Voice of the Judiciary
Throughout the past several decades, State and Federal appellate courts have candidly acknowledged the implicit biases of litigants and jurors. Although social science research has found that judges are just as susceptible to unconscious bias as the rest of the population, the paucity of case law acknowledging judicial bias underscores the need for introspection. Since confronting subconscious attitudes and stereotypes is challenging for many, the process of eradicating the influence of race and implicit bias on the Massachusetts judicial system is likely to take many years. Chinese philosopher Lao-Tzu said “the journey of a thousand miles begins with one step.” With that in mind, the Trial Court recently took the first step of its “thousand mile journey” to eliminate the influence of implicit bias by establishing the Departmental Race and Implicit Bias Advisory Committee.
The Committee was formed in response to feedback from attendees of the September 2015 All Court Conference on Race and Implicit Bias. According to Chief Justice Ralph Gants, the decision to hold the All Court Conference was prompted by recent events in Ferguson, New York, Baltimore, and Cleveland that “raised important questions about the intersection of race and justice in our country.” The Supreme Judicial Court recognized the value of examining the court’s role in “addressing race as it affects the pursuit of justice,” and “resolved to open a dialogue among Massachusetts judges” to consider the way implicit bias impacts the Commonwealth’s courts. The subsequent formation of the Committee was a way for the Trial Court to continue that dialogue at the departmental level.
In the most basic sense, implicit bias is “thoughts about other people you didn’t know you had.” Consequently, it is often difficult for individuals who do not fall victim to the impact of certain biases to identify the ways they are manifested. Within the Trial Court, however, implicit racial, cultural, gender and other biases have opportunities to exhibit themselves in myriad ways.
Implicit racial bias, for example, can manifest in the form of erroneous assumptions that a person of color is not a judge, attorney, or officer of the court. Implicit racial bias may also explain the disparity between the number of non-Hispanic whites and persons of color given the opportunity to participate in Drug Court, which offers offenders an opportunity for rehabilitation instead of incarceration. Indeed, while non-Hispanic whites in Massachusetts use illicit substances at slightly higher rates than members of racial and ethnic minorities, incarceration rates for distribution offenses that do not carry mandatory minimum sentences are six times higher for persons who identify as black. Juveniles are not exempt from the subconscious biases that fuel these trends. Of all the youths arrested for weapons offenses in 2010, white youths were arrested at approximately double the rate of black youths. However, of all the youths that were held in custody for weapons offenses, black youths comprised 52% while white youths represented a mere 16%.
Implicit cultural biases can lead Trial Court staff members to erroneous conclusions about a constituent’s demeanor. A judge or clerk interpreting a lack of eye contact as representative of disinterest may be less patient with a litigant who avoids eye contact than a judge or clerk who knows that in many cultures, eye contact is a sign of disrespect. Implicit gender biases have the potential to impact the outcome of familial disputes, such as the distribution of assets in a divorce or the likelihood of a male obtaining a protective order from an abusive partner as compared to the chances of a female requesting one on the same basis. One study found that 65% of transgender Massachusetts residents had experienced discrimination in an area of public accommodation. Discriminatory, or even preferential treatment may also arise from implicit biases concerning sexual preference, age, weight, disability, and religion, among others.
By way of the Committee, the Trial Court seeks to create a system that embraces and understands all people regardless of their identity. The Committee is comprised of Chief Justice Paula Carey and Court Administrator Harry Spence as well as one or more individuals (mostly judges) from each Trial Court Department who have been appointed by their respective chief justices. Committee members are charged with initiating a dialogue about implicit bias within their department and encouraging others to get involved with the effort to help all Trial Court staff members recognize that an egalitarian judicial system is the only way to build and promote public confidence and trust that the Trial Court will administer justice impartially to everyone that it serves.
The Committee recognizes that the implicit associations we hold “do not necessarily align with our declared beliefs,” and seeks to implement checks and balances that give Trial court staff members pause before they make a decision. Already, the Committee has created bench cards to be distributed all Trial Court justices and clerks that encourage them to engage in “more deliberative, effortful processing” when making a decision, and thereby discourage low-effort decision-making that relies on intuition informed by stereotypes or prejudice.
The Committee also understands that exposure to stigmatized group members “can help individuals negate stereotypes . . . and ‘unlearn’ the associations that underlie implicit bias.” Accordingly, the Committee intends to identify and encourage the use of diverse recruiting resources, and advance staff members’ cultural awareness through workshops and other forms of training. This fall, the Committee plans to introduce a resource bank on the Trial Court’s intranet to ensure that the materials distributed at these trainings are accessible to all. To create a judicial system that is user-friendly for everyone, the Committee also plans to assess the experiences of Trial Court users through surveys and focus groups, and is considering the implementation of educational opportunities for pro se litigants who are struggling to comply with their legal obligations.
If you are interested in assessing your own implicit biases, Harvard University’s Project Implicit has free online tests available that allow you to assess subconscious preferences based on race, gender, and sexuality, among others.
Chief Justice Paula Carey recognizes that “issues related to race, bias and power are among the most difficult to confront, discuss and address since they are embedded in an organization’s structures and practices, they are often invisible to many, and they prompt defensive reactions.” She believes that taking these issues on will be “a challenging journey but well worth the effort.”
Judge Kenneth V. Desmond, Jr. has served on the Massachusetts Judiciary for eleven years. He was appointed to the Massachusetts Superior Court in December 2012 and prior to that served on the Boston Municipal Court. He is a Trustee of the Flaschner Judicial Institute and Chair of the Trial Court’s Departmental Race and Implicit Bias Advisory Committee. Judge Desmond is a graduate of Tufts University and Boston College Law School.
Police departments in Massachusetts and around the nation face heightened scrutiny about racial bias in their stop-and-frisk and use-of-force procedures. Years of abusive practices, combined with videos of police killing unarmed Black men, have sparked protests and eroded trust between communities and the police. These protests, in turn, have inspired overdue conversations about race and policing.
Massachusetts lawyers and lawmakers must engage in this discourse. And technology, when supported by appropriate law reform, offers a way forward.
What the Law Says about Police-Civilian Encounters
In theory, the Constitution protects people from police actions undertaken for no good reason or, worse yet, for discriminatory reasons. Although a police officer may engage anyone in conversation, an officer may not “stop” someone without individualized and reasonable suspicion of the person’s involvement in a crime. Terry v. Ohio, 392 U.S. 1 (1968). Even then, the officer may not lay hands on the civilian—for example, by conducting a “frisk”—without reasonable suspicion that the person is armed and dangerous. Id.
Further, although the United States Supreme Court has authorized police actions that are merely pretextual, officers may not undertake actions based on race. Whren v. United States, 517 U.S. 806 (1996). For example, if a driver is speeding, an officer may stop his car even if the officer is really interested in looking for drugs. But a speeding car cannot justify a traffic stop if the officer is really conducting it because the driver is Black.
Former Attorney General Eric Holder reiterated these principles in December 2014 when he issued new guidance on racial profiling. Under this guidance, when federal officers conduct traffic stops and other civilian encounters, they “may not use race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity to any degree,” except as part of a “specific suspect description.”
What We Know about Massachusetts Policing
Those lofty principles have not adequately protected people, particularly people of color, from illegitimate police actions. An independent report on Boston Police Department (BPD) police-civilian street encounters, conducted at the request of the BPD and the ACLU of Massachusetts, documents what people in communities of color have long observed: “racial discrimination in BPD [police-civilian encounter] practices.”
The report—the only public report on BPD street encounters—finds that BPD officers targeted people of color at far greater rates than white people. For example, reviewing 204,000 police-civilian encounters documented in “Field Interrogation and Observation” forms filled out by Boston police officers between 2007 and 2010, researchers found that Blacks were targeted 63% of the time even though they comprise just 24% of Boston’s population.
But there’s more. Even after controlling for local crime rates, Boston officers were more likely to initiate encounters in Black and Latino neighborhoods. For every 1% increase in Black residents relative to white residents, police conducted 2.2% more encounters—even when crime and gang activity stayed the same. And a 1% increase in Latino residents relative to white residents was associated with a whopping 4.1% increase in police encounters. Similarly, even after controlling for individual arrest records and gang membership, Boston officers were more likely to initiate and escalate—via a frisk or search—encounters with Black and Latino people. Yet for 75% of these encounters the police gave no real justification; they instead just wrote that their purpose was to “investigate [a] person.”
Of course, it’s not just Boston, and it’s not just street stops. A 2004 Northeastern University study, commissioned by the Massachusetts legislature, found that 249 out of 366 Massachusetts law enforcement agencies show substantial racial disparity in traffic stops. Everywhere you look, race matters.
Despite this evidence, and despite testimonials from people of color, many law enforcement and elected leaders in Massachusetts have responded by denying that race is a driving factor in police-civilian encounters—or by dismissing the data as “old.”
Those responses are not surprising. People often construe new information to reinforce their preexisting beliefs or justify their past actions. Such denials, however, reinforce the mistrust between the police and the communities that experience increased police scrutiny. How can those communities expect police departments to fix a problem whose existence they won’t even acknowledge?
What Comes Next
In May 2015, a presidential task force recommended that police departments use open data to increase transparency and build community trust, including adopting early warning systems to identify problems, increase internal accountability, and decrease inappropriate uses of force. Law enforcement leaders, likewise, have called for greater transparency. “We simply must find ways to see each other more clearly,” said FBI Director James B. Comey. “And part of that has to involve collecting and sharing better information about encounters between police and citizens, especially violent encounters.”
Specifically, Mr. Comey proposes requiring police departments to gather more and better data regarding “those we arrest, those we confront for breaking the law and jeopardizing public safety, and those who confront us.”
Bills pending before the Massachusetts legislature would do just that. One bill, An Act regarding judicial investigations of law enforcement officer-involved deaths (H.1428), would mandate independent investigations of deaths at the hands of police officers, and direct the Secretary of Public Safety to promulgate regulations for data collection about use-of-force incidents more generally. Three other bills would require police to collect, analyze, and make public data on race, ethnicity, and gender in traffic and pedestrian stops and arrests, as an antidote to racial profiling and disparities in law enforcement. Collecting and analyzing data—as a routine, consistent, accepted professional practice—can identify “problem areas” and serve as a foundation for fair policing practices. The premise behind all of these bills is that police departments cannot manage what they do not measure.
In addition to officers’ collection of data, civilians’ recording of incidents with cell-phone cameras also provides a measure of civil-rights protection during police encounters. But civilian recording is haphazard, at best, and sometimes dangerous for the civilian. A complementary system of police-worn body cameras, with appropriate privacy protections, would protect both law enforcement and the public. Although some opponents of body cameras have suggested that the Massachusetts law requires two-party consent, it does not. As long as a body camera is worn openly, it does not offend the state wiretap law. See Mass. G. L. c. 272, § 99.
In addition to data collection and body cameras, police departments should be required to implement implicit bias training for all officers. As FBI Director Comey pointed out: “Much research points to the widespread existence of unconscious bias. Many people in our white-majority culture have unconscious racial biases and react differently to a white face than a black face. In fact, we all, white and black, carry various biases around with us.”
Bias training for police officers, when combined with data collection, monitoring, and systems of accountability, is considered by many to be a prerequisite for lasting structural change needed to achieve a socially just society.
Finally, the new BPD report indicates that Terry and Whren have not offered complete protection from groundless or discriminatory police action. Massachusetts courts and policy makers should consider strengthening this protection through doctrines that account for new technology and deeper understandings about the role of race in policing. For example, Massachusetts courts have held that a defendant is entitled to an instruction telling the jury that it should be skeptical of a defendant’s alleged confession when the police fail to record a custodial interrogation. Commonwealth v. DiGiambattista, 442 Mass. 423 (2004). A similar jury instruction or evidentiary rule may be warranted when an officer has the capability to record, but nevertheless does not record, a Terry stop. Just recently, terrorism suspect Usaamah Rahim was reportedly under constant law enforcement surveillance, yet the only video of the Terry stop resulting in Rahim’s death comes courtesy of a grainy security camera owned by Burger King.
Similarly, in seeking to suppress evidence from a Terry stop, a Massachusetts defendant can rely on statistical evidence demonstrating disparate treatment of persons based on their race. Commonwealth v. Lora, 451 Mass. 425 (2008). Given that the only statistical study of BPD street encounters has revealed what independent researchers called “racially disparate treatment of minority persons,” lawyers and courts should consider whether evidence arising from these encounters should be admitted in court.
Technology can enhance liberty, and so can modern understandings of the role of race in policing. But only if the law keeps pace.
Matthew Segal is Legal Director of the ACLU of Massachusetts and a former assistant federal defender in Asheville, North Carolina.
Carol Rose is Executive Director of the ACLU of Massachusetts, a nonpartisan organization that uses litigation, legislation, communications and organizing to promote civil rights and civil liberties.