Black History Month 2013: Racial Disparities and Human Rights – Case Studies from the USA and Germany
Traffic stops are the most frequent form of police contact with the public. In the US traffic stops have become a politically volatile issue as many blacks have complained that many stops and searches are based on “race” rather than on legitimate suspicions – in this case the procedure is called racial profiling.
Driving while black
In April 2005 the Justice Department completed a three year study based on a national survey of almost 77,000 Americans age 16 or over in the year 2002. Black (11% of the people interviewed who had police contact), Hispanic (9.3% of the people interviewed who had police contact) and white (76.7% of the people interviewed who had police contact) motorists are equally likely to be pulled over by police, but blacks and Hispanics are much more likely to be searched, handcuffed, arrested and subjected to force or the threat of it, the study had found.
(The US Census Bureau differentiates between Hispanic whites and Non-Hispanic whites - another point for debate and critical whiteness studies)
The data showed that black (9.1%), Hispanic (8.6%) and white (8.7%)motorists were equally likely to be pulled over by police; about 9 percent of each are stopped.The racial disparities showed up after that point:
Blacks (5.8%) and Hispanics (5.2%) were more than twice likely to be arrested than whites (2%).
Hispanics (71.5%) were much more likely to be ticketed than blacks (58.4%) or whites (56.5%).
Blacks (2.7%) and Hispanics (2.4%) were three times more likely than whites (0.8%) to report that police used force or the threat of it. Force was defined as when an officer pushed, grabbed, kicked or hit a driver with a hand or object. Also included were police dog bites, chemical or pepper spray or a firearm pointed at the driver, or the threat of any of these.
Handcuffs were used three times more of black motorists (6.4%) and Hispanics (5.6%) than whites (2%).
Blacks (10.2%) and Hispanic (11.4%) drivers and their vehicles were three times more likely to be searched than whites (3.5%) and their vehicles.
Vehicles driven by blacks were searched 7.1% of the time; by Hispanics, 10.1%; by whites, 2.9%.
The lead investigator of the study Lawrence A. Greenfeld, the director of the department's Bureau of Justice Statistics wanted to publicize the racial disparities in a press release but Bush administration officials disagreed and after the dispute Greenfeld was fired and being moved to a new job.
The study, first reported by The New York Times, said the interviews did not ask enough questions about circumstances — such as whether drugs were in plain view — or about driver conduct to "answer the question of whether the driver's race, rather than the driver's conduct or other specific circumstances," led to the search. Thus meaning that the study did not show convincing evidence that the found racial disparities are based on racism. More information was needed to evaluate the post-stop data.
Therefore in the 2011 study which is based on interviews conducted in 2008 these issues were addressed:
The study found White (8.4%), black (8.8%), and Hispanic (9.1%) drivers were stopped by police at similar rates but now in addition they asked drivers if they felt that police acted respectfully during traffic stop.
92.4% of whites, 86.6% of blacks and 89.8% of Hispanics felt that police acted respectfully during traffic stop.
In 2008, about 73.8% of black drivers believed police had a legitimate reason for stopping them compared to 86.3% of white and 82.5% of Hispanic drivers. but results varied across reasons for traffic stop. An estimated 78.7% of black drivers stopped for speeding felt they were pulled over for a legitimate reason, compared to 88.7% of Hispanic and 91.8% of white drivers. Among traffic stops for vehicle defects, black drivers (60.7%) were less likely than Hispanic (84.3%) and white (86.8%) drivers to feel they were pulled over for a legitimate reason.
Black drivers (12.3%) were about three times as likely as white drivers (3.9%) and about two times as likely as Hispanic drivers (5.8%) to be searched during a traffic stop.
Blacks (3.4%) were about three times as likely as whites (1.2%) and two times as likely as Hispanics (1.6%) to experience use or threat of force in 2008. When they asked if the threat or use of force against them by police was excessive 70% of blacks, 72.8% of whites and 78.9% of Hispanics responded that they felt the threat or use of force against them by police was excessive.
(An interesting result - one would expect blacks to show the highest percentage instead they show the lowest. Maybe they are “used to it” or expect the police to treat black drivers like this – more research is needed.)
Black drivers (4.7%) were two times more arrested than white drivers (2.4%) during a traffic stop. Black drivers (58.3%) were somewhat more likely than white drivers (53.1%) to be ticketed during a stop. An equal percentage of Hispanic (2.6%) and white (2.4%) drivers were arrested following a traffic stop, while a greater percentage of Hispanic drivers (62.9%) than white drivers (53.1%) received a ticket. In addition, a greater percentage of white drivers (11.2%) received a verbal warning from police, compared to Hispanic (4.5%) and black (6.0%) drivers.
This year a series of “Racism Still Exists” billboards dedicated to highlighting racial disparities that impact black people in America have popped up in New York. The last month’s billboard was dedicated to Stop-and-Frisk, the controversial New York Police department (NYPD) tactic that’s drawn national criticism for its disproportionate impact on black and hispanic men. The billboard’s provactive text reads,
“Don’t want to get stopped by the NYPD? Stop being black”
Take the A train
The issue of racial profiling by the police also gains momentum in Germany where NGOs, foundations and legal experts are campaigning around the issue and police and politicians are now under pressure to accept changes to procedures in identity checks, as well as to create formal mechanisms for police accountability (such as keeping account of stops and searches, publishing data on complaints against the police, creating an independent police complaints system and a mandatory inquest system following any death in police custody). Unlike in the US in Germany the justice department never carried out a study about racial profiling by the police.
According to Tahir Della of the Initiative of Black People in Germany, discrimination in identity checks is an aberration in ‘Germany’s current multicultural and multiethnic reality’. Della spoke in response to a test case brought by a 26-year-old black German architecture student (the young man has chosen not to reveal his identity) who, in a Rosa Parks moment, and fed up by repeated humiliations (he had been asked to show his ID card at least ten times in two years on the same train journey) decided to take a stand. In December 2010, he was approached by two federal police officers carrying out checks on a train traveling between Kassel to Frankfurt, who asked to see his ID. He refused, unless they could explain the reason for their request. This the police officers refused, instead taking him to a police station and threatening to hold him there until he showed his ID. (The student told the police that their methods were reminiscent of those of the Nazi SS, leading to a charge, later dropped, of slander.) But while a lower court rejected the student’s complaint (stating that racial profiling was legitimate in identity checks if the purpose was to catch illegal immigrants), the Higher Administrative Court of Rhineland-Palatinate in Koblenz came to an altogether different verdict in October 2012. It ruled that racial profiling was indeed unlawful on the grounds that the use of skin colour as a decisive factor leading to an identity check was a clear violation of Article 3 of the German Constitution, which states: ‘No person shall be favored or disfavored because of sex, parentage, race, language, homeland and origin, faith, or religious or political opinions’. Since the Koblenz decision, it is possible to detect a sea-change in attitudes towards racial profiling.
Despite opposition from one police trade union, the majority of German police seem to have accepted the Koblenz decision, and a representative of the federal police force apologised to the student (who did not seek compensation).
For the first time it was admitted that the German Federal police are using racial profiling as a means of identifying possible “illegal” immigrants. And the courtʼs decision now officially sanctions this practice. Thus in the aftermath of the courtʼs decision a petition to stop racial profiling was submitted to the Bundestag a chamber of the German parliament on 18th December 2012. Let’s see how the Bundestag handles this petition.
The McCleskey v. Kemp Trial in Georgia
In 1987 Warren McCleskey, a black man, was convicted of robbery and sentenced to death in Georgia for murdering Frank Schlatt, a white police officer. McCleskey’s appeal (based upon the 14th Amendment guarantee of equal protection and the 8th Amendment prohibition against cruel and unusual punishment), argued that he got a death sentence because he was black. In his appeal McCleskey cited a study analysing 2000 Georgia homicides over an eight year period beginning in 1972 that found black defendants were nearly twice as likely to be sentenced to death as white defendants.
This study performed by Professors David C. Baldus, Charles Pulaski, and George Woodworth (the Baldus study) that purports to show a disparity in the imposition of the death sentence in Georgia based on the race of the murder victim and, to a lesser extent, the race of the defendant. The Baldus study is actually two sophisticated statistical studies that examine over 2,000 murder cases that occurred in Georgia during the 1970's. The raw numbers collected by Professor Baldus indicate that defendants charged with killing white persons received the death penalty in 11% of the cases, but defendants charged with killing blacks received the death penalty in only 1% of the cases. The raw numbers also indicate a reverse racial disparity according to the race of the defendant: 4% of the black defendants received the death penalty, as opposed to 7% of the white defendants.
Baldus also divided the cases according to the combination of the race of the defendant and the race of the victim. He found that the death penalty was assessed in 22% of the cases involving black defendants and white victims; 8% of the cases involving white defendants and white victims; 1% of the cases involving black defendants and black victims; and 3% of the cases involving white defendants and black victims. Similarly, Baldus found that prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims; 32% of the cases involving white defendants and white victims; 15% of the cases involving black defendants and black victims; and 19% of the cases involving white defendants and black victims.
Baldus subjected his data to an extensive analysis, taking account of 230 variables that could have explained the disparities on nonracial grounds. One of his models concludes that, even after taking account of 39 nonracial variables, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks. Thus, the Baldus study indicates that black defendants, such as McCleskey, who kill white victims have the greatest likelihood of receiving the death penalty.
McCleskey argues that the Baldus study compels an inference that his sentence rests on purposeful discrimination. McCleskey's claim that these statistics are sufficient proof of discrimination, without regard to the facts of a particular case, would extend to all capital cases in Georgia, at least where the victim was white and the defendant is black.
In a 5-4 ruling, the justices dismissed the constitutional significance of the documented racial disparities. Justice Lewis Powell's majority opinion reasoned that McCleskey had not proven that the prosecutor or jury in his own case had been influenced by race.
A defendant who alleges an equal protection violation has the burden of proving "the existence of purposeful discrimination." Whitus v. Georgia, 385 U.S. 545, 550 (1967). A corollary to this principle is that a criminal defendant must prove that the purposeful discrimination "had a discriminatory effect" on him. Wayte v. United States, 470 U.S. 598, 608 (1985). Thus, to prevail under the Equal Protection Clause, McCleskey must prove that the decisionmakers in his case acted with discriminatory purpose. He offers no evidence specific to his own case that would support an inference that racial considerations played a part in his sentence. Instead, he relies solely on the Baldus study.
Yet how could McCleskey have shown that racial biases infected his own trial?
Would a prosecutor or a juror who allowed racial considerations to affect a charging or sentencing decision be willing to admit it? If racial prejudices operate subconsciously, might even well-intentioned decision-makers be unaware of their influence?
Synopsis of Rule of Law: It is the ultimate duty of court to determine on a case-by-case basis whether the laws of the states are applied consistently with the Constitution.
The Court said if we recognise disparities based on race in the administration of the death penalty it’s going to be just a matter of time before lawyers begin complaining about race disparities for other kinds of criminal offences”