By David M. Greenwald
The Davis City Council is moving in the right direction in terms of accepting the recommendations of the subcommittee on policing. As I noted in the webinar on Friday, given that in 2006 we basically saw strong opposition to the creation of civilian review of the police—a commission that was implemented in 2018, and looks largely like the one that was proposed but rejected in 2006.
The data on police stops bears out what we believed going back to 2006—people of color are disproportionately stopped by the police. Even when we limit the group to simply Davis residents, “Black people are arrested at 5.0 times and Hispanic people 1.4 times their population share. Both sets of figures far exceed the racial disparity in arrests in the United States as a whole.”
It was unfortunate that Police Chief Darren Pytel seemed to punt on the implications of this—laying the blame on the DA’s office.
He told Mayor Gloria Partida: “As a general rule what the subcommittee is saying is correct, law enforcement is the gatekeeper to the justice system, and has a lot of authority to determine who gets arrested and who doesn’t and often times how the case is going to be investigated and what charges may be viable.
“Certainly we have the authority as to whether to make an arrest or not.”
But he said that “the DA can reach right around us… they can charge someone with a crime even if we never make an arrest or never actually recommend any charges.”
Gloria Partida pressed, saying that “it’s still at your discretion to reveal everything you encounter when you make an arrest… that is still at the discretion of the police department.”
“Why does that happen?”
Pytel strangely acknowledged that “that’s something that I haven’t really looked at. I would have to study that more to find out exactly what it is they’re saying.”
He again pointed the conversation back to the DA, “We don’t charge anybody with any crimes. That’s the sole authority of the DA.”
But this ignores a crucial factor—yes the DA can charge people or not charge people, but the gatekeeper plays the most important role, especially with low level offenses. The DA might on their own investigate and indict high level crimes, but are they going to, on their own, investigate a low level drug offense?
Drugs offenses are a huge percentage of the overall arrests in the criminal legal system. In 2019, they accounted for nearly one-fifth of all arrests. The research is pretty clear on this—Blacks and whites actually use drugs and sell drugs at similar rates.
Perhaps the clearest illustration of this is out of the Hamilton Project, a project by the Brookings Institute.
They found that about 19 percent of whites use illegal drugs while about 16 percent of Blacks do. Moreover, they found that the two sell drugs at about the same rate.
However, Blacks are about 6.5 times more likely than whites to be incarcerated for drug-related crimes.
This is purely a function of how policing occurs. There are two things at play here. First, police make the decision where to deploy their resources and they often choose so-called high crime areas where people of color live. Second, there is overall privilege. A more affluent person makes drug transactions and uses their drugs in the privacy of their own home where police are unlikely to be able to observe and detect—while people living more on the margins are more likely to make their transactions on the street and use on the street, where police are patrolling.
This is the point that Fordham Law Professor John Pfaff makes. He notes the incarceration rate for drug offenses are 34 per 100,000 for whites, 74 for Latinos, and 193 for Blacks.
He noted like I did that “even if there is no difference in offense rates across races and ethnicities, black and Hispanics are more likely to buy and sell drugs in public and that outdoor drug markets are easier to police.”
He notes this as the race-class interaction: “Wealthier (and thus whiter) people have more access to private drug markets.”
His third explanation is explicit or implicit bias, and this suggests either “a black dealer is more likely to be arrested than a nearby white dealer” or that “black neighborhoods are more heavily policed than white neighborhoods, even if the white neighborhoods have similar or greater levels of drug crime.”
Pfaff argues that we don’t have enough study on these topics, but finds that the few rigorous point to “enforcement choices as important factors in the racial disparities in imprisonment rates.”
It is easy to point to this as simply biased actors—but that is largely a misread.
Here I think a very important point is made about the nature of systemic racism.
Radley Balko points out that “systemic racism” is often misinterpreted to mean “everyone in the system is racist. In fact, systemic racism means almost the opposite. It means that we have systems and institutions that produce racially disparate outcomes, regardless of the intentions of the people who work within them.”
The important point here is that enforcement of drug laws and deployment of law enforcement resources are critical here. In Davis, those who are getting stopped creates a selection effect that starts driving the data. This is not conscious bias on the part of police—it is a combination of implicit bias, biased policing, and enforcement choices.
But we don’t solve it by passing the buck to the DA’s office in this case—the DA’s office has their share of blame on their charging decisions, but that’s a discussion for another time. Here the gatekeeper is local law enforcement, and until we can change how they do business, we are not going to resolve this problem.
—David M. Greenwald reporting
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