paradigm as is set nationally, law enforcement and prosecutors choosing not to file felony charges against people who have committed felony drug crimes and instead taking those people direct directly to volume thomas barret, directly to kind of a guerrilla social services interception program where resources are provided to those individuals who address whatever the underlying issues were that led them to sell drugs on a street corner. it could be addiction but for an increasing number of people, of course, it's a wage. this is a job that people can do and make money for rent or whatever other obligations they have when they're not able to access reliable employment in the official labor market. this program is called the law enforcement assisted diversion program or l.e.a.d. and came about after years of litigation we were involved in challenging selective drug enforcement in seattle drug asets of. seattle is an extreme outlier in

terms of racial disparity, the most extreme instance among mid-sized cities in the country over the last ten years. and when we -- where we came from, just to wrap up, in the course of this litigation, we would win some preliminary trial level decisions, and the prosecutor would dismiss charges against our clients, and we would start over again and do it again. after a few rounds of that, we had kind of a sitdown with the mayor's office, the police department, and the prosecutor with the two-part agenda. part one was are we all on the same page that there's a problem with racial disparity in drug enforcement and the answer to that was no. the fur was flying for an hour long conversation. there was absolutely no agreement. despite the fact that one superior court judge said that this question passed the any idiot test. any idiot can see that everybody who is charged with a drug crime

in king county superior court is black even though it's well established that the large majority of people selling drugs, not just using drugs in seattle, are white. there was no agreement about what was really going on out there. but at some point in that discussion a guy who i now recognize as really visionary, who is the head of the seattle police department narcotics unit interacted and said what if we set that question aside and instead of trying to agree on what the problem, is what if we all said we were for our own reasons interested in doing something different about drug enforcement? what should that be? it was fascinating because we had no answer to that question. we had rehorcall stances. my favorite was arrest all the white people. and our aclu partners were not thrilled about that position. more important, the more realistic position that we had thrown out was a moratorium on covest stings, low level

buy/bust operations that yielded most of the cases that were being filed and prosecuted. our partners in communities of color were not enthused about this. they were not supportive -- and there are many exceptions but they were by and large not supportive of a decriminalization paradigm because of a sense of not wanting to abandon the individuals and their families. the individuals out selling drugs on the street corner and their families and those communities and neighborhoods. they did not want laissez faire. they wanted something. they did not want this, though. i mean, there was a sense of if this is such a great approach to this problem, why isn't it being done to the white kids, right? and so what we tried to engineer with l.e.a.d. is a recognition that for the time being the police will be asked to deal with these issues and problems and to a significant extent their deployment will be racialized, that this is a bigger problem and a more long-standing pattern than we can take on with this single policy change. however, could we reduce the harm of that police engagement and patterns of deployment by

making it so when the police respond what happens is not the beginning of an incredibly harmful interaction that destroys this individual's life but an interaction that puts greater resources at their disposal to actually map out a realistic life plan that will not require them to sell drugs on the street corner to pay their rent indefinitely. that's what we're trying to do. there are all kinds of implementation challenges and this model is a very partial solution because it accepts things like racialized deployment and that police contact is going to be the mechanism that we use to inject resources into certain communities and populations because we don't care to do that in a more comprehensive public policy approach that is not predicated on the criminal justice system and that's all very problematic. so i'll say more later. >> professor richardson, if the police want to build trust in minority communities and they want to be responsive to the concerns that lisa daugaard says

have been raised by minority communities in seattle, are there psychological mechanisms having to deal with the way that people, including police officers, think about race that need to be taken into account? >> yes. i'm going to take lisa's -- but i will expand. but first i want to quickly thank rachel and anthony barkow and nyu center on criminal law for inviting me to participate in this conversation. so what i wanted to, in response to david's question, talk about is the ways in which race is discussed. so often when this conversation or when this topic is raised, we tend to focus on issues of character. so are the police rational, or are they racist when they stop african-americans or other non-whites at much higher rates than whites? is george zimmerman a bigot, or is he a concerned citizen? is trayvon martin an innocent

victim or a thug in training? these are the ways in which we typically discuss race, and what i want to suggest is that our focus on character and conscious racial bias may actually mask the ways in which we can still achieve racially disproportionate consequences, even in the absence of conscious bias. and so the reason for this, in my view, is based on something that i call suspicion cascades. and these are the systemic and predictable errors in decision-making that occur because of the way that we all think. so i just want to talk about that very briefly. the way that our minds work, we tend to make associations between concepts in order to process information quickly. so you can imagine if i had to figure out how to use this pen every time i came across a pen, i wouldn't be able to function. so our minds make these automatic associations, so if you see the word doctor, for

example, your mind will automatically think hospital and other related concepts will become activated non-consciously in your brain. unfortunately, the same things occur when we think about race. so these non-conscious stereotypes affect all of us. and there's research, for example, that demonstrates that police officers who think about crime automatically trigger non-conscious stereotypes of blacks. as a result of that, they pay more attention to black citizens than they do to white citizens. and this can happen even if an officer is attempting not to be affected by race and, in fact, if you tell an officer do not use race in your judgments, that will cause the association to come to the forefront of his memory and affect his behaviors even more. just like if i told all of you right now don't think of a white

elephant, the first thing you do is think of a white elephant to try to avoid thinking about it. so just simply thinking about the concept of crime triggers these nonconscious biases of blacks, and the reason i only speak of blacks is because the science, this implicit social cognition research upon which my research is based focuses primarily on the black/white relationship. i want to share one quick study before i end which is it particularly relevant to police/citizen interactions and criminality. so there's a study, it's a famous one, where researchers wanted to test whether or not stereotypes would affect the interpretation of ambiguous behaviors. so they had subjects watch two men who were on a video engaged in a discussion that grew increasingly heated, and, eventually one of the individuals, excuse me, kami,

shoves the other, and the oubts could rate it as horsing around, dramatic, aggressive or violent. and the researchers manipulated the race of the pusher and the pushee to see if it would affect the interpretations of this ambiguous behavior and found that it did. so when both individuals on this video were white, only 13% thought that this shove was aggressive. 69% thought, though -- excuse me. let me start all over again. when the two individuals were white, only 13% found that shove to be aggressive. but when both individuals were black, that number went up from 13% to 69%. in the interracial pairings, the statistics or findings are even starker. when the white individual was the pusher, only 17% found that to be aggressive.

when the black individual was the one who pushed, that number went up from 17% to 75% who viewed this interaction as aggressive. you can imagine an officer on the street thinking about crime which triggers these non-conscious stereotypes, his attention is going to be drawn to non-whites first regardless of his conscious racial attitudes. and then when he's attempting to determine whether or not the conduct he views is suspicious, he's more likely to view that conduct as suspicious if the individuals involved are non-white. the studies demonstrate that this is likely to happen. the final thing i want to add is something called stereotype threat, because we don't actually focus on the victims of stereotypes, and yet psychological studies demonstrate that people who are stereotyped negatively have volitional reactions that are difficult to volitionally

control, like lack of eye contact, gijting movements, sweating, increased heart rate, and this is because of the fear of being judged or confirming a negative racial stereotype about your group. so you imagine when an officer approaches you and you are aware of the stereotype, you will uncontrollably act in ways that the police are trained to view as suspicious. so we can understand now how implicit or non-conscious thoughts or non-conscious stereotypes can explain the racially disproportionate stops of non-whites, even in the absence of conscious bias. so i think in order to deal with the effects of race and policing, we should engage more with the social psychology of contemporary bias and also spend time like lisa and others on this panel have done collaborating with police departments to figure out ways to deal with the effects, the non-conscious effects of stereotypes. thank you.

>> so, thank you. chief thomson, let me ask you, professor richardson says that unconscious discrimination can lead even well-meaning officers and departments to police in ways that are racially biased in harmful ways and can leave members of minority communities to act in ways that the police wind up thinking are suspicious. is that something that a police department can and should address? >> well, absolutely. let me start by saying i'm going to relate to you my experiences that i've had in the past 18 years in the city of camden. my city is about 77,000 population, it's 95% minority. over the past decade, we've never ranked lower than five. we've been number one three times. we perennially are one of the

nation's most poorest cities, and when the state education ranks come out we perennially rank at the lowest with graduation rates and doneouts. although we may be an anomaly in many regards, the challenges are in some terms even that much more exasperating with what we're dealing w. the issue of race in an extremely urban environment and an especially challenged community is at the forefront. if it's not -- if it's not something that's part of the daily conscience of an organization, officers out in the field, you are prime for a watershed moment at any point in time, whether it be a trayvon martin or some type of civil unrest. so many of the -- whether it's legitimacy and even with some of the things that lisa was saying with regards to the enforcement aspects of it, it's -- it's

absolutely dead-on accurate. one of the things that we to do find and, again, in our most challenged communities, are, number one, that mass incarceration does not work. what we have seen and the tactics and strategies in the '70s, the '80s, the '90s and even the 2000s, with regards to whether it's the low level buy/bust operations or the corner sweep operations, it has not had a positive impact of either changing the mental calculus of the folks engaging in the criminal activity or changing the criminal patterns that are taking place. the fact of the matter is, and when you're looking at a street level drug operation, probably the most expendable component of that is the street level dealer. but at the same time, you're dealing with the challenge of addressing the concerns of the community. and the community doesn't want the open-our drug market

existing there, because it's negatively defining their lives, and it's not so much the drug dealing itself, but it's all the issues that come with it as well which end up turning into violent crime, and the like. so in dealing with these aspects, and in some regards we're dealing with race in be a urban setting such as mine, the fact of the matter is we're constantly see and are dealing with even our own officers kind of the flip side of racial disparity in the application of policing in the fact that when you have a densely populated minority community and then you're seeing a tremendous amount of caucasian individuals in high-end vehicles in a very poor environment driving throughout the city, it's the, you know, the community saying to you they don't belong here. see that white guy over there? go stop them.

officers are making that deduction. that doesn't make it right in application either way. we can't be naive to think, number one, we don't have a complicit bias, and it's something we have to address. furthermore, i do wholeheartedly believe there cannot be an overreliance upon social control, formal social control, to have the profound impact within communities that we want to have. the reality is i believe police should act as a facilitator, a convenor to kind of get that collective efficacy that research has shown us has been productive. we've seen it work in smaller segments of our city. but it's trying to get that and transition it into a much larger application but all the while realizing that the solutions to a challenged community do not lie in a pistol or pair of handcuffs. >> professor simmons, we've been hearing a lot about building

trust and operating in fair ways that elicit trust from minority communities. is there a role for law and for legal institutions in ensuring that the police do move forward in these ways? >> yes. >> i thought there might be. >> and i do have more. it's a common theme. >> i just want to borrow from lanny guinier and the miner and the canary. some of you may be familiar with this. she basically says that like the miner's canary alerts miners to dangerous conditions in the mine, racial minorities alert our society to broader issues. i think this is true with policing, right? so there are some broader issues that we need to address with policing. we have a broader problem here. so if we can fix a broken system or make some improvements overall, i'm confident that we

can make some improvements for racial minorities and so to that end i advocate a swiss army knife approach. right? this takes everyone. it takes the federal government, state and local government, and communities working together to address this. i have a little less faith, i think, in the role of courts because when we are talking about -- when we're talking about the exclusionary rule and some of these other judicial remedies, this can only -- these remedies can only affect adjudicated conduct, right? so much of what happens on the ground with police officers is unadjudicated. if it doesn't get to a court of law, that doesn't mean it's still not a problem. we need to have a multi-facetted approach, and we need more transparency in police departments, and that will go a long way to solving some of the

problems that the communities have with trust and legitimacy. so i want to talk specifically about the united states department of justice and their pattern and practice of authority. the united states department of justice has the authority to sue and seek injunctive relief against police departments that are engaging in patterns of unconstitutional behavior, of which racial profiling is one of many things that police departments could be doing. and so one of these, doj has used this authority in washington, d.c., pittsburgh, los angeles, and a lot of the reforms that have been gained through this, the reforms that the department is seeking to gain, focus on implementing an early warning tracking system.

so if there -- one thing that we know about police agencies is that when there's a problem, there's generally a problem with a small number of officers who have repeated instances of misconduct. so if we can implement an early warning tracking system, identify these officers for training, retraining or discipline, that might help our department. we can see how that would also, by making those officers accountable, might also engender some trust and legitimacy among the community. other reforms have involved implementing a fair complaint process. that makes sense. if citizens have complaints about their police department, they should know the proper procedures in order to make a complaint, and they should feel some -- some confidence that those complaints are going to be acted upon in a fair manner. and then there are also other

reforms related to specifically racial profiling as well. so all of these reforms are really in an attempt to gather information so that we can -- so that we can have additional remedies. but the federal government can't do it alone. obviously the special litigation section of doj that does this and they may have, i'm not sure the number of attorneys but let's say it's 20 or even 50 attorneys, they can't be in every police department that may have a problem. so state and local governments are going to have to step up here and make some changes. and, also, there has to be buy-in from the local community. the local communities, they know, as mr. thompson said, chief thompson, they know the

problems in their communities and they should have a role in developing and identifying those problems and developing solutions that are tailored to their local needs. so, again, i think the federal government can play a role here because they can incentivize states and local governments. there's millions of grant dollars that remain available each year to local police departments, and i would have the radical view that if you have a police department that has these problems, we should maybe withhold that money and see if they can't be brought into line, or we could maybe do competitive grant programs and give money to police departments that have experimented and have developed programs that are working. again, i just think we need a multi-facetted approach to change the broader culture of police departments, and if we can fix some of the broader

issues, then certainly we will fix some of the issues related to racial minorities. >> so if i could push back a little bit on this idea that we need a multi-facetted approach and we need to take account of fairness and there's all kinds of different ways that we need to be thinking about this, why isn't the answer just to say the police should not be making decisions based on race and then to put in place structures to find out whether that's happening. so this morning the senate judiciary committee is having hearings, not just on the general problem of racial profiling but on a bill introduced by sore ben kaledin of maryland last fall for the end racial profiling act. and this act bans racial profiling by federal law enforcement, by state law enforcement, and by local law enforcement. it enforces that ban through suits that the department of justice has authorized to bring

and that private individuals are authorized to bring. there are awards of attorneys' fees to victorious plaintiffs, and it also enforces the ban by cutting off any funding for state or local law enforcement agents that don't comply with the mandate to end racial profiling, and it commands all law enforcement agencies to keep statistics, to gather data, so that we can tell whether they are, in fact, making decisions that are based on race for conscious or unconscious reasons. isn't that the way forward? >> well, so there have been -- this bill has been introduced many times. it has not yet passed. maybe 2012 will be the charm here, but there are a lot of states and local governments that already collect this information. about 21 states are under statutory mandates to collect the information, and about 25 states are voluntarily

collecting this information already. and i think a federal law is a good way to ensure that we have more uniform collection. the problem is once we collect this information, what are we going to do with it and how are we going to develop programs or remedies to end it because there are a lot of states that are collecting it have found, for example, missouri collects information and found that -- that motorists, black motorists were 70% more likely than white drivers and twice as likely as hispanic motorists to be stopped by law enforcement officers in 2009. so we know that. we can look at new jersey. we can look at maryland. we know a lot of this information. there are a lot of limits to i think just to simply collecting

the data, and i'd be interested to hear what the chief says as well, but the -- the burden on officers and how do we -- how do we determine a person's race? this has been another thing that can be difficult for some officers to do in the field, and also just developing benchmarks for comparisons, what groups are we -- is it that we've stopped more motorists in this area, and this is a mostly african-american area, so we've stopped more african-americans in this area. so there's some challenges there. i think it's -- i think it's a good start. it's always great to have more information that challenges what are we going to do with that information once we collect it. >> chief thomson, what about it? would it be a good idea to challenge all police agencies to stop discriminating on the basis of race and keep statistics to

check to see whether they have done it? >> i believe the things that get measured are the things that get performed and that if we are going to have a meaningful step in the direction of trying to address this issue, i mean, i am for this. in 2005 in the state of new jersey, our attorney general had issued a directive to all law enforcement in the state banning racial profiling. essentially race cannot factor in to an officer's decision or his discretion unless it falls into one of two components. it's specifically giving what we call bolo, be on the look out of, meaning a crime has just occurred, or specific crimes that are reported and followup investigations, but that race cannot factor in to the discretion of an officer of whether they are going to initiate a stop or not. furthermore, race cannot factor

into the determination of how that stop is handled once it is stopped. and the litmus test is, as tom said earlier, is that -- is really how would this stop be handled if it was a person of a different race? now, that gets to be very difficult to manage that. what's key to that is we don't have that directive operating in a vacuum, but we have that directive coupled with systems such as early warning systems, so, you know, i look at it from my perspective within the jurisdiction that i -- that i'm charged with, and i'm 95% minority. so if i were to look and see the statistics of my officers, they are going to be stopping primarily minority folks because that's the jurisdiction in which we work. however, i do believe that it is key with our early warning system when we do start to get complaints of demeanor, we do start to get complaints of

excessive force, improper search and the like, that now it does become a key variable in our analysis of what's going on with that individual officer so that we can have some type of intervention and either cease the activity, remove that officer from this line of work or provide the training that may need to get them -- get them around a curve, but to answer your question initially, again, i'm a -- i'm a proponent to the axiom of the things that get measured are the things that get performed, and i think it's important to keep the statistics. >> lisa dugard, it's easier to measure at which people are stopped than it is to measure the ways in which people are treated so from your standpoint in working on this problem in seattle, which is the bigger problem? is it disparities in the amount of times that people are stopped? is it how they are treated, and would a mandate to collect statistics and stop ri