May/June 2001 

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Charts:

Adult Arrests by Race for Violent Offenses

Adult Arrests by race for Property Offenses

Minnesota Prison Population by Race

Sidebar:
The Racial Disparity Initiative

Thomas L. Johnson is the president of the Council on Crime and Justice, a public policy research organization based in Minneapolis. He formerly served as Hennepin County Attorney and is of counsel with the firm of Gray Plant Mooty.

Cheryl Widder Heilman is director of the Center for Reducing Rural Violence, a program of the Council on Crime and Justice.

The authors wish to thank the Research Department of the Council on Crime and Justice and the Council's Racial Disparity Initiative for their assistance in gathering the information and ideas presented in this article.

"In Minneapolis, blacks are about two and one half times more likely to be arrested and booked than whites following a traffic stop; American Indians about three times more likely."

Police Stops. Recent attention has focused on police traffic stops of minority drivers. The racial profiling allegation is that police use a minority driver's race as a factor, either alone or in combination, in determining which vehicles to stop.

Until recently, there were no data available in Minnesota to determine the race of those stopped by police. Nationally, the data now available show clearly that minorities are stopped more often than whites. A study of stops on the New Jersey Turnpike is the most prominent national example. The New Jersey study determined that black and white Turnpike drivers violated the traffic laws at roughly the same rate. The study further found, however, that African Americans, who were less than 15 percent of the drivers on the Turnpike, made up over 70 percent of those stopped and arrested by the state police. A consent decree entered into between the United States Justice Department and the state of New Jersey now requires police to follow a protocol for determining which motorists to stop, to inform motorists of the right to withhold consent for vehicle searches, to use in-car videotape equipment to record stops, and to document the race of all persons from whom searches are requested.1

In Minnesota, the police departments in Minneapolis and St. Paul have voluntarily begun to collect data on the race of the drivers they stop. In Minneapolis, the first six months of data show that minorities are stopped more frequently than whites. Minorities make up 35 percent of the population in Minneapolis, but comprised over half of the drivers stopped by police during the six-month study. African Americans account for a significant percentage of the minority stops -- almost 40 percent -- even though African Americans are less than 20 percent of the population in Minneapolis. The data further suggest these stops occur more frequently within certain neighborhoods within the city. Approximately 40 percent of all stops of black drivers occurred within five Minneapolis neighborhoods.

St. Paul data showed black motorists were more likely than whites to be frisked and searched as a result of a traffic stop. Although the disparity in stops was not as great in St. Paul as it was in Minneapolis,2 19 percent of African Americans were frisked during a stop by St. Paul police, compared with only 8 percent of whites. And, 14 percent of black motorists had their cars searched, compared with only 6 percent of whites.

Arrests. The data from Minneapolis also showed that minorities are more likely to be arrested as a result of having been stopped. In Minneapolis, blacks are about two and one half times more likely to be arrested and booked than whites following a traffic stop; American Indians about three times more likely.

Recording the race of arrestees has been commonplace for years. Thus, we know, by race, who gets arrested and for what offense. For felony-level crimes, the national disparity in the arrest rate between minorities and whites is roughly 7:1, which means that minorities are seven times more likely to be arrested for felony level crimes than whites. In Minnesota, the disparity is even wider, particularly for African Americans. For Part 1 crimes,3 the disparity in arrest rates between African Americans and whites is 14:1. For violent crimes, the disparity grows to 21:1.

The arrest disparity also exists for certain misdemeanor-level crimes, according to data compiled by the Star Tribune. In Minneapolis, African Americans are 35 times more likely to be arrested for providing false information and 27 times more likely to be arrested for lurking. African Americans are also 19 times more likely to be arrested for trespassing and 10 times more likely to be arrested for disorderly conduct than whites.

This arrest disparity is a statewide phenomenon, which affects other minority groups as well. Latinos are 45 percent of those arrested for violent crimes in Olmsted County, 38 percent of those arrested for violent crimes in Blue Earth County, and 28 percent of those arrested for violent crimes in Rice County. According to recent Census data, none of these counties has a Latino population that exceeds 5 percent of the total adult population. American Indian arrest rates are also high. In Beltrami County, American Indians are 63 percent of the adults arrested for violent crimes and 52 percent of those arrested for property crimes. American Indians comprise only 15 percent of Beltrami County's adult population.

Prosecution. There is little racial data in Minnesota to determine what happens to cases when they are brought to prosecutors' offices for charging. Some limited analysis has been done for misdemeanor-level crimes within the city of Minneapolis. The findings showed that a high percentage of the misdemeanor arrests did not result in convictions and sentences -- for either blacks or whites. For example, less than 30 percent of those arrested for giving false information or disorderly conduct were convicted and sentenced on those charges and less than 15 percent of those arrested for lurking were convicted and sentenced.

The district courts in Minnesota have recently begun to collect data on the race of every criminal defendant. Until this practice began, however, little was known about any racial differences in how cases move through the court system. While data historically has been kept at the point of sentencing, this misses what happens to cases between arrest and sentencing. National studies of all types of crime suggest that prosecutors are more likely to pursue full prosecution, file more severe charges, and seek more stringent penalties in cases involving minority defendants than in cases involving white defendants.4

Sentencing. The Minnesota Sentencing Guidelines Commission keeps extensive data on the race of all offenders who are sentenced at the felony level. From this data, we know that for felony-level crimes, whites are less likely than minorities to serve time in prison.5

As Minnesota's prison population has increased over the past decade, so has the racial disparity. Over half of Minnesota's prison population is minority, and Minnesota now has the largest disparity between black and white imprisonment rates of any state in the nation: a ratio of 19:1. This dubious distinction is achieved by virtue of Minnesota having by far the lowest imprisonment rate for whites. When this very low rate is compared to a moderately high imprisonment rate for African Americans, the result is black Minnesotans are almost 20 times more likely to be imprisoned than whites.

What remedies currently exist to address the issues of disparity within the criminal justice system? Constitutional protections, federal civil and criminal statutes, and the Minnesota Human Rights Act all prohibit racial discrimination in the enforcement of the criminal law. The Minnesota Supreme Court has also relied upon its supervisory powers over the trial courts to review issues of disparity. These authorities serve as a check on the justice system -- from the initiation of a police investigation to the prosecutor's charging decision, to the resolution of the case by plea bargain or jury trial, to sentencing by the trial judge. They clearly prohibit intentional discrimination on the basis of race. Nonetheless, as a practical matter, they are all applied in situations where police, prosecutors, and judges traditionally exercise tremendous discretion as they weigh a multitude of factors to employ their best judgment. The limited review of case law set forth below illustrates the difficulties inherent in attempting to utilize current legal remedies to address the broader issues of the extent and the reasons for the disparities within the criminal justice system today.

Police Stops. The 4th Amendment prohibits unreasonable searches and seizures. Violations of the 4th Amendment can result in the suppression of evidence in a criminal trial and potential civil liability under federal statutes such as 42 U.S.C. ¤ 1983. The Supreme Court has been reluctant to examine arguments of disparate treatment under the 4th Amendment, however, focusing instead on the importance of objective probable cause determinations.

Just recently, in Atwater v. City of Lago Vista,6 the Court confirmed that police may arrest an offender, even for a very minor misdemeanor traffic offense, if the officer has probable cause to believe the offense occurred in the officer's presence. Justice O'Connor, in dissent, expressed concern about affording police such "unbounded discretion," which in her mind carried with it "grave potential for abuse." She wrote:

The majority takes comfort in the lack of evidence of 'an epidemic of unnecessary minor-offense arrests.'... But the relatively small number of published cases dealing with such arrests proves little and should provide little solace. Indeed, as the recent debate over racial profiling demonstrates all too clearly, a relatively minor traffic infraction may often serve as an excuse for stopping and harassing an individual. After today, the arsenal available to any officer extends to a full arrest and the searches permissible concomitant to that arrest.<V>7<P>.

In prior caselaw, Whren v. United States, the Court had refused to consider an officer's subjective motivations for making a traffic stop, ruling subjective intent -- even if that intent is discriminatory -- is irrelevant under the 4th Amendment.8 Presented with information about the disproportionate rate at which African Americans are involved in police stops, the Whren Court ruled the 4th Amendment's prohibition against unreasonable searches and seizures could not be used as a remedy for this problem.9

We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.10

The Minnesota Supreme Court has voiced its concern that Whren's focus on objective probable cause may permit police, "who have enormous discretion in enforcing traffic laws," to target members of groups "identified by factors that are totally impermissible as a basis for law enforcement activity."11 Acknowledging that Whren precludes an inquiry of subjective intent under the 4th Amendment,12, the Minnesota Supreme Court has nonetheless ruled that police may be civilly liable under Minnesota's Human Rights Act.13

The Minnesota Human Rights Act prohibits discrimination against any person in the access to, admission to, full utilization of, or benefit from any public service because of race or color. Stating that "race or color alone is not a sufficient basis for making an investigatory stop," the Minnesota Supreme Court in State v. City of Mounds View has held that official immunity will not protect police from liability under the act if their actions constituted "a malicious or willful wrong."14

The City of Mounds View case involved the stop of an African-American woman and her 13-year-old son by police, who were looking for a male bank robbery suspect. The Court held the initial stop by police was reasonable, but remanded for further fact finding on the length of the stop and whether police acted with bad faith or malicious intent.15 In his dissent, Justice Page challenged the majority's conclusion that police had a reasonable basis for stopping the car in the first place:

The court's opinion does not list the most important factor leading to this investigative stop -- the fact that most people in Mounds View are white. The Agunbiades were stopped because their race differed from the race which predominates in Mounds View ... . This case raises the specter of the police being permitted to stop innocent individuals solely because they happen to be someplace they do not "belong." The court's opinion suggests such stops are simply one of the hazards people who belong to an identifiable minority must be willing to accept. It is unimaginable that a white mother driving her 13-year-old son to school would have been stopped had the suspect been a white male. ... the public simply has no interest in stopping every person of color within range of a place where a person of color is alleged to have committed a crime.16

"National studies of all types of crime suggest that prosecutors are more likely to pursue full prosecution, file more severe charges, and seek more stringent penalties in cases involving minority defendants than in cases involving white defendants."

"Over half of Minnesota's prison population is minority, and Minnesota now has the largest disparity between black and white imprisonment rates of any state in the nation: a ratio of 19:1."

Prosecution. Challenges to police activity are not the only cases involving claims of racial disparity within the criminal justice system. Selective prosecution claims seek dismissal of criminal charges on the ground that the prosecutor based the decision to charge on the defendant's race, a violation of the Equal Protection Clause of the Constitution.17 To prevail, a defendant in a selective prosecution case must present "clear evidence" that overcomes the presumption that prosecutors have properly discharged their duties.

Because granting a defendant discovery constitutes a disruption and encroachment on the prosecutor's decision-making authority, to obtain the right of discovery, a defendant must present some evidence that the prosecutor's decision-making "had a discriminatory effect and that it was motivated by a discriminatory purpose."18 To establish this, a defendant must show that similarly situated defendants of other races could have been prosecuted, but were not. Statistics showing a disproportionate number of persons of color in the criminal justice system -- without more -- will not be sufficient to meet this burden.19 In the only U.S. Supreme Court case to sustain a claim of selective prosecution, there was evidence uncovered to show that a law was enforced against Chinese laundry operators, but not enforced against similarly-situated white laundry operators. This case occurred over 100 years ago.20

Juries and Sentencing. Issues of disproportionality in other aspects of the criminal justice system are also difficult to raise. Disparity within the jury pool can be challenged under Article 1, Section 6 of the Minnesota Constitution, but only if a defendant can show "that over a significant period of time -- panel after panel, month after month -- the group of eligible jurors in question has been significantly underrepresented on the panels and that this results from 'systematic exclusion,' that is, unfair or inadequate selection procedures."21 This decision, in State v. Williams, was issued shortly after the Minnesota Supreme Court's Racial Bias Task Force report. Although the Williams Court found no constitutional violation in the disparate representation of people of color in Ramsey County's jury pool, the Court nonetheless announced its intent to use its supervisory power over the trial courts "to insure that the systems used are increasingly inclusive in the hope that the faces of the people in the jury room will soon mirror the faces of the people in the community at large."22

In addition to voicing concerns about the composition of the jury pool, the Williams Court objected to the prosecutor's presentation to the jury of evidence that the defendant was stopped based on a "drug courier profile." The defendant's conviction was reversed on this basis because, in the Court's view, "a key but unarticulated and, perhaps, unrecognized factor" in cases where police use a drug courier profile is "that the person's skin is, to use the words of Rogers and Hammerstein, 'of a different shade.'"23 The Williams Court also reviewed "the growing body of evidence relating to 'the disparity of sentencing between people of color and whites,'" again citing the Court's supervisory power as a basis to "closely monitor and scrutinize sentencing practices to insure that defendants of color are not given harsher sentences for drug offenses such as this than Caucasian defendants."24

Recognizing the difficult practical and legal barriers to addressing the disparate impact of the criminal justice system on people of color, Minnesota legislators have been considering laws which begin to address police activity. Proposed bills call for increased police training on racial profiling, funds for cameras in police cars to record police stops, and more data collection. Recent attention has also been focused on internal police department complaint procedures as an additional remedy for people who believe police have targeted them based solely on their race.

What more can, and should be done? We know enough about the racial disparity within the criminal justice system to know that Minnesota leads the nation in the disproportionate imprisonment of minorities. We also know that while legal remedies exist, particularly remedies to address intentional discrimination, legal remedies alone have not stemmed nor will they stem the increasing racial disparity within our state.

Racial disparity within our justice system concerns both the perception and the reality of justice for a large, and growing, portion of our citizens. We must act -- and act now -- to assure that we have the information needed to make informed decisions and develop effective solutions. We can do more to learn about what is happening within our criminal justice system. More collection of data -- on actual crime rates, as well as data at all points within the criminal justice system -- will shed additional light on the causes underlying the disparity problem, as well as provide a means for determining whether new strategies are making a difference.

We can also do more to develop an understanding of the reasons for the disparity. Certainly the causes of racial disparity are complex and cannot be oversimplified. But, complexity is no justification for failing to identify the causes and implement solutions. Do issues of disparity arise differently in rural communities than in the metropolitan area? What do those within the criminal justice system -- law enforcement, prosecutors, public defenders, judges, probation officers -- think about the causes for the disparity? What perspective do victims and families have? What do members of the minority and white communities believe?

Exploring these questions promotes the kind of honest and informed dialogue that is beginning to occur in some communities among those within the criminal justice system and the community as a whole. Such dialogue can help to strengthen communication and build mutual trust and respect. Perhaps most importantly, however, it lays the foundation for action that results in constructive solutions to the problem. Racial disparity in the criminal justice system is not only a problem for minority communities or for those who work within the system. It is a problem we all share and one that we can, and must, work together to address.

"Stating that 'race or color alone is not a sufficient basis for making an investigatory stop,' the Minnesota Supreme Court … has held that official immunity will not protect police from liability … if their actions constituted 'a malicious or willful wrong.'"

1 The settlement arises from a civil suit against the state of New Jersey under 42 U.S.C. ¤ 14141 and 42 U.S.C. ¤ 3789d(c), alleging that officers patrolling the New Jersey Turnpike had the intent of discriminating on the basis of race and that state police had used criteria or methods of enforcement that had the effect of discriminating on the basis of race. The settlement also provides a process for complaints about police activities. See Consent Decree, United States v. New Jersey, Civ. No. 99-5970 (D.N.J.) http://www.usdoj.gov/crt/split/documents/jerseycomp.php, cited in Wesley M. Oliver, "With an Evil Eye and Unequal Hand: Pretextual Stops and Doctrinal Remedies to Racial Profiling," 74 Tul. L. Rev. 1409, 1477-78 (2000).
2 Revised figures on the review of 41,000 traffic stops in St. Paul show 42% of drivers stopped were minority; 36% of the population is minority.
3 Part 1 crimes include murder, manslaughter, rape, robbery, assault, burglary, larceny, auto theft, and arson.
4 See "Developments in the Law: Race and the Criminal Process: IV. Race and the Prosecutor's Charging Decision," 101 Harv. L. Rev. 1520,1525-29 (1988).
5 In 1998, 6,491 whites and 4,396 minorities were sentenced at the felony level in Minnesota. Of those sentenced, a smaller percentage of whites -- 1,289 whites -- went to prison, compared to 1,272 minorities.
6 Atwater v. City of Lago Vista, No. 99-1408, slip op. at 33 (U.S. Sup. Ct. April 24, 2001).
7 Id., slip op. at 53-54
8 Whren v. United States, 517 U.S. 806, 810-11 (1996).
9 Id. at 810-11.
10 Id. at 813.
11 State v. George, 557 N.W.2d 575, 579-80 (Minn. 1997). Commentators have also criticized the Whren decision as the culmination of a series of cases which have "freed law enforcement from traditional constraints to such a degree that police can use blackness as a proxy for criminal propensity. In other words, officers are free, for all practical purposes, to act on the assumption that being black increases the probability that an individual is a criminal. ... And there are virtually no data that tell us just how many innocent people police officers stop for each criminal they catch." David A. Harris, "The Stories, the Statistics, and the Law: Why 'Driving While Black' Matters," 84 Minn. L. Rev. 265, 318 (1999).
12 Id. at 579.
13 State v. City of Mounds View, 518 N.W.2d 567, 573 (Minn. 1994).
14 Id. at 570.
15 Id. at 573.
16 Id. at 577.
17 United States v. Armstrong, 517 U.S. 456, 464 (1996).
18 Id. at 465.
19 Id. at 469-70.
20 Yick Wo v. Hopkins, 118 U.S. 356 (1886). For a more in-depth discussion of the difficulties involved in raising claims of racial disparity in prosecutorial decision making, see "Developments in the Law: Race and the Criminal Process: IV. Race and the Prosecutor's Charging Decision," 101 Harv. L. Rev. 1520 (1988).
21 State v. Williams, 525 N.W.2d 538, 543 (Minn. 1994).
22 Id. at 544.
23 Id. at 547.
24 Id. at 549. Federal authorities have also noted the sentencing disparity between whites and people of color, especially as a result of the impact of the federal sentencing guidelines and the war on drugs. See e.g., Gerald W. Heaney, "The Reality of Guidelines Sentencing: No End to Disparity," 28 Am. Crim. L. Rev. 161 (1991).

In 2000, the Council on Crime and Justice launched a multiyear initiative to address the racial imbalances in Minnesota's criminal justice system. The Racial Disparity Initiative (RDI) brings together research and advocacy to achieve policy change. The goals of RDI are to:

• Produce quality information about the causes and consequences of racial disparities in the criminal justice system;
• Introduce policies and strategies that reduce racial disparities and the negative effects of crime and incarceration;
• Create public awareness of racial disparities and actions for change; and
• Build community capacity through active participation in research and policy making.

The projects currently being conducted by the Initiative include an examination of the extent and causes of the racial disparity in arrest rates. Another project focuses on the impact of imprisonment on families and communities. The community -- including both the directly affected communities and the broader community -- participates in the research design and implementation as well as in formulating solutions. To learn more about RDI call (888) 756-9669 or email the Initiative at infordi@crimeandjustice.org