By Leonard G. Cooke, Director, Department of Criminal Justice Services, Richmond, Virginia
The Commonwealth of Virginia has undertaken a unique process to address the issue of bias-based policing. It grew out of a determination to proactively take on this issue, not because the state has experienced any sensational cases of discrimination or biased behavior by law enforcement officers; not due to any highly publicized mistreatment of racial or ethnic minorities leading to a government inquiry; and not because Virginia agencies had been subject to judicial consent decrees. Rather, the effort was begun out of concern by citizens, public officials, and law enforcement leaders about the public's perception that some law enforcement officers mistreated ethnic and racial minorities. Many citizens believed that bias affected decisions made by law enforcement officers to enforce or not enforce the law.
To some extent, that perception may have been fueled by public discussion of pretextual traffic stops. The 1996 Supreme Court decision in Whren v. United States affirmed that officers could stop vehicles to allay any suspicions even though the officers have no evidence of criminal behavior.1 The Whren case held that the officer's subjective intent (pretext) is irrelevant when legally stopping a vehicle; the legitimacy of the stop will be gauged by its objective reasonableness. This case has placed law enforcement agencies under great pressure to have policies and practices regarding stops of citizens that are free of bias, fair, and relate to legitimate enforcement objectives.
In April 2000 a report of the Virginia Advisory Committee to the United States Commission called Civil Rights, Unequal Justice: African Americans in the Virginia Criminal Justice System recommended that the governor and the state public safety agencies issue policy statements to all police departments in Virginia against race-based traffic stops or surveillance, provide training to all police officers in the implementation of that policy, collect statistics on all traffic stops and arrests to monitor whether and to what extent the policy has been implemented, and investigate any officer whose record indicates a racial bias.
A report issued in early 2002 by the Virginia State Police in conjunction with the Virginia Association of Chiefs of Police and the Virginia Sheriffs' Association examined traffic stops and citizen complaints. They found no evidence of pervasive or institutionalized racial profiling or bias-based policing, and most law enforcement administrators considered the absence of any major incident or litigation as indicative of a relatively low prevalence of such practices in Virginia.
"We had no evidence that biased policing, which includes racial profiling, appeared to be a widespread, serious problem in Virginia," said Governor Mark R. Warner. "However, citizens had complained to advocacy groups, legislators, and government officials that bias led to deprivations of constitutionally protected rights."
The report from the three law enforcement organizations forthrightly acknowledged the possibility that bias may well exist in identifiable and systematic ways, and that an effective practical method must be found to prevent biased policing behaviors and to address them when they occur.
In response, the governor introduced, and the General Assembly enacted, House Bill (HB) 1053. The bill was backed by the major law enforcement executive associations, demonstrating to citizens the willingness of law enforcement to collaborate with those who perceive the prevalence of a problem with bias.
"Professional law enforcement officers told me they had supported HB 1053 because they wanted to make sure there was not even a perception of racial profiling," said Governor Warner. "They knew that perception could harm their ability to perform their duties."
The new law directed the Virginia Department of Criminal Justice Services (DCJS) to identify training and policy needs to improve cultural diversity awareness and reduce bias in encounters with citizens. DCJS is the state agency responsible for establishing minimum required standards for law enforcement training and certification in Virginia. DCJS has been long involved in improving Virginia's criminal justice system not only through training standards but also through numerous training programs, a statewide accreditation program for law enforcement agencies, and management consulting.
The law furnished an opportunity to begin a comprehensive review of existing policies and practices that characterize Virginia's law enforcement culture, and to provide ways to better prepare officers to ensure an unbiased application of law. In particular, the law required new "compulsory training standards for basic training and the recertification of law enforcement officers to ensure sensitivity to and awareness of cultural diversity and the potential for biased policing."
The second provision of the law required a survey of community policing programs in Virginia with a consequent recommendation for guidelines and standards to improve these programs, "including sensitivity to and awareness of cultural diversity and the potential for biased policing." The third complementary provision required DCJS to "[p]ublish and disseminate a model policy or guideline that may be used by state and local agencies to ensure that law enforcement personnel are sensitive to and aware of cultural diversity and the potential for biased policing."
With the new legislation in hand, Governor Warner convened the Advisory Panel on Bias-Based Policing and charged them with guiding DCJS in implementing provisions of the legislation.
The panel was chaired by John W. Marshall, the secretary of public safety, whose law enforcement experience includes service as a trooper with the Virginia State Police, U.S. marshal for the Eastern District of Virginia, and director of the U.S. Marshals Service. The panel was composed of representatives of diverse community groups from throughout the state, as well as legislators, representatives of all the major law enforcement organizations in the state, representatives of advocacy organizations and most minority communities in Virginia, clergy, business people, government officials, and representatives from other criminal justice agencies.
"The commitment of law enforcement agencies to act fairly is an important ingredient to maintaining the public's trust and support, without which officers cannot be as effective as they need to be," stated Secretary Marshall. "The panel's work will help all of us in law enforcement strengthen that essential bond."
The group first met in October 2002, at the Richmond Police Academy, Virginia Union University. Facilitated by William H. Matthews, executive director of the Community Policing Consortium in Washington, D.C., and assisted by two Virginia Union social work professors, the panel first developed consensus about the relevant issues, and then divided into two smaller working groups: one to revise training standards and the other to devise a model policy.
Further meetings, including one public hearing, were held through early spring 2003. Law enforcement training academy curricula on professionalism, communication and traffic stops were modified and updated to address bias. A model policy document and an accompanying concept paper evolved through panel meetings. Once completed, they were added to the DCJS Sample Directives for Virginia Law Enforcement Agencies manual, found on the DCJS Web site at (www.dcjs.org).2 The work of the panel was finalized and the draft approved at a statewide conference last April. Both documents have subsequently been distributed to Virginia's law enforcement administrators and training academies.
At the outset, panel members expressed several expectations of the process that informed the resulting training outlines and policy documents. They wanted to ensure that all stakeholders had a voice in the process. Accountability and leadership were repeatedly emphasized.
The panel produced a working definition of "biased policing" to guide the work of creating training curricula and policy: "Any law enforcement contact, enforcement action, or interdiction using improper consideration of a citizen's race, ethnicity, social status, gender, [or] sex." The panel set the following goals: the identification of behaviors that reflect bias, their elimination from pretextual stops, a definition of acceptable performance during stops, and the active involvement of first-level supervision.
Policy: Working on drafting policy, the panel reached consensus that policy guidelines should take the form of an actual sample order that could be adapted easily to a local agency's directives manual. This sample order would be accompanied by a concept paper to outline ways of creating and sustaining written policy, based on the structure of the International Association of Chiefs of Police (IACP) model policy series.
The panel ensured that the following components were included in the model policy: First, the order should make explicit the values that are embodied in it. The policy required a broad vision. Second, the order must contain an explicit emphasis on accountability and internal review. Third, all relevant terms (including "bias") must be defined with broad application, the definitions and language of the order having meaning to both law enforcement and the public. Fourth, anti-bias policy must include a discussion of the mechanism of providing feedback to a citizen about his or her complaint. That is, law enforcement agencies must make their best effort to explain enforcement action to complainants who are entitled to explanations of police behavior during stops. As a related issue, internal affairs processes must be credible to the public; citizens must be able to accept the results of their investigations. As one panel member put it, "The overall consensus was that the model policy must say, 'These are Virginia's values.'"
The resulting model policy emphasizes stringent observance of constitutional safeguards and requires officers to articulate the reasons for their actions. The order states:
Officers shall not stop, detain, arrest, search, or attempt to search anyone based solely upon the person's race, sex, sexual orientation, gender, national origin, ethnicity, age, or religion. Officers shall base all such actions on a reasonable suspicion that the person or an occupant of a vehicle committed an offense.
The order carefully circumscribes bias in police-citizen encounters and distinguishes between terms that are commonly confused. In addition to emphasizing the imperative to observe constitutional safeguards, the order places an onus on supervisors that they "shall be held accountable for the observance of constitutional safeguards during the performance of their duties. Supervisors shall identify and correct instances of bias in the work of their subordinates." The text of the model policy and the accompanying concept paper can be found on the DCJS Web site.
Training: Discussions of bias, discrimination, and the negative consequences of biased policing were added to the mandatory academy curriculum on professionalism. As with the model policy, this curriculum emphasized the constitutional safeguards against discrimination, and noted the consequences of biased policing as including civil liability, criminal penalties, but also loss of community trust. This and other curricula include scenarios for discussion as case studies.
The curriculum on communications added scenarios that relate to professional courtesy. Importantly, the curriculum emphasizes the values that underlie sound communications practices. Most significant for most of Virginia's communities, which are now multilingual, the communications curriculum discusses the nature and sources of people's beliefs, biases, or prejudices, particularly regarding people who speak little or no English. Similarly, the "third" curriculum on traffic stops was expanded to include scenarios widely perceived by minority citizens as typical in showing bias, such as rude behavior or, in more severe cases, searches without probable cause. All three curricula (that is, sections 1.5, 3.10, and 4.40) may be viewed on the DCJS Web site.3
The next step is the dissemination of the training curricula and model policy throughout the state. In addition to posting these documents on the DCJS Web site, panel members have begun to make appearances before their constituencies to promote the products from months of work. Law enforcement conferences have begun to feature sessions on the training standards and model policy.
Beyond its work on training standards and policy, the panel also offered other valuable suggestions. For example, Governor Warner approved a modification to the uniform traffic summons to include a telephone number that motorists can call to express any concerns or comments they might have about the professional demeanor of officers who stop them and issue traffic tickets. The number will connect the caller with supervisory personnel at the officer's department.
DCJS will also make available to Virginia law enforcement officers a series of language cards that are being designed to facilitate communication between officers and citizens who know little or no English. The use of these cards will be supported with on-call interpreters who can help in difficult situations where communication is preventing a problem from being resolved.
"The panel's comprehensive efforts have shown what can be done without courts having to force collaboration through consent decrees, and when government and citizens can develop common goals and strategies to reduce the perception or reality of bias and discrimination," said Secretary Marshall.
"The governor should take credit for an extremely inclusive process that engaged a diverse group of stakeholders, which also provides a template for success for local agencies in the Commonwealth," stated Captain Ron Davis, former region 6 vice president of the National Organization of Law Enforcement Executives (NOBLE).
As proactive as Virginia's approach is, it doesn't stop there. DCJS has awarded a contract to an outside consultant to conduct a study of the efforts to implement the new training standards and policy in Virginia.4 This grant-funded project will include both law enforcement and community focus groups leading to surveys that will help measure Virginia's progress, and perhaps suggest new improvements to training, policy and procedure. This project will help DCJS in fulfill its statutory role to review and evaluate training and policy initiatives related to the issue of bias-based policing.
1 116 S. Ct. 1769 (1996).
2 See (www.dcjs.org/cple/sampleDirectives/manual/pdf/2-1A.pdf) and (www.dcjs.org/cple/sampleDirectives/concepts/2-1A.pdf).
3 See (http://www.dcjs.virginia.gov/standardsTraining/compulsoryMinimumTraining/officers.cfm?menuLevel=5&mID=11).
4 The consultant is Michael T. Charles, Ph.D., M.P.A., director of the Auburn University Montgomery Center for Government, Montgomery, Alabama.