SJC takes big step backward on racial justice

IN SEPTEMBER 2020, the Supreme Judicial Court released three landmark rulings which, taken together, placed the judiciary front and center in the fight for racial justice.

Commonwealth v. Long lowered the burden for proving a police traffic stop was racially motivated; Commonwealth v. Evelyn noted that nervous and evasive behavior by Black males can no longer be used as evidence of their guilt, since such behavior could reasonably be understood as the consequence of fear resulting from police abuses against members of Black communities; and Tinsley v. Town of Framingham clarified that an individual’s guilt does not negate their right to not be abused.

It was surprising then, to see the court’s recent ruling – Commonwealth v. Sweeting-Bailey – which effectively rolls back progress toward racial justice. In a 4-3 split, the SJC ruled that New Bedford police officers during a traffic stop were legally justified to pat-frisk a calm and compliant backseat passenger, Zhaquan Sweeting-Bailey, based not on Sweeting-Bailey’s behavior, but on the behavior of another passenger, Raekwan Paris, who had exhibited anger towards the officers. Importantly, Paris had been racially profiled numerous times in the past by the same officers.

Writing for the majority opinion, Justice Elspeth Cypher argued that the totality of reasons presented for the stop – the other passenger’s “erratic” behavior, the officers’ recognition of the passengers’ gang affiliation, Sweeting-Bailey’s prior gun conviction as a juvenile, and the occurrence of the stop in a high-crime neighborhood – warranted the pat-frisk even if none of these reasons alone was sufficient to establish reasonable articulable suspicion.

Scholars and court dissenters alike have rightly criticized the opinion for failing to require the police to articulate individualized suspicion rather than deploying troubling racial stereotypes of people and neighborhoods. But there is another aspect of this case that deserves further scrutiny.

The mechanism for this unjustifiable frisk of a Black man was a pretextual traffic stop, a form of stop-and-frisk policing whereby officers use minor traffic violations to stop and investigate people for more serious offenses. Although law enforcement often argues that pretextual stops are a crucial tool for crime fighting, empirical evidence indicates they are extraordinarily ineffective; police find guns and other contraband in less than 2 percent of these stops. An analysisof data from San Diego, for instance, revealed that only 1.3 percent of stops led to an arrest. In New York City, the figure is less than 0.02 percent. 

Furthermore, such practices harm Black residents disproportionately. Within the Commonwealth, a 2004 ACLU report showed that two out of three Massachusetts police departments stop Black and Hispanic drivers disproportionately. The ACLU followed up with a 2014 report using Field Interrogation and Observation data from 2007 to 2010. Their findings were much the same – despite comprising only 24 percent of Boston’s population, Black residents made up over 63 percent of pedestrian stops. The most recent report on racial bias in traffic stops, published just this week, reveals disparities in stops in a few parts of the state, but statewide, Latinos and Blacks were significantly more likely to be searched, criminally cited, and arrested.

The harm does not stop with the excess harassment and humiliation that comes with being unfairly stopped, however. People lose their lives. Indeed, 11 percent of all fatal shootings by police occurred during traffic stops. Most of these resulted from errors in police procedures and police misconduct, and Black men have been disproportionately represented among those killed in these incidences.

Such encounters, violent or not, are avoidable. Officers need not be involved in traffic stops in the first place. The majority of common traffic violations can easily be monitored using unarmed traffic monitors equipped with citation power and aided by speed monitors and cameras. Given these facts, Montgomery County, Maryland; Philadelphia; and Berkeley, California, have already taken steps to remove police officers from traffic enforcement. Other jurisdictions are also considering this option seriously.

These encounters would also be avoidable if members of the highest court took seriously the court’s unique role in the fight for racial justice. By expanding police discretion with Sweeting-Bailey, the current SJC is effectively contributing to the very racial disparities that the court had only recently fought hard to eliminate and is undermining its once-visionary commitment to end racial inequities.

Deborah Ramirez is a professor of law at Northeastern University School of Law, where she co-directs the Center for Law, Equity, and Race. Sandra Susan Smith is a professor of criminal justice and faculty director of the Program in Criminal Justice, Policy, and Management at the Harvard Kennedy School.