The need to eliminate barriers to diversifying police departments

The shootings and beatings of unarmed black men, boys, women and girls by police officers are sickeningly repetitive.  Also repetitive are the calls in response to diversify police departments by hiring officers who better reflect the communities and neighborhoods they Police Shooting Missouriwould patrol.  These issues have surfaced starkly in Ferguson, Missouri, where three out of 53 officers are black. There, efforts to diversify the police department have been non-existent. Similarly in Cleveland, where twelve-year old Tamir Rice was killed by an officer while playing in a park, black residents make up 53 percent of the population but black officers comprise only 27 percent of the police force.

In Baltimore, the racial composition of the police force more closely approximates the city’s population.  Nevertheless, the city has paid $5.7 million since 2011 in court judgments and settlements of police brutality claims.   In 2013, 70 percent of Baltimore’s police officers lived outside the city.   Thus, racial diversity alone is not a solution.

In response to the events in Ferguson, Cleveland, Staten Island and Brooklyn, several reform measures have been offered to help effectuate improved relationships between police departments and communities of color, including diversifying departments and training officers on implicit bias.  The need to hire more black and Latino/a officers who come from and reside in communities across the United States that are like Ferguson and
Cleveland is urgent.  To gain the trust of residents, officers cannot see the communities they patrol as “the other”; they cannot, as Officer Darren Wilson testified to the grand jury, simplistically and stereotypically believe that entire communities are not “very well-liked” and are “antipolice.”

The killing of Michael Brown put the deeply rooted distrust between Ferguson’s residents and their police department on international display.  We have learned of the intense and intimate relationship between Ferguson’s majority black residents, law enforcement and the criminal justice system.   For instance, of the 5,384 traffic stops by the Ferguson Police Department in 2013, 4,632 were of black drivers.   During those stops, black drivers were twice as likely to be searched and arrested as white drivers.   These statistics, while numbing, are reflective of cities, big and small, across the United States.   They find similarities in the legacy of New York City Police Department’s stop and frisk practice and its relationship to “quality of life” policing, which, fused with race, were the undercurrents that led to Eric Garner’s death.

However, one barrier to truly diversifying police departments in ways that reflect the communities they patrol is the broad and reflexive use of criminal records to disqualify potential candidates.   As is true of other public as well as private employers, police departments use criminal background checks to exclude candidates from joining their ranks.  But police departments are particularly rigid and inflexible when it comes to criminal records.   (The NYPD famously resisted letting war hero Osvaldo Hernandez join the force even after Governor Paterson pardoned him.)  Thus, efforts to diversify will be compromised if departments do not broaden their perspectives on officer qualifications.

Across the United States, poor individuals of color are disproportionately represented at each stage of the criminal justice system and, as a result, are particularly burdened by criminal records.  For far too many individuals, the effects of a criminal record are vast and often permanent. The most significant barrier is the inability to secure a job.  This is particularly true for black men, whose criminal records exacerbate the stereotypes and stigma that attach to race.  The Equal Opportunity Employment Commission forbids the blanket use of criminal records to exclude individuals from job opportunities precisely because the indiscriminate use of these records disproportionately affects black and Latino/a job applicants.  The EEOC has a range of factors to guide employers when considering applicants with criminal records, including the nature of the crime, the length of time that has passed since the crime and the relationship between the crime and the job sought.

To help address the undue impact of criminal records on job prospects, 13 states and approximately 95 cities and counties have enacted ban-the-box laws.  These laws delay inquiry into a job applicant’s criminal record until later in the job application process, after the applicant has interviewed and, in some instances, been deemed qualified for the position.   The laws allow individuals to be assessed based on their qualifications, rather than shut out of the process automatically at the outset because of their records.

However, police departments, as law enforcement agencies, are largely exempted from know-your-place-02-10241the EEOC and ban-the-box requirements.   As a result, departments have the authority to use overly broad disqualifications to bar candidates with criminal records.   These rigid restrictions disproportionately impact black and Latino/a candidates and stand in the way of advancing police departments in ways that are reflective of the communities they protect and serve.   As important, these restrictions are short-sighted.   Police officers who have had an experience with the criminal justice system can actually benefit communities, as they have a deeper, richer appreciation of the full bearing of the criminal justice system.  They understand the true significance of being charged with a crime as well as the obstacles to moving past that circumstance.

As a result, a criminal record—for instance, a record involving a long-ago misdemeanor or minor offense, or some felony offenses— should not, by itself, be an automatic bar to a career in law enforcement.   Some, probably many, feel reflexively that that a prior criminal record should be a disqualifier for joining the police force.   However, departments should assess the record—and the candidate—using the factors the EEOC requires.  Wise discretion and appreciation of context impact all aspects of police work, from earning and maintaining trust, to deciding when to initiate a full-blown encounter versus giving a warning (or saying nothing at all), to what to say during any interaction and the words used to convey the message.    Perspective, experience, understanding, appreciation, respect, tone and investment—in individuals and communities—are all crucially important aspects of police work.   Officers should understand that issuing a citation to a mother because her toddler son was eating a banana while exiting a subway (a court case that I observed recently in Baltimore City, for the crime of eating on the subway) can be as impactful and life-altering as arresting an individual for any other criminal act.

Lives are often forever changed as a result of interactions with police officers and the criminal justice system, regardless of the reasons or the circumstances.   Officers who have lived these interactions can bring particular sensitivity to the range of feelings, life experiences and issues that are plaguing relationships between law enforcement and the individuals, families and communities they have sworn to protect and serve.



Michael Pinard

Michael Pinard is a Professor and Co-Director of the Clinical Law Program at the University of Maryland Francis King Carey School of Law.

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