AS CONFERENCE COMMITTEE members negotiate a final version of a police reform bill, the committee’s senators just got a powerful ally: The Supreme Judicial Court. The SJC on Thursday, in an unusual move, explicitly urged the Legislature to pass a provision that the Senate included in its bill mandating the collection of more racial data on traffic stops.
“This type of data collection would help protect drivers from racially discriminatory traffic stops, and also would protect police officers who do not engage in such discriminatory stops,” Justice Frank Gaziano wrote for the majority of the court in Commonwealth v. Edward Long.
The SJC decision makes it easier for a black defendant to claim in court that he was subjected to a traffic stop because of his race, so any evidence gathered from the stop should be suppressed.
Until now, the standard for proving racial profiling, handed down in the 2008 Lora case, required statistical analysis of other stops in that jurisdiction. In Thursday’s ruling, the court decided this was too difficult a bar to meet, and they set up a new test involving the specific circumstances of the traffic stop at issue.
The reason the court decided the statistical test was too large a burden is that a lack of available data about racial profiling in police traffic stops made it too difficult for defendants to gather the information.
In 2000, the Legislature passed a law requiring police departments that appeared to have engaged in racial profiling to collect detailed data on stops made by each officer, including the race of each driver. But the law expired, and nothing replaced it. As Gaziano wrote in the opinion, “Our effort to ease the burden on defendants has been unsuccessful due to inadequate or inaccessible data.”
The most recent statewide data set made available about racial profiling was a report compiled by Northeastern University researchers in 2004, which found that 249 of the state’s 336 police departments appeared to have engaged in racial or gender profiling.
In 2019, the Legislature passed a bill prohibiting the use of handheld cell phones while driving. Amid concerns that the law would be enforced in a racially discriminatory way, the Legislature included a requirement that the police record details about every traffic stop that results in a ticket or written warning, including the driver’s race. An annual report will be released with consolidated traffic stop data by town. No report has yet been released.
However, many advocates for racial justice warned when the bill was passed that the data collection provisions were inadequate. In a police accountability bill being considered this year, the Senate included in its version a provision that would replace the 2019 law with more expansive data collection.
The Senate bill – which the SJC is now urging lawmakers to adopt — would require data collection on traffic stops by officer, rather than by department, and make that information available to municipalities and the Registry of Motor Vehicles. It would require police officers to collect demographic data on all traffic stops, not only those that result in written citations. It would require each police department to publish a statistical analysis of the department’s stop and search data. The House version of the bill does not include the provision.
Justice Kimberly Budd, in a concurring opinion, said neither the 2019 law nor the 2020 bill would be adequate to show evidence in court since officer-level data would not be public. She added, “If past is prologue, we have no assurance that such information will be available in the future.”
Matthew Segal, an attorney with the ACLU of Massachusetts, said the lack of adequate racial profiling data is the fault of the Legislature and the police, and puts an unfair burden on victims of racial profiling. “We know from our own advocacy for years on this, it’s like pulling teeth to get data from police departments,” Segal said in an interview.
Despite growing pressure to get the police accountability done quickly, it remains behind the closed doors of the conference committee. Whether the SJC’s views will matter remains to be seen.