Traffic stops represent one of the most common interactions between police and citizens in this country. According to the Bureau of Justice Statistics, an estimated 42 percent of face-to-face contacts that U.S. residents had with police in 2011 occurred for this reason alone.
However, in the wake of the tragic shooting deaths of Philando Castile, Terence Crutcher, Walter Scott, and others—all of which resulted from seemingly routine traffic stops—fears about the influence of racial profiling and police bias on these common, day-to-day policing practices have grown.
Suspect Citizens: What 20 Million Traffic Stops Tell Us About Policing and Race, co-authored by Frank Baumgartner, a political science professor at the University of North Carolina at Chapel Hill; Prof. Derek Epp of the University of Texas at Austin, and fellow researcher Kelsey Shoub, statistically analyzes recorded traffic stops from North Carolina to discover the hard truth about similar accusations made in the state nearly 20 years ago, and paint a comparative picture for today.
In a conversation with TCR, Baumgartner explains how traffic stops have become an ineffectual tool for catching criminals, why the numbers found in North Carolina represent a systemic problem in law enforcement around the country, and how the argument of “a few bad apples” in policing falls short of reality.
The Crime Report: This book is the end result of a law passed in North Carolina almost 20 years ago that sought to find the truth behind suspicions of racial profiling in policing by collecting and analyzing traffic stop data. Can you explain how it got from there to here?
Frank Baumgartner: When the law was passed that mandated the data collection back in 1999, the law mandated that the state itself, the attorney general, or somebody in the department of justice for North Carolina, should issue periodic reports, every six months, to evaluate these allegations. The law was passed because there were allegations in the (state) General Assembly, essentially members of the black and Hispanic caucus, elected officials, who said they thought there was rampant profiling going on. It was part of a nationwide conversation about the issue of driving while black and brown.
North Carolina was the first state in the nation to mandate collecting the data, so those lawmakers deserve credit. They said that either we’ll put to rest spurious allegations or we’re going to validate these concerns and our police will take immediate steps to alleviate them. And none of that happened. Nobody ever issued a single report. So, when we got the data, and delved further and further into it, it pretty much validated all of those concerns of those legislators back in the 1990s. Everything they alleged and were concerned about, we can show is really true: two-to-one search rates; two-to-one increased likelihood of being pulled over if you are nonwhite.
TCR: Why was there no follow up? And is this sort of inaction suggestive of a national problem?
FB: Nobody likes to have someone looking over their shoulder in their workplace, and these allegations were really quite troubling. They were about racial bias within the police forces and they were nationwide. I think it’s a hot button issue, the police agencies are very politically powerful, and this is a topic that a lot of police departments would rather not have in the public domain. It’s uncomfortable. I give a lot of police chiefs credit for engaging with the conversation.
It’s a tough conversation because they’re put on the defensive. So, I think it’s natural that people didn’t want to go there. But we had to. Even though it’s uncomfortable, we have to validate the fact that black and brown Americans are subjected to a quite different style of policing than white middle-class Americans. And if white middle-class Americans don’t understand that, then there’s a terrible empathy gap for the realities of people on the ground who are black and Hispanic. We have to understand how policing works in all of our communities.
TCR: How do traffic stops reflect an evolution in today’s policing that has led to a general increase in racial profiling?
FB: In the 1960s and 1970s policing changed. It went from being more reactive, finding out that there had been a crime and then trying to hunt down the bad guy, solve the crime, and bring the perpetrator to justice, to a more proactive style of policing where the police thought they could solve the crimes before they happen by interrupting people who look like they might be up to no good. So, I think we developed a whole method and ideology in the profession of policing around an idea that they could keep us safe by interrupting criminal activity before it even happened.
At the core of that idea is the assumption that you can tell if someone might be involved in criminal activity just by looking at them. And that’s where racial profiling became such a concern. The magic of this system is that white middle-class people were unaware that the police were using visual cues towards young men of color and treating them in such a different manner. If you’re black or brown, you’re a suspect citizen right from the beginning.
TCR: How do police use traffic regulations to pursue this kind of biased policing?
FB: The method came out of hunches and seat-of-the-pants ideas that developed into accepted practices in policing. Back in the 1970s, airports were trying to develop profiles of who might be a hijacker and who might be a drug courier, and those are all based on appearances. Police then applied these to the highways.
The first sheriff to do this was in Florida. He kept getting his cases thrown out because judges all said he had no probable cause because he was literally just pulling people over because of appearances. That sheriff then went to the vehicle and highway codes and found that Florida highway laws gave him 500 reasons to pull someone over. He studied the manual and he studied the law and he found that there were so many technical violations of either the vehicle code, such as tinted windows or a crack on the brake light, or the traffic code, such as touching the yellow line, that you can be pulled over for.
The key decision by the U.S. Supreme Court was one that said that if you’re breaking the law you can be investigated. That means if everybody is speeding, then the police can pull over those who they want and say they pulled you over for speeding. Most people speed, so everyone’s open to a police investigation. Once they pull you over, and they start a conversation, they might ask for permission to search your car, and that’s where all the profiling happens. They really did have to find a methodology. The methodology of a traffic stop is fantastic because, if you’re driving a car, you’re pretty much opening yourself up to a police investigation.
TCR: According to your book, the logic behind this practice is that “you have to kiss a lot of frogs before you find a prince.” How did such a general practice come about and is this defence of it valid?
FB: I think that it came to be used because of the war on drugs and the idea that there’s this incredible mania among the law enforcement community about the danger of drug couriers and drug kingpins. But the thing about kissing a lot of frogs, for one, is that it’s unfortunate that the police would think of citizens driving down the road as frogs. They’re citizens and they have the right to their own privacy and the right to be free from unreasonable search and seizure. I think that the idea was that thousands of people would be deprived of their constitutional right to privacy and to travel unimpeded in the hope that one out of a thousand or one out of a hundred might be found carrying some drugs. And the Supreme Court validated this idea.
The police said everybody has to pay a small price so we can all be safe, and the Supreme Court said that since it’s only a momentary inconvenience, it’s a reasonable price to pay. And that makes good sense if you are white and middle class, like most of the Supreme Court justices, and it might happen to you once every ten years. You’re not subjected to that many police pullovers, and certainly not to very many searches. But if you’re a young black or Hispanic male, you might be pulled over frequently. So, it’s not just a momentary inconvenience, it’s a consistent statement by the government that they suspect you of wrongdoing. So, that’s where we really wanted to make the case that the court system has kind of misunderstood this.
They’ve given the police the green light to do these dragnets and very large scale traffic stops, justified by the war on drugs and crime, but it’s a very inefficient use of time and a very big waste of police money that, in addition, alienates so many people.
TCR: What are the psychological effects on minorities from these continual stops?
FB: Philando Castile, before he was killed in Minnesota, was in his early 30s and had been pulled over by the police, even in his short time as a driver, dozens of times. I’ve been driving since the 1970s, I’ve only ever been pulled over two or three times, and I’ve never been searched. So, if it happens to you once every 25 years, it’s true that that’s a momentary inconvenience.
But, if you’re just a young man of color, and you simply happen to fit a certain demographic profile that the police associate with crime, or if you just happen to live in a neighborhood where there’s more policing because there’s more crime, you might find that to be a routine occurrence. And when you know that it was a pretext, and you really weren’t driving in an unsafe manner, it teaches you that you are not a full citizen, that the police think of you as a potential criminal. And that’s a harsh lesson for a young man to learn.
TCR: When it comes to tragedies like Philando Castile, there is always the argument that it happened because of a “bad apple.” How valid is that argument?
FB: It’s valid, but it’s incomplete. We found that there were a lot of officers who had statistical patterns that are really quite troubling and I can tell you that I think some of them lost their jobs after their chiefs had seen some of this data. But, that’s not the whole picture, the entire system of racial profiling or disparate outcomes of traffic stops cannot be put at the feet of just a few bad apples, it’s really much more systemic.
Even when we take the bad apples out of the equation or we control for them statistically, we still see dramatic differences in how white and black drivers are treated, even when they’re treated by officers who are not the bad apples. We identified about a third of all officers as having more than a two-to-one ratio of searching black drivers compared to whites. So there are systemic, institutional patterns that are widespread, and then there are a lot of bad apples.
TCR: How does the level of officer discretion contribute to this problem?
FB: I keep thinking, I’m a college professor, and I think there are a lot of us in public service who are supposed to follow rules. Imagine you’re a third-grade teacher, and you teach reading. It’s not optional whether or not to cover certain parts of the curriculum. Principals and other supervisors are going to be pretty hands-on in making sure that all the third-grade teachers in the school are teaching the same curriculum. You have good teachers and bad teachers, easy teachers and hard teachers, but still the curriculum is the curriculum. Policing is really not like that. The disparities in behavior that we see from officer to officer are shocking. It is not particularly a racial thing, but a dynamic of the great degree of freedom and discretion that an individual police officer has. I think that’s an important characteristic of policing as work. It’s a decentralized workplace; it’s really hard for supervisors to monitor exactly what employees are doing.
As it turns out, when we looked at …the cases where they pulled someone over for speeding and the percentage of times they gave a ticket rather than a warning, the number goes from 0 percent to 100 percent, from to A to Z. It’s shocking how much variability there is in the outcome of a traffic stop based on who’s the officer. Some officers never search anybody, and some search 30 percent of the people they pull over. Some officers never make an arrest and some arrest 10 percent of the people they encounter. There’s a huge difference.
TCR: What are the different kinds of searches police can engage in?
FB: Essentially, if a police officer develops the idea, based on the situation, that there’s a probable cause that the individual is engaged in a crime or hiding contraband, then the officer has the legal right to search that individual and bring them into custody if they don’t agree. Let’s say they see what appears to be a gun, then they have probable cause to believe you have a concealed weapon and they don’t have to ask your permission to search you.
If they don’t have probable cause, then their only way to do a search is to ask the driver if they have drugs in the car and if they can search the trunk. And it’s your constitutional right to say no. But, of course, it’s very intimidating when an officer with a gun says I’d like to search your car. It technically has to be phrased in the form of a question, but that can be done in a way that’s quite intimidating.
TCR: Are there ways to tackle this issue of potential intimidation?
FB: One of the most effective reforms that we found in North Carolina was that some cities mandated the use of a written form. It says, “I hereby voluntarily consent to have my car searched and all of its belongings, and here’s the password to my iPhone because I understand that’s going to be searched as well.” And, of course, nobody signs this form. Once you lay out your constitutional rights to privacy, and you lay out that the officer does not have probable cause and he’s just asking for permission, nobody signs that form. It’s a very effective protection of people’s constitutional right to privacy.
The counter-argument is that this will lead criminals to go free. So, we looked at that very carefully and, essentially, our analysis of all these traffic stops shows that they just don’t catch many criminals. It’s better for the police to just enforce the speeding laws and pull people over who are drunk driving, running through stop signs, and driving dangerously than to use the vehicle code as an excuse to fight the war on drugs. It’s just not very efficient.
TCR: Aside from consent forms, what else needs to be done to create a change?
FB: Our main proposal is that the traffic police should focus on traffic safety. Don’t use the vehicle code as an excuse to fight a war on drugs or a war on crime more generally. It’ll keep us all safer if you do that and it will reduce the probability that a police officer is going to just make a pretextual traffic stop just because he doesn’t like the look of somebody, and use the traffic rules as excuses to do a police investigation. That’s contrary to our basic American freedoms, and it’s not effective.
Second, de-emphasize the regulatory and equipment failure traffic stops, all these traffic stops that are used as a pretext to get to talk to somebody, and, instead, emphasize ones that are truly related to safety. The problem with these equipment failure stops is that they bring poor people into contact with the police more commonly than wealthy or middle-class people. Middle-class people are less likely to have expired tags or bald tires because money is not a barrier to getting their inspection sticker. But poor people might be in that situation on a much more routine basis because they just can’t afford to get their tires replaced. Now that’s fair when a vehicle becomes dangerous to drive, but many of them are pretexts to pull a person over and see if they’re carrying drugs. It’s a waste of everyone’s time.
We found that police don’t find contraband very often, even when there’s a probable cause search, and when they do find something it’s usually a very, very small amount, so little that they won’t even arrest the person in a typical case. It’s not a cache of guns, or a stack of money. Which calls into question the public safety benefit of all these millions and millions of traffic stops.
TCR: What do you say to those who may claim that this is just a North Carolina problem?
FB: Well we have a paper where we’ve been gathering data. We’ve collected all the data from the statewide databases for Illinois, Maryland, and Connecticut. We’ve looked at other cities and state highway patrol agencies who’ve made their data available. We’ve found the same patterns, and actually much more serious patterns in the Chicago area.
If you remember the DOJ report on Ferguson, Missouri, they did an in-depth analysis of all the troubles in that community and one part of their report was looking at the traffic stops and the searches that resulted from them. And in Ferguson they were concerned by a 70 percent disparity: black drivers were 1.7 times likely to be searched. That’s below the average for North Carolina. Ferguson was an outlier, a tinderbox, in terms of racial resentment between the community and police department, and they only had a 70 percent disparity.
North Carolina is not a hot spot of racial disparity, (but) we find these same things all throughout the country. The state is not peculiar. It is quite generalizable. We should all look at this and try to understand that there is a reason for this resentment. We should take that seriously and police departments should look and see if these policies are really worth the trouble.
Isidoro Rodriguez is a contributing writer to The Crime Report, specializing policing issues. He welcomes readers’ comments.