Disparate Impact

Jeff Danziger's Editorial Cartoons - Discrimination Comics And Cartoons |  The Cartoonist GroupFew argue that there exists no bias or discrimination in our daily lives as it may involve gender, age, color, or other. At times, the bias may even be widespread yet mostly invisible to observers. For decades, people of color, particularly Blacks, have openly complained about policing practices that are inequitably applied.

In 2020, Virginia’s legislature undertook two initiatives to reform policing by narrowing the types of vehicle stops acceptable and requiring law enforcement across the state to record specific data on vehicle stops, published in May of this year. (Virginia Community Policing Act Data Collection | Virginia Open Data Portal). To no one’s surprise, the data confirm minority citizen complaints concerning the inequity of policing and dramatically reinforces suspicions of systemic racism. The question arises as to how this outcome became so prevalent and remained imperceptible. Part of the answer emerged nearly 60 years ago.

On July 16, 1964, a Black teenager was shot to death in New York City by an off-duty detective. Hours later, in San Francisco, at the close of the Republican National Convention, the nominee, Barry Goldwater, delivered his acceptance speech condemning violence in urban centers and offering a policy prescription: 

Security from domestic violence, no less than from foreign aggression, is the most elementary and fundamental purpose of any government, and a government that cannot fulfill that purpose is one that cannot long command the loyalty of its citizens.

At the White House, Lyndon Johnson absorbed Goldwater’s acceptance announcement as a threat to the incumbent’s goals for a Great Society with equal opportunity for all. Not to be outdone, in 1965, Johnson declared a war on crime and offered a plan to create the Office of Law Enforcement Assistance, significantly increasing federal involvement in local policing.

This groundwork encouraged President Nixon, in June 1971, to proclaim a war on drugs, describing drug use or abuse as public enemy number one. He increased federal funding for drug control programs and agencies, adding other measures such as mandatory prison sentences. In 1973, Nixon created the Drug Enforcement Agency.

Not until a 1994 interview did John Ehrlichman, Nixon’s domestic affairs assistant, reveal the political calculus for the war on drugs:

We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course, we did.

We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course, we did.

The aggressive stance against crime continued under President Reagan and a Congress amenable to adopting increased criminal penalties for drug offenses. The 1986 Anti-Drug Abuse Act established minimum prison sentences for a number of offenses. Its racial bias was implicit because it required longer sentences for crack cocaine (more common among Blacks) than for offenders convicted of the use of powdered cocaine (mostly whites).

Thus, over decades, a succession of Republicans and Democrats in the White House and in Congress nurtured public policies that produced a fallout legacy from these wars that continues to “disrupt communities,” Black and white, by mass incarceration for nonviolent drug crimes; militarized local law enforcement; and inequitable, unequal policing practices. Aggressive policing, including SWAT and street crime units, authorized by federal, state, and local laws, became emblematic of the crusade, erosion of constitutional protections, and marginalization of large communities.

Prophetically, the dissent by Justice William O. Douglas warned that the Court ignored the Fourth Amendment to “…hold today that the police have greater authority to make a ‘seizure’ and conduct a ‘search’ than a judge has to authorize such action,” contrary to a multitude of previous rulings.

Earlier, in 1968, SCOTUS created a national standard rationalizing the wars in Terry v. Ohio. In an 8-1 vote, the justices  concluded that the Constitution “allows police officers to interrogate and frisk suspicious individuals without probable cause for an arrest, providing that the officer can articulate a reasonable basis for the stop and frisk.” Prophetically, the dissent by Justice William O. Douglas warned that the Court ignored the Fourth Amendment to “…hold today that the police have greater authority to make a ‘seizure’ and conduct a ‘search’ than a judge has to authorize such action,” contrary to a multitude of previous rulings.

Douglas chastised his colleagues, writing:

To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment.

Following the court’s decision, so-called “Terry” stops metastasized to become the norm in policing. In 1994, then-Mayor of New York City, Rudy Giuliani, introduced stop and frisk to the Big Apple, and by 2011, some 685,000 individuals were subjected to the procedure. Not until 2013 was stop and frisk found to be effectively unconstitutional, as Douglas had foretold. The practice was not found unconstitutional itself, but a judge ruled that New York City’s stop-and-frisk program was carried out in a manner that violated the U.S. Constitution. 

The proportions of fellow citizens, particularly ones of color, contrasted with the nation’s total population, is staggering but remains largely invisible. Millions are imprisoned or under the supervision of community agencies on probation. In most other sectors, such numerical disparate impact is recognized not only as adverse but a violation of law. Disparate impact has been used as a legal doctrine holding that a policy may be found to be discriminatory where it affects a group by traits such as race, color, religion, gender.  

The results of Virginia’s legislative initiatives credibly bear out the disparate impact of policing across the Commonwealth and lend further substance to consider reforms in criminal justice. Over a one-year period, state and local law enforcement conducted over 543,000 vehicle (“Terry”) stops. Thirty-one percent involved persons of color, who make up only 19 percent of the population.

The results of Virginia’s legislative initiatives credibly bear out the disparate impact of policing across the Commonwealth and lend further substance to consider reforms in criminal justice. Over a one-year period, state and local law enforcement conducted over 543,000 vehicle (“Terry”) stops. Thirty-one percent involved persons of color, who make up only 19 percent of the population. Only 1,065 resulted in arrests, although the grounds for the arrests are not specified. Some 13,600 vehicles were searched.

These data points dramatize the disparate impact of inequitable policing at the same time as they impugn the results of the two wars against crime and drugs. Simultaneously, the disparate impact strongly hints at the systemic racist nature of those campaigns. These observations are countered by claims that “Terry” stops are color-blind and neutral and, as national leaders maintained, necessary to law and order. SCOTUS assumed police officers would fairly identify suspicious individuals and were duty bound to have concluded an “articulable basis for the stop and frisk.” Broken tail lights, tinted windows, hanging air fresheners and more have become “articulable” bases for stops.

Some local police officials maintain that it is premature to draw conclusions from the data. A Prince William police official was reported to have stated, “they are ready to adjust our traffic enforcement efforts if necessary” but that “it would be misleading and irresponsible to draw any conclusions at this point.” Black and Hispanic drivers accounted for more than 57 percent of stops in the county.

In the wake of wars, the innocent most often pay the price. Politics and law enforcement, like war and peace, are too often dissonant. Political leaders were unwilling to heed Justice Douglas’s prescription for a more democratic process to compromise essential constitutional rights, opting instead to empower police with extraordinary virtue and authority over the citizenry.

More than two hundred years ago, the Fourth Amendment guaranteed the “right of the people to be secure in their person.” That legacy has been compromised, as Ehrlichman admitted, “to disrupt those communities” by disparate, nearly invisible, impact.  

 

 



Categories: CIVIL RIGHTS, crime and punishment, elections, Issues, legislature, National, police, POLICING, politics, prisons, RULE OF LAW, SCOTUS, State

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