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."
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