An anachronistic debate over 'racial profiling' data

While I was busy on Tuesday at a House Criminal Jurisprudence subcommittee meeting and then watching the House Human Services Committee discuss the Great Eldorado Polygamist Roundup, the Senate Criminal Justice Committee was hearing a bill that I've long supported - SB 1120 by Royce West - creating a central repository of so-called "racial profiling" data generated by law enforcement officers at Texas traffic stops.

Listening to the hearing this afternoon (video is here, starting at the 35:45 mark), I was surprised how this has become a veritable cause celebre for the police unions. They attacked it like a beachfront they were storming. My old pals Charlie Wilkinson of CLEAT, Tom Gaylor of TMPA, and Mark Clark of the Houston Police Officers Union all lined up one after another to rail against the bill.

I've got a lot of history with this legislation, as did most of the folks testifying in opposition. I worked on the original bill requiring the gathering of data and the installation of cameras in police cars when I was Police Accountability Project Director for the ACLU of Texas back in 2001. And for a while, when the data first started coming in, I worked closely with statisticians and staff at the Texas Criminal Justice Coalition to create a private repository there based on annual open records requests, which for years was managed by the indefatigable Molly Totman.

So I got to see up close exactly what the data did and didn't show, and in fact the push for a repository has always been, in part, about the fact that many agencies don't compile reports, respond to open records requests, or produce data in a usable or meaningful format. Some agencies' data was useful and informative, and for others internal discrepancies made it difficult to even perform basic calculations.

The debate over this bill seems like something out of a time capsule, with Gaylor stridently complaining that the purpose of data collection was to "determine if racism exists in law enforcement." But that's not really how the law played out on the ground. As Sen. West got Charlie Wilkinson to admit, nobody can point to a single example of an officer ever disciplined for racial profiling without due process. The fears expressed seemed to ignore the state's 8 years of history with data collection that generated none of the ill effects they predicted.

To further demonstrate the odd, time-capsule quality of this debate, here's something I wrote about a similar bill two years ago that almost exactly mirrors what I'm inspired to write in reaction to Gaylor and Clark:

We've learned a lot from this data over the years since police began to collect it. Before departments gathered racial profiling data in Texas, it was common for police to claim there were not disparities in how many minorities received tickets compared to white people, or how often they were subjected to searches. The existence of those disparities has been confirmed by the data once and for all, and now the debate has shifted to the CAUSE of the disparities and how to reduce them. That change alone to me was worth the price of admission, inching us one step closer to admitting and dealing with race in law enforcement in a more honest way.

But a funny thing happened along the way in that debate - it turned out oversearching in Texas isn't only about race. Indeed, often racial disparities aren't the biggest ones. Some departments have a policy of searching more often at traffic stops generally in ways that affect everyone, white folks included. As I wrote based on Molly's report two years ago, in

My hometown of Tyler, for example in Northeast Texas, [police] searched blacks 2.6 times more than whites, compared to the town of Longview down the road which searched blacks 2.7 times more often. Sounds pretty similar, right? Well, check out the numbers as a percentage of traffic stops:

How many Tyler/Longview drivers were searched
as a percentage of local traffic stops by race

	Blacks	Latino	Anglo
Tyler PD	3.3%	3.1%	1.3%
Longview PD	19.6%	9.8%	7.2%

So once again, while both department's search patterns exhibit racial disparties, as a percentage of total stops, Longview is engaging in MANY more unnecessary searches than the Tyler PD. Indeed, whether a department has a policy of oversearching is a more significant factor than race: a white driver in Longview is more than twice as likely to be searched at a traffic stop as a black driver in Tyler.

To me, the debate over racial profiling isn't about accusing cops of racism, it's about treating people fairly and giving the public and departments tools to measure police practices to see if they're fair. These stats show that disparate treatment at traffic stops is about more than just race -- it's about documenting police practices that are eroding the Fourth Amendment for everybody.

I swear I was about to write the same thing, including the hometown example, before having a moment of deja vu and retrieving this item from 2007. Obviously, though, those arguments aren't enough because the legislation didn't pass and the opposition to the bill is more strident and focused than ever.

So something else is needed. Perhaps a mea culpa will help: We mis-framed this bill from the beginning. It should have never been pitched as "racial profiling data," but as "traffic stop data." It's supervisory functions should have been more strongly emphasized, and its goal should have been firmly stated as bolstering the Fourth Amendment.

Indeed, the data from Sen. West's SB 1074 in 2001 gave supervisors more information about what their officers did in the field - both in terms of numbers on the form and video from new dashcams in police cars - than they'd ever had before. But the racial angle has been used by Gaylor and Co. to drum up populist fervor among their ranks to try to convince their members that Sen. West and the bill's supporters were out to pillory them as racist.

That's really a mis-characterization. In retrospect, having seen up close what the data does and doesn't prove, I'd argue the data is useless for "proving racism" and anyone who has that as a goal will want to find another path to pursue.

That said, this information tells us more about basic police practices at traffic stops than we ever knew before, in particular honing in sharper focus on the practice of "consent searches," where disparities were a) often higher than disparities among drivers stopped and b) were a function of officers' discretion as opposed to a reaction to probable cause.

Some agencies began requiring written consent at traffic stops of their own accord after the first couple of rounds of data came out, and in 2005 the Legislature passed (but Governor Perry vetoed) a bill to require written or recorded consent for police to search at traffic stops, largely as a result of the data generated by this bill.

Gaylor objected to centralizing the data in a repository because it would take it out of context, but Longview's high numbers would have no context if they couldn't be compared to other, similar communities. Tom's got it exactly backward.

Bottom line: So-called "racial profiling" data in Texas is not identifiable by officer and is only reported in aggregate numbers. For that reason, it's useless for "attacking" individual officers, as Gaylor and Clark alleged, but instead puts pressure on supervisors to justify their use of resources. Why would Longview search so many of its citizens? This calls into question how management prioritizes its officers' time and focus, not any individual officer's decisions.

The key change to the data gathered under the bill would require officers to check off whether they find contraband or not when they perform consent searches. That would actually give agencies a performance measure to tell whether these tactics were justified. Would Longview continue to search at so high a rate if they could measure how many more cases were made? This would give the department another tool to evaluate that choice in an objective, evidence-based fashion.

Sen. West's SB 1074 back in 2001 was a better bill than we knew at the time, and for different reasons. His SB 1120 builds on what worked best in that 2001 legislation while, to my mind, entirely avoiding the misuses that his detractors insist will inevitably happen. Another example of interest groups opposing a reform more out of habit than reason.