IS RACIAL DISPARITY IN STOPS PROFILING?

All sides finally agree: Black motorists are stopped and searched for drugs
by police at a disproportionately higher rate than white motorists.

But that's where the agreement ends in a dispute that is nearing key
turning points on both the civil and criminal fronts.

Attorneys for the minority motorists on Interstate 40 in Coconino County
contend the disparity is due to racial profiling, which the courts have
said is illegal.

Attorneys for the Arizona Department of Public Safety say many other
factors besides racial profiling, such as driver behavior, could account
for the disparity.

The dispute, although it involves battling professors, is more than an
academic one. If the Arizona Supreme Court decides that racial profiling
can be raised in criminal drug cases as a way to get charges dropped or
evidence thrown out, then the fact that a racial disparity in stops and
searches has been shown will loom large.

If, on the other hand, the supreme court says criminal defendants must
raise racial profiling in separate civil lawsuits, then the issue likely is
dead in Arizona. That's because DPS, which denies its officers engage in
racial profiling, is close to settling a class-action lawsuit that has it
improving the collection of traffic stop information so that it can
identify and respond quickly if statistics point to racial profiling.

First Accusation In 1999

The accusation that DPS officers might be making traffic stops in search of
drugs on Interstate 40 was brought to Coconino County Superior Court in
1999. The effort was led by Flagstaff defense attorney Lee Phillips.

DPS officials have staunchly maintained that the agency does not make
traffic stops in search of drugs based on race, and it even has a policy in
place to prohibit the practice. Therefore, it was the burden of defense
attorneys who represented black or Hispanic clients, all accused of
transporting drugs, to prove that race-based policing was taking place.

To date, with dozens of cases pending or on appeal in Coconino and Yavapai
Counties and in federal courts, Phillips has failed to do so for a variety
of reasons (see related story).

Meanwhile, criminal cases continue to be filed in county and federal
courts, with attorneys persisting in getting the central question about
racial profiling answered once and for all.

Defense Findings

Phillips has asked for and received an entire year's worth of traffic stop
documents from DPS -- tickets, warnings and equipment repair orders. With
that information available, he commissioned Fred Solop, professor of
political science and director of the Social Research Laboratory at NAU, to
make a statistical analysis of the traffic stop documents.

To analyze the DPS traffic stop information, Solop needed a study with
which to compare the DPS traffic stop information. With input from a
statisticians who worked on similar cases, Solop created a way to make a
study that would attempt to quantify the racial makeup of motorists on
Interstate 40 who violate traffic law and who would be qualified to be
stopped by DPS officers.

The percentage of black and Hispanic motorists reflected in the DPS traffic
stop information and the percentage of black and Hispanic motorists who
violate the law should be roughly the same. It was not.

"When examined from a variety of research approaches, this data clearly and
consistently indicates a pattern of discrimination and selection bias
against African Americans and Hispanics traveling on I-40 in Coconino
County," Solop stated in his report.

"The data also supports the conclusion that racial profiling is a regular
component of drug-interdiction activity along Interstate 40 .."

Using the same methods, Solop arrived at the same conclusion regarding
motorists traveling on Interstate 17 in Yavapai County.

State Findings

Robin Shepard Engel, associate professor of criminal justice at the
University of Cincinnati, was commissioned by county and federal
prosecutors, in essence, to defend DPS policies and practices, found fault
with Solop's work in multiple areas.

According to her report, among them were: The DPS traffic stop information
is unreliable. Solop's violator study is flawed because, among other
things, the sample size of violators is too small and the amount of time
the study was conducted was not long enough. Even if his methods weren't
flawed, his conclusion is flawed.

So instead of Solop's approach, Engel used census data from Coconino County
- -- and arrived at conclusions similar to Solop's in her analysis. Black,
but not Hispanic, motorists were stopped at a disproportionately higher
rate. Her analysis included several caveats.

Research compiled about travel, transportation and accidents clearly show
"considerable racial and ethnic differences in a variety of driving-related
behaviors ."

For instance, differences exist in seatbelt use, vehicle ownership, driving
without a license, driving under the influence, fatal accident involvement
and more.

"Together, these research findings suggest that drivers' behavior may at
least partially explain some racial disparity reported in police stops and
post-stop outcomes," Engel stated.

Engel also concluded that black and Hispanic motorists were searched at a
higher rate. Once again, her analysis included several caveats. The
analysis did not include behavioral factors of motorists that could have
influenced an officer's decision to search -- such as the motorists level
of resistance.

Conclusions Differ

In a critique of Solop's report, Engel stated, "... differences reported in
aggregate rates only tell us that differences exist; researchers have not
measured why they exist. While it is possible that some racial/ethnic
disparities observed in traffic stops may be the result of individual
officers targeting racial/ethnic minorities, it is important to note that
this is a hypothesis that has not been adequately tested in any traffic
stop study because the data necessary to test such a hypothesis are
unavailable."

Too many other variables exist, which have not been accounted for in any
study to date.

Solop, however, isn't buying the caveats about the real world trumping
statistics.

"While Dr. Engel's statement that some conditions in the world cannot be
adequately quantified is obviously true, it doesn't negate the conclusions
of her statistical work," Solop stated in an e-mail correspondence from
Spain. "... Court precedent says that statistical evidence can be used in
racial profiling cases to determine if profiling is taking place."

But that court precedent is slowly changing, Engel stated in her report.

"Most of the current traffic stop studies now appropriately acknowledge
that it cannot be determined with traffic stop data if disparities are due
to discrimination because of the inability to measure alternative factors
that might account for these disparities," Engel stated.

But previous studies have been accepted as scientific fact by courts --
particularly noteworthy is the 1996 case from New Jersey, on which Solop
bases much of his work. In that case, the court found that racially based
policing was occurring.

Since that time, a variety of state and federal courts have rejected
findings similar to Solop's, Engel stated, listing several in her report.

"At this time, social science research studies based on traffic stop data
collections simply cannot determine whether or not racial profiling
exists," she stated.

Because traffic stop data and comparisons of other "benchmarks" to that
data are so flawed, analysis of the data can never prove or disprove
racially based policing, Engel stated. The best the analyses can hope for
is to work as a tool to help residents encourage a policing agency to
address "the problem or perception of racial profiling."

In his critique of Engel's report, Solop stated: "Dr. Engel apparently
seeks to downplay the significance of the results of her analysis by
concluding that statistical analyses are not useful for informing and
understanding of whether racially biased policing takes place."

Later, he stated: "Social scientists regularly perform statistical analyses
to determine if discrimination takes place, and courts regularly weigh the
merits of their work."