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The Difficulties Of Proving Racial Profiling


I'm Michel Martin, and this is TELL ME MORE, from NPR News. We'd like to start today by mentioning that, as you would imagine, NPR is continuing to follow developments concerning that deadly tornado that struck Oklahoma yesterday. We hope you will stay tuned to your public radio station or check our website,, for the latest updates.

Now, though, we are going to turn to the debate about balancing safety and civil liberties in New York City. On Monday, closing arguments were heard in a federal court challenge to the New York City Police Department's stop-and-frisk policy. For years, civil rights groups have accused the department of racial profiling and point to data that 87 percent of the stops last year were of black and Hispanic people.

But city officials, including New York City's Mayor Michael Bloomberg, continue to defend stop-and-frisk.


MAYOR MICHAEL BLOOMBERG: I can't imagine any rational person saying that the techniques are not working and that we should stop them.

MARTIN: We wanted to talk more about the whole question of racial profiling, in this case and more broadly. So we're joined now by two law professors who have been following this issue for decades. David Harris is professor of law and a distinguished faculty scholar at the University of Pittsburgh. Professor Harris, thank you so much for joining us.

DAVID HARRIS: It's good to be with you, Michel.

MARTIN: Thank you. And Delores Jones-Brown is a professor in the department of law and police science at John Jay College of Criminal Justice in New York. Professor Jones-Brown, thank you so much for joining us.

DELORES JONES-BROWN: Thank you for having me.

MARTIN: For people who have not been following these events in New York City, why is it that this policy in New York City has come under such intense scrutiny from so many people for so many years?

JONES-BROWN: Well, there are two primary issues. One is that 87 percent of those stops involve black and Latino persons, and almost 90 percent of those stops are people who are innocent, as opposed to who are found to be involved in criminality. There is the suggestion that the stops are for the purpose of finding guns. However, in 98.8 percent of all cases, no guns are found.

MARTIN: Professor Harris, if you'd pick up the thread there.

HARRIS: Sure. It is legal for police officers to do this, as long as there is reasonable suspicion. But it became a tactic that looks like it was over-relied on to the point that people felt this was not a tactic being done for them to provide greater public safety, but being done to the them, and the people subjected to this in an outsized way were overwhelmingly people of color.

MARTIN: Professor Jones-Brown, I mean, the plaintiffs in the case presented a secret recording of a police leader who told officers explicitly that black males 14 to 21 were the right people to stop. What's the city's response to this specific kind of evidence that says that these particular people were targeted because of their race?

JONES-BROWN: The city seems to support the notion - you may know that the commissioner was on "Nightline" the other evening suggesting that blacks are being under-stopped under this policy, because 75 percent of violent crime perpetrators are described as African-American males, while only 56 percent of folks who are stopped are black.

So black and Latino males between the ages of 14 and 21, or 14 and 24 are believed by the commissioner to be the crime problem in the city. No differentiation is being made between those who are law-abiding and those who are not. In addition to the recording that you spoke of, Senator Eric Adams testified that the commissioner said to him in front of then-Governor Paterson that, yes, stop-and-frisk focuses on black and Latino males because they want to instill fear in those males.

And when the commissioner was questioned about whether he thought that was, you know, fair or valid, he said: How else are we going to get guns off the street?

MARTIN: That's actually what I was going to ask you, though. If you're just - and if you're just joining us, we're talking about a case involving New York City's stop-and-frisk policy. That case is being challenged in federal court, and closing arguments were heard on Monday. We're talking about this with law professors Delores Jones-Brown and David Harris, who have been following the issue closely through the years.

But, Professor Harris, I mean, again, what's the answer to the argument that if that is indeed the group of people where crime is most present, then that's the appropriate group of people to subject to this level of scrutiny? What's the answer to that?

HARRIS: The answer to that is that targeting them based on their racial or ethnic appearance is not a successful crime-fighting strategy, despite what the commissioner and the mayor seem to believe. What they say is, see? It's working. By this method, they say, of instilling fear in people, we don't want people to carry their guns. That's why we do this.

So they win either way. Targeting people based on race or ethnicity has never been shown - not in New York, not in anywhere else where this has been statistically tracked - to be the successful way to get guns, to get drugs, to get bad guys. Because what you do is you force people overall to pay an enormous cost across an entire racial or ethnic group for the actions of a very few people.

And it also leaves out the fact that you could certainly use other methods, as other cities do, to force crime down that don't rely on this kind of very aggressive stop-and-frisk activity that embarrasses and humiliates, and most importantly, drives people away from police. It gives them the idea that the police are their enemy. So what they are doing is they are simply saying it works because we know it works. Look at the results. And, of course, heads I win, tails you lose.

MARTIN: Professor Delores Jones-Brown, you're in New York. Why do you believe that the city officials are so vigorously defending this policy?

JONES-BROWN: I think part of it is in the investment in the stereotype, that if the commissioner actually believes that the crime problem in the city and the mayor believes that the crime problem in the city are black and Latino folks, then they can't move off of that belief. The other notion is if they were - they believe that if they were to change tactics now - in 2012, we now have data that stops were reduced by 22 percent and crime did not go up.

We also have data from the first quarter of 2013, where stops are down again and crime has not gone up. And so it's a really good question that you ask. Given this information, why isn't the mayor or the police commissioner changing position some to at least recognize we can reduce the number of stops without jeopardizing the public safety?

MARTIN: Professor Harris, you have any final thought here?

HARRIS: It just points out the fact that they can do the same kind of crime reduction with a much lesser degree of this very intensive stop-and-frisk activity. Stop-and-frisk is legal. It's done in every city, as long as there is reasonable suspicion. There's no reason that police can't do it. What we don't want to have is this kind of overreliance on one tactic that takes an incredible chunk out of the cooperation and the partnership that you need to have between police and the people they serve.

MARTIN: Professor Jones-Brown, before we let you go...


MARTIN: ...both of you are critics of the policy. Both of you clearly believe that the policy has kind of passed the point of being constructive, to the point where it's destructive to the social fabric. Apart from the city officials who are defending it, what do people think about it in the city overall?

JONES-BROWN: People are confused. There are members of the communities of color who have accepted the notion that this is what they need to be safe in their community. And I think it's a sad position, because those folks don't accept the fact that they have as much a right to be able to walk to the store to get that quart of milk without getting stopped, as if they lived in a different community. And so that's problematic.

So communities are divided over whether they support or they oppose stop-and-frisk. There are other policing tactics - something called hot spots policing - that's being used by the NYPD that doesn't necessarily involve stop-and-frisk that researchers have found have, in fact, contributed to the crime reduction in the city. So one of my suggestions recently has been to do more of that, and less of stop-and-frisk, because we can see a direct causal or relationship between that kind of a practice, hot spots policing or something else where we focus on the few dangerous people that can be identified individually and remove those people from the street while leaving the law abiding people alone.

MARTIN: I just think a lot of people listening to our conversation will not understand what is wrong with what the police are doing. I mean the police - I think pretty much anywhere in the country, I think most people would agree, if they see something suspicious, then I think most people would believe that the police should stop and intervene in whatever is going on. So what is it that in your view the New York City Police Department is doing wrong?

JONES-BROWN: In my view, the department is engaging in something I call appearance profiling, and so if they see a young black or Latino male in certain types of clothing, like a hoodie or sagging pants and they appear to be seen between certain ages, they automatically suspect them, but there's nothing criminal about being young, being black, being Latino, being male and wearing saggy pants or a hooded sweatshirt or wearing particular colors that the police assume are gang-related.

And so it is the way in which people are not allowed to walk on the street without being suspected simply because of how they appear. It's not even their behavior, because the majority of stops are based on something called furtive movement. It's a very ambiguous term that New Jersey has almost outlawed as a reason for a reasonable suspicion or a reasonable stop. But it is, more than 50 percent of the time, cited as a reason why a police officer, in combination with other factors, has stopped a person on the street in the city of New York.

And so the notion is that you should not be suspicious simply based on what you look like, simply for where you're standing or walking. The notion of high crime area is often cited, but people live in an area because that's where they can afford to live, and so everyone who lives in a high crime area should not automatically be suspected of being criminal, and in fact the crime statistics in this city indicate that not everyone, and in fact a very small number of folks who live in high crime or low crime areas, are involved in serious violent offending, and the rhetoric around Stop and Frisk doesn't make that point clear.

MARTIN: Delores Jones-Brown is a professor in the department of law and police science at John Jay College of Criminal Justice in New York. She was with us from our bureau in New York. David Harris is professor of law and a distinguished faculty scholar at the University of Pittsburgh. He joined us from member station WESA in Pittsburgh.

Thank you both so much for speaking with us.

JONES-BROWN: Thank you for having us.

HARRIS: It was a pleasure.

MARTIN: Needless to say, there are other perspectives about Stop and Frisk. Tomorrow we expect to hear from Paul Brown, the deputy commissioner of the NYPD. We'd also like to hear from you. We'd like to hear if you have an experience with Stop and Frisk, either as a person who's been stopped, as a bystander or as a law enforcement officer. Send us a tweet using hash tag #TMMFrisk. Transcript provided by NPR, Copyright NPR.

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