History suggests SJC rulings will improve policing
Officers may resist changes, but they will improve performance
IF HISTORY IS a guide, three unanimous Massachusetts Supreme Judicial Court rulings on race and police practices issued last week will make policing more effective and more just.
In one, the SJC broadened the circumstances in which a black motorist may argue that racial profiling by police led to a traffic stop. The ruling states, “…the defendant must point to specific facts from the totality of the circumstances surrounding the stop; the inference need not be based in statistical analysis.” The state high court also declared that because of historic mistrust of police by black people, police may no longer use certain kinds of nervous behavior as indicators of suspicious activity. “The weight of the inference properly given to flight should be less when the individual is African-American,” the justices ruled in part. In the third ruling, the SJC decided that a person may pursue a lawsuit against police alleging civil rights violations even if the person is convicted of crimes arising from the incident.
The rulings will create change for police. Police, prosecutors, and courts will work out over time what these new terms mean in practice. Will these rulings thwart effective law enforcement, as some inevitably will argue? Lessons from the past several decades say no. These rulings, in fact, could become a greater impetus for enhancing racial equity in police practices than anything else currently under discussion in the Commonwealth. As the great police innovator Bill Bratton has said, “Crisis is opportunity.”
Since the “rights revolution” in the Earl Warren Supreme Court, a series of high court rulings from the 1950s into the ‘70s have required improvements in policing techniques. In just about every case, the initial reaction from police practitioners was that of alarm.
Improved techniques in criminal investigations, intelligence gathering, and patrol practices have contributed to long-term decreases in crime and victimization, and fewer deaths of officers in the line of duty. Smarter investigations are safer. In fact, the more we protected rights, the higher we pushed the professional expertise of the police, and less lethal became the job. Training became more rigorous and expansive. Accountability deepened. Tactics became more effective. Most detectives today would not even get out of the car with anyone who practiced detective work as it was done in the 1950s.
Two of the SJC decisions arose from traffic stops. Motor vehicle issues are ubiquitous in the Commonwealth and in the country. In every neighborhood, regardless of median income, ethnicity or volume of reported crime, speeding drivers are one of the top concerns you’ll hear. In turn, stopping drivers for violations of the motor vehicle laws is the most common self-initiated activity across 14,000-plus local police agencies in the US.
Motor vehicle stops are also one of the most potentially lethal of all police activities. Paradoxically, perhaps, they also represent the most frequent opportunity for officers to walk the talk of procedural justice and legitimacy.
Most residents’ only interaction with police will be in a motor vehicle situation: a stop or assistance at a crash. Yet within the police service very little if any time is invested in studying motor vehicle enforcement strategy and tactics. The new SJC rulings will look onerous to many police practitioners; they may feel initially like they’re having both hands bound. Yet, these new standards can serve as a push to examine more deeply what police do and how they do it.
I recall a discovery in the Boston Police Department in the early days of the emerging racial profiling controversy. We found one officer who apparently did not like issuing the most expensive speeding tickets. He’d write a lower speed violation in the appropriate box and the driver’s actual speed in a corner of the citation. If you contest this, he told drivers, I’ll appear at the hearing and tell the judge your actual speed. It hardly takes a constitutional lawyer to see all that was wrong with that practice.
It was quickly stopped. But two additional things are true. First, absent efforts then underway to probe potential profiling scenarios, the top brass would have known nothing of this practice. Secondly, the officer’s practice was unlawful but innovative. What might he have been learning about traffic calming on his beat? We never will know the answer because departments do not take time to review practices such as traffic enforcement.
The US Supreme Court and the state high courts play the role of de facto, if indirect, police commissions for the US police service. Control is otherwise diffuse, with every city, town, borough, and village in charge of its own department, whether one officer or 36,000.
In Mapp, the Court ruled that the federal exclusionary rule applied to states and municipalities. Evidence obtained from a search that violated Fourth Amendment protections against unlawful searches and seizures now would be inadmissible in state and local courts. An important, practical result of Mapp was the steady improvement in police investigative procedures. With more thorough investigations, police were able to make stronger cases and know much more about dangerous places before they executed valid search warrants. The requirement to put together the case for probable cause also provided officers greater protection by their knowing more about the threats lurking on the side of the door.
The list of police practice-changing rulings in this series of cases also included Gideon v. Wainwright that created the right to an attorney; in re Gault that extended Fourteenth Amendment protections to juveniles; Miranda v. Arizona created enhanced Fifth Amendment protections for arrestees and the Miranda Warning; and Terry v. Ohio created a Fourth Amendment standard of “reasonable suspicion” to justify a police officer stopping a person for an interview on the street.
Sometimes, it seems leaders and line practitioners forget these and other lessons. They forget that in the 1990s and into the 2000s improved practices yielded such harm-reducing innovations as the Boston Strategy on Youth Violence; the Compstat accountability program in New York City; and the Memphis strategy on working with mentally ill persons in crisis.
The lapse is analogous to doctors and nurses who had known about the germ theory of disease since about 1847, but who rarely washed their hands and stethoscopes during tours on the floors and the ERs. Atul Gawande has written about the “innovation” of frequent hand washing as a key to reducing hospital-spread infection. As the practice of medicine increased in complexity and technical wizardry practitioners got away from the basic lessons. It took 85,000 deaths a year from hospital-borne infections to get the now-ubiquitous sinks and hand sanitizer stations installed in rooms and corridors.
Police can and must continue to learn from experience and from changes in the constitutional environment. Police always will be in the center of things as America struggles to repair the damaged societal chromosome that generates white skin privilege and black skin disadvantage.
Police are pushed to change ahead of other institutions because of the consequential and public nature of police judgments and practices. Chuck Wexler, long-time director of the Police Executive Research Forum, the leading organization of progressive police chiefs in the US, wrote recently to members about the opportunity inherent in this greater scrutiny of police practices. Wexler said departments everywhere could benefit by analyzing and drawing lessons from some of the national controversies and their own controversies.
“Take the scenario apart,” he wrote. “Ask, what did the officers know about this individual? What was their strategy – what were they trying to accomplish? Did the officers have other options and if so, what were they?”
“What would our officers do in a similar situation?” he continued. “What do our policies and training say? Beyond tactics, do our officers have the communications skills and empathy that are so important in situations like this?”Wexler included this bit of advice, which is true across the complex tasks of change and adaptation: “With practice and experience, you and your commanders will get more comfortable and more effective with this whole process.”
Jim Jordan is the former director of strategic planning for the Boston Police Department and co-principal of Public Safety Leadership. He has taught policing courses at Northeastern University and UMass/Lowell.