How bad are racial disparities in the criminal justice system? This week, the Massachusetts Supreme Judicial Court — the highest court in the state — concluded that black people may flee from the police due to fear of racial profiling.
We do not eliminate flight as a factor in the reasonable suspicion analysis whenever a black male is the subject of an investigatory stop. However, in such circumstances, flight is not necessarily probative of a suspect's state of mind or consciousness of guilt. Rather, the finding that black males in Boston are disproportionately and repeatedly targeted for FIO [Field Interrogation and Observation] encounters suggests a reason for flight totally unrelated to consciousness of guilt. Such an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity. Given this reality for black males in the city of Boston, a judge should, in appropriate cases, consider the report's findings in weighing flight as a factor in the reasonable suspicion calculus.
So before concluding that a fleeing suspect is reasonably suspicious, police now must consider whether the suspect is fleeing not because he’s trying to hide a crime, but because he’s scared of the police. How exactly this will be enforced in practice is hard to say, but it is now the legal standard for police stops and searches in Massachusetts.
Boston Police Commissioner Bill Evans criticized the ruling. He argued that the police’s stop-and-frisk policies “were targeting the individuals that were driving violence in the city and the hot spots.”
But the data backs up the court’s conclusion: The ACLU report found that 63 percent of Boston stop-and-frisk encounters involved black people between 2007 and 2010, when the city's black population was 24 percent. Whether a neighborhood had high criminal activity did not explain the disparity. And among the 204,000-plus reports analyzed by the ACLU, police only seized weapons, drugs, or other contraband in 2.5 percent of cases — although it’s not clear, due to a lack of data, how many stops led to arrests.
Similarly, the Boston Police Department’s own analysis found that, after controlling for criminal history, gang affiliation, and violent crime areas, black people were 8 percent more likely to be repeatedly stopped and 12 percent more likely to be searched and frisked.
The court’s ruling only applies to Massachusetts, but national police data shows similar disparities.
An analysis of the available FBI data by Vox’s Dara Lind shows that US police kill black people at disproportionate rates: They accounted for 31 percent of police killing victims in 2012, even though they made up just 13 percent of the US population. Although the data is incomplete, since it’s based on voluntary reports from police agencies around the country, it highlights the vast disparities in how police use force.
Again, crime doesn’t fully explain the disparities. A 2015 study by researcher Cody Ross found, "There is no relationship between county-level racial bias in police shootings and crime rates (even race-specific crime rates), meaning that the racial bias observed in police shootings in this data set is not explainable as a response to local-level crime rates." That suggests something else — such as, potentially, racial bias — is going on.
These kinds of figures are why police shootings over the past few years, from Michael Brown in Ferguson, Missouri, to Keith Lamont Scott in Charlotte, North Carolina, have drawn so much scrutiny. Black people have long known that they face discrimination at the hands of police — and now the situation is so dire that a state’s highest court is stepping in to give some relief.