal var. assumed 3.08 -.45 1 1.71 Equal var. not assmned 2.65 .39 10.87 Tickets m/w Equal var. assumed 2.42 1.76 1 1.33 Equal var. not assumed 1.96 2.66 10.43 Tickets f/b Equal var. assumed 2.36 -1.45 7.89 Equal var. not assumed 1.84 -.43 6.88 Tickets f/w ‘ Equal var. assumed .85 .45 3.83 Equal var. not assumed .77 .61 3.67 Again, this would lead one to believe that as a whole the ofiicers are not racist, but tlnere is something operating within the Police Department’s rules, trairning or structure tinat makes it desirable to conduct differential trafic enforcement activities against males, in particularly black males. This conclusion seems plausible since there is not any significant difference inn the treatment of black females between the officers of the two goups. Seemingly if racism was the operative paradign in the Flint Police 168 Department black females would also be disproportionately ticketed. This would be seen in the comparisons between white and black officers, which was not found. Non-Warrant Related Arrests The data in Table 6.11 indicate that black males are more likely to be arrested for fresh criminal offenses than are white males or women of either race. In this corntext a “flesh criminal offense” is an incident irn which new criminal activity is discovered by the police officer. These incidences can be as nninor as littering in public up to the most serious criminal offenses. Specifically excluded fi‘om this category were warrant arrests. Table 6.11: Non-Warrant Arrests by Race and Gender Race Of Officer N Mean Non-Warrant White Officers 92 9.75 Arrests b/m Black Officers 53 5.38 Non-Warrant Winite Officers 92 4.67 Arrests w/m Black Officers 53 1.36 Non-Warrant White Officers 92 1.64 Arrests b/f Black Officers 53 .85 Non Warrant White Officers 92 1.29 Arrests w/f Black Officers 53 .44 As can be seen black males are arrested on non-warrant related matters over twice the rate of white males. White officers arrest black males a little 169 .__q' _—4 more than twice the rate that the arrest white males. On the other hand black officers arrest black males nearly four times as often as they arrest white males. For every four black females arrested by white officers three white females are arrested. Black officers arrest black females almost twice as often as they do white females. Testing for statistical significance was done using the Levenes test for equality of variance along with the independent samples t-test for equality of means test. Once again usirng the assumption that if officers engaged inn difierential traffic enforcement both black and white officers would arrest more blacks than whites. In addition, if racism was the motive behind the arrests, it would be expected tint white officers would arrest more blacks as compared to whites at a proportion geater to that of black officers who themselves would be expected to arrest more whites as compared to blacks at a proportion geater than the white officers. When examinning Tables 6.11, 6.12, 6.13 and, 6.14 it is seen that there is a significant differences in means between white and black oflicers in the arrest of black males. This is significant at the .005 level (equal variance is not assumed). There is also a significant difference in the rate of arrest of white males between white and black officers and this is significant at .000 level (equal variance is not assumed). When comparing the rates of women arrested it is seen that men are over five times as likely to be arrested than are women. There is a significant difference between white and black officers in arresting black females. The difference is significant at the .004 level (equal variance is not assumed). 170 When comparing the difl‘erence between white officers and black officers in arresting white women there is a difference and it is significant at the .001 level (assuming nmequal variance). Table 6.12: Levenes Test for Equality of Variances - Race of Officer F Sig. Non-Warrant Arrests b/m: Equal var assumed 14.047 .000 Equal var not assumed Non-Warrant arrests w/m: Equal var assumed 8.621 .004 Equal var not assumed Non-Warrant Arrests f/b: Equal var assumed 18.275 .000 Equal var not assumed Non-Warrant Arrests f/w: Equal var assumed 13.223 .000 Equal var not assumed 171 Table 6.13: t-test for Eqruality of Means - Race of Officer t df Sig. (2- tailed) Mean Difference Non- Warrants Equal var. assumed Equal var. not assumed 2.432 2.883 143 139.526 .016 .005 4.37 4.37 Non- Warrants w/m Equal var. assumed Equal var. not assumed 2.856 3.651 143 108.184 .005 .000 3.32 3.32 Non- Warrants b/ f Equal var. assmned Equal var. not assumed 2.438 2.903 143 138.469 .016 .004 .79 .79 Non- Warrants w/ f Equal var. assumed Equal var. not assumed 2.760 3.407 143 125.766 .007 .001 .84 .84 172 Table 6.14: t-test for Equality of Means - Race of Officer 95% Confidence Interval of the Difference Std. Error Lower Upper Difference Non-Warrant Arrest m/b Equal var. assumed I .80 .82 7.93 Equal var. not assumed 1.52 1.37 7.37 Non-Warrant Arrest m/w Equal var. assumed ‘ 1.16 1.02 5.61 Equal var. not assumed .91 1.52 5.12 Non-Warrant Arrest f/b Equal var. assumed .33 .15 1.43 Equal var. not assumed .27 .25 1.33 Non-Warrant Arrest f/w Equal var. assruned .30 .24 1.44 Equal var. not assumed .25 .35 1.33 In Table 6.15, when race is not controlled for, it is seen tint black males are arrested more than twice as often as white males, more than six times as fiequently as black females and more than eight times as often as white women. Sirnce black males only comprise approximately twenty-three percent of the population in Flint, there is no doubt that they are disproportionately arrested as compared to the other goups. If one were to 173 simply look at the raw numbers, one would probably conclude that racism is at the root of the problem. However, given that these findings tend to confirm the previous findings it seems plausible to conclude that as a goup officers are not racist, but practice differential traflic enforcement. This only makes sense when one considers that black males are treated differentially by both sub-goups of police, black officers and white officers. As a matter of fact, black police officers arrest black males rather than white males in geater disproportion than white police officers. Therefore explanations other than racism should be sought. Reasonably one can infer that differential traffic enforcement is endemic in the rules, training and/or socialization process within the police department. Table 6.15: Arrest other than Warrant - Race/Gender N Minimum Maximum Sum Mean Arrest m/b 145 0 52 1182 8.15 Arrest m/w 145 0 70 502 3.46 Arrest f/b 145 0 11 196 1.35 Arrest f/w 145 0 14 143 .99 Total 145 2023 13.95 174 Warrant Arrests An arrest warrant is issued against individual suspected of committing crimes. It is a process irn which a judge or magistrate has preliminarily reviewed assertions made by the police and a determination made as to whether or not the police have probable cause to arrest. If it is determined that cause for an arrest is sufficient, the presiding judge or magistrate then issue a warrant for the person’s arrest. Arrest warrants can be issued for misdemeanor or felony offense. The violations can be as simple as littering or as serious as homicide. Warrant arrests differ from other arrests irn that the illegal behavior has already been committed. In this instance police officers are not interested in ferreting out illegal behavior, but they are interested in seeking out people who have evaded prosecution for earlier urnresolved trans gessions against the State. The data in Table 6.16 indicates tinat black males are arrested on warrants by white officers at nearly 2 1/2 times the rate of white males. Black officers arrest black males on warrants over four times the rate in which they arrest white males. White officers arrest black women with warrants just less than twice the rate of white women. On the other hand, black officers arrest black women over three times the rate they arrest winite women. 175 Table 6.16: Warrant Arrests by Race and Gender Race Of Officer N Mean Warrant Arrests White Officers 92 4.79 Black Males Black Officers 53 2.57 Warrant Arrests White Officers 92 1.77 White Males Black Officers 53 .64 Warrant Arrests White Officers 92 .91 Black Females Black Officers 53 .66 Warrant Arrests White Officers 92 .52 White Females Black Officers 53 .15 Testing for statistical significance was done using the Levenes test for equality of variance along with the independent samples t-test for equality of means test. The same assumptions were used in the previous three analyses of the of the police oflicers’ dailies, namely, that if officers engaged in differential traffic enforcement both black and white ofiicers would arrest more blacks than whites. Again, if racism was the motive behind the arrests, white officers would arrest more blacks as compared to whites at a proportion geater to that of black officers who themselves would be expected to arrest more whites as compared to blacks at a proportion geater than the white officers. When examining these Tables it is seen that there is a difference in the rates of arrest between black officers and white officers in the rates of arrest of black men. This is significant at the .001 level (equal variance is not assumed). There is also a difference in the rate of arrest of white males 176 between white officers and black officers. This is significant at .000 level (equal variance is not assumed). When comparing the rates of women arrested on warrants it is seen that men are nearly five times as likely to be arrested than are women. There is a not a significant difference between white and black officers in arresting black females. The significance is reported at the .336 level (equal variance is assumed). When comparing white officers and black officers in arresting white women there is a difference and it is significant at the .002 level (assuming unequal variance). Table 6.17: Levenes Test for Equality of Variances - Race of Officer F Sig. Warrant Arrests b/m: Equal var assumed Equal var not assumed 10.290 .002 Warrant arrests w/m: Equal var assumed Equal var not assumed 22.217 .000 Warrant Arrests f/b: Equal var assumed 3.444 .066 Equal var not assumed Warrant Arrests f/w: Equal var assumed Equal var not assumed 24.342 .000 177 Table 6.18: t-test for Equality of Means - Race of Officer t df Sig. (2- tailed) Mean Difference Warrants m/b Equal var. assumed Equal var. not assrnned 2.255 2.708 143 136.161 .026 .008 2.23 2.23 Warrants w/m Equal var. assumed Equal var. not assumed 3.456 4.206 143 131.604 .001 1.13 1.13 Warrants b/f Equal var. assumed Equal var. not assumed .966 1.005 143 122.134 .336 .317 .25 .25 Warrants w/f Equal var. assumed Equal var. not assumed 2.656 3.154 143 139.116 .009 .002 .37 .37 178 Table 6.19: t-test for Equality of Means - Race of Officer 95% Confidence Interval of the Difference Std. Error Lower Upper Difference Warrant Arrest m/b Equal var. assumed .99 .27 4.18 Equal var. not assumed .82 .60 3.85 Warrant Arrest m/w Equal var. assumed .33 .48 1.78 Equal var. not assumed .27 .60 1.66 Warrant Arrest f/b Equal var. assruned .26 -.26 .77 Equal var. not assumed .25 -.24 .75 Warrant Arrest f/w Equal var. assumed .14 9.48E-02 .65 Equal var. not assnuned .22 .14 .60 Table 6.20 reports the mean number of warrant arrests by race and gender for police officers as a goup. It is seen that black males are arrested almost three times as often as white males, nearly four times as fi'equently as black females and more than ten times as often as white women. Males of eitiner race are arrested on warrants more frequently then females of either 179 race. Agairn, there is no doubt tinat black males are disproportionately arrested as compared to the other goups. One would be tempted to simply draw the conclusion that racism is behind the reason that black males domirnate warrant arrests, however these findings tend to confirm the earlier findings. As such, it seems plausible to conclude that as a goup officers are not overtly racist, but practice differential traffic enforcement. This only makes sense when one considers that black males are treated differentially by both sub-goups of police, black officers and white officers. As a matter of fact, black police officers arrest black males ratiner than white nnles in geater disproportion than white police officers. Reasonably one can irnfer that difl‘erential traffic enforcement is endemic in the rules, trairning and/or socialization process withirn the police department. It also bears mentioning that warrant arrests are more reflective of the judicial system then the police department. This must be the case since police officers cannot make a warrant arrest unless a judge or magistrate already issued a warrant. This is urnlike other types of arrests irn which police officers have the discretion to arrest or not to arrest. As a result one might reasonable irnfer that more black males have outstanding arrest warrants then other segnents of the population. This is somewhat beyond the scope of the study, irn addition at the time neither Flint City District Court nor Genesee Cormty District Court had the capability to ferret out how many warrants were issued by race or gender. 180 Table 6.20: Warrant Arrests by Race/Gender N Minimum Maximum Sum Mean Warrant m/b 145 0 37 577 3.98 Warrant m/w 145 0 9 197 1.36 Warrant f/b 145 0 9 119 .82 Warrant f/w 145 0 5 56 .39 Total 145 949 6.54 From the preceding tables, it can be seen that police officers in the City of Flint stop more blacks, males in particular, issue them more tickets, arrest them more often for both fresh ofi‘enses and outstanding criminal warrants than one would normally expect to find in the population. Especially when the demogaphics in the commurnity irndicate that blacks, whites, males and females are virtually equally distributed. It is important to remember that this data was taken from the police officers’ DAR. Significantly, this represents the activities that the officers actually did. In this sense the dailies represent an objective accormting of the officers productivity. In the second part of this chapter these results will be compared to how the officers responded to the questions in the survey that was administered. The responses fi'om the questionnaire irndicate how the officers subjectively 181 feel about these very same issues. Part Two: Survey Responses In this section the data pertaining to the survey responses are examined. The dependent variables are gouped into three different categories. Those are: race related variables, orgarnizational variables and, training variables. The independent variable is the officer’s race. The results are reported in two ways. First percentages of ageement arnd disageement are reported for each gouping. Secondly the Levenes test for equality of variance and the independent t-test for the equality of means were used to measure differences between respondents by race. Race was used as the independent variable to determine whetlner or not police officers differed in their responses when race was controlled for. It was felt that if there was not a difl‘erence between the responses, then racism was less likely to be the reason behind differential traffic enforcement. Attitudinal Variables - Race The statements inn the survey were designed to elicit responses fi'om officers ranging in degee fiom: strongly disagee, disagee, neutral, agee and, strongly agee. For coding purposes each answer was given a nnunerical value, e.g., strongly disagee (1), disagee (2), neutral (3), agee (4), strongly agee (5). Means were calculated by averaging the responses. Means less than tinree irndicated that the oflicers disageed with the statement. On the other hand means geater than three indicated that officers agee with the statemernts. 182 The questiomnaire had seven specific questions that dealt with race. These statements were designed to gauge the officers’ beliefs about traffic enforcement activities and the role that race played irnto their decision making process. Presumably if racism was present, one would expect to find tinat white arnd black officers would differ in their responses to the statements. In Table 6.21 it is seen that on the whole, winite ofiicers’ mean response (2.64) to the question “In the last year, I have conducted more traffic stops on white people than on black people” reveals that they disagee with this statement. Black officers’ mean response of ( 1 .94) irndicate a stronger level of disageement with this statement. The Levenes test in Table 6.22 shows a significance level of (.057) which assumes equal variance. The t-test for equality of means in Tables 6.23 and 6.24 indicate that this finding is significarnt at the .002 level. However these findings tend to confirm the ofiicers’ DAR’s in tinat black officers tended to stop black people more than winite people and they did this disproportionately geater than white officers. Thus one would expect to find exactly what was reported, namely, that black officers would more strongly disagee with this statement than white officers. To the statement “In the last year, I have fournd that it is more likely tinat a white male will have a warrant for his arrest than a black nnle” white officers had a mean response of (2.22) and black officers had a mean response of (2.21). The Levenes test result was (.022) which means that equal variance cannot be assumed. The t-test for equality of mearns indicates tint the findings are not significant (.968). When these findings are compared to the objective data taken fiom the DAR’ s, it is found that they too are consistent with each other. Since both goups of officers had arrested more black males 183 on warrants than white males. White officers mean response to the statement “(I)f I were assigned to work an area heavily populated with minorities and I saw a white person in the area that appeared out of place, I would stop that person and find out why he was in the area” was (3 .42) which indicates general ageement with the statement. Black officers mean response to the same statement was (2.85) which irn general indicates disageement with the statement. The Levenes test indicated the assumption of equal variance with a test statistic of (.861 ). The t-test for equality of means shows that this difference is significant at the (.017) level. To the statement “(T)inrough my patrol experience for the last year, I have found that it is more likely that a black male will have a warrant for his arrest than a white male” that white officers mean response was (3.30), while black officers mean response was (3.21). The response fiom botln goups of oficers indicates that irn general they agee with the statement. The Levenes test statistic of (.1 17) assumes equality of variance. The t-test for equality of means indicates tint the differences between means is not significant (.687). This once again confirms data from the DA R’s in that both goups did arrest more black males than white males on warrants. Their answers are seemingly consistent with their activities. To the statement “(I)f I were assigned to work an area that was exclusively white and I saw a black person inn the area that appeared out of place, I would stop that person and find out why he was in the area” white officers had a mean response of(3. 12) which indicates a slight level of ageement with the statement. On the other hand black oficers had a mean 184 response of (2.8 1) which indicates a slight level of disageement with the statement. The Levenes test indicates the assumption of equal variance with a test statistic of (.092). The t-test for equality of means shows that the difference between mean did not reach a significant level (.194). When this finding is compared to the earlier results (stopping a winite person out of the area) it is seen that both goups of oficers still responded with similar patterns, however the difierence mairnly centered on winite officers who seemingly were more reluctant to stop blacks tint appeared out of the area. One possible explarntion for this could be that white officers may be more conscious of the racial implications of stopping blacks who appear to be out of the area and they do not feel the same pressure in stopping whites who appear to be out ofthe area. White officers mean response to the statement “(G)iven the exact same violatiorn, occurring at the exact same time, I would rather stop a white person driving a new car than I would stop a black person driving an old beat up car” was (2.37), indicating that they disagee with this statement. Black officers mean response was (1.97), which irndicates a strong level of disageement with the statement. The Levenes test statistic (.972) indicates the assumption of equal variance. The t—test for equality of mearns shows that the difference between the two gornps is not significant (.055). These responses seem to be irn dispute with the data fiom the DAR’s, primarily because of the disproportion that black males were stopped in comparison to everyone else. This seems especially true when one considers that nearly (95 %) of all drivers of botln races violate traffic laws. The last statement in this section “(D)uring the past year, I have ticketed 185 more black citizens than I have winite citizens” white officers had a mean response of (3.02), which indicates a very slight level of ageement with the statement. Black officers had a mean response of (2.94), which indicates a slight level of disageement with the statement. The Levenes test statistic of (.052) assumes equal variance. The t-test for equality of means indicates that there is not a significant difference between the two goups (.739). The data fi'om the DAR’ s indicated that both goups ticketed more blacks than whites. However black officers marginally denied this while white officers marginally ageed with this statement. Out of the seven (7) variables examined, it was found that with five (5) them there was not a significant difference between the mean answers of white and black officers. The other two (2) variables did show a significant difference in the means, however the difference in the first instance confirmed what was found inn the objective data. The difference found irn “stopping whites out of place” was also somewhat consistent with the findings in “stoppirng blacks out of place.” What was somewhat surprising is that the white officers level of ageement was stronger in the former rather than the latter, while black officers expressed somewhat the same level of disageement to both statements. If racism was operative, one would expect different results, especially fi'om the white officers. 186 Table 6.21: Attitudinal Variables - Race Strongly Disagree Neutral Agee Strongly Mean Disagee Agee stopped WI 2.64 more b/ 1.94 w/m 20.2% 40.5% 19.0% 10.7% 3.6% both 2.37 more WI 2.22 white b/ 2.21 lnve 19.0% 42.9% 35.7 1.2% 1.2% both warrant 2.23 stop WI 3.42 white b/ 2.85 out of 8.3% 17.9% 25.0% 42.9% 6.0% botin area 3.2 more w/ 3.30 black b/ 3.21 have 3.6% 17.9% 34.5% 36.9% 7.1% both warrant 3.26 stop w/ 3.12 black b/ 2.81 out of 11.1% 22.2% 27.2% 37.0% 2.5% both area 2.98 StOp WI 2.37 white in b/ 1.97 new car 27.5% 28.8% 38.8% 5.0% .0% both vs. black 2.21 in old ticketed w/ 3 .02 more b/ 2.94 black 9.8% 23.2% 32.9% 26.8% 7.3% both than 2.99 white w/ = white officers mean response b/ = black officers mean response both = combined mean response of both black and white officers 187 Table 6.22: Levenes Test for Eqruality of Variances - Race of Officer F Sng. Stop more white than black: Equal var assumed 3.738 .057 Equal var not assumed Whites more warrants than blk: Equal var assumed Equal var not assumed 5.478 .022 Stop white out of area: Equal var assumed .031 .861 Equal var not assumed Blks more warrants than whites: Equal var assumed 2.509 .1 17 Equal var not assumed Stop black out of area: Equal var assumed 2.910 .092 Equal var not assumed Stop white in new car vs. black in old car: Equal var assruned .001 .972 Equal var not assumed Ticket more black than white: Equal var assumed 3.896 .052 Equal var not assumed 188 Table 6.23: t-test for qugality of Means - Race of Officer t df Sig. 2 tail Mean Stop more white: Equal var. assumed ual var. no assumed 3.155 3.293 81 77.467 .002 .001 .70 .70 More white have wan'ant: Equal var. assumed ual var no assumed .043 .040 81 5 l .602 .966 .968 7.88E-03 7.88E-03 Shrp white out of area: Equal var. assumed ual var. no assumed 2.439 2.472 81 71.703 .017 .016 .57 .57 More black warrants: Equal var. assumed 11ng var. assumed .404 .384 81 56.685 .687 .702 8.79E-02 8.79E-02 Stop black out of area: Equal var. assumed E ual var. no assumed 1.311 1.257 78 55.407 .194 .214 .32 .32 Sfop white in new car vs. black in old: Equal var. assumed E ual var. no assumed I .947 1 .904 78 59.241 .055 .062 .40 .40 Tkt more blk Equal var. assumed ual var. no assumed .334 .313 79 51.277 .739 .755 8.45E-02 8.45E—02 189 Table 6.24: t-test for Equality of Means - Race of Officer 95% C. I. of the Difference Std. Error Diff. Lower Upper Stop more white Equal var. assumed Equal var. not assumed .22 .21 .26 1.14 .28 1.12 More white have quarrants ua var. assumed Equal var. not assumed .18 .20 -.36 .37 -.39 .40 Stop white out of $5351 var. assumed Equal var. not assumed .23 .23 .11 1.04 .11 1.03 More black have warrant Equal var. assumed Equal var. not assumed .22 .23 -.34 .52 -.37 .55 Stop black out of area: Equal var. assumed Equal var. not assumed .24 .25 -.16 .80 -.19 .82 Stop white in new car vs. black in old car: Equal var. assumed Equal var. not assumed .21 .21 -8.90E-03 .81 -2.03E-02 .82 Ticket more black than white: Equal var. assumed Equal var. not assumed .25 .27 -.42 .59 -.46 .63 190 Organizational Variables There were nine (9) variables that were organizationally oriented witlnin the questiomnire. These were designed to elicit responses that would help identify whether or not orgarnizational goals played a role in differential traffic enforcement. The answers to these statements were coded just as iii the precedirng section. The responses of the white ofiicers are compared to the responses of the black oflicers to establish whether or not they view the organizational goals and mission differently. It is posited that if the Department placed an emphasis on arrests that this would be revealed iii the responses to these questions and may be an indicator of institutional racism. On the other hand if officers do not believe that arrests are of benefit to them departrnentally, one could argue that differential trafiic enforcement is a merely a result of officers attempting to ferret out criminals. In Table 6.25 the mean response of white officers to the statement “(M)y supervisors do not care whether or not I conduct traffic stops” is (2.52) which irndicates tint they disagee with this statement. Black officers have a mean response of (1 .73) which indicates a strong level of disageement with this statement. In Table 6.26 the Levenes test for with a result of (.094) indicates the assumption of equal variance. In Tables 6.27 and 6.28 the t-test for equality of means reveals that there is a Significant difference between the means of the two goups of officers and that this is significant at the (.001) level. Although there is a significant difference between the two goups the 191 difference is only in the level of disageement as both goups disagee with statement. As such, there is a consensus between the two tint supervisors do care if they engage in traffic enforcement activities. This lends some credence to the notion that there are departmental norms which at the minimum irnfonnally require omcers to conduct enforcement activity. To the statement “(C)atching criminals is the primary fimction of police departments” white officers had a mean response of (2.90), which indicates that they slightly tended to disagee with the statement. On the other hand, black officers had a mean response of (3.39), which indicates tint they ageed with the statement. The Levenes test for equality of variances had a test statistic of (.9 1 7) which irndicates an assumption of equal variance. The t-test for equality of means shows that there is not a significant difference between the means of both goups (.091). On the whole, both goups are somewhat unsrn'e of the Department’ 5 direction in this area. This finding is interesting in that if oficers believe that catchirng criminal is not a priority for the police, then the notion that officers engage in differential traffic enforcement to ferret out criminal behavior loses some of its impetus. The next statement “(M)y department places too much emphasis on commurnity policing” finds the mean answer of white ofiicers at (3.26), which indicates a level of ageement to the statement. Black officers mean answer of (2.36 ) indicates that they disagee with this statement. The Levenes test 192 statistic (.000) for equality of variances requires that equal variance not be assruned. The t-test for equality of means shows tint tinere is a significant difference between the two goups of officers with a significance level of (.000). This finding is irnterestirng, since in the previous question white oflicers marginally felt that catching criminals was not the primary purpose of police departments, yet, they felt that their Department emphasized commurnity policing too much. While the black ofiicers felt catching criminal was the primary purpose, yet, they felt community policing was not emphasized enough One explarntion might be that black ofiicers believe tint too much emphasis is placed on arresting people and not enough on helping people. While white officers may believe arresting people is not all tint important but, that commurnity policing takes up more of time then they would like to give. Fmther research is needed in this area. To the question “(M)aking arrests is one way to enhance promotional opporturnities” white officers had a mean response rate (2.32) which indicates disageement to the statement. Black oficers had a mean response rate of (2.64) which also irndicates disageement to the statement. The Levenes test statistic of (.01 1) requires that equal variance not be assnuned The t-test for equality of means had a result of (. 199) which means that there is not a significant difference between the two goups. This seems to be somewhat conmter intuitive as neither goup believes tint nnaking arrests will enhance their promotional opporturnities. However 193 through interviews it was determined that this was due to the fact that Flint Police Officers have a strong collective bargaining agreement which outlines promotional procedures. The next statement “(M)y police department emphasizes treating all citizens equally” had a mean response of (3.94) for white ofiicers. This indicated that in general they ageed with the statement. Black officers had a mean response rate of (3.77) which also indicated agreement with the statement. The Levenes test statistic of (.0 1 5) required that equal variance not be assumed. The test statistic (.548) for the t-test of equality of means indicated that there was not a sigrificant difl'erence between the two goups. Interestingly, both groups of officers ageed that the police department emphasized that all citizens be treated equally. If one were to have assumed that the police department’s norms were racist, this is seemingly strong contradictory evidence since one would not expect both goups of ofiicers in ageement with this statement. With respect to the question “(T)raflic stops are one of several law- enforcement activities that is emphasized by my police department” white officers had a mean response of (3.35) which indicates ageement with the statement. Black ofiicers had a mean response of (3.71) which also shows agreement with the statement. The Levenes test shows a sigiificance level of (.182) which means that equal variance can be assumed. The t-test for equality of means showed a test statistic of (. 107) which indicates that there is not a significant difi’erence between the groups. 194 One interpretation of this statement when combined with the previous statement is that differential traflic enforcement is the choice of the officer, not the department. This can be inferred in that the officers acknowledge that the department wants the officers to treat the citizens equally, the mere fact that the agency also wants traffic enforcement does not mitigate the ofiicers obligation to treat people fairly. To the statement “(M)y department places more emphasis on helping citizens than catching crimina ” white officers had a mean response of (2.98) which barely states disageement. In fact, one could argue that the response of the white officers could be better interpreted as either neutral or “don’t lmow.” Black officers had a mean response of (2.39) which indicates disagreement with the statement. The Levenes test (.149) assumes equality of variance. The t-test for equality of means was sigrificant (.013) which indicates that there is a difference between goups. Black officers are fairly consistent in their responses to statements such as this, the inference drawn is that they feel the Department does not emphasize the helping aspect enough, that it focuses on the law enforcement activities versus peace officer activities. White officers slightly disageed with the statement however they expressed a strong “neutral” opinion. They too are somewhat consistent in their beliefs that the Department places too much emphasis on the helping aspect and inferentially, not enough on law enforcement activities. To the statement “(T)here is a direct connection between how hard I work 195 and the promotion that I get” white oficers had a mean response of (2.25) which shows disagreement with the statement. On the other hand, black oflicers had a mean response of (2.58) which also shows disageement with the statement. The Levenes test for equality of variance was (.511) which assumes equality of variance. The results of the t-test for equality of means was (.243) shows that there was not a sigtificant difference between the two goups. Neither goup felt that there was a connection between work ethic and promotions. This is interesting in that this directly bears on the notion of responsibility for differential trafiic enforcement. If neither group feels tlmt the Department cares about the level of work they do in relation to being promoted, inferentially one could posit that ofiicers engage in differential traflic enforcement because they want to do this activity. This is vastly different fi'om doing it because they feel departmental pressures to engage in this activity. Lastly white officers had a mean response of (2.38) to the statement “(P)olice supervisors do not care about officers making arrests.” This indicates disageement with the statement. Black oficers had a mean response of (l .74) which indicates a strong level of disageement with the statement. The Levenes test statistic of (.078) assumes equal variance. The t-test for equality of means shows that there is a sigrificant difference between the goups at the (.004) level. What is interesting is that police officers of both goups feel that their 196 supervisors care about them making arrests, yet, apparently there is only an internal incentive for making arrests. One plausible interpretation is that supervisors create an atmosphere in which differential traflic enforcement is encomaged, since they are the ones that make daily duty assignments. This interpretation is in part based on interviews that were held with both supervisors and subordinates. Some supervisors stated that they would base some assignments on the caliber of employee, giving the better districts to those who wanted to work and, assigning employees whom they considered “slugs” to areas that forced them to work. On the other hand some subordinates claimed that some co-workers always seemed to get the better assignments and that supervisors rewarded some officers by letting them work the district that they wanted. It is unknown if this is merely a form of nepotism or if in fact supervisors awarded choice assignment to employees who worked. However, informally, there is an under cm'rent that this occurs. Out of the nine (9) variables examined there was not a significant difference inn five (5) of them. The four (4) that significance was found, three (3) of them were significant on the level of disageement. In other words both black and white ofiicers disageed with the statements, simply one goup disageed more. The one statement with a significant difference in which there was disageement, black officers did not believe that the Department placed too much emphasis on community policing while white officers felt that it placed too much emphasis on commurnity policing. 197 These variables were designed to determine whether or not there were departmental norms that placed an emphasis on arresting people. If it were found that there were norms, this would give credence to the notion that the Department encouraged differential traffic enforcement. The findings were to the contrary in that officers did not perceive pressures from the organization to make arrests. However, they did feel pressures from their supervisors to make arrests. It may be the case that supervisors have departmental pressures for arrests, however this is beyond the scope of the study. 198 Table 6.25: Organimtional Variables - Race Strongly Disagee Neutral 4 Agee Strongly Mean Disagee Agee supviser WI 2.52 do not b/ 1.73 care 28.6% 42.9% 1 1.9% l 1.9% 4.8% both traffic 2.21 stops Catching w/ 2.90 criminal b/ 3.39 primary 9.5% 34.5% 10.7% 28.6% 16.7% both function 3.08 Dept. to w/ 3.26 much b/ 2.36 ennpln. 9.5% 33.3% 28.6% 14.3% 14.3% both Com Pol 2.90 Making w/ 2.32 arrest b/ 2.64 enhance 19.0% 35.7% 27.4% 16.7% 1.2% both promo 2.45 Dept. w/ 3.94 emph b/ 3.77 equal 6.2% 7.4% 4.9% 55.6% 25.9% both treatmnt 3.88 Traflic WI 3.35 stop b/ 3.71 emph. 2.5% 17.3% 19.8% 50.6% 9.9% both by PD. 3.48 13mph on WI 2.98 citizen b/ 2.39 not 8.6% 35.8% 34.6% 13.6% 6.3% both catch 2.75 . . 1 Direct WI 2.25 connect b/ 2.58 work - 30.0% 26.3% 23.8% 13.8% 6.3% both promote 2.40 Supvisor WI 2.38 not care b/ 1.74 about 26.8% 45.1% 17.1% 8.5% 2.4% both arrests 2.15 199 Table 6.26: Levenes Test for Equality of Variances - Race of Officer F Sig. Supervisors do not care trafiic stops: Equal var assumed Equal var not assumed 2.864 .094 Catch criminals primary function: Equal var assumed Equal var not assumed .011 .917 Dept to much Com Pol Equal var assurrned Equal var not assumed 14.316 .000 Making arrest enhance promotion: Equal var assumed Equal var not assumed 6.760 .011 Dept. emphasizes equal treatment: Equal var assumed Equal var not assumed 6.240 .015 Traffic stops emphasized by P.D.: Equal var assumed Equal var not assumed 1.817 .182 Emph. help citizen not catch criminals: Equal var assumed Equal var not assumed 2.124 .149 Direct connect work and promotions: Equal var assumed Equal var not assumed .436 .511 Supervisor not care about arrests: Equal var assumed Equal var not assumed 3.179 .078 200 E—wfl _ Table 6.27: t-test for Equality of Means - Race of Officer t a? Srg' . 2-taila W #— . Supervrsors do not care about traflic Equal var assume ual var no ass 3.298 3.365 81 73.146 .001 .001 .79 .79 m rime ctron Equal var assume ual var. no assumed -1.710 -1.705 81 68.054 .091 .093 -.49 -.49 Emphasizes Com Pol. Equal var assume ual var. no assumed 3.540 3.904 81 80.396 .001 Making arrests enhances romotron ual var assume ual var. no assumed -1.381 -1.302 81 54.975 .171 .199 -.32 -.32 Emphasizes ual eq treatment: Equal var assume E ual var. no assumed .659 .605 78 47.276 .512 .548 .16 .16 Tra hcb f’rdfice Sept; Eq 1 ua var assume ual var. no assumed -1.628 -1 .649 78 66.568 .107 .104 -.36 -.36 201 Emph. hel crtrzen no catch crrrnmals Equal var assume E ual var. (1 no assume +— 2.544 2.741 78 76.806 .013 .008 .59 .59 Direct . connectron work and ° romotron qual var assume E ual var. no assumed 1.177 1.163 77 61 .689 .243 .249 -.33 -.33 Supervisors do not care about arrests Equal var assumed Equal var not assumed 2.930 3.142 79 76.489 .004 .002 22$ 202 Table 6.28 : t-tcst for Equality of Means - Race of Officer 95% C. I. of the Difference Std. Error Diff. Lower Upper Supervisors do not care about traffic stops: Equal var. assumed Equal var. not assumed .24 .24 .31 .32 1.27 1.26 Catching criminals is primary fimction P.D.: Equal var. assmned Equal var. not assumed .29 .29 -1.07 -l.07 8.08E-02 8.08E-02 Dept. to much e h. on Com. Po .: Equal var. assumed Equal var. not assumed .25 .23 .39 1.40 1.35 Making arrests enhances promotions: Equal var. assumed Equal var. not assumed .23 .24 -.77 -.8O .14 .17 Dept. emphasizes equal treatment: Equal var. assumed Equal var. not assumed .25 .27 -.33 -.38 .66 .71 203 Traffic st0ps emphasized by P.D.: Equal var. assumed Equal var. not assumed .22 .22 -.81 -.81 8.07E-02 7.64E-02 Emphasis on helping citizen not catch crim.: Equal var. assumed Equal var. not assumed .23 .22 .13 .16 1.06 1.02 Direct connect between work and Promotion: Equal var. assumed Equal var. not assumed .28 .28 -.89 -.90 .23 .24 Supervisors do not care about arrests: Equal var. assumed Equal var. not assumed .22 .20 .20 .23 1.07 1.04 204 Discussion of Hypotheses There were four (4) suggested hypotheses. The first null one “(P)olice are not more likely to stop a black motorist rather than a white motorist,” was rejected. The DAR’s revealed that oflicers regardless of their race stop black motorists at a far geater rate than white motorists. Even though blacks comprised smaller numerical numbers than whites, they were stopped more fiequently than whites. However this only held true when gender was factored into the equation. Males were stopped more frequently than females, regardless of race. The research instrument also supported this as both white and black officers believed that they had stopped more blacks than whites. In fact among oflicers, blacks believed this more strongly tlmn white officers. The second null hypothesis “(P)olice are not more likely to stop a black motorist rather than a white motorist based on the belief of an outstanding warrant for the person,” was rejected. The analysis of DAR’s indicated that blacks were several times more likely to have been arrested on outstanding arrest warrants than are whites. Once again this only holds true only if gender is not considered. Since males regardless of race were several times more likely to have been arrested on outstanding arrest warrants then females. The research instrument supports this as oficers, regardless of race, believe that blacks have more outstanding arrest warrants than whites. It is apparent that this belief is translated to practice since blacks, males in particular, find themselves stopped and ticketed more frequently than one would generally expect to find in the population. The third hypothesis “(P)olice decisions to stop black people are based on racist attitudes, not on imbalanced statistics. The review of the DAR’ s 205 simply does not support this. If this were the case one would expect to find white police officers stopping blacks in geater proportion to that of black officers. This was not found. In fact, black police officers proportionately stopped more blacks than they did whites. White officers also stopped more blacks than whites, however proportionately they were not as extreme as black ofiicers. Further both white and black officers arrested blacks on outstanding arrest warrants and for “fresh” criminal offenses in frequencies far geater than they did whites. However, these difl'erences only held true when gender was not controlled for. Once gender was controlled, it was formd that white males were stopped and arrested significantly more than black or white females. The research instrument also supports this as omcers regardless of race believed that they had stopped more blacks than whites and that they felt black males had more outstanding arrest warrants than whites. Lastly, the fourth hypothesis “(A)n enforcement pro-active police agency is not more likely to encourage officers to stop a geater number of minority motorists,” was not rejected. Although the DAR’ s reflected that minorities were stopped in numbers significantly geater than white people, the research instrument simply did not reveal that this was related to practices within the police department. In fact officers reported that although they felt that making arrests were important, they did not feel that it would help with advancement in their careers. This is not to say that the department did not think that making arrests was important, simply officers did not perceive it as a departmental factor. However oficer did acknowledge that police supervisors cared about the level of arrests that they made. Although this was a form of pressure it was of little consequence since oflicers knew that aside 206 fiom duty assignments there was little else of consequence that could happen to them. These findings reveal that differential traflic enforcement is practiced in the Flint Police Department. They do not indicate that the department nor it’ s officer have an overtly racist motive in practicing this activity as both white and black officers engage in this practice. In fact black officers proportionately stop more blacks than do white officer. However, even given that there may not be a racist motive in stopping blacks, the end result is still the same, they are stopped, ticketed and arrested more frequently than are white people. Summary When utilizing data from the DAR’s it is seen that when gender is not controlled, blacks are more likely to be stopped, ticketed and arrested then are whites. However when gender is controlled for it was found that black males were significantly more likely to be stopped, ticketed and arrested than white males, black females or white females. On the other hand, white males were more likely to be stopped, ticketed and arrested than either black or white females. When controlling for the race of the officer it was found that black officers proportionately stopped black males in geater relative numbers than they did white males. White officers also stopped black males in geater proportions than white males, however, the difference was not as great as the black officers. Black and white females were stopped infrequently as to what one might normally expect given their proportion in the population. 207 When examining the survey instrument, it was found that neither goup of ofiicers felt “departmental” pressure to make arrests. However both goups acknowledge that their supervisors want both arrests and traffic contacts. Neither goup felt that these activities were related to their advancement within the police department. However anecdotal comments revealed that supervisors rewarded officers who produced, arrests and traffic stops, by giving them preferred assignments. Three of the four null hypotheses were rejected including: 1) Police ofiicers are not more likely to stop a black motorist rather than a white motorist, 2) Police are not more likely to view racially unbalanced traffic stops as standard police practice based on a focus of criminal behavior, 3) Police decisions to stop people of color are based on racist attitudes not imbalanced statistics. Based on the data these were rejected. The fourth hypothesis could not be rejected as the evidence did not support the notion that the practices promulgated by the police department encouraged officer to engage in differential trafic enforcement. 208 CHAPTER7 Conclusions and Recommendations Introduction This inquiry was composed of three parts. The first part consisted of formulating a basis for the application of differential traffic enforcement in the context of pretext traffic stops. The second part consisted of the development of an ethical paradign which was designed to guide officers actions with respect to difi‘erential traffic enforcement. The third part consisted of the complete examination of traffic enforcement activities of police officers’ DAR’s assigned to the general patrol division of the Flint City Police Department. This resulted in the review of nearly thirty-thousand daily reports. This was followed by the administration of a survey instrument to officers assigned to this division, of which eighty-four officers out of one- hundred and forty-five participated. The analysis of this data served to reinforce the theoretical perspective developed in this case study. Specifically, the issues addressed earlier in Peel’s Ten Principles of Law Enforcement and the notion of fairness outlined irn the ethical theory: Reflective Equilibrium. Although it was not feasible to test the various ethical paradigns that officers operated under; questions in the survey were designed to illicit general notions of fairness. Specifically, as it relates to the types of persons that an oflicer would stop in certain situations. The research provides a starting point to address the issue of differential traflic enforcement in the 209 A-— context of race. Conclusions and Recommendations‘ Difi‘erential traffic enforcement in the racial context is problematic in that people are sirngled out for treatment based on skin color. However, in society at large differential treatment in the general context is somewhat common place. Consider for example similar parallels: insurance agents who charge teenagers higher rates for insurance than the elderly or mortgage brokers who assign poirnts based on the type of category one fits irnto. Also consider the notion of selective recruitment in academia, athletics and the military. In all of these cases there is the selective perception that a person is either at geater risk to succeed or fail. In this way the treatment of these goups of peOple is based upon statistical evidence that is used to predict firture behavior. What is important is that society at large uses goup characteristics to predict individual probability with respect to failure or success. In this sense given the statistical evidence that police officers are confionted with, they are in essences acting no differently than the insurance agent, mortgage seller, academic or military recruiter in selecting people for differential traffic enforcement They are merely irncreasing their chances of arresting people that they believe are most likely to be involved in criminal activity. Although the findings indicate that inn the subjective sense individual oflicers are not racist they can not be extrapolated to the objective or structural sense. By this it is meant that there might be nnles or policies ‘Much of this discussion is a result of conversations with Dr. Albert Cafagna 210 within the police department that encourage the practice of differential traflic enforcement. The structural environment may produce racist results, such as black males being disproportionately stopped, by officers who themselves may not be racist. This is of little consolation to those who are affected by this practice since the end result is disparate treatment. As such, race is a factor in differential traffic enforcement. The consequences of this specific police behavior is that the more that it is practiced, the more likely it will be reinforced by arrests. It becomes self- fulfillirng in that the more blacks are stopped the more they will be arrested; the more that they are arrested the more they will over-represent the numbers of those arrested relative to their numbers in the population. Thus the cycle feeds upon itself and if officers continue the practice of difi‘erential traflic enforcement the future will also represent a disproportionate number of blacks coming into contact with police officers via traffic enforcement contacts. Additionally this means that the more that these patterns are reinforced the geater the likelihood that relations between the police and the black community will deteriorate. If this continnues it is only reasonable to expect less trust in the future. However these predictions need not take place. There are several strategies that the police could employ to ameliorate this cycle. For instance they could attempt to explain to the black commurnity that they are merely using predictors to identify those that prey upon the law abiding members of society. The heightened surveillance that the police give the black community is a way to protect the law abiding black community fi'om being victimized by predators. 211 Secondly, as social and economic inequalities disappear this heightened surveillance can gadually disappear. As the economic statistics change so too will differential traflic enforcement. This seems reasonable since presumably the reason that the police give the black commurnity their attention is related to the notion criminality. As more and more blacks attain middle class stature, the less that they will be associated with crime as social and economic equalities seemingly are at the root of blacks being over- represented in the criminal statistics. In mean time there are several measures that the police can undertake to gain the trust of the black community. First and foremost, they can formally bar the use of racial characteristics in determining whom they are going to stop. This is not to infer that police should not stop someone because of who he is, a known drug dealer. However they should not stop anyone because of what they are; in this case the “what” refers to a specific classification, i.e., black, white, yellow, etc. This is not to say that police officer when looking for a specific criminal ought not be able to stop people fitting that general description. However what is being asserted is that police officers should not be allowed to go on a “fis ° g” expedition and stop every black person in the hopes of finding one that may possess drugs or some other illegal substance. In fact as was detailed earlier the courts have ruled that the practice of using race as a part of a profile for stopping a person simply to determine whether or not they were engaged in an illegal activity is not permissible. Secondly, the police ought to consider adopting a different approach to traffic enforcement one that takes into consideration the impact that specific police practices have on society. One suggestion might include the notion 212 that officers adopt a higher standard when searching automobiles. Cole (1999) suggests that the Supreme Court require that officer use the “reasonable person” standard. In essence this would still allow officers to stop anyone they wish as long as tlnere is a traffic violation, but, it would place the burden on the oflicer to articulate why a search of the automobile or person was necessary. This would require that the officers’ suspicion rise at least to the minimum level of a stop and fiisk search. Cole points out that most importantly each stop and fi'isk must be based on individualized grournds, not goup characteristics. This essentially would remove the issue of race for police officers when conducting searches. Third, for the last twenty or so years community policirng has been the paradign nmder which several police agencies lave operated. These progams have generally addressed the problems of crime and it’ s causation within the community and as the concept’s name suggests the solutions require community involvement. This approach could work in the traffic context although it would require that police and community leaders work together to educate citizens as to the rationale for differential enforcement. If pe0p1e are able to change their view-point and see contacts with the police as less oppressive and as a way to control crime and criminality this would go a long way towards healing schism between the police and the black commurnity. Lastly there is the issue of police trainirng. This research has shown that differential traffic enforcement is a common practice of botln white and black police ofiicers. Further that inn the City of Flint neither goup of officers believe that their specific job performance is related to their advancement 213 within their department. This leads one to believe, at least inferentially so, that racism does not dominate tlne Flint Police Department at the institutional level. This of course is the good news as this means that one need not challenge the official structure to effect change. One merely needs to challenge the beliefs of officers as a goup. This can be accomplished by giving additional on the job training to officers so that they are instructed as to notions of fairness and sensitivity to others who may not fully understand the police practice of differential trafic enforcement. To facilitate this change, the police department could offer incentives to officers to comport with the notion of fairness. This might include tying advancement within the department to job performance and assessments of citizen satisfaction with the officer. This could be accomplishment by citizen surveys and documented work history. It is only through adherence to the principles of impartiality and fairness can the police and the minority community ever hope to reconcile their differences and work together for a better society. 214 Bibliography Arras, John D. and Bonrnie Steinbock. Ethical Issues in Modern Medicine. Mourntain View, California: Mayfield Publishirng Co. (1995) Bandura, A. Social Learning Theory. Englewood Cliffs, New Jersey: Prentice-Hall (1977). Bayley, David and Harold Mendelsohrn. Minorities and the Police. New York, New York: Free Press (1969). Bartol, Curt R. Psychology and American Law. Belmont, California: Wadsworth Publishing Company (1983). Benjamin, Martin. Lecture, Michigan State University, October 17, 1995. Berelson, B. and Skinner, G. A. Human Behavior: An inventory of Scientific Findings. New York: Harcourt Brace and World Inc. (1964). Campbell, Angus and Howard Schumann “Racial Atttitudes in Fifteen American Cities,” Supplemental Studies for the National Advisory Cormnission on Civil Disorders. Washington, D. C. : US. Government Printing Office (1968). Cole, David. No Equal Justice: Race and Class in the American Criminal Justice System. New York: New Press (1999) Delattre, Edwin J. Character and Caps: Ethics in Policing. Lanharnn Maryland: University Press of America, Inc. (1989). Franklin, Raymond S. Shadows Of Race And Class. Minneapolis Minnesota: University of Minnesota Press (1991). Goldsteirn, Hermarn. “Police Response to Urban Crises.” Public Adr_n_rr_nr' 'stration Review. 28 no. 5 (September/October, 1968) 417-418. 215 Hahn, Herbert. “Ghetto Assessments of Police Protection and Authority.” Law and Society Review. 6: 183-193 (1971). Hannilton, D. C. Cognitive Processes in Stereotyping and Intergroup Behavior. Hillsdale New Jersey, (1981). Hare, R. M. Moral Thinking: Its Levels, Method and Point. New York, New York: Oxford University Press (1988). Harman, Gilbert. The Nature of Morality: An Introduction to Ethics. New York: Oxford University Press (1977). Homant, R. J. “Public Perceptions of tlne Police: Attitudes and Complaints.” V. G. Strecher, L. T. Hoover, and J. T. Dowling (Eds) Encyclopedia of Police Science. Garland Publishing Company (1989). Hy, R. J ., Feig, D. G., and Regoli, R. M. Research Methods and Statistics: A Primer for Criminal Justice and Related Sciences. Cincinnati, Ohio: Anderson Publishirng Company (1983). Jacob, Herbert. “Black and White Perceptions of Justice in the City.” Law and Society Review. 5: 69-88 (1971). Kant, Immanuel. Prolegomena To Any Future Metaphysics (I 783). Indianapolis, Indiana: Hackett Publishing Company (1977) Kant, Immanuel. Fundamental Principles of the Metaphysic of Morals (I 785). As cited in: An Introduction to Ethics. Robert E.Dewey and Robert H. Hurlbutt HI editors. New York, New York: Macmillan Publishing Co., Inc. (1977). Kennedy, D. B. “Toward a Clarification of Police Role as a Human Service Agency.” rirrninal Justice Review. 8:41-55 (1983) Lundman, Richard J. “The Traffic Violator: Orgarnizational Nouns.” Carl B. Klockars editor. Thinking about Police: Contemporary Readings. New York, New York: McGraw—Hill Book Company (1983). 216 Madison, James, Alexander Hamilton and John Jay. The Federalist Papers. Clinton Rossiter editor. New York, New York: Times/Mirror Publication (1961). No. 10 Mill, J. S. On Liberty (1858). Stefan Collini editor. Cambridge, New York: Cambridge University Press (1991). Mill, John Stuart. Utilitarianism (1863). As cited in: Reason and Responsibility. Fifth edition. Joel Feinberg editor. Belmont, California: Wadsworth Publishing Company (1981). Misner, Gordon, B. “Enforcement: Illusion of Security.” Nation. 208 no. 16 (April 21, 1969): 488 Packer, Herbert L. The Limits of Crim inal Sanctions. Stanford, California: Stanford University Press (1968). Peltason, J. W. and Edward Samuel Corwin. Understanding The Constitution. Ninth edition. New York, New York: Holt Rinehart and Winston (1982). Peterson, C., and Selignan, M. E. P. “Learned Helplessness and Victimization.” Journal of Police and Administration. 39: 103-116 (1983). Radelet, Louis, A. The Police and the Community. Fourth edition. New York, New York: Mcnnillan Publishing Company (1986). Rawls, John. A Theory of Justice. Cambridge Massachusetts: The Belknap Press of Harvard University Press (1971). Reiss, Jr., Albert, J. The Police and the Public. Cambridge Massachusetts: Yale University Press (1971). Rubirn, Z., and Peplau, L. A. “Who Believes irn a Just World.” Journal of Social Issues. 31: 65-86 (1975). 217 Swanson, Charles R and Leonard Territo. Criminal Investigation. New York, New York. McGraw-Hill Publishing Co. (1996). Verdun-J ones. “Victims Before the Law.” Butterworth 's Criminology Series. Canada: Butterwortln and Co. (1983). Weber, Max. The Theory of Social and Economic Organization. Translated by A. M. Henderson and Talcott Parsons. New York, New York: The Free Press, Macmillan Publishing Co. (1947). Wilson, James Q. Varieties of Police Behavior: The Management of Law and Order in Eight Communities. Cambridge, Massachusetts: Harvard University Press (1968). Wilson, William J. The Declining Significance of Race. Chicago and London: The University of Chicago Press, (1980). 218 APPENDIX A Transmittal Letter to Flint Police Chief Date: May 11, 1998 Dear Chief Hampton, My name is Jude Rariden I am currently a Doctoral Candidate at Michigan State University, seeking an inter-disciplinary Ph.D. in criminal justice, in addition, I am a patrol sergeant with the Grand Blanc Township Police Department. I am working on a research project (my dissertation) which seeks to determine factors involved in a police officer’ s decision making process on whom they conduct traffic stops on. In short, I am trying to determine why officers choose to stop one vehicle over that of another. In order to do this, I will need access to numerous departmental records. With your approval, I would like to examine the last year’ s worth of patrol officers’ daily activity sheets. In addition, I would like to examine both the police copies (or file copies) of traflic citations as well as warrant files. With respect to warrant files, I am irn the process of contacting the Michigan State Police L.E.I.N. Services to see if they can do a computer audit of the warrants. If they are able to do this, then I would not have any need to look at the warrants. Next, with your permission and the cooperation of your patrol officers, I would like to personally interview some of them as well as adrnirnister a questionnaire to all (or at least those willing to participate) patrol officers. 219 This information is goirng to be used for my dissertation only. I am not acting in any capacity other than that of a student/researcher. I will not identify any oficer individually, in fact, once the questionnaires are tabulated, they will be destroyed. Confidentiality of all the participants is guaranteed. Finally, all those who participate can get a copy of the results of the questionnaire. The results will be available on a goup basis only, that is, specific questionnaires and the identity of the person who took it will not be released. With your approval, I would like to start gathering this irnformation as soon as possible. It is my hope that I would be able to be completed with the archival research withirn a few months. Once that is conrpleted, I would then begin the process of interviewing officers and administering the questionnaires. Thank you in advance for your consideration on this matter. Sincerely, Jude Rariden 220 APPENDIX B Transmittal Letter to Respondents My fellow officers, I am a sergeant with the Grand Blanc Township Police Department. I am currently working on my doctoral degee in criminal justice through Michigan State University. I am at the stage in my progam (this is my last hurdle) where I have to write a dissertation. For my dissertation I have chosen to investigate the process in which officers go through irn determining the importance of arrests and traffic stops. Additionally, I hope to find out how officers think this will affect their careers. Please do not put your name anywhere on the questionnaire. The results are to be completely anonymous and your participation is W W. l have asked some general questions age, sex, etc., because I need to interpret the results on a goup basis. These questions will not be used to identify you in m way. In fact the questionnaires will be destroyed as soon as the results are tabulated. There will not be any other person looking at these questionnaires. They will he! be made available to any police department. There are only 27 short questions and it should not take you very long (5 to 10 rrninutes) to complete this questionnaire. I do need you to give me your honest answers. When you are done you can place them in the box on your way out of the room. Agairn, all the responses will be kept anonymous. Further, this research concerns my work as a student em, and is not a furnction of my work as a police officer. Your cooperation in this matter will be geatly appreciated. If you are interested in the goup results, once they are completed, I will make them available to any of the participants that requests them. 221 Thank you in advance for your assistance. Jude Rariden 222 APPENDIX C Research Instrument Please answer the following questions. None of this information will be used to identify you in anyway. This information will only be used in the aggregate, to analyze the goup. As such, it is essential that you answer each question so that I may perform the necessary statistical tests. What is your age? What is your race? a. Black b. White c. Hispanic d. Other (please describe) Please circle one. Male or Female What is your educational level? (Please circle one) a. High school or GED. b. Some college c. Two—year college degee d. Four-year college degee e. Some gaduate work f. Master’s degree g. Doctorate degee How many years have you been a police officer? Prior to becoming a police omcer, about how many times were you stopped or approached by the police? If you were stopped, do you feel that they treated you in a fair manner? Since becoming a police officer, about how many times have you been stopped or approached by the police? (While off duty.) If you were stopped, do you feel that they treated you in a fair manner? 223 Please circle the answer that most closely fits the type of area irn which you work: a. Mostly white b. Mostly black c. Mostly Hispanic d. Other (please describe) (Answer the following questions by placing a number, 1 through 5 beside it. Use the following scale: 1 = Strongly Disagee 4 = Agee 2 = Disagee 5 = Strongly Agee 3 = Neutral/Don’t Know Note that the higher the number, the stronger the agreement.) 1. A good police officer will stop and identify a person that does not look like he belongs in the area. 2. The legal system is arranged so that generally people get what they deserve, that is, justice prevails. 3. In the last year, I lave conducted more traflic stops on white people than on black people. 4. My supervisors d2 not care whether or not I conduct traffic st0ps. 5. In the last year, I have found that it is more likely that a white male will have a warrant for his arrest than a black male. 6. Catching criminals is the primary fnmction of police departments. 7. In the last year in my patrol experience I have found that women are less likely than men to have warrants out for their arrest. 224 8. When conducting a traffic stop, it is a good thing when one or more of the occupants have warrants out for their arrest. 9. IfI were assigned to work an area heavily populated with minorities and I saw a white person in the area that amared out of place, I would stop that person and find out why he was in the area. 10. My department places too much emphasis on community policing. 11. Through my patrol experience for the last year, I have found that it is more likely that a black male will have a warrant for his arrest than a white male. 12. People that drive older, more beat-up vehicles are more likely to have warrants than people who drive newer vehicles that are good shape. 13. Making arrests is one way to enhance promotional opportunities. 14. If I were assigned to work an area that was exclusively white and I saw a black person in the area that am out of place, I would stop that person and find out why he was in the area. 15. My police department emphasizes treating all citizens equally. 16. Traffic stops are one of several law-enforcement activities that is emphasized by my police department. 17. Police officers conduct themselves in an impartial manner when selecting vehicles that they are goinng to stop. 18. My department places more emphasis on helping citizens than on catchirng crimimls. 19. There is a direct connection between how hard I work and the promotion that I get. 225 20. Given the exact same violatiorn, occurring at the exact same time, I would rather stop a white person driving a new car than I would stop a black person driving an old beat up car. 21. There are officers that I consider lazy, that do not want to arrest people or who do not want to look for people to arrest. 22. The most important job a police officer does is arresting criminals. 23. Durinng the past year, I have ticketed more black citizens than I have white citizens. 24. Police supervisors do not care about officers making arrests. 25. During my trainning period with the police department, there were senior officers who showed me the types of people who were most likely involved inn criminal activity. 26. I do not care if other officers think of me as lazy. 27. Police officers in my department generally treat all citizens the same. If you wish to explain any of yonn' answers, or offer any other comments, please feel free to do so here. This concludes the questionnaire. Thank you for your cooperation. It is hoped that your answers will help in evaluatinng the decision making process an officer goes through with respect to performing his/her duties. 226 nncunan STATE UNIV. LIBRARIES VINIWIWIIIWW”IlllllllllllNllllllllllllllllllllll 31293020483982