Pubdate: Sun, 03 Dec 2000 Source: Bergen Record (NJ) Copyright: 2000 Bergen Record Corp. Contact: http://www.bergen.com/cgi-bin/feedback Website: http://www.bergen.com/ Authors: Jeff Pillets And Wendy Ruderman, Trenton Bureau RELEASED PAPERS SHINE FLOODLIGHT ON PROFILING It looked like the perfect profile stop. A silver Dodge minivan with New York plates traveling south on the New Jersey Turnpike after 11 p.m. Inside are a young black driver and three minority passengers. The van appears to be speeding. For New Jersey State Troopers John Hogan and James Kenna, highly trained soldiers in the war on drugs, every detail was a call to action. What happened in the confusing moments after Hogan and Kenna pulled the suspects over on April 23, 1998, is a matter of debate. Beyond dispute are the nine gunshot wounds the troopers inflicted on three of the van's passengers, who had no drugs and were on their way to a North Carolina basketball camp. Last week, Attorney General John Farmer released 91,000 pages of internal documents that detail how race became a weapon of choice in the state's war on drugs. The papers show that racial profiling was not only a favored weapon, but a secret one, its official existence disavowed for a decade by the state's top law enforcers. Critics of the state police say the daunting library of material -- confidential memos, patrol logs, draft letters -- proves that the turnpike shooting was the inevitable combination of police racism and lax oversight by the state. Yet, with release of the new material, even the harshest police critics now concede that an array of complex forces were at work that allowed a bad situation to slip out of control. Chief among these was the drumbeat of the drug war, which by the late Eighties had loosed more than 1,000 New Jersey troopers upon the constitutionally sensitive grounds of highway interdiction and property seizure. "It was a brand new world for us," said former state police Superintendent Clinton Pagano, who retired in 1990. "Troopers were becoming, in effect, tax collectors for the state and there were suddenly roadside judgments being made everywhere. "We knew there were going to be problems." Indeed, as the documents verify, the politically popular assault on the drug trade became an acceptable excuse to pull over blacks and Hispanics on the state's roadways. "The great war on drugs became, in reality, a war on minorities," said Randall Kennedy, a Harvard University law professor who has written widely about racial profiling. "While the police are not blameless in this whole debacle, you've got to realize that they were placed in a very shaky ground with respect to civil rights and told to be warriors, heroes," he said. "How could that be anything but a recipe for disaster?" Some now argue that the imperatives of the drug war also seem to have become an excuse for a series of questionable judgments by government officials. From the very beginning, some of New Jersey's top law enforcement officials were concerned about the constitutionality of highway drug interdiction. Several top officials in the Division of Criminal Justice had concluded in early 1988 that the use of any kind of "drug courier profiling" was unconstitutional. In a Feb. 18 memo to her superiors, Debra L. Stone, deputy chief of the division's appellate section, cited a series of state and U.S. Supreme Court decisions frowning on the practice. The courier profile was a tool promulgated by the federal government to help police spot dealers on the highways. Based on drug trafficking "intelligence" gathered by the Drug Enforcement Administration, it offered police a pre-drawn portrait of the typical, and hypothetical, drug runner. This portrait specified various ethnicities and advised police to be on the lookout for motorists with certain physical characteristics. Stone's concerns were echoed in March by Deputy Attorney General Meredith A. Cote, who authored a more extensive study that found no court case "where the use of the profile . . . was held a valid justification for a stop." In June, a further memo by Cote advised that the state should even shy away from stopping speeders who fit a drug courier profile because the courts would deem such arrests "selective prosecution." Agency makes an about-face By September of that year, however, the Division of Criminal Justice seems to have made a complete about-face in the form of a 24-page brief by Assistant Attorney General Ronald Susswein. Susswein concluded that "the limited use of drug courier profiling . . . not only does not offend the Constitution, but is an extremely prudent and necessary use of available law enforcement resources." Susswein, however, urged the state to develop "consistent, uniform, and reliable" profiling training procedures "rather than to leave the matter entirely to the whim of individual officers." "You could see, even more than a decade ago, that the state had serious, serious problems with the whole idea of profiling," said William Buckman, a Moorestown defense attorney who argued against the state police in a prominent 1996 Gloucester County profiling case. "The Susswein memo proves they were in denial from the get-go." A former deputy attorney general who served with Susswein called the memo a "vehicle" to protect the state. "Make no mistake about it, that memo was a mission," said the attorney, who spoke on condition of anonymity. "They knew troopers were already out there profiling and they needed some protection." Susswein did not respond to requests for interviews. The debate over courier profiling within the Criminal Justice Division came at a time when public concern about the drug trade had reached a peak. By the early Nineties, an estimated $2 billion in drug proceeds was flowing through the state every year. Maps distributed by the DEA showed the corridors of the drug trade running through the Garden State from far-flung places such as Central America, West Africa, and Southeast Asia. Law enforcement agents working in New Jersey's seaports and airports and on its highways were seizing 100 million metric tons of drugs a year, an annual harvest that continues today. Inner-city residents of Camden, Trenton, and some of the state's other large cities were crying out for help against drug gangs that were invading their neighborhoods. Between 1985 and 1990 there were dozens of drug-related drive-by shootings, some in formerly peaceful neighborhoods that had never witnessed violent crime. When state police began sending foot patrols into the cities to roust out the dealers in 1989, grateful residents greeted them with cheers. The initial patrols, which even penetrated the schoolyards, netted more than 1,500 drug suspects. "What's been lost in the whole profiling debate is the sense of crisis that prevailed and the demand for something to be done when we started the drug interdiction program," said Pagano, the former superintendent. "There was a strong feeling that the public was demanding us to perform a vital mission. We responded." Filtered through a screen of race But it soon became apparent to state officials that at least some drug warriors were going awry. The internal memoranda show thickening strains of concern that ill-trained troopers were filtering their highway stops and drug arrests through the screen of race. An August 1993 memo authored by Assistant Attorney General Alexander P. Waugh Jr. suggested that troopers needed more direction about "what profiles can be used in justifying the initial stop." Waugh, who reported meeting with all state police troop commanders that month "to discuss the issues of hostile work environments and racial profiling," recommended the creation of a working group of lawyers to draw up profiling guidelines. At the time of Waugh's memo, the documents show, some minority troopers were already complaining that white officers were using race as the sole criterion for highway stops. Criminal defendants and their lawyers were making the same complaints. "The situation was out of hand from a very early time," said Howard Barman, an attorney who argued against the state police in several profiling cases. "At one time, every black driver with out-of-state plates was pulled over on stretches of the New Jersey Turnpike. "You just can't excuse that kind of behavior by saying troopers were only looking for drugs." The documents show that the issue of trooper training in regard to race and drug courier profiling increasingly became a concern for state officials. In a November 1994 memo, Waugh alerted his superiors to "stereotyping" that had become part of the official training curriculum. Waugh specifically called attention to an official lesson plan that labels homosexuals as a "deviant subculture" and asserts that "blacks value material goods" and "blacks who are not able to purchase their own home put money into cars." The lesson plan, used in association with a course titled "Social Problems for Law Enforcement Officers," is replete with broad statements about the behavior of ethnic groups, religious sects, and the sexes. Protestants, Baptists, and Mormons, for example, are depicted as having fewer drinkers than Jews, Catholics, Lutherans, and Episcopalians. Italian-Americans, the lesson plan says, "drink frequently and heavily but apparently have little alcoholism." The outline asserts that blacks show respect by lowering their eyes while whites show respect by meeting people's eyes. Troopers were also taught that Hispanics get married at an early age, have "subservient wives," "tend to get close when speaking," and "tend to form ethnic enclaves" that "work against them in American culture." "There does appear to be some stereotyping," Waugh wrote. Use of the materials was discontinued in 1993 or 1994, state police spokesman John Hagerty said. He did not know how long they had been used. Other state police training records show that evaluations of road troopers' job performance were based primarily on their ability to make drug busts. One trainer at the Absecon station criticized a trooper for "not focusing on the occupants prior to stopping a vehicle." A Route 80 patrol officer was described as "strictly motor vehicle enforcement" with "no motivation to actively pursue drug couriers." Another trooper at the Bass River station received this written critique: "He was unaggressive when it came to stopping cars and strictly relied upon radar." Many still crossed the line By 1996, it was clear that, despite the warnings sounded by Stone, Cote, Waugh, and other officials, many state police were still not adequately equipped to interdict drugs without crossing the constitutional line. On April 12, key state police officials met with representatives of the Division of Criminal Justice and the Attorney General's Office to review the drug interdiction program in light of a Gloucester County case that found state police had improperly engaged in racial profiling. A report of the meeting, prepared for state police Superintendent Carl Williams and others in the Division of Criminal Justice, suggests that the state was well aware that the drug interdiction program was deeply troubled. Not only were troopers ill-trained, the report said, they were ignoring explicit directions to record the race of all motorists they stopped. That made it impossible for the state to adequately track possible racial bias in roadside stops. The report cites a study of 692 state trooper stops from January to March 1996. In 487 of the stops, troopers failed to note the race of the motorist as required by written procedure. The report stresses that not a single trooper was disciplined for the lapse. The report concludes the state police have "been a leader in the 'War on Drugs,' primarily through the action of our uniformed personnel. At times, this combination has resulted in a mind-set of the ends justify the means. It is imperative that the Division provide better training concerning search and seizure. In recent years, this form of training has been almost non-existent. A cornerstone of training must be the understanding that profiling on the basis of race is unacceptable." At the time, there was growing anecdotal evidence accumulating in state files that troopers were improperly singling out blacks and Hispanics. In the documents are complaints from minority motorists about troopers who verbally abused them, humiliated them in front of their families, spat on them, or tore apart their cars looking for drugs. Some said they were humiliated by troopers who called them names and insisted they were speeding when they were not. 'It could have been anyone' But despite the mounting tide of protest from motorists and streams of stern memos from concerned state officials, little really changed -- until April 23, 1998, when Troopers Hogan and Kenna stopped the silver Dodge minivan on the turnpike. They believed the vehicle posed a threat when it lurched into reverse, and the troopers fired nine shots, hitting three of the passengers. "The wounds in those innocent men could not be ignored," said Renee Steinhagen, a lawyer who represents a group of minority troopers who claim they were victims of discrimination within the ranks. "But it didn't have to be Hogan and Kenna. It didn't have to be those four men. It could have been anyone. "The stage for a tragedy had been set for a long time." As the racial profiling controversy swelled after the shooting, the state police denied any systemic problems. After Williams told a newspaper that certain ethnic or racial groups were primarily responsible for certain aspects of the drug trade -- remarks that were relatively tame when compared to the curriculum that had been used at the academy -- Governor Whitman fired him for showing insensitivity. Scrutiny within the Attorney General's Office became more intense around that time. A March 1999 internal memo Stone wrote to her superiors said "pervasive sexism and racism starts at the top [of the state police] and runs through the entire hierarchy." "Racial profiling exists as part of the culture," Stone wrote. A month later, then-Attorney General Peter G. Verniero told the Senate Judiciary Committee that minorities were the victims of disparate treatment at the hands of state police, and that profiling was "real -- not imagined." A series of reforms followed that are still being implemented. Last week, in releasing the documents, Farmer said he hoped the full story in the written record would "sort of pay our debt to the past." Release of the papers, he said, would hopefully lead the state back to "the right place." In the end, he added, the state should be given credit for "acting in good faith" to try to understand how a well-intentioned policy turned tragic. "Did we do it fast enough?" he said. "No, obviously, or we wouldn't be here today." ~~~ IN THEIR OWN WORDS Excerpts from state officials on racial profiling. Feb. 18, 1988: Memo from Debra L. Stone, deputy chief of the appellate section of the Division of Criminal Justice, to the division's chief of staff, John G. Holl. "It is clear that under current United States Supreme Court opinions and New Jersey case law . . . a stop and/or search of a suspect based solely on that person fitting a 'drug courier profile' is unconstitutional. . . . Elements which deal with racial or physical characteristics or one's attire may not be used because they do no indicate ongoing criminal activity; they merely identify an individual as the 'type' of person who might engage in criminal activity based upon stereotypes of a drug courier's appearance." June 6, 1988: Memo from Deputy Attorney General Meredith A. Cote to Ann C. Paskow, chief of the Division of Criminal Justice. "Upon extensively researching this question [of using a drug courier profile], it is my opinion that such a policy would be construed by the courts as a form of selective prosecution without a rational or legitimate basis. As such, any stop made pursuant to such a policy which resulted in a search and seizure would be subject to a suspect's claim that his rights to the equal protection of the laws and substantive due process have been violated, thereby vitiating the validity of any arrest made subsequent to the search." Sept. 16, 1988: Memo from Assistant Attorney General Ronald Susswein to Holl, in response to Cote's memo. "I disagree with much of the legal analysis and conclusions drawn in that memorandum, and respectfully submit that the limited use of drug courier profiles, as required by Chapter 6 of the Attorney General's Statewide Narcotics Action Plan, not only does not offend the Constitution, but is an extremely prudent and necessary use of available law enforcement resources. "In sum, I submit that some selectivity is necessary in highway police enforcement, and thus 'profiles' of one sort or another are inevitable. I believe that it nonetheless would be better to develop consistent, uniform, reliable (but not too inflexible) guidelines and training procedures to assist patrol officers in the exercise of their discretion, rather than to leave the matter entirely to the whim of individual officers." Sept. 5, 1989: State Police Intelligence Bureau report, "New Jersey State Police Arrests: An Analysis by Region, Race, and Crime." "An examination of State Police arrests by the media or anyone else does not reveal any information about stopping practices employed by road troopers. The arrests do, however, show patterns of criminality and demonstrate different criminal phenomena. In the case of the I-95/Turnpike corridor arrests, the fact that more blacks are arrested than whites is not a result of racial targeting but is due to: 1) nearly two-thirds of all I-95 Turnpike corridor arrests are for drugs and weapon offenses, an area which intelligence suggests is heavily comprised of American blacks, Jamaican gangs, Colombian cartels, Cuban exiles, and Dominican criminals. 2) The I-95/Turnpike corridor traverses and connects major black and Hispanic urban centers." March 6, 1990: Memo from Ann Crawford, director of communications for the Attorney General's Office, to Attorney General Robert J. Del Tufo commenting on the Department of Law and Public Safety's 1988 annual report. "It seems to skate pretty close to profiling." The passages she was referring to: "A Drug Interdiction Training Unit also came into being consisting of troopers adept in recognizing potential narcotic traffickers. The unit provides critical on-the-job training to junior road personnel in recognizing potential violators and in carrying out proper arrest procedures." Traffic stops are an opportunity for trained officers to recognize the symptoms of drug use, and perhaps to uncover illegal drug transportation. When officers have ingrained in their thinking that fighting drugs is their personal priority, routine traffic stops become possible drug-related traffic stops." Aug. 20, 1993: Memo from Senior Deputy Attorney General John M. Fahy to Executive Assistant Attorney General Alexander P. Waugh Jr. "To date, no direct evidence of any scheme or plan has been uncovered to establish that the State Police or any particular group of officers engaged in racial profiling. In fact, [State Police Superintendent Justin] Dintino has gone on record on numerous occasions stating that there is no such plan and that such activity is not sanctioned by the State Police. Our office continues to argue that statistics alone should not be used to determine whether the actions of a particular officer in a particular case are appropriate. The State Police must recognize, however, that some troopers do have very high percentages of arrests of minorities. This is not to say that any particular trooper has engaged in racial profiling, but it could result in court inquiries into the actions of the officer and someday lead to a finding of racial profiling by that trooper." Aug. 30, 1993: Memo from Waugh to Acting Attorney General Fred DeVesa. "It occurs to me that it might be useful to have some further thought given to the issue of profiling, perhaps even leading up to the promulgation of some guidelines. I believe that State Police would benefit from some further advice in this area. Perhaps a working group of some sort could be formed involving some State Police members and some deputies from Criminal Justice, with Legal Affairs involvement if deemed appropriate." Handwritten at the bottom of the memo is a note from Assistant Attorney General Michael J. Bozza: "State police standard operating procedure on road stops is pretty good. If it ain't broke, don't fix it." Nov. 22, 1994: Memo from Waugh to Capt. Juan Mattos, Division of State Police. "The purpose of this memorandum is to alert you to the release of some discovery in a case involving State Police which I believe has the potential for generating adverse publicity. . . . As part of the discovery, the defendants have asked for copies of certain diversity training materials used at the State Police Training Academy. It is my understanding . . . that some minority troopers have claimed that they were taught derogatory things about minorities. While the lesson plan is positive, taken as a whole, we are concerned that some of the excerpted language could be the focus of negative comment, since there appears to be stereotyping. For example, homosexuals, who are protected by the Law Against Discrimination, are listed as the first group of 'deviant subcultures.' There is a statement that, 'blacks value material goods,' 'blacks who are not able to purchase their own home put money into cars.' There are other broad statements, which I believe would appropriately be viewed as stereotyping." March 12, 1996: Memo from Fahy to Waugh. "I have analyzed the decision rendered by Judge Francis in the [State vs. Pedro Soto] matter. . . . The strong factual findings made against the state police makes this a difficult case to overturn on appeal. . . . While the trial judge might have technically misapplied the law and painted the strongest picture that he factually could for the defense, appellate courts will probably disregard these deficiencies to eradicate the evil of racially selective enforcement of traffic laws which the court found to exist. "Finally, dicta in the opinion places a responsibility on the state police to monitor the racial composition of stops made by troopers. This issue must be addressed or it will come back to haunt the state police in future litigation." March 5, 1999: Memo from Debra L. Stone, now deputy director for operations of the Division of Criminal Justice, to Director Paul H. Zoubek, from an interview with a trooper whose name was removed. "Racial profiling exists as part of the culture. There is no written policy on it, but you are taught that if you see 'Johnnies' in a 'good' car, they 'don't belong,' and should be stopped and investigated. . . . The assumption is made that minorities are drug dealers, and cops are encouraged to stop them and toss their cars. This is particularly true of those 'Diggers' (suppressive troopers) who 'ride the black dragon' (the turnpike). Diggers are rewarded for violating the constitutional rights because the more arrests they get and the more drugs they find, the more likely they will get put in IAB [Internal Affairs Bureau] or EEO [Equal Employment Opportunity] which are plum assignments. "The hazing atmosphere is pervasive and contributes to the failure to call in stops and to play fast and loose with evidence. In at least one incident, troopers changed a Breathalyzer recording from .04 to .08 because they were afraid they would be taunted for not being able to recognize whether someone was drunk." - --- MAP posted-by: Jo-D