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Racial and ethnic bias is an evil that must be addressed day in and day out, in every generation. It never goes away.
- Michael Zimmerman
I. Introduction
Perception is immensely important in the administration of justice because, at least on an individual basis, justice is in the eye of the beholder. This article examines problems
associated with perceptions of Utah's legal system, especially as those perceptions have lead some to believe either that it is fraught with prejudice or, alternatively, that law
enforcement and court personnel are simply doing their jobs. It then proposes continued solutions that may be enacted by the Legislature or implemented by individual members of the Bar.
II. The Perception of Racism in Utah's Legal System
Anyone who has renewed a driver's license recently may have noticed two new questions on the application: do you want
your race to appear on your license and, if so, what is it? These are the result of Utah's Traffic Stop Statistics Act. The purpose of these questions is to help the state track whether
individuals are stopped by police officers solely because of their race, a practice frequently called "racial profiling." Utah has not escaped the specter of racial profiling,
as recognized by the Statistics Act. However, that the Act was even necessary also demonstrates that racial profiling may occur in Utah. There is disagreement over whether and the extent
to which profiling occurs, and the Statistics Act is in part intended to provide data on the matter.
In May 1999, Mani Kang, a Sikh Indian man, drove through southern Utah on
Highway 191. A Utah Highway Patrol car driven by Officer James Curtis approached Kang and followed him from only a few car lengths back. Kang stopped at a service station where he filled
his gas tank, while Curtis pulled into the parking lot behind him. Curtis noted how much gasoline Kang purchased, observed him from the parking lot, then left. After paying, Kang resumed
his journey as well, but only a few miles down the road Curtis again began following him.
It wasn't long before Curtis stopped Kang for a lane change violation. Kang explained that
he was traveling home to Arkansas after having visited some friends and family in Los Angeles. Curtis noted that Highway 191 through southern Utah was not the most direct route to
Arkansas, but Kang responded that he was a photographer and had come to see Utah's beautiful landscapes. After this discussion, Curtis told Kang that he was "free to go." Curtis
then asked if he could search Kang's car. Kang responded that he could, but the search turned up nothing.
Some may believe that this was simply a matter of Officer Curtis doing his
job. In his experience, it was strange for a person from another state to stop at a service station, purchase only $4.80 of gasoline, all the while nervously looking out of the store
window. These factors might have made Curtis believe something suspicious had or was about to happen. After all, in 1999 UHP officers confiscated more than $228,000 in cash, 23 kilos of
cocaine, 4,000 pounds of marijuana, and 21 kilos of methamphetamine. It's not as though drug interdiction was uncommon for the area. Kang, however, perceived the situation very
differently. As a minority driving alone near small, culturally and racially homogeneous town, he felt he was targeted because of the color of his skin, and that Curtis had no reason to
assume that Kang had done anything wrong. Kang believed that the lane change violation was a pretext used by a racist police officer to stop and harass minorities.
Such different
explanations of the same incident show the problems of perception associated with racial profiling. Members of minority groups who have been victims of racial discrimination may interpret
the actions of others as racial bias, even when not intended as such. Likewise, members of majority groups who have not been victims of racial discrimination may tend to find any
explanation other than racial bias for incidents involving racial minorities. These perceptions explain why some individuals have brought lawsuits against Utah law enforcement agencies
alleging racial profiling. A suit filed by the ACLU on behalf of Kang is one example. Kang's experience was particularly egregious because of the following additional facts alleged in
Kang's complaint.
First, Curtis did not simply happen upon Kang. Rather, he passed Kang traveling in the opposite direction on the highway and, upon seeing Kang, turned around and
began following him. Second, Kang had a conversation with the service-station clerk while waiting for Curtis to leave the parking lot. The clerk told Kang, "That Patrolman's after
you. He was checking out your car when you were in here, and now he'll be waiting for you somewhere up the road. He does this all the time. Anyone that doesn't seem from around here, he
goes after[,] . . . especially if they're persons of color." Finally, Kang's lawsuit alleged that Curtis had been trained not simply to look for suspicious persons, but to look for
suspicious Hispanic persons, which in his case translated into unreasonable suspicion of Kang. Kang's complaint quoted a Department of Public Safety officer who trains members of the Utah Highway Patrol. The officer allegedly stated that "[a] lot of Hispanics are transporting narcotics. That's common knowledge." True or not, an unqualified statement like this - unaccompanied by appropriate training in matters of race relations - may lead to unlawful racial profiling.
Although many if not most traffic stops involve more innocuous circumstances, those surrounding Kang's traffic stop made it easier to find racial bias in his stop. This explains
the resulting judgment: a $2,000 award in favor of Kang.
Situations such as Kang's create justified perceptions of racism within the law enforcement community, perceptions which
often carry over into Utah's entire legal system, both criminal and civil. They lead some individuals to distrust anyone that represents the system, whether it be the police, the
prosecutor, the judge, or even the individual's own attorney. Because these perceptions tend to infect the entire legal system, it is in everyone's best interest to actively promote both
equality and equal access to every aspect of the Utah's legal system.
III. Proposed Solutions and Their Problems
In his case, Kang alleged that racist tendencies
motivated the officer's actions, while Curtis maintained that he was simply protecting the public. Indeed, in many cases (drug cases in particular) that is exactly what happens. But bare
suspicion is legally insufficient. To stop a car, an officer must be able to articulate facts creating a reasonable suspicion that some criminal activity has been committed. While race
clearly does not create reasonable suspicion, the general public unfortunately still associates minorities with illegal drugs. Many worry that this association leads law enforcement to
detain minorities in situations where they would not stop a white individual. The concern was addressed, although some would say dismissed, by the Supreme Court in Whren v. United States,
517 U.S. 806 (1996). There the Court held that, as long as a police officer has an objective reason for stopping a car, the officer's subjective reasons are irrelevant. "As a general
matter," Justice Scalia wrote, "the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred."
What makes this issue so difficult is that the courts are ill-equipped to solve problems of perception. One solution may be to disqualify minor infractions, such as mandatory seatbelt
laws or the lane change violation Kang committed, as sufficient to warrant traffic stops. During one Utah legislative session, Representative Yvonne Baca, a Hispanic woman representing
Salt Lake City, referred to minor traffic violations and the impact they have on the minority community. "We do everything in our power to make sure we're not pulled-over. . . . It
affects our self-esteem. It hurts us." Baca appealed to the Legislature to change the substantive law because, where courts are able to determine whether probable cause existed in a
given situation, the Legislature is able to reclassify what constitutes a primary infraction, one for which an officer may obtain the requisite cause to stop an individual.
Data
collection is often proposed as another way to ensure that police officers do not abuse their discretion by disproportionately stopping minorities. The premise of data collection is that,
if officers are not profiling, people of all races will be stopped in proportion to their presence in the community. If the data shows that stops are being made disproportionately, the
conclusion is that racial profiling is occurring in the jurisdiction. As Representative Duane Bourdeaux frequently says in describing data collection and its purpose, "You cannot
manage what you don't measure."
But there are many problems with data collection. Who will collect and interpret the data? How much disparity constitutes profiling? Who
determines the race of a stopped driver - the individual or the officer? And even if these can be overcome, police departments are still hesitant to participate in studies that may be
used against them in subsequent lawsuits. Indeed, even if it is proved that profiling occurs, what then? If the debate over its existence is complicated, finding a solution is even more
so. Should police reduce patrolling areas that are heavily populated by minorities, thereby avoiding possible profiling accusations? Should there be quotas on how many of each race an
officer or department may stop in a given time period? These are admittedly extreme examples, but could become the unwritten policy of departments in a world of protracted and expensive
litigation against law enforcement agencies. Furthermore, what if the data shows that police do not systematically profile? Will the minority communities believe the data, or see it as a
literal "whitewashing" of the numbers? And if the data shows that there is no overt profiling, will it simply give police departments an excuse not to make other changes, giving
them an "if it ain't broke, don't fix it" attitude?
IV. Utah's Approach to Solving the Problem
Racial profiling and complaints of its occurrence are symptomatic
of an underlying distrust of law enforcement by minority communities. Some scholars have suggested that such distrust is best addressed by initiating a dialogue between law enforcement
and minority communities. Utah chose this approach to address racial profiling, as well as other problems of race and criminal justice, through the creation of the Utah Task Force on
Racial and Ethnic Fairness in the Legal System and its successor, the Commission on Racial and Ethnic Fairness in the Criminal and Juvenile Justice System.
The Task Force was
established in March 1996 by the Utah Judicial Council. Its purpose was "to examine issues related to real and perceived racial and ethnic bias" in the legal system. Members of
the Task Force included leaders of state law enforcement, juvenile justice, courts, prisons and parole agencies, as well as representatives of racial and ethnic minority groups. At its
inception, most members did not trust each other. Then Chief Justice Michael Zimmerman headed the Task Force and compared many of the meetings to a circus. However, as time went on, its
members began to trust each other and the Task Force was able to examine many issues involving race and Utah's criminal justice system.
The Task Force then began collecting data on
minority perceptions of Utah's law enforcement community. While it tried to examine data that had already been accumulated by the State's various law enforcement agencies, differences in
the modes of data collection, as well as incomplete databases made analysis unproductive. To compensate for this, the Task Force began collecting anecdotal evidence from public hearings
where people were invited to discuss their impressions of the system and its relationship to minorities.
In September 2000, the Task Force issued its Final Report. Although the
report was issued unanimously by the members of the Task Force, many of the state's police officers and members of the minority community criticized the methodology. Particularly
disturbing to police was the Task Force's heavy reliance on anecdotal evidence. They claimed that the report was full of half-truths and relied solely on anecdotal information contributed
by second- and third-hand sources.
Those participating in the Task Force, however, felt that it had been a huge success. Having spearheaded the effort, Justice Zimmerman hoped that
it would continue. "It would be a real shame to lose th[e] sense of cooperation instead of confrontation. You can accomplish a lot more by persuading a department head to make
changes than by standing outside on the street and calling names." He recognized that the Task Force had created an entirely new entity in Utah politics: a civilized and respectful
environment where members of minority, law enforcement, and court system communities could meet and discuss the issues each side was confronting.
One of the recommendations made by
the Task Force was the establishment of a statewide, uniform database by which the incidence of traffic stops could be studied based on various factors, particularly race. Representative
Duane Bourdeaux, the only African-American in the Utah Legislature, sponsored the legislation. He told legislators that Utah's minority community distrusts law enforcement in this state.
"[T]here is truly a perception in the minority communities that this is happening, and the only way to get this information is to have a standardized reporting process."
Other legislators were not as enthusiastic. Senator Chris Buttars worried about the bill's unforeseen outcomes. "You could actually be creating problems in our community rather than
bringing us together," he said. Senator John Valentine compared the inclusion of race on a person's driver's license to Germany's forcing of Jews to carry identification cards.
"It was wrong then and it's wrong now. Do we want to make race an issue? I don't think so. We are all Americans [and] there's a real danger in having a record like that."
Senator Pete Suazo, the Legislature's only Hispanic member, responded by recognizing that race is already an issue. "[W]e're not accepted as full Americans. If you'd ever been pulled
over for no other reason than color, you would want this bill."
Additionally, many police officers in the state did not understand the need for racial profiling legislation.
Salt Lake City Police Chief Ruben Ortega stated that Bourdeaux needed better evidence of profiling before requesting that the state spend so much money collecting data on traffic stops.
"Before we start spending all that money to do this, you're going to have to convince us there's a need." Although this was a ridiculous claim (how could Bourdeaux convince
anyone that profiling existed if the state was not willing to spend the money to study the issue?), Ortega was not the only police chief to make such arguments. Roy Police Chief Chris
Zimmerman also felt that what little (and inconsistent) data did exist supported law enforcement claims that profiling was not a problem. Despite this opposition, in 2002, the Traffic
Stop Statistics Act finally passed.
V. Conclusions and Recommendations
While the creation of a uniform system of data collection will be very useful to understanding
whether, and to what extent, profiling exists in Utah, it will not provide a magic solution to these problems. Primarily, those on either side of the issue may also question the accuracy
of the data, as has been demonstrated in St. George and Salt Lake City. Before the state created its own data collection system, these cities each gathered their own statistics. But when
the cities first released reports showing that profiling did not occur, many saw the data as too good to be true. Speaking of the Salt Lake City numbers, Theresa Martinez, an Hispanic
professor of Sociology at the University of Utah, explained, "This study doesn't mean individual officers are not [engaged in] racial profiling, only that there isn't a systemic
problem."
Furthermore, even if the data is accurate, there likely will remain a rift between the minority and law enforcement communities. Ron Stallworth, an African-American
Lieutenant in the Department of Public Safety, noted, "I'm too black for white people to accept, but often too blue for my ethnic brothers." Identifying the problem is only the
first step down a long road to solving it. However, there has been some progress on this front. After working very closely with the Salt Lake City Police Department on racial and ethnic
training, Martinez now recognizes the progress that has been made in trying to overcome all problems of race, not simply racial profiling. While she knows data collection "will not
be a panacea for this issue," she and other members of the minority community see the efforts made by the police to address these problems as "a series of good first steps in
the right direction."
The reason the Task Force and Commission have been so successful is that they provided a forum for all interested parties to discuss issues in a manner
where each of them could be equally represented. Unlike the Utah Legislature, where there have historically been only one or two minority representatives, the Task Force provided a place
where members of all communities could meet and discuss issues surrounding race and ethnicity in the criminal justice system. The Bar should also provide a forum for members of Utah's
legal system, not merely the criminal justice system, to discuss issues of race, and accordingly how to address them.
One of the most important areas in which we must all continue
to work is that of convincing the members of our respective organizations of the importance and effectiveness of what has already been done. The leaders of the groups involved must
convince their members that these efforts are neither merely token gestures with no real change in sight, nor vehicles by which only accusations of racism and intolerance are bred. Does
the average African-American or Hispanic person see the changes that are being implemented? Does the local police officer in Kamas, Tooele, Hurricane, or Panguitch see the importance of
working towards change? The Task Force and Commission, composed of statewide leaders, may be unanimous, but does that unanimity extend to the rest of these communities?
More
importantly, as members of the Bar, do we give our time, talents, and resources to those who have been denied (purposefully or as a result of circumstance) access to the courts?
Participating in the discussion through pro bono service and other means is the only way to change people's perceptions, so that "the system" is not the enemy but rather a tool that all groups and individuals can and do access. Racism must no longer be something we feel we do not participate in, but must rather become something we actively participate to overcome. Only when everyone recognizes this will there be any real change in the perceptions of the racial problems (or lack thereof) in Utah's legal system.
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