COPS AND COLOR

Thanks to the New York police force, Abner Louima and Amadou Diallo have
become household names. Thanks to state police in New Jersey, Maryland and
elsewhere, "Driving while black" has entered the general lexicon. For the
moment, the nation seems to be taking seriously the issue of racial bias in
the criminal justice system. It's about time.

The issue is not new. Were it not for some of its dated rhetoric, the 1968
Kerner Commission Report, which discussed the causes of the urban riots of
the mid- and late 1960s, could well be a description of many of our cities
today.

"Negroes firmly believe that police brutality and harassment occur
repeatedly in Negro neighborhoods. This belief is unquestionably one of the
major reasons for intense Negro resentment against the police," the report
said, adding:

"Physical abuse is only one source of aggravation in the ghetto. In nearly
every city surveyed, the commission heard complaints of harassment of
interracial couples, dispersal of social street gatherings and the stopping
of Negroes on foot or in cars without objective basis."

Often, the patterns of harassment were more than isolated incidents of
sidewalk justice dispensed by rogue cops. In fact, they reflected a
widespread pattern of police abuses rooted in departmental policies. In
some cases, police departments created roving task forces that swooped down
on high-crime neighborhoods and conducted indiscriminate street stops and
searches.

"Police administrators, pressed by public concern about crime, have
instituted such patrol practices often without weighing their
tension-creating effects and the resulting relationship to civil disorder,"
the report said.

As the riots of the 1960s taught us, nothing corrodes public trust and
faith in the criminal justice system like perceptions of bias.
Unfortunately, those perceptions are as well-grounded today as they were
then. Consider these facts:

. During a three-year period, from 1995 through 1997, 70 percent of those
stopped on Interstate 95 in Maryland were black, though black and Hispanic
motorists constitute only 17.5 percent of speeders, according to an
American Civil Liberties Union survey.

. During a 10-year period in Illinois, from 1987 to 1997, police in a
special drug interdiction unit stopped African-Americans at a rate double
their presence on the roads, and Hispanics at a rate eight times greater
than their presence on the road.

. In April, New Jersey Gov. Christine Todd Whitman admitted that state
troopers had been using a racial profile to stop motorists, and charged two
troopers with falsifying their records to hide their discrimination.

. Blacks are only 12 percent of the general population, but more than half
of the nation's incarcerated population.

. One out of every three young black men from age 20 to 29 is under
criminal justice supervision, either in prison or jail or on probation or
parole.

. For every black man who graduates from college each year, 100 are arrested.

Much of what drives these disparities is the war on drugs. According to the
United States Public Health Service, African-Americans make up 14 percent
of the nation's illicit drug users, roughly equal to their representation
in the general population. Yet African-Americans are 35 percent of those
arrested for drug possession, 55 percent of those convicted for drug
possession and 74 percent of those sentenced to prison for drug possession.
Thus, for a crime they commit at a rate no greater than any other group,
blacks are imprisoned at a rate six times their representation in the U.S.
population (12 percent, in the 1990 Census).

The racial character of the prison population, in turn, affects profiling.
It leads police officers (and, indeed, all of us) to be more suspicious of
minorities than of whites. For some crimes (although not for drug use), the
greater suspicion is not entirely irrational, because there is evidence
that minorities are more likely than whites to commit certain crimes, just
as the young are more likely than the old, and men more than women. But the
fact that such stereotypes might be minimally rational does not make them
acceptable.

Relying on racial stereotypes is not necessary to good police work. The
comparative statistics regarding blacks and whites are drawn from the very
small subset of blacks and whites who engage in criminal conduct. Because
most people of all races do not commit crimes, using race as a proxy for
suspicion will necessarily sweep in large numbers of innocents. Every year,
for example, approximately 98 percent of African-Americans are not arrested
for any crime. And while officers are watching people of particular races,
they will miss offenders of other races.

Most important, relying on race as a factor of suspicion violates the first
principle of criminal law: individual responsibility. The state's authority
to take citizens' liberty -- and, in extreme cases, their lives -- turns on
the premise that all are equal before the law. Racial generalizations fail
to treat people as individuals. As a result, policies that tolerate racial
profiling undermine the criminal law's legitimacy.

How, then, do we restore legitimacy to a criminal justice system that has
fostered so much skepticism and alienation among minorities?

First, government officials must make absolutely clear that racial
profiling is unacceptable. Some police chiefs have said so, but others have
tolerated the practice through their silence. Some courts have said racial
profiling is unconstitutional, but others have said it's permissible as
long as race is not the sole factor, a position that is indefensible as a
matter of constitutional law. The Supreme Court has never addressed the
question. So long as the practice is not clearly condemned, police officers
will continue to do it, in part because it is not entirely irrational.

Second, police departments must be willing to lay bare the demographics of
their enforcement tactics. The absence of publicly available data
exacerbates the racial divisions on this issue. It allows many in the white
majority to ignore or minimize the problem while leading many minorities to
fear the worst. And without reporting, the police cannot be held accountable.

Third, police departments must be made more representative of the
communities they serve. The NYPD street crimes unit that shot and killed
Amadou Diallo was a mostly white force patrolling mostly minority
neighborhoods. Increasing diversity is not sufficient in itself, but it
increases the likelihood that communities and police will see themselves as
friends in a common struggle, rather than enemies.

Finally, and fundamentally, we need to think beyond policing. It sometimes
appears that the only public resources that the majority is eager to supply
to the inner cities are more (and more aggressive) police officers. But, if
similar levels of crime were occurring in white neighborhoods, and large
numbers of white children were under criminal-justice supervision, isn't it
likely that we would be hearing calls for different kinds of social
investments, such as better schools, more job training, better after-care
programs and drug treatment? To restore legitimacy, the majority needs to
show that it is willing to invest in something other than the strong arm of
the law.