[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]

21ST CENTURY LAW ENFORCEMENT: HOW SMART POLICING TARGETS CRIMINAL
BEHAVIOR

=======================================================================

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

__________

NOVEMBER 4, 2011

__________

Serial No. 112-76

__________

Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: http://judiciary.house.gov

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COMMITTEE ON THE JUDICIARY

LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TIM GRIFFIN, Arkansas LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania [Vacant]
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada

Sean McLaughlin, Majority Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------

Subcommittee on Crime, Terrorism, and Homeland Security

F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman

LOUIE GOHMERT, Texas, Vice-Chairman

BOB GOODLATTE, Virginia ROBERT C. ``BOBBY'' SCOTT,
DANIEL E. LUNGREN, California Virginia
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
TED POE, Texas HENRY C. ``HANK'' JOHNSON, Jr.,
JASON CHAFFETZ, Utah Georgia
TIM GRIFFIN, Arkansas PEDRO R. PIERLUISI, Puerto Rico
TOM MARINO, Pennsylvania JUDY CHU, California
TREY GOWDY, South Carolina TED DEUTCH, Florida
SANDY ADAMS, Florida SHEILA JACKSON LEE, Texas
MARK AMODEI, Nevada MIKE QUIGLEY, Illinois
[Vacant]

Caroline Lynch, Chief Counsel

Bobby Vassar, Minority Counsel

C O N T E N T S

----------

NOVEMBER 4, 2011

Page

OPENING STATEMENTS

The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Ranking Member,
Subcommittee on Crime, Terrorism, and Homeland Security........ 3
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Acting Chairman, Subcommittee on
Crime, Terrorism, and Homeland Security........................ 4
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 6

WITNESSES

Hilary O. Shelton, Senior Vice President for Advocacy and Policy,
and Director, NAACP Washington Bureau
Oral Testimony................................................. 8
Prepared Statement............................................. 11
Heather Mac Donald, Senior Fellow, Manhattan Institute for Policy
Research
Oral Testimony................................................. 15
Prepared Statement............................................. 18
Edward Conlon, former NYPD Detective and Author
Oral Testimony................................................. 22
Prepared Statement............................................. 25
David A. Harris, Professor of Law, Associate Dean for Research,
University of Pittsburgh Law
Oral Testimony................................................. 31
Prepared Statement............................................. 33
Jiles H. Ship, National President, National Organization of Black
Law Enforcement Executives (NOBLE)
Oral Testimony................................................. 41
Prepared Statement............................................. 44

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Bob Goodlatte, a
Representative in Congress from the State of Virginia, and
Acting Chairman, Subcommittee on Crime, Terrorism, and Homeland
Security....................................................... 1

21ST CENTURY LAW ENFORCEMENT: HOW SMART POLICING TARGETS CRIMINAL
BEHAVIOR

----------

FRIDAY, NOVEMBER 4, 2011

House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security,
Committee on the Judiciary,
Washington, DC.

The Subcommittee met, pursuant to call, at 11:05 a.m., in
room 2141, Rayburn House Office Building, the Honorable Bob
Goodlatte (Acting Chairman of the Subcommittee) presiding.
Present: Representatives Goodlatte, Smith, Lungren, Marino,
Gowdy, Scott, Conyers, Chu, Jackson Lee, and Quigley.
Staff Present: (Majority) Caroline Lynch, Subcommittee
Chief Counsel; Sam Ramer, Counsel; Arthur Radford Baker,
Counsel; Sarah Allen, Counsel; Lindsay Hamilton, Clerk;
(Minority) Bobby Vassar, Subcommittee Chief Counsel, Keenan
Keller, Counsel; and Veronica Eligan, Professional Staff
Member.
Mr. Goodlatte. The Subcommittee will come to order. I want
to welcome everybody to today's hearing on ``21st Century Law
Enforcement: How Smart Policing Targets Criminal Behavior.'' I
would especially like to welcome our witnesses, and thank you
for joining us today, and apologize for the delay. In fact, we
have another vote pending. We are going to try to get a little
bit of our business done, and then we will go do that vote and
come back again.
So I am joined today by the distinguished Ranking Member of
the Subcommittee Bobby Scott, and the Chairman of the full
Committee, Congressman Smith, and the Chairman emeritus of the
full Committee and Ranking Member John Conyers of Michigan.
I have an opening statement, and I am going to submit that
for the record and yield to the gentleman from Virginia for his
opening remarks so we can move the process along.
[The prepared statement of Mr. Goodlatte follows:]

Prepared Statement of the Honorable Bob Goodlatte, a Representative in
Congress from the State of Virginia, and Chairman, Subcommittee on
Crime, Terrorism, and Homeland Security

I want to welcome everyone to today's hearing on 21st Century Law
Enforcement: How Smart Policing Targets Criminal Behavior.
The past 20 years has seen a dramatic decrease in crime levels
across the United States. According to the FBI, violent crime in the
U.S. has dropped by almost 50% in the last 20 years.\1\ In some cities,
like New York, the decline has been even more dramatic. The number of
murders in NYC has dropped below 700 a year, compared to over 2000 a
year in the 1990's, levels not seen since 1963.\2\ According to two
recent Virginia law enforcement reports \3\, violent crime in Virginia
fell dramatically over the last decade, 19 percent from 2000 to 2009.
That's actually a sharper drop than the national average of 15 percent
over the same time period.
---------------------------------------------------------------------------
\1\ FBI, Crime in the United States: http://www.fbi.gov/about-us/
cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/tables/
10tbl01.xls
\2\ Lueck, Thomas J. (December 31, 2007). ``Low Murder Rate Brings
New York Back to '63.'' New York Times.
\3\ The Virginia State Police's ``Crime in Virginia'' and
Department of Criminal Justice Services' ``Virginia Crime Trends 2000-
2009.''
---------------------------------------------------------------------------
Property crime rates in Virginia have also fallen significantly, 12
percent over the decade. Much of this decline has occurred during a
severe economic downturn. The old liberal theories of crime blamed
``root social causes'', such as poverty and joblessness, for criminal
behavior, and recommended release and job training instead of prison.
Those old, 20th century assumptions have been proven wrong. But many
lawmakers and criminologists now credit improved police computer-based
crime fighting tactics like CompStat, longer prison sentences, and more
offenders in custody.\4\
---------------------------------------------------------------------------
\4\ Chan, Sewell (August 13, 2007). ``Why Did Crime Fall in New
York City?'' New York Times.
---------------------------------------------------------------------------
However, despite the gains in public safety enjoyed by citizens in
America, some continue to criticize police departments across the
country for enforcing the law unfairly based on race. Even though the
Justice Department banned any use of ``racial profiling'' in 2003 \5\,
some continue to allege that the police have gained their success by
targeting certain populations.\6\ Meanwhile, many argue that taking
ethnic and racial trends to account in policing is a rational and
efficient method of allocating investigatory resources to safeguard the
security of all.
---------------------------------------------------------------------------
\5\ Guidance Regarding the Use of Race by Federal Law Enforcement
Agencies, U.S. Dept. of Justice, June 2003. http://www.justice.gov/crt/
about/spl/documents/guidance_on_race.pdf
\6\ ACLU, ``Mapping the FBI'': http://www.aclu.org/mapping-fbi-
uncovering-abusive-surveillance-and-racial-profiling
---------------------------------------------------------------------------
In a polyglot society such as the United States, there is no single
dominant ethnic identity. Americans come from many countries, many
religions, and many ethnicities. Because of the vast array of cultures
here, it would be hard for us to expect that the demographics of the
criminal justice system would exactly mirror those of society. For
example, we would not be surprised to find out that the percentage of
male inmates is much greater than their representation in society.
According to the Bureau of Prisons, 93.5% of the Federal prisoners in
the country are men, but men are a slight minority in the United States
at 49% of the population. Should we in Congress then argue that the
police and the courts discriminate against men? Of course not. We
understand, as citizens, that the criminal justice system targets
criminals and tries hard not to prosecute the innocent. That means that
the prison population will reflect the population of criminals, and not
the exact demographics of average citizens.
The stunning crime decline we have enjoyed also cuts against an
argument about racial bias in policing. If, in fact, the police where
unfairly singling out black and Hispanic criminals, while allowing
white criminals to roam free, the crime rate, I would think, would be
higher, because the bulk of criminals would be at liberty due to the
unproductive police focus on race. I would also like to point out that
currently, according to the Bureau of Prisons, the majority of inmates
in the Federal system are white.
So, rather than rest on our laurels, we on the crime subcommittee
want to continue this decline in crime. So we should look at the
reasons for this decline, and encourage common-sense tactics and laws
that allow the police and the courts to do their jobs. I don't think
that it helps the citizens of this country to have the police using
political correctness as a guide in deciding whether to arrest a
criminal. A criminal is a criminal whether he (or she) is white, black
or polka-dot. Political correctness hamstrings the police, wastes
money, and contributes to lawlessness.
The City of LA has been under a Justice Department consent decree
for over a decade. It has spent millions of dollars, and has had to
pull officers off patrol, to fill out paperwork to keep track of the
ethnicity and race of every person with which they come in contact.
Even though LA has made substantial progress of improving the way they
run their department, Eric Holder's Justice Department has resisted
releasing Los Angeles from their onerous probation. Is this because
there is truly a problem with law enforcement, or is this a political
tactic to gain points on the left by criticizing police? Are the
statistics nationwide generated from unfair policing, or are the
charges merely a way to question the law enforcement-driven model of
crime reduction? It is an issue that continues to generate debate.
Today, we will look at how modern, 21st century law enforcement has
improved, and reduced many of the problems we were concerned about back
in the 20th century. As the crime rate continues to fall, we should
make sure that our tactics continue to evolve and target criminals,
regardless of race, color or creed, so that we may protect Americans
regardless of race, color or creed.
I look forward to hearing more about this issue and thank all of
our witnesses for participating in today's hearing.
__________

Mr. Scott. Thank you, Mr. Chairman. And I thank you for
calling the hearing.
During a time when State and local governments are faced
with shrinking budgets and the continuing challenge of
maintaining the public safety infrastructure, the topic of
smart policing makes sense for oversight by the Crime
Subcommittee.
The fundamental question faced by law enforcement agencies
is what practices or tactics represent the best utilization of
scarce agency resources. For quite some time there has been a
discussion of the practice of community-based policing by law
enforcement agencies. Though the strategy takes many forms, it
seems that there is substantial agreement that having the
involvement and trust of local communities is a critical factor
in successful law enforcement.
Much of the focus on community policing has been driven by
the sometimes adversarial relationship between the police and
communities of color. To some degree this debate over racial
profiling and the use of race by law enforcement has become a
central element in the relationship between the police and the
minority community. Over the past two decades, tension between
police and minority communities have grown as allegations of
racial profiling by law enforcement agents, sometimes supported
by data-collection efforts, have increased in number and
frequency.
The arrest of Harvard professor Henry Louis Gates
demonstrated that the combination of race and law enforcement
represents a volatile mix across all strata of the minority
community. The real problem is not when the search turns up--
the real problem is not when a search turns up contraband, but
when a pattern of race-based searches creates a climate of
harassment in the entire community, including law-abiding
citizens, that ultimately undermines the police department's
public safety mission.
In response to these concerns, the Department of Justice
under the past two Presidents and Members of Congress have
introduced a variety of measures designed to eliminate the
practice of racial profiling. When data-collection legislation
was first introduced in 1997, the racial-profiling issue was
relatively straightforward in political terms. Profiling was
represented by the classic pretext traffic stop for an African
American male driver who was pulled over for a minor or
sometimes a manufactured traffic violation, then asked for
consent to search the vehicle. Today traffic and pedestrian
stops have given way to even more complex concerns of airport
passenger profiles and immigration sweeps. However, the
original challenges represented by the traffic stop context
have not been eliminated and, in fact, form the foundation for
all other kinds of racial-profiling complaints.
As we move forward, I believe it is important to remind
Members just how far we in Congress have come in developing
bipartisan consensus on racial-profiling issues. On September
11, 2001, there was substantial empirical evidence and wide
agreement among Americans, including President Bush and
Attorney General Ashcroft, that racial profiling was a tragic
fact of life in the minority community, and that the Federal
Government should take action to end the practice.
Data collected from California, Florida, Louisiana, Maine,
Maryland, Michigan, New York, Ohio, Oklahoma, Rhode Island and
West Virginia have demonstrated beyond a shadow of a doubt that
African Americans and Hispanics were being stopped for routine
traffic violations far in excess of their share of the
population or even the rate at which populations are accused of
criminal conduct. Incredibly this pattern existed even after
law enforcement knew that the statistics were being gathered.
Similarly the Justice Department reports found that although
African Americans and Hispanics were more likely to be stopped
and searched by law enforcement, they were much less likely to
be found in possession of contraband.
Law enforcement officials have similarly involved their
views. While some take issue, most in the law enforcement
community acknowledge that singling out people for heightened
scrutiny based on their race or ethnicity can erode trust in
law enforcement necessary to appropriately serve and protect
those communities.
Rather than seeking to deny the concerns of the minority
community--rather than seeking to deny the concerns of minority
community advocates, many law enforcement officials have joined
the effort to create solutions and build trust in their
communities. As a result, more than 20 States have passed
bipartisan legislation prohibiting racial profiling and/or
mandating data collection on stops and searches, and hundreds
of individual jurisdictions have voluntarily commenced to
collect data. Congress itself is actually--was actually poised
to pass racial-profiling legislation in the fall of 2001 with
the express support of President Bush before the terrorist
attacks of 2001 changed the legislative climate.
This hearing is another step in creating a record to
rebuild the bipartisan legislative coalition pioneered by
President Bush and Attorney General Ashcroft. I hope the
question that we answer today--the question I hope we answer
today is whether the reliance on racial, ethnic or religious
classification is smart policing in the 21st century, and I
hope the answer that we find is no.
I yield back the balance of my time.
Mr. Goodlatte. The amount of time remaining in the vote is
about 7 minutes, so we will go ahead and recess the Committee,
and cast this vote, and return as quickly as possible and
resume the hearing. We will stand in recess.
[Recess.]
Mr. Goodlatte. The Subcommittee will reconvene, and I will
take the opportunity to give my opening statement. The past 20
years have seen a dramatic increase in crime levels across the
United States--a decrease rather, a dramatic decrease, in crime
levels across the United States. According to the FBI, violent
crime in the U.S. has dropped by almost 50 percent in the last
20 years. In some cities like New York, the decline has been
even more dramatic. The number of murders in New York City has
dropped below 700 a year compared to over 2,000 a year in the
1990's, levels not seen since 1963.
According to two recent Virginia law enforcement reports,
violent crime in Virginia fell dramatically over the last
decade, 19 percent from 2000 to 2009. That is actually a
sharper drop than the national average of 15 percent over the
same time period. Property crime rates in Virginia have also
fallen significantly, 12 percent over the decade. Much of this
decline has occurred during a severe economic downturn. Many
lawmakers and criminologists now credit improved police
computer-based crimefighting tactics like CompStat, longer
prison sentences, and more offenders in custody.
However, despite the gains in public safety enjoyed by
citizens in America, some continue to criticize police
departments across the country for enforcing the law unfairly
based on race. Even though the Justice Department banned any
use of racial profiling in 2003, some continue to allege that
the police have gained their success by targeting certain
populations. Meanwhile others argue that taking ethnic and
racial trends into account in policing is a rational and
efficient method of allocating investigatory resources to
safeguard the security of all.
In a polyglot society such as the United States, there is
no single dominant ethnic identity. Americans come from many
countries, many religions, many ethnicities. Because of the
vast array of cultures here, it would be hard for us to expect
that the demographics of the criminal justice system would
exactly mirror those of society. For example, we would not be
surprised to find that the percentage of male inmates is much
greater than their representation in society. According to the
Bureau of Prisons, 93.5 percent of the Federal prisoners in the
country are men, but men are a slight minority in the United
States at 49 percent of the population.
Should we in Congress then argue that the police and courts
discriminate against men? Of course not. We understand as
citizens that the criminal justice system targets criminals and
tries hard not to prosecute the innocent. That means that the
prison population will reflect the population of criminals and
not the exact demographics of average citizens.
So rather than rest on our laurels, we on the Crime
Subcommittee want to continue this decline in crime. So we
should look at the reasons for this decline and encourage
commonsense tactics and laws that allow the police and the
courts to do their jobs.
I don't think that it helps the citizens of this country to
have the police using political correctness as a guide to
deciding whether to arrest a criminal. A criminal is a criminal
whether he or she is White, Black or some other race. Political
correctness hamstrings the police, wastes money and contributes
to lawlessness.
The city of Los Angeles has been under a Justice Department
consent decree for over a decade. It has spent millions of
dollars and has had to pull officers off patrol to fill out
paperwork to keep track of the ethnicity and race of every
person with which they come into contact. Even though L.A. Has
made substantial progress improving the way they run their
department, Eric Holder's Justice Department has resisted
releasing Los Angeles from their probation. Are the statistics
nationwide generated from unfair policing, or are the charges
merely a way to question the law enforcement-driven model of
crime reduction? It is an issue that continues to generate
debate.
Today we will look at how modern, 21st-century law
enforcement has improved and reduced many of the problems we
were concerned about back in the 20th century. As the crime
rate continues to fall, we should make sure that our tactics
continue to evolve and target criminals regardless of race,
color or creed so that we may protect Americans regardless of
race, color or creed. I look forward to hearing more about this
issue and thank all of our witnesses for participating in
today's hearing.
And it's now my pleasure to recognize the Ranking Member of
the full Committee, the gentleman from Michigan Mr. Conyers.
Mr. Conyers. Thank you, Chairman Goodlatte.
And I want to begin by expressing our appreciation to the
Chairman of the Subcommittee Jim Sensenbrenner on the agreement
that he got with the Chairman of the full Committee to hold
this hearing. I think it is a very important hearing, and I am
looking forward to many of the witnesses who have been here--I
think everybody has been here before. There are no newcomers
before us today. I am glad to see you all here.
Let me approach this from--and Chairman Goodlatte provoked
this thought. He gave us the percentage of men incarcerated,
but he didn't give us the percentage of African American males
incarcerated as opposed to White. That is the problematic
issue, and I am not sure that it can be rationalized as easily
as you did that of men to women in terms of incarceration
rates. It is two completely different problems.
Now, back in the year 2000--well, even before 2001. In
1997, 47 of the 50 States of the Union had adopted a measure
that had been before the House Judiciary Committee a number of
times. It was a data-collection bill called the Traffic
Statistic Studies Act, and it finally passed the House under
suspension in 1997. But 47 of the 50 States, 47 of the 50
States, all but 3, had already adopted within their borders
some version of this same bill, because the one that I am
referring to did pass the Committee and the House, but it did
not pass the Senate, nor was it signed into law.
Now, let us forward to President Bush and his Attorney
General George Ashcroft. Incredibly--and I have quite a bit of
data collected in this Committee on the things that President
Bush did that I not only didn't agree with, but that I thought
were improper--but it was the same President George Bush in his
State of the Union Address that said the following, quote--this
is his first State of the Union Address, February 27, 2001--
racial profiling is wrong, and we will end it in America. In so
doing we will not hinder the work of our Nation's brave police
officers. They protect us every day, often at great risk. But
by stopping the abuses of a few, we will add to the public
confidence our police officers earn and deserve.
And so within 6 months, the President--we introduced a--
well, wait a minute. Within 6 months the Justice Department
under Attorney General John Ashcroft issued guidelines designed
to end racial profiling by Federal agents in routine police
work, but the guidance allowed large loopholes for the use of
race and ethnicity.
Mr. Goodlatte. The gentleman is recognized for 1 additional
minute.
Mr. Conyers. Thank you, sir.
It allowed loopholes for identification of terrorism
suspects and for border enforcement purposes.
So in conclusion what I am suggesting in my opening remarks
is that we made great efforts at closing the door on racial
profiling, but the events of September 11, 2001, reopened this
whole subject. In a way we have slipped backwards, and that is
why the hearing is so important, and that is why I am glad that
all of you panelists are here today to continue this
discussion.
Thank you, Chairman.
Mr. Goodlatte. I thank the gentleman.
And it is now my pleasure to introduce today's witnesses.
Hilary O. Shelton currently serves as the vice president for
advocacy and director of the NAACP's Washington bureau. Prior
to serving as director to the NAACP Washington bureau, Mr.
Shelton served as Federal liaison assistant director to the
Government Affairs Department of the United Negro College Fund
in Washington, D.C. Prior to working for UNCF, Mr. Shelton
served as the Federal policy program director to the United
Methodist Church's Social Justice Advocacy Agency.
Mr. Shelton serves on a number of national boards of
directors, including the Leadership Conference on Civil Rights,
the Center for Democratic Renewal, the Coalition to Stop Gun
Violence and the Congressional Black Caucus Institute, among
many others.
Mr. Shelton holds degrees in political science,
communications and legal studies from Howard University, the
University of Missouri in St. Louis, and Northeastern
University in Boston, Massachusetts, respectively.
Ms. Heather Mac Donald is a John M. Olin fellow at the
Manhattan Institute and a contributing editor of City Journal.
Ms. Mac Donald's writings have appeared in the Wall Street
Journal, the Washington Post, the New York Times, the New
Republic, Partisan Review, the New Criterion, Public Interest
and Academic Questions. She is also the author of several
books, including The Burden of Bad Ideas, Are Cops Racist?, and
The Immigration Solution: A Better Plan Than Today's.
Ms. Mac Donald has clerked for the Honorable Stephen
Reinhardt, U.S. Court of Appeals for the Ninth Circuit; has
been an attorney advisor in the Office of the General Counsel
of the U.S. Environmental Protection Agency; and a volunteer
with the Natural Resources Defense Council in New York City. In
1998, she was appointed to Mayor Rudolph Giuliani's Task Force
on the City University of New York.
Ms. Mac Donald received her B.A. in English from Yale
University, graduating with a Mellon fellowship to Cambridge
University, where she earned an M.A. in English. Her J.D. is
from Stanford University Law School.
Mr. Edward Conlon retired as a detective in the New York
Police Department this past August after serving 17 years with
the department. For 14 of those years, he was assigned to the
South Bronx. He was promoted to detective in 2001. He also
served as liaison for the NYPD Intelligence Division to the
National Police of Jordan where he lectured at the Royal Police
Academy.
Mr. Conlon has published numerous articles on police work
and the community for the New Yorker, Harper's and other
periodicals. He is the author of two books, including Blue
Blood, a family memoir of law enforcement, which was a New York
Times best seller, and finalist for the National Book Critics
Circle Award. Mr. Conlon is a graduate of Harvard University.
Professor David A. Harris is distinguished faculty scholar
and associate dean for research at the University of Pittsburgh
School of Law, where he teaches criminal procedure, criminal
law, evidence, and advanced courses in criminal justice policy
and homeland security. In 1996, Professor Harris served as a
member of the Civil Liberties Advisory Board to the White House
Commission on Aviation Safety and Security. Before he began
teaching in 1990, Professor Harris was a public defender in the
Washington, D.C., area; a litigator at a law firm in
Philadelphia; and law clerk to Federal Judge Walter K.
Stapleton in Wilmington, Delaware.
Professor Harris is the author of several books, including
Profiles in Injustice: Why Racial Profiling Cannot Work; and
Good Cops: The Case for Preventive Policing. His new book,
Failed Evidence, will be published in September 2012.
Professor Harris earned his bachelor of arts from
Northwestern University, his LL.M. from Georgetown University,
and his juris doctor from Yale Law School.
Mr. Jiles H. Ship is current president of the National
Organization of Black Law Enforcement Executives, NOBLE, and
formerly served 4 years as the northern New Jersey chapter
president. Mr. Ship started his career in law enforcement in
1985, first serving as an officer on the Edison Police
Department, during which time he also served as an instructor
for the Middlesex County Police Academy. He recently served as
the director of public safety for the city of Plainfield, New
Jersey. As chief executive officer of the Department of Public
Safety, he oversaw the police division, fire division and the
Office of Emergency Management. Prior to that appointment, he
served in the New Jersey Attorney General's Office, Division of
Criminal Justice, as the special assistant to the director, and
as a supervising State investigator, lieutenant State
investigator and administrator of investigations.
Mr. Ship is an adjunct professor at Bergen Community
College and teaches police administration and criminal justice.
He received his master of arts degree from Seton Hall
University College of Education in administration and
supervision and his bachelor of science degree in
administration of justice.
At this time we will turn to the testimony first with Mr.
Shelton. Welcome.

TESTIMONY OF HILARY O. SHELTON, SENIOR VICE PRESIDENT FOR
ADVOCACY AND POLICY, AND DIRECTOR, NAACP WASHINGTON BUREAU

Mr. Shelton. Good morning, Mr. Goodlatte and Ranking Member
Scott, and distinguished Members of the Subcommittee. I would
also like to give my deep appreciation of the NAACP to the
Judiciary Committee Chairman Lamar Smith, who------
Mr. Goodlatte. Mr. Shelton, pull that mic closer and make
sure it is turned on.
Mr. Shelton. I would also like to extend the deep
appreciation of the NAACP to the Judiciary Committee Chairman
Lamar Smith, who was instrumental in arranging this hearing.
I would also like to thank Congressman Conyers for his
unyielding courage and support in addressing the scourge that
still must be addressed in our society, and it is the issue of
racial profiling; and, of course, our dear friend Congresswoman
Sheila Jackson Lee for her support and continued leadership.
As you mentioned, my name is Hilary Shelton, director of
the NAACP's Washington bureau. The Washington bureau is the
Federal legislative and national public policy arm of the
Nation's oldest and largest grassroots-based civil rights
organization.
NAACP units throughout the country report receiving
hundreds, if not thousands, of complaints of racial profiling
each year, a practice that is unconstitutional, socially
corrupting, and counterproductive to smart and effective law
enforcement.
For the record, and to avoid confusion, the operational
definition of the term ``racial profiling'' means the practice
of a law enforcement agent or agencies relying on an--in any
degree on race, ethnicity, national origin or religion in
selecting which individuals to subject to routine or
spontaneous investigatory activities, or on deciding upon the
scope and substance of law enforcement activity following the
initial investigatory procedure, except when there is
trustworthy information relevant to the locality and timeframe
that links the person of a particular race, ethnicity, national
origin or religion to an identified criminal incident or
scheme.
Sadly, racial profiling is being used even today at all
levels of law enforcement. Local, State and Federal agents have
all been shown to use racial profiling as a damaging and
unnecessary means and tools of policing.
To add further concern, the use of racial profiling is
increasing as more States take stands against undocumented
immigrants as seen in Arizona, Alabama, and as local, State and
Federal authorities contend with the post-September 11th world.
Racial profiling against people who appear to be Hispanic
heritage as well as against Arabs, Muslims and South Asians has
multiplied and been exacerbated by lack of responsive policy,
guidance and education about the damage it causes.
Even at the most global level, the United Nations Committee
on the Elimination of Racial Discrimination highlighted the
importance of combating racial profiling in its General Comment
as combating racism in the administration of the criminal
justice system from a report done August of 2005. Domestically
the continued use of racial profiling has sadly and
unfortunately undercut our communities' trust and faith in the
integrity of the American judicial system.
The racially discriminatory practice of racial profiling
must be challenged when we find it cannot drive down an
interstate, when we cannot walk down the street, work, pray,
shop, travel or even enter into our homes without being
detained for questions by law enforcement agents merely because
of suspicions generated by the color of our skin or our
physical characteristics.
Racial profiling leads to entire communities losing
confidence and trust in the very men and women who are meant to
protect and serve them. As a result of racial profiling
practices, it has become much harder for law enforcement, even
those who do not engage in racial profiling, to do their jobs
to prevent, investigate, prosecute or solve crimes.
Evidence to support the prevalence of racial profiling by
law enforcement officials is as voluminous as it is varied.
According to a 2004 report by Amnesty International USA,
approximately 32 million Americans, a number equivalent to the
population of Canada, report they have already been victims of
racial profiling. Furthermore, prominent people speaking out
against racial profiling are as varied as former President Bill
Clinton, who called racial profiling a, quote, morally
indefensible, deeply corrosive practice, and further stated
that, quote, racial profiling is, in fact, the opposite of good
police work where actions are based on hard facts, not
stereotypes. It is wrong, it is destructive, and it must stop;
and George W. Bush, who, on February 27, 2001, said that racial
profiling is, quote, wrong and will end in America. In so doing
we will not hinder the work of our Nation's brave police
officers. They protect us every day, often at great risk. By
stopping the abuses of a few, who will add to the public
confidence our police officers earn and deserve.
At the Federal level effective anti-racial-profiling
legislation has been introduced in the House and the Senate
since 1997, and numerous hearings have been held, but to date
no legislative action has been taken. The response of State
legislatures in evidence of racial profiling by law enforcement
agencies has been, according to the American Civil Liberties
Union, with a few exceptions, inaction and a series of half
measures.
It is clear that more can and must be done to eliminate
racial profiling. From my experience both on the policy side
and anecdotal side, listening to NAACP adult and youth members,
branch presidents and members of the national board, there are
a few steps that need to be taken on a national level to end
this scourge once and for all.
First, we need a clear and effective definition of what
racial profiling is.
Mr. Goodlatte. You may want to sum up your remarks.
Mr. Shelton. Very good.
There are a number of things that need to be taken. And
certainly as we are going to address this issue, we must first
quantify it; that is, in order to fix a measure, you must first
measure it. We must also retrain our police officers and must
give our citizens an opportunity to be able to challenge these
concerns when they happen in our communities. With that, we can
begin to move our Nation forward and address this concern again
once and for all.
Mr. Goodlatte. Thank you, Mr. Shelton.
[The prepared statement of Mr. Shelton follows:]

__________

Mr. Goodlatte. I neglected to say at the beginning that all
of your entire statements will be made a part of the record,
and we ask that you limit your comments to 5 minutes.
And we will now turn to Ms. Mac Donald. Welcome.

TESTIMONY OF HEATHER MAC DONALD, SENIOR FELLOW, MANHATTAN
INSTITUTE FOR POLICY RESEARCH

Ms. Mac Donald. My name is Heather Mac Donald. I am a
fellow at the Manhattan Institute, a think tank in New York
City. Thank you, Chairman Goodlatte and Members of the
Committee, for inviting me to testify today about data-driven
policing. I have studied policing extensively, including from
my book, Are Cops Racist?
Since 1991, crime in New York City has dropped 80 percent.
New York's crime decline is unmatched anywhere in the country
or in history. It represents the greatest public policy success
of the last half century. The New York Police Department
accomplished this unprecedented feat by the managerial
revolution known as CompStat. Under CompStat, which was
pioneered by Police Commissioner William Bratton in 1994, the
department started analyzing crime data daily and deploying
officers where crime patterns were emerging. If officers
observed suspicious behavior in a violence-plagued area, they
were expected to intervene pursuant to their legal authority
before a crime actually occurred. Precinct commanders were held
ruthlessly accountable for crime in their jurisdictions, and
the department stopped tolerating the disorder that had
engulfed so many public spaces.
The benefits of the resulting crime decline have been
disproportionately concentrated in the city's poorest
neighborhoods since that is where the cost of crime hit the
hardest. Blacks and Hispanics have made up 79 percent of the
drop in homicide victims since 1990. Over 10,000 Black and
Hispanic males are alive today who would have been dead had
homicide rates remained at their early 1990's levels.
With robberies and burglaries plummeting in once desolate
neighborhoods in the late 1990's, economic activity and
property values there rose dramatically. Senior citizens could
go shopping without fear of getting mugged. Children no longer
needed to sleep in bathtubs to avoid stray bullets.
Critics of the NYPD, however, cite statistics such as the
following to charge that the department is racially biased. In
2009, 55 percent of the pedestrian stops made by the New York
police had Black subjects, even though Blacks are only 23
percent of the city's population. Whites, by contrast, were 10
percent of all stops, though they make up 35 percent of the
city's population.
Here is what you will never hear from the activists,
however. In 2009, Blacks committed 66 percent of all violent
crimes in New York City. How do we know this? That is what the
victims and witnesses of those crimes, most of them minorities
themselves, tell the police in making their crime reports.
Blacks committed 80 percent of all shootings in 2009, according
to victims, and 71 percent of all robberies. Whites, on the
other hand, committed 5 percent of all violent crimes in 2009.
They committed 1.4 percent of all shootings and less than 5
percent of all robberies.
Given such disparities in crime rates, disparities which
are replicated in every city in the country, the NYPD cannot
target its resources where they are most needed without
generating racially disproportionate stop-and-arrest data, even
though the department's tactics are colorblind.
Community requests for assistance are the other main driver
of police strategy, and the overwhelming demand coming out of
high-crime precincts is for more cops and less tolerance of
street disorder. If residents of an apartment building ask
their precinct commander to eliminate the drug dealing on their
streets, officers will likely question people hanging out
around the building and increase the enforcement of quality-of-
life laws in order to drive away the dealers. Such requests for
a crackdown on street sales come far more frequently from
minority neighborhoods because that is where most open-air drug
dealing occurs. The resulting stops will be based on behavior,
not race, but each stop will count against the department in
the activists' racial profiling litigation tally.
Under data-driven policing the police go where the crime
and the victims are. Race has nothing to do with it. No
government program over the last 50 years has had as positive
effect in minority neighborhoods as proactive policing. Its
successes should be more widely recognized.
Thank you, Chairman Goodlatte and Committee Members. I look
forward to answering any questions that you may have.
Mr. Goodlatte. Thank you, Ms. Mac Donald.
[The prepared statement of Ms. Mac Donald follows:]

__________
Mr. Goodlatte. Mr. Conlon, welcome.

TESTIMONY OF EDWARD CONLON,
FORMER NYPD DETECTIVE AND AUTHOR

Mr. Conlon. Thank you, Chairman Goodlatte, Ranking Members
Scott and Conyers, for inviting me here to address this
hearing.
When I retired at the end of this summer, it brought to an
end 104 years of my family serving in law enforcement in New
York, which began with my great-grandfather in 1907. I hope
that by offering a few observations on crimes, cops, community
and culture that it may be of service in the national
discussion of these issues. The views I express here are my
own.
There is an exercise that I have seen a number of times in
police training in which the instructor sets up by calling out
a number of Black and White officers from the audience, all of
whom are in civilian clothes. First, the instructor asks the
Black officer to put his hands up against the wall and for two
White officers to stand on either side of him. He then asked
the audience, what do we have here? The answer usually comes
back quick and casual: an arrest or a stop. The instructor then
reverses the positions with a White officer against the wall
flanked by two Black officers. Now what do we have? There is
usually hesitant, nervous laughter as all are reluctant to say
a mugging.
There is a lesson, of course, in the power and danger of
stereotypes, but I would always look around at that point to
see the faces of the officers, Black, White or Hispanic, to see
whether there seemed to be any difference in the reactions.
They tended to be the same across the color line; a little
chastened, but not much. It is a reminder to be careful not to
jump to conclusions, rather than a repudiation of a lifetime of
personal and professional assumptions.
In my experience, in that classroom and outside of it, cops
tend to think like other cops regardless of ethnicity. Decades
of studies have borne this out, from the Kerner Commission
onwards. Residents of minority communities have not reported
significant differences how they are treated by Black police
officers or White. In Kerner, Black support for increasing the
diversity of police departments was seen as a matter of
economic opportunity. There was no expectations that relations
would necessarily be improved.
Studies of cops of different races have shown some variety
in their attitudes. Whites tend to have a more generalized view
of people living in the ghetto, Blacks a more nuanced one, but
the correlation between attitude and behavior is weak, even
inverse. Black officers were more likely to use force against
suspects of their own race and faster to arrest them. In the
major cities that have had majority-minority police officer--
forces for a generation, Detroit, Washington, Atlanta, Miami,
police-community relations are not immune to conflict and
upheaval.
The history of race and racial discord in this country has
largely been irrational, and I have always been surprised to
see where race mattered and where it didn't in policing. Where
I worked in the South Bronx is overwhelmingly Black and
Hispanic with exceedingly high rates of poverty. As a beat cop,
the most inspiring and surprising revelation was seeing how
many people in the projects were happy to see me. In the middle
class or suburban neighborhood, cops are notional in a sense, a
kind of insurance policy that most people won't really need. In
the poor neighborhood, a cop is routinely and vitally
necessary. Older people, families, men and women making their
way to and from work knew that they wouldn't be bothered by
troublemakers when I was around. Confrontations with younger
guys, mostly in groups, beginning in their teen years and going
on through their 20's and beyond if they were unemployed, were
commonplace, too. But whether the interaction was grateful or
hostile race didn't seem to factor much in ordinary workdays.
In my narcotics unit, which was equally mixed between
White, Black and Hispanic cops, we engaged in racial profiling
with enthusiasm. The arrival of White faces on our corners and
streets in our tenements and projects almost invariably meant
that they were there to buy crack and heroin. They were easy
pickings. We called them ``strays,'' as in stray dogs, because
they often came over to us when we called them. And I will
never forget listening to a wiretap of a drug dealer
complaining about the racism of a White cop who stopped him in
the lobby to ask him what he was doing there. I could see if I
am some young thug selling drugs, he said. His indignation
barely faded when he went on to say how lucky he was to have
just dropped off his 400 grams of cocaine.
As a detective the best you can hope for is that only half
the people you meet wish they had never seen you. The most
routinely dispiriting part of my job was not the homicides, not
even the baby autopsies. What was awful was the nonfatal
shootings, most of which involved me begging young Black and
Hispanic men to tell me who shot them, sometimes for weeks and
months at a time. I have lost count of the number, and I still
can't believe the reasons for the gunfire. The gang shootings
and the drug shootings made sense compared to the shootings
over dirty looks, accidental brushes on the sidewalk, rumors of
insults, and brawls where no one was quite sure how they
started.
Quite a few of the victims were thugs, to put it bluntly,
who had made other kids bleed before and would again as soon as
they got out of the hospital, but many were not. They were kids
who had never been arrested, church-work-and-school kids with
church-work-and-school mothers crying at their bedsides. They
couldn't tell on their idiot friends who may have helped
instigate a conflict, which was frustrating, or they couldn't
be seen as cooperating with the police under any circumstances,
which was heartbreaking. Sometimes there was fear of
retaliation, reasonable or not, but quite often reflected a
kind of moral position, a selective form of civil disobedience.
It is a catastrophic attitude.
Gun violence in America is, in effect, a segregated
phenomenon. African Americans comprise approximately one-eighth
of the population of this country------
Mr. Goodlatte. Mr. Conlon, you will need to sum up your
testimony as well.
Mr. Conlon. Beg your pardon?
Mr. Goodlatte. You need to summarize your testimony.
Mr. Conlon. Okay.
Last year 6,000 Black people were murdered in the United
States, mostly men, mostly young, mostly by guns, mostly by
killers who can be described exactly the same way. The casualty
count is as if there were two 9/11s every year for Black
people. I don't know if it makes anyone feel better to point
out that 20 years ago it was almost twice as bad.
Very quickly, the practice of stop, question and frisk, it
has been criticized in New York both because of the disparate
impact of the people stopped, and it has been held that the low
rate of arrests or weapon recovery--6 percent of arrests, about
1 percent with weapons recovery--shows its failure. I think it
has changed the way people carry guns. A drug dealer on the
corner used to have his gun in his waistband. If somebody
stepped on his toe, or he saw a rival, that was a 2-second
decision from the insult to the act. Now, because the police
have been harassing these guys for a generation in New York,
that gun is now on a rooftop, or it is in a bedroom, and the
decision to pull the trigger is now 10 or 15 minutes, and
tempers can cool off, and people can walk away. So that
practice has, I think, saved lives in New York City.
Thank you very much.
Mr. Goodlatte. Thank you, Mr. Conlon.
[The prepared statement of Mr. Conlon follows:]

__________
Mr. Goodlatte. Professor Harris, welcome.

TESTIMONY OF DAVID A. HARRIS, PROFESSOR OF LAW, ASSOCIATE DEAN
FOR RESEARCH, UNIVERSITY OF PITTSBURGH LAW

Mr. Harris. Thank you very much, Chairman Goodlatte,
Members of the Subcommittee. I appreciate very much the
opportunity to talk to you here today. Thank you very much. My
apologies.
Mr. Chairman, Members of the Subcommittee, thanks for the
opportunity to speak to you here today. The topic of smart
policing, the subject of this hearing, is a very important one,
because more and more the police have success by using
information. It is all about the use of data. Whether it is
data to locate the places in which there is criminal activity,
or it is data to target the right people through intelligence
work, or if it is data about best practices, it is all about
information for the successful police departments in the United
States today. To me, that is what smart policing means.
Now, the most important source of information for any
police department when we are talking about routine law
enforcement tasks, routine enforcement of law on the streets,
the most important source of information is the people who live
in those neighborhoods, who make their homes on those streets,
who work in those neighborhoods. Those are the people who are
always there. Those are the people who can tell the police what
is happening, because the police cannot always be there. They
can't. There are just not enough of them. And because of that,
it is crucial, absolutely crucial, that the police strive to
have the best possible relationship with those in our
communities that they serve.
Relationships have to be built on trust, they have to be
built on a long history of working together, but it is that
relationship that allows information to flow from the people
who have it to the people who need it. And it is that that has
awakened in law enforcement the realization that they cannot do
the job themselves; they need the partnership, the help and the
information they can get from the community. Without that they
are flying blind. At the very least they are not able to do the
job they could otherwise.
A couple of very quick examples. The first terrorism cell
broken in the United States after 2001 was in Lackawanna, New
York. That cell was uncovered, the case was broken because
people in that community, people who happen to be from Yemen,
came forward and gave information to the FBI and to their local
police officers, their community-policing officers. That was
what set that case in motion.
The second example, Cincinnati, a place where there was
civil unrest 3 days long just a decade ago, a 5-year consent
decree followed by years of working between the police and the
community to build a relationship. Now the police are getting
information, now crime is falling, now homicide is coming down
in Cincinnati. So it is that relationship that is all important
in affecting crime.
Now, the problem as I see it with racial profiling, there
are many facets to this problem, but one of the chief issues is
that when people feel targeted, when certain communities feel
that they are getting stopped, stopped and stopped again all
the time, that relationship begins to break down. It begins to
corrode. People begin to feel that the crime effort is not
being done for them, but to them, and that has the effect of
substituting for trust and for good relationships fear. And
when fear is there, when resentment is there, what happens is
communication breaks down, information stops flowing. And you
can't have smart policing unless you are getting information
from the people who are there. They are a vital part, an
absolutely critical part of the success of any police
department.
If you don't have the cooperation, help and alliance of
those you serve, you are really in a bad position as a police
department. You are not doing everything you can. That is why
so many police departments across the United States that have
also experienced large drops in crime have made building these
relationships and partnerships a centerpiece of their efforts
to make their community safer, make the streets safe for
everyone.
With that in mind, if you want to have smart policing,
think in terms of that relationship. Without it you are flying
blind.
Thank you very much for the opportunity to speak to you,
and I look forward to your questions.
Mr. Gowdy [presiding]. Thank you, Professor Harris.
[The prepared statement of Mr. Harris follows:]

__________

Mr. Gowdy. Mr. Ship.

TESTIMONY OF JILES H. SHIP, NATIONAL PRESIDENT, NATIONAL
ORGANIZATION OF BLACK LAW ENFORCEMENT EXECUTIVES (NOBLE)

Mr. Ship. Thank you, Mr. Chairman, Ranking Member Conyers
and Ranking Member Scott, and the Members of the Committee. I
am Jiles Ship, national president of the National Organization
of Black Law Enforcement Executives. Thank you for the
opportunity to testify and submit testimony for the record
regarding the problem of racial profiling and the use of
suspect classifications in law enforcement policies.
First and foremost I am a proud American, and I am a former
United States marine with 6 years of honorable service, and I
want to thank all of you for supporting and honoring the
Montford Point Marines.
As national president of NOBLE, I am here representing over
3,500 chiefs of police, commissioners, superintendents,
directors of public safety, and law enforcement executives,
predominantly African American, but our membership also
includes law enforcement officials from other communities.
NOBLE has been a leading national voice on community policing,
hate crimes, racial profiling, racial and religious tolerance,
and law enforcement accreditation standards. As a founding
association for the Commission on Accreditation for Law
Enforcement Agencies, better known as CALEA, along with the
International Association of Chiefs of Police, the Police
Executive Research Forum and the National Sheriffs'
Association, we work to improve the delivery of public safety
services primarily by maintaining a body of standards developed
by public safety practitioners covering a wide range of up-to-
date public safety initiatives, establishing and administering
an accreditation process, and recognizing professional
excellence.
I have spent over 25 years as a State and local law
enforcement official, starting my career first serving as an
officer in the Edison, New Jersey, Police Department, patroling
a roadway more commonly known in the law enforcement profession
as ``Cocaine Alley.'' I was also selected by the New Jersey
attorney general to serve on a working group to develop a
statewide eradicating racial profiling training.
Racial profiling is one of the most critical issues facing
law enforcement today. The continued denial and refusal to
address this issue has led to the deterioration of public trust
and confidence in the criminal justice system, and has strained
police and community relations even more so in our post-9/11
society.
The need to embrace smart policing as a philosophy is even
more important. There are numerous cities throughout this
Nation in crisis, powder kegs waiting to be ignited by a single
incident of racial profiling. We cannot ignore the warning
signals. We must respond immediately and develop strategies to
eliminate this practice.
To be clear, racial profiling means the practice of law
enforcement officials or agencies relying to any degree on
race, ethnicity in selecting which individuals to subject to
routine or spontaneous investigatory activities, or in deciding
upon the scope and substance of law enforcement activity
following the initial investigatory procedure, except when
there is trustworthy information relevant to the locality and
the timeframe that links a person of a particular race or
ethnicity to an identified criminal incident or scheme.
Race, ethnicity, national origin or religion should never
be used as a predictor of a person's conduct. The general rule
of prohibiting law enforcement officers from using racial
profiling as a factor in determining the likelihood that a
person is engaged in criminal activity makes sense from a
practical perspective because it is unambiguous and thus will
help police officers to avoid many of the legal pitfalls and
land mines that would arise were they to try to build race,
ethnicity, national origin or religion into the equation of
suspiciousness. Rather, law enforcement must look to conduct
and behavior as indicators of criminal activity. Law
enforcement officials must never use racial profiling as a
factor in deciding that a person is involved in a criminal
activity unless an officer is responding to a subject-specific
or investigative-specific be-on-the-look-out--what we call
BOLO--situation. A person's race, ethnicity or national origin
should play no part in police discretion. Our citizens deserve
nothing less.
There are many lasting effects that stem from the use of
racial profiling. One of the most significant is the loss of
public support in the form of community trust and engagement.
The use of racial profiling has resulted in a culture in which
everyday citizens mistrust law enforcement officers, the same
people they should look to for protection. Rather than serving
as a valuable source of intelligence information------
Mr. Gowdy. Mr. Ship, I hate to interrupt you. Your entire
statement will be made part of the record. If you could maybe
find a concluding point--and, trust me, everything will be made
part of the record. But if you could find a point at which to
maybe conclude because of the red light.
Mr. Ship. Yes, sir. All right.
I would just like to say lastly, in addition to destroying
a valuable pipeline of information, the resulting erosion of
community trust undermines our law enforcement and prosecution
efforts in other ways.
Our law enforcement officers are hard-working men and women
and are the backbone of our criminal justice system. They need
to instill public trust within our communities to protect and
serve. That is not a partisan issue. The National Organization
of Black Law Enforcement Executives encourages you to enact
legislation because it is important to our organization's
mission of ensuring justice, fairness and effectiveness in law
enforcement.
Thank you for your leadership on this critical issue.
Mr. Gowdy. Thank you, Mr. Ship.
[The prepared statement of Mr. Ship follows:]

ATTACHMENT

__________

Mr. Gowdy. The Chair would now recognize the gentleman from
California Mr. Lungren.
Mr. Lungren. I want to thank all of you for your testimony.
I appreciate it very, very much.
And I found Dr. Mac Donald's testimony interesting. I know
you are proud of New York and so forth. We have got similar
results in California. From 1991 until 1999, when I left as
attorney general, we had reduced the overall crime rate by 50
percent, the homicide rate by 30 percent. That has continued. I
am not sure it is exactly as much. We did get the benefit of
Chief Bratton coming to Los Angeles. And I happen to think the
use of technology, the use of computer data has helped array
the resources of law enforcement to those communities that are
most subjected to violence and serious crime. I think that is a
positive.
Mr. Conlon, thank you for your service and the service of
your family over the years. I found your testimony very, very
affecting, not only because my brother was a police officer of
LAPD for 5 years, and at least in one assignment in his squad
car he was paired with an African American officer whom he was
training.
And I just wonder, over the time you were on the force, did
you see a change the effect in the communities you were serving
as a result of the application of smart policing? And by smart
policing, I mean as the application of information collected to
give you a better understanding of where the violent and
serious crime was occurring and the developments therefrom.
Mr. Conlon. Yes. Really from a management standpoint, a
captain or a precinct commander would be called to the carpet
every month downtown in CompStat, and they would point out you
have robberies every other Tuesday at this corner which is by a
school, what are you doing about it? And they could assign
officers there. So knowing the patterns allows you to predict
the future to a certain degree.
Mr. Lungren. Is that reflected in the community? In other
words, I appreciate the fact that racial profiling can have a
debilitating effect on those to whom it is directed. And if
there is a belief of that in the community, there is a less
likelihood, Professor Harris, that members of that community
are going to cooperate with the police. But this is my general
observation. I may be wrong, but my general observation is that
tension and the corrosiveness of the relationship between
police and the minority communities is not as bad today as it
was 20 years ago, in part because the amount of violent crime
visited upon members of the minority community is less than it
was before. Is that a fair statement? I am not suggesting there
isn't racial profiling going on amongst some individuals, but,
Mr. Shelton, would that be a fair statement?
Mr. Shelton. I have not sure it isfully informed. If we
look at the number of calls and reports that we receive at the
NAACP throughout 2,200 membership units, I would have to say
that we are getting as many calls, if not more. And if we are
looking at areas as we added some new challenges by local law
enforcement, including some of the anti-immigration policies
that are now in place in which racial profiling becomes a
necessary tool for enforcement, what we are seeing is the
challenges are equally as much, if not more, expanded now. We
are getting more calls, believe it or not, also from not only
our Latino friends, but our Arab and Asian friends, our Muslim
friends------
Mr. Lungren. That is interesting. The thing that resonates
in my mind is a conversation I had with a young African
American teenager about 14 or 15 years old when, in my position
then, we went down and held a forum at a high school in Los
Angeles where a young man had been killed. And it was a
violence-prevention conference. And my belief is you are not
just worried about crime, you are worried about violence, so we
had a violence and crime prevention unit.
I went down there. We had the presentation. This young girl
came up to me, and she said, why is it you adults never show up
until after one of our young people have been killed? And that
resonated with me. And that is why I thought that if, in fact,
we had been successful in bringing the crime rate down,
particularly the violent crime rate down, across the board, but
because of the disproportionate number of criminals in the
minority communities, the bringing of the crime rate down
disproportionately benefits in that sense. And I just wonder if
that is reflected at all in a community. If I don't have to say
to the attorney general or the police chief as often, why don't
you guys come down here until after someone is killed, because
you are actually here, that is a positive for me.
And I am not trying to say there isn't some racial
profiling. On the POST Commission in California, you know, we
have a number of different training programs for police
officers. Racial profiling is not to be allowed. And I think we
are human beings, we have to work on that.
But in terms of using some of the data, I am a little
worried about that, because I have always thought some of the
best data is, if you want to look about racial
disproportionality, the testimony of witnesses or, more
importantly to me, the testimony of victims. And we have a
crisis in this country of the disproportionality of violent
victims being minorities, and that is a problem that we have
not been successful totally in, even though I think we have
made some progress. But those statistics cry out to me to say
why can't we do a better job of making these minority
communities safer as we say with the whole community? It is a
frustration, I guess.
Ms. Mac Donald. Congressman Lungren, may I respond, please?
Thank you.
There was a Quinnipiac poll done in New York City in 2010
that found that Black support for Commissioner Ray Kelly, who
is the current commissioner of the NYPD, was about 70 percent
approval of the job he was doing.
Mr. Lungren. Is that higher than Congress?
Ms. Mac Donald. I am afraid he may be taking your job soon.
This is a man with political ambitions. The White support was
about 80 percent, so it was not a huge difference.
Philadelphia has been sued by the ACLU for stop-and-frisks.
A recent poll there found that the vast majority of Black
residents of Philadelphia found that the police used force
appropriately.
So there is support, because I have been to so many
community meetings in Harlem and in Brooklyn, and, again, what
you hear is, we want more cops. You don't hear brutality
allegations; you hear, why aren't you getting the drug dealers
off the street and keeping them off the street? So if there was
a huge backlash against the police, you would not be finding a
demand for more cops.
As far as the effect on minority communities, I just cannot
stress enough that CompStat is colorblind. If you go to a
CompStat meeting in downtown New York where those precinct
commanders are being grilled about crime patterns on their
streets, because the New York Police Department wants to save
everybody's lives equally, the crime dots on the map say
nothing about race, they just show you where the victims are.
Nobody is talking about race at CompStat, they are saying,
where are the patterns of crime happening, and they are
happening overwhelmingly in minority neighborhoods.
Mr. Conyers. Mr. Chairman, could the gentleman from
California be yielded a couple of minutes, please?
Mr. Gowdy. I was just going to tell Ms. Mac Donald, because
of many reasons, including the fact that he is a former
attorney general in California, the clock ran a little bit. It
is not your fault, it is not his fault, but you may get another
question about CompStat at which point you can answer that.
But I would now thank the gentleman from California and
would now turn to the gentleman from Virginia.
Mr. Scott. You have a request of unanimous consent.
Mr. Conyers. I asked for a couple more minutes for Dan
Lungren so he could yield to me.
Mr. Gowdy. So he can yield to you? Without objection.
Mr. Conyers. He doesn't have to.
Mr. Lungren. I would always yield to you, yes, sir.
Mr. Conyers. Well, thank you.
Look, the only point I want to make, and I thank you for
allowing me to ask this, is in referring to the crime reduction
that occurred when you were there and was following this on a
day-by-day basis, there were social programs that collaborated
with police programs, the violence prevention program being
one. But in your case I wanted to ask you about that, because
in New York there are studies that show that the social
programs combined with the police work, it is not CompStat
alone, it was--and I want to find out what happens in L.A. I
will be asking her about the New York experience.
Mr. Lungren. Well, reclaiming my time, we instituted a
number of things in California at the time, COPS program,
community oriented policing, problem solving, which goes to the
point that Professor Harris made. But I would also say we
implemented three strikes and you are out, we implemented a
victim's bill of rights, we instituted truth in sentencing. And
I know this is controversial, but we did increase substantially
our prison population trying to get the career criminals off
the street, in addition to the things the gentlemen have said.
So I am not suggesting there is any one single thing, but I
will say there was a marked change in attitude toward law
enforcement during those years, and I happen to be one that
thinks that it was successful. But young people not only talk
to me about not wanting to be killed in their high schools, but
they wanted to have an education, they wanted to have some
other things. I think the gentleman is correct on that.
Mr. Shelton. Mr. Chairman, if I might also respond to Mr.
Lungren's question. What we have seen is if--we don't want to
get across the point that we want less police officers. We do
want more police officers. We want them on our streets, we want
them visible, but we also want them well trained.
We believe the effectiveness of our police officers is also
deeply rooted in the relationship they have with the
communities they serve. As long as we allow racial profiling to
continue, or the perception of racial profiling, as we are
seeing now, without the accountability of measures in which we
actually take into account what is going on in our
neighborhoods, we don't have that trust or relationship.
Mr. Lungren. I would agree with you. The only concern I
have is I might say you might--and I apologize. I don't want
to--well, is the misuse or the misunderstanding of statistics.
And I think we have to be very careful about that. And, to me,
the most meaningful statistic is the disproportionate impact of
violence on the minority community, which is not as bad as it
was 20 years ago, but still is one of the identifying
characteristics of a young person trying to grow up in those
communities, and we ought to do a better job on that.
Mr. Shelton. Well, absolutely. And certainly prevention
requires that trust factor of a police officer that has been
well trained. As a matter of fact, from California there is a
police chief named Lansdowne, who I believe is retired now, but
was the chief of San Jose. Lansdowne actually implemented anti-
racial-profiling policies by actually taking the count,
counting the number of traffic stops, looking at races, seeing
if there was a problem. He said as a chief administrator he had
a responsibility to collect data. If you are going to have
data-driven policing, you have to collect the data.
What we would like to see happen to try to stop racial
profiling is a collection of data that can be analyzed. One of
the things he did to prevent the misunderstanding or
misanalysis of that data was actually to pull together citizens
from the community of all races, genders and ethnicities so
they could process the data, understand it and make
recommendations to the chief. That is the accounting we would
like to see happen. That is the kind of legislation, quite
frankly, we would like to see Congress implement.
Mr. Gowdy. I thank the gentleman from California.
I now recognize the gentleman from Virginia Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
And one of the things we know that can significantly reduce
crime, particularly juvenile crime, are prevention initiatives.
The Youth Promise Act, which I have talked to the gentleman
from Pennsylvania about a little bit earlier, has been studied
and looked at by experts and has been viewed as an excellent
strategy to significantly reduce crime by getting young people
on the right track and keeping them on the right track so they
don't get in trouble to begin with.
I want to start with Mr. Ship. If you don't have--if you
have profiling, it seems to me that you are wasting a lot of
time on innocent people and not enough time on guilty people.
If you do not have profiling, how will police be more--policing
be more effective?
Mr. Ship. Mr. Scott, you are exactly right. Progressive
police executives have come to the understanding that in order
to generate community support, which I don't know if I heard
that loudly here, but in large part why we are noticing the
reduction in the crime numbers now is because of the fact that
community policing was heavily driven into a number of
different communities.
The computer statistics are a tool that I use as a director
of a police department to more so hold my subordinates
accountable. It is data driven, it is information that can be
used to hold people accountable, but that is all it is. That is
all it is. And I am not diminishing the importance of it.
We have to--but--and I just want to touch on another thing,
too, with Commissioner Ray Kelly. I was with him 2 weeks ago.
The reason why that people are in so great support of him is
because of the fact that when he sees cops acting out in ways
that they should not, he takes swift action to address that and
to rid them out of his department, which builds community
trust. If the community trust is built, you are going to have
more people coming forth to participate in trials, you are
going to have them acting as witnesses, and when they serve on
juries, if they trust and have faith in their local law
enforcement, they will be more willing to render a just verdict
and not put the police under question.
Mr. Scott. And how does a perception in the community--how
is the perception affected if the community believes that the
police are picking on people because of their race?
Mr. Ship. It will just have the countereffect. Racially-
influenced policing would result in some jurors being
mistrustful of law enforcement officers, therefore lesswilling
to accept the credibility of police witnesses. And this can
happen when a police officer does something during an encounter
to make a citizen or a friend or a relative mistrustful of that
police officer. So it will have the countereffect.
Mr. Scott. And what kind of training would tend to minimize
racial profiling?
Mr. Ship. The best training--and some agencies are getting
their people trained in that area now; as a matter of fact,
right here at metro and on a Federal level, TSA--is we have to
look at it from a behavioral science standpoint. We have to
police conduct and behavior, not a person's--based on their
ethnicity or their race.
Mr. Scott. And is that training effective?
Mr. Ship. That training has been very effective. As a
matter of fact, in the long run we will find that it is going
to be more effective, because those are the indicators that we
need to know in order to really thwart criminal activity.
Mr. Scott. Professor Harris, on the stop-and-frisk right
now, what is the legal standard right now?
Mr. Harris. I couldn't hear all of your question.
Mr. Scott. On the stop-and-frisk cases, what legal
standard--what do the cases say that--when you can do it and
when you can't?
Mr. Harris. Stop-and-frisk is well understood. It has been
used in the law for a long time. The standard in place has been
there since 1968. Police must have reasonable, fact-based
suspicion that the person they are observing is involved in
some kind of criminal activity. It is less evidence--less
evidence is required than probable cause, but it does require
some evidence that would give you a factual basis for
reasonable suspicion.
If there is also reasonable suspicion that the person might
be armed, either because there is some outward indication of
presence of a gun or because the crime that they suspect
requires a gun, armed robbery, they may then also do a frisk.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Gowdy. The Chair would now recognize the gentleman from
Pennsylvania Mr. Marino.
Mr. Marino. Thank you, Chairman.
Lady and gentlemen, thank you for being here. I am going to
ask you questions based on my experience. I was a prosecutor
for 18 years, a district attorney, and a United States
attorney. And let me preface by saying that I am proud of our
record in my county and in the Middle District of Pennsylvania
to combat racial profiling, because we follow the crime.
So based on that, Mr. Shelton, you quoted some statistics
of the number of calls that you received from individuals about
racial profiling. Is there a way that you were able to follow
up to determine the legitimacy of those calls, and did you find
very many that were not legitimate?
Mr. Shelton. What we usually do as a volunteer organization
is actually transmit those complaints with concerns to their
race to local law enforcement. Many people are afraid to
actually go to the local law enforcement agency. Unfortunately,
in too many cases it is the same entity that actually receives
the complaints for the activities, so they are fearful to go
into some of these offices in many cases. We forward it there,
and if we find those that are particularly problematic, we also
forward those to the U.S. Justice Department's Pattern and
Practice Division here in Washington.
Mr. Marino. One of my biggest complaints was--and I am
going to bring the media into this somewhat--the media doesn't
hesitate to show a bad situation with an officer and--of a
person that is potentially going to be arrested. I wish we
would see more positive aspects of a police officer. In
exchange for programs that we put into our county and in our
district, we even had police stations in a housing project
where we rented one of the apartments, and the police officers
were there on a 24/7 basis, where the neighbors came in and
out. And we also did receive a great deal of requests for more
police officers to be working with individuals. We had
neighborhood watches. As the district attorney, U.S. attorney,
I actually went in to all my neighborhoods on a monthly basis
on a rotation and sat and talked with people. Do you find that
being effective? Anyone can answer.
Mr. Ship. Absolutely. And that is what I was alluding to
earlier when I was talking about the community policing
initiatives that really had an impact on reducing the rate of
crime, especially, especially in urban centers, but not limited
to. Even in the suburban communities the numbers have been
greatly reduced because of that initiative.
Mr. Marino. It looks like Mr. Harris wanted to------
Mr. Harris. I was going to say, sir, that is a very
effective way of doing it, and it is all because you are having
communication on a regular basis. When you have some kind of a
conduit for that, when you have a procedure for it, when people
see that you are not there just to be there once, but you are
coming back and you are coming back, that is what builds the
relationship, and the relationship brings in the information,
and everybody can succeed.
Mr. Marino. Let me ask the former police officers. And
please respond to this. Do you see or have you seen particular
crimes associated with particular ethnic backgrounds based on a
scale of economics; for example, the use of cocaine versus the
use of crack?
Mr. Ship. Well, let me just make sure I am clear on that,
sir. More than not it is generally based on the socioeconomic
environment more so than the ethnicity or the race of the
individual. And there was a study done in Georgia with the
Secretary of Labor.
Mr. Marino. That is why I bring in the economics.
Mr. Ship. Yes. Yes, sir.
Mr. Marino. Okay. So would you agree with me that, at least
in my experience, when it came to cocaine, we were prosecuting
and putting people in prison who were from Caucasian
backgrounds, from upper middle-class and wealthy individuals
who could afford to purchase the cocaine, but also African
Americans who didn't have the money to purchase the cocaine,
but could purchase and manufacture the crack at a cheaper
price. Is that, in fact, true? Have you experienced that as
police officers? And, sir, you may jump in, too.
Mr. Shelton. I would just add in many of those cases there
is an issue of the process in which police target communities
they think are having the biggest problems. As we look at
issues along those lines, we begin with the data, understanding
what the Department of Health and Human Services says about
crack cocaine, the use of cocaine, and other drug use, and have
a situation where 60 percent, according to the Department of
Health and Human Services, of illegal crack cocaine users are
White Americans, but over 80 percent of all the prosecutions of
crack cocaine convictions are African Americans. We know there
is a little data problem along those lines.
If the question is how can we be most effective at being
able to prevent these crimes from happening in the first place,
which I think is what all of us want, it does require that
trust of those law enforcement officials again. It requires
those law enforcement officials to have the kind of
relationship with the communities they serve in which the
communities feel that they can actually give them the
information quietly and trustfully that will help prevent the
crime from happening.
Being accountable to those communities is one of the most
important things we can have in those neighborhoods for those
community members to feel that indeed they had the respect of
those law enforcement officials, and that they will be treated
fairly throughout the process.
Mr. Marino. Go ahead, sir, please.
Mr. Conlon. I would like to--I think that the community
relations and community policing are essential and valuable on
their own terms. I would also like to point out that the major
drops in crime in New York City during the 1990's were at a
period when racial relations, certainly compared to now, were
fairly adversarial, certainly between the mayor and various
minority leadership in the city. The fact that relations were
often quite poor didn't seem to be an impediment to very, very
rapid drops in crime.
Mr. Marino. Chair, is my time running out? May I have 1
more minute?
Mr. Gowdy. Without objection.
Mr. Marino. Let us switch to juveniles, which my good
friend Mr. Scott, I think, is setting me up for for something
down the road.
I am very passionate about getting involved in working
diligently with our kids. As a district attorney I handled the
juvenile caseload pretty much myself, because our purpose there
is to get them on the right road, and not so much punishment,
although punishment has to be a part of it.
What are we doing? We have to start with our kids;
education, aware of what is right and wrong, and a good
environment. Let us just for a moment not think about the money
side of it, let us just think about what we have to improve on
or change concerning our relationship--law enforcement's
relationship with our children. Anybody chime in.
Mr. Harris. The relationship between kids and the police
officers who serve in those communities is crucial. And when it
is good, when the kids see the same officer, and the same
officer is assigned over a long period of time, when the
officer is in the schools, when the officer is at the
neighborhood festival, when the officer comes to their homes,
even lives in their neighborhoods, though I don't think that is
strictly necessary, that kind of a person can be a presence,
and then that officer will know what kind of a kid he is
dealing with. And so if you got 10 kids in hooded sweatshirts,
they will know which one is the bad one and which of the other
9 are just kids.
Mr. Marino. Quickly, anyone else want to respond to that?
Ms. Mac Donald. I would definitely support Professor Harris
in that. I would just say that the best thing that an officer
can do for children is to keep them alive. And the fact is that
the crime drop in New York has been highest in minority
neighborhoods. There are children now who are alive who would
have been killed by stray gunfire had crime not dropped. And if
we are going to delegitimate data-driven policing because it
generates racially disproportionate data, we are going to hurt
minorities most of all.
The question that this Committee has not really addressed
is does racial profiling exist on the scale in which it is
alleged. The evidence that is provided for it again and again
is statistical, and it looks at police activity which is
disproportionately concentrated in minority neighborhoods. But
you cannot have police activity that goes after crime that does
not generate disproportionate data. Police stops can either
mirror census figures, or they can go after crime. They cannot
do both.
The shooting rate in Brownsville, Brooklyn, where a woman
was just killed at 2:30 on a Friday afternoon by stray gunfire
by youth gangs, the shooting rate in Brownsville is 81 times
higher per capita than in neighboring Bay Ridge, Brooklyn.
Given that reality, the police stops are going to be higher in
Brownsville than they are in Bay Ridge. And if you are going to
delegitimate policing by saying that they are racially
profiling because the stop rate is higher in Brownsville than
it is in Bay Ridge, while ignoring the underlying crime rates,
you are going to be leading to more minority deaths and crime.
Mr. Conyers. Would the gentleman yield for just a moment on
that point, because I would like to find out who she suspects
on the Committee may be delegitimating those numbers.
Unfortunately, I regretfully have to agree with them. But I
haven't heard anybody suggest what you are saying, that we
don't understand that. I think everybody here does.
Ms. Mac Donald. Well, then, I am glad to hear that,
Congressman Conyers, and I am sure that you do with your
understanding of reality. But the fact of the matter is is that
the evidence that the ACLU routinely puts forward for racial
profiling is based on a very primitive analysis, which is that,
as in New York City, for instance, the stop rate for Blacks is
higher than it is for the population. It is 55 percent of all
stops are of Blacks, whereas Blacks are only 23 percent of the
population. Without look at crime rates------
Mr. Conyers. Well, I am just hoping that Chairman Gowdy
will entertain in the future, either this year or early next, a
criminal justice hearing in which we have ACLU and you as
panelists before us.
Mr. Gowdy. Temporary Chairman Gowdy will be happy to pass
that on to permanent Chairman Sensenbrenner. And this seems
like a wonderful time to recognize the gentleman from Michigan
for his time of questioning.
Mr. Conyers. Well, I am going to yield to Sheila Jackson
Lee, sir.
Mr. Gowdy. Very well.
Ms. Jackson Lee. Thank you very much. And let me thank the
temporary Chair for the indulgence that he has given all the
Members, and I ask his indulgence as well as I proceed. And I
thank the Ranking Member for yielding because of an early
departure.
Let me just say I am so glad that the Ranking Member
clarified that numbers speak for themselves. If the police
department reports numbers of 60 percent crime and numbers
dealing with the numbers of the percentage or the racial
description of the individual arrested, then those are the
numbers. And what I would say to you, Ms. Mac Donald, it is
easy to be dispassionate on numbers. You are an analyst, and I
respect your talent for that, but you speak in a tone that is
tone deaf on the societal issues that, even though we are a
Judiciary Committee, many of us have to take into
consideration.
So let me speak to the issue that I think is glaring in
front of all of us. Let me, first of all, lay on the record my
deep respect for Commissioner Ray Kelly, who we both served
together, myself and the Congress, many Members here, and he in
his capacity when he served in the Federal Government. Give him
my greetings. And I certainly appreciate his work.
But the burden of race is one that, except for a few
panelists, has been completely ignored. If history speaks to
the treatment of the Irish that may have been classified as
petty criminals, but we don't stop Irish Americans today
randomly. History would speak to what many Italians will push
back, rightly so, of the Mafia, but we don't go into Italian
neighborhoods and ask, are you part of the Mafia?
I believe that we have a way of addressing the questions
that Ms. Mac Donald has raised and our former New York NYPD on
the issue of behavior. None of us are denying that you can get
a random neighborhood of African Americans, and I am so glad
you are saying that these individuals are propolice.
Hallelujah. Let us put that on the front pages of the New York
Times. The NAACP and ACLU have been trying to say that for a
very long time. Those of us who are African Americans, we are
glad that our young men and young women are part of the police
department law enforcement. We are delighted of our leadership
at NOBLE. My dear friends are police officers.
But the question is that if you took an individual family
and said, would you like to have your son shot in your driveway
while the mother is screaming, this is my son and he is in our
car, while a law enforcement officer says, you have stolen the
car, most would say not. They will come to the NAACP, they will
come to the ACLU. Or if you ask the bride whether she wanted
her bridegroom on the night before their marriage to be shot
down in a gunfire that seemed to have been provoked, probably
still a debate in New York, they will probably argue not. So
the organizations like the NAACP, like those of us on the
Judiciary Committee, ACLU, we handle the unique cases.
I would venture to say, Mr. Shelton, do you have hardened
criminals coming into your office saying, we have been
discriminated against, or are the kinds of people that are
coming into your office those who may be victimized simply on
the basis of race as they interpret it? Is that what you are
seeing?
Mr. Shelton. What we see is those who feel they have been
victimized. These are usually good, law-abiding citizens that
just cannot understand how it is that themselves and, in most
cases, sons, but daughters as well--their sons have been
victimized along these lines. They are trying to figure out how
they can explain to their children how important these law
enforcement officers are in the overall when they feel that
they are victimized simply because of their physical
characteristics, the color of their skin.
Ms. Jackson Lee. And if I might pursue this line of
questioning, a few years ago Ranking Member Conyers and a
number of us pursued the issue of police brutality around
America. I, frankly, believe we had an impact. We had an impact
by raising the issue, and police departments themselves began
to self-police and find better ways.
So let me go to Professor Harris. I am on Homeland
Security. We have had a series of incidences and hearings
dealing with the Muslim community and the way you figure into
that community. Frankly, I believe we have got to move the
thermometer up on the behavioral assessment and education of
our officers, because if one of our children wants to go out
for a loaf of bread or drive a car to get a loaf of bread
dressed in the attire of the basic hip-hop community, and they
are just home from Yale, but they happen to be African
American, that child--or maybe walking down a Brownsville
street--had a scholarship at Yale or Harvard, that child, that
African American boy, can be stopped and frisked.
The question we ask is whether or not that is the best use
of police resources. Can you explain or comment on that
behavioral aspect that we can begin to work with you on even
legislatively to the extent of resources? I call it best
practices. Would you respond to that, how that would differ on
maybe that particular student that is going down the block?
Mr. Harris. Yes, ma'am. The use of police power and
resources must be channeled in the most effective possible way.
When race or ethnic appearance is one of the factors that
police use to target people, the effectiveness of the law
enforcement effort goes down.
And when you say behavior, you are exactly right. Behavior
is the thing that we all want to be focusing on because
behavior predicts behavior. Appearance does not predict
behavior. And that is true whether we are talking about
homeland security work, whether we are in an African American
community, or whether we are talking about Muslims. It is all
about focusing on behavior, and the agencies that have led the
way on that have figured out that behavior is what will give
the best police results over time; that putting race or ethnic
appearance, except for a description of a known suspect, which
is not profiling------
Ms. Jackson Lee. Obviously. Not profiling.
Mr. Harris. That is not profiling. Except for a description
of a known suspect, appearance confounds the ability of the
human mind to make decisions about what people are doing. It is
a conflicting and confusing factor. So if we can look mostly to
behavior, that is where we are going to get our best police
work, our highest level of results, and it is going to in the
bargain bring police and communities onto the same page instead
of having them alienated from each other.
I am glad, I could not be more glad, that crime has fallen
in so many American communities, and especially in African
American, Latino and other communities. And it just makes me
wonder why, then, is there still a gap in satisfaction with the
police at the level that it has persisted for so many years.
And I have to believe that part of the answer to that is this
historical relationship in which there has been a feeling that
people are not served, but are disserved, and it may continue
in some places in some departments. It may continue in the form
of using race or ethnic appearance as a way to target people.
Ms. Jackson Lee. Mr. Chairman, I would like just to have
the president of NOBLE just respond very quickly and ask for an
additional minute just for him to respond to that line of
reasoning.
Mr. Gowdy. The gentlelady via the gentleman from Michigan
is yielded an additional minute.
Ms. Jackson Lee. I thank you.
And to the president of NOBLE, let me thank you for your
leadership. But respond to--that is a very good question. And
what we say on this side of the table--let me just say what I
say, having been involved in a lot of police incident cases,
that doesn't for me label all of the police. Wouldn't that be
better, wouldn't that begin to redefine the relationship if we
use behavior, we did training, and we begin to dumb down or
lower down these dispassionate statistics that talk about it is
great to stop and frisk people, such as the complaints in New
York--if we had a behavioral and then began to develop a better
eye of police to get the guys that would have shot that lady on
a Brownsville street in gang fire, which no one would oppose,
versus the kid getting a loaf of bread trying to get an
education?
Mr. Ship. That is exactly right, madam. And the--all of the
chiefs of police that I have spoken to encourage their people
to train, get additional training in behavioral science as a
way to best combat and predict that criminal activity is going
to occur before it occurs. We do need help. It is--it is a
costly undertaking. And unfortunately, enough State and local
law enforcement officers are not afforded that opportunity. So
that would definitely help.
But if I may, if I could just share a New Jersey experience
with the Committee also. In the State of New Jersey in 2009,
the attorney general--we drafted at the attorney general's
office, and I was part of that working group--we drafted a
policy to eradicate racial profiling, and the legislature
outlawed it in the State of New Jersey. That training that
those officers got, it was mandatory that every law enforcement
officer in the State of New Jersey get this training. Since
that has occurred, the number of incidents and calls that we
have gotten from motorists and other individuals in the State
of New Jersey has reduced drastically. So that training that
the officers were giving and also the monitoring now that the
commanders and supervisors are doing with respect to racial
profiling has had a dramatic impact.
Ms. Jackson Lee. Thank you very much. I yield back.
Mr. Gowdy. I thank the gentlelady from Texas.
I will recognize myself.
Mr. Ship and Mr. Conlon, I want to first thank you for your
service within law enforcement and armed services.
Mr. Ship, I was a prosecutor for 16 years, and the thing I
liked most about the job is very little politics among law
enforcement officers, prosecutors. It is as depoliticized as
any environment can be. The thing I liked least about it was
sitting with the parents of African American youths who had
been shot and explaining to them that while there were
witnesses, none of them would cooperate with the police, and
none of them would cooperate with prosecutors. So it is almost
as if it is a self-fulfilling prophecy that you lose confidence
in the criminal justice system because you have a child that
has been murdered, and you can't do anything about it because
we don't have witnesses that are willing to help. So how do we
fix that?
Mr. Ship. And, Mr. Chairman, that is one of the lasting
effects also that stem from the use of racial profiling and
other bad police practices within a community.
Mr. Gowdy. But these aren't drug cases, and they are not
property crime cases. These are murder cases.
Mr. Ship. Yes, sir. I agree with you wholeheartedly, and I
understand your passion in that area, but if you are in a
community that do not trust the police, it is going to be very
difficult and extremely difficult to get those individuals to
cooperate with the criminal justice system.
Mr. Gowdy. Ms. Mac Donald, do you think it is a wise
expenditure of police resources to put them in the
neighborhoods with the most 911 calls?
Ms. Mac Donald. With the most what?
Mr. Gowdy. The most 911 calls or the most reports of crime.
Is that a wise investment to put most of your police resources
where the most number of 911 calls are or the most number of
reports of crime?
Ms. Mac Donald. I think that police should go where the
crime is, yes, I do, because that is where people need the most
protection.
Mr. Gowdy. And if they are there, then why would you not
have a disproportionate amount of police-citizen interactions
if they are already there?
It strikes me that the police really can't win, because if
they don't go into the neighborhoods where the crime is taking
place, which oftentimes in South Carolina are indigent
neighborhoods or sometimes minority neighborhoods--if they are
not there, they are blamed for ignoring crime in minority
neighborhoods. If they do go, and they spend a disproportionate
amount of time there, there are going to be more interactions
between police and the citizens or the residents of that
community. So how do police win?
Ms. Mac Donald. You are absolutely right, Congressman
Gowdy. It used to be that the rap against the police was that
they ignored crime in minority neighborhoods, and that may well
have been the case.
Again, CompStat is utterly colorblind. It has nothing to do
with race. Officers are already using behavior, not race, to
determine whom to stop. If they were using race, they would
literally be stopping every single person in Brownsville. That
is not the case. What they are looking for is are you hanging
out on a known drug corner at 2 a.m. And possibly hitching up
your waistband in a way that would suggest that you have a gun.
They are targeting their resources where crime is high so when
the cops are there, they are looking for behavioral cues to
determine who they stop.
Given what the disparities are in crime rates, they cannot
help but generate disproportionate stop data because that is
where the cops are, and that is also where the criminals are.
Mr. Gowdy. Well, I want to say this. I want to just take a
moment and brag on my sheriff, Chuck Wright, who employed
CompStat a couple years before I left as the D.A. And still
uses it. And, Mr. Ship, I will tell you, my chief of police,
and I intentionally didn't say it when I asked the question, is
an African American chief of police, who has been there since
before I went to the U.S. Attorney's Office in 1994. I think he
is the best police chief in the country. And he had the exact
same frustration I did; he just has more gravitas and standing
to express it than I do. The same frustration: As an African
American in law enforcement, I get blamed for not doing it, and
then when we need to make the prosecution, we need to make the
arrest, I can't get folks to help.
Professor, I am going to do what everyone who graduated
from law school up here has always wanted to do, which is ask a
law professor a question since we had them asked of us for 3
years. I want you to assume for the sake of argument that
Whites are disproportionately likely to commit crimes of
exhibitionism, indecent exposure, peeping Tom. And at least in
my jurisdictions that is true, they are more likely to do it. I
want you to assume that a victim, a woman, sees a masked man at
her window. Is it appropriate for law enforcement to pull the
files on White sex offenders in the neighborhood to begin their
investigation?
Mr. Harris. Yes, it is, Congressman. It is appropriate
because you have related a behavior to prior behavior. That is
what makes that an absolutely appropriate move.
If you wanted to go further and be a little more thorough,
though, I would pull all the sex offender files, not just the
ones of White people, because the person is wearing a mask. So
it is a good first step, but I would take it further.
Mr. Gowdy. Agreed. But when I hear the term ``racial
profiling,'' it is not--and I listen very carefully to all of
the explanations, and I know that there are exceptions made
when there is a credible indication of the ethnicity or race of
the perpetrator. In my hypothetical the person was masked. But
because the statistics in that area indicate that Whites are
more likely to commit that crime, which is true in the area I
came, you see nothing wrong with police beginning their
investigation with White sex offenders in the neighborhood?
Mr. Harris. As long as that is only the beginning. To stop
there would be a big, big mistake.
Mr. Scott. Mr. Chairman, I am not sure he understood your
question. Your question is whether you would pull just White
sex offenders, not all sex offenders. Would it make more sense
to pull all the sex offenders?
Mr. Harris. It makes more sense to pull all the sex
offenders.
Mr. Gowdy. I was actually asking do you consider it to be
racial profiling if the police just pull the White sex offender
files?
Mr. Harris. As long as what we are talking about is a
relationship of behavior and behavior, and you have some reason
to suspect those files, the people in those files, I don't see
any reason that you can't begin an investigation that way. But
if you stay with it, you are going to cut off your possible
pool of suspects in a way that may take you off the track.
Mr. Gowdy. All right. I am, in keeping with the custom, out
of time.
I would now recognize the gentleman from Michigan Mr.
Conyers.
Mr. Conyers. Thank you, Chairman Gowdy.
I wanted to hopefully introduce to Attorney Mac Donald the
head of the Washington bureau of the American Civil Liberties
Union. I don't know if you two had the pleasure of meeting. I
was hoping I could be the first to have introduced you, because
notwithstanding Chairman Gowdy's modesty, we are going to try
to get you all together as soon as we can in the Committee to
continue this discussion.
Ms. Mac Donald. I look forward to that.
Mr. Conyers. She is in the audience, of course, but has not
been able to participate in this very interesting discussion.
And I am very pleased that you five were selected. And, of
course, Hilary Shelton is a regular, as is our Toledo
professor, who we enjoy coming back. But, to me, Detective Ed
Conlon has been incredibly reserved in his participation in
this activity as we bring it to a close with Judy Chu.
Let me ask you, and you have--of course, many of you are
authors, but you have not only practiced police work, but you
have written about your observances from that experience. And I
would like to begin our discussion with you taking the time you
need to reflect on the rich variety of opinions that have
arisen over this discussion this morning, Detective Conlon.
Mr. Conlon. Thank you, Congressman.
I think the police are not in the business of making people
happy. I think somebody who lives a long lifetime and never
speaks to a cop doesn't wish they had. They are--sometimes they
are the bringers of bad news, and sometimes they are the proof
of it.
Also, I think there is a tendency to--at least there was in
New York--to view either the mayor or the police commissioner
as sort of the incarnation of the police. There certainly was
during the Giuliani era, as if every cop was a mini Giuliani.
Now we certainly benefit by having Commissioner Kelly at the
top, who has long and distinguished service, and I can speak
honestly about him because I don't work for him anymore.
It is an acutely painful subject, that of race in America.
The Congresswoman made mention of the Sean Bell case in New
York where this young man was killed by police on the night
before his wedding. Now, three New York City police officers
were put on trial in relation to that death. Two of them were
African American, and one of them was Arab American.
Now, the circumstances of that death were that Mr. Bell was
with his friends at basically a whorehouse. His friends were
criminals. There was a fight. They went outside. An undercover
officer said there was an allegation that guns were being
brought back. Mr. Bell and his friends got in a car. They ran
over one of the officers. The question at issue was whether an
undercover identified himself as a police officer before they
were shot. And that officer and several others opened fire on
Mr. Bell.
You have a situation of a young African American man being
killed by police, which is a tragic circumstance, a young man
with promise. On the other hand, you had officers who were
exactly the kind of officers who you want to be drawing into
the police, two African Americans and an Arab American, who I
don't think can be in conscious accused of acting in malice,
being put on trial for murder. And I do not believe those
officers got sufficient support during that trial.
Mr. Conyers. Now, if I can have just a little more time for
this last question, sir.
Mr. Gowdy. The gentleman from Michigan is recognized for an
additional 2 minutes.
Mr. Conyers. Thank you very much.
Detective Conlon, 3 days ago the New York Police
Department, already saddled with corruption scandals, saw its
image further tainted on Tuesday with the conviction of a
detective for planting drugs on a woman and her boyfriend. Are
you familiar with that?
Mr. Conlon. The report lines of the story, yes.
Mr. Conyers. Right. I am reading directly from the New York
Times, and I will put this in the record.
[The information referred to follows:]

__________

Mr. Conyers. The bench verdict stemmed from acts committed
in 2007 by a 14-year veteran of the department who worked in
the Brooklyn South unit. In announcing the verdict, the judge
scolded the department for what he described as a widespread
culture of corruption endemic in its drug units. I thought I
was not naive, he said, the judge, but even this court was
shocked not only by seeming persuasive scope of misconduct, but
even more distressingly by the seeming casualness by which such
conduct is employed.
Your comments, please.
Mr. Conlon. It is a disgrace, and it is a shame. I worked
in narcotics. I have been with the police department, and very
proud of my time there. That, to me, is the worst scandal in
recent memory, even though there were a number of former and
present officers in a different part of Brooklyn arrested for
guns.
To arrest somebody without cause is, in effect, to kidnap.
It is a truly, truly awful thing. And to do it just to not get
yelled at by your boss or to have enough activity is absolutely
appalling. And I certainly don't agree with the categorization
as widespread in any way. It certainly was not my experience.
But I agree that it is appalling and shameful.
Mr. Conyers. Thank you, Mr. Chairman.
Mr. Gowdy. I thank the gentleman from Michigan.
Ms. Chu.
Ms. Chu. Thank you, Mr. Chair.
I have a question for Mr. Shelton, but before I begin with
my questions, I would like to take a moment to say that the
title for this hearing is rather ironic: 21st Century Law
Enforcement: How Smart Policing Targets Criminal Behavior. We
are using the phrase ``smart policing'' as a synonym for racial
profiling, and I don't think it is very smart at all to profile
individuals based on their race.
In order to properly address the issue at hand, we have to
really get to the root of the problem, and we must first be
honest with each other and acknowledge what we are truly
discussing here, and that is the question of whether it is ever
acceptable to single people out for heightened scrutiny based
on their race, ethnicity, religion or national origin.
And as a chair of the Congressional Asian Pacific American
Caucus, I am glad we have this opportunity to discuss this
issue, because Asian Pacific Americans, like other minority
communities, have felt the significant effects of it, from the
Chinese Exclusion Act to the Japanese internment, to post-9/11
racial profiling of Arab Americans, Muslim Americans, South
Asian Americans and Sikh Americans. I believe racial profiling
is a hurtful, ineffective, and a destructive law enforcement
method, and it hurts us all.
So, Mr. Shelton, do you believe that it is ever justifiable
to treat law-abiding citizens differently in the name of
carrying out the law?
Mr. Shelton. Absolutely not. There is no excuse for it.
Again, it clearly undermines the trust that is absolutely
necessary for effective policing.
Congresswoman, one of the issues that hasn't been discussed
here that we may have to have a second hearing on to raise is
how often these pretextual traffic stops, as we talk about the
use of racial profiling, end up also being accounted as we look
at issues of what we call the hit rate. That is, as we talk
about stops and their being effective in actually preventing
crime, how often do we find those stops actually result in
actually some paraphernalia, some illegal substance being found
in automobiles and cars? We find yet again we have another
process which undercuts that trust and integrity.
To be able to be effective, to be able to prevent crimes,
which is what we all want, we know that law enforcement, a
presence in our communities, is very helpful, but it also has
to come along with the trust of those community people they
serve. When you have situations in which people choose who
their suspects are simply because of the race of the person,
the pretextual reason for stopping them is because they believe
that because of their race, they either probably just committed
a crime or are on their way to commit a crime, and they find
that indeed when they stopped them, none of that has happened.
It is a misuse of resources. It again undercuts that very,
very important tenet with effective law enforcement. So there
actually is no reason, no acceptable reason, for choosing
someone simply because of the race, ethnicity or point of
national origin.
Ms. Chu. And you are saying that the hit rate is actually
low?
Mr. Shelton. Absolutely. When you look at the hit rates,
particularly if we look at our Department of Justice, our
Department of Justice does collect data, but only with Federal
law enforcement agencies that have law enforcement encounter
responsibilities. When you overlap those stops, the times that
they detain people, and you look at how often that ends up
resulting in them actually finding that there was a wrongdoing,
something illegal is happening, you see that it becomes even
worse. The problem is even worse than they perceived.
If we looked at that data--and data is important for
effective law enforcement--what you find is there are fewer
reasons, less reasons to stop African Americans, because we are
less likely to have that stop result in there being that kind
of paraphernalia in our car, the illegal substances.
Ms. Chu. Well, Mr. Harris, I would like to ask you about a
new type of profiling that seems to be occurring, because it
seems to have extended itself to immigration status profiling.
And under Alabama H.B. 56, law enforcement is encouraged to
profile minorities, many of whom are of Hispanic descent, by
stopping them and inquiring as to their immigration status. In
fact, many Alabama residents are now taking profiling into
their own hands and asking minorities for proof of citizenship
when they renew their leases, try to open up a utility account
or even go shopping.
What is the danger of civilians racially profiling other
civilians?
Mr. Harris. The danger of civilians engaging in behavior
like that is that to the extent that law enforcement does it,
it has some of the effects we have discussed, but if they are
civilians, there is no training whatsoever, none whatsoever. So
whatever would happen in an interaction like that, the person
is not trained to recognize any documents, is not trained to
know what to do if something is discovered.
It seems, to me, like the worst of all possible worlds. We
raise the stakes on people who appear to be of Latino or appear
to be from one group or another, and then people come along who
have no way to know whether anything that they learn is useful.
And they have no way--nothing upon which to base their actions.
The problem with laws like Alabama and the Arizona law,
which require police to inquire about immigration status, is
that there is nothing that they can do to see immigration
status. They must fall back on appearance and accent, and that
just leads them into profiling. I would not want to be a police
officer in those places.
Ms. Chu. Thank you. I yield back.
Mr. Gowdy. I thank the gentlelady from California.
On behalf of all of us, that melodious sound you just heard
is summoning us to vote on the floor. But on behalf of all of
us, thank you for your expertise, your perspective, your
collegiality, frankly, toward one another and toward the
Members of the Committee.
Without objection, all Members will have 5 legislative days
to submit to the Chair additional written questions for the
witnesses, which we will forward and ask the witnesses to
respond to as promptly as they can so their answers may be made
part of the record.
Without objection, all Members will have 5 legislative days
to submit any additional materials for inclusion in the record.
With that, again on behalf of all of us, thank you, have a
good weekend, and we are adjourned.
[Whereupon, at 1:27 p.m., the Subcommittee was adjourned.]