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Could a new rule in policing deter profiling and further criminal justice reform? 

  

By Arthur Rizer and Sara Baker

Anyone who has watched TV knows the line: “You have a right to remain silent, anything you say can be used against you in a court of law….”

These words represent more than a common “Law and Order trope. Indeed, they embody a cardinal rule for police work: Every defendant in police custody must be notified of his or her rights to be silent and to counsel.

When the U.S. Supreme Court made its decision in Miranda v. Arizona in 1966, the law enforcement community vociferously complained that the new rule requiring officers to notify people of their rights would trigger a crime wave.

Today, crime rates are incredibly low. In fact, the murder rate is at its lowest since 1966the same year Miranda was decided.

Law enforcement sentiment toward the Miranda rule has also largely changed. Of course, officers knew the Constitution guaranteed such rights before the Miranda decision. But until then, no officer thought it was part of his or her job to notify defendants of such rights.

Today, many police leaders see Miranda as a net positive for police work because it helps inoculate officers from accusations of presumptively coercive questioning. Not only does Miranda clarify the law, it allows courts, police departments and the public to determine which officers are abiding by the Constitution and which are skirting the law in their attempts to ferret out crime.

Another policing topic that officers are now looking to the law to clarify is discriminatory policing – also known as racial profiling.

In its most basic form, racial profiling is the practice of performing police activity (such as vehicle stops) in a way that disproportionately impacts certain racial groups. It is a controversial subject for many officers, who often feel frustrated because they see racial profiling charges as unfair accusations of racism.

Deconstructing all the factors that lead to racial disparities in policing is no simple task.  Yet just as the Miranda rule protects both the police and the public, a new racial-profiling rule could ultimately promote public safety by increasing trust between the community and law enforcement.

That’s why we need a rule that can guide officers when it comes to racial profiling.

One such rule could include a mandate that officers keep records of who they pull over, as well as when and why the stop occurred and what happened after the stop. When compared to demographic benchmarks for a given population, such records can help determine whether an officer is more likely to search, cite or arrest minorities compared to other racial or ethnic groups.

Time and time again, we have seen scenarios in which white officers pull over black people for minor traffic violations, it escalates into an unnecessary arrest and sometimes even death.  Our nation needs no more examples of deaths of black people such as Mike Brown in St. Louis, Philando Castile in Minneapolis, Minn. or Terence Crutcher in Tulsa, Okla., to know that we must improve policing in the U.S.

Gathering this kind of data can help bridge the trust gap between police forces and the public at large, a gap that many communities – especially communities of color – are currently experiencing. By making this data available and easy to analyze, citizens can ensure their officers are protecting and serving. Officers will also benefit from the rule because they will be able to combat any false allegations of racism. And, at the same time, police leadership can use the data to identify officers who have issues and mark them for further training or a different career.

Missouri legislators are debating proposals to update the state’s racial profiling law, including laws that would mandate this type of record-keeping. Since 2000, Missouri has documented racial disparities in policing through the Missouri Attorney General’s “Vehicle Stops Report,” which summarizes the data law enforcement agencies across the state gather on driver stops. While the data are comprehensive in their geography (96.9 percent of agencies contributed data in 2016), citizens need data that provide a more comprehensive understanding of how officers make their decisions – and they can only do that if police departments collect and distribute this information.

With this in mind, Sen. Jamilah Nasheed (D-St. Louis) filed Senate Bill 828, which formally prohibits discrimination in policing and requires law enforcement agencies to put policies in place to eliminate such discrimination. The bill creates accountability by requiring law enforcement agencies to review their vehicle-stop data yearly and report it back to the community. Senate Bill 828 also requires that officers who police unfairly face discipline as well as counseling and training. Finally, the legislation creates a procedure for putting law enforcement agencies under attorney general review when warranted. In 2017, Missouri House Republican Shamed Dogan (R-Ballwin) proposed racial profiling legislation that created similar requirements.

There is widespread, bipartisan support for tackling what is undoubtedly a racial profiling problem in Missouri (in 2016, African Americans were stopped at a rate 75 percent higher than whites.) Republican Attorney General Josh Hawley said in 2016, “Racial profiling threatens that fairness and impartiality the rule of law demands.” In 2015, Democrat Attorney General Chris Koster said the law could use revisions “in the type of data collected and to strengthen the penalties for individual departments that fail to participate in the reporting process.” Officers from around the state, including the Ethical Society of Policing, believe the law needs an update – to protect both law enforcement and the community.

In the end, criminal justice reform is making its way across the country, with Texas, California and Louisiana enacting sweeping reforms. As Missouri and other states begin to debate which reforms should be tackled this year, they should bear in mind that police-community interactions are the starting point for almost all criminal justice issues. Reforms that focus on these interactions – including data-collection mandates and others – should be at the forefront of our minds as we look to make the rule of law truly equal and our communities safer for all.

Arthur Rizer is the director of security and criminal justice for the R Street Institute. Arthur also served as a federal prosecutor and civilian police officer, and retired from the US Army WVNG Military Police Corps after 20 years of service (@arthurrizer). 

Sara Baker is the legislative and policy director at the ACLU of Missouri.  During legislative session, she serves as the ACLU’s lobbyist in Jefferson City (@SaraEBaker1).